Before listening to the audio class, read mitzva #4 in Sefer HaChinnuch.

The dinei hamitzva section of mitzva #4 is a little confusing. The author is working on giving us more information, and it is not so easy to follow. Try to read carefully and see if you can figure it out.

In mitzva #4, our author refers to an argument between Ramban and Rambam about exactly what this mitzva covers. This raises a topic that needs a bit of explanation, the notion that there are 613 identifiable mitzvot. We will take some time to discuss that notion in this class.

Then we will go on to our brief history of the literature of halacha.

Audio Class:
 

In mitzva #4, we are starting to get more content and more complexity. Here, the author inserts quite a bit of material in the introductory section, before he gets to the root/reason section. He begins to include excerpts from the midrash halacha to explain some of the dinim he refers to. The essay is not as tightly organized as it might be. Let’s make sure we can summarize the four sections of this mitzva. Then we will come back and note other interesting aspects of the essay.

1. Scope of the mitzva: This is a commandment on the ordained rabbis to follow appropriate court procedure in order to establish the beginning of each month, and to adjust the calendar to add a month when necessary to keep each of the holidays in its appropriate season. The source verse for this mitzva is Exodus 12:2, “this month shall be for you the beginning of months.”

2. MiShorshei hamitzva: Certain holidays need to come out at the appropriate moment in the agricultural cycle. Passover must be in the aviv, when the grain is just ripe. Succot must take place at harvest time. Someone has to make sure that the calendar keeps this all lined up.

3. MiDinei hamitzva: The details, for further study, involve the precise court procedure followed to determine that the new moon was visible and the new month had begun. Also, how, when and why to add an extra month, as well as how the new month was publicized. More details can be found in Talmud Rosh haShana, Sanhedrin, and Brachot.

4. The mitzva applies at every place and time that we have ordained rabbis under appropriate conditions. Therefore, only an ordained rabbi can violate this mitzva. Since it is a positive mitzva, there is no human punishment for breaking this mitzva, but the violating rabbi would be distorting the dates of the holidays for the entire community.

Notes:

Let’s look at this essay, to try to make sure everyone understands everything the author says. We will need to jump around a bit in our discussion of the essay, so we can get the concepts straight.

This mitzva has two aspects. First, the mitzva is to establish the new month. Second, the mitzva is to add an extra month to the calendar periodically so that the holidays come out in the right season.

The problem that makes this so complex is that we need to keep track of both a lunar and a solar calendar, and they do not match each other. The source verse for this mitzva is focused on keeping track of months, so it makes sense that there is a mitzva to determine the beginning of each month. This is also important because the Torah gives the dates of holidays in terms of the date and month. On the other hand, verses associate certain holidays with seasons and the agricultural cycle, so it’s important that the right month comes out in the right season, and that depends on the solar cycle.

A little later in the essay, the author explains why keeping these two agendas going at the same time is difficult. The lunar year is 354 days, 8 hours, and 876 chalakim. (A chelek is 3.5 seconds long, a time period determined by the astronomy necessary to calculate all this.) The solar year is 10 days, 21 hours and 201 chalakim longer. They don’t match. If we were to base the calendar entirely on the lunar cycle, and keep each month accurate, we would pretty soon have the holidays in the wrong seasons. (The Moslem calendar, for example, is entirely a lunar calendar. The Moslem holidays drift from season to season.) But the source verse of this mitzva requires us to recognize each month. The solution is to add an extra month to the year every so often, to keep the two cycles coordinated with each other. Figuring out how to do that, says our author, is really difficult, and should be left to great, pious scholars.

In practice, we do this by adding an extra month of Adar periodically. Adar is the month chosen because it is close to Passover. Our author explains that the rabbis can only add a whole month; they cannot add a different period of days or hours.

To explain these rules, the author quotes the midrash halacha. The author also cites the midrash halacha in explaining why only ordained rabbis can set the calendar and declare new months. This is a genre to tana’itic literature that attributes various rules to Biblical verses even if the rules are not obvious from the plain meaning of the verse. (If you are not yet familiar with midrash halacha or tana’itic literature, we will put them in some context when we discuss the history of halachic literature, which we will do shortly. We will see lots more examples of midrash halacha all through our text.) In trying to understand the midrash halacha, it is important to read the source verse that the author cites very carefully. Usually, there is something awkward or extra in the language of the verse that the rabbis interpret as conveying details of the rules for a particular mitzva.

