Lecture from 6 Cheshvan 5768

Table of Contents

• The purpose of the roots and the count of the 613 commandments
• The fourteen roots and the number fourteen in Maimonides
• Maimonides’ methodological uniqueness and the status of the work
• The limited attention given to the roots and the way people relate to them
• The learning plan and the transition to a meta-halakhic discussion
• Philosophy of Jewish law in light of philosophy of science
• Three types of questions in the philosophy of Jewish law and examples
• The difficulty of deeper inquiry and the tendency of discussion toward the first type
• Rules versus details and the development of halakhic ways of thinking
• The hermeneutic principles, forgetting and reconstruction, and the crystallization of the rules
• Critique of formalism and the anarchism of the Talmud
• Jewish law as a language, the importance of usage, and the prohibition against ruling from the code alone
• Maimonides versus Nachmanides: rigid rules versus unruly sources
• The Mishneh Torah project and Maimonides’ plan of work
• How the roots emerge from Maimonides’ mission

Summary

General Overview

The work on the fourteen roots is meant to establish the principles according to which Maimonides constructs his count of the commandments: which commandments are included in the count, which are not, and how one actually arrives at 613 commandments on the basis of the Talmudic statement at the end of tractate Makkot that 613 commandments were said to Moses at Sinai—a premise Maimonides accepts as obvious, even though some medieval authorities (Rishonim) challenge it. Maimonides is seen as exceptional because he gives a systematic account of his basic assumptions and of his method in Jewish law and in counting the commandments, whereas halakhic scholars generally do not engage in methodological reflection on how they operate. Despite the great weight of Maimonides’ words due to his halakhic standing, the work is hardly discussed and is not even known to many people, and even in the academic world treatment of it is very sparse and focuses mainly on the first and second roots or on isolated halakhic points. The speaker intends to focus mainly on discussion of the principles themselves as Maimonides formulates them, and on Nachmanides’ critiques, and through them to examine broader aspects of methodology and the philosophy of Jewish law, as an introduction to studying the roots over the course of the year.

The Purpose of the Roots and the Count of 613

This work establishes the rules by which one filters, organizes, and combines the halakhic material in order to arrive at a count of 613 commandments. The Talmud at the end of tractate Makkot states that 613 commandments were said to Moses at Sinai, and Maimonides accepts this as a binding number and a correct foundational assumption. Maimonides has to decide what counts as a separate commandment, what counts as a detail within a commandment, and what is left out of the count, because at first glance there seem to be more commandments than the binding number allows.

The Fourteen Roots and the Number Fourteen in Maimonides

The principles that determine the count of the commandments are called the roots, and there are fourteen of them. The number fourteen is described as being especially beloved to Maimonides, and one of his descendants who served as nagid in Egypt—Rabbi Yehoshua HaNagid, I think—explains that this is because it is the reduced numerical value of 248 and 365. The connection to fourteen also appears in the fourteen books of the Mishneh Torah, in that “yad” equals fourteen, and in parallel to the fourteen hermeneutic principles by which the Torah is expounded, as Maimonides formulates it: thirteen, plus one more, along with hints to other appearances of fourteen in his writings.

Maimonides’ Methodological Uniqueness and the Status of the Work

Halakhic scholars generally issue rulings and interpret without giving an account of the principles that guide their work and without explicit awareness of their foundational assumptions. Maimonides is exceptional in that he is aware of the basic principles of his work and leaves behind books and introductions in which he formulates practical principles both in Jewish law and in the count of the commandments, and even in the realm of thought. The weight of these remarks is especially great because we are dealing with a figure of extraordinary halakhic authority, and there are almost no others who formulate parallel principles. The speaker suggests that the task Maimonides took upon himself forced him to develop this kind of theoretical work.

The Limited Attention Given to the Roots and the Way People Relate to Them

This work is barely discussed, and many people do not even know it, to the point that Torah scholars are asked, “What are the roots?” and they do not know what is meant. Even in academic study, treatment of the roots is sparse, even though the role of a scholar of Jewish law is to uncover the methodological and philosophical principles that guide halakhic decisors and interpreters. And even when there is some attention to the roots, it tends to focus on halakhic points and examples from the disagreements between Maimonides and Nachmanides about particular commandments—like the principle in the ninth root that one does not count twice identical positive commandments that appear in the Torah—instead of discussing the principle itself, its foundation, and its scope.

The Learning Plan and the Transition to a Meta-Halakhic Discussion

The speaker is devoting today to an introduction to the topic, and intends to begin the first root next time, if he manages to finish the introduction. The learning will not necessarily proceed in the order of the roots, because they divide into groups that it is better to treat together, and that order will be explained later. The focus will be on discussion of the principles themselves that Maimonides establishes, and where necessary also on what emerges from Nachmanides’ critiques, which are described here more as a defense of the Halakhot Gedolot than as critiques of Maimonides.

Philosophy of Jewish Law in Light of Philosophy of Science

The title “philosophy of Jewish law” is described as a relatively new term, and at a conference in Jerusalem it is sometimes used as a broad heading for the interaction of Jewish law with outside fields like psychology, sociology, and mathematics. That is explained by the newness of the field and by its resemblance to the historical development of philosophy in Greece as a general heading for all the sciences. Philosophy of science is divided into three types of questions: the methodology of science, which describes empirically how science confirms and refutes theories; philosophy of science in the narrow sense, which asks questions like the relation between science and truth; and scientific philosophy, which uses scientific tools to advance philosophical questions such as determinism and free choice. Almost all the literature in philosophy of science concentrates on methodology, among other things because one can deal with it without deep scientific understanding, whereas serious work on the other two types requires expertise both in philosophy and in science.

Three Types of Questions in the Philosophy of Jewish Law and Examples

The philosophy of Jewish law divides similarly into three kinds of questions: the methodology of Jewish law, which examines how a learner or a halakhic decisor builds a halakhic theory and tests it by means of practical implications, similar to confirmation and refutation in science—like Menachem Fisch’s book Knowing Wisdom, which proposes an analogy between science and Jewish law. Philosophy of Jewish law in the narrow sense deals with general questions about the nature and meaning of Jewish law, like the relation between Jewish law and truth, or its status relative to the other parts of Torah, without direct implications for how rulings are issued. Halakhic philosophy uses halakhic tools to advance philosophical questions, such as a discussion of the Talmudic passage about designation by association in tractate Nedarim concerning “the day on which Gedaliah son of Ahikam died,” which is presented as a way of viewing time almost as an object, with implications for the question of the nature of the time axis.

