The Mitzvah of Anochi

The first mitzvah in Sefer HaMitzvos according to the Rambam is the mitzvah of Anochi Hashem Elokecha. In the first few halachos of Mishneh Torah (Hilchos Yesodei HaTorah 1:1-6) the Rambam explains in detail what the mitzvah of Anochi means. The Rambam says that the mitzvah of Anochi basically is to know that there is a God that is in control of the whole universe. First, we should note that not all rishonim hold that Anochi is a mitzvah at all. In Sefer Hamitzvos the Ramban defends the opinion of the BeHag that Anochi is in fact not a mitzvah amongst the 613.

However, the Rambam has a solid proof that Anochi is one of the 613 mitzvos. The gemara in Makkos 24a says that there are 613 mitzvos. This idea is learnt from the pasuk of Torah tzivah lanu Moshe. Torah in gematria is 611. 611 of the 613 mitzvos were commanded from Moshe. Two were commanded from Hashem Himself -mipi hagevurah. Those two were Anochi and Lo Yihyeh. Thus, it is clear from the gemara that anochi is one of the 613.

Now, let us return to the Rambam's definition of Anochi. Many point out that when the Rambam talks about the mitzvah of Anochi in Mishnah Torah he uses the word leida - to know. A person has to know that there is a God. He does not say l'haamin - to believe. This is despite the fact that the translators translate Sefer HaMitzvos and Moreh Nevuchim with the word l'haamin. Is this a contradiction in Rambam? I don't know. However, I believe that the Rambam intentionally used the word Leida based on a passage in Moreh Nevuchim.

In Moreh Nevuchim the Rambam offers a novel interperetion of the gemara in Makkos. The Rambam says that when it says in the gemara that Anochi and Lo Yihyeh were heard by klal yisrael mipi hagevurah it doesn't mean they heard Hashem say those words. Rather, it means that those two mitzvos - the existence and unity of God - are logical. They do not require faith in a prophet such as Moshe Rabbeinu. Thus, all of klal yisrael had the same understanding of those two mitzvos as Moshe Rabbeinu. As the Rambam explains, knowing something through logic holds the same level of knowledge as knowing something through nevuah. Thus, it is specifically anochi and lo yihyeh that are known as opposed to believed. All other mitzvos are done because we believe in the prophecy of Moshe Rabbeinu. But, these two mitzvos are known independantly of that.

From this it seems clear that the Rambam intentionally uses the word leidah. The Ran in Derashos (drush 9) argues with the Rambam. He says mipi hagevurah literally means they heard those commandments from Hashem. He also disputes what the mitzvah of anochi is. He says that anochi isn't merely that there is a God. Rather, the mitzvah of anochi is to recognize that the God who took us out of Egypt gave us the Torah. The mitzvah really is that there is Torah min Hashamayim. As the Ran explains, knowing that there is a God is logical. However, how do we know He cares about are actions? How do we know about His hashgacha on the world? That requires Mipi Hagevurah - actually hearing it from Hashem Himself.

Thus, the Ran and the Rambam dispute the basic mitzvah of Anochi as well as the gemara in Makkos. In the Rambam Mipi HaGevurah is logic and the mitzvah of Anochi is simply knowing that God exists. In the Ran, Mipi HaGevurah means from the mouth of the Almighty - we actually "heard" Hashem say these dibros (whatever that means). And, the mitzvah of Anochi is about more than the mere existence of God - it is about the concept of Torah min Hashamayim - an idea that truly requires "mipi hagevurah".

It is interesting that the Rambam does use the terminology of emunah later in Hilchos Yesodei Hatorah when he discusses why klal yisrael "believed" in the nevuah of Moshe Rabbeinu. It seems clear that the Rambam is setting up two categories of mitzvos. Anochi and Lo Yihyeh are the foundations of the Torah and are known logically and independently of nevuah. All the other mitzvos of the 613 are known because we believe in the nevuah of Moshe Rabbeinu, which the Rambam discusses more in depth later in Mishnah Torah.

Placebo Effect in Halacha

The last post got me thinking about the how the Placebo Effect works with halacha. In the last post we discussed what type of medicinal treatments are permitted according to halacha, and which are prohibited due to darchei haemori. We concluded that post as follows:

The Rashba seems to be saying that in order for a medicine to be considered rational we don't have to know why it works. We only need to have a rational basis for using the medicine. A rational basis can exist due to logic (it makes logical sense that this medicine should work even though it hasn't yet been tested) or due to observation (we have no idea why it works we just have observed that it does). What is forbidden is to use a medicine that we have no rational reason to believe works. If it makes no sense why it should work, nor has it been observed to work then it is forbidden.