The method for declaring the new months is another major theme of this essay. Declaring the new moon must be done during the day, not at night. Since the court knew when the new moon was expected to within a day or two, the judges were in court, ready and waiting. Two male Jewish witnesses came to the court, declaring that they had seen the new moon, and gave formal testimony to that effect before the judges. If the judges are satisfied with the testimony, they declare the new month, saying, “Today is holy.” The judges examine the witnesses very carefully, as it was considered a great honor to be one of the witnesses to the new moon and so the rabbis were concerned that witnesses who had not actually seen the new moon would come and try to testify so as to be the honored witness.

Although getting the testimony of the new moon was important, it did not normally override Shabbat. However, during two months of the year, witnesses who saw the new moon could violate Shabbat to go to court so the court could declare the new moon as soon as possible. Those months were Tishrei and Nissan, two months which had holidays come out in mid-month. (Tishrei has succot, Nissan has Passover.) The news of the new month had to get out to the Jewish communities farthest away from Jerusalem, and, if the news was to get there in time for the Jews living there to celebrate those holidays at the right time, there was no time to waste at the beginning of the process.

Once the new month has been declared, the court had to publicize the event so that people would know what date they were up to. Note that, under this system, most people did not know it was rosh chodesh, the new moon, until the day was over or nearly over.

At the end of the first paragraph of this essay, the author points out that even when the court was still in the business of declaring the new month, they would sometimes declare the new month even though there were no witnesses. For example, the weather might have blocked the view of the new moon, or the new moon appeared but no qualified witnesses came to testify to its appearance. The rabbinical court knew when the new moon should appear, and the calendar had to be kept straight even if no witnesses appeared, so the court would sometimes declare the new moon even without witnesses.

The job of officially declaring the new moon in given to ordained rabbis, smuchim. No one else could do it. Smicha is rabbinic ordination passed on as part of a direct line from teacher to student all the way back to Moshe. It could be bestowed only in Israel, although the recipient did not have to be in Israel. It involved a beit din of three, including at least one member who had smicha. Having smicha qualified the new rabbi to decide questions of halacha in front of his teachers. Smicha was an absolute requirement for membership in the Sanhedrin, although not everyone with smicha was qualified to serve on the Sanhedrin. The administration of smicha died out, probably late in the Roman period. (The Encyclopedia Judaica article extends the end date several centuries later.) Nowadays, although we call rabbinic ordination by the same term, it is not really the same institution. (Current ordination conveys much more limited powers. The recipient is qualified by his teacher to decide questions of Jewish law, but usually only as to narrow and specified topics, often described by designating the topic by their pages in the Shulchan Aruch.) The mitzva we are looking at obligates only those with direct original smicha.

Semicha could only be conferred in Israel. Our author says that a rabbi who had semicha could declare the new month outside of Israel, but only if no greater authority was available in Israel.

With the demise of smicha, a different system was needed, and our author deals with that topic. He explains that Hillel haNasi, son of R. Yehuda haNasi, instituted a calendar calculation that could be used in perpetuity. Hillel haNasi had the authentic semicha. This is the calendar we are still using.

In this mitzva/essay, we have the first mention by our author about a dispute about the count of the mitzvot. That gives us an opportunity to discuss the notion that there are precisely 613 identifiable mitzvot in the Torah. Let’s get some background about that concept, and then come back to this particular case. (My discussion is based mostly on Charles Chavel’s introduction to his translation of Maimonides Sefer haMitzvot.)

The Gemara in Makkot 23b quotes a statement: “Rabbi Simlai explained: There are 613 mitzvot that were told to Moshe, 365 negative commandments to correspond with the days of the solar year, and 248 positive commandments to correspond to the organs of the human body.” Rabbi Simlai lived in the second half of the third century, in Israel. Bits and pieces of these concepts appear earlier in rabbinic literature, but this is the first source that pulls them together.

