THE RABBIS DERIVED LAWS FROM THE TORAH THAT HAVE BEEN ACCEPTED AS DEFINITE TORAH LAWS Translator’s introduction: In this chapter, the Netziv demonstrates, using various Talmudic sources, that the rabbis derived laws from the Torah that future generations considered to be definite Torah laws. The Written Torah, referred to as Torah she-bi-chesav, is defined by the Oral Torah, Torah she-be’al peh. The latter may refer to the laws received from Moses at Sinai or to laws that were decided definitively by the courts of the previous generations. Much of the Netziv’s basis of proof for the existence of Torah laws that were decided definitively by the rabbis revolves around the definition of the Talmudic terms “gemiri” and “halacha le-Moshe mi-Sinai.” The manner in which the various commentaries interpret these Talmudic terms is influenced by whether a particular Talmud passage cites a biblical verse as a proof text. All Rishonim accept that the Talmud will never cite a biblical verse in support of a “halacha le-Moshe mi-Sinai.” ANOTHER REASON FOR describing the Torah as an eish-das, a “fire of law”: A torch emits sparks which, when fanned or when fuel is added,¹ can result in the creation of another bright torch of comparable size and brightness. [This newly formed torch] can in turn emit other sparks that generate other [torches, each one comparable in size and brightness to the first]. When the first legal dispute occurred in the time of Yehoshua, [the Sanhedrin sitting at that time] voted and resolved the disputed issue beyond doubt. The [previously disputed] issue became halachah berurah, no longer subject to discussion. This law became binding precedent and a foundation that enabled future generations to resolve new, contemporary issues based upon the legal precedent. [Thus, a succession of “torches” was created from the first “torch” that was received at Sinai.]

footnotes: ¹ Literally, “joined with strengthening forces.”

This [process] is described by the Rambam in the introduction to his commentary on the Mishnah, s.v. “ve-ka’asher mes Yehoshua.”² [According to the Rambam] this is what is meant by the Talmud whenever it uses the terms hilchesa gemiri lah or gemiri[usually translated as “they have a tradition”].³ [However], according to Rashi and Tosafos [the terms hilchesa gemiri lahor gemiri] refer to laws that have been received by Moshe from God at Mount Sinai. This can be seen from [their comments on] Yoma32a [which states]: “[Rav Chisda said]: Gemiri, [During the Yom Kippur service] the high priest performed five immersions [and ten washings from the kiyor⁴].” Rashithere explains that [gemirimeans] that this law had been received by Moshe from God at Mount Sinai. Tosafos [is clearly of the same opinion because they] question why a baraisa⁵ derives this law from a Torah verse. Tosafos can only be asking this question if he assumes that the law has been received by Moshe from God at Mount Sinai [because there is a rule that with respect to such laws, no biblical verses should be cited for support]. See the beginning of Mo’ed Katan⁶ in the sugyaof the ten saplings [where this is clearly the view of Tosafos].⁷3b teaches: “[The following] laws were received from Moshe at Mount Sinai: the law of shemittah applied to ten saplings [that are spread over an area the size of a beis se’ah], the use of the willow [on Sukkos], and the laws pertaining to water libations.” Tosafos there asks why elsewhere, in Shabbos103b, verses are cited as the source for the law of water libations. Tosafos answers that the verses are not used for derivation, but are merely an “asmachta,” rabbinic support rather than a derivation from a Torah source. We thus see that Tosafos is also of the opinion that a verse is not cited for the source of halacha le-Moshe mi-Sinai.

footnotes: ² The Rambam states there: “Regarding matters that were in dispute, the law was decided by [the vote of the] majority of the Elders…. New interpretations [and laws] were constantly formulated. The sages of each [successive] generation would treat the previous decisions as established doctrine, inferring other concepts and new laws from them. Concerning these newly accepted doctrines, there was no longer any dispute….” ³ The Netziv later in this chapter will provide a different translation of gemiri. ⁴ The laver used by the priests in the Temple court. ⁵ A Mishnaic-era law that was not included in the codification of the Mishnah. ⁶ 3b. ⁷ The Gemara in Mo’ed Katan

