Uprooted Halakhot (Column 618)

With God’s help

Disclaimer: This post was translated from Hebrew using AI (ChatGPT 5 Thinking), so there may be inaccuracies or nuances lost. If something seems unclear, please refer to the Hebrew original or contact us for clarification.

We are used to the fact that at times the Sages take verses beyond their plain sense. They derive various midrashic teachings from them and interpret them in ways that do not look like the simple meaning of Scripture. In such cases, the peshat remains in place and, alongside it, a derash interpretation is added. But it turns out there are verses that seem to instruct a concrete halakhic norm for which we have neither an alternative interpretation nor any textual difficulty—yet they are not ruled as binding halakhah, and at times the halakhah even follows the opposite. In an article in Middah Tovah (5767), on Parashat Bamidbar, I called these “uprooted verses,” or “uprooted halakhot.” In this column I wish to touch upon this odd phenomenon. I will state at the outset that I have no full explanation for it; the column is mainly devoted to raising the question.

The prohibition of lifnei iver

In Parashat Kedoshim, the Torah writes a prohibition against setting a stumbling block before the blind (Leviticus 19:14):

“You shall not curse the deaf, and before the blind you shall not place a stumbling block; and you shall fear your God—I am the LORD.”

The Sages expanded this prohibition to include one who gives another bad/unsound advice and one who causes another to sin. So writes Sefer HaChinukh, mitzvah 232:

Not to cause Israel to stumble by giving them harmful counsel; rather, when they ask advice we should guide them toward what we believe is straight and good, as it is said (Leviticus 19:14): “Before the blind you shall not place a stumbling block.” And the language of the Sifra: “Before one who is blind regarding a matter—if he seeks counsel from you, do not give him advice that is not fitting for him.” And our Sages of blessed memory said: “A person should not say to his fellow: ‘Sell your field and buy yourself a donkey,’ while he [the adviser] is circling to take it from him.”

This negative commandment also includes one who assists a transgressor, for he brings him to be enticed thereby to transgress yet again in other instances. From this angle our Sages said (Bava Metzia 75b) that in a loan with interest both lender and borrower violate lifnei iver…

It applies in every place and every time, to males and females. One who violates it—by leading his fellow, knowingly, to follow advice that is not fitting for him, or by assisting him in a matter of sin, such as handing a cup of wine to a nazirite, and the like—has transgressed this prohibition. It is as one who violates a royal command; however, lashes are not administered, as there is no [direct] act.

Sefer HaChinukh writes that this is a prohibition regarding causing Israelites to stumble. But this seems to stand in tension with the Talmud, which forbids causing bnei Noaḥ (Noahides) to sin as well. Minḥat Ḥinukh there senses this and writes:

“‘Not to cause… rather, we should guide…’—I do not understand the author’s intent in writing ‘Israelites,’ for the prohibition of lifnei iver applies also to a gentile, as he himself later notes and as is explicit in Avodah Zarah. And Maimonides (Laws of Murder 12) writes ‘whoever causes a blind person…’ without limiting to Israel. To distinguish and say that only regarding a matter of prohibition is it forbidden to cause a gentile to stumble, but not regarding advice—whence do we know such a thing? Since the verse applies also to a gentile, advice in worldly matters is also forbidden with respect to him. And even though it is explained in Bava Batra—and ruled by the Rambam, Laws of Murder—that it is forbidden to give a gentile good advice [when it harms Israel], nevertheless to give him bad advice is also forbidden by lifnei iver. I do not know whence the author derived otherwise; further inquiry is required… We see that the Torah forbids placing a stumbling block even for a gentile…”

He suggests that perhaps the prohibition against facilitating a transgression applies even for Noahides, but the prohibition of giving unfair advice applies only toward fellow Jews. As he himself notes, however, this is forced—both derive from the very same verse.

One might have suggested that here there are two aspects: one prohibition between man and his fellow, and another between man and God. Causing another to sin brings about a violation of a command, which wrongs not only the person himself but also the Holy One (Who does not want transgressions in His world). But giving harmful advice or physically tripping someone up are inter-personal wrongs, and thus perhaps were stated only with respect to Israel. This nuance can perhaps be detected in the wording of the Chinukh itself: regarding advice he emphasizes “his fellow,” whereas regarding facilitating sin he later mentions that this applies also vis‑à‑vis a gentile. Perhaps this is the meaning of the Chinukh’s addition at the end: “and it is as one who violates the king’s command.” What sets this sin apart from every other? Surely anyone who transgresses violates the King’s command. According to our approach, his intent may be that one who facilitates a sin is considered as if he himself transgressed that very sin; it is not merely the sin of facilitation.[1] Consequently, that facet—facilitating a sin—applies also vis‑à‑vis a gentile; but only that facet. Giving bad advice or physically tripping someone up are duties between man and fellow, which do not apply vis‑à‑vis a gentile.