It's the observation line that I want to focus on. As I wrote in the post, there are two reasons why a particular medicine or medical treatment could be considered rational. One is that it is logical that the treatment should work. Even if it is a totally new treatment that hasn't been tested it can still be considered a rational treatment if their is some logical reason why doctors think it will work.

The second reason that a treatment could be considered rational is because we have observed that it works - even though we don't know why or how it works. What's interesting to consider is that ever since the early 20th century medical science has been working under the premise that there exists a placebo effect. Meaning that a completely ineffective therapy can still work, simply because the patient believes that it will work. The question therefore is - what do we do with the rishonim who permitted certain medical treatments because those treatments were observed to be effective. Was that observation a "real" observation or was it just the placebo effect working? And in general, must we take the placebo effect into account as far as halacha? Do we define observation l'halacha the same way scientists define it? If we do, then that would mean that one could never take any medicine or medical treatment that hadn't been tested in a placebo-controlled study in a double-blind fashion (unless there was a logical reason why the medicine should work).

The placebo effect does make it into halacha in another scenario. Imagine a patient who believes that some non-kosher medicine will heal him. Now, the doctors actually don't believe it. It's totally untested and illogical. The question becomes is it considered a valid medical treatement or not? If it is, then we might be able to use it even though it isn't kosher (assuming other necessary conditions are met). If not, we surely cannot give someone non-kosher for no reason.

How can it possibly be considered a real medical need? The answer is that since the patient believes it will work it might just help him. Basically, it's the placebo effect at work. In fact there are poskim who have permitted just this case in certain specific situations for exactly this reason. The psychological benefit of taking the medicine is enough to declare it "medical" and permit it. Because the patient truly believes that this might work it becomes a possibly effective treatment and may become muttar even if it isn't kosher.

This then brings us back to our question regarding the times of the rishonim. Even if there were no placebo-controlled studies, the fact is that the people fully believed that these treatments worked. They had even "observed" them working. Therefore, the treatments, in a sense, did work precisely because people believed it! Accordingly, this may be enough halachically to be considered a real medicine and it becomes muttar. Just some food for thought.

* No post on Talking in Learning is intended halacha l'maaseh. Always consult your halachic authority for final rulings.

Segulos and Darchei HaEmori

The Tosefta in Shabbos (Chapters 7 & 8) lists various practices which are prohibited due to the fact that they are darchei haemori. For example, putting thorns in a window to protect a pregnant woman or tying an iron to one's bed. These things all have one basic common feature. They are irrational - meaning they are not scientifically or observably proven remedies. (We will come back to this to try to better define what is considered "irrational".)However, the gemara in Shabbos 67a has a seemingly different rule regarding medicine. Abaye and Rava say that "anything done for healing isn't darchei haemori". The mishna applies this rule to several seemingly irrational medical treatments - tooth of a fox, egg of a grasshopper etc.

How do we reconcile these two sources? Here we will present three rishonim who write on the issue:

Rambam - The Rambam in Moreh Nevuchim 3:37 (see also Rashi in Shabbos there) seems to say that, in fact, when it comes to medicine the rule is the same as any other segulah. If a method of healing is not observable by medical science it is forbidden. He seems to learn that the methods mentioned in the mishna in Shabbos were considered rational healing methods.

Ran - The Ran (Drashos HaRan 12) disputes this approach. He learns that when it comes to healing there are two appropriate methods. There are some healing methods that are physical and there are others that are non-physical. Both are appropriate as long as they effective methods that are shown to work. The only healings that are forbidden are ineffective ones which was the way of the Emori - who used silly useless things to heal.

Rashba - The Rashba (Shu"t 413) writes that the Rambam would agree with this position of the Ran. He compares the non-physical healings of the Ran to a magnet. A magnet has power that cannot be seen - yet of course it works. It is a rational thing to believe that a magnet will draw things to it. So too with non-physical healings. As long as they are established as working, they are perfectly rational and the Rambam would certainly agree that they are permitted.