[In contrast to the way I have explained the Rambam’s definition of gemiri,] the Kesef Mishneh⁸is R. Yosef Caro’s commentary on the Rambam’s Mishneh Torah. For additional information about R. Caro, see note 316 below. (Hilchos Shehitah10:12) writes that the Rambam is also of the opinion [that gemirirefers to laws received by Moshe from God at Sinai]. On the basis of this [misunderstanding of the Rambam’s definition of gemiri], he has difficulty with the Rambam’s opinion in Hilchos Tumas ha-Meis(2:15, 5:11),⁹is a state of ritual impurity that is communicated from dead bodies to people or objects. where the Rambam writes that the laws of gollel ve-dofek¹⁰refers to building walls around a corpse with stones or vessels (dofek) and then laying upon these walls a stone, board, or vessels (gollel). The Rambam is of the opinion that if this structure is not sealed, it only transmits tumah (spiritual impurity) rabbinically via ohel (tent) and maga (touch). are rabbinic.¹¹ 72a records a dispute between R. Yishmael, who holds that the laws of gollel ve-dofekare hilchesa gemiri lah, and R. Akiva, who derives them from verses. Assuming that hilchesa gemiri lahrefers to laws given to Moshe from God, both opinions would hold that they are Torah laws. Both opinions thus contradict the Rambam’s view that the laws of gollel ve-dofekare rabbinic. [The Kesef Mishneh] explains that the Rambam follows the opinion of R. Akiva, who cites the biblical verses only as an asmachta[rabbinic support rather than a derivation from a Torah source].¹²is rabbinic in origin. This is based on R. Yishmael’s use of the term hilchesa gemiri lah, meaning that it is not from Sinai, but merely a law decided by earlier generations. But according to R. Yishmael, these laws would indeed be Torah laws. However, after careful review, you will find that in his introduction to his commentary on the Mishnah, the Rambam only counts as halacha le-Moshe mi-Sinaithose laws that the Talmud mentions explicitly as being halacha le-Moshe mi-Sinaior with the term *be-emes amru, “*in truth they said.” The Jerusalem Talmud in Shabbos(chapters 1 and 9) states that the words be-emes[amru] mean that it is a law received from Moshe at Sinai. But [according to the Rambam] whenever the term hilchesa gemiri lahor gemiriis used, it is not referring to a law received from Moshe at Sinai, but rather to a law that has been received from previous generations, back to the generation that established that law. According to the Rambam, the term gemiriis related to the term nimnu ve-gamru¹³is derived from the same root as gemiri. [which means that the law had been decided definitively for all time].

footnotes: ⁸ Kesef Mishneh ⁹ Tumas mes ¹⁰ According to the Rambam, gollel ve-dofek ¹¹ The difficulty is that Hullin ¹² The Netziv will demonstrate at the end of this chapter that according to the Netziv’s understanding of the Rambam, there is no difficulty because the Rambam believes that gollel ve-dofek ¹³ Literally, “they voted and decided definitively.” Gamru

Thus, the Rambam states in Hilchos Nizkei Mammon(2:3) that the law of hatzi nezek tzeroros¹⁴3b, which states that this law is hilchesa gemiri lah. is “halacha mi-pi kabbalah,” a law that has been received [from previous generations] and not as Rashi interprets it in Bava Kamma3b (s.v. “hatzi nezek tzeroros”), that it is a law that Moshe received from God at Mount Sinai.¹⁵ In Hilchos Shabbos(12:8) the Rambam writes: “We have learned mi-pi ha-shemuah[on the basis of tradition received from a previous generation]¹⁶or mi-pi kabbalah, he is referring to a law received from Sinai as opposed to a received tradition. The encyclopedia fails to mention that this understanding of the Rambam contradicts the view of the Netziv, which is also the position of the Havos Yair, which is cited later in this chapter. that if one carries an object a total of four cubits in a public domain [he is just as liable as one who carries an object from one domain to another *–*the penalty is capital punishment if it was done intentionally and a sin offering if it was unintentional].” Here, too, the Talmud uses the expression hilchesa gemiri lah[which the Rambam understands as being a tradition received from a previous court’s ruling, as opposed to being a law received from Moshe at Sinai].¹⁷

