על מחילת משלוח מנות

רמ"א או"ח סימן תרצה "ואם שולח מנות לרעהו והוא אינו רוצה לקבלם או מוחל לו יצא"

The Chasam Sofer writes (Shu"t 196) that it would appear from this that the Rema agrees to the Manos Halevi who explains that the main reason for the Mitzva of Mishloach Manos is in order to increase the general goodwill and unity in order to counter Hamans accusation that the Jews are a "scattered nation" (implying that they lack in unity and therefore can be easily overcome) as opposed to the reasoning of the Terumas HaDeshen that it is in order to make sure that everyone has what to eat for the Seudah for in this case his friend refuses to accept so the purpose of ensuring food for the Seudah is not fulfilled but the purpose of unity is for is it not written "It is the thought that counts". The Chasam Sofer wonders on what basis the Rema chose the reasoning of the Manot Halevi over that of the Terumat HaDeshen.

My master and teacher the great Gaon R' Asher Weiss, May he live and be well, points to many difficulties with this interpretation. First, we have no reason to believe that the Rema ever saw the book of Alqabets (Manot Halevi) who was his contemporary. Second, even had he seen it, the very idea that the Rema would have based his Halachot on the book of vertlach of (who with all due respect was not quite on the level of the Terumat Hadeshen) Alqabets is unthinkable. In general the Rema focuses on the teachings of the Ashkenzim (such as the Terumas HaDeshen) and he would be unlikely to base himself the interpretation of Alqabets who was a Sephardi. Besides for all this, this isn't the correct explanation of the Passuk, according to the Peshat. The simple interpretation is that Haman was telling Achasverush that the destruction of the Jews would not cause a specific land to be devastated since they are spread out in many lands. Certainly within the seventy sides of the Torah, each side of which the Gra explains has 613 gates there is room for this explanation as well but it is not the plain meaning of the Passuk. (Note: that the Bach does make use of this Manot Halevi but it is difficult to explain this to be the understanding of the Rema.)

Further, one needs to explain an apparent redundancy in the Rema's language, he refers to his friend "not wanting to accept" and "forgiving" the gift. If one doesn't want to accept then obviously you are forgiving and so vice versa. What is the difference between these two categories?

The Mishna Berurah has already noted this difficulty:

מ"ב-או מוחל לו-ר"ל שאומר הריני כאלו התקבלתי

R' Asher suggests (based on this) that whereas a "Mechila" is a rejection in a friendly manner. "Thank you, but I have no need of it. I feel as thankful to you as if I had accepted it, a refusal to accept is a rejection, as if to say "why you are you sending me this nonesense, I have no need of it." Certainly, that type of response will not increase any friendship, so we see that the Manot Halevi's reasoning is claerly not very relevant. Rather, the reasoning of the Terumas HaDeshen is more relevant. The main thing is to make sure everyone has food available for the Seudah, as long as you checked up on your neighbour and made sure he had what to eat you have already fulfilled the Mitvah, even if he refuses to accept.

R' Yaakov Kamenetzky in his Emet L' Yaakov points out (in many places) that the Posekim write in the order of "לא זו אף זו". Accordng to R' Asher's explanation, "refusal to accept" is clearly a greater chiddush then Mechila would be and therefore should be mentioned last.

I'd like to suggest another possible explanation. I would suggest that the "not willing to accept" refers to a case where I actually prepared the Mishloach Manot but the other person refused to accept. In the case of Mechila, I did not even put together a Mishloach Manot, rather I met him the street and expressed a desire to send him Mishloach Manot to which he replied that he already has enough for the Seudah. The word Mechila implies forgiving an obligation (in this case my desire to fulfill my Mitzvoh through him) , rather then a specific object - V'Dok.

Revelation Restored?

I admit before I begin that I have not yet read Halivni's book, all I've found is this article so I may be missing something.

Halivni's thesis, as I understand it, is that Ezra had a less then perfect copy of the Torah (we can say that the periods of the bad kings caused difficulty in its transmission or something like that) at his disposal and that he made use of a certain level of editorial discretion in order to place it together.

I'd like to focus on one of his proofs, the baraita in Avot D' R' Nosson 34:4.
Marc Shapiro has already cited it here -http://www.yutorah.org/showShiur.cfm/704648//The_Last_Word_in_Jewish_Theology?_Maimonidies pg. 200 and I'm to lazy to retype it.