Is there a prohibition against physical tripping?

The wording of the Chinukh yields a very puzzling conclusion: it omits the basic prohibition of physical tripping—placing an obstacle before a person. He focuses on the two expansions taught by the Sages (misleading advice and facilitating sin) but ignores the explicit prohibition’s plain sense. Minḥat Ḥinukh (ibid., sec. ד) writes:

From the author’s words—and from the Rambam—it appears that this verse of lifnei iver has been removed entirely from its plain meaning; namely, that if one actually placed a stone before a blind man he does not transgress—so it would seem from the author’s opening words and from his note that there are no lashes… But I do not understand: it is explained in Yevamot that throughout the entire Torah a verse never departs from its plain meaning, except for ‘and it shall be that the firstborn’—which the Ramban explains to mean that the plain sense is also expounded, even if additional teachings are hinted, except for that case which is entirely uprooted from its plain sense. Here, then, though what is derived by derash is true—unlike the Cutheans and Sadducees, may their names be blotted out, who insist on the literal sense—still, the literal sense is also true: it is forbidden to trip a blind person on the road. Whence did we derive that the explicit sense is not included in the prohibition?

I found in the Melamed Leho’il (on Malveh VeLoveh 4) that since lifnei iver is juxtaposed to the deaf (in the verse), and it states “and you shall fear your God,” therefore ‘Cursed is the one who misleads a blind person on the road’ [Deut. 27:18] remains in its literal sense. … But for me there is difficulty: shall we remove the verse entirely from its plain sense? If one trips a blind person by literally placing an obstacle, perhaps he also violates this prohibition—and is included in the curse—so that he would receive lashes and be disqualified as a witness; and perhaps even vis‑à‑vis a gentile, as above; further inquiry is required.

I saw in Torat Kohanim (as brought by the Korban Aharon) that the Ra’em and other greats already addressed why the Sages removed the verse from its plain sense, and he brings what we cited from the Melamed Leho’il, adding further reasons of his own. But for me it is difficult, for the baraita also expounds this, yet it is not necessary to remove it from its plain sense; its simple meaning remains true. Perhaps, following the Korban Aharon himself, the word “titten—give” does not fit except as a term of placing… and indeed Onkelos translates, by molekh ‘give’ as in the holy tongue, whereas here, for ‘lifnei iver lo titten mikshol,’ he translates ‘lo tasim’—do not place, which supports the Korban Aharon that the verse’s meaning is as expounded…

He proposes that perhaps physical tripping would require the verb “tasim—place,” whereas “titten—give” refers only to spiritual stumbling; but this is, of course, forced. According to the approach above, one might have said that physical tripping is a matter between man and fellow, whereas the discussion here concerns only the aspect between man and God. Yet giving bad advice also seems interpersonal. Perhaps physical tripping is subsumed under giving unsound advice.

As the Minḥat Ḥinukh notes, removing a verse from its plain sense is astonishing. Even when we derive additional laws by derash, the text is always also read literally: “A verse never departs from its plain meaning” (the Yevamot passage he cited mentions one exception concerning yibbum: “and it shall be that the firstborn”). Indeed, the Yad Ramah (Bava Batra 26a) writes regarding indirect damage (grama):

The reason is that although his act did not affect the damaged object directly, nonetheless the very act he performed is itself prohibited: it is forbidden to cause something that leads to damage to people—either because of ‘before the blind you shall not place a stumbling block,’ or because of ‘you shall love your fellow as yourself.’

Even if he did not harm directly with his hands, there is certainly a prohibition here—either from lifnei iver or from “love your fellow.” The Yad Ramah sees the source for the prohibition against causing damage in the verse lifnei iver. How can one learn a prohibition to cause harm from this verse? We are forced to say he understands the verse in its simple sense: a prohibition against causing physical harm. The ban on placing an obstacle before a person is a ban on harming him.

A note about facilitating a rabbinic prohibition

Poskim discuss whether one violates lifnei iver when causing a fellow to transgress a rabbinic prohibition. For example, witnesses to a loan with interest transgress lifnei iver; what about witnesses to a loan that involves only avak ribbit (a rabbinic proscription)—do they violate lifnei iver from the Torah? Kometz HaMinḥah (ibid., sec. ג) addresses this and writes:

