Chazal often link rabbinic laws to the text of the written Torah via a link called an asmakhta. The Rambam (MN 3,43) and Kuzari (3,73) explain that after the rabbinic legislature voted to enact a law, they sought a mnemonic in the written Torah. The Otzar Nechmad, a commentary on the Kuzari, explains that rabbinic laws are part of the oral Torah, and hence could not be committed to writing. The rabbis feared that their laws would be forgotten, and this fear inspired them to seek mnemonics in the written Torah.
The Otzar Nechmad’s assumption, that rabbinic legislation could not be committed to writing, is somewhat controversial. First, Rambam maintains, in his introduction to Mishneh Torah, that while the oral law could not be transmitted and disseminated in print, it nevertheless could be committed to writing as an aid to memory. Second, the Talmud (Temurah 14b) records that the oral law was sometimes even disseminated in writing, when communities were in need of halakhic guidance and no reliable messenger was available to convey that guidance verbally.
Hence, the Ritva (RH 16a) and Maharal (Be’er haGolah 1) disagree with the Rambam and Kuzari, and write that asmakhta refers not a mnemonics, but rather to the Torah’s way of hinting to the rabbis what their legislative agenda should be. Whereas for the Rambam, asmakhta is a result of legislation, for the Ritva, asmakhta is its cause.
The Ritva’s language suggests that asmakhta had a second purpose. Even if the rabbis of a given generation did not make the conduct alluded to by an asmakhta mandatory, such conduct is nonetheless appropriate for those who seek to fulfill Hashem’s every wish, no matter how minor. For example, although the Rambam (Sefer haMitzvos, lo ta’aseh 353) writes that hugging and kissing a niddah is biblically forbidden, Ramban maintains that it is only rabbinically forbidden. However, even before the rabbis legislated this prohibition, righteous people avoided affectionate contact with a niddah based on an asmakhta-like scriptural hint.
If the Torah felt that this legislation was worth enacting, why did it not enact it itself? Ramban’s language suggests that the Torah was worried that these laws would prove too difficult for most Jews to observe. Moreover, it felt that the costs of enacting such hard-to-observe laws would outweigh the benefits. However, it hinted to the rabbis that should either of these factors shift – i.e. should the Jews develop greater spiritual sensitivity and therefore be more receptive to embracing such laws, or should their self-control deteriorate to the point where continued permissiveness would lead to serious transgressions – then the rabbis are charged to enact these laws.
Elsewhere, the Ramban (Devarim 6,18) suggests a different reason why the Torah did not enact these laws itself. Since these laws are so numerous, it would take too much space for the Torah to enumerate them. Hence, the Torah sufficed by hinting at them, and left their ultimate enactment to the rabbis. These words of the Ramban resemble an argument of the Mesilas Yesharim (ch. 20) with regard to certain types of righteous conduct known as middos chassidus. Mesilas Yesharim writes that such conduct is sometimes appropriate and sometimes inappropriate, depending on a wide range of variables. It is precisely because these variables are too numerous to specify that the Torah did not make middos chassidus mandatory.
- Shlomo Wolbe (Alei Shur, vol. 2, p. 202) suggests a third reason that the Torah kept its spirit distinct from its letter. The law’s letter, writes R. Wolbe, is designed to protect its adherents from spiritual danger. This can be illustrated by the following parable. A group of developers found an oasis in the middle of a vast desert. The oasis had a bubbling stream, which watered beautiful trees and flowers. Cheerfully chirping birds came to drink from its waters and feast on the fruits of the trees. As they walked away from the oasis, the colorful flowers grew fewer and farther between, and the birdsong faded into the distance. Even further, the land was dry and desolate. And beyond that, wild animals and bandits prowled. As part of their plan to populate the oasis, the developers built a wall between the dangerous and desolate zones. The wall was designed to keep animals and bandits out, and to warn the oasis’ inhabitants to stay safely in. How bleak would be the life of a person who built his home right by the wall! Only as one moves inwards from the wall do color and song begin to surface. The laws’ letter, sometimes called din, is described by Chazal as a shurah, a line or wall. Its purpose is to protect us from danger. The Torah kept this distinct from the laws’ spirit – lifnim miShuras haDin, further in from the wall of the letter of the law – because that spirit has a different purpose entirely: to infuse the religious experience with happiness and cheer.