The Nature of Rabbinic Laws: A. Definitions (Column 582)

Dedicated to my dear daughter, Rebbetzin Rivka.

These thoughts arose in a conversation with her.

In the next two columns I wish to examine the nature of rabbinic laws (derabbanan). The motivation is a thesis that has accompanied me for quite some time: rabbinic laws are not meant to be considered “Torah” in the essential sense. They are, of course, halakhically binding, but as I shall try to show, there are parts of halakha that apply in practice and yet are not within the domain of Torah study. In my view, rabbinic laws belong to this category. I preface that to understand the thesis I will need a few preliminaries from topics discussed here in the past. Therefore, I will mostly present the points without elaboration. This column deals with definitions; in the next one I will discuss the ensuing implications.

Torah and Halakha

Rashi’s first comment on the Torah brings the question of Rabbi Yitzḥak:

“In the beginning”—Rabbi Yitzḥak said: The Torah should not have begun except (Exodus 12:2) “This month shall be for you…,” which is the first commandment with which Israel were commanded. So why did it begin with ‘In the beginning’…

The answer he gives later seems to me far less compelling than the question, but the question itself is very interesting, and it is no accident that Rashi chooses to bring it at the very beginning of his commentary on the Torah. The assumption underlying the question is that the Torah was supposed to contain only laws (halakhot), and hence Rabbi Yitzḥak’s difficulty: why add another book and a quarter. Rashi teaches us that the essence of Torah is halakha (Torah from the root meaning “instruction”). I have dealt quite a bit with the appropriate place of the other parts of Torah—biblical narratives, rabbinic aggadah, the rest of Tanakh, ethics (musar), Ḥasidic thought, Jewish thought, etc. This is not the place to expand; briefly, only halakha constitutes an expression of God’s will, and only it is unique to Judaism and Jews. Therefore only it is Torah in the object (Torah in the objective sense). Everything else is Torah in the subject (Torah in the subjective sense).

Torah in the Subject and in the Object

I must again recall my distinction between Torah be-cheftza (Torah-as-object) and Torah be-gavra (Torah-as-subject). In yeshiva terminology, the distinction between cheftza and gavra maps onto objective vs. subjective. My claim is that any field of study that enriches me and my worldview can count as Torah study be-gavra (i.e., in the subjective sense), for it deepens one’s understanding of the world the Holy One created and of one’s duties within it. But only the study of halakha (and also Scripture—though for reasons not entirely clear to me) is Torah study be-cheftza (objective Torah). It follows that domains like aggadah, ethics, Jewish thought, Ḥasidut, etc.—which many regard as part of the Torah and its study—are Torah be-gavra but not be-cheftza. I will add that, to the best of my understanding, there is no essential difference between studying the Maharal, Rav Kook, or Guide of the Perplexed, and reading Kant’s writings or studying Crime and Punishment. All of these enrich my worldview and grant insights about the world and the human being, but they are personal philosophies rooted in the thinker’s mind rather than in the Torah. In this sense, there is no fundamental difference between the thought of Maimonides and that of Kant. Both are philosophers whose words emerged from their own minds and not from the Torah; consequently, they are judged by their rational cogency, and one may accept or reject what does not seem reasonable. There are no “words of God” here, and I am not prepared to accept anything in these areas if it is not rational in my eyes. This is in contrast to halakha, where I accept the principles even without understanding, for this is the divine will—as we have understood it.

The root of the matter is that writings and claims in the realm of gavra are not interpretations of the word of God given at Sinai, but the personal thought of the author. Hence I wrote that in this there is no advantage of Jews over non-Jews. I will now add that the audience for these insights is not specifically Jews. What is true is true for all human beings, even if its source is Kant or Aristotle, and therefore it is not a uniquely Jewish matter. Conversely, what is false should be rejected even if its source is Maimonides or even the Sages. By contrast, Torah be-cheftza, by definition, is only what issues from the commandments of the Holy One at Sinai together with their interpretations throughout the generations—that is, halakha. These are (as we understand them) expressions of the divine will as He Himself articulated it. I do not mean to claim there are no disputes in halakha, or that everyone there is “right” (“These and those are the words of the living God”). My claim is that the aim of study and analysis in these areas is to decipher the word of God from Sinai. Other domains are not based on interpretation—except in a very attenuated sense. Halakha also has a particularistic dimension: its conclusions are relevant only to Jews, and therein lies its uniqueness. Therefore, Torah in its objective sense—unlike universal philosophies—is only halakha.

As R. Ḥayyim of Volozhin in Nefesh HaChaim and the author of the Tanya write, engagement with halakha and halakhic analysis is a cleaving to the divine will; and since He and His will are one, this is in fact the way to cleave to Him Himself. R. Ḥayyim writes (Sha’ar IV ch. 6) that engagement with other domains is a cleaving to the word of God, not to His will. In my formulation, he likely means Torah be-gavra and not be-cheftza.