I was uncertain whether one who sells another something prohibited only rabbinically thereby violates lifnei iver from the Torah—for he causes him to stumble; and even giving bad advice for mundane matters constitutes lifnei iver from the Torah. Yet I then found Tosafot (Avodah Zarah 22a s.v. teipok lei) which indicates explicitly that even regarding a rabbinic prohibition one violates lifnei iver de’oraita. But Tosafot in Ḥagigah 18a (s.v. ḥolo shel mo’ed) ask: the labors of Ḥol HaMo’ed are rabbinic—yet we say in Avodah Zarah that one violates lifnei iver—and they answer that there it is because the verse’s plain sense supports it… It emerges that for a rabbinic prohibition one does not violate lifnei iver from the Torah—this is difficult. The matter is not clear: is causing one to violate a rabbinic prohibition worse than giving him bad advice in worldly matters—which is a Torah transgression of lifnei iver? … According to Tosafot in Ḥagigah 13a, even a rabbinic matter that has a strong asmachta [scriptural allusion] incurs lifnei iver from the Torah—what distinction is there? If the Torah commanded only for de’oraita prohibitions, then even with an asmachta it should not apply; and if not only de’oraita, then it should apply even to purely rabbinic prohibitions… The Rema (Yoreh De’ah 160:1), citing many Rishonim, brings that in avak ribbit (rabbinic) there is no prohibition on the borrower except because of lifnei iver—it would seem then that he violates lifnei iver [from the Torah]. The Minḥat Melekh (Malveh VeLoveh 4, s.v. katav haRashba) implies that for a rabbinic prohibition, lifnei iver is itself rabbinic. To me this is difficult—for is that worse than giving bad advice in mundane matters, which is from the Torah? …

He wonders: how could one not violate lifnei iver de’oraita? Causing another actual harm is certainly lifnei iver, and a rabbinic violation is harm in every sense (no less than financial or physical harm).

However, if facilitating a sin is itself a matter between man and God—since he caused a sin to come into the world (hence it applies also toward a gentile, and perhaps the facilitator is considered as having transgressed vis‑à‑vis the Almighty)—then if the violation is only rabbinic it is difficult to see why this would be a de’oraita lifnei iver. He caused a rabbinic prohibition to come into the world; he is thus a rabbinic transgressor. One could perhaps view him as giving bad advice or as physically causing harm; yet perhaps physical tripping is not prohibited at all, and facilitating a rabbinic violation is not “unsound advice,” for when the violator is merely a rabbinic shogeg (unwitting) there is, strictly speaking, no sin at all. Nothing happened to him (see Netivot HaMishpat §234, and my Columns 582–583).

What is an “uprooted halakhah”?

In Column 370 I distinguished two types of relationship between derash and the plain sense: (1) derashot that add further laws beyond the law in the peshat. For example, derashot that include something via the word “et.” In Pesaḥim 22b we find: “‘Et the LORD your God you shall fear’—this includes Torah scholars.” No one imagines that the derash here displaces the peshat. The peshat commands awe of the Almighty, and the derash adds an additional law: awe of Torah scholars. That is the case for most of Ḥazal’s derashot. (2) There are derashot in which the derash changes or replaces the peshat. For example, the derash “‘An eye for an eye’—monetary compensation” appears to remove the verse from its literal sense: instead of gouging out the damager’s eye we levy monetary payment. Here the plain reading is replaced by an alternative via derash (a gezerah shavah on the word “taḥat—in place of”). (Even there, I already wrote that perhaps this too is not replacement but addition; see that column.) But the simple understanding is that it is a replacement. Likewise, in the Yevamot passage mentioned by the Minḥat Ḥinukh (which seems to say this is unique), the derash uproots the peshat.

What about the two expansions the Sages make of lifnei iver (bad advice and facilitating sin)? To which of these two types would you assign them? I am not at all sure they are derashot. Simply put, they are extensions of the plain sense; in any case, they are not alternative interpretations that come to replace the plain sense. True, the Minḥat Ḥinukh proposed that perhaps this is learned from “titten” (“give”) rather than “tasim” (“place”), in which case one might say it is an alternative interpretation (though still not a derash but a claim about the peshat). But, as noted, this is forced. It is hard to accept that anyone would seriously claim that the verse’s language is not speaking of physical tripping. One can say the verse speaks also of spiritual stumbling or of bad advice, but its simple sense is physical tripping.

If there is no removal from the plain sense here, why, then, does the Chinukh (and perhaps also the Rambam and others cited by the Minḥat Ḥinukh) not see in it a binding halakhah? On what basis is the peshat canceled, given “a verse never departs from its plain meaning”? Perhaps because Ḥazal in the Talmud did not explicitly legislate the halakhah of physical tripping (though perhaps they did not need to, due to its obviousness, and mentioned only the novel expansions). Strange as it sounds, the conclusion seems to be that, at least according to the Chinukh, a verse’s existence is not always sufficient for it to enter halakhah; it needs Ḥazal’s imprimatur. Note: I am not speaking of a derash that removes the verse from its peshat. There is no apparent reason here to ignore the peshat, and yet—without Ḥazal’s endorsement—it may be an “uprooted halakhah”: an explicit verse not practiced as halakhah despite no clear interpretive reason.