footnotes: ¹⁴ This law states that if an animal kicks a rock that strikes a vessel and breaks it, the owner of the animal is liable for only half of the damages. See Bava Kamma ¹⁵ Rashi is thus being consistent with his interpretation of hilchesa gemiri lah. ¹⁶ However, the Talmudic Encyclopedia states that when the Rambam uses the terms mi-pi ha-shemuah ¹⁷ A tradition does not go back to Mount Sinai, but rather to the generation that definitively decided the law.

Further [in Sukkah5b, the Talmud explicitly mentions that the law of partitions was received from Moshe at Sinai], Sukkah6b [states] that according to R. Meir “the rule that [the laws of partitions are halacha le-Moshe mi-Sinai] includes the legal fictions of extension [lavud], junction [gud], and curved wall [dofen akumah].”¹⁸ [Several lines later] the Talmud discusses the rule which allows [one wall of a sukkah¹⁹ to be] a tefachwide. This law of tefach, the Talmud notes, is hilchesa[although it does not list the law of tefachtogether with the previously cited laws of partitions that were received by Moshe from God at Sinai]. Rashi [on Sukkah6b] (s.v. “hilchesa”) explains that when the Talmud previously mentions [in Sukkah5b] that the law of partitions are halacha le-Moshe mi-Sinai, it also includes the law of tefach. However, the simple understanding of this gemara [Sukkah5b and 6b] is that Moshe did not receive the law of tefahfrom God at Sinai. [Otherwise, why would the law of tefahbe listed separately from the laws that are included in the law of partitions, which was stated as having been given by God to Moshe at Sinai?]²⁰, the gemarain Sukkah6b states, “Ve-asa hilchesa,” which is translated by Rashi as “The law from Sinai comes….” According to the Rambam, this term translates as “the tradition comes.” The Rambam understands the word hilchesaas being only a “tradition,” which is consistent with his statement in the Introduction to his commentary on the Mishnah. There the Rambam provides a complete list of the laws that are from Moshe at Sinai, including the laws of extension, junction, and curved wall, but he omits the law of tefah. Rashi [on Sukkah6b] (s.v. “hilchesa”) explains that when the Talmud previously mentions [in Sukkah5b] that the law of partitions are halacha le-Moshe mi-Sinai, it also includes the law of tefach. However, the simple understanding of this gemara [Sukkah5b and 6b] is that Moshe did not receive the law of tefahfrom God at Sinai. [Otherwise, why would the law of tefahbe listed separately from the laws that are included in the law of partitions, which was stated as having been given by God to Moshe at Sinai?]²⁰, the gemarain Sukkah6b states, “Ve-asa hilchesa,” which is translated by Rashi as “The law from Sinai comes….” According to the Rambam, this term translates as “the tradition comes.” The Rambam understands the word hilchesaas being only a “tradition,” which is consistent with his statement in the Introduction to his commentary on the Mishnah. There the Rambam provides a complete list of the laws that are from Moshe at Sinai, including the laws of extension, junction, and curved wall, but he omits the law of tefah.

footnotes: ¹⁸ These three laws consider the walls as extending beyond their physical parameters. ¹⁹ There is a disagreement between R. Shimon and the rabbis as to whether a sukkah is required to have three or four walls. If one of the walls of a sukkah is only a single handbreadth wide, the wall is viewed as if it extends beyond its physical parameters and reaches the neighboring walls. ²⁰ Pertaining to the law of tefah ²⁰ Pertaining to the law of tefah

