Eruvin 20-21    The פסי ביראות  , public domain, and more on rabbinical laws

One of the main themes of this chapter is the special dispensation that Chazal gave to allow travelers to Yerushalayim for the chagim to draw water from wells for their animals.

The sides of these water-pits or wells were usually too steep for livestock to walk down to and drink, in contrast to people who were nimble enough to do so.

Seeing as the pit or well was surrounded by walls and more than 10 אמות  wide, it was defined as a private domain, and carrying the water from it to the public domain outside was thus forbidden.

To include an area around the well large enough for the animal to stand inside and drink in this private domain, Chazal made do with 4 double posts on each corner.

Each post was 6 handbreadths wide in each of its 2 perpendicular directions, forming a half square or widened L shape.

Although usually a private domain needs to be enclosed by proper partitions, with more closed space than open space, or at least a צורת הפתח, in the case of the special public mitzva of aliya laregel (going up to Yerushalayim for the festivals,) Chazal were lenient.

It seems clear from Daf 20a that this leniency is based on the fact that this method is already an acceptable form of enclosure  on a biblical level, otherwise Chazal would not be able to create such a method on their own to change the status of a רשות הרבים דאורייתא. This goes so far as to make someone who throws someone from a רשות הרבים into this enclosure liable to the biblical penalties prescribed for desecrating the Shabbos.

The implication of this is that the area around the wells is considered a fully-fledged public domain.

We have mentioned a few times already the view of Rashi (Eruvin 6a) that to be considered a public domain, a city needs to have at least 600000 people in it.

It is hard to imagine that the rural villages or city-outskirts where these wells were situated met this definition, which raises considerable difficulty with Rashi’s view.

It is possible that we are referring to the wells outside large population centers which were extremely crowded and busy, but even then, it seems a little far-fetched to imagine 600000 people frequenting them- Even during the busy period of aliya laregel, the population was unlikely to be concentrated in one such location at any time- further analysis is thus needed.

In the earlier dapim of the Masechta, we spent time  examining  the differences between biblical and rabbinical laws, and where they are found in the hierarchy.

We saw that on the one hand, we are usually stricter with biblical mitzvos, something we see all over through various halachik principles, but on the other hand, sometimes Chazal were more stringent with rabbinical laws in order to strengthen their authority.

On daf 21b, we see the incredible drasha of Rava, based on Koheles, that one should be even more careful with דברי סופרים  ( “the words of the scribes”- a term usually used for laws made after the time of Moshe, but itself requiring its own discussion) than with the words of the Torah.

This is because there is a range of positive and negative commandments in Torah, with a range of punishments, but when it comes to דברי סופרים , they are all treated equally severely to the point that העובר על דברי סופרים חייב מיתה  – one who goes against the words of the sofrim is liable to death.

Given that the maximum punishment carried out in court for one who transgresses rabbinical laws was generally מכת מרדות  (lashes for rebellion,) lower on the hierarchy of punishments than the 39 lashes given for biblical prohibitions under the correct strict conditions, this statement seems rather exaggerated, to put it mildly.

We see a similar phrase elsewhere, regarding  one who intentionally puts off saying the evening shema till after midnight, and the attack on Rabbi Tarfon by robbers while sitting to say shema was attributed to his failure to follow the authoritative ruling of Beis Hillel who hold that this is not necessary. )See also the Mishna  Sanhedrin 88b regarding Zakein Mamrei, and the Mishna in A.Z. 29b)

Furthermore, on our daf, we are told the incredible story of Rabbi Akiva who used this principle to justify his risking dehydration in captivity to use the little water he had for the rabbinical mitzva of נטילת ידים!

This extreme example might be the key to how to understand this entire concept- after all, we all know that one is only liable to given up one’s life for 3 of the worst biblical transgressions. We also know that one is often permitted to transgress rabbinical prohibitions even for curative purposes where danger to life is not involved.

