If you are a בעל קורא, you know that the end of this week’s parasha is confusing because it’s almost but not entirely like the end of משפטים:
And if you look at the preceding paragraphs, it is clear that our parasha is repeating the many of the same topics: don’t make treaties with the Canaanites, don’t worship other gods, keep the שבת, etc. Why the repetition?
פרשת משפטים is the terms of the original ברית of מעמד הר סיני, of נעשה ונשמע. After חטא העגל, that ברית was abrogated. Even after Moshe gets ה׳ to relent on destroying the people right then and there, ה׳ points out that they cannot go back to status quo ante:
The next several paragraphs are the summary of Moshe’s 40-day renegotiation of the terms of the ברית. At the end, Moshe is told that he will get a new set of לוחות, with a new ברית:
And ה׳'s new terms are spelled out: He will exihibit more רחמים, less דין:
As Rabbi Leibtag says:
And the repetition that we noted are the new terms for בני ישראל. But they seem to be the same as the old terms. This is surprising; if ה׳ is giving up something, shouldn’t the people as well? Did Moshe read The Art of the Deal?
The key phrase that is new is שמר לך. The new ברית requires extra שמירה and that term has a specific meaning:
The term ושמרתם את משמרתי is at the end of the discussion of עריות, forbidden relationships. The gemara deals with שניות לעריות, ”secondary“ relationships that are forbidden מדרבנן, and then discusses what it means to be “מדרבנן”:
There is a lot of discussion of what an אסמכתא, a “support” means, but I would use the Ritva’s definition:
The pasuk implies that adding these extra layers of protection would be a good idea. It’s not a חובה, but עשו משמרת למשמרתי; חז״ל should create new laws. Note that this is not the source of the authority to create law; that comes from פרשת שופטים:
The requirement of שמירה adds that these מצוות דרבנן are a valuable and positive thing.
The Rambam in the introduction to the Mishna outlines five categories of הלכה, three דאוריתא and two דרבנן:
I will not deal with how the Rambam defines מנהגות except to quote Rav Shilat, that a מנהג is a תקנה that comes from popular practice:
It is clear that the Rambam distinguishes between the two different terms מצוות דרבנן: גזרות and תקנות. This distinction seem to be original to the Rambam (elsewhere the two are synonymous), but it’s a useful distinction. The גזרות would seem to be what the Mishna calls a סייג לתורה:
And the תקנות are all the other rules that חז״ל felt were necessary. But the Rambam himself says that the תקנות are סייג לתורה:
I haven’t seen this idea anywhere else, but I would consider גזרות as “fences” around the letter of the law, extra prohibitions that keep us from violating the underlying will of G-d. If writing is forbidden, then commerce is also forbidden. If building is forbidden, then handling tools is forbidden. But sometimes we end up focusing on all the external rules that we lose sight of the purpose of the law.
תקנות, on the other hand, are “fences” around the spirit of the law. They are rules that are in keeping with the intention (as understood by חז״ל) of the הלכה. Acknowledging ה׳ for the good that happens in our lives and in our history is a positive value, so we light candles on חנוכה and read the מגילה on פורים. Doing תשובה is important, so we liberalize the laws of returning stolen objects to make תשובה easier (תקנת השבים).
So how does that connect to our parasha? The new terms of the ברית after חטא העגל mean a less immediate connection with הקב״ה. Reward and punishment will not be so obvious; ה׳'s presence is blurred. That is much safer, but it puts much more responsibility in our hands and we need to be that much more careful: שמר לך את אשר אנכי מצוך היום.