This can be viewed from another angle, recalling what I have explained more than once: halakha and morality are two independent categories. Moral norms aim to achieve goals of improving society and the human being, whereas the commandments (including the “moral” ones) aim to achieve religious goals. In light of this distinction, we can say that the commandments given at Sinai reflect the word of God and are meant to realize religious values—or, if you wish, what kabbalistic language calls the repair of spiritual worlds (without committing to the actual existence of such worlds; that is simply the kabbalistic term for the same idea). This is in contrast to ordinary morality and values, whose purpose is to improve society and the human being. Therefore, halakha addresses only Jews and is generated only by Jews, whereas morality or thought does not address Jews specifically nor is it necessarily generated by them. They are examined by the question whether they are true or false, irrespective of the identity of their proponent. Hence they are, at best, “wisdom” rather than “Torah.”

The main implication of this distinction is that study of the domains included in Torah be-gavra is subjective: for one whom it benefits—this is Torah study for him; but someone else who engages in it because he thinks it is Torah, while in practice it does not help him and does not build his worldview—for him it may be a waste of Torah study. Studying Guide of the Perplexed or the Maharal (and likewise Part I of “Laws of the Foundations of the Torah” in Maimonides) is not essentially different from reading good literature or studying philosophy. It can be of great value, but only for one who indeed derives benefit (spiritual, intellectual, etc.). Yet not everything of value is Torah (be-cheftza). By contrast, analysis of halakha and halakhic sugyot is always Torah study—whether or not it speaks to me or enriches me, whether or not I agree with it, whether or not it is the view codified in practice. This is Torah in the objective sense, for it expresses the divine will as given at Sinai (through its interpretations over the generations), and engaging with it is cleaving to the word and will of God. In the second book of my trilogy I dealt with this distinction at length—what is included in each of these two categories and why—and I will not enter into further detail here.

All this is brought here only to say that the discussion in this column concerns what is included in Torah be-cheftza. If mathematics, logic, philosophy, and Jewish thought are Torah be-gavra, then at first glance rabbinic laws should be no worse. But the important question for us is whether they can be seen as part of Torah be-cheftza. Indeed, I will later argue more: rabbinic laws are apparently not even Torah be-gavra, but only directives that bind halakhically. First, however, I need a few more preliminaries.

Between Torah Study (or Halakhic Analysis) and Halakhic Ruling

We have seen that the essence of Torah study (be-cheftza) is halakha. I must add—as I have written more than once (see, e.g., column 479)—that Torah study is supposed to culminate in halakhic determination: le’asukei shema’ata aliba de-hilkheta, and “study that leads to deed.” But I have also argued that this does not necessarily mean the aim of study is the practical observance of halakha. On the contrary, there are strong proofs for the opposite view: study is primary; it is not merely a means for practical observance. Le’asukei shema’ata aliba de-hilkheta is not a description of means and end, but of the form of study. Torah study should end with a practical conclusion—not because study is a means to action, but because that is how one studies.

For our purposes: Torah and Torah study are exhausted by halakha, but they must not be conflated with halakhic ruling. I refer here to halakhic analysis and understanding its foundations, not necessarily to practical decision. As stated, pesika (ruling) is the final blow of the study, but not its aim.

Torah, Halakha, and Practice

Thus far we have seen that analysis in the realm of halakha is the essence of Torah—that which is not halakha is not the essence of Torah. But there is also the inverse category: halakha that is not Torah, i.e., Torah (be-cheftza) not only contracts to halakha, but in the end is narrower than halakha. For example, there are halakhic principles that recognize the validity of the state’s laws and the king’s law, communal enactments, etc. All of these bind us in practice and thus are part of halakha. Yet it is quite implausible to regard them as part of Torah. I do not think any decisor would rule to recite the blessings over Torah study for studying civil law, even though at least in monetary law, practically speaking, state law is more operative than Ḥoshen Mishpat. For example, the laws of bailees today will be determined by state law rather than by Ḥoshen Mishpat, and yet no one would consider legal studies as Torah study or recite the blessings over studying the Israeli law of bailees. But of course one certainly should recite the blessings over studying the laws of bailees in Ḥoshen Mishpat, even though those are not, practically speaking, binding.

The reason is that state laws are not the will of the Holy One and are not aimed at achieving religious goals, but at most moral and social ones. True, the obligation to obey them is the divine will, and therefore engaging in the parameters of that very obligation (the sugya of dina de-malkhuta) is, of course, Torah study. But the content of the laws themselves does not reflect the divine will and does not aim at religious ends; therefore engagement with the content of the laws is not a cleaving to His will and should not be regarded as Torah study (at least be-cheftza). The conclusion is that there is a realm within halakha—e.g., monetary law according to Israeli law—that binds us practically according to halakha but is not part of Torah. See more on this in my article “On Duties and Rights in Halakha” and in my article “Is Halakha ‘Jewish Law’?”.