I honestly don't think that this Baraita supports a theory that anywhere near as radical as that espoused by Halivni. If you look at the examples cited earlier in the Baraita, they are all relatively innocuous. In most cases, we have a passuk that isn't entirely clear and the dot is meant to stress that the sentence is to be understood in a certain manner, thus by Pesach when it refers to the a "far way" the dot tells you that it isn't very far but anything out of the Azarah counts as far, etc.

That being the case the conclusion should be understood likewise. Ezra had a perfectly whole text. What Moshe (so the Binyan Yehoshua understands it (She'Lo K'Dr. Shapiro), for what has Eliyahu to do with the text of the Torah.) means to ask is that given that the statement is unclear (far can be understood as being very far, Esav's kiss might be thought to be in earnest, etc.) he should have used the power of Tikkun Soferim vested within him (There is a nice overview of this at Seforim - here) in order to clarify the text. To which Ezra responds that rather then using the more radical method of Tikkun Soferim he chose to put the dots on the letters to signify that they should not be understood simply.

See the Binyan Yehoshua there who takes this approach. While there is still a certain level of radicalism even in this, it's a far cry from the great building that Halivni builds on top of this Baraita.

Nusach Acher - hopefully a bit clearer:

As I understand Halivni takes from this baraisa two things.

1.Ezra had an imperfect copy of the Torah.

2. He made use of his editorial skills to patch together the incomplete text he had.

I just don't think that the ten examples the Baraisa brings show anything near this. We have no reason to assume that the word "neshika" by Esav is a mistake. All the dot is signifying is that there is a deeper (Midrashic?) meaning. That applies to most of the cases. As I understand it the text at then end is merely saying that Ezra could have used the relatively minor power of Tikkun Soferim in order to clarify the texts. Maybe add or remove a word here or there. Certainly its still a Chiddush, but Halivni seems to be jumping the gun and from a few unclear pesukim he creates an text "maculated beyond repair"? From the ability to move a letter here or there he gives Ezra full editorial discretion.

Purim Torah - courtesy of Herodotus and Chacham Faur

Herodotus tells us that Persians “are extremely fond of wine;” indeed, “it is usual for them to be drunk,” particularly “when they are debating the most important issues.” They attach so much importance to inebriation that “any issues they debate when sober are reconsidered by them when they are drunk.”


Herodotus Histories, I, 133, p. 61. It is now clear why Esther had to arrange two separate drinking parties. Since she obtained permission from the king to invite Haman when the king was not inebriated (see Est. 5:4), it was not official. Therefore she organized the first party in order to receive permission from the king to invite Haman when the king was inebriated (see Est. 5:7-8). Once official permission was obtained, she organized a second drinking party to present accusation against Haman (see Est. 7:2-5). This is why, although the king had granted Haman permission to kill the Jews (see Est. 3:8-11), he was furious [1] when he learned that Haman wanted to proceed with his plan (see Est. 7:5-7), although permission was granted when he was sober. It is worth noting that the Shiites in Iran reject the tradition ascertaining that Mohamed had forbidden to drink wine.

See here.

[1] The Malbim has a different explanation I cited it here.

הרהורי עבירה קשים מעבירה

הרהורי עבירה קשים מעבירה (יומא כ"ט)- אולי מפני שכיון שכבר הרהור והתאוה בערה בו א"א לעכב עצמו והוא קצת בגדר אונס ואין להאשים לו כ"כ אבל הטענה עליו הוא שלא מנע עצמו מההרור שזה היה בידו

A contradiction in the legal thought of R Akiva?

ב"ק פ' החובל צ: והכה איש את רעהו באבן או באגרוף שמעון התימני אומר מה אגרוף מיוחד שמסור לעדה ולעדים אף כל שמסור לעדה ולעדים פרט לשיצתה מתחת יד העדים אמר לו ר"ע וכי בפני ב"ד הכהו שיודעין כמה הכהו ועל מה הכהו אם על שוקו או ציפר נפשו ועוד הרי שדחף את חבירו מראש הגג או מראש הבירה ומת בית דין הולכין אצל בירה או בירה הולכת אצל בית דין ועוד אם נפלה חוזר ובונה אלא מה אגרוף מיוחד שהוא מסור לעדים אף כל שהוא מסור לעדים פרט לכשיצתה אבן מתחת ידו של מכה פטור

מכות ז. ר"ט ור"ע אומר אלו היינו בסנהדרין לא נהרג אדם מעולם ומפ' בגמ'-ראיתם טריפה הרג או שלם הרג

In the second source R' Akiva insists on an impossible piece of evidence in order to aquit the defendant. In the first, R' Akiva rejects Shimon HaTeimani's exegesis precisely because it requires an unreasonable piece of evidence. How can we reconcile these two apparenly contradictory stances of R' Akiva?