Techumin as an uprooted halakhah

The Talmud (Ketubot 28b and parallels), and later the Rishonim and Poskim, record a dispute whether the prohibition of techumin (Sabbath boundaries) is rabbinic or biblical. Arukh HaShulḥan (OḤ 397) summarizes:

Every person may go on Shabbat up to two thousand cubits beyond the city—that is the Sabbath boundary. The Sages supported this by a verse: “Let no man go out from his place on the seventh day”—these are two thousand cubits, as it says regarding the borders: “You shall measure from outside the city on the east side two thousand cubits” … Thus, two thousand cubits is called the city’s surrounding area, and this is “let no man go out from his place”—from the city’s place… According to the Rambam there is also a biblical boundary of twelve mil … this follows the Yerushalmi … However, most of our sages agreed that in our Talmud it is explicit that there is no biblical basis to techumin and it does not follow the Yerushalmi.

According to most authorities—and such is the common ruling—going beyond the boundary on Shabbat is rabbinic. Yet the Torah states explicitly: “Let no man go out from his place on the seventh day,” which appears to have no other interpretation. Still, most poskim regard it as merely an asmachta (a scriptural support). No difficulty in the peshat is presented, and no alternative interpretation is offered. Nevertheless, the poskim ignore this explicit law. This is even more severe than what we saw above: regarding lifnei iver we at least saw other interpretations (advice, facilitating sin), and the question was why we focus only on those and abandon the peshat. But the law of techumin is cited and agreed by all: there is a prohibition of boundaries in halakhah. Nor is there any other law derived from that verse. Yet most authorities hold it is rabbinic. This is a much starker disregard of the verse’s peshat—and indeed of the verse altogether.

I recently saw a quotation from a class by R. RA’M HaCohen (Shabbat, Class 12, p. 196):

In practice, there is a difficult question here: how do we rule that “techumin is rabbinic” when, in the background, stand the plain verses—interpreted by many—as laws of boundaries? When the question arises whether those who went out to save may return, one can treat that as a rabbinic issue—and I have seen R. Zalman Nechemia Goldberg shlita so rule, and so have I ruled for years. Still, a study of the sugya and straightforwardness oblige us to ask: how did an entire section get excised from the Torah?

A good question. On the face of it, this appears to be another “uprooted halakhah.”

The prohibition to touch sacred vessels

In the article cited above I discuss the prohibition of touching sacred vessels. The Torah (Numbers 4:15) states:

“When Aaron and his sons have finished covering the holy and all the holy vessels, when the camp journeys, then the sons of Kehat shall come to carry; but they shall not touch the holy, lest they die. These are the burden of the sons of Kehat in the Tent of Meeting.”

And further (ibid., vv. 17–20):

“The LORD spoke to Moses and to Aaron, saying: Do not cut off the tribe of the families of the Kehatites from among the Levites. Do this for them and they shall live and not die when they approach the most holy: Aaron and his sons shall come and appoint them, each to his service and to his burden. But they shall not go in to see when the holy is swallowed [i.e., when it is being covered], lest they die.”

These verses are rather ambiguous, and in Ḥazal and the commentators various readings can be found. Among those possibilities is one that appears explicit: a prohibition to touch the holy vessels (see v. 15).

Ibn Ezra and Ramban indeed treat this as a prohibition. But according to most opinions we do not find such a prohibition—certainly not in Ḥazal and the halakhic codes. I cited there a somewhat ambiguous phrase in Saadiah Gaon that may refer to such a prohibition (he writes: “The Levites shall not touch”), but even that is uncertain.

In fact, we even find in the poskim an explicit negation of any prohibition of touching. Rambam, in the Sefer HaMitzvot (Negative 72), brings a warning that the Levites must not engage in priestly service (punishable by death at the hands of Heaven), and that priests must not do Levite service. In that context he cites Sifrei Zuta (and similarly Semag, Lo Ta’aseh 296):

“‘To the holy vessels and to the altar they shall not approach’—you might think that if they touched they would be liable; Scripture therefore says ‘but’ (aḥ)—they are liable only for service, not for touching.”

Thus, touching does not incur punishment. This is in direct opposition to the verse’s “lest they die” (perhaps that is only a promise of Heavenly death; but such deaths are also a halakhic punishment). Even so, one might still have understood that while there is no punishment, there remains a prohibition. Here, however, Rambam (Klei HaMikdash 3:9) writes:

“…All the Levites are warned regarding the service of the altar, as it is said, ‘But to the holy vessels and to the altar they shall not come near, lest they die’—they shall not come near for service; but to touch is permitted.”

So here it emerges that touching is entirely permitted. According to Rambam, the verse is uprooted from its plain sense altogether: the verse mentions both warning and punishment regarding touching, while the halakhah rules that there is neither warning nor punishment. True, the Sifrei Zuta derives this from the word “aḥ—but,” yet that word does not appear in our verse that explicitly speaks of touching. There it speaks of approaching the vessels, and “but” teaches that only approach for the purpose of service is liable. But our verse explicitly says not to touch, and the poskim ignore it. Again, this seems to be an uprooted halakhah. Note that here the uprooting is particularly blunt: Rambam not only ignores the prohibition but states explicitly that touching is permitted.

