Last week we mentioned Ramban’s view (recorded in his
commentary on the Torah, Devarim 2:4) that creating
a mitsvah would also constitute a violation of bal
tosif. The example Ramban uses is Yerov`am’s
announcing a new holiday for the Northern Kingdom of
Israel. While one might have thought that the problem in
that event was its attempting to wrest control of Jewish
religiosity from the Temple in Jerusalem, Ramban is
pointing out another negative element, that it violates
the prohibition of bal tosif.
Ramban uses the example of holidays, and indeed the
rest of his comment focuses on the establishment of Purim,
a topic to which we will return. That example is not meant
to limit the prohibition only to the creation of new
holidays; any innovation of a personal mitsvah is a
problem of bal tosif according to Ramban. That
would mean that if a person would decide to every morning
twirl around three times as a personal mitsvah,
Ramban would see that as bal tosif.
If we assume that Rambam and Ramban’s presentations
complement each other, we come to realize the importance
of care in our characterization of our religious acts.
Last week, we noted that observing a mitsvah de-rabanan
as if it were Torah-ordained would constitute a
problem of bal tosif according to Rambam.
Ramban’s addition means that if we give the status of mitsvah
(and I would maintain even if we do so verbally, such as
by saying "it’s a mitsvah to do action
X") to Jewish actions that are not mitsvot
(various types of customs should be included here), we run
the risk of violating bal tosif. All sorts of
observances that are merely a custom of the Jewish people
are routinely observed as if they were a mitsvah
(some with much greater alacrity than many actual mitsvot).
As we noted last week in the case of mitsvot de-rabanan,
we are obligated to follow the customs of the Jewish
people (and even of our particular subset of the Jewish
people), but we are nonetheless also obligated to
recognize the difference in obligation between these and
those. Otherwise, we are to some extent making up a
religion that God did not command.
Ramban’s specific example is the one that we can
carry over to the holidays we are creating in our time.
Ramban notes a Yerushalmi (Megillah 1;7) that discusses
the difficulty the Sages of Esther’s time had with the
establishment of Purim as a holiday. They noted that all
the prophets who had lived after the giving of the Torah
had never issued new mitsvot, and here Esther
wanted to! The gemara concludes that they found a
source in the Biblical verse that said ketov zot
zikaron ba-sefer, which is what God commands Moshe to
do with the story of Amalek. According to the gemara,
ketov was taken as a reference to Torah, zikaron
to Nevi’im, and ba-sefer to Ketuvim, meaning that
there was a hint in the Torah that the Jewish people’s
struggles with Amalek should be recorded in all sections
of Tanakh. That suggests that Ramban saw the legitimacy of
rabbinic legislation as depending upon the ability to tie
it into the Torah in some way.
It could be that Rambam agreed with Ramban. Hazal’s
right to issue protective legislation, rules that help
prevent us from violating Torah prohibitions, is the verse
of u-shemartem et mishmarti, which is taken
to indicate a right to make a protective fence, a mishmeret,
around God’s Torah. In terms of completely new ideas,
however, Rambam seems to struggle for sources. In the case
of Purim, for example, he stresses that it is rabbinic, an
ordinance of the Prophets. When it comes to Hannukah,
Rambam repeatedly compares the obligations of the holiday
to the mitsvot of Purim, as if to say that the
right to create the holiday of Purim established Hazal’s
right to establish Hannukah (for a discussion of the
differences between Sages and Prophets in Rambam’s
worldview, see his introduction to his Mishnah
commentary).
Another example of requiring a source for a legislated
holiday is the set of fast days that Hazal instituted in
memory of the destruction of the Temple. Rambam, in the
fifth chapter of Hilkhot Ta`aniyot carefully
defines the underlying reason for these fasts as being our
recognition that we currently commit similar sins to our
forefathers of the times of these tragedies, and that we
therefore use these fast days to stimulate ourselves to
proper repentance. A memorial fast-day has no real source
in the Torah; a fast-day as a stimulus to repentance in
response to a time of crisis does (see the beginning of Hilkhot
Ta`aniyot). Rambam therefore places these legislated
fast-days in a legitimate Jewish context.
Moving to today, therefore, it would seem to be a
violation of bal tosif to institute religious
holidays without some kind of pre-existing religious
framework within which to insert them. The notion of a day
of memory, such as Yom haShoah, can perhaps be compared to
a Yahrzeit, where, without serious halakhic
content, we pause to remember people from our past; we
can, in that context, even choose to fast as a form of
stimulating ourselves to repentance in the face of
remembered tragedy. On the other side of our halakhically
creative coin, it is only reasonable to set up a
holiday of Yom ha`Atsma’ut (and Yom Yerushalayim) as a
response to a perceived salvation from God—such
expressions of thanks are well-rooted in halakhah
and are therefore simply examples of a well-established
practice, rather than examples of legislative creativity.
There is, then, much room for new actions of spiritual
expression, but they must always be placed in a
pre-existing framework; otherwise, we run the risk of
doing exactly what God did not want, adding our own
innovations to an already-perfect Torah. Shabbat Shalom