If we consider moral principles, pious conduct (midat ḥasidut), and going beyond the letter of the law (lifnim mi-shurat ha-din), the picture is similar. All of these are principles that obligate us—some even on the halakhic plane (e.g., midat Sedom)—but it is hard to accept that they are Torah. I have often argued that there is no “Jewish/Torah morality” as opposed to “gentile morality.” There is morality that is right and morality that is wrong; correct morality is universal in at least two senses: its source need not be the Torah or its commentators, and it binds all humanity, not only Jews. On the contrary, the Torah says “You shall do what is right and good,” but even according to Nahmanides, who interprets this as a command to act beyond the letter of the law (and likewise “You shall be holy,” which for him instructs not to be a scoundrel within the bounds of the Torah), this does not enter the enumeration of mitzvot, for it is not part of halakha. The Torah also does not specify what is “right and good,” for it assumes that conscience is to guide us in this. Nor will I here reenter the broader discussion of why morality cannot be learned from the Torah, as it has already been discussed at length.

There is, however, a difference between morality and legal studies in that morality is indeed God’s will. Not only the obligation to obey morality, but the moral principles themselves express His desires. Still, these are not His commands and thus are not included in halakha. Nor are they designed to achieve religious aims, but social ones. Therefore, it seems to me that at most they are Torah be-gavra (hence they obligate all people, and the halakhic sages have no authority over them—unless they are incorporated into binding halakha under rabbinic law). By comparison, state laws are not even Torah be-gavra.

Another example is “a transgression for the sake of Heaven” (averah li-shmah)—see my article here. The Talmud in Nazir recognizes that in extreme situations a person should act according to his understanding even if it contravenes halakha. In my articles on this I argued that this is not a halakhic principle but an extra-halakhic one (not a principle of override like “a positive commandment overrides a negative one,” which is part of halakha). Of course, this is a practical directive, but it is not part of halakha (though perhaps it is part of Torah be-gavra). Likewise the dictum of R. Il’ai (Mo’ed Katan 16b and parallels) regarding one who sees his evil inclination overpowering him: he should go to a distant place, wear black, and do what his heart desires. This too is a practical directive (which in my understanding most decisors do not codify), but even if one rules so, it is not part of halakha (though perhaps part of Torah be-gavra).

Between the Principle and Its Applications

Consider an example that will clarify the matter further. The Torah contains the laws of vows and oaths, which instruct us to keep prohibitions and commitments we have undertaken. It is clear that study of the sugyot of vows and oaths is Torah study; but if I vowed to forbid myself benefit from “bread,” the analysis of what counts as bread of various kinds is not Torah study. It is analysis required to apply that law, but in itself it is not Torah study; at most it is a hechsher mitzvah (an instrumental means) to know how to observe the halakha.

So too regarding dina de-malkhuta. Engaging in the parameters of dina de-malkhuta is Torah and halakha in every sense. But studying the contents—that is, the king’s laws themselves (legal studies, state law)—certainly is not. Likewise for studying the parameters of communal enactments. That may be Torah study (even this I doubt—see column 164), but not analysis of the enactments themselves. And so too for engaging moral questions versus analyzing the very status of morality. Engagement with such contents is no different from studying mathematics, medicine, psychology, or the sciences when I need them to rule halakha. All these are hechsher mitzvah, important means for halakhic ruling, but they themselves are not plausibly Torah study (at least be-cheftza). Similarly, I have written and said several times that the “presumptions” appearing in the Talmud—like “a woman prefers to be married than to sit alone” (tav le-meitav tan du) or “a person does not pay back before the due date”—which are factual assertions, are not Torah. They are facts needed to rule halakha, but as facts they do not express the divine will and its commands, and therefore are not Torah. In Bava Batra 5a we are not studying the presumption that “a person does not pay before the due date.” That is a factual claim to be learned and checked in the world. What we study there is the norm that when there is a presumption, it can shift the burden of proof (see, for example, column 475 and the article here). The same holds for determining facts in a case before a court. Fact-finding is an essential part of halakhic ruling, but it is not Torah study. Torah consists of norms (commands and desires); facts are not Torah. Factual determinations and fact-finding are hechsher mitzvah—important means to halakhic ruling—but decidedly not Torah study.

Rabbinic Laws

I can now present my principal claim regarding rabbinic laws. In halakha there is validity to the decisions of the Sages (without entering here into the Rambam–Ramban dispute in the First Shoresh regarding the source of this validity), but this is no different in principle from the laws of vows or dina de-malkhuta. Engaging with the validity accorded to rabbinic enactments and decrees (their source, parameters, how they differ from de-oraita, etc.) is certainly Torah study, since we are learning the parameters of the halakhic directive “Do not turn aside” (lo tasur). But engaging with the enactments and decrees themselves is not. Understanding them is necessary in order to know how to fulfill “lo tasur” and “according to all that they instruct you,” i.e., what we must do in practice. Therefore such engagement is a hechsher mitzvah, for it is required to carry out the halakha in practice. But there is no direct divine will and cleaving to it here—just as studying Israeli law is not that. Hence engagement with these laws is not Torah study (be-cheftza).