What seems to be at issue here is really how we define rational. The Rashba seems to be saying that in order for a medicine to be considered rational we don't have to know why it works. We only need to have a rational basis for using the medicine. A rational basis can exist due to logic (it makes logical sense that this medicine should work even though it hasn't yet been tested) or due to observation (we have no idea why it works we just have observed that it does). What is forbidden is to use a medicine that we have no rational reason to believe works. If it makes no sense why it should work, nor has it been observed to work then it is forbidden.

At the end of this discussion it would appear that all three of these rishonim agree that in the mishna in Shabbos there was some rational basis for using those particular methods. Had there been no rational basis it would have been forbidden.

*For a much more in-depth discussion on this issue see RJJ Journal Vol. 54 - Segulot, Superstitions, and Darchei Emori by Rabbi Yitzchok Gutterman.

When Does One Make a Leisheiv B'Sukkah?

The Rambam in Hilchos Succah 6:12 writes (in the name of his Rabbis as well as l'halacha) that on the first night of Succos one should make Kiddush standing up so that he can sit down after he makes the bracha of leishev b'succah (thus fulfilling the inyan of making the bracha before the mitzvah). [Derech Agav - Many are medayek from here that the rest of the year the Rambam would hold to sit during kiddush.] The Rosh in Succah 4:3 asks, the mitzvah of "sitting" in the Succah doesn't really mean sitting literally?! It just means to live in the succah. So if you truly want to make the bracha before the mitzvah - why not make it before you enter the succah?

The Taz in O.C. 643:2 anwers that just walking into a succah isn't recognizably a mitzvah of dwelling in the succah, because you may just walk right back out. Chazal were only mesaken a bracha for recognizably dwelling in the succah.

R' Hershel Schachter in Eretz HaTzvi Siman 3 writes as follows:

Chachamim weren't meseken a birchas hamitzvah for a kiyum hamitzvah, but only for doing a maaseh mitzvah. Granted that one who enters a succah and is standing there has been mekayem a mitzvah by entering of yeshivas succah, however on a kiyum like this there is no takkana for a bracha.

And even though entering and walking into the succah is certainly a maaseh gamur, nevertheless the Rabbis of the Rambam hold that it is not a maaseh mitzvah mesuyam until you sit mamash in the succah.

Basically R' Schachter is being mechalek between a maaseh mitzvah and a kiyum mitzvah. One only makes a bracha on a maaseh mitzvah and not a kiyum. R' Schachter points out in the footnote that not everyone agrees to this principle. For example, if someone puts a mezuzah up in someone else's house - who makes the bracha? The guy who puts it up is doing the maaseh mitzvah. The owner of the house has the kiyum. It's actually a machlokes who makes the bracha. Here R' Schachter is following the opinions that it's the one who does the maaseh mitzvah that makes the bracha.

Regardless, R' Schachter himself points out the downside of this approach. Isn't walking into the succah a maaseh? So we haven't really answered the question. Why make the bracha specifically before sitting down? So R' Schachter circles back and says that although entering is a maaseh it's not a maaseh mesuyem (a structured and defined maaseh).

We posted earlier on a similar issue. Why not make a bracha on sleeping in the succah? In that post we quoted from Reshimos Shiurim on Succah that R' Soloveitchik asks, is sleeping a kum v'aseh or a shev v'al taaseh? He seems to conclude it is shev v'al taaseh. Meaning, in halacha "going"to sleep isn't considered active, but passive. Thus, we suggested that it is not a maaseh and there is no bracha. If so, perhaps the same is true by merely entering the succah. Just "being" in the succah isn't an action. It isn't a maaseh mitzvah - even if it is a mitzvah. Perhaps that is also what R' Schachter means when he says it isn't a maaseh mesuyem.

It All Depends on How You Define the Word "Count"

The Torah tells us to "count" things several times. Sefiras HaOmer is a famous example of counting. There is also the "7 clean days" counted by a zavah. Finally, there is also the counting of years leading up to Yovel.

The Rambam in Shemittah V'Yovel 10:1 implies that Beis Din HaGadol has a mitzvah to actively count the shemittah years until reaching yovel. The Rambam does not mention making a berachah on this count.

However, Tosafos in Menachos 65b (d"h Usfartem) does mention counting with a beracha. Although Tosafos in Menachos is mesupek in the end, Tosafos in Kesuvos 72a is definitive that Beis Din does make a beracha on the count towards yovel.