The Sabbath rest of one’s child

Another example of an uprooted halakhah is the Sabbath rest of one’s child. The verse says (Exodus 20:9; cf. Deut. 5:13):

“But the seventh day is a Sabbath to the LORD your God; you shall not do any work—you, your son or your daughter, your male or female servant, your animal, and the stranger within your gates.”

That is, the Torah explicitly commands the rest of one’s children. Indeed, the rest of one’s animal—also mentioned in the verse—is a universally accepted prohibition. Regarding the rest of one’s utensils, as is well known, Beit Hillel and Beit Shammai disagree. What do the halakhic works state about the obligation for one’s children to rest?

Rashi ad loc. cites the Mekhilta:

“‘You, your son and your daughter’—these are minors. Or perhaps it refers to adults? You must say: they are already enjoined themselves; rather, it comes only to warn adults regarding the rest of minors. Hence what we learned (Shabbat 121a): ‘A minor who comes to extinguish—we do not heed him, for his rest is upon you [i.e., incumbent upon you].’”

So it would seem there is a warning to adults to ensure the rest of minors, learned from this verse. A closer look, however, shows that this is not the accepted picture in the halakhah.

In the sugya in Shabbat 121a cited by Rashi, we find a complete disregard for the law of a child’s Sabbath rest. The Mishnah there treats a case where a fire broke out in a house, and a gentile or a child comes to extinguish it. The Mishnah states:

“If a gentile comes to extinguish, we do not say to him ‘extinguish’ or ‘do not extinguish’—for his rest is not upon us. But if a minor comes to extinguish, we do not heed him—for his rest is upon us.”

The Gemara asks on the Mishnah:

“But if a minor comes to extinguish, we do not heed him—for his rest is upon us.” Learn from here that when a minor eats forbidden foods, the court is obligated to separate him? R. Yoḥanan said: [The Mishnah speaks] of a minor acting with his father’s knowledge.

Seemingly, the Mishnah implies that if a minor eats nevelot (violates prohibitions), we must separate him—since a minor who comes to extinguish is not heeded. The Gemara sees this as contradicting the general rule (ruled in Yevamot 114a and parallels) that the court is not obligated to separate a minor from violations. One would expect the Gemara to immediately cite the verse that commands the rest of one’s child, and resolve: specifically for Shabbat there is a special obligation that one is enjoined regarding the minor’s rest; thus, if we see a minor violating Shabbat, all agree we must separate him—even though for other prohibitions there is no such duty. But the Gemara’s resolution does not introduce such a distinction. It answers instead that we are speaking of a minor acting with his father’s knowledge—i.e., the prohibition is because the minor functions as the father’s agent, or as if the father directly feeds him prohibition; that is forbidden for all Torah prohibitions (see Yevamot there, regarding the general ban on directly feeding a minor forbidden items). In other words, even the conclusion does not grant any special status to Shabbat regarding minors. The Gemara entirely ignores the verse about the child’s rest.

Tosafot there (s.v. sh’ma mina)—and likewise the Rashba, Ritva and other Rishonim—add that in our sugya the extinguishing is a rabbinic prohibition (for he does not need the coals); and in the Yevamot sugya it is clear that for a rabbinic prohibition, all agree there is no duty to separate him. That is, they assimilate our case entirely to the general rules of separating minors from sin and see no uniqueness to the fact that this concerns Shabbat violations. Again, I would have expected the Rishonim to dismiss this and say that, regarding Shabbat, there is a special duty of the child’s rest—which would therefore apply even to rabbinic violations (rabbinically). Note as well that in the Yevamot sugya, Shabbat violations are listed together with other prohibitions; it appears Ḥazal saw no special feature in Shabbat vis‑à‑vis our duty regarding minors—even though the matter is explicit in the verse.

The only exception I saw among the Rishonim is the Rashba who, though he explains our sugya like the others, at the beginning of “Mi SheHeḥshikh” (Shabbat 153b) explains it like the Mekhilta Rashi cited:

“Wherever there is in the act itself a biblical prohibition—if we tell a minor to do it—there is likewise a biblical prohibition, as it is written: ‘You shall not eat them’—read: ‘you shall not feed them.’ And we say in Yevamot (114a): A person should not say to a child ‘bring me a seal, bring me a key’—but one may leave him to pluck or throw [i.e., not actively instruct]. And above (121a) it is also taught: a minor who comes to extinguish—we do not heed him; and the Gemara establishes it as a minor acting with his father’s knowledge—meaning he thereby violates ‘you shall not do any work—you and your son.’”