In other words: rabbinic prohibitions do not themselves achieve religious goals; at most they serve as a fence that protects religious goals (safeguards and decrees). For example, the Sages forbade reading by candlelight on Shabbat lest one “tilt” the lamp (i.e., adjust the flame and thereby kindle/fire on Shabbat). There is no direct divine will here, for biblically there is no prohibition to read by candlelight. This means that the act in itself (reading by candlelight) is not problematic (it does not harm any religious value). The Sages forbade it out of fear that one will come to kindling, which is indeed a prohibited act by divine command and harms a religious value.

Note that when the Sages establish an enactment or decree they are not acting as interpreters of any divine command; rather, they add a new law based on their own reasoning. There is no direct, specific divine will that we not eat fowl with milk; there is only the general will that we obey the Sages. This contrasts with the Sages’ interpretations or midrashim of a verse, where they uncover the intent of the command itself and therefore it is clear that their words there are Torah be-cheftza. Engaging with their interpretations or midrash of a verse is part of engaging the intent of the verse itself; thus it is an elucidation of the divine will that should be considered Torah. Regarding enactments and decrees, there is a divine will that we obey them (hence the inquiry into the very obligation of obedience is assuredly Torah), but a given enactment or decree is not itself the divine will. Clarifying its parameters is a hechsher mitzvah, since it is needed to fulfill the halakha, but its study is not Torah study.

I will now try to enter somewhat more into the assumptions underlying the distinction between de-oraita and derabbanan, by more deeply examining the nature of biblical prohibitions; from this the meaning of rabbinic laws will emerge.

What Is a Biblical Commandment?

In his introductory “roots” to the Sefer HaMitzvot, in the Ninth Shoresh, Maimonides discusses the relationship between commands and the content of commandments. The Shoresh is divided into two parts: in the first, Maimonides states that a command repeated several times in the Torah is counted only once. The novelty, as can be seen from his wording, is that we count contents, not commands. But in the second part of the Shoresh he writes that we count a “general prohibition” (lav she-bikhlalut) only once; that is, a verse from which we derive several distinct prohibitions (e.g., “You shall not eat upon the blood”). In such a case, only one prohibition is counted in the enumeration of commandments, even though the contents are different and independent.

R. Y. F. Perla, in his commentary on Saadia Gaon’s Sefer HaMitzvot, prefaced a discussion of Maimonides’ roots. On the Ninth Shoresh he raises a contradiction between the two parts of Maimonides’ Ninth Shoresh: from the first part it appears that we count contents and not commands, but from the second part the exact opposite emerges: we count commands and not contents. He remains in need of further analysis, but the explanation seems quite simple: every enumerated mitzvah must have both its own separate command and its own separate content; if either is lacking, it is not to be counted separately. The first part of the Shoresh deals with commands without distinct contents of their own; the second deals with contents without separate commands of their own. Maimonides rules that neither is counted, since to be counted one needs both content and command. See this at length in the book Yishlach Shoreshav, in the article on the Ninth Shoresh.

I think the idea behind this requirement is that every commandment in the Torah, positive or negative, has two aspects: the spiritual benefit/harm (which is the reason we were commanded in it), and the command itself. If a person performs a commandment, he both obeys the command (obedience) and brings about the intended spiritual benefit. Conversely, if a person transgresses, he both rebels against the command and produces the harm that the command was meant to prevent. See R. Elchanan Wasserman’s essay “Teshuva” in Kovetz Ma’amarim, and see there the difficulties resolved thereby.

Interestingly, the Ritva and Tosafot ha-Rosh explain in this way the dictum (Bava Kamma 38a and parallels): “Greater is one who is commanded and acts than one who is not commanded and acts.” There is no need for all the homiletics said about this saying; its meaning is simple and follows from the above distinction: one who fulfills a commandment upon which he was commanded has two positive aspects in his act—he obeys the divine command and he performs an act with spiritual benefit. One who is not commanded but acts has only the second aspect; hence his act is of lesser greatness. See also columns 71 and 342.

Implications of the Distinction Between De-oraita and Derabbanan

An expression of this distinction appears in the words of the author of Netivot HaMishpat regarding rabbinic prohibitions. The Shulchan Aruch, Ḥoshen Mishpat 234:3, writes:

But if one sold to his fellow something whose prohibition of eating is rabbinic, if the produce still exists he returns the produce and takes his money back; but if he ate it, he has eaten, and the seller need not return him anything.

If someone sold me produce prohibited to eat by rabbinic law and I ate it, the seller does not have to give me my money back. This contrasts with biblical prohibitions, where if I ate them the seller must return my money (as stated in the Shulchan Aruch there, §2).

