Halakhah su Deuteronomio 30:78

Although the Torah itself is immutable, the Sages teach that the interpretation of its many laws and regulations is entirely within the province of human intellect. Torah is divine but "lo ba-shamayim hi—it is not in the heavens" (Deut. 30:12); it is to be interpreted and applied by man. A remarkable corollary to the principle of the immutability of the Torah is the principle that, following the revelation at Sinai, no further heavenly clarification of doubt or resolution of ambiguity is possible. Clarification and elucidation are themselves forms of change. Since there can be no new revelation, a prophet who claims the ability to resolve disputed legal points by virtue of his prophetic power stands convicted by his own mouth of being a false prophet.

However, in my humble opinion, [the scholars of earlier generations,] despite their inferiority when compared to the Torah scholars of [still] earlier generations, and, therefore, their concern lest they rule in error—an error known to Hashem—did not refrain from assuming the obligation to do so. The Torah instructs us, "It is not in heaven" [Deuteronomy 30:12]. Each posek must rule as he sees fit, after meticulous study and analysis of all the relevant texts and prior rulings, to the best of his ability, fully cognizant of the heavy responsibility he has assumed in applying Hashem's Torah to the life of the Jew. If, after all his efforts, his ruling does not concur with that known to Hashem, he may take comfort in the statement of our sages: "Both these and those are the words of our Living Lord" [Eruvin 13a]. If he makes his decision with due diligence, he will be rewarded for his efforts even though he has not divined the real truth.

(Kof) “Robbing an ordinary person is more severe than robbing the Most High, (i.e., taking consecrated property). As with [robbing an ordinary person, the Torah] has sin precede me’ilah (trespass), [whereas with robbing the Most High], it has me’ilah preceding sin.” With robbing an ordinary person, it is written (Lev. 5:21), “If any one sin, and commit a trespass, etc.” But with one who misuses consecrated items, it is written (Lev. 5:15), “If any one trespasses in misuse (timol ma’al) and sins unwittingly, etc.” And this is a statement of Rabbi Levi in the chapter [entitled] HaSfina (Bava Batra ).⁵⁸Only the first part of this appears in our standard text of the Talmud, but the meaning is the same. And it requires explanation – as [just] because it had sin precede me’ilah, [does that mean] it is more severe? As both [terms] appear in both. And it appears to me that it can be explained according to that which is written by Rabbi Yitschak Arama in Parashat Chukkat of Akeidat Yitschak, that even the most complete person sins in something, etc. Indeed, he is compelled by his nature, as the verse states (Ecclesiastes 7:20), “For there is no man who is righteous in the world [… who does not sin].” But when it is in the manner of either being from the light sins or after complete repentance, he will certainly not be punished; as the Sages, may their memory be blessed, said (Rosh Hashanah 12b) “I am He before he sins, and I am He after he sins and repents.”⁵⁹The Talmud (the wording of which is slightly different than the quote) is referring to God’s attributes of mercy in Exod. 34:6). However we do not understand from this that no sinner is ever punished. As even though – in his not being God – he is compelled to sin, he is not compelled to wallow in sin and have it become habitual. See there. And [so] it is elucidated that man is not fitting to be punished for sinning, since he is compelled to it – and especially if it is from the lighter sins. Rather the main punishment comes in his wallowing in it and making it habitual, and not repenting. As anyone [can repent]; as it is written (Deut. 30:11), “it is not a wonder […] and not distant, etc.” – and the Sages, may their memory be blessed, say this is referring to repentance.⁶⁰The first known source for this is actually Ramban on this verse. And that is because while the [fulfillment of all the] actual commandments [is] a wonder for man and distant from him since he is a man and not divine, and is [so] compelled to sin – especially with the lighter sins – he is not compelled to wallow in them and make them habitual. And he needs to regret and repent, [as] the commandment of repentance is not a wonder and distant. And it is because of this that Rabbi Levi decides that stealing from an ordinary person is more severe than from the Most High. For with stealing from the Most High, [the Torah] had trespass precede sin; as since it is from the lighter sins, it is not called a sin for a man, given that “there is no man who is righteous in the world who only does good.” And the main sin [here] is because he wallows in it and does not immediately regret [it] after doing it. And that is why it has trespass before sin; as the sin is [afterwards] when he does not regret [it]. For this reason, it is written (Num. 5:7), “and they shall confess,”⁶¹In another section dealing with misusing sanctified property. such that they shall repent. But the trespass itself is not in the category of sin, since man is compelled to do such a light sin; which is not the case with robbing an ordinary person. [As] that is more severe, since a man can withstand [its temptation]. Even though he is not divine, he is not compelled to rob his fellow – [something that is] in the category of friendship and brotherhood. Hence with robbing an ordinary person, the trespass itself is the sin. And for this reason it had sin precede trespass.