What bothers people about Artscroll?

Encyclopedia Judaica 07' - s.v. Artscroll

"Despite – or perhaps, because of – its considerable market successes, ArtScroll is no stranger to controversy. The press has in fact been a key touchstone in recent struggles among ḥaredi and non-ḥaredi Jews for authority to interpret the sources of legitimate knowledge and practice in Jewish texts and in public life. On the one hand, there exists a significant population for whom ArtScroll books are narrowly "ideological" and are seen to promulgate interpretations of Jewish tradition associated with what some describe as the demagoguery of the ḥaredi yeshivah world. ArtScroll 's detractors have thus expressed considerable indignation over the way the press translates Jewish texts, as well as its method of selecting commentaries from classical sources, and even the wording of ArtScroll 's own commentaries (a famous case is the debate over the translation of Shir ha-Shirim, which presents an allegorical rendering of God's relation to Israel rather than a literal, sensual translation). Others have criticized ArtScroll for legitimating the Jewish reader's reliance upon the English language at the expense of leshon ha-kodesh, enabling one to appear well versed in Jewish knowledge without having made the requisite effort to engage with the original sources"

s.v. Nosson Scherman

"Despite what outsiders may think, even the rejectionist Orthodox community that does not embrace modern culture has, perhaps inadvertently, acculturated itself to the offerings and packaging of the American marketplace."

"Modern Orthodox scholars have not been uncritical of ArtScroll's success. Its historical studies are wrapped, not in Western scholarship, but in hagiography; it seems as if every fervently Orthodox leader or rabbi is without blemish. Others on the right criticize it for enabling and empowering English rather than Yiddish or Hebrew to be the language of contemporary learning."

Was hat der Mussar von Benjamin Franklin aufgenommen?

"Benjamin Franklin in Jewish Eastern Europe: Cultural Appropriation in the Age of the Enlightenment," Journal of the History of Ideas 61.1 (January, 2000): 133-152.

Did the Amoraim study Taharos and Zeraim?

R' Reuvein Margoles in his Yesod HaMishn V'Arichoso has a brilliant chiddush on this. There are many places in Shas where the word תניא is used to introduce a Mishna. The Mesoras HaShas generally changes this to תנן but it is difficult to make so many emendations. R' Margolies suggests that the Amoraim were in fact not experts in the Sedarim of Zeraim and Taharot - see for example Bava Metzia 114b:

בפרק המקבל, אשכחיה רבה בר אבוה לאליהו דקאי בבית הקברות של גוים אמר ליה ולאו מר כהן הוא מאי טעמא קאי בבית הקברות. אמר ליה ולאו מיתני מר סדר טהרות דתניא ר' שמעון בן יוחאי קברי גוים אין מטמאין. א"ל בארבע לא מצינא (ר"ל בארבעה סדרים איני מצוי) בשיתא מצינא (בששה אהיה מצוי בתמיה). א"ל אמאי. א"ל דחיקא לי מילתא טובא (כי היה עני)

ופירש"י וז"ל: בגירסא דארבעה סדרין, כגון מועד ישועות נשים שהן נוהגות בזמן הזה כבזמן הבית, וקדשים נמי כדכתיב ובכל מקום מוקטר מוגש לשמי ואמרינן (מנחות קי, א): אלו תלמידי חכמים העוסקין בהלכות עבודה בכל מקום - מעלה עליהן הכתוב כאילו מקריבין אותן בבית המקדש

Therefore it says Tanya (it was learnt) as opposed to תנן (we have learnt) on those Sedarim that not all Amoraim were experts on.

I'd like to add to his proofs that both Rashi and Tosafos seem to have been aware of this fact. Thus, Tosafos Yevamos 15a s.v. Eiruv writes "but we learnt in Taharot and it is also brought in Gittin" - Why do we need the extra citation of Gittin- if not for the difficult status of Taharos.