The Rashba writes that alongside the ban on directly feeding a minor prohibitions, there is a special prohibition for Shabbat, learned from “you and your son,” cited above. He explains the Gemara’s answer—minor acting with his father’s knowledge—as an instance of this. From his explanation follows a significant leniency: a minor acting with his father’s knowledge is a reason to be stringent only regarding the child’s rest—i.e., Shabbat—and not for every case of separating a minor from sin.

This view is unique, and it sharply highlights the stark disregard in the Gemara and the other Rishonim. Particularly so because the Rashba and Rashi—who cite that derash on the Ḥumash—explain the sugya itself like the other Rishonim, as dealing with the general law of separating minors from sin. The likely reason is that, as we saw, the sugya itself does not mention the special Shabbat verse at all, implying the Gemara certainly did not consider a special Shabbat prohibition of the child’s rest beyond the general duty elsewhere.

A related formulation appears indirectly in the Yere’im (§101):

“And regarding this it is taught in the Mekhilta: ‘Your son and your daughter’—these are the minors about whose rest you are enjoined. You might think it refers to adults? They are already enjoined themselves. Thus it teaches: ‘your son and your daughter’—the minors. And this is what we learned in Shabbat (121a): ‘A minor who comes to extinguish—we do not heed him, for his rest is upon you.’ And in Yevamot (114a) R. Yoḥanan establishes it as a minor acting with his father’s knowledge. But if not with his father’s knowledge, his father is not enjoined upon his rest—as it says there: ‘A minor who eats nevelot and terefot—the court is not obligated to separate him.’ And ‘your son and your daughter’—which we establish as minors—[applies] to a minor acting with his father’s knowledge, who knows that it is pleasing to his father; since his father desires the act, he acts.”

He does mention the child’s rest, but even there he does not draw a sharp distinction between it and separating minors from other prohibitions. It reads as though whenever a minor acts with his father’s knowledge, one must separate him in all prohibitions, not only Shabbat.

These words of the Rashba and Yere’im seeped, faintly, into halakhic rulings (see Mishnah Berurah 334:65 and Sha’ar HaTziyyun ad loc. n. 54). But the overwhelming majority of poskim omit any mention of a separate law of the child’s rest. Several Aḥaronim remarked on the relation between the ban on feeding a minor prohibitions and the command of the child’s rest.[2] Yet the halakhic literature’s disregard for this explicit command remains striking.

A possible solution: “for the moment, not for generations”

In his Third Principle (shoresh shlishi), Rambam rules that we do not count commandments that do not apply for generations. Within that discussion he addresses our sanctuary-passage and writes:

“Others have also erred in this principle and counted [as a commandment]: ‘So that they not be able to see the holy swallowed’ (end of Parashat Bamidbar). They also counted ‘they shall not serve any more’ (Beha’alotekha) for the Levites. These do not apply for generations but only in the wilderness. Although they said (Sanhedrin 81b) that [there is] a hint regarding one who steals the kesot [holy instruments], ‘they shall not come to see’—there is sufficient proof from their saying ‘a hint,’ and that the verse’s plain sense is not so. Nor is this among those liable to death at the hands of Heaven, as is explained in the Tosefta (Zevahim end ch. 18; Keritot ch. 1) and in Sanhedrin (83a).”

Rambam holds that the prohibition arising from the verse’s simple meaning (not to see the sacred vessels) is not counted because it does not apply for generations (see also his Sefer HaMitzvot, Positive 93).[3] Yet the prohibition to steal the sacred vessels—which does apply for generations—is not counted because it is only a “hint,” not the peshat.[4]

R. Pinḥas Frankel (riph”f) on Sefer HaMitzvot of Rav Saadiah Gaon explains that Ba’al Halakhot Gedolot likewise does not count the prohibition of seeing the sacred vessels because it is not for generations.[5] He counts the ban on stealing the vessels because, in his view, one counts even mitzvot learned from derash. He argues for support from the Bavli (Yoma 54a):

“Rav Ketina said: When Israel would ascend on pilgrimage, they would roll up the curtain and show them the keruvim embracing one another, and they would say: See how your affection is before the Omnipresent—like the affection of male and female. Rav Ḥisda objected: ‘They shall not come to see when the holy is swallowed’ (Num. 4:20)! Rav Yehudah said in the name of Rav: that [prohibition applied] at the time of returning the vessels to their covers. Rav Naḥman said: It is like a bride: as long as she is in her father’s house she is modest before her husband; once she comes to her father‑in‑law’s house, she is not modest before her husband.”

And Rashi there comments:

“‘In her father’s house’—in betrothal; so too Israel in the wilderness were not yet familiar with the Shekhinah.”

That is, the prohibition applied in the wilderness because Israel were not yet “at ease” with the Divine Presence, like a bride in her father’s home before marriage. After arriving at the husband’s home the relationship is freer; thus, the Levites may see the sacred vessels. Perhaps the same logic would apply to touching the vessels: it, too, was only “for the moment,” not for generations; hence, the enumerators do not count it.[6] R. Pinḥas Frankel indeed proposes this himself there (“ve’emnam”).