This explanation, however, presents an obvious conceptual problem. The original settlement as a result of conquest also resulted in the inhabitants being seized of the land. Since the original settlement involved ḥazakah as well, why did it lapse? Kesef Mishneh, Hilkhot Bet ha-Beḥirah 1:16, raises the question and leaves it unanswered. The question may perhaps be resolved on the basis of the Palestinian Talmud, Shevi'it 6:1. This source indicates that the mode of sanctification utilized by Ezra, viz., ḥazakah, could not have been employed in the original settlement. Citing the verse, "And the Lord your God will bring you into the land … and He will do good unto you and make you more than your fathers" (Deuteronomy 30:5) the Palestinian Talmud states that, in contradistinction to the earlier sanctification, Ezra sanctified the land even though it did not achieve political autonomy but remained a vassal state owing fealty to the kings of Persia and Medea. Since this sanctification was a divine beneficence, and not contingent upon conquest of territory, it did not lapse when the land was taken from Israel.

Of particular moment is a later responsum authored by Rabbi Breisch, Helkat Ya'akov, III, no. 36, in which Rabbi Breisch suggests that circumcision may be performed on the eighth day in a manner which will leave sufficient foreskin for subsequent plastic surgery. The mizvah of milah requires that circumcision be performed in a manner which exposes the entire glans including the corona or crown. Hokhmat Adam, Binat Adam, klal 149, and Hamudei Daniel, cited by Pitḥei Teshuvah, Yoreh De'ah 264:13, rule that the foreskin covering this area must be entirely removed by excision. This is also the opinion of R. Judah Asad, Teshuvot Maharya, no. 250; Teshuvot Yeshu'ot Malko, Yoreh De'ah, no. 42; and R. Abraham Dov Kahana-Shapiro, Dvar Avraham, I, no. 27, sec. 2. Other authorities including Divrei Hayyim, II, nos. 114-118; R. Menachem Mendel Schneerson, Ẓemaḥ Ẓedek, nos. 101-102; Hatam Sofer, Yoreh De'ah, no. 249; Maharam Schick, Yoreh De'ah, no. 245 and Maharsham, I, no. 27, disagree and maintain that the essence of milah is simply exposure of the glans which may be accomplished by retracting the foreskin in a manner which leaves the glans exposed. R. Mordecai Jaffe, Teshuvot Maharam Yafo, no. 12, discusses both possibilities and states that he is unable to resolve the question definitively. The question hinges primarily upon the meaning of the Hebrew word "yimol—he shall circumcise" (Lev. 12:3), i.e., whether the word means "he shall cut" or whether its connotation is "he shall remove" as is the apparent meaning of the term in Deut. 10:16 and Deut. 30:6.

