Kitvei Kodesh Part 1

  • Rav Mordechai Friedman
Kitvei kodesh have always traditionally been treated with the respect reserved for objects of sanctity.  In this article we will focus on these texts, aside from the sanctity of God's name (kedushat shem Hashem).
What invests kitvei kodesh with their special status?  Understanding the halakhic nature of the sanctity of kitvei kodesh will help us define which texts belong to this classification as well as understand many specific halakhot.
In the article entitled "On the Nature of the Prohibition of Lo Ta'aseh Ken La-Hashem" we focused purely on shem Hashem, the written name of God.  We raised the possibility of two different formulations as to the nature of the Torah prohibition of "lo ta'aseh ken" (Devarim 12:4).  The first understanding suggests that the prohibition to erase a shem Hashem relates to destroying any object with CONTENT that is associated with God. The second understanding is that the Torah prohibition relates only to an object that is actually invested with the status of kedushat Hashem.
We pointed out that the Rambam, in his Sefer Ha-Mitzvot,[1] adopts the first model (that of symbolic CONTENT) when he ruled that the issur includes, among other things, the destruction of batei knesset.  However, in the Mishneh Torah the Rambam seems to have modified his position and accepts the second model (which includes only objects that have been sanctified to Hashem).  He thus includes the atzei ha-mizbe'ach but excludes batei knesset.
Another difference stemming from this alternate model is that the Rambam allowed the burning of shemot Hashem written by an apikoros (a heretic) since the apikoros lacked the proper "intention to sanctify" God's name as he committed it to writing.  Thus, such a Sefer Torah, although ostensibly identical with a kosher one and equally symbolic of God, lacks inherent sanctity (kedusha) and therefore does not carry the prohibition of "lo ta'aseh ken."
More relevant to our current discussion is a third halakha that hinges on this issue.  In Sefer Ha-Mitzvot, the Rambam seems to include sifrei nevua in the Torah prohibition.  In the Mishneh Torah,[2] however, he rules that only the destruction of Gods written name falls under the Torah prohibition.  The destruction of kitvei ha-kodesh alone (without shem Hashem) receives Rabinically required lashes.  This is in line with our two formulations.  Symbolically - all kitvei kodesh have a symbolic association with Hashem, thus in the Sefer Ha-Mitzvot, when the Rambam viewed the prohibition to be content based, sifrei nevua are included due to their content.  In the Mishneh Torah, in his modified position that the prohibition relates only to objects with kedushat ha-cheftza sifrei nevua are included only on the level of a Rabbinical prohibition.
(We may be quick to draw the conclusion that according to the Rambam, on the Torah level only shem Hashem is kadosh, and anything else - a Sefer Torah without shemot Hashem or Neviim without shemot - lack sanctity.  It is quite possible, however, that there are a number of types, or levels, of kedusha.  Kitvei kodesh might not have the special status of kedushat Hashem that is specifically relevant to "lo ta'aseh ken," and yet still have a different type of kedusha.  It is not an all or nothing - holy or mundane – situation.[3]
In short, if we would accept the "symbolic content" understanding of the issur, then a vast array of objects, possibly including batei knesset, any Torah related newspaper articles, or a student's notes from a shiur would carry a Torah restriction of "lo ta'aseh ken".  If we hold like the "inherent sanctity" model, then the above examples are not included on the Torah level of "lo ta'aseh ken".[4]
The Rabbinical Prohibition and Its Nature
As quoted above, the Rambam ruled that "all kitvei kodesh, their commentaries and explanations are prohibited to be burnt or destroyed, and one who actively destroys them receives Rabbinically required lashes."  What is the nature of this issur de-rabbanan?
