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Bal Tosif (Adding to Torah Law): What is Wrong and When?

Toward the beginning of Parashas Va-Eschanan the Torah introduces the prohibition known as bal tosif, which forbids adding onto the Torah’s laws. Moshe warns the nation: “Do not add onto that which I command you” (Devarim 4:2), establishing the prohibition against innovating Torah law.

Just as Moshe warns against detracting from the Torah (“bal tigra“), declaring one or more of its commands void, he also forbids adding onto the Torah by introducing new commands that the Torah itself had not issued.

In the present article we will discuss the prohibition of adding onto Torah law, and in particular onto rabbinic additions. To which form of adding onto the Torah does the prohibition refer? Based on the prohibition, how did the Rabbinic Sages enact rabbinical mitzvos (such as Chanukah) that seem to add onto the law? In view of the prohibition, is it permitted to present a rabbinic obligation as though it is a Torah law?

These questions, among others, are discussed below.

Chanukah and Purim

One of the most obvious questions that are raised concerning bal tosif is rabbinic enactments.

Most rabbinic mitzvos involve safeguards to ensure that Torah mitzvos are fulfilled, such as rabbinic prohibitions relating to Shabbos – to which we will come later. However, there are also a number of rabbinic mitzvos, such as the festivals of Chanukah and Purim (the enactment of netillas yadayim can also be mentioned), which are unrelated to any Torah law, and appear to clearly violate the prohibition against adding onto Torah law.

Indeed, the Gemara (Megillah 14b), clearly drawing on the Torah prohibition, points out the exceptional nature of such rabbinic enactments: “Our Rabbis taught: the forty-eight male prophets and seven female prophets who prophesied for Israel did not diminish from nor add to what is written in the Torah except for [their institution of] the reading of the Megilla.”[See below, where we cite the continuation of the Gemara which mentions a source for the enactment.]

Why are such rabbinic mitzvos not in contravention to bal tosif?

Additions to Existing Mitzvos

The answer to this question hinges on the nature of the Torah prohibition.

According to some authorities (notably the Raavad in his glosses to Mamrim Chap. 2), the concept of adding a mitzvah to the Torah does not apply to creating a new mitzvah, but is reserved for making additions to an already existing Torah mitzvah. Thus, it is forbidden to add a fifth compartment to the four compartments of tefillin, or another day to the seven days of Sukkos. Doing so constitutes a forbidden addition to the Torah.

This opinion is mentioned by Rashi on our parashah. Citing from the Sifri, Rashi notes the application of the prohibition to adding a fifth compartment to tefillin or a fifth species to the Four Minim of Sukkos.

Based on this opinion, the Minchas Chinuch (454) explains that the enactment of rabbinic mitzvos is certainly not a problem:

Bal tosif certainly does not apply, for the Torah gives permission to the Sages to institute laws, be they kum ve-aseh (positive commands) or shev ve-al ta’aseh (negative commands), according to their times. And I have found no indication in the Rishonim [the Minchas Chinuch was apparently unaware of the Ramban cited below] that such an action would be included in the prohibition of bal tosif, since this involves only adding onto a mitzvah of the Torah.”

The Ramban’s Opinion

On the other hand, the view of the Ramban (Commentary on the Torah, Devarim 4:2) is to the contrary: “And I believe that even the invention of a totally new mitzvah, for instance the institution of a new festival which one invents oneself, like Yeravam did, transgresses the prohibition [of bal tosif].”

As the source of his position, the Ramban quotes the above-mentioned Gemara concerning the enactment of reading the Megillah. After noting the enactment, the Gemara writes: “What is the source? … If when we were redeemed from slavery to freedom we recited praise, should we not do so in celebration of being saved from death and granted life?”

To clarify his source, the Ramban (after adding a quote from the Yerushalmi) explains: “This [enactment of the] commandment would have been forbidden to them [had a Torah source not been found]. Thus it falls into the category of bal tosif .”

If no Torah source or proof could be found to allow the institution of Purim, the enactment would be a transgression of bal tosif.

According to the Ramban, it thus emerges that the central prohibition of bal tosif is adding to the mitzvos of the Torah, and the reason why the Sages could add rabbinic mitzvos is that they drew on Torah sources.

The Rambam’s Opinion

The Rambam’s opinion, which is cited by the Shulchan Aruch (see below), is of particular interest.

The Rambam actually discusses the prohibition of bal tosif twice in his Mishneh Torah, and appears to apply it in two very different ways. In the laws relating to Birkas Kohanim (Nesi’as Kapayim 14:12) the Rambam writes that the Kohanim may not add their own blessings beyond the three verses, since doing so would involve a transgression of bal tosif. This ruling is based on the Talmudic discussion of the issue, as presented by the Gemara in Rosh Hashanah (28a).

However, in Hilchos Mamrim (2:9) the Rambam approaches the concept of bal tosif from a different angle, raising the question of why the safeguards enacted by the Sages to safeguard Torah law do not transgress bal tosif. The question clearly assumes that bal tosif is not limited to cases in which something is added within a mitzvah, but applies even to the addition of an extra mitzvah to the Torah.

In answering the question the Rambam writes that rabbinic enactments do not violate bal tosif because they were instituted as rabbinic enactments rather than as Torah law itself. The Sages made no attempt to endow their legislation with the status of Biblical law, and rabbinic enactments are indeed treated more leniently than Torah law in several respects, most prominently in situations of doubt: For Torah law, in cases of doubt we assume the stringent position, whereas for rabbinic enactments we assume the lenient possibility.