See also Tosafos to Shabbos 44a s.v. D'Kuli Alma and Gilyon Hashas - s.v. Hava Yoda for several other sources where it would appear that the Amoraim were not aware of Mishnayos in these Sedarim.

Rashi sometimes writes - "it is a Mishna in such and such" when involving Mishnayot in Taharos or Zeraim. Even though Rashi does not usually find it necessary to point this out in other Sedarim. See for example Rashi 54a V'HaTanan - U'Mishna Zu B'Mesecthos Kilayim)

[Update:A commenter has pointed out that in Megillah 28b we have yet another reference to four sedarim/

Despite all this, I must admit that Tosafos in two places - Chulllin 110b s.v. D'Tenan, Bava Metzia 114b s.v. Hochi Garsinan - writes that even Taharos and Zeraim were "Shagur B' Pihem". Despite this, I still believe that Tosafos (see above) would agree that Taharos and Zeraim were in a seperate class, above a Baraisa but below the standar four sedarim.]

ר' צבי הירש חיות על הרבנות

ואם הם יודעין ב' סימנים ביורה דעה, ולא יודעין שדוד מלך אחר שאול, אז הם ראוין להיות רב בישראל

מתוך הביוגרפיה של בית-הלוי

Islam according to Halacha

I once read that the reason that Muslims pray five times a day is that Islam was influenced by the traditions of the Jews that remained in Israel. In Israel they used to say Krias Shema at Netz then later on they would daven Shacharis, Minchah, Maariv and then again Kriash Shema later at night for a total of five seperate prayers.

The difficult Rambam in H. Rotze'ach 1:9 - the problem

The remaining difficulty is what is the difference between a fetus and a "Yotzo Rosho" that the first is a Rodef and the second is not. We will go through two explanations here[1].

We will start with the explanation of R’ Chaim (on the Rambam). Briefly stated every Rodef involves two dinim – 1. to save the Nirdaf [2] 2. to punish the Rodef –his life is forfeit.

R’ Chaim first proves that a fetus has the status of a Nefesh albeit not the same as a full human. Therefore the Rambam needed the explanation of Rodef for otherwise one cannot kill a “Nefesh”. This involves the first “din”. Once the fetus sticks out its head it reaches the status of a full Nefesh and the difficulty of “Ain Dochin Nefesh M’Pnei Nefesh” comes into play. An ordinary Rodef forfeits his right to life as a punishment for his intent to kill (the second “din”) but in the case of a baby where there is no intention to kill the second din does not come into play leaving us with the obstacle of “Ain Dochin…”.

The Seridei Eish is unhappy with this explanation. He admits that from a logical perspective of view R’ Chaim’s explanation is excellent but he feels that this cannot be the correct explanation of the “historical” Rambam. This is for the simple reason that we have no source for this “din” that the Rodef forfeits his life.

In an ultimate twist of irony, the explanation that the Seridei Eish himself proposes was already suggested (in part) by – R’ Chaim (this time in Grach Al HaShas also quoted in Even HaAzel). He cites the Rambam in Chovel U’ Mazik 8:16:

ספינה שחישבה להישבר מכובד המשאוי, ועמד אחד מהן והקל ממשאה, והשליך בים--פטור: שהמשא שבה כמו רודף אחריהם להורגם, ומצוה רבה עשה שהשליך והושיעם.

In this case the Rambam is using the term Rodef based on the Talmud Bava Kama which uses the same expression. The Rambam rules that even in a case of Pikuach Nefesh one still has to pay for any losses involved. The heter of Rodef frees one from having to pay for the donkey. The SE suggests that the Rambam is using Rodef solely to remove the obligation to pay the husband for the fetus.

This explanation is challenged by R’ Yaakov Kaminetsky ( Emes L’ Yaakov Nashim Nezikin). First, the Rambam is not talking about the payment of דמי ולדות. The Rambam in Hilchos Rotzeach is focusing on the problem of murder, not payment. According to the SE, the term מותר is problematic. If we were discussing monetary problems then the correct term should be “פטור”. Finally, the Rambam’s לפיכך is difficult. This implies a direct connection with the earlier Halacha. Not with a Halacha in farraway Chovel U’ Mazik. For this reason (and the fact that the SE doesn’t recognize the Rambam’s source as per the previous post) the SE’s explanation is difficult.