In fact [by reviewing the references to gemiri] in many places [throughout the Talmud], one is compelled to accept that [gemiri] does not refer to a law received from Moshe at Mount Sinai. See Nazir4b²¹ [which proves that the book of Shoftimrelates], according to which Shimshon intentionally became impure by having contact with the dead by gemara gemiri lah.²² [After attempting to find sources from the book of Shoftim,²³ the Talmud concludes (Nazir4b) that these sources are inconclusive and the only way we know that Shimshon did defile himself with the dead is by tradition. [A tradition received from Moshe at Sinai could not possibly be used to provide an interpretation of a verse in a book of the Prophets which was written so much later than the time of Moshe.]²⁴4b, s.v. “ela gemara gemiri lah.” In addition, [the Gemara in] Berachos28a states, “Gemiri, that we may promote [a person or thing] to a higher grade of sanctity, but we must not downgrade.” Yet we see in Menahos99a that this same principle [not to downgrade] is derived from a Torah verse [and because a scriptural source is not cited when it is a law received from Sinai, this principle cannot have come from Moshe at Sinai]. Furthermore, in Hullin9b, the Talmud notes “gemiri” [regarding the law that when there is a doubt if something became defiled in a public area, it is deemed to be pure]. Yet this ruling is derived from the laws of sotah²⁵ [and if it is a law received from Moshe at Mount Sinai, there would be no need to derive it from the laws of sotah]. See also Kiddushin37a, noting [that according to the first opinion stated in the Mishnah], the laws of orlah²⁶ and kela’im²⁷19:19). are not applicable outside the Land of Israel [and that this law] is *hilchesa gemiri lah.*Yet Shmuel [in Kiddushin38a] is of the opinion that these [same laws] are hilchesa medinah[a law that people of the provinces had voluntarily accepted upon themselves, which obviously occurred after the time of Moshe].[It is clear that after analyzing the use of the term hilchesa gemiri lahand variations thereof in various parts of the Talmud, the phrase cannot possibly mean a law received from Moshe at Sinai.] This [observation that hilchesa gemiri lahrefers to a tradition from previous generations rather than a law that was received from Moshe at Sinai] has also been noted in the responsa of the Havos Yair(ch. 192) and in the Tosafos Yom Tovon Sotah2:2.

footnotes: ²¹ The Netziv cites 5b. ²² An act of killing in battle, not in self-defense, proves that he did not have the same status as a true Nazirite. One bound by the Nazirite vow sets himself apart for Divine service. He must abstain from all products of the vine, including grapes, and from intoxicating drinks, avoid proximity with dead bodies, and let his hair grow. ²³ The verses are “With the jawbone of a donkey I have killed a thousand men” (Judges 15:16) and “He went down to Ashkelon and killed thirty men of them, and he took their clothing” (ibid. 14:19). The Talmud mentions that perhaps Shimshon avoided having contact with the dead by throwing the jawbone of the donkey, or that he took their clothing before killing them. ²⁴ The wording of the Netziv implies that he is following the interpretation of Tosafos on Nazir ²⁵ A woman suspected of committing adultery who was required to drink the bitter waters (see Devarim 5:12–31). ²⁶ The fruit of a tree during the first three years after the tree was planted, which may not be eaten. ²⁷ The forbidden mixing of heterogeneous plants (see Vayikra

[I do not mean to suggest,] Heaven forbid, that these [Talmudic references] were unknown to Rashi and Tosafos. But they did not find them problematic [because, according to Rashi and Tosafos, at times the Talmud will refer to something as having come from God at Sinai, in the sense that the law in question is as definite as a law that God gave at Sinai even though it was not actually given there]. This idea is also found in the Rosh in the first chapter of Hilchos Mikva’osin the name of Rabbenu Tam. The Talmud [Shabbos11a] states, “Be-emes amruthat on Friday night, a teacher may look at a book near a lamp if the students are reading it, but must not read it himself.” [Since this law is a rabbinic decree],²⁸ it obviously cannot be a law that Moshe received from God at Sinai. Yet the Jerusalem Talmud states, “*Be-emes amru”*refers to a law that Moshe received from God at Sinai!²⁹, chapters 1 and 9. [The Rosh, quoting Rabbenu Tam, answers that] the proper understanding [of this Talmudic statement in Shabbosis] that this law is as definitive as if Moshe had received it from God at Sinai.

