The Source for Gid Hanasheh — Matan Torah or Parshat Vayishlach?

עַל כֵּן לֹא יֹאכְלוּ בְנֵי יִשְׂרָאֵל אֶת גִּיד הַנָּשֶׁה:

Therefore, the Children of Israel will not eat the gid hanasheh. (Bereishit 32:33)

In discussing this sugya of gid hanasheh, the Rambam lays down a fundamental principle regarding Torah Min HaShamayim, which is based on the following Mishnah in Masechet Chullin (perek 7 mishnah 6):

נוהג בטהורה ואינו נוהג בטמאה, ר' יהודה אומר אף בטמאה. אמר ר' יהודה, והלא על בני יעקב נאסר גיד הנשה ועדיין בהמה טמאה מותרת להם! אמרו לו: מסיני נאסר אלא שנכתב במקומו.

(The prohibition of gid hanasheh) applies to a kosher animal, but not to a non-kosher animal. R’ Yehudah says, even to a non-kosher animal. Said R’ Yehudah, “Behold, the gid hanasheh was prohibited to the sons of Yaakov, when non-kosher animals were still permissible to them!”[1] They said to him, “It was stated at Sinai, but was written in its place.”[2]

The Rambam’s Principle

The final words of the Mishnah teach us than when we speak of “Sinai” in terms of whether something preceded it, we need to differentiate between the event of Matan Torah at Sinai, and the parshah dealing with that event as written in the Torah. The Rambam writes in his Peirush HaMishnayot (Chullin ibid.):

Pay careful attention to this fundamental principle, namely, when (Chazal) say “It was prohibited at Sinai.” You need to know that all the things we do or refrain from doing[3] are based solely on Hashem’s command through Moshe, not on His command to any of the Nevi’im who preceded him.[4] For example, when we refrain from eating ever min hachai,[5] it is not because Hashem forbade Bnei Noach to eat ever min hachai, but because Moshe forbade ever min hachai to us based on the command he received at Sinai that ever min hachai should remain forbidden.

Similarly, we do not perform milah because Avraham performed milah on himself and the members of his household, but rather because Hashem commanded us through Moshe to perform milah as Avraham did.

The same is true regarding gid hanasheh. We do not refrain from eating it by virtue of a prohibition to Yaakov Avinu, but rather on account of the command of Moshe Rabbeinu. Indeed, you will note that they (Chazal) said (Makkot 23b), “Six hundred and thirteen mitzvot were said to Moshe at Sinai,” and all of these[6] are included in those mitzvot.

Let us indeed endeavor to pay careful attention to this major principle taught to us by the Rambam. It is true that we are descended from Avraham Avinu who was commanded with the mitzvah of milah. Moreover, Hashem praised Avraham over the fact that he would “יְצַוֶּה אֶת בָּנָיו וְאֶת בֵּיתוֹ אַחֲרָיו וְשָׁמְרוּ דֶּרֶךְ ה' — command his children and household after him that they keep the way of Hashem” (Bereishit 18:19). Indeed, Avraham’s children, grandchildren, and subsequent generations until Matan Torah all performed milah based on the command that he received from Hashem. However, the source which obligates us today in that mitzvah is Ma’amad Har Sinai, where we personally witnessed Hashem telling Moshe to command us regarding the Taryag Mitzvot, among which was the mitzvah of milah.

In this respect, the term “Sinai” represents a certain event at a certain time, where we received the mitzvot. Thus, when we speak of “Torah MiSinai,” we are referring to the contents of the mitzvot that we received at Sinai.

Torah MiSinai and Torah Min HaShamayim

It is worthwhile clarifying that alongside the concept of “Torah MiSinai,” we have the concept of “Torah min HaShamayim.” When we speak of the entire Torah being given at Sinai, there is no way we can be referring to the text of the Chumash in its entirety, for many of the sections written in the Torah describe episodes that had not yet happened when we were at Sinai,[7] and it is impossible that we would have access to the Torah’s account of these things at that time. Rather, what was given to us in its entirety at Sinai was the body of Taryag Mitzvot.[8] The giving over of the text of Torah was something that took place later on, either in stages or all at the end.[9] This process of “dictation” is described by the Ramban in his introduction to his peirush on the Torah, “However, this is true and clear, that the entire Torah, from the beginning of Sefer Bereishit until “לְעֵינֵי כָּל יִשְׂרָאֵל,” came from Hashem’s “Mouth” to Moshe’s ear.” In this sense, we could say that the term “Torah MiSinai” refers to Torah SheBaal Peh — the contents of the mitzvot, and “Torah min HaShamayim” refers to Torah Shebichtav — the written text of the Torah.

