## Haamek Sheilah on Sheiltot d'Rav Achai Gaon, Kidmat HaEmek, Part I

###### Haamek Sheilah on Sheiltot d'Rav Achai Gaon, Kidmat HaEmek, Part I 3:1
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ונראה דלזה כוונו במגילה ד' י"ט ב', שהראה הקב"ה למשה דקדוקי סופרים, ובמדרשים אי' שנגלה למשה מה שתלמיד ותיק עתיד לחדש, וא"א לומר דהכונה קושיות ופלפולים שאין להם תכלית אלא מה שיעלה תלמיד ותיק להכריח חדוש דין שלא יהי' עוד מקום לנטות ממנו, ובמ' קהלת פ"א אי' עתיד להורות, והיינו כמש"כ, והכי אי' בירוש' פיאה פ"ב, דומי' דאי' שם עוד במגילה מה שהסופרים עתידין לחדש, היינו מקרא מגילה שאין בו שום ספק.

**The path of Torah, introduction to Ha'amek she'elah. Trans. by Elchanan Greenman. Urim, 2009:**
** IT IS GOD’S WILL FOR MAN TO DERIVE TORAH LAWS**
[IN THE PREVIOUS CHAPTER, we saw that there are laws received from previous generations that are undisputed and treated as definitive, binding upon future generations]. It appears that Tractate *Megillah* 19b is referring to such laws when it states: “The Holy One, blessed be He, revealed to Moshe *dikdukei sof’rim,* meticulous exegesis by the scholars. The Midrash¹ on *Shemos*, *parasha* 1: “The Holy One, blessed be He, revealed to Moshe at that time even the questions that students would ask their rabbis.” *Midrash Rabbah* on *Vayikra*, *parasha* 22 states: “Even that which a distinguished student would say before his rabbi was revealed to Moshe at Mount Sinai.” asserts that God revealed to Moshe what distinguished scholars would originate in the future. It is impossible to say that the Midrash intended [to suggest that what was revealed to Moshe] was mere questions and dialectics by future scholars that did not result in a lasting resolution of issues, and which had no practical outcome. Rather, it must be [that what was revealed to Moshe] were [laws] that distinguished scholars would advance so authoritatively that there would be no room for disagreement. See *Midrash Rabbah* on Koheles (chapter 1), [where the text does not read “*le-hadesh*,” to originate], but “*le-horos*,” to teach or rule, which supports what I have written. See also the Jerusalem Talmud, *Pe’ah*, chapter 2,² is similar to the *Midrash Rabbah* on Koheles, as both state that it was revealed to Moshe what the future scholars would teach as law. [which is similar to another statement further] in tractate *Megillah*, [“God showed Moshe *dikdukei soferim”*] and all that the Sages are destined *le-hadesh*, and this refers to the reading of the Scroll of Esther. [We thus see that the term *le-hadesh*] refers to new laws that leave no room for doubt.

footnotes:
¹ See Midrash Rabbah
² Halachah 4. Tractate Peah


###### Haamek Sheilah on Sheiltot d'Rav Achai Gaon, Kidmat HaEmek, Part I 3:2
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ובזה אפשר לפרש הא דאי' בגיטין ד' ס': אכתוב לו רובי תורתי וגו' ר"א אומר רוב בכתב ומיעוט בע"פ ורי"א רוב בע"פ ומיעוט בכתב.

**The path of Torah, introduction to Ha'amek she'elah. Trans. by Elchanan Greenman. Urim, 2009:**
This helps us to explain [a difficult passage] in *Gittin* (60b): “I [God] have written for him [Israel] the major parts of My Torah, [but] they have been regarded as foreign.”³ R. Elazar said: The majority of the Torah are written, and only a minority are oral. R. Yohanan said: The majority are oral, and only a minority are written. […That verse is to be understood as a question: “Should I have written for him the major parts of My Torah? But even (the parts) that I have written have been regarded as foreign!”]