In the Netivot HaMishpat, in the “Bi’urim” ad loc., §3, he explains:

“The seller need not return him anything.” The Shakh (Yoreh De’ah 119:27) rules that even the difference between permitted and prohibited value need not be returned. This is hard to understand: since the sale is void, it is like one who damages or eats without a valid sale; why should he have to pay more than its value? It is possible that, whereas in biblical prohibitions even if he ate inadvertently he needs atonement and repentance to shield himself from suffering, nevertheless in a rabbinic prohibition he needs no atonement and it is as if he had not transgressed at all.

He explains that in rabbinic prohibitions, one who transgresses inadvertently needs no atonement and repentance. He then brings a proof from the sugya in Eruvin 67:

Know that we say in Eruvin 67b: in rabbinic matters we act first and only afterward raise objections. If one would be punished for inadvertence, how could they allow him to transgress and incur punishment? Rather, he is not punished at all for inadvertent transgression in a rabbinic prohibition, and for the eater it is as if he ate something permitted; hence he must pay for all the benefit he enjoyed—akin to “this one benefits and that one loses little,” for the rule is that one pays according to the benefit—whereas in a biblical prohibition, since he incurs punishment even for inadvertence, his loss is greater than his benefit.

The Gemara there says that one who sees his master transgressing a biblical prohibition must stop him and ask, so that if his master acted in error he will be prevented from sinning; but for a rabbinic transgression he should allow him to act and ask only afterward. Netivot HaMishpat explains that this is because regarding a biblical transgression there is wrongdoing even if done inadvertently, whereas regarding rabbinic transgressions, if the master transgresses them inadvertently, there is no wrongdoing at all. From here he infers that if a person ate rabbinically prohibited items inadvertently, nothing happened—he truly benefited from the produce and did not transgress any prohibition. Therefore there is no obligation to refund his money. But in biblical prohibitions, the prohibition, punishment, and suffering offset the benefit, so the seller must refund the buyer.

What is the root of the difference? In biblical prohibitions—say I ate pork—even if I did so inadvertently, spiritual harm still occurs (a religious value is violated). I committed a prohibition inadvertently. I do not incur culpability because there are mitigating circumstances, but atonement is needed. By contrast, in rabbinic prohibitions there is nothing inherently problematic in the act itself (no spiritual harm or benefit in that act). There is only an obligation of obedience (to the Sages). If I ate some rabbinic prohibition, such as fowl with milk, I did nothing inherently problematic. I simply did not obey the Sages—and that is the essence of the prohibition. Therefore, if I did so inadvertently, even that element—lack of obedience (or rebellion)—is absent, and nothing problematic remains. In halakhic terms we can say that rabbinic prohibitions are gavra-based and not cheftza-based (see also Etvan De-orayta, General Principle 10, which discusses this at length). But more precisely, these gavra-prohibitions are about the very act of obedience.

The Netivot HaMishpat’s distinction expresses a principled difference between de-oraita and derabbanan. We saw above that biblical prohibitions have something inherently problematic in themselves (issur cheftza), beyond the wrongdoing of the person who rebels against the divine command (issur gavra). By contrast, rabbinic prohibitions are not inherently problematic. Their issue is solely the lack of obedience. For example, if I read by candlelight and ended up tilting, I reached an act with spiritually problematic consequences (kindling on Shabbat). But if I read and did not tilt, nothing problematic happened, except for the failure to obey the Sages. That is the essence of a rabbinic transgression. Therefore, if I did so inadvertently, then nothing happened at all (since even lack of obedience was not present). The same with eating fowl with milk: so long as I did not come to meat with milk, there is no substantive harm—only lack of obedience; and in inadvertence, not even that.

This was apparently the basis for R. Yishmael’s decision to read by candlelight, as described in Shabbat 12b:

Rava said: If he is an important person, it is permitted. Objection: Is it not taught, “One may not read by the light of a lamp lest he tilt”? R. Yishmael ben Elisha said: I will read and will not tilt. Once he read and sought to tilt. He said: “How great are the words of the Sages, who said ‘One may not read by the lamp’s light’!” R. Natan says: He read and tilted, and wrote in his notebook: “I, Yishmael ben Elisha, read and tilted a lamp on Shabbat; when the Temple is rebuilt I will bring a fat sin-offering.” R. Abba said: R. Yishmael ben Elisha is different, since he treated himself regarding matters of Torah like an ordinary person.

An important person is permitted to read by the lamp (for he is not accustomed to adjust lamps himself), but R. Yishmael saw himself as an ordinary person included in the decree (since he arranged the lamp himself for his study). Why, then, did he initially consider tilting? So asks the author of Chazot Kashot (a work that resolves R. Akiva Eiger’s questions in order) at the end of tractate Beitzah (36a):