The Difficulty of Deeper Inquiry and the Tendency of Discussion Toward the First Type

Just as in philosophy of science, work on methodology is more common because it does not require double expertise, so too in the philosophy of Jewish law the discussion is focused mainly on methodology. Engaging in the broader philosophical questions or in using halakhic analysis to solve philosophical questions requires both philosophical and Torah scholarship, the ability to read and understand a page of Talmud and the medieval authorities (Rishonim), and not to make do with general ideas from the outside. All three types of questions are expected to arise over the course of studying the roots, and the speaker intends to expand beyond the direct content of each root to its meta-halakhic and philosophical significance.

Rules versus Details and the Development of Halakhic Ways of Thinking

The speaker sketches a historical transition from intuitive thinking in the biblical and prophetic period to more analytical thinking in the period of the Oral Torah and throughout the generations, with a growing demand for clear rules, precise measurements, and a formal method. The differences are evident in examples like a hand recoiling from heat and legal measurements, where in the past people were satisfied with an intuitive test of the hand, whereas today they look for precise temperatures. The process is described as continuous from the giving of the Torah until our own day, and it is accompanied by the formal crystallization of Jewish law, the fixing of precedents, and the ability to relate to texts as a binding infrastructure—something that grows stronger with the writing down of the Oral Torah.

The Hermeneutic Principles, Forgetting and Reconstruction, and the Crystallization of the Rules

The transition from Hillel’s seven hermeneutic principles to Rabbi Yishmael’s thirteen principles is presented as an increasing specification of the same rules over the generations, as part of a process of conceptual refinement. Maimonides states that something that is a law given to Moses at Sinai was never the subject of dispute, and also that the thirteen principles descended from Sinai, and the speaker notes that all the medieval authorities (Rishonim) agree to this even though the source is not clear. The Talmud in Temurah about “3,000 kal va-homer arguments and verbal analogies were forgotten” and “Otniel ben Kenaz restored them by his dialectic” is interpreted as documenting a state in which the rules had not yet been explicitly formulated, and therefore laws could be forgotten; only after distilling principles out of what had not been forgotten was it possible to reconstruct what had been forgotten. The discussion in Shevuot 26a is described as illustrating, within the very structure of the sugya, the process by which the hermeneutic principles took shape over the generations.

Critique of Formalism and the Anarchism of the Talmud

The rules are presented as tools that were created after the details, not as a system from which the details are derived, and the speaker argues that there is not and never will be a rigid system of rules that would allow for a “halakhic ruling computer” and a full capture of Jewish law. The expression “we do not derive from general rules, even where it says ‘except’” is presented as an ironic expression of Jewish law’s rebellion against rigid patterns, because even after formulating a rule with exceptions, more exceptions keep appearing. The structure of the Talmud as a collection of discussions that do not close neatly, with unresolved disputes and no presentation of comprehensive general rules, is described as seemingly ill-suited to a legal code, and the speaker sees in this a message: there is no complete abstract theoretical system of rules into which Jewish law can be inserted.

Jewish Law as a Language, the Importance of Usage, and the Prohibition Against Ruling from the Code Alone

Jewish law is compared to a living language that cannot be imprisoned within complete grammatical rules, just as grammar rules come after speech and do not succeed in capturing all the nuances and rhythm of language. The rabbinic statement “its practical use is greater than its study” is interpreted as favoring learning by watching a sage exercise judgment and practical instinct, and not only by learning rules in a lecture. The comments of the Bach and the Maharsha about the prohibition against issuing rulings from the Shulchan Arukh are presented as part of the polemics over codification, in which people resisted imposing a final bottom line without sources and reasoning. The struggle around Maimonides’ Mishneh Torah and around the Shulchan Arukh is described as directed against a formalization that makes understanding the initial assumptions and the sources unnecessary.

Maimonides versus Nachmanides: Rigid Rules versus Unruly Sources

Maimonides is described as a rationalist who seeks to impose on Jewish law a system of rules that seem to him like “straight reason” and therefore binding, while Nachmanides is described as one who brings many sources and shows that the Talmudic material does not submit to those rules and that every two lines there is a contradiction—especially in the second root, and also in the first. The dispute is described as extremely fundamental, with Maimonides pressing the sources into interpretations that fit the rules, while Nachmanides emphasizes the many exceptions and the inability to reconcile the rules with the Talmud. Even after legal codes like the Shulchan Arukh were accepted, in practice there remained room for give-and-take, judgment, and the decisor’s practical instinct, and full formalism is presented as an illusion.

The Mishneh Torah Project and Maimonides’ Plan of Work

Maimonides declares in his introduction that he is composing a work that will include “all the laws of the Torah and its judgments,” without bringing disputes and rejected statements, and bringing only “settled Jewish law,” so that anyone seeking the law will not need another book. The project is described as unprecedented “from the days of Moses our teacher until our own time,” because it gathers and organizes the entire corpus: tannaitic midrashim, the Jerusalem Talmud, the Babylonian Talmud, Mishnahs, Toseftas, Geonim, and other material, and sorts it into an organized, classified, and decided code. Its uniqueness is presented not in the quantity of writing but in the theoretical work required in order to shorten, refine, and decide, including building a categorical system of fourteen books with collections of laws, in which the very division of Jewish law carries conceptual meaning and is not merely a technical arrangement.

How the Roots Emerge from Maimonides’ Mission

Maimonides is described as having chosen to begin with the count of the commandments, because from the essence of the 613 commandments one can derive the categories according to which the fourteen books of the Mishneh Torah are built. In order to build a new count of commandments in the face of the hegemony of the Halakhot Gedolot, he had to establish principles of counting and also persuade the public to prefer his count, and therefore he formulated the fourteen roots out of sorting the Talmudic material and considerations of reason. The work process is described as systematic: creating the roots, deriving the 613 commandments in their light, building the categories of the books of the Mishneh Torah from that count, and assigning all the laws under the headings and subheadings that were established. The roots are presented as the first stage in the theoretical work forced upon Maimonides by the goal of covering everything and leaving behind a closed, settled code, and they will be the central subject of study over the course of the year.

