Leviticus: 27:34 These are the commandments that God commanded Moshe to [tell] the Children of Israel
Shabbos 104a: “these are the commandments” – from here [we learn] that henceforth a prophet may not declare any new laws.
Translation of Torah Temimah’s Comment in Note 216: Moshe was the only legislator of the Torah in its essence. All the prophets after him only came to explain and to exhort [the people to follow] the Torah of Moshe. This is also according to the translation of the Targum Yonatan who translated “These are the laws that God commanded Moshe, it is no longer possible to command new laws from their מדעם [their own thinking].
It appears at first [superficial] glance that a prophet is not allowed to create new laws, but if he were reinstituting an old law that had been forgotten for many years, then this prohibition would not apply due to the fact that actually this particular law had been essentially commanded through Moshe. However, this is not the case. We see this in the Gemora Temurah 16a where it mentions the fact that 3,000 laws were forgotten in the days during which the Jews were mourning the death of Moshe. [After the mourning period ended] the people requested that Joshua ask the Urim and Tumim [for the laws]. Joshua responded that the Torah is not in heaven. [Later], the people asked Shmuel to ask [the Urim and Tumim] and Shmuel responded to them “these are the commandments; a prophet may not declare any new laws”. Behold, [the Gemora] explicitly states, therefore, that even to renew laws that had been forgotten is not permitted. Perhaps one can explain the inclusion of these types of laws in the prohibition as being due to the fact that we no longer know the exact root of these laws, and since the new law is now coming to use fundamentally through the thought of the new prophet, it is therefore considering in the category of a “new law”.
On the other hand, see the discussion in Gemora Megilla 3, where it is discussing this issue of prophets declaring new laws. In that Gemora, it asks how it can be since “a prophet may not declare any new laws”. In Megilla, the response is that these laws are different since they were forgotten and the prophet is not only returning and re-establishing them. In other words, since the prophet is not decreeing totally new laws, only re-establishing old ones, they are not included in the prohibition mentioned above. Apparently this is a complete contradiction from the Gemora Temurah that we quoted above where it says that reinstituting old laws is included in this prohibition!
In order to reconcile these two Gemoras, one needs to explain as follows: There are two methods for a prophet to reinstitute old, forgotten laws. One method is through prophesy and the other method is through the general methods of Torah analysis and logic as with any other Torah scholar. This being the case, this issue now becomes clear. Returning old, forgotten laws through the general methods of Torah analysis and logic certainly would be permitted since a prophet is not less competent than any other scholar who knows the wisdom of Torah. In this method there is not even a hint of prohibition. Only through returning old laws through prophesy is there a prohibition.
Therefore, according to this explanation, the Gemora in Tractate Megilla [which said it is permissible] is dealing with the case where a prophet renewed old laws through the methods and principles of Torah analysis which is certainly a permissible approach. In the Gemora in Tractate Temurah, the situation is one where the prophet is attempting to restore an old law through prophesy. This is shown by the fact that they asked Joshua and Shmuel to ask the Urim and Tumim. This explanation is slightly forced.
Also, keep in mind that which it says in many places in the Gemora, “when Eliyahu comes, the exact law will be made clear”. The intent of this statement is not that Eliyahu will reveal the law through prophesy. This can’t be the case since he would have no permission to do this, as we just explained. Rather, the intent is that through the heavenly spirit that is resting on him, the depths of wisdom will be revealed and Eliyahu will then clarify the law through the general methods and principles of Torah. Eliyahu will thus remove arguments and mistakes; this will result in an ability to truly clarify the law. This explanation also helps explain the intent of the Mishna at the end of Ediyot where it says “Eliyahu is not coming to clarify what is pure vs. what is impure; rather he is coming to bring peace to the world”. That is to say, Eliyahu will not reveal laws to teach about purity and impurity through is prophetic powers. Instead he will make peace between [groups] that argue. He will do this by clarifying the logical arguments behind the disagreements to such an extent that each group of scholars will admit [to the wisdom] of the others. After that happens, automatically everything will be clarified and the true law will come as a result.