In this sense, making additional safeguards is a great mitzvah – the Gemara writes (based on a verse in Vayikra) that we are obligated to make “a safeguard for My charge” (Yevamos 21a), and doing so can be essential for the upkeep of the Torah.

However, if the Sages issued a command and afforded it the status of Torah law, the Rambam would consider this to be in violation of bal tosif. As noted above, the Raavad disputes this position, and rules that the prohibition of bal tosif does not apply to the addition of a new mitzvah but only to additions onto already existing mitzvos.

The Perfect Torah

A number of later commentaries have suggested that the Rambam derived his view from the two instances where this prohibition appears in the Torah. Later in Devarim (13:1), Moshe repeats his warning against adding upon the Torah’s laws. It is therefore possible that the two warnings of bal tosif present two different aspects of the prohibition: one which forbids introducing new mitzvos, and a second which forbids adding onto the requirements of existing mitzvos.

Indeed, the Rambam actually cites different verses in the two contexts mentioned above. Concerning the halachah of Birkas Kohanim, the Rambam cites the verse from Parashas Va-Eschanan (“lo tosifu“), whereas in concerning adding a new mitzvah he cites the later verse from Parashas Re’ei (“lo toseif alav“). It stands to reason that this difference is intentional, and that the Rabmam understood that each verse implies a different aspect of the prohibition.

In fact, the Vilna Gaon is cited by a number of sefarim (see Ha-Kesav Ve-Hakabbala and Torah Temimah) as suggesting the same idea, but in the reverse direction: The verse in Re’ei refers to adding onto existing mitzvos, and the verse in Va-Eschanan refers to creating new mitzvos.

One way or the other, according to the Rambam the principle that emerges from the prohibition of bal tosif is that we are commanded to refrain from tinkering with the Divine perfection of the Torah. It is only forbidden to add onto the Torah if the addition is attached onto the Torah itself, for by so doing one effectively modifies the Torah (whether in the form of a new mitzvah, or a change to an existing one).

Although the Sages are charged with erecting safeguards for the Torah, these safeguards must remain external to the Torah, and cannot be presented as part of Torah itself.

The Dispute between the Chasam Sofer and Maharatz Chajes

In the context of the Rambam, it is fascinating to note the criticism leveled by Maharatz (Rabbi Zvi Hirsch) Chajes against a well-known ruling of the Chasam Sofer. One of the battlegrounds of the Chasam Sofer against the new spirit of the Reform movement related to the question of immediate burial of the dead.

The civil authorities had ruled that it was forbidden to bury anyone immediately after death, for fear that a person might be buried alive. Whereas the modernizing Jews of the time wished to accept the decree and refrain from immediate burial, the consensus of leading European rabbinic authorities was that the decree should be opposed, since it contravenes the halachic principle of immediate burial (a dead person must not be left overnight unburied under normal circumstances).

The Maharatz Chajes, however, was of the opinion that one can be lenient on the matter, explaining (Darchei Hora’ah, Siman 3) that the prohibition is of rabbinic nature, and the Rabbis were not particular about it in extraneous conditions such as significant monetary loss.

The Chasam Sofer (Yorah Deoh 338) objected to this line of reasoning on the grounds that “leaving the dead overnight involves a positive and negative Torah commandment, for this is at least the opinion of the Ramban… You [Maharatz Chajes] have relied on the deferred opinion of the Chavas Yair (no. 139) who rules that the prohibition is only rabbinic, but we do not publicize this opinion, for many today say that they are not concerned for rabbinic law, since Hashem did not command it” (cited by Mahartz Chajes, Darchei Horaah, Siman 6).

The Chasam Sofer points out that it is wrong to publicize the opinion of the Chavas Yair (whereby leaving a body overnight is a rabbinic prohibition), because it is likely to strengthen the position of the modernizing Jews who wished to comply with the authorities. In a similar vein, the Chasam Sofer criticizes a teshuvah of the Noda Biyhuda, who cites an opinion of the Or Zarua whereby writing in non-Hebrew script on Shabbos is prohibited on a rabbinic level alone. It is wrong to publicize this opinion, for it can lead to a weakening in Shabbos observance.

Although these statements refer to minority opinions, Maharatz Chajes relates to the general approach of raising a rabbinic prohibition to the level of a Torah injunction:

“In my opinion, this decision, which involves relating to a rabbinic prohibition as a Torah injunction, is not right … for  although the Sages use superlatives to indicate the severity of different prohibitions, this is different from stating that a rabbinic prohibition is a Torah law. The Rambam writes of this that doing so violates bal tosif, and it is also included in the obligation to distance oneself from falsehood. Moreover, the Sages were always careful to clarify which law is of Torah origin and which is rabbinic, even where the distinction has no practical ramification.”

The Chasam Sofer actually was not guilty of violating the prohibition of bal tosif because he maintained that delaying burial unnecessarily is a true Torah prohibition.

It is interesting to note, by way of conclusion, a novel interpretation of the verse that the Maharam Schik (Avos 1:1) cites from the Chasam Sofer. According to his reading, the verse can mean a future promise, rather than an instruction: “If all Israel is holy, all of them serving Hashem from young to old – upon this the verse writes ‘You shall not add’ – meaning that there will not be any need for additions to distance people from transgression.”

May the promise – as based on the Chasam Sofer’s reading – be speedily fulfilled.

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