At all times you should love your Creator with all your heart and all your soul and take counsel with your heart and a lesson from man who is but worms; if a person gives you ten gold pieces or more, how deeply engraved would his love be in your heart. And if he provides your support and the support of your children and of your household you would certainly think, “This man which I have never seen and who has extended to me such kindness I would not be able to repay for all the goodness he has shown me should I live a thousand years. I would love him with all my heart and with all my soul; he could not command me to do anything that I would not do for him, because both my wealth and my being are his.” As with the love of man so with the love of the Holy One, blessed be He, raised and exalted be His fame. It is He who gives sustenance to all, how much better that we should cleave to the love of the Creator, fear Him, nor transgress His commands whether great or small. For we do not know the reward of each commandment,¹Aboth 2:1. and the punishment for transgressions though they appear light in our eyes, as it is written, “When the iniquity of my supplanters compasseth me about” (Ps. 49:6). The transgressions to which a man becomes habituated in this world will encompass him on the Day of Judgement.²Abodah Zarah 18a. If he is deserving his good deeds will bear witness for him.³Ibid., 2a. True and firm it is that we are not to transgress the commandments of our Creator even one of the small ones for a house full of gold and silver. If an individual says, “I will transgress a commandment and with the gold and silver they give me I will fulfill the difficult commandments. With this I will support the poor, invite wayfarers, I will do very many favors.” These are all futile thoughts, for perhaps soon after the transgression he will die and not succeed to the gift. Moreover, if he should not die the money would soon be dissipated so that he dies in his sin. Come and see how much you should love your Creator who does wonderful kindnesses with you, He creates you from a decayed drop, He gives you a soul, draws you forth from the belly, then gives you a mouth with which to speak, a heart to understand, ears to hear the pure words of His mouth, which are refined as silver and pure gold. It is He who leads you on the face of earth, who gives sustenance to all, who causes death and gives life to all. In His hand are the souls of all the living. It is He who distributes your share of bread. What is there to say? for the mouth is unable to speak, the ear unable to hear, for to Him all praise is as silence, there is no end to the length of His days, His years will have no end, He is the King of kings, the Holy One, blessed be His name and His fame. It is He who has created the heavens and earth, sea, and all that is therein. He is the provider of all, for His eyes are open upon all men’s paths recompensing each according to his ways and the fruit of his deeds, whether good or bad. Behold it is He who sets forth before men two paths, the path of life and the path of death and says to you, “Choose life” (Deut. 30:19). In spite of all this, we who are filled with worms do not think and do not set our hearts but to fill our appetites freely. We do not think that man’s days are numbered,⁴Job 7:1. today he is here, tomorrow in the grave,⁵Berakoth 28b. that suddenly he dies. For no man rules over his spirit⁶This refers to the breath of life, actual breathing. retaining it (forever). Therefore it is good for man to remove himself from all appetites and direct his heart to love and fear the Lord with all his heart at all times and to revile the life of vanity. For we will not be able to humble ourselves and subdue our passion which thrusts us from the land of the living, except through subduing our heart and returning to our Maker in complete repentance, to serve Him and to do His will with a whole heart. Our sages have said, “Bread and salt shalt thou eat and water in measurement shall you drink ⁷Aboth 6:4. and beware of gazing at women which drives a person from the world.⁸Ibid., 4:28. Love humans⁹Ibid., 1:12. and judge all people in the scale of merit.”¹⁰Ibid., 1:6. And this is what the Torah has said, “ But in righteousness shalt thou judge thy neighbor” (Lev. 19:15). Be humble before all, busy yourself with Torah, which is whole, pure and upright and do not praise yourself for it, because for this were you created.¹¹Ibid., 2:9.

That consideration, however, is relevant only from the divine perspective; insofar as the obligations of a man to his fellow man are concerned, "[the Torah] is not in Heaven" (Deuteronomy 30:12). Hence the dayyan may be required to compensate the victim of his mistake if, in terms of terrestrial considerations, the dayyan has committed a culpable error. But, since in the eyes of Heaven he is entirely guiltless and a person who is unaware of any harm that he may have caused cannot compensate the victim, Heaven must hold him guiltless in every sense unless he becomes aware of his error. Thus assured, the dayyan has no reason to shirk the duties of his office. The dayyan is dedicated to his sacred calling and, if competent, dare not be dissuaded by fear of potential financial loss.³⁰Regarding the obligation of a qualified scholar not to demur when requested to serve as a dayyan see R. Moses Sofer, Teshuvot Ḥatam Sofer, Ḥoshen Mishpat, no. 169 and this writer’s elucidation of that obligation in Be-Netivot ha-Halakhah, IV (New York, 5771), 180-181. If the dayyan errs, he will dutifully make restitution. His real fear is the fear of inadvertent sin and on that score the biblical verse serves to put his mind at ease.

