Sefirat Ha-Omer Without a Beit Ha-mikdash
A quick glance at the description of the mitzva of sefirat ha-omer in parashat Emor highlights the relationship between this mitzva and the special korbanot which bracket it. On the first day of the 'omer' the korban omer (from which counting the omer derives its name) is offered, which consists of the flour derived from newly harvested barley. The Torah commands us to then count 50 days until we offer a new mincha (korban) consisting of two breads (shetei ha-lechem) baked with flour derived from newly harvested wheat. Quite different from our normal association between counting the omer and receiving the Torah, parashat Emor actually establishes the omer as an integral part of this korban sequence. Parashat Re'eh which repeats the mitzva of counting the omer makes the same association, although in a more subtle manner. Does this textual association impact upon the nature of the mitzva of sefirat ha-omer?
The most consequential application of this question would be whether counting the omer applies when the two korbanot are no longer offered - for example in our contemporary situation. The gemara in Menachot (66a) appears to address this - indirectly. Within a discussion about counting weeks and days the gemara cites the dissenting opinion of Ameimar who only counted days and not weeks since counting the omer is only 'zekher la-mikdash' a commemoration of the mikdash. Why the level of the mitzva should affect its format (days and not weeks) will be discussed later. However, the suggested conclusion is that in our day counting the omer is not de'oraita but only a rabbinic obligation to remember the practices which applied during the days of the mikdash. The previously cited positions which demanded counting of both days and weeks might have argued that indeed, even in our era without the mikdash and this series of korbanot counting the omer still applies as a biblical commandment and hence, the strict format of counting must be sustained.
This tacit dispute spurs a machloket between the Rambam and Tosafot. Adhering to Ameimar's position, Tosafot (Menachot 66a, Megilla 20b) rule that omer without its korbanot is merely rabbinic. Tosafot in Megilla thereby justify the recital of a special request that the mikdash be rebuilt (what we refer to as 'ha-rachaman hu yachazir lanu' etc.). After all, why do we not recite this when performing other mikdash-related mitzvot (particularly lulav and shofar each of which was performed under different and more elaborate terms when the mikdash was built)? Tosafot explain that unlike lulav and shofar whose performance was affected but not completely undermined by the destruction of the mikdash, omer was essentially eliminated once the mikdash was destroyed. In our day, its performance is no longer de'oraita; when reciting the omer we most acutely feel the absence of the mikdash.
Opposing Tosafot, the Rambam rules that counting the omer continues to be a biblical mitzva even in the absence of the korbanot which frame the actual counting. The Chinukh, as is his custom, agrees with the Rambam's stance when he writes that the mitzva of counting the omer applies in all places and in every era.
Interestingly enough, the Ran in the final section of his commentary to the 10th perek of Pesachim cites a fascinating midrash which describes the Jewish people counting the 50 days from the actual exodus from Egypt until Sinai - an event they had already been informed of. As this practice occurred before Har Sinai they did not have a formal mitzva to count and certainly saw their counting as independent of the korbanot. In effect, according to this midrash, the machloket between Tosafot and the Rambam can be re-articulated as follows: That there was a notion of counting independent of korbanot is unquestionable. However, did the new mitzva of counting ordained at Har Sinai base itself on that model or was a different model adopted - one which tethers counting to the sequence of korbanot in the mikdash?
Until this point we have suggested that the Rambam views counting the omer as a completely independent mitzva; this independence accounts for its longevity. Some refuse to view the Rambam in this manner preferring instead to adopt the more textually-based model of a counting associated in some way with korbanot and the accompanying agricultural process. For example, Rav Chayim claimed that even the Rambam bases counting the omer upon a korban. Indeed, the Rambam has to be understood in light of another position of his. Even though the gemara rules that the halakhic holiness of Eretz Yisrael was canceled when the Jews were expelled, the state of kedusha inhering within the mikdash can never be disrupted. This opinion – that the beit ha-mikdash retains its kedusha eternally spawned the famous and controversial position of the Rambam that in theory (assuming many other peripheral problems can be alleviated) we might be capable of offering korbanot even after the mikdash was destroyed. Hence, claimed Rav Chayim, the korbanot omer and shetei ha-lechem are still theoretically operative. For technical reasons (significant but peripheral), we can no longer offer these sacrifices. Since the cycle theoretically still exists the omer counting retains its de'oraita status.
