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Shabbat Parashat Eikev| 5765
From the works of Hagaon Harav Shaul Yisraeli zt”l - The Mitzva to Live in Eretz Israel - Part V - Answering the Megillat Esther’s Questions (II) - From Eretz Hemdah I,1:2
[Last week we saw the Megillat Esther’s question on the Ramban, who rules that the mitzva to inhabit Eretz Yisrael applies in all generations. If there is such a mitzva, asks the Megillat Esther, then how could Rav Yehuda derive a prohibition to move from Bavel to Eretz Yisrael from the words of a prophet, as a prophet cannot contradict a mitzva of the Torah. We brought and rejected two answers last week and will now bring Rav Yisraeli’s answer.]
The gemara (Yevamot 90a), in discussing whether the Rabbis can make an injunction that contradicts a Torah law, makes the following distinction. They can make a rabbinic law that requires one to refrain from performing a mitzva (sheiv v’al ta’aseh), but they cannot make a law to force one to act to violate a Torah law (kum va’aseh). Since the gemara (ibid.) compares the Rabbis’ authority to the prophets’, we might assume that prophets can inform the people that they must refrain from performing a mitzva, like that to move to Eretz Yisrael.
However, this comparison between the authority of Chazal and that of a prophet to uproot a Torah law depends on the various opinions as to the mechanism of Chazal’s authority. The prophet’s authority stems from the pasuk “eilav tishma’un- you shall listen to him” (Devarim 18:15) and is limited to stopgap provisions under special circumstances (Yevamot 90b). Chazal’s authority is derived from the Torah’s instructions “… that which they will say to you you shall do” and “do not stray from the thing that they tell you” (Devarim 17:11). The Rambam and Ramban (Sefer Hamitzvot, shoresh 1) have a fundamental dispute as to the nature of Chazal’s Torah-level mandate. The Ramban says that their Torah-level authority is limited to interpreting the Torah (judicial), whereas the Rambam says that Chazal’s injunctions (legislative) are also binding from a Torah perspective. According to the Rambam, whenever Chazal say not to do something, a positive and a negative Torah commandment exist. If there is a contradictory positive commandment, then the general Torah law is that one cannot act on the positive commandment in contradiction of another positive Torah commandment and one must remain inactive. Thus, the Rabbis’ ability to make someone refrain from doing a mitzva does not require an exceptional Torah rule. Since this is a global rule, the Rambam does not mention explicitly Chazal’spower to prevent the performance of mitzvot. Only when Chazal decree to actively violate the Torah is an exception to the rule needed to listen to them. But this exception, learned from the prophet’s authority, by the pasuk, “eilav tishma’un,” is limited to temporary measures.
According to the Ramban, Chazal should not have had the ability to legislate that we should refrain from a Torah law. Therefore, their power must be based on the comparison to the prophets’ power and follow the rules found in that context. If Chazal can contradict the Torah by demanding inactivity on a permanent basis, it follows that the prophets also have that power. Thus, the answer we gave for the Ramban to the Megillat Esther’s question is valid. The prophet, like Chazal, can instruct the Jews of Bavel not to return to Eretz Yisrael, despite the mitzva.
However, this approach will not work for the Rambam. Chazal can legislate; the prophet can only relay Hashem’s word. Paradoxically, the prophet has less authority, as the Torah promised us that all of the mitzvot of the Torah will remain, both active ones and passive ones. The prophet can only call for a temporary suspension and could not permanently call on the Jews of Bavel to remain there in contradiction of the Torah’s command to go to Eretz Yisrael.
We continue next week with an analysis of the Rambam’s position on the matter.
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