footnotes: ²⁸ There is a decree against reading by the light of an oil lamp lest one tip the lamp, thereby becoming liable for feeding a flame on Shabbos. The Gemara states that this decree is waived for a teacher supervising children who are reading by the light of a lamp. ²⁹ See Jerusalem Talmud, Shabbos

See also the Rash³⁰and Taharos, for which no Babylonian Talmud exists, incorporate R. Shimshon’s comprehensive Mishnah commentary. on the fourth chapter of tractate Yadayim[which states that the law that ma’aser anibe taken during shemittah] in the regions of Ammon and Moav is a halachah le-Moshe mi-Sinai. [The Rash explains that although this is rabbinic, it is as definite as if it had been received at Sinai.] [It can be demonstrated that] Rashi [is of the same opinion as the Rosh and Rash]. See Sukkah38b [where Rashi explains the term] “be-emes amru” to mean that “there is no disagreement” [in other words, it is as definite as if it had been received from Moshe at Sinai]. See also Rashi, Bava Metzia60 (s.v. “be-emes amru”), [which says] that this term means “without hesitation.”

footnotes: ³⁰ Rash is the acronym for R. Shimshon of Sens (1150–1230), a teacher, Tosafist, and halachist whose teachers included the Ri and Rabbenu Tam. All Talmudic editions of the orders Zera’im

But according to the Rambam, this [term, be-emes amru, signifies that it is a law actuallyreceived from Moshe at Sinai and] is to be taken literally. See what I have written on the She’iltos(137:2) for a more detailed explanation.³¹and ma’aser anipertaining to the regions of Ammon and Moav. Thus, the term be-emes amruor halacha le-Moshe mi-Sinai would apply to these rabbinic laws. See Ha’amek Davar, Devarim 11:1, where the Netziv hypothesizes that Moshe actually enacted certain rabbinic laws for his generation only (for example, the law against reading by a lamp on Shabbos). When later courts reissued the decree, they followed the guidelines that were established in Moshe’s earlier enactment. Therefore, one is compelled to [conclude that the Rambam’s understanding of the Talmudic usage] of the terms hilchesa gemiri lahand gemiriis not that they are laws received from Moshe at Sinai [but instead are laws that] have been received [from previous generations] which have been decided definitively, leaving no doubt. It seems that conclusive proof can be found for Rashi’s understanding of [gemirias being a law received by Moshe from God at Sinai] from Menachos92b. [In *Menachos,*we learn that R. Yehuda maintains that the he-goats brought as atonement offerings for the sin of idolatry (when the entire congregation committed idolatry due to an erroneous ruling of the Sanhedrin) do not require semichah, the laying of hands on the sacrifice before slaughter. R. Yehuda proceeds to derive this law from a verse.] The Talmud asks why R. Yehuda requires a verse to exclude from semichah the he-goat brought as an atonement offering for idolatry, since Ravina has said that “gemiri” only two communal sacrifices require semichah[namely, the cow offered by the congregation for other sins besides idolatry and the goat sent to Azazel on Yom Kippur]. [The Gemara answers that the verse is cited only as a textual allusion but not a true derivation. Rashi explains that R. Yehuda was citing a scriptural allusion to his ruling, but he does not need to derive it from this verse, since it is gemiri.] Thus, the Gemara appears to be saying that gemirirefers to something revealed to Moshe, for which no verse is needed.

footnotes: ³¹ The Netziv explains there that according to the Rambam, Moshe issued guidelines for future rabbinic decrees prohibiting one from reading by lamplight on Shabbos and the laws of shemittah