footnotes:
³ Hosea 8:12


###### Haamek Sheilah on Sheiltot d'Rav Achai Gaon, Kidmat HaEmek, Part I 3:3
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והוא תמוה, דפשיטא דתורה שבכתב מעט מן המעט מתורה שבע"פ, אבל הענין, דזה פשיטא דלא אפשר להעלות עה"ד שיכת' הקב"ה קושיות והויות, וגם זה לא אפשר שיכתוב כל דינים שאפשר להיות בספק ובמחלוקת, שהרי מבואר הטעם במ' עדיות פ"א דלמה הזכירו דברי היחיד כו', ובמ' סופרים פט"ז ה"ה: א"ר תנחום בר חנילאי אלו ניתנה התורה חתוכה לא היו רגלים למורה שיורה, אבל עכשיו מעמדת רגלים למורה שאם טמא יש מטמאין כיו"ב, ואם טהור יש מטהרין כיו"ב, ובמ' פרה פ"ז מ' ז' תנן לזה הכשירו הוראת שעה, הרי דכך רצונו ית', ולא דברו אלא על דינים המבוררים כהיום, ואין בהם עוד ספק ומחלוקת, ובזה שפיר פליגי אי הרוב הם תורה שבע"פ או בכתב.

**The path of Torah, introduction to Ha'amek she'elah. Trans. by Elchanan Greenman. Urim, 2009:**
This debate is difficult to comprehend, for it is obvious that the Written Law is but a very small percentage of Torah Law. However, the proper understanding [of the dispute] is as follows: It is surely impossible to suggest that the Holy One, blessed be He, would record in the Written Torah all the questions and arguments [that might arise in the future]. Nor would it be possible [to argue] that [God] would record all the details of every law that could be subject to doubt or differences of opinion.⁴, he rejects Rashi’s interpretation that the Written Law refers to laws that have been derived through the thirteen hermeneutical principles with which the Written Law may be expounded, while the Oral Law refers to those laws that have no Scriptural basis and were transmitted to Moshe orally as *halachah le-Moshe mi-Sinai*. There the Netziv argues that it would be obvious to all that those defined as *halachah le-Moshe mi-Sinai*would be significantly fewer. [The fact that there is room for differing interpretations of the Torah] is clearly stated in Tractate *Eduyos*, 1:5: “[If the law is decided according to the majority], why are the minority views mentioned? Because a later court may decide to rule in accordance with the minority opinion, and thus it will be able to use that opinion as a support.” Moreover, it is written in *Soferim*, 16:5 — Rabbi Tanhum ben Hanilai said, “If the Torah had been given [to Israel] consisting solely of clearly decided laws, a halachic authority would lack the necessary flexibility to render appropriate decisions. But now [that the Torah does not give clear-cut interpretations,] if [a judge or rabbi] were to decide to declare something unclean [for good reasons,]⁵ Torah, *Sanhedrin* Chapter 24 and *Shulhan Aruch*, *Hoshen Mishpat*, s*iman* 2). Matters involving endangerment are covered by the general rule of *pikuah nefesh* (see *Kesubos* 19a and *Yoma* 82a) where the requirement to save a life almost always supersedes even explicit Torah law, and they are not discussed in the text. [he would have] opinions on which he could rely; or if he should decide to declare something clean, [for good reasons,] he will have opinions upon which he can rely.” See [also] *Parah* 7:7, that a temporary [emergency] order was issued for rendering valid [the water that was drawn for purification purposes].⁶ The debate [in *Gittin*] only refers to those laws for which there can be no doubt or disagreement. It is thus very reasonable for there to be a difference of opinion as to whether the majority of laws are written or oral.

footnotes:
⁴ The Netziv understands Written Law to be the Torah, and Oral Law as definite laws decided by the rabbis. In Meromei Sadeh
⁵ Later in this chapter, the Netziv refers to flexibility in emergency situations – times of great stress and hardship. There are specific rules concerning when to apply emergency rulings and who is qualified to rule on such matters (See Rambam, Mishnah
⁶ Those preparing the waters of lustration that were to be combined with ashes of the red heifer were not allowed to perform work during the ceremony of preparing the mixture. Due to the difficulties of the time, one was allowed to wrap the rope from the bucket that was used to draw the water, even though one was performing work by doing so.