In principle, this looks like a possible solution for all the uprooted halakhot: the verses were not stated in vain, nor did halakhah uproot verses; rather, some verses were stated only for their moment, not for generations.[7]

And yet—uprooted verses

Still, the poskim’s disregard for these verses calls for explanation. We would expect them to raise the issue of the commandment and, as a solution, suggest that it is not for generations. But the poskim simply ignore it. The commandment of the child’s rest is troubling in the same way. There, too, there is stark disregard for an explicit Torah command—and in that case, it is hard to imagine that it was a one‑time command only for the wilderness. Why would there be any difference between Sabbath in the wilderness and Sabbath for generations, or between the obligation to educate children then and now?

The conclusion seems to be that there are verses that remain uprooted with respect to halakhah. The explanation for this puzzling phenomenon is apparently not exhausted by the distinction between “for the moment” and “for generations.” It may be that such commands remain as norms which are not formal mitzvot—yet are nonetheless expected of us—and therefore have no expression in codified halakhah. Even so, one would expect occasional remarks to this effect and explanations why such verses are formulated this way (as we saw regarding seeing the sacred vessels).

One might have said that the poskim did not bring these laws because they do not appear in the Talmud—even if, in practice, they do rule them. It is known that one of Rambam’s rules is not to codify a law without a clear source in Ḥazal (and several rule‑writers note that he will not even codify laws deduced from a question or minute inference in the Talmud), save for rare cases where he prefaces with “it appears to me.”[8] But even this does not resolve Rambam’s explicit rejection of a prohibition of touching, nor the poskim who write plainly that there is no such prohibition (as with the disregard of the child’s rest). Thus the question of uprooted verses remains, to my mind, tzarikh iyun.

Novel halakhot

Until now, we saw examples of uprooted halakhot—laws stated explicitly in verses that the poskim nonetheless ignore because Ḥazal did not anchor them in halakhah. But there are opposite examples: laws that do not appear in Ḥazal yet the poskim innovate as binding halakhah on the basis of Scripture. This is the reverse phenomenon.

Above we noted that the Mishnah Berurah brings the uprooted law of the child’s rest; it seems that in his Torah commentary the Ḥafez Ḥayyim follows this approach and innovates several laws by such interpretive reasoning, even without a Talmudic source. For example, on Exodus 23:5 he learns from the obligation to assist with the animal of one’s fellow (“you shall surely help,” “you shall not hide yourself”) that there is a duty to assist a person in need (e.g., a rosh yeshivah carrying the burden of his yeshivah) or a person carrying a heavy load—and certainly if that load is needed by another to aid him. His wording implies that this is not mere moral guidance but an outright obligation; one who fails to help a child carrying a burden violates a negative commandment—a fortiori from an animal.

At first glance this is straightforward: a kal vaḥomer is one of the hermeneutic rules, and the learning from animal to human seems eminently reasonable. Even so, I am not aware of many poskim who would allow themselves to innovate a binding law by such reasoning that has no source in Ḥazal. They may recommend such conduct but will consign it to the moral sphere. Presumably this is because we do not find such a kal vaḥomer in Ḥazal (even if we do not find them objecting to it).

As is well known, there are very few derashot in post‑Talmudic literature with no source in Ḥazal. Usually this is because we lack the skill to deploy the hermeneutic rules. But kal vaḥomer is a rule that is quite easy to use—and we do so in all fields of thought. I would have expected derashot like that of the Ḥafez Ḥayyim to appear frequently in the poskim.

A prominent example of such a kal vaḥomer may be found in Responsa Ḥatam Sofer, Yoreh De’ah §233. The Gemara (Megillah 14a) seeks a source for the enactment to read the Megillah:

“Our rabbis taught: Forty‑eight prophets and seven prophetesses prophesied to Israel, and they did not diminish or add to what is written in the Torah—except for the reading of the Megillah. What did they expound? R. Ḥiyya bar Avin said in the name of R. Yehoshua ben Korḥa: If [Israel] sang a song for salvation from slavery to freedom, then for salvation from death to life—how much more so!”

We see the Gemara seeks a source for the enactment of reading the Megillah on Purim and bases it on a kal vaḥomer from Pesaḥ: if we sang a song for salvation from slavery to freedom, how much more so should we sing for salvation from death to life. In his novellae to Shabbat 32a, the Ḥatam Sofer explains Ba’al Halakhot Gedolot’s position that he counts Ḥanukkah and Purim in the 613 commandments: his claim is that a kal vaḥomer is one of the hermeneutic rules, and what is derived from it is de’oraita.