Basically, the purpose of this work is to establish the general principles according to which Maimonides determined how he constructs his count of the commandments. Which commandments are included in the count, which commandments are not included in the count, how exactly one arrives at the 613 commandments. There is a Talmudic passage at the end of tractate Makkot saying that 613 commandments were told to Moses at Sinai, and that was taken as some kind of binding number. There are various reservations about this among the medieval authorities (Rishonim); maybe we’ll get to that later. But Maimonides took it as a correct assumption, a clear assumption. And of course, if that’s so, then you have to see how to extract from all the halakhic material six hundred and thirteen commandments. At first glance there are many more, and you have to filter, organize, combine several into one category, and so on, in order ultimately to arrive at 613 commandments. The principles that determine this are basically the roots, these fourteen roots. The number fourteen in general was beloved by Maimonides. One of his descendants who were leaders in Egypt—his descendants were leaders in Egypt—one of them says, I think it was Rabbi Yehoshua the Nagid, he says that the number fourteen was beloved by Maimonides because it is the reduced gematria of 248 and 365. And there are fourteen books in the Mishneh Torah; “yad” is fourteen; fourteen roots; there are fourteen interpretive principles by which the Torah is expounded, Maimonides says—thirteen and one more. And I think there’s even something else אצלו that is fourteen. And that is the reduced gematria of 248 and 365. Fine, maybe yes maybe no, I don’t know. In any case, why is this work unusual? It is unusual because usually Jewish law sages do not look at their own work; they have no reflection. That is, they do not look at the way they themselves work and try to see what assumptions guide their work. What is their work actually based on? Usually a halakhic sage, when he discusses a certain topic, or an interpreter or decisor, it doesn’t matter, he simply says what seems right to him, interprets, rules, and moves on. He does not give either himself or others any kind of account of the principles of thought according to which he is acting. He simply works. Usually that means—and apparently he’s not even aware of the principles lying at the basis of his work. In this respect Maimonides really was unusual. Maimonides was very aware of the basic principles according to which he worked, both in the halakhic realm and in the realm of counting the commandments. And he also left us several works that touch on this from different angles. His introductions, the roots, in which he tries to establish or describe the principles, also in the realm of thought he tried to do this, where he sets out the principles according to which he operates. In that sense this is a very unusual work, since of course Maimonides’ halakhic standing is well known, and when a figure of that stature and that halakhic standing says how he sees Jewish law and how he works and how one ought to work, that naturally carries very great weight. Especially since he is almost the only one in the field—in other words, the others don’t talk about this. Later on I’ll describe a bit the reason Maimonides got to this, beyond perhaps his inclination, his personality, which apparently was just built that way, but I think he also took upon himself some kind of mission that required this kind of work. So that’s something I’ll want to describe later. In any case, right now what I want to point out is really the uniqueness of this work, and precisely against the backdrop of its uniqueness, the fact that this work is almost not discussed at all really cries out. People hardly refer to it, many hardly even know it. I asked several real Torah scholars—really—and they asked me what the roots are. And I was surprised to hear that; they didn’t even know what I was talking about. And precisely against the backdrop of the importance and uniqueness of this work, that cries out even more. By the way, it seems to me that also in the academic world, as far as I’ve seen, the treatment of the roots is extremely sparse. There דווקא I would have expected somewhat broader treatment, because unlike halakhic sages who deal with the topic itself without giving themselves an account of methodological and perhaps philosophical assumptions, the role of a scholar of Jewish law is exactly to do that. To look at how this whole thing works and expose the principles that guide the mode of action of a decisor or interpreter. And it turns out that very few of them deal with the roots either, and that really is surprising. The first and second root are discussed a bit more, but the others almost not at all. Almost not at all. Even those who do refer to the roots generally refer to halakhic points that come up in the course of the discussion. Between Maimonides and Nachmanides various disputes emerge concerning certain commandments or certain laws within the discussion of a principle. There is some principle; Maimonides determines that, say, you do not count two positive commandments that appear twice in the Torah—one and the same positive commandment is counted as one commandment and not two. That is in the ninth root. I’m just giving one example. So there are various arguments there around this issue—whether they agree, disagree. Within those arguments examples come up. So Nachmanides asks Maimonides: what do you do with such-and-such an example? We see that they did count two things even though they are really the same positive commandment. Then Maimonides can no longer answer Nachmanides, but in Maimonides’ name his defenders answer Nachmanides with some answer concerning that specific commandment, and Nachmanides of course maintains that it is incorrect, and from that it emerges that they simply understand the commandment under discussion differently. And this, yes, sometimes among the later authorities (Acharonim), maybe even a little among the medieval authorities (Rishonim), but mainly among the later authorities, you can see references to the roots in those respects. That is, if some halakhic aspect comes up concerning a certain topic / passage or a certain commandment, then that is sometimes discussed. The famous discussion of terumah and parts of a commandment—giving and separating—which people always bring from the roots of both Maimonides and Nachmanides, even in standard yeshiva-style halakhic discussions. But I’m talking about the principle itself established in the root, not about some halakhic example that arises in the course of the discussion. I mean discussing the very principle Maimonides sets out—whether it is agreed to, whether it is not agreed to, what it says, what it is based on. Those discussions almost do not exist, and that is basically what I intend mainly to deal with: to proceed from the very meta-halakhic discussion that Maimonides himself conducts, and Nachmanides perhaps in his critical glosses if he disagrees. And it’s not exactly critical glosses, actually, from Nachmanides here; it’s more a defense of the Halakhot Gedolot than glosses on Maimonides. But from this discussion of the principle itself that Maimonides establishes, I’ll try to see also somewhat broader aspects touching on halakhic methodology, halakhic philosophy, and for that reason I’d like to open with a few words on this issue. Today I’m going to devote to an introduction on this topic; the first root, I hope, we’ll begin next time if I manage to finish the introduction today. And we’ll continue according to the roots, though where it won’t be according to the order of the roots, I’ll explain later what order I’ll follow, because they divide into certain groups that it is worth treating together, not necessarily according to the order Maimonides set. Good. So really I want to begin with a few words about the philosophy and methodology of Jewish law—what I mean when I say that, and what kinds of questions we may encounter when we deal with the roots. So here maybe the field “philosophy of Jewish law” is a new term from recent years. There is even such a conference in Jerusalem once a year, on the philosophy of Jewish law. And anyone who looks at the syllabus of that conference will see that what falls under that heading is in fact the interaction of Jewish law with every field outside it. That is, Jewish law and psychology, Jewish law and sociology, Jewish law and mathematics, Jewish law and philosophy, Jewish law and whatever you like. Take any academic field and examine its interaction with Jewish law and you can be a lecturer at that conference. Now that’s a bit surprising, because I would have expected the term philosophy of Jewish law not to be so broad. It should somehow deal with the seam between philosophy and Jewish law in terms that I’ll define in a moment. Why does this happen? First, because the field is a new field and as a technical matter there simply still isn’t enough material and there aren’t enough people really dealing in a focused way with the philosophy of Jewish law, and I assume beyond that there is something