See what is written in Gemora Yoma 75a as follows: “Our Rabbis taught: ‘Gad’ i.e., the manna resembled the seed of flax in its capsules. Others say: ‘Gad’ i.e., it was like a tale, which draws the heart of man, even like water.Another [Baraitha] taught: ‘Gad’, because it revealed to Israel whether the child was one of nine months’ pregnancy from the first husband, or of seven months’ [pregnancy] from the second.‘White’,because it makes white [cleanses] the sins of Israel. It was taught: R. Jose said: Even as the prophet would tell Israel what is to be found in clefts or holes so would the manna reveal to Israel what is to ‘be found in clefts or holes’. How that? If, e.g.,two men came before Moses with a law-suit, one saying: You have stolen my servant, the other saying: You have sold him to me, Moses would say to them: Tomorrow judgment will be pronounced. Tomorrow, then: If his [the slave’s] ‘omer was found in the house of his first master, it was evidence that the other one had stolen him; if it was found in the house of his second master, that was proof that the former had sold him to the latter.”
The book Kafot Tamarim asks how it is possible in the above Gemora that Moshe relied on this heavenly clarification. Doesn’t this go against the principle of “Torah is not in heaven”? Further, doesn’t it say in Gemora Yevamos 102b that if Eliyahu would come and declare that it is permitted to do halitzah with a sandal that we should not listen to him due to the principle of “Torah is not in heaven”.
However, in my opinion all of these questions are not even close to valid questions. The prohibition of a prophet not creating new laws only applies in the cases where there is a doubt as to what the law is or in cases as we explained above. But in situations of clarifying a fact or revealing a situation, certainly it would be permitted to rely on a prophet. We find this situation in the Gemora Bechoros 24a, the following sentences: “And, moreover, if it is according to the Rabbis, why ‘Until he come and teaches righteousness to you’? ‘Until it be known to you’ is what is required?” Rashi there explains that this means that the Messiah will come and reveal the facts of the case. It is clear from this Rashi that we can rely on a prophet to reveal facts and situations. Also, look in the book “Meleches Machshavos” where he writes in Chapter 9 at the end of Halacha 6 of Ishut what he writes on this matter. What he writes there is not clear and according to our opinion this is simple and clear.
In addition to what is above, according to our explanation of the statement that a prophet is not allowed to create any new laws [that is to say, from the time of Moshe and onwards], Moshe however certainly could do this. This being the case, the Gemora brought above from Yoma took place through Moshe. That being the case, there should be no question at all about the reasoning behind that Gemora.
Know, further, that clearly all the ‘fences’ and ‘decrees’ [that prophets and sages have decreed] do not fit into this category of a ‘prophet is not allowed to create new laws’. Quite the opposite, actually. Rather, these decrees and ‘fences’ are fulfilling a commandment straight from the Torah itself as it says in Leviticus 18:30: “You shall diligently guard my charge…” This is taken to mean “you should make a protection for my protections”. Therefore, this [Torah] commandment is the reason why we find that, in fact, many decrees and fences were decreed [even] by prophets.
Examine the Rambam in Chapter 9:1 in the Book “Principles of the Torah” (התורה יסודי) where he explains at great length regarding this particular principle (of a prophet not being able to decree new laws through prophecy.) It is astounding that the Rambam brings as a support for this principle the posuk of “Torah is not in heaven” as opposed to mentioning our posuk “these are the commandments” which is explicitly cited many times in the Gemora as the source for this principle. Investigate further what the Lechem Mishna says. Additionally, one can also say that included in his words are the concepts of “not adding nor subtracting from the Torah” as is explained in Parshat VeEtchanan. The Ramban in his commentary writes that the prohibition of “not adding nor subtracting from the Torah” relates to the particulars of known commandments. For example, [such items as the following would be included] – don’t have 5 strings in tzitzit or 5 parchments in the tefillin. However, according to the Ramban, our posuk of “these are the commandments” is specifically talking about the prohibition of creating new laws that have never been known before [at all].
In the opinion of the Rambam [who is disagreeing with the Ramban in this particular point], he feels that [creating new laws and adding to or subtracting details from existing laws] are really [different aspects] of one principle. It is merely [a happenstance] that the Torat Cohanim attributes this principle to the posuk of “these are the commandments” while in the Mishnah Torah (Sefer Devarim) [this same principle] is attributed to the posuk of “thou shalt not add or subtract from the commandments”. This difference in attributing principles to different posukim [or changing of phraseology] between the Torat Cohanim and the Mishnah Torah occurs a lot in various wordings and teachings. We need not lengthen this discussion any further.
Editor’s note: Besides being a long note, this essay of the Torah Temimah contains a wonderful exposition on the purpose and value of the Messiah coming. The Torah Temimah quotes the famous Mishnah that the Messiah is not coming to clarify laws and details relating to ritual purity and impurity but rather to bring peace to the world.