Mishneh Torah, Fasts 5

Sugya Map

• The Problem: The ontological status of the four Rabbinic fasts in the post-Second Temple era. Are they chovah (obligatory) or minhag (customary)?
• Primary Sources: Rosh HaShanah 18b; Zechariah 8:19; Mishneh Torah, Hilchot Ta’anit 5:1–20.
• Nafka Mina:
  • The "Opt-in" nature: If they are mere custom, does the individual retain the right to bypass them if they lack the "capacity" (koach)?
  • The Threshold of Mourning: Does the halacha treat these fasts as a uniform block, or is there a qualitative distinction between the Tish’ah B’Av (major) and the other three (minor/commemorative)?
  • Meta-Psak: The role of the Klal (community) in legislating obligation vs. the individual’s subjective experience of the churban.

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Text Snapshot

• MT, Fasts 5:1: "יש ימים שכל ישראל מתענין בהם מפני הצרות שאירעו בהם כדי לעורר הלבבות ולפתוח דרכי התשובה... ויהיה זה זיכרון למעשינו הרעים ומעשה אבותינו שהיה כמעשינו עתה עד שגרם להם ולנו אותן הצרות."
  • Leshon Nuance: Note the shift from "they" (ancestors) to "us" (present). The Rambam frames the fast not as a memorial for history, but as an existential mirror. The churban is not a past event; it is an ongoing state maintained by current behavior.
• MT, Fasts 5:11: "תלמידי חכמים אין נותנין שלום זה לזה בתשעה באב... אלא יושבים דווים ואבלים כאבלי אם."
  • Dikduk: The term daveem (דווים) implies not just physical pain, but a psychic wounding. The comparison to avelei em (mourners of a mother) elevates the aveilut from a generic communal duty to a visceral, personal bereavement.

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Readings

1. The Ramban: The Authority of the Sages

The Ramban in his Milhamot Hashem (ad loc. Rosh HaShanah 18b) argues that the obligation of these fasts is rooted in the Rabbinic enactment (gezeirah) which achieved the status of de-oraita through the consensus of the Jewish people. The Ramban’s chiddush is that the "custom" of the people becomes the halachic floor. Once the majority of Israel accepts the fasts—as Zechariah 8:19 implies they would—they are no longer optional. He rejects the notion that the destruction of the Temple rendered these observances reshoot (optional). For the Ramban, the churban is the defining event of Jewish history, and therefore, the mourning for it is the defining obligation of the Jewish subject.

2. The Maggid Mishneh: The "Custom" as Sovereign

The Maggid Mishneh (R. Vidal of Tolosa) offers a more nuanced reading of Rambam’s phrasing in 5:5. He suggests that the obligation—while binding—is not identical in structure to Yom Kippur. The Maggid Mishneh emphasizes that the fast of the 13th of Adar (Ta’anit Esther), in particular, rests upon a thinner historical basis than the four fasts mentioned by Zechariah. He posits that the Rambam includes the "custom of the people" as a source of law, effectively elevating minhag to the status of halacha. His chiddush is that Minhag Yisrael Torah Hi is not a slogan but a legal mechanism: once the people have "accepted" the fast, the Bet Din no longer has the authority to annul it.

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Friction: The Conflict of Mourning vs. Reality

The Kushya (The Problem of Over-Extension): If the churban is the cause, and the churban remains, why are these fasts not as stringent as Yom Kippur in every regard? If we are truly "mourning our mother" (5:11), why permit work? Why permit washing for necessity? The Rambam in 5:11 notes that talmidei chachamim must be idle, while others may work. This creates a class-based hierarchy of mourning that seems alien to the binary nature of aveilut (mourning).

The Terutz (The Resolution): The resolution lies in the Rambam’s teleology. The fasts are not for the sake of the dead (the Temple), but for the sake of the living (the penitents). As 5:1 states, the fasts are "to arouse hearts." If the entire community were forced to cease all labor, the economic collapse would trigger communal resentment rather than teshuva. Thus, the halacha calibrate the mourning to the spiritual capacity of the individual. The Talmid Chacham, whose life is dedicated to the study of the Torah (the Churban of which is the ultimate loss), is held to a higher standard of mourning because his "loss" is more intellectually and spiritually acute. The am ha-aretz is spared the full weight of the aveilut to ensure the mitzvah remains a vehicle for teshuva rather than a source of bitterness.

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Intertext

• Tanakh Parallel: Zechariah 8:19 is the pivot. The prophet promises that these fasts will become sasson v'simcha (joy and gladness). This echoes the Rambam’s conclusion (5:20) that the fasts are transient. The intertextual bridge is the concept of nif’al (passive) transformation—we do not end the fasts; the Messianic reality reconfigures them.
• SA/Responsa: Shulchan Aruch, Orach Chayim 554:24. The SA reinforces the Rambam’s warning regarding work: "Whoever works on this day will never see a sign of blessing." This is a meta-halachic sanction. It implies that the churban is not just a historical event, but a rupture in the flow of beracha (blessing) that persists until the aveilut is sincerely felt.

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Psak / Practice

In contemporary practice, the "Rambam’s Path" acts as a chumra (stringency) heuristic. While the Shulchan Aruch allows for leniencies (such as the Mishnah Berurah permitting some washing or work in specific cases), the Rambam’s insistence on the visceral nature of the mourning—specifically for talmidei chachamim—serves as a constant reminder that the churban is not a museum piece.

Meta-Psak Heuristic: When evaluating any modern innovation in ta’anit observance (e.g., modern memorial days), we use the Rambam’s 5:1 criteria: Does this day serve to "open the paths of repentance" by reflecting on our current conduct? If the answer is yes, the day attains a quasi-halachic weight. If it remains mere ceremony, it lacks the transformative power of the Rabbinic fasts.

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Takeaway

The fasts are not a rehearsal of ancient grief, but a diagnostic tool for modern failure; we fast because we are still in the exile we claim to mourn.

The churban is not behind us; it is a current, active state of disconnection that our fasts attempt to heal through the painful, necessary work of teshuva.