This makes it virtually undisputable that this is not a normative halachik concept, but rather an idea, which might occasionally be applied halachically, but whose main purpose is to teach us the pivotal role of rabbinic law in Torah life. Specifically because of the many leniencies Chazal themselves applied to their decrees, it is necessary for them to remind us both in general and in certain specific cases how rabbinical law, routed in Torah law as it is (we will hopefully have future opportunity to discuss in what way this is the case ,) essentially stems  from the same divine authority.

Why Chazal choose to highlight this in certain cases specifically requires careful study, but we will leave that for another time.

Coming back to the issue we raised with Rashi’s view that a true public domain on a biblical level must have 600,000 people at a minimum, perhaps we can relook at the פסי ביראות  and why they need to be already validated as a partition on a biblical level.

Our assumption was that this must be because otherwise, chazal would not have the ability to treat them leniently in the case of the wells.

Perhaps, however, this assumption is not fully necessary?

There are times when Chazal do treat rabbinical laws as strictly or even more strictly than biblical ones. As we have seen above, and even times when the usual rule of אין גוזרין גזירה לגזירה   does not apply ( see גזירה שמט יעלה הים שירטון  as a possible example as well as recently on daf 20a “גזירה שמא יאמרו עירוב מועיל לבין הפסין” )

Perhaps, when it comes to something as novel as creating a new type of partition, Chazal were unwilling to do this even in an area which is only rabbinically treated like a public domain, out of concern that this would become a generally accepted type of partition even in cases they did not intend it to be relied on, maybe even in a real public domain?

This opens the possibility that the typical area around a well might indeed not be a true רשות הרבים  according to Rashi!

The problem is that Rashi himself seems to say explicitly that we are dealing with a true רשות הרבים  and true רשות היחיד-there are also numerous sugyos that imply that we are dealing with a true רשות הרבים  , including on our daf itself- I think that we might be able to work It out, but that’s is for today!

These posts are intended to raise issues and stimulate further research and discussion on contemporary topics related to the daf. They are not intended as psak halacha.