###### Haamek Sheilah on Sheiltot d'Rav Achai Gaon, Kidmat HaEmek, Part I 3:4
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ואפשר להוסיף דפליגי במחלוקת רש"י ותו' עירובין ד' מ"ו א' ובנדה ד' ז' ב' ד"ה לסמוך עליו בשעת הדחק,

**The path of Torah, introduction to Ha'amek she'elah. Trans. by Elchanan Greenman. Urim, 2009:**
**Translator’s note:** For the remainder of this chapter, the Netziv will be using a disagreement between Rashi and Tosafos in Tractate Niddah in order to explain the underlying rationale for the disagreement between R. Yohanan and R. Elazar of the number of definite laws. The Mishnah in Niddah 7a–b records a disagreement between R. Elazar and the rabbis as to whether a young woman who menstruates after having missed three consecutive menstrual periods is considered a niddah, ritually impure: only from the time she sees the blood, or twenty-four hours retroactively from the time she saw it. According to R. Elazar, she transfers tum’ah, ritual contamination, only from the time that she sees blood, whereas according to the rabbis she does so twenty-four hours retroactively from the time that she saw blood. In Tractates Eruvin 46a and Niddah 6a–b, it mentions that in one particular case, Rebbi ruled in accordance with the lenient opinion of R. Elazar. After issuing this ruling, he recalled that R. Elazar’s opinion was a lone opinion and that he should have ruled in accordance with the rabbis. After further thought, Rebbi concluded that even though he should have ruled differently, he was not going to reverse his ruling, since we can rely on the opinion of R. Elazar in times of pressing need. The Talmud notes that if the halachah had been decided in accordance with the rabbis (it was not a merely a disagreement between a lone authority and the rabbis), he would indeed have reversed his ruling, even in times of pressing need.It is possible to add [that this disagreement is actually the basis of] the dispute between Rashi and Tosafos in *Eruvin* 46a and *Niddah* 7b, found in the Tosafos s.v. “*lismoch alav be-she’as hadehak*.” Rashi defines “pressing need,” as “a year of famine.”⁷ (unclean), less food was available. However, Tosafos questions Rashi’s interpretation, because, [in *Niddah* 9b], the rabbis themselves say “no [halachic] proof can be brought from [how the previous generations decided, as it was] a time of need [famine].”⁸, they waived the retroactive enactment because they were experiencing a scarcity of food. [In other words, the rabbis agree that at a time when food is scarce, we may waive the enactment of contamination]. Therefore, even if the *halachah*was decided in accordance with the rabbis, it would not affect his ruling.⁹, 9b, Tosafos offers two alternative explanations of what “time of need” means. One of the explanations is that the individual who asked the question had left the area and had already traveled a significant distance, which would have required Rebbi or his messengers to exert much effort to find that individual so as to notify her that the *halachah* is in accordance with the rabbis.

footnotes:
⁷ By rendering food tameh
⁸ R. Elazar attempted to prove that his opinion accords with how the previous generations ruled in a specific case. The Rabbis retorted that although the previous generations did believe that we should apply retroactive tumah
⁹ Therefore, in Tractate Niddah


###### Haamek Sheilah on Sheiltot d'Rav Achai Gaon, Kidmat HaEmek, Part I 3:5
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וצ"ל לפירש"י דאע"ג דעד שלא נחלקו ר"א וחכמים ולא עמדו למנין, הקילו בשעת הדחק, כיון שלא הי' עוד הלכה זו חתוכה, אבל לאחר שנמנו וגמרו כחכמים לא מהני שעת הדחק,

**The path of Torah, introduction to Ha'amek she'elah. Trans. by Elchanan Greenman. Urim, 2009:**
We must explain Rashi as follows: [In the previous generation], prior to the disagreement between R. Elazar and the Rabbis, they [as noted in *Niddah* 9b] judged leniently in times of pressing need; the law was not decided definitively. However, once the disputed opinions had been voted upon and decided, one could no longer rely on the opinion of R. Elazar, even in a time of pressing need.


