From Parsha to Halakha: How can we add to the Torah?
The realm of the Oral Torah is both fascinating and confusing. On one hand, most of us are used to the reality that our religious lives are shaped by Chazal (the Talmudic sages) – their interpretations of the Written Torah and further decrees and enactments they added. In the introduction to his commentary in the Mishna, Rambam brings two categories of rabbinic decrees and enactments (and customs): one consists of decrees established as fences to protect Torah laws and ensure they are upheld, the second are novel enactments that benefit individuals and society.[1]
Nevertheless, we can’t just assume that we have permission to add to the Torah. The source of rabbinic authority in general, and specifically their power to enact new halakhot, is the subject of an ongoing debate stretching back to the Talmudic rabbis.[2]
Some trace their authority back to the Great Court (Beit Din HaGadol) in Jerusalem, of which the Torah states, “Do not deviate from all that they teach you,” others to the halakhic principal of “follow the majority,” or the authority the Torah vested in the elders, “Ask your father and he will tell you, your elders and they will say to you.”[3] These statements speak of the authority of the courts, majority, and elders, but none of them state that these sources of authority are permitted to add to the laws of the Torah.
“You shall not add” and “you shall not deviate”
The Torah forbids us from adding to the mitzvot in two separate sources. In the introduction to his large speech on mitzvot in Chapter 4 (verse 2), Moshe states: “So not add to this that I command you, and do not detract from it; so you keep the mitzvot of the Eternal, your God, that I command you.” And again, towards the beginning of a block of mitzvot in Chapter 13 (verse 1): “You shall safeguard the entirety of what I command you, to observe it; do not add onto it and do not detract from it.”
These verses present the Torah as a complete unit – nothing should be added or removed.[4] In context, both statements are juxtaposed to prohibitions of avodah zara (foreign or pagan worship), perhaps hinting that adding to the Torah not only detracts from its wholeness, but may lead to avodah zara.[5]
Nevertheless, the sages explain that not every “addition” is prohibited. Within the teachings of Chazal (the Talmudic sages) the prohibition against adding to the Torah is explained as a prohibition against adding onto individual mitzvot (such as adding another section to the texts inside tefillin), rather than generally adding more mitzvot.[6] Some Rishonim (11th-15th century rabbinic authorities) emphasized that the prohibition was adding to the Torah and not adding mitzvot in general; it’s permitted if the source of the addition is clear, and it’s known to be a rabbinic addition.[7]
But even if the prohibition against adding to the Torah is limited, where is the source that permits adding to it?
The vow: an instrument of change
It seems that the Torah created mechanisms to do just this, such as the neder (vow). Vows may be individual, but they can also be communal, as we see in this week’s parsha.
In Parshat Bechukotai we learn that a person can instill mundane objects with sanctity, completely of their own accord. A person can sanctify their possessions, money, or animals to God, which makes these objects sanctified and sacred.[8] The Torah also relates that a neder or vow can be used as a mechanism to obligate or prohibit actions.[9]
A person can use a neder to sanctify and dedicate things to God, consequently prohibiting their use for other purposes. Chazal explain that a vow can also create a prohibition without the initial sanctification.[10] Through a vow a person can personally prohibit themselves from eating certain foods or going to certain places; they can also create personal obligations to act in a certain way. A person voluntarily creates these obligations and prohibitions, according to their own whim, but it is based on the Torah’s directive: “you shall act in accordance with everything your mouth uttered.”[11]
Such a personal neder can be found as early as when our ancestor Yaakov vowed to consecrate the pillar he erected as a House of God and tithe his possessions.[12] In Sefer Bamidbar we find that the People of Israel pledge that the cities of the people God delivers in their hand will be cherem (consecrated and/or destroyed).[13]
Ramban traces the source of a national neder or cherem, one that imposes a communal obligation, back to a verse in this week’s parsha: “Any cherem person, that was made cherem, shall not be redeemed; they shall be put to death.”[14] Ramban explains that this is the basis of a national “cherem”; in certain circumstances the People of Israel can declare cherem and obligate the entire nation. The authority of this cherem is strong enough to impose death.[15]
“Therefore I say that it was from this verse [before us] that they deduced this law — that if any king of Israel, or the Great Sanhedrin [of seventy-one judges] in the presence of all Israel, who have the authority to institute ordinances [for the good of the people], if they declare a certain city cheirem, to be warred on, and likewise if they declare a certain matter cheirem, he who violates it is liable to the death-penalty. This indeed was the guilt of the men of Jabesh-gilead [as mentioned above], and of Jonathan, to whom his father [Saul] had said, ‘G-d do so and more also, thou shalt surely die, Jonathan.’[16] Now on the basis of what legal authority did these people deserve death, if not because of this source [in Scripture]?”[17]
According to Ramban this law was applied in the story of the concubine in Geva. The men of Yavesh Gilad were killed because they violated Israel’s vow and did not go out to fight the Benjamites.
This law is also applied in King Saul’s war against the Philistines, when Yehonatan unknowingly violated his father’s vow proscribing eating until the battle was won.[18] Although Saul sentences his son to death, the people save Yehonatan as his hand in their salvation is proof that his transgression was accidental. While the Torah states that those subject to cherem should not be redeemed, in this case the people were permitted to commute his sentence as they had proof his violation was accidental:
“in this case that since a miracle happened through him [i.e., that the Philistines suffered a great defeat on that day], they knew that it was in error that Jonathan had acted [contrary to the cheirem of his father].”[19]
It’s noteworthy that Ramban maintains that the general source of the rabbinic authority to make new laws is the verse, “ask your father and he will tell you.” The mechanism of cherem, that allows for violators to be executed, is not always necessary. Nevertheless, without this source it would be difficult to accept the full extent of the sages’ authority, particularly over life and death. The laws of consecration and neder that appear in this week’s parsha, and particularly the novel concept of a collective vow or cherem, open us up to the possibility that the Torah itself gives us the authority to extend or add onto the Torah.[20]
[1] Compare to Hilkhot Mamrim 1:5 and his Introduction to Mishneh Torah where Rambam mentions the customs of the Sages as well.
[2] See TB Shabbat 23a
[3] Devarim 17:10-11 and Rambam Sefer HaMitzvot 174, and Shoresh 1; Ramban HaSagot on Sefer HaMitzvot Shoresh 1; Devarim 32:7; Shemot 23:2; Derashot Ran Derush 12.
[4] See Rav Shimshon Raphael Hirsch Devarim 4:2.
[5] For example: Chizkuni 4:2.
[6] Sifri Devarim 82; Ra’avad Hagahot on Rambam Hilkhot Mamrim 2:9.
[7] Hilkhot Mamrim 2:9. Compare to Avot d’Rabbi Natan Version 2 Chapter 1.
[8] Vayikra 27.
[9] For example Bamidbar 30.
[10] See beginning of Nedarim – mishna and gemara.
[11] Compare Bamidbar 33 to Devarim 23:22-24.
[12] Bereishit 28:20-22
[13] Bamidbar 21:1-3
[14] Vayikra 27:29
[15] Ramban Vayikra 27:29. Compare to his composition “Mishpat HaCherem”.
[16] Shmuel I 14:44
[17] Ramban Vayikra 27:29, translation by Charles B. Chavel as published on Sefaria
[18] Shoftim 21:1-12; Shmuel I 14:24-25.
[19] Ramban and translation ibid.
[20] In Mishpat HaCherem, Ramban explains the difference between a communal neder or vow and a communal cherem.