Let us look at the possibilities:
We can suggest the possibility that these texts actually have a Torah level of kedusha.  The reason that there is no Torah level punishment could be that only the prohibition to destroy shem Hashem is explicit enough in the Torah to require the punishment of Torah lashes.[5]
On the other hand, if we accept it to be purely an issur mi-derabbanan, we can discuss the same two approaches that we offered for the Torah level:
1. The Rabbis felt a need to require people to show formal respect toward objects that are symbolically associated with God and/or His Torah; or
2. Chazal gave these texts a kedusha parallel to the shem Hashem – kedushat ha-cheftza.
To sum up our query: Does the Rabbinical prohibition that forbids the destruction of kitvei kodesh (other than shem Hashem) stem from an inherent kedusha of the object (kedushat ha-hefetza) or solely its symbolic content?  (This simplification is for the sake of clarity; we will see that there are other possibilities that don't fit neatly into this chakira.)
A number of questions may pivot upon this distinction:
Which texts are included in this issur?
Is a sanctifying act or intent required during their production?
Do these texts require the same formal/technical requirements of a Sefer Torah in order to attain a special status?
Can these texts affect (sanctify) other objects?
Practically, how must we treat these texts?
Is non-degrading erasure permitted?
Is burial with a talmid chakham required?
Are we allowed to place mundane objects on top of them?
Are there special geniza (halakhically permissible storage) requirements?
Texts Included in the Rabbinical Prohibition
The Rambam (Hilkhot Yesodei Ha-Torah 6:8) states:
"All kitvei kodesh and their commentaries and explanations ("be'ureihem") are prohibited to be burnt or directly destroyed.  One who directly destroys them, ("ve-hameabdan") receives Rabbinically required lashes."
We see that the Rambam did not limit himself to kitvei kodesh - Tanakh - but rather included their commentaries and explanations as well.  From this we can assume one of two possibilities:
1. If the prohibition is based on a status of inherent kedusha, then the Rambam is stating that ANY commentary on Tanakh, not just Torah she-bikhtav, attains this status.  This might not be limited to the universally accepted Torah she-ba'al peh (Oral Law) texts but possibly even a student's written thoughts on Torah.
2. Alternatively, we might say that a text of Torah she-ba'al peh may not be actively destroyed because it symbolizes in content the word of God.  Yet, it carries no inherent kedusha.
It is interesting to note that in a related issue, the Rambam did not expand the term "kitvei kodesh" beyond Tanakh.  The mishna (Shabbat 115a) discusses the laws pertaining to a house that catches fire on Shabbat.  Chazal prohibit a person from saving the contents of his home that caught fire on Shabbat because of their concern that a person obsessed with his loss might extinguish the flames.  One exception to this prohibition is "matzilin," the saving of kitvei kodesh.
"All kitvei kodesh may be saved from the fire."  The gemara referring to this mishna states: "It is taught: 'If they were written in targum (Aramaic) or in any language - Rav Huna says: 'One may not save it from the fire.' Rav Chisda says: 'One should save it from the fire.'"[6]
Many Rishonim (among them Tosafot, the Ramban (Milchamot ad loc.), Rashba and Ran (both ad loc.) and Mordechai (396)) hold that from the moment that Chazal allowed all Torah she-ba'al peh to be written,[7] these written texts fall into the category of matzilin and may be saved from the fire.
Logically, we can assume that this conclusion of the Rishonim is based on one of the two following assumptions:
1. The law of matzilin is based on the CONTENT of the text. If it conveys Torah, Chazal allow it to be saved.  Thus, only Torah she-ba'al peh would be included.[8]
2. The law of matzilin is based on a status of inherent kedusha, and all Torah she-ba'al peh, when written, attains this kedushat ha-cheftza (intrinsic kedusha of the object).[9]
The Rambam (Hilkhot Shabbat 23:26-28) and the Rif (ad loc.) DO NOT follow the direction of the above Rishonim. They differ from them on two main points:
1. If the text is in any language other than Hebrew, we do not save it.
2. They make no mention of Talmud or any Torah she-ba'al peh texts, and thus leave the impression that these texts may not be saved.
The Ramban in his Milchamot Hashem (ad loc.) explains that the Rif did not hold that Chazal's heter of 'et la'asot' (which permitted Torah she-ba'al peh to be written down) covered translations, since Torah she-bikhtav (written Torah) was not in danger of extinction.  Thus, translations weren't in special need - "de-hefeiru Toratekha - ika, et la'asot – leika."