[1] See Prof. Steinberg's Encyclopedia of Medical Halacha (Heb.) S.V. Ubbar, and Hapalah for a complete discussion of all aspects of this problem.

[2] According to R' Chaim this is different then the regular heter of Pikuach Nefesh for it applies to a non-Jew as well for whom the law of Pikuach Nefesh does not apply. The Chazon Ish rejects this for the Gemara in Yoma (85b) tries to use Rodef as a source for Pikuach Nefesh as a whole proving that Rodef is in fact similar to the typical Pikuach Nefesh. I do not understand the Chazon Ish's difficulty. R' Chaim will simply answer that every Rodef contains within in it two-dinim 1- to remove the problem of "Ain Dochin Nefesh.." and this is different then every other Pikuach Nefesh. 2- that we overide the prohibition against murder and it is from this second din that the Gemara in Yoma attempts to learn out to all types of Pikuach Nefesh.

The difficult Rambam in H. Rotze'ach 1:9 - Source

My thanks for all the comments on the previous post.

To clear up some points. My point in note four has already been discussed Dr. Isadore Twersky's book on the Yad in the chapter on Law and Philosophy[1]. David Guttman pointed out that in Shemonah Perakim the Rambam translates Hakol B'yedei Shamayim as Tivo Shel Olam as well which would strengthen my point.

The first difficulty on this Rambam is that the “simple” interpretation of the Mishna is that a fetus does not have the status of a life (as Rashi explain). This is supported by the wording “her life precedes his” which implies that a fetus does not have the status of a full life. The second difficulty (that we shall discuss soon) strengthened the difficulty, for why did the Rambam choose a difficult explanation that is not fully supported by the Talmud.

David Guttman suggested that the Rambam is forced into this based on his position that it is forbidden to “heal” oneself by transgressing the three central sins. R’ Unterman zt”l (Noam Vol. 7- perhaps in Shevet M’ Yehuda as well?) makes a similar point. Therefore the Rambam could not permit a transgression against murder without the special heter of Rodef. This point in and of itself is insufficient. For the view of Rashi is that a fetus is not a life at all and therefore the prohibition against murder is irrelevant to our case.

Further, R’ Zevin (review of Rambam and Mechilta D’Rashbi) has differentiated between an argument and a source. That is one can convincingly argue that the Rambam was forced to hold a certain position based on a “L’Shitosoi” and the like but we need a definite source for this position. The Rambam almost never wrote Halachos without a source. Each Halacha is based on a particular passage in the Talmud or more rarely on a Geonic ruling. We need to find a Talmudic source that applies Rodef to this particular case.

In truth, the source for this Rambam is very simple. So very simple that I am astounded that none of the many great Geonim that have studied this Rambam appear to have noticed this explanation.

R’ Kappach has stressed the importance of studying the Sugya without learning any of the commentaries. Once you learn a Sugya according to Rashi’s explanation you internalize to an extent that you cannot see any other understanding of the Sugya. This prevents you from recognising alternative understandings of the Sugya such as the Rambam may have had [2].

The Gemara finds R’ Hunna’s statement (on the issue of Rodef) difficult because it contradicts the Mishna in Oholus. The implicit assumption of the Gemara in comparing these two sources is that the Mishna in Oholus also involves a question of Rodef. The Gemara never retracts that comparison.

Rather, the Gemara says that the end of that Mishna is not difficult because “Shmaya Ka’Radfi Loh”. That is, this part of the Mishna refers to a different type of Rodef [3]. The first part of the Mishna would remain with the standard heter of Rodef.

This is clearly the Kesef Mishna's understanding of the Rambam as well. This is why he quotes the entire sugya as a source for this Rambam. Otherwise he should have divided the Mishna in Oholos for the first part of the Rambam and the end of the sugya for the second part of the Rambam. See there and you will see it is like I say. (He rules like this Rambam in SA CM 425)

[1] My thanks to Dr. Shapiro for this reference.

[2] The one commentary that should be focused on is Rabbenu Chananel. For the Rambam seemed to have studied the Gemara using this commentary.

[3] Note that even in the Gemara's answer the key word "Rodef" (Radfi) is still used.

