The G’zeirah of Midnight

The mishnah tells us (as per Rabban Gamliel) that even though the chakhamim agreed that shma could in theory be recited all night, they nonetheless instituted that it should be recited before chatzot laylah, or halakhic midnight. The nature of this g’zeirah requires some explanation.

To begin with, as the Pri Megadim (Orach Chaim, 8) observes, based on a comment of Tosafot (Menachot 68a, s.v. v’ha), it is not usual procedure for the Rabbis to institute a g’zeirah in protection of a positive mitzvah. Elsewhere (Petichah HaKollelet I, 6) he explains this fact as stemming from the Talmudic statement (Yevamot 21a) tracing g’zeirot to “U’shmartem et Mishmarti” (Vayikra 18:30) “create a mishmeret (safeguard) to my mishmeret”. As “hishamer” is a term of prohibition, only prohibitions are included in the structure of g’zeirot. (Compare Rashi, Yevamot 119a, s.v. mah, where it is suggested that the Rabbis only instituted g’zeirot to protect issurei karet). The Marpei L’Nefesh (II, 69) quotes from the B’nei Yisasschar that k’riat shma is unique, and in that it involves the acceptance of the yoke of Heaven it is treated with the severity of a prohibition.

In any event, there is some debate as to whether or not such a g’zeirah is indeed assumed to be in effect. The Rosh (I, 9) does not recognize an obligation to recite shma before chatzot (as long as major projects are not undertaken before the mitzvah. This view is accepted by his son, the Tur (Orach Chaim 235). The Rambam (Hilkhot K’riat Shma 1:9) does, however, recognize a g’zeirah. (See Responsa Beit haLevi, II, 34:2 who discusses the fact that these positions are inverted when the topic is eating matzah on Pesach night.)

If there is a g’zeirah in effect, its exact scope is the topic of some dispute. Rabbeinu Yonah maintains that according to chakhamim, the result of the g’zeirah is that it is no longer possible to fulfill the mitzvah of k’riat shma after chatzot. This is a manifestation of the ability of the Rabbis to uproot principles of the Torah under certain circumstances (Yevamot 89a-90a, analyzed at length in R. Elchanan Wasserman’s Kovetz Ha’arot, 69). The Muncazcer Rebbe (Resp. Minchat Elazar, IV, 1:7) observes that such was the assumption of Rabban Gamliel’s sons, and his response to them was a denial of that position.

The Sha’agat Aryeh (#4), among others, strongly disagreed with Rabbeinu Yonah’s assessment. . The Responsa B’er Chaim Mordechai (47) notes that this may be due to his opinion expressed in his Turei Even (Megilah 5a) that the Rabbis only uprooted biblical rules when protecting biblical prohibitions. However, the dispute is of little immediate relevance, because Rabbeinu Yonah himself rules in accordance with the opinion of Rabban Gamliel. The wider question, though, of the ability of the Rabbis to redefine a mitzvah m’d’orayta, is a topic of much discussion (see also Resp. Iggerot Moshe, O.C. IV, 105:7).

The Rambam, though, who accepts the g’zeirah, is explicit in saying that it is still possible to fulfill the mitzvah after chatzot. This is contrasted with his opinion concerning the hekter chalavim v’eivarim (the burning of the fats and the limbs from the day’s sacrifices) where he apparently believes (Hilkhot Ma’aseh HaKorbanot 4:2) that a g’zeirah is in effect absolutely limiting this procedure to before chaztot.

R. Meir Tzvi Bergman (in a lengthy exposition printed in his father-in-law’s Avi Ezri, Hil. K’riat Shma 1:9) explains that the Rambam is of the opinion that the Rabbis did not redefine mitzvot with their g’zeirot, rather they, at times, prohibited their fulfillment. In the context of the sacrifices, where there is a risk of violating the prohibition of notar (leaving elements of the sacrifices over to the next day), it is logical to assume they prohibited the performance of the duty of hekter chalavim v’eivarim after chatzot. In the context of k’riat shma, however, there is no potential prohibition being violated, only a neglected obligation. Thus, it would be logical to assume that the g’zeirah is a positive exhortation to recite shma earlier, but not a prohibition to do so later.