But in his responsum there he goes further and writes:

“I know that I have heard that nowadays entire generations gather and from afar they come to seek the LORD in the holy city of Ẓfat on Lag BaOmer at the hillula of Rashbi. Even if all their intent is for the sake of Heaven—their reward is surely great … Nevertheless, for this very reason I have been among the abstainers, like Ben Derotai, so that I need not sit there and change their practice in their presence, and so that I need not join them in this. For Peri Ḥadash (OḤ 496 in his ‘Customs of Prohibition’ §14) already danced many dances around those places that make a festival on a day when a miracle occurred for them …”

He explains that he does not ascend to Eretz Yisrael so as not to become entangled in the Lag BaOmer celebrations. His claim is that, although those who do so have good intent and great reward, there is nevertheless a prohibition, as Peri Ḥadash explained. What is the prohibition? He now explains:

“It seems to me that the reason they say [= the reason communities make a festival on a day when a miracle occurred to them—the Purim of Frankfurt or of Casablanca] is this very kal vaḥomer: from slavery to freedom we sang a song; from death to life—how much more so. But to fix a festival on a day when no miracle occurred and which is mentioned neither in the Talmud nor in the poskim, not even by allusion—only a custom to avoid eulogies and fasts—this is itself a practice whose very rationale is unknown.”

That is: every local festival set by a community to commemorate a miracle that occurred to it is founded upon that kal vaḥomer from the Megillah sugya. But on Lag BaOmer nothing happened to anyone; to make it a mo’ed involves “bal tosif.”

From his words it follows that the local festivals that communities institute derive their force from the Gemara’s kal vaḥomer in Megillah; it seems that, at least according to Ba’al Halakhot Gedolot, this is in fact a de’oraita obligation, like Purim. If so, this is an excellent example of a post‑Talmudic kal vaḥomer derash introducing a norm, even without a direct Talmudic source (the Talmud uses it only for the original Purim, which was set by an authorized court).

Closing note: can we learn from the Tanakh?

I cannot resist a general remark about our ability to learn from the Tanakh. Here we have seen that even commands that seem explicit in the plain sense of Scripture do not so quickly become halakhah unless Ḥazal anchor them. What, then, shall we say of insights, lessons, and values (not halakhot) learned from verses and biblical narratives? There the conclusions are far less determinative—and this only sharpens the general doubt I have repeatedly raised about our ability to derive much from the Tanakh (see Column 134—especially the many talkbacks that responded to the challenge I posed at its end—and much more in the Q&A and elsewhere).

[1] See in this regard Rashi at the beginning of Parashat Mattot (Numbers 31:16), and Rambam at the end of Hilkhot Kilayim (10:30) and parallels. Strictly speaking, however, this concerns only directly feeding a prohibition to a minor, not every facilitator.

[2] See Responsa Ḥidushei HaRim, OḤ §3; Responsa Eretz Ẓevi I §75; Responsa Pri Yitzḥak II §3; Responsa Mishkenot Ya’akov §118; Aḥiezer III §81; Or Sameaḥ, Hilkhot Shabbat ch. 24, and others.

All of these assumed, as a given, that there is a command regarding a child’s rest, and offered various explanations as to why the Gemara ignores it and why it is needed alongside the general ban on directly feeding minors prohibitions. Nonetheless, the Gemara’s and the codes’ disregard for this command remains striking, and it is hard to be satisfied by local answers of one kind or another.

[3] Even here the assumption is not trivial. Seemingly, the prohibition would apply for generations whenever the vessels are carried on the shoulder as in the wilderness. True, from the time the Temple was built this became irrelevant; but irrelevance is not the same as expiration of a command’s force (see Rambam, Sefer HaMitzvot, Positive 187, and our article in Yishlaḥ Shorashav on the Third Principle).

[4] It is quite clear that his intent is that this is not the peshat but a derash; this fits his Second Principle that a single text does not bear two true interpretations (Ramban, in his critiques, disagrees). See Ramban’s critique here showing that the term “remez” in Ḥazal does not necessarily mean mere asmachta.

[5] See also Kli Ḥemdah, Parashat Bamidbar §6.

[6] True, Rambam does not trouble to note this; it appears he learns simply that we derive no prohibition of touching at all—not because the honors to the sacred vessels in our passage applied only “for the moment,” but because the verse never meant touching in the first place.

[7] Thus says the midrash at the beginning of Parashat Ẓav: every expression of “tzav” denotes “immediately and for generations.” I.e., it is not a given that every formulation in Scripture is “for generations.” See on this in the first part of an article in Middah Tovah (5765), on Parashat Tetzaveh.

[8] See, for example, Terumat HaDeshen, Pesakim u’Ketavim §20; Tashbaẓ III §43 (Makhon Shlomo Uman & Makhon Yerushalayim ed., 5763, s.v. “Vayetze”); Maharlbaḥ §33 (p. 19c); Beit Yosef, YD 194:3 s.v. “What our master wrote: ‘Oh, or…’,” and more.