here somewhat parallel to the development of philosophy in general. You know, philosophy in literal translation is love of wisdom, and in ancient Greece the term philosophy included under it all the sciences. Only later did it begin to split into different disciplines, and then philosophy became a more defined field among the fields of knowledge. It seems to me that something similar is happening here—admittedly with a delay of a few thousand years—but something similar is indeed happening here, and I believe that in the end it will continue to split along a parallel path: to deal primarily with the philosophy of Jewish law, not its interactions with other things. And to understand a little more what this concept means, I’ll try to use a comparison to a field that is already more crystallized and more veteran—not very veteran, but more veteran—and that is philosophy of science. In philosophy of science there are actually several kinds of questions that people working in that field ask themselves. You can perhaps divide them into three kinds. There are many questions, but as broad types I would divide them into three. The first type is questions dealing with the methodology of science. That is, when science asks itself how a scientific theory is confirmed, how a scientific theory is refuted, how one makes a proper generalization, what the relation is between observation and theory—all sorts of questions of that type are discussed in philosophy of science, though I would say the more fitting name for them is really the methodology of science. These are not philosophical questions at root. These are questions that are philosophical in the sense that one of their characteristics is that the answer to them is not obtained by empirical means. That is, I cannot make a certain observation and determine whether, I don’t know, whether God exists or not. By straightforward observation that doesn’t work. Or whether I—whatever, it doesn’t matter—various other philosophical questions. This is not science in the empirical sense of the term. There is no possibility here of making an observation and arriving at an answer; otherwise it would be science. It would not be a certain scientific field. It would not be philosophy. Philosophy is something that at root is not connected to observations, though it can relate to them and ask what their meaning is, what they say. But these are not questions whose answers are given in terms of observation but in terms of thought, of independent, a priori reflection—yes, prior to observation. The previous sort of questions I was talking about, the methodology of science, are entirely observational questions. It is simply to look at how the thing is conducted. How people work, how they measure, how they reject one theory in favor of another. A considerable part of this is simply observation. You can see in books that bring examples from historical events of how things happened, and from that they infer a conclusion about the methodology of science. So in fact this field is at root not a philosophical field; it is some kind of empirical field. People look and try to describe what they see. Even to establish a theory that perhaps justifies what they see, but that is really parallel to scientific work. And these questions at root are not questions that look like philosophical questions. And surprisingly—and I don’t really have a very good answer for this, I have some technical answer—but surprisingly almost all the literature in philosophy of science deals with this and not with the other two types. That is, philosophy of science—all the introductory books you’ll see, the university courses on the subject, a considerable portion of the articles written about it—are basically dealing with questions of the methodology of science. Now another type of question in philosophy of science is questions that are perhaps—before that, the questions of the methodology of science are not questions concerning a particular science. They concern the scientific whole, the scientific process, how this whole thing works in general. Not necessarily—it isn’t connected to content; it is supposed to work the same way in all fields, at least in the empirical sciences. Let’s talk only about them; the others are not really science in the full sense of the word. And they are not—that is, these are general things. There are other questions that also concern the totality of scientific work, but these are questions that are indeed philosophical. Questions of the type: what is the relation between science and truth? That is not a question I can answer by observing what scientists do and from that infer the relation between science and truth. Philosophers debate whether science reveals some kind of truth or actually builds a construction that stands opposite the world in some kind of correspondence to the world, but does not really uncover what is happening in the world. In medicine I hesitate a bit, and therefore medicine in these definitions is more technology than science, I think, but in sciences like physics—I mean more abstract sciences—you can see that there are different approaches among philosophers of science. And that question, whatever, that question right now is only an example for me. It is a question that at root is a philosophical question. It is not a question touching on how science advances, and people who hold different positions on that question will work the same way. On the scientific plane it will not affect at all how scientific work is done. Therefore these are not questions of the same type I spoke about before; these are questions that have philosophical significance. They are not supposed to guide scientists in their work, unlike the treatment of the methodology of science, where perhaps someone could come and tell a certain scientist, “Listen, you’re not working correctly, because methodologically you’re a bit off.” Here that is not the point. There is nothing to say to scientists about this, and they are also not the authorities on this matter, and it is simply a question of the philosophical meaning of the scientific process in general. That is a second field, a second type of questions. The third type of questions is the philosophical significance of specific scientific fields. That is, if someone now looks at relativity theory or genetics or neuroscience or whatever and asks himself: what is the significance of this matter? Can I infer from these results various conclusions regarding philosophical questions that interest me? Many people try to infer from quantum theory things about determinism and free choice, about the character of the reality before us—whether it is really matter in the same sense that we relate to it in everyday life or something more abstract. This type of question does not concern the scientific whole; rather, these are philosophical questions that one could have asked even before the scientific field in question arose, but this scientific field gives certain tools that can advance us further with respect to those questions. There are situations in which questions that were once considered philosophical questions are today seen as questions—some would say outright scientific, I think that is usually exaggerated—but almost scientific. That is, science has something to say there. It cannot decisively resolve it, but science has something to say about those questions which once were considered entirely detached from observation, entirely philosophical. For example, the question of determinism, which once was clearly seen as solely a matter for philosophers—either you accept it or you don’t accept it, with various arguments one way or another, but science has nothing to say about it. Today many say that science has something to say about it; I’m not sure they are right, but the fact that such a claim arises in various branches of science says that the question has become one that uses scientific tools. But we have to pay close attention: the question is still a philosophical question, not a scientific one. It is a philosophical question; scientific tools can simply help or advance us in handling it. The purpose of reflection on these questions is philosophical, not scientific. I’m not going to build any device with this question, I won’t be able to heal someone better; I’ll simply know the answer—whether it is one way or the other. So if I give headings to these three fields: the first field is the methodology of science, the second is philosophy of science—it seems to me that this is what really deserves to be called philosophy of science—and the third I would call scientific philosophy. Scientific philosophy meaning using scientific means to solve philosophical questions. So I think these are basically three different fields, even if the border between them is not entirely sharp. Still, there are three different fields here. One more remark as I finish this introduction to philosophy of science: one interesting remark—I said before that almost all engagement in this field concentrates on the first type, the methodology of science. The most prosaic reason for that is of course that to engage in the methodology of science you hardly need