The difficult Rambam in H. Rotze'ach 1:9 [1] - Introduction

I have previously discussed the problem of the Rambam’s "deviations in the Mishnah Torah from the reasons for a particular law given in the Talmud." The most probable explanation lies in the combination of reasons quoted here -

רדיפת הפשט, מסירות לערכים פילוסופיים, ומוכנותו לסמוך על הירושלמי לעומת הבבלי, תכונות שתרמו ליצירת דעותיו המקוריות של הרמב"ם, גם כשאלה חלוקות על דברי חז"ל במקומות שונים. בבואו ליישם נטיות אלה (אשר תיאר בהרחבה) לנידון שלפנינו כותב סייקס:

הרמב"ם הרגיש בפערים בין המקורות לפירושים שניתנו להם, וכתוצאה מכך דחה לעתים את פירושי הגמרא והחזיר עטרה ליושנה, בפרשו את המקור כפשוטו. אחרים לא הרגישו שפערים כאלה קיימים, ולכן לא היתה להם הבעיה הזאת

This explanation would seem to me to be the most correct, and can best be supported from what we know of the Rambam himself. Each case still needs to be viewed individually to decide which particular reason motivated the Rambam to deviate from the accepted reasoning.

The Rambam (Nothing I write here is of any relevance to practical Halacha. I am not authorized to do so and in any event have not had the chance to fully analyse all of the sources.) that I have found most puzzling in this regard is the Rambam in Hilchos Rotzeach 1:9:

אף זו מצות לא תעשה שלא לחוס על נפש הרודף, לפיכך הורו חכמים שהעובר שהיא מקשה לילד מותר לחתוך העובר במעיה בין בסם בין ביד מפני שהוא כרודף אחריה להורגה, ואם משהוציא ראשו אין נוגעין בו שאין דוחין נפש מפני נפש וזהו טבעו של עולם עכ"ל:

The difficulty,as usual, is that the Rambam provides a reason that differs from that of the Talmud:

בסנהדרין דף ע"ב [ע"ב] אמר ר"ה קטן הרודף ניתן להצילו בנפשו וכו', איתיביה ר"ח לר"ה יצא ראשו אין נוגעין בו לפי שאין דוחין נפש מפני נפש ואמאי רודף הוא, שאני התם דמשמיא קא רדפי לה

It would seem clear that according to this Sugya a fetus is not considered a Rodef. Rather the mother's danger is a purely natural occurrence, an "Act of God", and therefore the status of Rodef does not apply here. Permission to abort the fetus is given (as Rashi explains) based on the fact that a fetus simply does not have the status of a full human and therefore there is no prohibition against killing it. This view that the fetus does not have human status is supported by other Talmudic sources . [2] Although it is certainly forbidden to abort except under severe circumstances this is based on the relatively lighter [3] prohibition against wasting seed.

Thus it is difficult to understand why the Rambam brings the Rodef status of the fetus into the equation. This view of the Rambam has severe Halachic consequences for according to the Rambam it would be forbidden to abort except in a case of a “clear and present danger” to the life of the mother (when the status of Rodef comes into play) but in a case where for example prenatal testing reveals that the fetus has an unbearable genetic defect that would render its life very difficult, or in a case that would involve a psychological (rather then a physical) danger to the mother it would be forbidden to abort.

I find this Rambam particularly difficult because the Rambam would seem to agree with the reasoning of the Talmud. In the next line the Rambam writes:

ואם משהוציא ראשו אין נוגעין בו שאין דוחין נפש מפני נפש וזהו טבעו של עולם

Here the Rambam refers to the mother’s danger as a natural occurence[4], clearly agreeing with the simple understanding of the Talmud that there is no human "Rodef" involved. We are left wondering why before the birth does have a “Rodef” status.

We cannot say that the Rambam deviates from the Talmud for any of the reasons mentioned above because it is clear that the Rambam accepts the Talmud’s reasoning thus we must look elsewhere to explain this difficulty in the Rambam.

R’ Moshe Feinstein (Igrot Moshe V. 2 Choshen Misphat No. 69) has an interesting introductory remark on this problem. He writes that since the Raavid, the Kesef Mishna, etc. all passed over this particular Rambam without comment it is clear that they had some simple method of understanding the Rambam and the answer must be clear and simple not involving any complicated casuistry.

The Rambam has provided us with a hint by his opening term - לפיכך - it would seem that there must be some connection between the first part of his statement –

אף זו מצות לא תעשה שלא לחוס על נפש הרודף

and the status of Rodef mentioned in the second part of the statement.