Translator’s note: In the following two paragraphs, the Netziv addresses a potential difficulty regarding the Rambam’s definition of gemiri from Tractate Menachos. It seems that conclusive proof can be found for Rashi’s understanding of [gemirias being a law received by Moshe from God at Sinai] from Menachos92b. [In *Menachos,*we learn that R. Yehuda maintains that the he-goats brought as atonement offerings for the sin of idolatry (when the entire congregation committed idolatry due to an erroneous ruling of the Sanhedrin) do not require semichah, the laying of hands on the sacrifice before slaughter. R. Yehuda proceeds to derive this law from a verse.] The Talmud asks why R. Yehuda requires a verse to exclude from semichah the he-goat brought as an atonement offering for idolatry, since Ravina has said that “gemiri” only two communal sacrifices require semichah[namely, the cow offered by the congregation for other sins besides idolatry and the goat sent to Azazel on Yom Kippur]. [The Gemara answers that the verse is cited only as a textual allusion but not a true derivation. Rashi explains that R. Yehuda was citing a scriptural allusion to his ruling, but he does not need to derive it from this verse, since it is gemiri.] Thus, the Gemara appears to be saying that gemirirefers to something revealed to Moshe, for which no verse is needed. However, the Rambam, in his commentary on the Mishnah, explains Menachos92b to mean that here, too, we have a tradition [gemiri] from previous generations [and not from Sinai] that communal sacrifices require no semichah. The Talmud’s question is based on the assumption that normally no scriptural source is cited for a tradition received from previous generations. The Talmud then answers that [though it is a tradition from previous generations] these verses are cited as a girsa be-alma, a textual allusion.

In any case, it is absolutely clear that according to the Rambam [whenever the terms gemiri, hilchesa gemiri lah, or hilchesa] are used, they are either referring to a purely rabbinic law [received from previous generations] or to a rabbinic tradition defining the scope and meaning of a Torah law.

[Returning to the previous discussion of] gollel ve-dofek[the reason for the Rambam’s opinion that this law is of rabbinic origin] is that he holds in accordance with R. Yishmael [who says that the source of this law is hilchesa gemiri lah], and not like R. Akiva [as suggested by the Kesef Mishneh]. For, as the Ra’avad writes, R. Akiva certainly holds that the law of gollel ve-dofekis a Torah law.³² Hilchos Tumas ha-Meis 2:15 and 5:11. Although the Ra’avad disagrees with the Rambam’s decision that it is Rabbinic, the Netziv argues that both the Rambam and the Ra’avad agree with R. Akiva’s opinion. R. Akiva’s opinion is not to be explained, as suggested by the Kesef Mishnah, as saying that gollel ve-dofekis of rabbinic origin. [The Rambam] has decided in accordance with R. Yishmael, who says that [gollel ve-dofek] is hilchesa gemiri lah[which means] that it has been received [from previous generations] that it transmits impurity rabbinically. The reason the Rambam decided to rule in accordance with R. Yishmael is explained, with Heaven’s help, in my commentary on the Sifreion parashas Hukas.³³ However, this is not the place [to delve into this matter]. Translator’s summary: In this chapter, the Netziv demonstrated that according to all Talmudists there are definitive laws that were determined by the rabbis that have the same authority as laws received by Moshe from God at Mount Sinai and that serve as a foundation for the additional Torah and rabbinic laws of later generations. The dispute, however, is which Talmudic terminology refers to these laws. According to the Rambam, whenever the Talmud cites hilchesa gemiri lah (or any of its variations), it is referring to these definitive rabbinically-derived laws. According to Rashi and Tosafos, in the majority of instances when hilchesa gemiri lah is cited by the Talmud, it refers to a law received by Moshe from God at Sinai. However, in a minority of cases they believe that the terms hilchesa gemiri lah and be-emes amru refer to rabbinic laws that are as definite as if those laws had been received at Sinai. The Netziv appears to prefer the Rambam’s approach, because the latter’s definition of those terms is more direct and accords better with the simple meaning of the texts of the Talmud.

footnotes: ³² See the Ra’avad’s commentary on Mishneh Torah, ³³ The Netziv is implicitly questioning why the Rambam would agree with R. Yishmael rather than R. Akiva, as we have a rule that when R. Akiva disagrees with an individual, the halacha goes according to R. Akiva.