Interestingly, Rabbi Akiva Eiger (Shu"t Kamma 29) relates making a beracha to having to count out loud (as opposed to just counting in one's brain). R' Akiva Eiger says that since the Rambam mentions no beracha perhaps the Rambam holds that Beis Din does not have to vocally count the years of shemittah. I'm not sure how a unit of people like Beis Din would count in their brains - maybe they could put up a sign what year it is or something like that. In any case, the pashtus of the Rambam is that Beis Din does count out loud - but we would still have to deal with the beracha issue.

What about the count by zavah? R' Akiva Eiger mentions that the poskim unanimously agree that the zavah doesn't actually need to count the days - she just needs to "keep count" - meaning to keep track of how many clean days she has had. However, it is not totally unanimous.

The Shelah is mentioned in a note on the side of Tosafos in Kesuvos 72a that he understands Tosafos to hold that a zavah actually does count the seven days - she just doesn't make a beracha. The other way to read Tosafos is that Tosafos is saying the Zavah doesn't have to count at all.

The Noda B'Yehuda (Tinyana Yoreh Deah 123) famously comments that the Shelah in his holiness made a mistake and added mitzvos that don't exist - for there is no mitzvah for a zavah to actually count the days. She only needs to keep track.

Besides the Shelah I saw that Footnote 4 on the same R' Akiva Eiger mentions that the Sefer Agudah in the name of the Ri (Menachos 86 Siman 32) also holds that the Zavah has a mitzvah to count. So again, it's not totally unanimous.

Finally Tosafos in Menachos comments on the grammer of the pesukim. By Yovel it says "and you will count" in singular. Therefore, it refers to Beis Din. However, by Sefiras HaOmer it says "and you will count" in plural - which means each individual must count.

However, we should note that the word "count" is mentioned in reference to sefiras haomer more than once and the singular is also used. In fact, the Sifri at the end of Parshas Reah implies that the mitzvah of sefiras haomer is two mitzvos - one on Beis Din and one on the individual. This is consistent with the two usages in the pasuk. However, the Gra changes the girsa of the Sifri that the count of Beis Din is only a hava amina in the Sifri - and not l'maskana. Nevertheless, the Chizkuni at the beginning of Parshas BeHar seems to say even l'maskana that there are two mitzvos by Sefiras HaOmer - one on Beis Din and one on the individual.

*For more on this topic see Sefer Eretz HaTzvi by Rabbi Hershel Schachter Siman 3.

Shaving with a Razor - Taam HaMitzvah

The Tur in Yoreh Deah Siman 181 quotes the Rambam who gives a reason behind the issur of shaving with a razor. The Rambam says that the reason behind this prohibition is that since it was the way of idol-worshippers to shave in this fashion therefore the Torah prohibited it. (See Rabbeinu Bachya VaYikra 19:27 for some different approaches.) The Tur questions the need for the Rambam to give the taam hamitzvah at all. Aren't all mitzvos obligatory regardless of the reason behind them? (See the commentators on the Tur who address his argument.)

In general this Rambam does pose a difficulty because it is found in Mishneh Torah. Generally, the Rambam reserves taamei hamitzvah for the Moreh Nevuchim. Why did the Rambam feel it was necessary to state the taam hamitzvah for shaving with a razor?

I believe the answer is simple. The Rambam places the halachos of giluach hazakan in Hilchos Avodah Zarah Perek 12. Therefore, the Rambam has to justify this placement. Imagine if the Rambam hadn't written that these laws of shaving were due to the practices of idol-worshippers. The question would jump off the page! What in the world are halachos of shaving doing in Hilchos Avodah Zarah??

This highlights the general difference between the way the Rambam categorized halachos and the way the Tur did. The Tur divided everthing into four basic sections - Orach Chaim, Even HaEzer, Choshen Mishpat, and Yoreh Deah. Let's take Yoreh Deah as an example. It is essentially is a collection of issur v'heter. The different issurim dealt with in Yoreh Deah are not necessarilly related to one another. Shaving and Kashrus don't really go hand in hand. The same can be said for Orach Chaim. The Rambam placed Hilchos Shabbos and Hilchos Tefillah in totally different sections of Mishneh Torah. But in the Tur they are all part of Orach Chaim.

The categories that the Rambam created were not merely meant for convenience. They were meant to describe the essential nature of the halachos. Hilchos Tefillah for example is in the section Ahava - Love. By placing Hilchos Tefillah in Ahava the Rambam is telling us something about the nature of Tefillah. Tefillah has to do with loving the Creator. The Tur, on the other hand, places Hilchos Tefillah in Orach Chaim - laws that have to do with day to day living. The Tur is noting a characteristic of Hilchos Tefillah - but he is not attempting to describe the basic nature of Tefillah.