As a drash, this statement is fairly easy to understand. There is a prohibition for every day of the year. There is a positive mitzva for each part of a person’s body. Every day, with each every part of your body, there are mitzvot to be done.

The question is whether to go beyond the homiletical point. Is R. Simlai really saying that it is possible to read the Torah and count exactly 613 mitzvot, no more and no less? Or is that notion only symbolic.

Avraham ibn Ezra thought that sometimes a homiletic is just a homiletic. He claims there is no exact count of the mitzvot of the Torah because there are so many different ways of counting, and that if one established principles of counting the mitzvot that apply for an extended period of time and reflect principles rather than details, one would not end up with 613. For example, (my example, not his) consider the prohibition of melacha, work, on Shabbat. The mishna says there are 39 categories of melacha. Several of those categories have distinct subcategories, and all of those categories and subcategories are considered prohibited from the Torah. So how would you count the number of prohibitions? Is it one? 39? 39 plus all the sub-categories? With that many options, it is a little silly to try to get your count to coincide with R. Simlai’s assertion. There is just too much wiggle room.

During the early Middle Ages, though, there began to be lists of mitzvot that added up to the exact numbers R. Simlai mentioned. Mostly those lists appeared in the poetic literature, rather than as serious, systematic halachic argument.

Maimonides saw those poems and objected. Many of the lists were clearly in error. For example, some included mitzvot that clearly originated later than the Biblical period, like mitzvot related to the holidays of Chanuka and Purim. As he was finishing his Mishna Torah, he decided to list the mitzvot and give a very brief explanation of each one. This appeared as an introduction to Mishna Torah, called Sefer haMitzvot. But it was much more methodologically careful than the earlier counts.

Once a serious scholar took on this challenge, other followed. In particular, Ramban wrote a systematic critique of the Rambam’s list, and disagreed in many places. These disagreements were systematic, each scholar having a set of principles for what counted as a mitzva and what did not.

Our author follows the Rambam’s count of the mitzvot as it appears in the Sefer haMitzvot, and he relies heavily on the content of that work as a basis for his own work. But he frequently cites the Ramban’s disagreeing opinion. Passages like the one we find in this mitzva come up over and over in this work.

Here, Ramban counts two separate mitzvot rather than one: 1. To declare the new moon, 2. To add a leap-month to the calendar to keep the months lined up with the seasons. From what our author says, this seems to be based on the fact that these two jobs are mentioned in two different verses. There may be more to it than that. We will see more of these disagreements as to what counts as a mitzva as we go along, and will see some of the principles on which Ramban and Rambam disagree.

Brief History of Halachic Literature

Jewish law begins with the Torah. Our tradition assumes that Moshe is the only one who communicated God’s laws to the Jewish people. (The term “torah shebichtav,” written torah, refers to the Bible, as written, and nothing else. Everything else in our long tradition is called “torah sheb’al peh,” Oral Torah. Only the first five books of the Bible are a direct source of halacha.) Scholars date the period of the exodus from Egypt at about 1200 B.C.E.

We can read the verses of the Torah and get an impression of what we are required to do. It seems logical that, aside from the exact text of the Torah, Moshe got more guidance from God on how to interpret and apply the mitzvot. When we get to the mitzva of kosher slaughtering animals for food, we will find a verse requiring that we “slaughter animals as I (God) have instructed you.” (See mitzva #451.) But no verse contains such instructions. That is an indication that Moshe got more than just what was written in the Torah. But we do not know just what else Moshe got. (There are a variety of opinions in later sources, but that is beyond the scope of our introduction.)

The next 800 – 1000 years are the “black hole” in the history of halacha; we know almost nothing about how Jewish law developed during that period. The rest of the Bible gives us only tiny tidbits of information from this very long period. For example, in the book of Ruth, we have echoes of conversion, and echoes of levirate marriage. We know that there was, for a time, an institution called Anshei Knesset haGedola, “The Men of the Great Assembly.” They are associated with the period of Ezra, but we do not know how long the institution lasted. They are credited with having taken steps to standardize texts for prayer, and probably helped canonize the Bible, but otherwise we know very little about what they did. We also know that at one point, a lost book, a “sefer torah,” was discovered in the Temple. When it was read to the people, they cried because of all the laws in that book that they had not known about. See II Kings 22. Apparently, the book was part of Chumash. We have no independent halachic literature from this period.