###### Haamek Sheilah on Sheiltot d'Rav Achai Gaon, Kidmat HaEmek, Part I 3:6
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וכך הוא במס' פרה דהכשירו הוראת שעה, להפסד גדול, וי"ל דהשתא שכבר שנינו דפסול לא מהני הוראת שעה כיוצא בזה,

**The path of Torah, introduction to Ha'amek she'elah. Trans. by Elchanan Greenman. Urim, 2009:**
Similarly, with respect to the [previously stated] mishnah in *Parah,* in order to prevent substantial loss, a temporary [ruling] validated [water drawn for purification purposes]. Now that a definite ruling was decided in accordance with those authorities who invalidate drawn water, one may no longer render the water valid in times of pressing need.


###### Haamek Sheilah on Sheiltot d'Rav Achai Gaon, Kidmat HaEmek, Part I 3:7
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והשתא אי נימא כפירש"י דלא מהני במחלוקת יחיד ורבים וכדומה אחר שנפסק ההלכה, שעת הדחק, א"כ הקושיא חלה על דינים כאלו ולמה לא כתבן הקב"ה, וע"ז שייך דתורה שבע"פ מרובים משבכתב, וזוהי דעת ר"י דמפרש בתימה אכתוב וגו',

**The path of Torah, introduction to Ha'amek she'elah. Trans. by Elchanan Greenman. Urim, 2009:**
Thus, we see that according to Rashi, once a law has been decided upon, we may no longer apply the rule of following the minority in times of pressing need. Therefore we may ask, regarding [definitive laws that have been voted upon,] why where they not written in the Torah. The definite oral laws are more numerous than actually written. This is the opinion of R. Yohanan, who interprets the verse [in Hosea] as a question: [“Should I have written the majority of My Torah for him when even they regard the minimal parts that I have written as foreign?”]


###### Haamek Sheilah on Sheiltot d'Rav Achai Gaon, Kidmat HaEmek, Part I 3:8
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אבל אי כהתו', דגם בדינים כאילו אינו חתוך עוד היום, ומהני הוראות שעה ושעת הדחק, ולא קשה אלא מדינים שאין בהם שום מחלוקת. והוא חתוך, והמה מעוטים ממה שמפורש בכתוב, והיא דעת ר"א דלפ"ז באמת המה רובן בכתב.

**The path of Torah, introduction to Ha'amek she'elah. Trans. by Elchanan Greenman. Urim, 2009:**
However, according to Tosafos, [even after the halachos have been brought to a vote and decided upon,] they are not considered definite, and we may still follow the minority view temporarily or in time of pressing need. The question [of why certain laws were not written by God] is limited to the laws for which there is complete agreement among the rabbis, as only these are considered to be laws that are absolutely definite. According to this opinion these laws are less in number than what is written explicitly in the Torah.¹⁰ This is the opinion of R. Elazar: “The majority of definite laws are written.”

footnotes:
¹⁰ R. Elazar agrees with R. Yohanan that God wanted to minimize the earlier generations’ transgressions. However, according to R. Elazar the verse is translated as: “Though I write the majority of My Laws for him, they consider them foreign.”


###### Haamek Sheilah on Sheiltot d'Rav Achai Gaon, Kidmat HaEmek, Part I 3:9
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והלכה כר"י, וכן נוטה דעת הרמב"ם ושו"ע שלא הביאו זכר מחלוקת תנאים, ללמדינו כיון שכבר נפסקה הלכה, שוב אין נ"מ בזה בשום אופן.

**The path of Torah, introduction to Ha'amek she'elah. Trans. by Elchanan Greenman. Urim, 2009:**
The *halachah* in this matter follows R. Yohanan. Such is the opinion of Rambam and the Shulhan Aruch, who never cite any tannaitic disagreements. This is meant to teach us that once the halachah has been decided, there is no longer any practical reason [for citing the minority opinion].