Another approach to the Rambam is taken by the Keren Ora in his commentary to Menachot (66a). He suggests that the Rambam does indeed link the counting to an aspect of the korbanot - one which still applies. The korban omer and the shetei ha-lechem were sacrifices which were inherently linked to the various issurim associated with the new harvest. Before the korban omer was sacrificed on the second day of Pesach, no one could partake of the new harvest. In a similar manner, the first korban to be offered from the new harvest were the shetei ha-lechem. These two korbanot were then influential factors in altering the various prohibitions which pertained to the new harvest. The counting was a method of ticking off the days between the two korbanot or, more essentially, between the two issurim. According to the Keren Ora, the Rambam believes that as long as these harvest cycle issurim obtain the counting of the omer still applies in its original form. Though the actual korbanot to highlight these issurim are no longer offered the omer still should be counted. Of course, the Keren Ora's position rests upon the notion that the issur of chadash - namely, of partaking of the new harvest before the 16 day of Nissan is biblical in its severity even without a beit ha-mikdash and without the respective korbanot. This issue forms the heart of a dispute between the Vilna Gaon and the Mishkenot Yaakov.
We have detailed a machloket about the degree of integration between the counting of the omer and the korbanot which framed this period. We witnessed this machloket as it manifested itself first in the gemara Menachot and, subsequently, among the Rishonim. We then questioned whether the Rambam who rules that counting the omer is currently de'oraita ultimately granted the mitzva of counting its independent nature. According to Rav Chayim and the Keren Ora respectively, counting is still dependent upon the issurim or korbanot but is nonetheless biblical even today.
Having examined the nature of omer according to those who claim it is still de'oraita let us turn our attention to those who claim that it is derabanan. Rav Velvel (known as the Brisker Rav – one of Rav Chayim's sons) addressed the language employed by the gemara in Menachot to describe Ameimar's position that sefira only applies at a rabbinic level. The gemara mentions that it is being performed 'zekher le-mikdash' – in memory of the mikdash. Rav Velvel views this rabbinic halakha as fundamentally different from other mitzvot which Chazal decreed. This mitzva wasn't instituted by Chazal simply because the de'oraita mitzva was discontinued by the destruction of the mikdash. They sought to preserve a mitzva. Counting the omer was installed by the Chakhamim specifically to MEMORIALIZE the lost mikdash and to adequately absorb the message of the churban. It is truly as the gemara refers to it 'zekher le-mikdash' a memory to the experiences which only the mikdash enabled. For this reason, Ameimar only engaged in a partial count. Though he wanted to perform the mitzva he also wanted to appreciate the manner by which the mitzva had been reduced (from a de'oraita to a derabanan) after the churban. To indicate this deficiency, he only counted days and not weeks. Interestingly enough, Rav Velvel makes no effort to explain Ameimar's choice to omit weeks but still count days. Why did he not count weeks but not days to properly convey the loss of the mikdash? For an attempt to deal with this factor see the commentary of the Sefat Emet to Menachot.
This also allows Rav Velvel to explain the surprising lack of she-hechiyanu for the mitzva for sefira. Though the need for a separate she-hechiyanu during the entire sefira might be contended at least the first night should mandate a berakha. Rav Velvel suggests that since the mitzva memorializes the mikdash its lamenting tone would be compromised by reciting a she-hecheyanu- normally a berakha reserved exclusively for festive occasions. This mitzva is not merely a mikdash-related mitzva which the Rabbis re-instituted after the churban rendered the mitzva inapplicable. Instead, the Rabanan selected mitzvot which were central to the mikdash and preserved them to remind us about the spiritual vitality which the mikdash once provided. We are meant to bemoan the absence of the mikdash and reciting she-hecheyanu would be beside the point.