Before Matan Torah vs. Before Parshat Yitro

We return now to the words of the Rambam, that what obligates us in the mitzvah of milah is not Hashem’s command to Avraham, but His command to us through Moshe at Sinai. Here we ask the following question. If this is the case, why does the Rambam (Sefer HaMitzvot, mitzvat aseh 215) quote as the source in the Torah for the mitzvah of milah the pasuk in Parshat Lech Lecha (Bereishit 17:10) “הִמּוֹל לָכֶם כָּל זָכָר — circumcise for yourselves every male,” which was said to Avraham before Matan Torah, and not the pasuk in Parshat Tazria (Vayikra 12:3) “וּבַיּוֹם הַשְּׁמִינִי יִמּוֹל בְּשַׂר עָרְלָתוֹ — and on the eighth day the flesh of his orlah shall be circumcised,” which was said after Matan Torah?

The answer to this question is that we need to distinguish between “before Matan Torah” as an event in our history, and “before Parshat Yitro” in the text of the Chumash. Both Parshat Lech Lecha and Parshat Tazria are part of Matan Torah!

It is true that “we do not learn halachah from prior to Matan Torah,” (Yerushalmi Moed Katan 3:5). However, we do learn halachah from a pasuk that is written before Parshat Yitro. The full concept of “Matan Torah” encompasses both the Taryag Mitzvot given to us baal peh at Sinai and the Torah from “בְּרֵאשִׁית” until “לְעֵינֵי כָּל יִשְׂרָאֵל” which was given to us subsequently in the Midbar. Thus, the source for a mitzvah can also be traced back to a pasuk in a parshah that is dealing with the period before Matan Torah, for that pasuk was also given to us as part of Matan Torah!

As long as something is written as a tzivui — command, it can be the source for a mitzvah, even if it appears before Parshat Yitro. Conversely, something that is written in narrative form cannot be the source of a mitzvah even if it is written after Matan Torah, for example, the Torah’s description of Pinchas killing Zimri (Bamidbar 25:1–8). The determining factor is thus signon (form), not location. To borrow the words of the Rambam, “Pay careful attention to this fundamental principle!”

In this regard, it is most interesting to consider the words of the Sefer HaChinuch concerning the source for the prohibition of gid hanasheh:

Mitzvah number three; Not to eat from the gid hanasheh, as it says “Therefore Bnei Yisrael will not eat the gid hanasheh.” These words “לֹא יֹאכְלוּ — they will not eat” were not said as a narrative, as if to say, since this episode happened to the father, the children refrain from eating the gid hanasheh. Rather, they are Hashem’s command that it not be eaten.

We see that the Sefer HaChinuch is more interested in the signon of these words — that is, that they are a tzivui — and less so in their location.[10]

[1] [In which case the prohibition, when initially stated, certainly applied to both types of animals.]

[2] [Which means that the prohibition applies specifically to animals that are permitted to Bnei Yisrael at the time of Matan Torah, that is, kosher animals only.]

[3] That is, positive and negative mitzvot.

[4] Such as Noach or the Avot.

[5] [A limb from a live animal, one of the seven mitzvot of Bnei Noach]

[6] Mentioned above: ever min hachai, milah, gid hanasheh.

[7] For example, the Chet Ha’Egel and the Chet HaMeraglim.

[8] See Masechet Zevachim 115b where the Gemara quotes a machloket between R’ Akiva and R’ Yishmael as to whether the details of the mitzvot were also given at Sinai, or just the general aspects of the mitzvot.

[9] See Masechet Gittin 60a where the Gemara discusses if the text of the Torah was given “מגילה מגילה — scroll by scroll” or “חתומה — as one unit.”

[10] In this respect, perhaps we may suggest that the pasuk can be understood on two levels. On the level of pshat we can understand that the words “לֹא יֹאכְלוּ — they will not eat” are a description of the practice of “בְנֵי יִשְׂרָאֵל,” which in this sense refer to Yisrael’s (that is, Yaakov’s) sons prior to Matan Torah. On the level of Midrash, the words “לֹא יֹאכְלוּ” constitute a prohibition for “בְנֵי יִשְׂרָאֵל,” the People of Israel after Matan Torah. As we will discuss (see the opening chapter in Parshat Mishpatim), it is possible to learn the same pasuk in terms of halachah on both a pshat and drash level, provided they do not contradict each other. This is the case here, where the pshat refers to the time before Matan Torah, and the drash to the time afterward.