We pull out of the black hole into the era of the tana’im, “those who study.” The literature of this era is called “tanaitic literature.”

In about the year 200 C.E., R. Yehuda haNasi decided to write a summary of the legal disputes and rulings that had developed to date. The result was the Mishna. The Mishna is written in clear, simple Hebrew. It reflects a carefully reasoned, fully developed legal system, presented and organized logically and systematically. We do not know much about how the Mishna was composed. It was probably selected from a variety of parallel oral traditions extant at the time, then re-stated by R. Yehuda.

Once the Mishna was composed, other scholars began to collect parallel legal material that did not appear in the Mishna. These collections were called tosefta, “additions”. Each thought unit in the tosefta is called a beraita, “outside.” Later scholars used both Mishna and tosefta as authoritative, giving only slightly greater weight to mishnaic material.

There were two other genres of tanaitic material that began to appear in written collections during this same period. They were the midrash halachah and the midrash aggada. These were distinguished from the material in the Mishna and tosefta in that they were organized as commentary on the Torah. Midrash aggada is primarily concerned with the narrative sections of the Torah, and has had a limited impact on the later development of halacha. Midrash halacha, however, deals with deriving rules from the Torah verses that are not obvious on a first reading. (Our author has given us some examples of midrash halacha already, and we will see lots more as our study goes on.) Typically, the midrash halacha finds some peculiarities in verses, for example extra words, grammatical anomalies, etc., and then connects those to rules about the particular mitzva being discussed.

It must have taken quite some time for all of this halachic material to develop. We do not know how long. It is possible that some of it, or even all of it, dates back to the time of Moshe. It is also possible that the material developed in the century or two before it was all written down.

Let us distinguish two types of rules to be found in all of this literature. The most binding category is d’oraita, “from the Torah.” This category covers commandments found directly in the Torah and commandments derived from the Torah and explained in the midrash halacha. Closely related is the category of “halacha l’Moshe miSinai,” law from Moshe at Sinai. Typically, the rules in this category have no obvious textual source, but are not controversial. Distinguish these categories from law considered “derabanan,” “from the rabbis.” This is not commanded by God, but legislated or interpreted by later rabbis. As such, it is less authoritative than d’oraita material. This summary is overly simple, and the line between d’oraita and derabanan is not always clear. We shall spend lots of time making these distinctions in specific cases.

Legal discussion over the course of the next four hundred years or so was structured around and began from analysis of the Mishna. As recorded, these discussions comprise the Gemara (Aramaic for “the study.”) Mishna and Gemara taken together comprise the Talmud. There were two parallel schools each of which produced a gemara: Palestinian sages authored the Talmud Yerushalmi, Jerusalem Talmud; Babylonia scholars produced the Talmud Bavli, Babylonian Talmud. Not much is known about how the Gemara developed: when it was compiled, what potential material was omitted, who compiled it, where, what editing principles were used. For various reasons, Talmud Bavli had much more influence on later halacha than Talmud Yerushalmi. The literary style of the Talmud is complex, more like the minutes of an ongoing discussion than like a polished literary presentation. Following that discussion is made especially challenging because the text had no punctuation. (Punctuation had not been invented yet.) The discussion is mostly quite serious, but sometimes veers off into less formal material: stories, legends, jokes, etc.

The next important contributors to the development of halacha were the geonim, the heads of the Babylonian academies through approximately the year 1000. They may have had a hand in the final editing of the Talmud. And they wrote responsa, answers to letters requesting religious advice and legal rulings, a literary form which continues in use to the present day.

The period of the geonim gave way to the period of the rishonim, “first ones,” with the shift of the center of Jewish scholarship from Babylonia and southern Europe. (Our author is a rishon, but, of course, he didn’t know that. That name comes in only at the end of the period.) These scholars, each in his own way, attempted to elucidate areas which remained unclear and to put earlier material into a more accessible form.