to understand science. That is, you can be a philosopher with a little involvement in this and write sensible things in this field. In the field of the philosophical significance of quantum theory, it seems to me it is pretty hard to write sensible things if you are not familiar, at least on a reasonable and professional level—not from popular literature—with quantum theory. Many who try their hand at drawing conclusions from quantum theory after reading some popular article or another sometimes end up in embarrassing situations. So that prosaic, technical reason is at least part of the explanation for why very few people deal with the latter two kinds of questions, and why mainly the first type is addressed. Obviously one needs to understand both fields properly, both philosophy and science, and those with good education in both are usually a narrower group than those who have it only in one or the other. It seems to me that is the main reason. This has changed a little recently, in recent years, but still I think the weights are very skewed. Why am I saying all this? Because I want to apply it to a field that is still in formation, which I earlier called philosophy of Jewish law. Really—not what is called philosophy of Jewish law at conferences, but what really ought to be called philosophy of Jewish law. It too can basically be divided into three kinds of questions. There are questions that are methodological questions: how Jewish law is conducted, how this whole thing works, how a person builds a halakhic theory. In many respects this parallels philosophy of science exactly, not just by some general analogy. There is a book by Menachem Fisch from Tel Aviv University called Knowing Wisdom, Van Leer and Hakibbutz Hameuchad; his claim there—his basic claim in that book, in light of some interpretation of the book of Ecclesiastes, I’m not sure how much I agree that this really is the interpretation, but he offers an interpretation—basically makes an analogy between the conduct of science and the conduct of Jewish law, and builds a philosophy of Jewish law or methodology of Jewish law completely parallel to scientific methodology. That is, one looks at the halakhic learner or decisor or analyst, whatever, as someone who gathers halakhic facts, say, ruled laws, and tries to build from them some broader halakhic theory. And now he puts it to a test—that’s what is called a practical ramification—and says the prediction—in the scientific world the theory gives some prediction and that gives me a way to test it. So now I say: according to this theory it should follow that such-and-such an act will be forbidden. I now check, open the relevant text—Maimonides, Shulchan Arukh, whatever—and see: if it is indeed forbidden, then the theory has been confirmed. If it is permitted, then the theory has been refuted. So in that sense there is a decent parallel to scientific work. And therefore one can understand that many ideas in the area of the methodology of science can also be drawn into the methodology of Jewish law, and that is what he is trying to do there. He is trying to argue for a certain approach from among the set of proposals for the methodology of science, and to show which of them is right to adopt regarding Jewish law; for some reason he also finds this in Ecclesiastes. So that is one type of question, and it concerns the methodology of Jewish law. Another type of question—we can call them exactly parallel to the type I mentioned earlier—philosophy of… the first was the methodology of Jewish law. The second would be philosophy of Jewish law. What does philosophy of Jewish law mean? These are more general questions touching on the nature of Jewish law as a whole, not on specific halakhic domains. Exactly in parallel: what is the relation between Jewish law and truth? Does Jewish law reveal some kind of truth, or is Jewish law again a construction standing on its own, exactly parallel to the questions I mentioned before in philosophy of science? What is the status of Jewish law in relation to the other parts of Torah? All sorts of things touching on the halakhic whole and what its significance actually is. But not in a sense that tells me now how to act as a learner or decisor. It changes nothing. In principle, people who think that Jewish law reveals some kind of truth and people who think that Jewish law is basically a self-standing, autonomous construction, not tested against any such truth, can learn the same way. At least they can. I’m not sure that always happens, but there is no direct implication for the form of study. So the question is a philosophical one; it does not concern Jewish law itself. But it is a question touching on the halakhic whole—what is the philosophical or meta-halakhic significance of this whole. It is not an inquiry into methodology, into how this thing is conducted. It is a question of how we look at it, what its meaning is. And the third type is of course halakhic philosophy. Parallel to scientific philosophy, what does halakhic philosophy mean? When I ask a question that at root is a philosophical question and I use halakhic tools to resolve it. But again, the question is a philosophical question, not a question in Jewish law. I’ll give one example—there are lots of examples, it’s one of my hobbies—but I’ll give just one. There is a philosophical question concerning the nature of the time axis. Is the time axis… that is, is time something that exists in objective reality in some sense, or is time only a form of human perception of reality? As Kant thought, for example: space and time are subjective or inter-subjective categories, shared by all human beings—not subjective in the sense that it changes, but located in the human being and not in the world itself. Now that is a philosophical question and again it looks like something that certainly in Kant’s time had nothing to do with science or Jewish law or anything. A philosophical question: you can think one way, you can think another. The truth is that regarding science too there is now room to discuss this matter, and in the halakhic context too it may be possible to propose a way to resolve this question. I once thought about a topic / passage in tractate Nedarim. The discussion there is about associative vows. There are two ways to make a vow. One can vow: I vow to forbid benefit, say by “konam,” from some loaf of bread or from bread in general, okay? Then some prohibition takes hold on the loaf. I can make an associative vow, meaning to take something that is already forbidden—a sacrifice or a vow or something, yes, an object made forbidden by vow—and say “this is like that,” meaning supposedly, as some of the medieval authorities (Rishonim) explain, to transfer the force of the prohibition from the object where it already exists to the new object, and thus impose a prohibition also on the new object. Now when the Talmud gives an example of such a thing, one of the examples it gives is to associate something with “the day on which Gedaliah son of Ahikam died”—the Fast of Gedaliah. Now on the Fast of Gedaliah there is a fast, one may not eat, so food is forbidden to me. So now I associate something else with the prohibition of the Fast of Gedaliah. But what am I associating it with? With the bread I eat on the Fast of Gedaliah? No. The wording the Talmud brings there is that I associate it with the day. That is, the day on which Gedaliah son of Ahikam died. How can one associate something with a day? You have to associate it with a specific object. I take a prohibition resting on a certain object and transfer it to another object. If the thing is not an object, the mechanism of associative vows does not apply. Now if one associates with a day, that means there is some conception that a day is a kind of object. That is, time is something that exists. In an abstract sense—it has no mass and does not occupy space. But it is some kind of existent. There are existents that have no mass and occupy no space; that is not impossible. So I bring this only as an example; the details of the matter do not matter right now and maybe one can argue about it. But it is an example of a question that at root is a philosophical question. I take a certain halakhic topic / passage. It is not a question about Jewish law; it is a philosophical question that could bother non-Jews too, people who are not interested in Jewish law or Torah at all, and they are interested in the question of the nature of the time axis. And I use halakhic tools to reach a conclusion regarding that question. That is what I earlier called halakhic philosophy, parallel to scientific philosophy. That is a third type of question. And by the way, in this context too, if you look, most discussions about the philosophy of Jewish law—among those who deal with these areas at all and not with psychology and sociology—touch on the first type and not the next two types. And it seems to me the reason is exactly the same as in the context of philosophy of science. That is, here too, in order to engage in the methodology of Jewish law, you do not have to be a consummate halakhic expert. We know examples of people who engaged in this field and even