I will try to review the various approaches of the traditional commentaries (in particular the brilliant explanation of R' Chaim Soloveitchik) on this difficult Rambam in a future installment.

[1] My last attempt to reasearch a difficult Rambam as far as I can is here. My assumption was that with all of the many books written on the Yad over the past millenium it should be easy to gather all the necessary info to resolve almost any specific Halacha. As it happens I was wrong. I did not find what would be (to my mind) as satisfactory resolution. I did notice something interesting. The Rambam mentions the Kutim (Samaritans) only twice in the entire Yad (except for those places where it was changes by the Censor), one of them is his programmatic statement in H. Avodim that Kutim have the status of Gentiles, the other in the Rambam I was working with. In that Halacha there would seem to have been no reason to mention them. The Rambam in his commentary to Mishnayot mentions Kutim in the Mishna dealing with that same Halacha (This is not the first mention of Kutim in the Mishna and I do not know why the Rambam doesn't discuss them in the earlier Mishna in that same chapter.) This would seem to imply some very close connection between his commentary on the Mishna and his arrangement of the Yad.

[2]See for example TB Arachin 7a – that states that a pregnant woman who is sentenced to capital punishment is executed right away. We do not wait for the fetus to be born. Proof that a fetus does not have a status of a “life”. I will expand on this in the next installment.

[3]Cf. the Zohar - which states that this is the most severe sin of all. But see R' Yaakov Emden "Mitpachat Soferim" who disagrees and demonstrates that it is not all that severe.

[4] Of particular interest is that the Talmud's term - שמיא קרדפי לה is changed by the Rambam to זהו טבעו של עולם. Clearly the Rambam was disturbed by the anthropomorphic expression that "Heaven is Rodef her" and he therefore changed it to the less mystical "this is the way of the world". Clearly there is a greater connection between the Yad and the Morah Nevuchim then one might have imagined. On the Mishna Torah as a "translation" of the Talmud see C. Tchernowitz Toledot HaPosekim V. 1.

[5]The Rambam’s general methodology was far from complicated casuistries in any event.

R' Chaim Hirschenson on the Besht

חידושי רח"ה חלק ג דף כא

הזכרתו את שיטת הבעש"ט זצ"ל, נראה אשר כתר"ה שליט"א נמשך אחר שטת הסופרים החדשים המיחסים שיטה להבעד"ט , אך אין דעתי נוטה לזה, כי הבעש"ט אפ' אם נעשה נפש מכל ההגדות עליו, הנפש הזה לא היה פילוסוף אגם לא חוקר, רק איש האלהים מלא רגשי קדש, רגשי אלקות, ואם נסכים לדעת הרלב"ג ז"ל כי הנביאים היה להם גם בטבעם תכונה לנביאה והכנה בנפשם שתתגלה נבואתו יתברך עליהם, נוכל לומר שאם היה הבעש"ט חי בעת אשר נבואה היתה בישראל ובא"י היתה אולי שורה גם עליו, כי תכונה זו היתה ברגשותיו הקדושים אבל לא שיטה, שיטה יכולים ליחס לתלתידיו הגאון רש"ז ז"ל ולהגר"א ז"ל, לא להבעש"ט כי דבריו המה רגשי לב והארה אלקית רגעי, ודבריהם המה חקר שדי ובכלל לכל שיטה צריך להיות הליכה לשיטתו ואין כזה בהגדות הסותרות לרוב האחת את השניה

An attempt at a rough translation:

You mentioned the "Shita" (philosophical system) of the Besht. It would seem you take the position of the modern writers who attribute to the Besht a specific system. I do not agree with this. Even if we were to try to gather together an understanding of the personality of the Besht from various tales, this personality was not an analytical philosopher. The Besht was a "man of God", suffused with emotions of the ineffable, of holiness. If we were to agree with the Ralbag that certain people have certain natural qualities that enable them to attain prophecy from God, then we can say that certainly if the Besht had lived in the times of the Prophets, in the Land of Israel, He would have been a prophet. Because this quality [of a sense for the ineffable] was within him, not a system. His student the "Baal HaTanya" and the Gr"a, had a Shita. For the Besht 's attributes was of the emotional, of flashes of spiritual inspiration whereas theirs [The Gra and the Tanya] consisted of an religious system. In any event, a system requires a consistent text, not conflicting and contradictory tales.