The status of Talmud (Torah she-ba'al peh) texts, however, which were clearly allowed to be written, prompts a question.  Why did the Rif and Rambam rule that Torah she-ba'al peh texts are not saved from a fire on Shabbat?
It is logical to conclude that they reject both possible assumptions of the other Rishonim.  Namely, the Rambam holds that:
1. The law of matzilin is NOT content based, but rather is based on a text's status of kedushat ha-cheftza, i.e. the fact that a text conveys Torah is not sufficient to include it in this heter.
2. Tanakh has kedushat ha-cheftza while other Torah texts are either devoid of this inherent kedusha or at least the type or level of kedusha of kitvei kodesh.[10]
The picture that emerges is that while the Rambam included any and all "commentaries and explanations" of kitvei kodesh under the issur de-rabbanan of "lo ta'aseh ken" - he limited the law of matzilin to the kitvei kodesh themselves.
It is possible to explain that the Rambam viewed both these areas to be dependent upon kedushat ha-cheftza - inherent sanctity of the object - and believed that there exist numerous levels of kedusha, one of shem Hashem, another of Tanakh, and yet another of written Torah she-ba'al peh.  The issur of "lo ta'aseh ken" applies to all these levels of kedusha but the heter of matzilin applies to one level of kedusha and not another.
This theory, however, contains a weakness.  Why would Chazal draw the line between one level and another (i.e. Tanakh and Talmud) in the law of matzilin?
It would seem more likely to say that the Rambam held that only Tanakh texts have kedushat ha-cheftza.  Since God intended kitvei ha-niviim to be written down, the physical form of a written text is inherently part of its identity and thus Chazal based their prohibitions on the inherent sanctity of the object.  Torah she-ba'al peh on the other hand (while in content is no less Torah than Torah she-bikhtav), lacks this God-instructed physical form.  Even when Chazal allowed its writing, they did not create a new object that parallels kitvei kodesh.
An additional difference between the text of Torah she-bikhtav and Torah she-ba'al peh, other than a divinely defined physical form, is "u-khetavtam," the directive to write the Torah.  Torah she-ba'al peh lacks this directive. 
This assumption concerning the directive to "write down" raises the suggestion that, since Nakh texts lack this directive, they do not possess the kedushat ha-cheftza of a Sefer Torah.[11]
According to this approach, the Rambam viewed the law of matzilin to be dependent upon kedushat ha-cheftza, while the Rabbinical side of "lo ta'aseh ken" was seen as a decree against an act of degrading texts whose content symbolizes God and his Torah.
This is an interesting development in understanding the Rambam.  You may recall that we pointed out at the opening of this discussion that the Rambam, in the Mishneh Torah, took the position that the Torah prohibition of erasure of God's name, "lo ta'aseh ken" was dependent upon the kedushat ha-cheftza, inherent in the written name of God, and not its symbolic content.  We now said that the Rabbinical form of "lo ta'aseh ken" is a prohibition directed against a degrading act of destruction of a text whose content symbolizes God.  In other words, the de-rabbanan is not an expansion of the de-oraita but rather innovative in its nature.
I propose that a further indication that the Rambam saw the Rabbinical form of "lo ta'aseh ken" to be different in nature to the de-oraita is the following:
In the opening of Hilkhot Yesodei Ha-Torah chapter 6, the Rambam uses the term "anyone who DESTROYS a name."  Then, in halakha 2, he uses the term "anyone who ERASES even one letter of these seven names receives [Torah] lashes."  In halakha 5 he writes, "Any other terms that are used to praise God... [other than the seven names] are like the rest of kitvei kodesh and it is permissible to erase them."  Then in halakha 8, he writes, "All kitvei kodesh, their commentaries and explanations, one is prohibited to BURN or ACTIVELY DESTROY.  One who ACTIVELY DESTROYS them receives prescribed [Rabbinical] lashes."  There appears to be a contradiction between halakha 5 and 8.