However, in his article in Or ha-Mizraḥ, Rabbi Gershuni notes that both the Book of Maccabees and Josephus state that these territories were captured by both the Maccabees and by Herod. If this is the case, exclusion of these areas from the obligation of terumot and ma'asrot is puzzling. Rabbi Gershuni develops the thesis that only those areas settled by Ezra were permanently sanctified. Other areas settled at a later time do not share in this sanctity.¹⁵See also R. Ya‘akov Emden, Mor u-Keẓi‘ah 306. The Palestinian Talmud, Shevi'it 6:1, cites the verse "… and He will do good unto you and make you more than your fathers" (Deuteronomy 30:5) and interprets it as referring specifically to Ezra's resettlement of the Land of Israel. The beneficence spoken of and described as greater than that bestowed upon earlier generations is understood by the Palestinian Talmud as a specific allusion to the permanent nature of Ezra's sanctification. According to Rabbi Gershuni, the sanctity with which the territories captured by the Maccabees and by Herod were endowed was different in nature from the sanctity of the areas resettled by Ezra. The latter enjoyed permanent sanctity by virtue of settlement. No conquest was necessary since the return and resettlement of the land was accomplished with the permission of the Persian rulers. The areas captured by the Maccabees, and by Herod, argues Rabbi Gershuni, enjoyed sanctity solely by virtue of conquest, as was the case in the time of Joshua. Therefore, the sanctity of those territories lapsed when they were subsequently recaptured, just as the sanctity of the areas captured by Joshua lapsed when those territories were conquered by gentile nations.

How did Hafez Hayyim become aware of the fact that his cow had developed adhesions? Certainly not on the basis of some prophetic inspiration. Had such information been revealed to him, presumably he would have been duty-bound to inform his family so that they not inadvertently fall into transgression.⁷⁰Although the principle “it is not in heaven”(Deuteronomy 30:11) establishes that subsequent to revelation of the Torah at Sinai there will never be a supplemental revelation of halakhic information, that principle does not preclude prophetic revelation of factual information having halakhic ramifications. See R. Zevi Hirsch Chajes, Torat Nevi’im: Eleh ha-Miẓvot, chap. 2 and addendum to chap. 2, as well as R. Elchanan Wasserman, Kuntres Divrei Soferim (Pietrokow, 5684) no. 5, secs. 3-7. Republished in his Koveẓ Shi’urim, II (5720). There is a quite simple explanation for Hafez Hayyim's behavior. As animals age, they, no less so than humans, become prone to illness. Hafez Hayyim realized that his cow had reached a stage in bovine life at which disease and illness were more than remote possibilities. Concern for his spiritual welfare caused him to eschew milk that might be tainted with even the suspicion of spiritual harm. Was he halakhically required to act as he did? Certainly not. Unless empirically rebutted, the halakhic presumption that the majority of animals are not tereifot applies even to aging animals. Hafez Hayyim's avoidance of the milk of that particular cow reflected a finely-honed sensitivity to the possibility of transgression.