At first glance, the Talmud’s resolution that R. Yishmael treated himself regarding words of Torah like an ordinary person raises a difficulty: if so, what did he initially think—would he read and thereby transgress a rabbinic prohibition and be disqualified as a judge or witness like any ordinary transgressor? According to the initial objection, it is not difficult, for he regarded himself as an important person and thought like Rava that for an important person the Sages did not decree; only after he stumbled and tilted did he retract and say that the Sages decreed even for an important person. But according to the Talmud’s answer that he treated himself like an ordinary person, what did he initially think—would he transgress a rabbinic prohibition? And we cannot say he was unaware of the decree “do not read by the lamp’s light,” for from his saying “How great are the words of the Sages…” it is evident he already knew of the decree. We must therefore say that although he treated himself like an ordinary person, he initially thought that even for an ordinary person the Sages did not decree except generally; but if he would explicitly state that he would be careful not to tilt, as R. Yishmael said—then in such a case the Sages did not decree. For the very act of reading by lamp light is not inherently prohibited; only the fear lest he tilt. He did not think that since he had resolved to read and be cautious not to tilt, in such a case the Sages did not decree. Only afterward, when he saw that nonetheless he came to error and sought to tilt, did he say, “How great are the words of the Sages,” who spoke in general terms and made no distinctions. Therefore he was not disqualified as a judge or witness, since he thought he was not transgressing the words of the Sages.

And now his novel conclusion:

From this it emerges that where the Sages forbade an act which in itself is not inherently prohibited, but only out of fear that through this act one may come to a biblical prohibition—then if one transgressed the words of the Sages and did the act, he is not called a transgressor where he believed that, since he knew himself that he would not come to the biblical prohibition feared by the Sages, they permitted him to do that act which they had prohibited—as R. Yishmael initially thought, and he retracted only because he stumbled in practice. Even afterward, he has no status of a transgressor, since in fact he did not come to the biblical prohibition.

See there what he infers and how he resolves R. Akiva Eiger’s question.

In any case, we see that rabbinic prohibitions are not inherently problematic—even after being proscribed. Netivot HaMishpat writes that there is only an obligation to obey; the author of Chazot Kashot goes further and infers from the Talmud that even if one did not obey (transgressed deliberately due to a mistaken empirical assessment), there is no real prohibition. In a more extreme formulation, one could perhaps say that a rabbinic prohibition is only a warning: if he comes to transgress a biblical prohibition, he will have no claim of compulsion, since the Sages warned him. But if he does not stumble—at least where he had initially assessed that he would not stumble—he did not transgress at all.[1]

That last formulation is indeed extreme; but even without it, a principled picture emerges: biblical prohibitions have two aspects—substance and command. Rabbinic prohibitions, by contrast, lack a substantive aspect. They are a fence, a protective layer around biblical prohibitions; they have only the aspect of command.

A Fence within De-oraita?

Another expression of this emerges in Lekach Tov, General Principle 8, where he discusses whether there are safeguards (seyagim) within the biblical prohibitions themselves, or whether every safeguard, by definition, belongs to the realm of rabbinic law. The common assumption among later authorities is that safeguards belong to the rabbinic realm, since biblical law cannot consist of safeguards. Why do they assume this? What does this assumption reflect?

Simply, the assumption is that biblical prohibitions point to a substantive matter. If the Torah forbids something, it means there is something inherently problematic about it. A spiritual blemish arises that the prohibition comes to prevent. Similarly, if the Torah commands something, there is clearly some spiritual benefit that the act brings about. A safeguard, by its nature, is not inherently problematic. It is a permitted act that was forbidden out of fear that one may come to a biblical prohibition, where there is substantive problem. Therefore, a safeguard, by definition, belongs to the rabbinic realm and has no place within the biblical realm.

Thus far I have dealt with safeguards. A similar phenomenon exists with respect to rabbinic enactments.

Further Implications: Two Types of Enactments

Rabbinic enactments are not safeguards. They are acts the Sages commanded us to perform because they have value in themselves. Examples: kindling Shabbat candles, Ḥanukkah lights, reading the Megillah, netilat yadayim (ritual handwashing), reciting Hallel, and more. Seemingly, according to the above definitions, enactments should belong to the biblical realm, for they are not safeguards but acts with inherent (positive or negative) value. One must explain why they do not bind biblically—i.e., why the Torah itself did not command them—but perhaps one can say that their value is not great enough to bind biblically. If so, enactments—unlike decrees and safeguards—are laws with an inherent value (beyond the obligation of obedience). According to this, one who transgresses them inadvertently has indeed transgressed and must do repentance. Yet in light of what we saw above, it would seem that even so, there is not here an interpretation of the divine will as expressed in the Torah, but rather a reasoning by the Sages who surmise that these acts are pleasing to Him. In this sense, there is no engagement with the will of God given at Sinai; it is more akin to matters of morality (though, unlike morality, rabbinic laws do not obligate non-Jews). Therefore, it is more reasonable to classify even such enactments as Torah be-gavra.