Perhaps we must differentiate between erasure and destruction.  Shem Hashem cannot be erased - mi-deoraita - while all kitvei kodesh may be erased but not actively destroyed.  The logical difference between destruction and erasure is that erasure is generally done for constructive reasons and is therefore not a degrading act per se. , [12][13]
Thus far we have made a comparison of the Rambam's rulings in two areas, lo ta'aseh ken mi-derabbanan and matzilin, and proposed an explanation that the former is dependent on content while the latter on intrinsic sanctity.  We thus explained why the Rambam expanded kitvei kodesh to include all commentaries when dealing with a content-dependent halakha, and limited kitvei kodesh to Tanakh when dealing with a kedushat ha-cheftza-dependent halakha.
The picture that emerges is that BOTH of our original models of the nature of the Rabbinical prohibition exist, each relevant in a unique area of halakha.  (We have noted, as well, the possible position of other Rishonim, that all Torah she-ba'al peh when written, attains kedushat ha-cheftza).
Tossing Kitvei Kodesh
There are quite a few halakhot unique to kitvei kodesh, some of which we will touch upon later.  The only other place (that I have found) that the Rambam mentions an expansion of the term kitvei kodesh beyond Tanakh is in his dealing with the prohibition of tossing kitvei kodesh:
In Hilkhot Sefer Torah (10:5) the Rambam writes:
"It is permissible to place a Sefer Torah on top of a Sefer Torah and, needless to say, chumashim.  One can place chumashim on top of neviim and ketuvim.  However, one may not place Nakh on top of chumashim and not chumashim on top of a Sefer Torah.  All kitvei kodesh even HALAKHOT AND AGADOT it is prohibited to toss."
The impression given is that this expansion to halakhot and agadot is specific to the latter point of tossing.  The rules of stacking a Sefer Torah, chumash and Nakh seem limited to these basic kitvei ha-kadosh alone.  Why differentiate?
This fits perfectly with our line of reasoning!  Tossing objects is an act that is degrading per se - therefore, such an action, like "ibud be-yada'im" - active destruction - is a prohibition that applies even to an object that is only symbolic of Torah in content.  Placing something on top of an object is NOT a degrading act per se.  This prohibition stems from the special intrinsic status of kedusha, the kedushat ha-cheftza of kitvei kodesh.[14]
In this first installment of the discussion, we explored the basic nature of the sanctity of kitvei kodesh apart from shem Hashem. It is possible that their sanctity and related prohibitions are of Torah level, but more likely of Rabbinical origin.  We queried: do these prohibitions stem from inherent sanctity of the object (kedushat ha-cheftza) or solely its symbolic content?
We listed a number of issues that may pivot on this query.  The first issue: which texts are included in the Rabbinical prohibition?
By examining the scope of the law of matzilin, we concluded that according to the Rambam and the Rif, 1) matzilin is based on kedushat ha-cheftza, and 2) Tanakh has the required kedushat ha-cheftza for matzilin while other written Torah texts do not.
The scope of lo ta'aseh ken mi-derabbanan, which according to the Rambam included all Torah commentaries, led us to conclude that it was a prohibition against an act of degrading texts whose CONTENT was associated with God or His Torah. 
In the second part of this article, we will discuss other issues that hinge on this query:
Is a sanctifying act or intent required during their production? 
Do these text's require the same formal/technical requirements of a Sefer Torah in order to attain a special status? 
Can these texts affect (sanctify) other objects?  Practically, how must we treat these texts?
Is non-degrading erasure permitted?
Is burial with a talmid chakham required?
Are we allowed to place mundane objects on top of them?
Are there special geniza (halakhically permissible storage) requirements?

[1] Lo Ta'aseh 65.
[2] Yesodei Ha-Torah 6:8.
[3] The Maharil ch. 192 seems to imply that other than Shem Hashem, there exists no restriction at all.
[4] In order to prove the claim that they retain a status of kedusha min ha-Torah other than "lo ta'aseh ken" – in other words, claim that their kedusha status is not of Rabbinical origin – one would need to point to some specific Torah level halakha that applies to such texts.
[5] This might explain why the Magen Avraham O.C.154 s.k.9 quotes the Sefer Ha-Mitzvot to prove that destroying any kitvei kodesh or parts of a beit knesset is an issur de-oraita of "lo ta'aseh ken" despite the fact that the Rambam, in his Mishneh Torah, cites no Torah punishment for either transgression.
