We learn in this week’s parsha (Achrei Mos – Vayikra 18:30)
“You shall safeguard my charge…”. Make a safeguard for my charges. This,
according to most opinions, is the source of the rabbinical authority to make
“fences” around the Torah for protective measures. If it wouldn’t be for
this verse, Chazal would not be allowed to do that. Their protective measures
would violate the prohibition of adding to the law of the Torah.
Even after the Torah has authorized them to legislate their
own prohibitions, the rabbis make a very clear distinction between Torah law and
rabbinical edicts: Without the Torah’s authorizations, the rabbis would not be
able to prohibit, for example, eating milk and chicken together. However, the
Torah allowed it in order to protect Torah law from being violated.
We might ask: If the Torah felt that the prohibition of
eating milk with meat needed protection, why didn’t the Torah itself prohibit
eating milk with fowl? And, if the Torah didn’t think it was necessary, why
did the rabbis make the law?
The answer is that the Torah established what is forbidden
and what is allowed and left it up to the Rabbis to accommodate the Jewish
People to the laws it established. There is nothing intrinsically wrong with the
combination of milk and chicken. The problem is that if people accustom
themselves to eating chicken and milk they’ll end up eating meat and milk.
According to the Rambam, we are required by the Torah to
observe the commandments of the rabbis: “Do not depart from anything they will
teach you.” So the rabbinical fences have the force of a double Torah mitzvah:
a positive commandment to obey the rabbis and a negative commandment which
prohibits violating their commandments. The Ramban disagrees. He holds that
although the Torah authorizes the rabbis to legislate fences around the Torah,
rabbinical commandments do not have the stature of Torah law. The violation of
their commandments does not entail the violation of positive and negative Torah
commandments. Rabbinical law, though authorized by the Torah, has rabbinical,
not Torah, authority.
The Ramban points out that if the Rambam were correct and
rabbinical law had the force of positive and negative commandments in the Torah,
certain halachic principles would be hard to understand. Generally speaking,
when we are in doubt regarding a Torah law, we are strict, while when we are in
doubt about a rabbinical law, we are lenient. If, as the Rambam holds, every
rabbinical commandment has the force of Torah law, we should be strict in
doubtful cases of rabbinical law as well. Moreover, he argues, according to the
Rambam, rabbinical commandments have greater authority than many Torah
commandments, for every rabbinical commandment actually represents two Torah
commandments: A positive commandment to obey and a negative commandment that
These difficulties in the Rambam’s position can be answered
by making a fundamental distinction between Torah and rabbinical commandments.
The Torah prohibition of milk and meat means not only that a person is not
allowed to eat it. It means that there’s something wrong with the thing
itself. A rabbinical prohibition does not go that far. Even though the rabbis
forbid us to eat milk and chicken, there is nothing intrinsically wrong with the
combination. Their prohibition establishes a rule of conduct, not the intrinsic
qualities of the objects involved. So, from the perspective of Torah law, to
violate the rabbinical prohibition is not to violate a prohibition of eating
milk and chicken. In the law of the Torah, the combination of milk and chicken
is allowed. Rather, the violation of rabbinical law violates the Torah law that
requires us to obey the rabbis. In a doubtful case of Torah law, we are more
strict because there may be something seriously wrong with the objects involved.
But when we are not sure whether the rabbis intended to extend their probation
to a certain object, we can be lenient. For we are certain that there is nothing
intrinsically wrong with the object and the rabbis themselves told us to keep
their prohibition only when it is certain that it applies. Generally speaking,
when the application of a rabbinical commandment is doubtful, it is as though
they didn’t tell us to keep it.
The rabbis were concerned with people. If people were
perfect, there would be no need for fences around the Torah law. But people are
not perfect, and the Torah left it to the rabbis to legislate rules of conduct
that would accommodate people to the laws of the Torah. The rabbis established
what areas the people in their generation are most imperfect in and where their
weaknesses would bring them to violate the Torah. That’s where they made their
own prohibitions. In one generation it could be a prohibition was not needed, in
another generation it was. But we have a rule that once a prohibition is made,
we don’t assume that the next generation got better than the generations that
preceded it. If anything, we assume that it got worse. So a prohibition that
existed in one generation certainly obligates following generations, unless,
according to some opinions, it is overturned by a rabbinical court that has
greater authority than the court which legislated it.