But there is another type of enactment that belongs entirely to the category of safeguards. Consider, for example, the enactment of the oath heset or the oaths of the Mishnah (at the beginning of Shevuot 7), as well as the market enactment (takkanat ha-shuk) or the enactments for penitent thieves (takkanat ha-shavin). All these are enactments, not decrees, and yet here it seems they have no inherent content. Later authorities discussed at great length the source of such enactments (regarding heset see Beit HaLevi II §37; on takkanat ha-shuk see my article on it). The analysis is partly historical, but the discussion is complicated because—unlike other enactments (and unlike most decrees and safeguards)—it does not appear that they arose in response to a changing reality that created a new need. Their rationale existed always. Later authorities wonder how it is possible that they always existed and yet are considered rabbinic.

These discussions make an assumption which, in my view, is incorrect: that rabbinic enactments necessarily arise due to some need dictated by a change in reality. Once a need arises, the enactment is instituted. True, there are also enactments of Moses our teacher, which are ancient; yet they, too, came to address some need in his time. But in light of what we saw above, there is no need for this assumption. Take takkanat ha-shuk or heset as examples. Their rationale existed always. Takkanat ha-shuk addresses one who bought stolen property in good faith, and now the owner comes to reclaim his property. To ease commerce and dispel endless fears and suspicions in every transaction, the Sages enacted that if he bought in good faith, he need not return. In takkanat ha-shavin, even the thief himself is exempted from returning (where restitution would overburden him and prevent repentance). Heset is obligating one who totally denies a claim to swear. This did not arise because suddenly there was an increase in liars; such a fear existed always, for the possessor of property prevails without evidence, and there is a fear people will exploit this to hold property unjustly. Hence some later authorities claim that this oath is ancient (and not the “oath of the Gemara,” as it is called, as opposed to the oaths of the Mishnah).

In all these cases, one can certainly say the enactments are ancient, for the need is embedded in human nature from time immemorial. One might even say no one “enacted” them; they arose from need, full stop (by reason). Why, then, are these rabbinic laws? Because their rationale is not substantive. Takkanat ha-shuk is not some halakhic truth; it is not the correct norm in principle. It responds to a practical need stemming from human nature. The juridical truth is that the buyer should return the stolen object to its owner; but due to the difficulty, takkanat ha-shuk was established. Likewise with heset: the true law is that the possessor prevails without evidence; but there is a fear, which leads us to require an oath. Laws based on fears are laws without substantive truth behind them—no religious value or divine will—just like safeguards and decrees. Therefore they are classified as rabbinic. Biblical laws are only those that express a substantive religious value. Addressing social problems and practical needs is the Sages’ domain and thus belongs to rabbinic law.[2] In this sense these enactments resemble safeguards and decrees, for they too lack substantive content. One must discuss whether there is Torah be-gavra here—or perhaps not even that.

Later authorities divide between two types of rabbinic laws, especially regarding shevutim (Shabbat prohibitions that are not “melakhot,” commonly said to be rabbinic, though some disagree). There are shevutim whose whole point is a decree lest one come to a biblical melakha. For example, not to ride a horse lest one pluck a branch during the ride (thus reaping). The riding itself is unproblematic, except that it may lead to a biblical prohibition which is truly problematic. This prohibition is akin to safeguards and decrees as above. But there is another type of shevut, which is essentially a form of melakha—only it does not cross the biblical threshold and was therefore prohibited only rabbinically. One could call these “half-biblical prohibitions.” For example, biblically it is forbidden to separate waste from food, but the Sages also forbade separating food from waste. There is room to argue that this is not a safeguard lest one come to separate waste from food; rather, separating food from waste itself has an aspect of borer, though weaker, and was therefore prohibited rabbinically. This second category of shevutim (for those who understand them thus) resembles the first type of enactment above—those with some substantive content (albeit weaker)—i.e., perhaps they do have some element of “Torah.”

Moral prohibitions inserted by the Sages into halakha (like midat Sedom) have halakhic status because they are defined as rabbinic law; yet, as we saw, they also have substantive (moral) content—meaning that one who violates them has done something problematic. They are not merely fences to biblical prohibitions; they are problematic in themselves. Such prohibitions and commandments can also be seen as containing some element of “Torah,” but probably only Torah be-gavra.

Interim Summary: Three Degrees of Closeness to God

We learn, then, that there is a fundamental difference between biblical and rabbinic laws. Biblical laws express some truth—the will of the Holy One. Beyond the command itself, their observance brings spiritual benefit, and their violation brings spiritual harm. These are acts that repair or damage religious values. Rabbinic laws, by contrast, are essentially deviations from that truth, justified by practical considerations, and therefore they bind. One who violates them causes no spiritual harm; one who observes them brings no spiritual benefit (except perhaps for enactments of the first type), and they do not express the divine will. Rabbinic laws are a third degree in their distance from the divine will. Biblical laws are the divine will (Torah be-cheftza); the various “wisdoms” are the word of God (Torah be-gavra); and rabbinic laws are a third degree of proximity: they are part of halakha but not part of Torah (not even be-gavra).