[6] The simple understanding of this machloket would seem to be whether or not kitvei kodesh written in other languages retain their status of kedusha.  The gemara, however, explains the disagreement in light of Rabbi Shimon ben Gamliel's decree that kitvei kodesh may not be translated into any language (other than ancient Greek), and if unlawfully done so one may not read from those books.  Rav Huna holds not to save them due to the fact that they cannot be used.  Rav Chisda holds one must save these texts from the fire despite their obsolescence, because of the degradation caused by their burning.
[7] The gemara in Gittin 60a concludes that the reason Rav Yochanan (an early amora) read from a text of agadita is because of "et la'asot la-shem hefeiru Toratekha."  In short, Chazal allowed Torah she-ba'al peh to be written down, despite the existing issur to do so, since the alternative would be a permanent loss of Torah knowledge for the Jewish people.
[8] This approach is difficult in light of the conclusion of the gemara (115b) that a Sefer Torah that had all but 85 letters erased through wear must be saved, even if these letters do not form a coherent idea.
[9] Rav Yaakov Riecher, in his responsa "Shevut Yaakov" (Vol. I, ch. 15), offers an interesting view.  Although a Sefer Torah written by a "min" (non-believer) does not warrant salvaging from fire on Shabbat – since it lacks the proper intent of "le-shmah" – Torah she-ba'al peh written by a "min" can be saved.  His reasoning is that the kedusha of the Talmud's written form owes itself to the principle of "et la'asot la-shem."  Therefore, any text that transmits Torah fulfills Chazal's purpose and thus has kedusha - even if it lacks proper intention – and is worthy of "matzilin", being saved. It seems that the Shevut Yaakov is not saying that the status of "matzilin" is based upon the symbolic-content model, but rather the texts attain a kedushat ha-cheftza without le-shmah because of their fulfillment of a positive Rabbinic takana of "et la'asot!"  Furthermore, the Shevut Yaakov implies that the kedushat ha-cheftza can only be attained if there is some positive fulfillment in writing the text.
[10] Here we must point out that this understanding of the Rambam and Rif requires the assumption that permissible translations of kitvei kodesh - as in ancient Greek - would have inherent kedusha of kitvei ha-kodesh.  This assumption is needed in order to explain the gemara's understanding that if forbidden translations could be used, Rav Huna would hold "matzilin." See Rambam ad loc.
[11] This understanding is implied by the above mentioned Shevut Yaakov, namely that Torah she-ba'al peh texts attain kedusha because of a positive fulfillment of "et la'asot la-shem".  He assumes "et la'asot" to be more than a mere allowance of Chazal, but rather a type of commandment.
            This seems to be Rav Moshe Feinstein's z"tl line of reasoning as well.  In his Igrot Moshe (OC Vol. IV, ch. 39) he attributes kedushat kitvei kodesh only to shemot Hashem and to a Sefer Torah, tefillin and mezuzot.  According to Rav Moshe zt"l:
1. The kedusha of a Sefer Torah stems solely from the mitzvat asei to write a Sefer Torah.
2. All other sefarim that lack shem Hashem carry a different status - that of "tashmishei mitzva" (e.g. a lulav) which exists only as long as one subjectively feels he has a use for the object.  According to Rav Moshe zt"l, once a book is torn so much that the owner would no longer use the book to learn Torah, it loses its status of tashimshei mitzva and can be left outside to be collected by the refuse collectors.
[12] See Torat Gittin 20a.
[13] The Mishna Berura (in the Sha'ar Ha-Tziun 334:27) explains this Rambam differently.  Destruction is prohibited when it concerns the entire text, whereas erasure denotes partial erasure/destruction of the text.
[14] An interesting point to note is that once neviim and/or ketuvim are connected to a Torah scroll, the scroll's importance/kedusha actually drops.  It no longer has the status of a Torah.  One can no longer place the "Tanakh" on a Torah scroll (Rambam, Hilkhot Yesodei Ha-Torah 7:16).  This is a clear indication of a facet of kedusha that is independent of content, in that more content equals less kedusha!