said sensible things here and there, and they were not great Torah scholars, and even had basic errors in reading pages of Talmud. Whereas in the other two fields it seems to me it is a bit harder. You need both philosophical education and Torah education. You have to understand what the topic / passage is saying if you want really to say something that has substance and not just some nice homiletic flourish. You can say nice flourishes, but again, if you’re feeding off popular literature, so to speak by analogy—because there is someone who writes about vows—then maybe you can raise some idea, but if you really want to say something with some basis, you need to know how to read a page of Talmud, understand what the medieval authorities (Rishonim) are saying, understand what it actually means, and then maybe you can draw conclusions. And since that is so, there is a smaller potential population to engage in these fields. You need to understand both sides of the equation fairly well, both philosophy and Jewish law. That is a general introduction, simply because all three kinds of questions will arise in the context of the roots. In every root questions of different types will arise, and I definitely intend not only to focus on the direct content of the root, on what Maimonides establishes in the root itself, on what Nachmanides argues with him about, but also on the meta-halakhic or philosophical significance of the matter, and we will see that it branches in those three directions. That is the first introduction. A second introduction brings us closer to Maimonides and his roots and concerns the relation between rules and particulars, the form of halakhic thinking in general, and where Maimonides is located on that axis both historically and logically or conceptually. There is a feeling when you read the Bible that the whole thing worked there differently from the way it works for us. I don’t think that is any great novelty. There is something there that is not—the contrast between the Bible and the Talmud, apart from the anarchism prevailing in both places, and I think the similarity ends there. Something completely different. The Talmud describes a very rational world, checking everything, comparing, analyzing, distinguishing, arguing back and forth, trying to reach rational conclusions that are supposed to be such. Maybe all this existed then too and they just didn’t reveal it to us and it doesn’t even peep through between the lines there. But still, it’s strange. After all, it’s not a small corpus. You don’t see any of this there. And it’s not something—what do you see in the Bible? Yes yes yes. No, in the Torah there are commandments, obviously. I mean the rest of the Hebrew Bible (Tanakh), the historical sections, how the whole thing was conducted. Nobody says to someone, there is so-and-so’s approach, that this is law concerning the person and law concerning the object, and therefore I don’t know what, and therefore I want to kill you. And the feeling somehow is that this is probably connected to the character of that period, the character in which prophecy was present in the Jewish environment of that time, which ceases at the beginning of the Second Temple period. The end of the era of prophecy is the beginning of the Second Temple, and then not by chance the era of the Oral Torah begins. And basically what lies behind these things is probably some form of thought that changes over the years. It seems to me this does not happen at one instant but is a continuous process from the giving of the Torah until us, and continues even beyond. At first at least, the closer to the giving of the Torah, things probably operated in a much more intuitive manner. That is, if a person had to decide whether I violated the prohibition of cooking on the Sabbath, then he needed to check whether this thing was at “the hand recoils” temperature or not, assuming there was such a definition at all. So he puts in his finger or his hand and sees whether his hand recoils or not. If it recoils, then he cooked; if it doesn’t recoil, then he didn’t cook. Today, no. Today we make calculations through I don’t know what, all sorts of hidden body parts of ducks through which we manage to reach a conclusion exactly what temperature is called “the hand recoils”; see the beginning of Shemirat Shabbat Kehilchatah. So why is this so? Why did it change? Because our way of thinking today is much more sharply defined. We want some clear rule; we don’t want a subjective reference point where every person does what he likes. Once a cubit was simply: put out your arm and see what a cubit is. Today there are arguments whether it is fifty-two centimeters or fifty-one centimeters. It is neither this nor that; it simply means put out your arm—if you have the arm of an average person more or less, that is what is called a cubit. A centimeter here or there, don’t make a whole issue out of everything. This is a way of thinking that changes over time. Of course measurements are only one example, at times even a grotesque one, but there are examples much broader than that. And what I mean to say is that the work was much more intuitive and much less analytic, much less through rational analysis and logical division of topics and comparison of things and trying to formulate rules, and that is what basically characterizes the Oral Torah. That is, there is basically a transition from an intuitive way of thinking that does not really use rules but makes analogical comparisons on the basis of some intuition, to a way of thinking that today we know even better: working according to halakhic rules and seeing specific halakhic situations as certain expressions of the general law—what in legal theory is called positivism, also in philosophy of science. That is, positivism is basically the approach that says I must derive the Jewish law or the law for a certain situation by deduction, or logical derivation, from a general legal law or a general scientific law, depending. There is positivism in science, positivism in law, and also in Jewish law. That is, there are those who hold that Jewish law in practice—if we fully decipher Jewish law and all the rules are in our hands—we could make a ruling computer. Basically, give it the system of rules; there is a system of rules; it will perform the logical calculation—logic is no less its strong point than ours—and it will produce for us the Jewish law for every case that comes up. So this transition that occurs over history, from intuitive thinking in the age of prophecy to more analytic thinking in later periods, and more and more analytic over the generations, is basically a continuous process with many implications other than the shape of halakhic thought. For example, the halakhic system becomes more and more formal; more and more things become fixed and acquire the status of binding law. A binding general law that one can no longer dispute, and all you can do is see what it says about the situation before you. And this thing once did not exist at all. They didn’t write down the Oral Torah at all; everything was oral. In a situation where everything is oral, such a process, such an approach to the world of Jewish law, cannot occur. Only where things are written can one begin to treat them as binding precedents, derive from them, see in them the binding halakhic skeleton. One example of this: we know that when Hillel came up from Babylonia there were problems there concerning the Passover offering that they didn’t know what to do when it fell on the Sabbath, and Hillel brought arguments there, used some of the interpretive principles by which the Torah is expounded, and derived the Jewish law over which the Sons of Beteira, who were the leading figures sitting here, had struggled. And in the course of things it is brought that Hillel had seven interpretive principles. Hillel brought with him from Babylonia seven interpretive principles; he heard them from Shemaya and Avtalyon perhaps, but there were seven interpretive principles. From Rabbi Yishmael we know thirteen. From Rabbi Eliezer son of Rabbi Yosi, Rabbi Yishmael—I don’t remember who it is—the baraita of thirty-two principles; the baraita of thirty-two principles is already thirty-two principles. In fact there are many more than thirty-two as well. But if for the moment we relate only to the difference between Hillel and Rabbi Yishmael, the transition from seven to thirteen is quite clear when you look there: these are the same rules themselves. The same rules themselves underwent more differentiation. Rabbi Yishmael of course lived after Hillel the Elder, and during those years this apparently underwent more elaboration. And it is just one segment of a process that I think happened from the beginning. For Maimonides says that a matter that is a law given to Moses at Sinai was never disputed. That is what Maimonides writes. And Maimonides also writes that the thirteen interpretive principles by which the Torah is expounded came down from Sinai—law given to Moses at Sinai. All the medieval authorities (Rishonim) agree with this, although the source for it is not clear. But all the medieval authorities (Rishonim) agree on it. So