To understand this better, I will bring the words of the Maharal in Be’er HaGolah, Second Be’er (pp. 31–32), who speaks of a leniency and a stringency in the laws of returning lost property in halakha as opposed to morality and general jurisprudence:

In Bava Metzia 21b they said there that one need not return a lost item after the owner has despaired. To people this seems far-fetched—that a person take what is not his, for which he did not toil, and covet another’s property. This is inconsistent with the discipline of civil ethics (dat ha-nimusit), for that discipline obligates returning a lost item even after the owner has despaired.

The reason is that civil ethics obligates what is proper to do for social order, even if the intellect does not obligate it—only because thus is social order. Therefore civil ethics sometimes imposes stringency in something which, according to intellect and just jurisprudence, should not be required. And sometimes civil ethics is very lenient when the thing is not needed for social order, even if it is not fitting according to intellect, only according to civil ethics.

Therefore, according to civil ethics, one must return a lost item after the owner’s despair—and this is a stringency. Conversely, if one found silver or gold vessels and announced many times and no one claimed them for a year or two, he may keep them and use them—for there is no social purpose after many announcements and waiting a year or two or more.

This is not according to the Torah: if he found silver or gold vessels and announced many times—they are forbidden to him forever; he must leave them until Elijah comes and never touch them. Here the halakha is very stringent.

All this is because the words of the Sages are according to the Torah. For all matters of Torah are measured by intellect; as is fit according to intellect, so should be done. As the verse says (Deut. 4): “You shall keep and do [them], for it is your wisdom, etc.” It is not a civil discipline that leaves matters to convention and opinion; the Torah is entirely intellectual, and it does not defer to human convention.

His terminology is confusing, for he uses “intellect” differently than we do. Morality (nimus) is not “intellect,” and the Torah (halakha) is “intellect.” His meaning is that morality seeks to create a well-ordered society but does not express truth; it is instrumentally valuable, whereas biblical halakha is not. The Torah (biblical halakha) is “intellectual” because it expresses (metaphysical) truth—the divine will.

A parallel appears in Derashot HaRan, Derush 11, where he greatly expands on this. Here I will bring only a brief excerpt:

And because of this it is possible that in some jurisprudence and laws of the aforementioned nations there is what is closer to achieving civic order than in some of the Torah’s laws. We lack nothing thereby, for whatever is lacking in that order, the king would complete. But we have a great advantage over them, because inasmuch as they are true in themselves—that is, the Torah’s judgments, as the verse says “and they shall judge the people with righteous judgment”—it follows that divine effluence cleaves to us.

He writes essentially what the Maharal wrote: halakha is not meant to achieve social order, justice, or morality, but the resting of the Shekhinah (what I have called religious values). That, for him, is what is “true in itself,” what the Maharal called truth/intellect (as opposed to social arrangements and morality). Ran adds that because of this difference, the gentile moral/juridical systems may be more complete in terms of civic order than halakha, for they aim only at that perfection. Halakha, by contrast, aims also at religious goals; thus it is natural that it will not be perfectly moral. For our purposes, his view parallels the Maharal’s: halakha is not instrumental and is not meant to achieve external social or moral goals. Its goals are religious values.

Between Norms and Facts

Note that these distinctions contrast biblical halakha (which is particularistic and rooted in the Torah’s commands) with morality and social order (which are universal domains not necessarily connected to Torah). This is essentially the distinction between Torah be-gavra and be-cheftza, that is, between two kinds of norms. By contrast, science, general philosophy, and art are Torah be-gavra of facts and insights. They reveal insights and facts about the world the Holy One created, but not norms (practical directives). These domains belong to the category of the “Ten Utterances” (creation of the world), not the “Ten Commandments” (which constitute the commands and norms).

All this concerns Torah be-cheftza versus be-gavra (in its two variants: normative and factual). But rabbinic laws belong to neither category, for they do not express any truth—neither particularistic nor universal, neither factual nor normative. We saw that what defines a rabbinic law is precisely that it does not express truth but a practical consideration that justifies deviating from truth. In this sense, it seems they are not even Torah be-gavra. Works of thought, science, morality, or general philosophy express divine truth (usually the word of God as facts; morality deals with His desires). But because it is universal rather than specifically Jewish, I classify it as Torah be-gavra. By contrast, in rabbinic laws there is no expression of truth of any sort, nor of a specific divine desire or command. They are practical directives grounded in practical considerations not anchored in metaphysical truths or divine desires. They are, of course, binding and thus part of halakha—but they do not reflect a concrete divine will (as opposed to the general will that we heed such directives) or any metaphysical truth. Therefore, they are not Torah—neither be-gavra nor be-cheftza.

In the next column I will discuss several implications of this distinction.

[1] A similar inquiry is made in Sha’arei Yosher, Gate I, regarding prohibitions in cases of doubt.

[2] The laws of thief, murderer, or damager also deal with human weaknesses, but they are not like takkanat ha-shuk or heset. A thief owes double by law, and that is the divine will. But in takkanat ha-shuk the divine will and the true law are that the buyer return the object to its owner. The market enactment that exempts him expresses a second-order law that does not express a metaphysical halakhic truth or the divine will.