[The days] from Rosh Chodesh Elul until after Yom Kippur, are days of Divine favor [and acceptance.] Even though throughout the entire year the Holy One, blessed is He, accepts the repentance of those who return to Him wholeheartedly, nevertheless, these days are unexcelled and most suitable for repentance, because they are days of mercy and favor. On Rosh Chodesh Elul, Moshe went up Mount Sinai to receive the Second Tablets; he remained there for forty days, and came down on the tenth day of Tishrei when the atonement was completed. From then on these days have been designated as days of Divine favor [and acceptance,] and the tenth day of Tishrei as Yom Kippur [Day of Atonement]. In most communities it is the custom to fast on the day before Rosh Chodesh Elul and to recite the prayers of Yom Kippur Katan [minor Yom Kippur], in order to be spiritually prepared for repentance. If Rosh Chodesh occurs on Shabbos, Yom Kippur Katan is held on the preceding Thursday. The Ari (Rabbi Yitzchak Luria), of blessed memory, wrote, "If he did not lie in ambush but Hashem made it happen, then I will provide …" (Exodus 21:13) The initials of the words [ina le'yado vesamti lecha] form the acronym Elul, to indicate that this month is a favorable time for repentance to be accepted for the sins committed during the entire year. It also alludes to the fact that sins done inadvertently also require repentance¹The Scriptural verse referred to in the text deals with a homicide that was commited accidentally or inadvertently. during this month. The interpreters of allusions also commented: It is written (Deuteronomy 30:6) "And Hashem your God will circumcise your heart and the heart of your children;" the initials of the words [es levavecho ve'es levav] form the acronym Elul. Also, the initials of Ani ledodi vedodi li, ["I am my Beloved's and my Beloved is mine,"]²During these forty days, since repentance is more readily accepted, our repentance brings our hearts closer to our Beloved One and thus He, (our Beloved) is closer to us by accepting our repentance. (Mishnah Berurah preface to Chapter 581) [Song of Songs 6:3] form the acronym Elul. Also, the initials of Ish lerei'eihu umatanos la'evyonim ["One to another and gifts to the poor"] (Esther 9:22) form the acronym Elul. These acronyms are an allusion to three things: Repentance, Prayer and Charity which must be practiced zealously during this month. "Hashem will circumcise etc." alludes to repentance, "I am my Beloved's etc." alludes to prayer, for prayer is the song of love. "One to another and gifts to the poor," alludes to charity.

And that which our Rabbis, may their memory be blessed, also said (Arakhin 31b) that if the [last] day of the twelfth month arrives and [the original owner] does not find the buyer [to redeem it from him, behold he places his money in the court, breaks the door of the house and enters; and when the buyer comes,] he comes and takes his money. And that which they said (Arakhin 31b) that one who sells a house in the walled cities and the Jubilee arrives in the midst of the year of the sale, it does not go back immediately with the [start of the] Jubilee, but its law is like in other years in the years of the Jubilee [cycle] - that it is finalized with the [end of the] year if the seller does not want to redeem it. And that which they said (Arakhin 33a) [regarding] the seller of a house in the open cities - that if he wants, he can redeem [it] immediately like the law of a house from the houses of walled cities; and if does not want to redeem [it] immediately, he can redeem it even after a year like the law of fields. As they have the better power of [both] the fields, and the houses of the walled cities. And that which they said (Arakhin 32a) that the law of everything that is inside the wall, such as gardens, bathhouses, and birdhouses, is like the law of houses - as from that it is written (Leviticus 25:30), "that is in the city," it includes it all. But if there were fields inside the city, their law is like fields outside of the city, as it is stated, "the house will be established" - meaning to say, the house and all that is similar to a house, such as bathhouses, and birdhouses and even orchards, but not fields. And a house that does not have four ells by four ells is not called a house; and therefore, it is not finalized. And a house is not finalized in Jerusalem. And a city that its roofs are its walls does not have the status of of one surrounded by a wall, but rather we require that it has a wall besides its roofs. And we also require that it was first surrounded and settled afterwards, but if it was settled [first] and surrounded afterwards, that is not a walled city. And we only rely upon a wall that surrounded [a city] from the time that Yehoshua conquered the Land. And once they were exiled in the first destruction [of the Temple], the holiness of a walled city was nullified. But when Ezra came in the second coming [to the Land of Israel], all of the cities surrounded by walls at that time were sanctified; since their coming in the the time of Ezra which was the second coming, was like their coming in the time of Yehoshua: Just like their coming in the time of Yehoshua [provided that] they counted the sabbatical years and Jubilees, the walled cities were sanctified and they become obligated in the tithe; so too at the time of Ezra was it so. And so too, when the messiah will come with the third coming, we will begin to count the sabbatical years and Jubilees, the houses of walled cities that will be surrounded at that time will be sanctified and every place that will be conquered will be obligated in tithes. As it is stated (Deuteronomy 30:5), "And the Lord, your God, will bring you, etc." - and they said (Arakhin 32b), "It compares your inheriting to the inheriting of your ancestors, etc." And the rest of its details are elucidated in Tractate Arakhin (see Mishneh Torah, Laws of Sabbatical Year and the Jubilee 12).