the question that immediately arises is: what do you mean? Here there are seven principles, here there are thirteen principles, not to mention Rabbi Akiva and Rabbi Yishmael, which are really two entirely different systems of interpretation. How does this happen? What came down from Sinai? What happened to it over the generations? Did we forget? Get confused? So indeed there is the famous Talmudic passage in Temurah that in the days of mourning for Moses, three thousand kal va-homers and verbal analogies were forgotten, and Otniel ben Kenaz restored them by his dialectic. Why was it forgotten? Maybe one may venture a hypothesis: it was forgotten because they did not know at all what kal va-homers are and what verbal analogies are. When the Holy One, blessed be He, learned with Moshe Rabbeinu as study partners, then when He read a verse with him He did not say, “Look, here apply the rule of general-particular-general; you judge only by what is similar to the particular.” He had never heard of that concept. He just said, listen, a verse built like this leads to such-and-such a conclusion. He simply taught him how the thing works naturally. And Moshe Rabbeinu transmitted that to the people. But when you do not have a system of rules explaining what this is based on, that there is some general law here, you can forget it. If you forgot it, how will you reconstruct it? It is not something you know how to use and generalize. And then those laws were forgotten, and not by chance specifically kal va-homers and verbal analogies—at least in one version of this aggadah—because this really belongs to interpretive principles that are formal principles. And that was forgotten, and Otniel ben Kenaz restored it by his dialectic. What does it mean he restored it by his dialectic? He used the same rules that had not yet been formulated. So there really were no rules yet. But it is not that this was not given to Moses at Sinai; it was given. All these things were given. “You shall fear the Lord your God”—to include Torah scholars—maybe that was learned by Moshe Rabbeinu with the Holy One, blessed be He. I’m not sure, but maybe. But this thing—how does one do that? According to what rule? If you forget it, you will not remember it again; you will not be able to reconstruct it. A thing for which you do not have some system of rules, you can never reconstruct. So therefore Otniel ben Kenaz was probably the first documentation of this process I’m talking about; that seems to me to be what this midrash is. And he basically tried to distill those laws that had not been forgotten, to examine those laws that had not been forgotten and see how one could derive some rules from the collection of interpretive forms which until then had not even been classified, had not been institutionalized, there were not yet names for the principles being used, and he tried to extract some principles. Then after he extracted the principles, one can reconstruct those laws that had been forgotten, since after all there is some common infrastructure here. This process of conceptualization continues through the generations. In Hillel the Elder there are already seven principles; in Rabbi Yishmael there are thirteen principles; and in the passage in tractate Shevuot on page 26, where the dispute of Rabbi Yishmael and Rabbi Akiva about interpretive principles is brought, there you can really see within the structure of the passage the difference between the Mishnah and the baraita brought in the Talmud and what the Talmud itself does. How one principle—the principle of general-particular-general in that case—undergoes a process of consolidation through the generations; you literally see it in the passage. So basically there is some process in which things are amorphous, they remain on the level of intuition, and over the years they become more rigid, more conceptualized, more anchored in rigid logical rules, and then you can also apply them in other fields. This process continues down to our own time. Nowadays sometimes the feeling is that it has become complete mechanics. That is, everything is some system of rules, and sometimes the result is so detached from what you think really ought to be, that this already says something: the creature has risen up against its maker. That is, either these rules have already taken us completely to some place we were not supposed to be. One beautiful expression of this—there is a measure of irony in it, in my opinion; it is hard to read it otherwise—the Talmud says, “one does not derive from generalizations even where an exception was stated.” That is, if it says, say, all positive commandments dependent on time, women are exempt. Now a positive commandment dependent on time comes before you, and you say that actually maybe women should be obligated. But it says all positive commandments dependent on time, women are exempt. Fine, a rule is a rule, no need to make too big a thing out of rules; there are exceptions. Good, that’s a nice innovation. Now comes a more precise formulation and says to us: all positive commandments dependent on time, women are exempt, except A, B, and C. That is already a stronger formulation, right? Because now it is basically saying: no, now I’m serious; this is not just mostly true. Everything is like this except those three exceptions. Comes the Talmud in Kiddushin and says: wait a second, what about the Hakhel assembly? Women are obligated there too, and that is not among the three exceptions. So the Talmud says: fine, why are you making such an issue? One does not derive from generalizations even where an exception was stated. Even where you say everything is like this except A, B, and C—there too, don’t get excited, there is also D. Well, that already sounds almost like a joke. So on what basis are you stating this rule if really… I feel there is a degree of irony here. I think what it is really saying is that there is some play on the very notion of rules. That’s how it seems to me, I don’t know, I can’t otherwise understand this mode of reference. And it is obvious, the entire Talmud is built in a way in which nothing there works with rules. That is, the Talmud does not start with some rule and then say according to this, in this case it will be thus and in that case it will be thus. Rules are mentioned very little in the Talmud. In the Talmud they discuss some case; there is a case; they discuss what the Jewish law is here, what the Jewish law is there, compare it to such-and-such a baraita, such-and-such a Mishnah, disagree, such-and-such reasoning, some other reasoning, and reach some conclusion. We as later learners try to understand what rules lay behind this. Why is the Jewish law here like this, and in what way is it similar to that law there? And we try to see whether there are more general patterns. But in the Talmud it is very striking, especially against the fact that this is the foundational text that became fixed and received the greatest authority, that the last form I would have imagined for writing a text that is supposed to serve as the legal source for a legal system is the way the Talmud is written. It is simply a collection of discussions, none of which is closed, you cannot know whether one passage disagrees with another or not, sometimes there are also such situations, many disputes are not decided, it is not clear exactly how this whole thing works. And this became canonical, meaning binding; this one does not dispute; this is a closed matter. There is no legal system like this in the world. If you want to establish some legal code, you say something well defined, with a rule, with a set of individual cases, and that’s it, now one can begin to work. But how do you make a code that is entirely a collection of individual cases whose defining characteristics you do not even know? And this is the binding thing. I think here too one sees the same resistance of Jewish law to the attempt to fit things into some patterns, clear rules, and so on. Why? And why really is this so? Because apparently it is impossible—not only that it is too complicated. It is like psychology. There is a kind of feeling that there is basically some system of rules or a system of laws of nature, let’s call it that, such that if we knew them all after many, many years of research and so on, we could know with certainty what every person will do in every situation. We just don’t know because it is terribly complicated and there are many rules, and so in the meantime we miss a lot; we really don’t manage to predict what a person will do. And my very clear feeling is that there is no such system at all. Not only is it too complex and we don’t succeed in reaching it—there is no such thing. You cannot fit this thing, this complex, living, kicking system, into some framework of a defined set of rules. In my opinion this also stems from the notion of free choice; that is clear. But in any case, one cannot fit this complex, living, kicking system into some framework of a defined set of rules. The claim is that if we dig well enough and investigate further and sit for many years and derive the full system of rules, we can mechanize the entire halakhic process. That