Some scholars concentrated on explaining the Gemara. Rabbi Solomon ben Isaac (1040 – 1105), known by his acronym, Rashi, wrote a line-by-line explanation of most of the Talmud, explaining the flow of the argument and the policies and principles behind various opinions. Rashi’s physical and academic descendants in the next few generations took a somewhat different approach in their compiled commentary on the Talmud, called tosafot (“additions.”) Tosafot sometimes explains and supports Rashi’s opinion, and sometimes disagrees with Rashi. It often looks to other Talmudic passages that, by way of comparison or contrast, shed light on the text at hand. While Rashi was primarily interested in the flow within a particular passage, tosafot attempt to fit the various related discussions in the Talmud together into a consistent whole.

The gemara has a conversational organizational structure, not subject to easy organization. As commentaries on gemara increased, there was a vast amount of halachic material that was hard to find. So another major enterprise of the rishonim was to write legal codes. R. Isaac Alfasi, (1013 – 1103), “the Rif,” was the first of the codifiers. He kept the organization of the gemara, but cut out the material in the gemara that did not determine the actual halacha. Rambam (1135 – 1204) followed with a much more ambitious code, the Mishna Torah. He created an original organizational structure, and included halacha covering all areas, including Temple practice and sacrifices. Rambam intended that his book would displace previous Jewish legal sources for all but the most erudite. In this he failed, but his work remains a model of clear organization, thinking, and expression. Our author mentions both of these teachers as major sources for his own thinking.

This is really all the background history we need to understand Sefer haChinnuch; we have reached our author’s time period. But let’s spend a few minutes on the development of halachic literature from then to now.

The last of the major codes of the rishonim was the Arba’ah Turim, written by R. Jacob ben Asher of Toledo, Spain (1268 – 1340). His code was based on Talmudic sources and opinions of prior rishonim, and the author outlined some of the extensive disagreements between them. It used a new and original organization that served as a base structure for later works.

Two hundred years later, there was again a need to consolidate newly developed material. R. Joseph Caro (1488 – 1575), a scholar and mystic who lived in Safed, took on the job. He wrote the Beit Yosef, a detailed and extensive commentary on the Arba’a Turim, analyzing it and supplying sources. But the literature was too vast for the layman, who needed a decisive conclusion. For them, Caro produced the Shulchan Aruch (“the set table”), a compendium of the conclusions he reached in the Beit Yosef. It followed the organization of the Arba’a Turim. He intended that people would review the Shuclhan Aruch every month or so, so that they would know what to do and what not to do.

The Shulchan Aruch was not easily accepted. Caro was a member of the Spanish, Sephardi community, and the Shulchan Aruch did not include Polish-German, Ashkenazi, practice. R. Moshe Isserles (1520 – 1572), of Poland, a contemporary of Caro, came to the rescue. He saw a need for a simplified guide, and was sufficiently impressed with Caro’s work that, rather than writing an independent work, he wrote additions to the Shulchan Aruch. These glosses, called the “Mappa,” “table cloth,” outline areas where Polish practices differed from Spanish practices, and some areas where Isserles disagreed with Caro. The Mappa is printed interspersed in the text of the Shulchan Aruch in all modern editions. With these additions, the Shulchan Aruch attained a predominance it still retains, not as a handbook but as a scholarly work.

The Shulchan Aruch marked the end of the period of the rishonim; subsequent scholars are referred to as achronim (“later ones”). This was the final transition in a series of perceived changes in levels of competence that began much earlier. The sages who contributed to the gemara did not contradict a Mishna or beraita without an earlier source to depend on. The rishonim felt bound by the Talmud, and rarely took a position that could not be defended as a logical deduction from Talmudic discussion. The achronim felt themselves to be of lesser learning that the rishonim, and hesitated to take a position that could not at least arguably be supported by opinions of the rishonim. This hierarchy is one of respect rather than direct authority; the current scholar, by virtue of his cumulative knowledge of the entire legal development, has full power to make independent legal decisions binding on his constituents.

Here is a list of terms related to the history of Halachic literature. See if you can pick up definitions as we talk, and then we will review them at then end of our discussion.

D’oraita

Derabanan

Tan’aim

Mishna

Tosefta

Bereita

Midrash halacha

Midrash aggada

Amoraim

Gemara

Talmud

Rashi

Tosafot

Rishonim

Achronim