Shabbos 104 the limits of Prophetic authority

On our daf, we are told an incredible idea about the letters in the aleph bet (alphabet)
The 5 letters that change form at the end of a word (מנפצך) were not always like that!
The open form of the letters used at the beginning and in the middle of words were actually a newer innovation of the נביאים prophets! (Rashi points out that in a parallel sugya (Megillah 2b), the claim is that the closed form at the end of the word was the later addition- see there for how he resolves this.)
It is the closed form of the letters that we only use at the end which were actually the original, and the prophets for some reason introduced the open form everywhere except at the end of the word!
The Gemara takes major issue with this statement, calling on the passuk ” אלה המצוות” (“THESE are the laws” – Devarim 36/13 )which teaches us that only the commandments given to Moshe at Sinai were valid and from then on, no prophet could innovate anything else- אין הנביא רשאי לחדש דבר .
The Gemara replies that both forms actually existed already, the prophets simply decided which form to use at the end of the word and which form to use in the rest of the world.
That too is rejected, seeing as even such a decision would be considered an innovation, which prophets may not make.
The Gemara finally concludes that both forms of the letter as well as where they were to be used were indeed given over to Moshe, but they were forgotten, and the Nevi’im (prophets) reestablished them.
In a different sugya, even the reading of the Megila , a Mitzva instituted by the prophets Mordechai and Esther, was subject to scrutiny by Chazal (Megila 14a) , and they pointed out that none of the Nevi’im added to anything in the Torah except in this case, due to a קל וחומר (fortiori logical argument) that they found.
From our daf, however, we see that this rule doesn’t only apply to introducing new Mitzvos, but also applies to changing the form of the Hebrew letters, or even deciding when each form should be used!
As similar concept is found in the beginning of Bava Kama (2b) , where the Gemara tries to derive that נגיחה (goring) must be done with the horns of an ox to be considered נגיחה , from a Passuk in Navi (Melachim I 22/11.)
The wicked king of Israel, Achav, has convinced the righteous king of Yehuda, Yehoshafat, to go to war with Aram to claim back Ramot Gilad, which they had occupied.
All the false and/or idolatrous prophets tell Achav exactly what he wants to hear, namely that he will succeed, but Yehoshafat insists that he look for a surviving true prophet of Hashem from whom to seek council.
Meanwhile, one of these “yes men”, Tzidkiya ben Kenaanah, takes two large metal horns and told Achav and the people that they would use these horns to “gore” the enemy into submission
The true navi, Michayahu, in contrast, predicts that the war will be a disaster and advice them to stay home.
For this, he is imprisoned by Achav’s men, and the two kings lead their troops into battle together.
(We see similar treatment of our great prophets who refuse to give people the false sense of comfort that they want and speak truth to power, in many places in Tanach, one of the most famous being the horrendous incarceration of Yirmiyah but the last king of Yehuda, Tzidkiya, for similarly breaking ranks with all the false prophets and advising surrender to the approaching Babylonians.)
Back to the horns of Tzidkiya, Chazal derive from here that the word יגח ( yigach), refers to injuring with the horns.
However, another source from the Chumash is also given for this, and the Gemara explains that this is because one might counter that דברי תורה מדברי קבלה לא ילפינן – one may not derive words of the Torah from the words of Kabbalah (the term used by Chazal for prophecy, but that’s another discussion!)
In the end, the Gemara still accepts this proof, seeing as we are not deriving any laws per se, but simple learning the meaning of a word (גלוי מלתא) which is acceptable.
Here, we were not attempting to derive new mitzvas from the Neviim, but simply some details of the laws mentioned in the Torah through a גזירה שוה ( Masoretic comparison based on similar language) – namely that the damages that the Torah is referring to need to be by the horns of the ox ,in order for the relevant laws to apply.
Yet even this is not considered valid, and the only thing that we can actually apply from the words of the Nevi’im to Torah matters is shedding light on the meaning of words used in the Torah- this is not through a גזירה שוה but simply a גלוי מילתא.
However, it does not take much to see that this cannot be so straight forward as it looks.
So many new laws of Shabbos, including the mitzvas of honoring and enjoying shabbos (כבוד ועונג שבת ) as well as the prohibition of עובדין דחול ( weekday activities that are not melacha but inappropriate for shabbos) are derived from the famous speech of Yeshayahu, which we read as the haftarah from Yom Kippur (Yeshayahu 58/13.)
In addition, Chazal tell us )Shabbos 24b) that Shlomo haMelech instituted נטילת ידים (washing hand before eating bread)and Eruvin, mentions many decrees made by various biblical figures, and of course, made so made so many decrees of their own!
Even the Mitzva of Chanukah, instituted by Chazal long after the period of prophecy, is accepted, due to the biblical injunction to follow the Torah leadership and prohibition against going against it (Shabbos 23a).
Why could the same not apply to a relatively simple matter of the shape of the letters, or learning how נגיחה is done?
Perhaps the key lies in the famous words of the Rambam (Mamrim 2/9), where he asks how it is possible for Chazal to make decrees against things the Torah does not forbid, when there is a prohibition to add or subtract from the Torah.
He notes that the prohibition of adding to the Torah applies to making new laws and making out as if they are biblical laws.
However, so long as they are clear that they are rabbinical laws, there is no issue, and on the contrary, it is part of their mandate (probably from the passuk לא תסור and ושמרתם את משמרתי.)
The same argument might be applicable not only to the decrees the Rambam mentions, but also to entirely new rabbinical mitzvas, though one would want to explain why the Rambam fails to mention this.
The case we see on our daf is not a new rabbinical mitzva or decree, but an actual change in the biblical laws as to how to write a sefer-Torah and other holy scrolls.
Similarly, the case in Bava Kama is not a new rabbinical form of liability for damages, but a derivation by גזירה שוה of the details of biblical laws, from verses in the prophets.
In truth though, even without having thoroughly examined each sugya where the idea of אין נביא רשאי לחדש דבר is mentione, I see a major issue with using this approach- the case of Megillah has no pretensions of being a biblical Mitzva, but is a מצוה מדברי סופרים ( a commandment initiated by the prophets or sages.)
If so, why was a קל וחומר argument needed in order for Mordechai and Esther to initiate it?
Surely it should have been permitted without such an argument for the same reason as Chanukah was!