In the Tur's division of the halachos shaving isn't part of any broader area of halacha. It is simply it's own category - the laws of shaving of the beard. In the Rambam shaving belongs to the broader category of Hilchos Avodah Zarah. Hilchos Giluach HaZakan does not merit its own section in the Rambam's Mishneh Torah.

We'll just conclude by noting the obvious - that the goal of the Baal HaTurim in writing the Tur was totally different than the goal of the Rambam in writing Mishneh Torah. The Baal HaTurim was concerned with recording the practical halacha l'maaseh so people would know what it is they were supposed to do. That is why he divided the laws into four sections which would be intuitively searchable to the laymen. If I want to know how to live my daily life I'll check Orach Chaim. If I want to know about money matters - Choshen Mishpat. That's also why the Tur left out all the laws that don't apply nowadays. The Rambam on the other hand was interested in recording - in an organized fashion - all of Torah Shebaal Peh. The categories weren't created for the purpose of easily finding out what to do - but rather they were created to help understand all the details within their broader context.

Shliach L'Havaah

When it comes to marriage and divorce generally speaking the man or the woman can appoint a shliach to carry out their respective parts of the process. A man can appoint a shliach l'holacha to deliver the get (or kiddushin) to his wife. Likewise, a woman appoints a shliach l'kabbalah to receive the get.

The Ran in Gittin on Daf 28a (dapei harif) discusses the possibility of a woman appointing a shliach l'holacha to deliver her the get from her husband. The Rambam says that this is possible and he calls this shliach a "shliach l'havaah". This Rambam is found in 6:4 of Hilchos Gerushin:

ד] וְכֵן הָאִשָּׁה שׁוֹלַחַת שָׁלִיחַ לְהָבִיא לָהּ גִּטָּהּ מִיַּד בַּעְלָהּ, וְזֶה הוּא הַנִּקְרָא שְׁלִיחַ הֲבָאָה. וְאֵין שְׁלִיחַ הוֹלָכָה וַהֲבָאָה צָרִיךְ עֵדִים

The question is obvious. How can a woman create a shliach to deliver the get? If the delivery of the get is the husband's job, shouldn't a shliach delivering the get automatically be a shliach of the husband? In what way is the shliach l'havaah a shliach of the woman?

The Ran suggests that really a shliach l'havaah is a shliach l'kabbalah al hatnai. Really, the shliach is fully the shliach of the woman and upon his reception of the get the woman should be divorced. However, the woman makes a tnai in the shlichus that the divorce will only happen upon her receiving the get.

(The idea that the woman can make a tnai in the reception of the get is interesting because in general a woman is divorced against her will - and thus has no "control" to make tannaim. Apparently, the Ran is saying that when the woman makes a shliach she can make tannaim within the shliach.)

While this pshat works in general - it seems that it cannot work in the Rambam. The Rambam we quoted above clearly states that no eidim are needed when appointing a shliach l'havaah. This is similar to a shliach l'holacha and not shliach l'kabbalah. If a shliach l'havaah was merely a shliach l'kabbalah with a tnai - surely eidim would be needed.

I heard the following pshat to explain the shitas haRambam. There is a halacha of nesinah by get - that a get must be given to the woman. The husband may not place the get on the ground and have the woman pick it up. This is lacking in nesinas haget.

By shliach l'havaah we can suggest that the shliach is the yad of the woman only for the purpose of fulfilling the halacha of v'nasan b'yadah. When the husband gives the get to the shliach the nesinah has been accomplished. Then, the shliach gives the get to the woman and with her zechiyah in the get she is divorced. But, the shliach l'havaah doesn't even need to give the get to the woman because the giving has already been done. Rather all that remains to be done is the woman taking possession of the get. Thus, the shliach l'havaah can theoretically place the get on the ground and allow the woman to pick it up and there would still be a divorce.

According to this we understand why there is no need for eidim by shliach l'havaah. A shliach l'havaah is not a shliach l'kabbalah. Only a shliach l'kabbalah needs to be appointed with eidim because that shliach is an integral part of the actual divorce - because the divorce is primarily affected by the receiving of the get by the woman. A shliach l'holacha and shliach l'havaah on the other hand are only involved in the din of v'nasan b'yadah. This din is not the actual divorce but just one of the prerequisite dinim involved in the divorce. Thus, these shluchim do not need to be appointed with eidim.