is, basically give me a halakhic problem, and if I have already discovered all the rules and all the exceptions and all these things—the exceptions are not really exceptions according to this conception; it is only a clash with another rule, and therefore there is some rule telling you what to do when there is a clash. There are no exceptions according to the conception that there are real, binding rules. So it seems to me that here too the point I understand from this anarchic structure of the Talmud is that this is simply not true. Exactly that is what it wants to tell me. Don’t expect this at all. There is no abstract theoretical system of rules, no such thing. Not that you can’t, or that you haven’t reached it yet—there is no such thing. It is impossible to fit Jewish law into some rigid system of rules. And therefore this process that occurs over the generations—Rabbi writes the Mishnah, afterward the Talmud is sealed, after that yes, Maimonides, Shulchan Arukh, and all the books of rulings, and today on every lulav three handbreadths long on the eve of Passover that falls on Yom Kippur an encyclopedia appears—that is, today everything is so rigid and so binding and so clear and nothing is left to any discretion. So this conception is mistaken at its root. It is mistaken. You can’t. You can’t fix these things. Every situation—why actually can’t you? You can’t, exactly like language. I once spoke about this in one of the previous years. Like in language, when you try to build its grammar, somehow every rule has several exceptions. What, are we so stupid that we can’t really do the job properly? No. It’s simply impossible. Language is something alive; it didn’t come out of the rules. The rules came afterward. First of all we decided how to speak, society decided how to speak—and right now not the language of the Holy One, blessed be He, but ordinary human language. People began to speak, and what developed developed. Now comes the researcher, exactly as we described before in philosophy of science, and asks himself how this whole thing is conducted—let’s try to define rules. But it doesn’t work with rules. It did not come from the rules at all; you come with the rules afterward. You will never succeed in fitting it into rules because it does not obey rules; it is a living system. Someone who learns language in an ulpan from a system of rules and then writes a poem—I would not want to read what comes out. You can’t. That is, no, you cannot fit all the nuances of a language, all the natural rhythm of this thing, into a system of rules. You cannot compare someone who learns it in an ulpan to someone who learns it at home from the moment he is born, from the womb. Obviously the second will speak much better, even though he knows no rules, is not aware of them, and isn’t interested in them either. And the one who came out of the ulpan will want to correct the one speaking on the street, and we all know those funny situations, because clearly the one who came out of the ulpan is the one who is wrong, not the one stuck on the street. Sometimes there are distortions, but generally, why? Because those rules are not really… they are just a ladder. You climb on it, and then throw it away. It is only a means helping you enter this world, but afterward you have to enter natural speech itself. So the same is true in Jewish law. Jewish law is a kind of language, perhaps even much more complicated than spoken language, it seems to me. We’d need to think about criteria for the complexity of such systems. But it is some kind of language, and it seems to me that historically too it developed not from the rules but the opposite. As I described before, the rules came after, not before. And essentially too it cannot be fitted into a system of rules. It simply doesn’t work; it is something alive. Every situation has a different smell. And ostensibly with the formal rules you can decide that the Jewish law here must be such-and-such, but something here doesn’t work. It simply isn’t right. Your sense of smell tells you it isn’t right. And if your sense of smell says it isn’t right, then it isn’t right. For someone who really has a true sense of smell, of course—not everyone—and this is not completely nihilistic. So some call it the fifth section of the Shulchan Arukh, some call it Torah wisdom, it doesn’t matter, each person with his own terminology. And in the end it seems to me that this also finds expression in the way Torah is studied, what the Talmud says: personal attendance upon a sage is greater than study itself. Why is personal attendance upon him greater than study from him? Is it more important to polish my rabbi’s shoes than to hear his lecture? I think the point is that if I hear his lecture, what he can convey to me—how does one convey things? Like in an ulpan: rules. That’s how things work. This is the rule, here it is like this, there it is like that, what to do in the case of a clash between rules—this is what can be said in a lecture. But how do you really learn how this whole thing is conducted, not the rules? Sit there under the bed, see how he conducts himself at home, look at the religious court, look at what his normal lifestyle is, how he thinks—there you will really learn it. In the Open University introduction to philosophy of science, they bring some example—I don’t remember his name—of the violin of Stradivarius. Stradivarius was a master violin maker two hundred years ago maybe, I don’t know exactly, something like that. He made violins that to this day no one has managed to reproduce. And I understand nothing in this, but that’s what they say; I don’t know. With all the computers and micrometers and checking all the dimensions and everything, they try to reproduce it and it doesn’t come out the same. I assume Stradivarius’ apprentice did it better than our computers. Because Stradivarius’ apprentice was with him; he saw how his hands, how his fingers moved. That is what in other fields is called internship. You finished your studies, now you need an internship. You need to see how it really works. Forget the rules now. Now—how does it really work? So in Jewish law too, the same. And one must beware of becoming enslaved to rules. These rules are an approximation, an approximation that came after the particulars and not one from which the particulars emerged. And someone enslaved to the rules replaces Jewish law with something else. That is not Jewish law. It is some tool that helps us orient ourselves a bit in this mess. Obviously we cannot do without rules, but—but—but it is not the thing itself. In places, yes—I once saw some discussion about someone who threw, the Talmud speaks about someone who threw a vessel from the top of a roof, yes, and someone below came and broke the vessel a moment before it hit the ground and broke. The question is who is liable. The one who began it or the one who broke the vessel? Is the first thrower liable because in any case it would have broken? Or not, because in the end the second one is the one who actually broke this vessel, so maybe he is liable. Afterward I saw someone—I no longer even remember who it was, maybe it’s even slander to say—who discussed the question: what happens if the same person who threw the vessel from above goes down quickly and breaks the vessel? It could be he will be exempt. Why? Because from the perspective of the one who threw it from above, the thrower from above is not liable because the one below broke it. But from the perspective of the one below, the vessel was already broken, because once it had been thrown from above it was already as good as broken, so the one who broke it below is also exempt. Since neither role can be charged separately, now even if I performed both functions together I am also not liable. There is even a Pnei Yehoshua really like this—not in the context of vessels from a roof, but it is more complicated so I won’t go into it here. A dog biting a dog. Again, an example of applying rules, but obviously this cannot be correct. It simply cannot be correct. I don’t know how the rules work out, but it cannot be correct, so it isn’t correct, period. It simply isn’t correct. Now why am I introducing all this? And this will accompany us throughout the study. Maimonides has a very special standing in this chain, in this development toward the use of rules. One of the reasons people do not deal with rules, that there is no reflection among halakhic sages—and that’s how I began—that they don’t give themselves an account of how this method works, is because it is not right to give ourselves such an account. How does it work? It works by a sense of smell. And when afterward we try to fit it into some rigid pattern of binding rules, we miss something here. It doesn’t work that way. And therefore, at root, this field really is a very anarchic field, and that is why personal transmission from teacher to student is so important, because you cannot receive it otherwise. You simply cannot just read and understand it. Today people do read—they read responsa or read Talmud—they don’t read principles. Fine, so one can begin to understand how the thing works. But someone who reads only the bottom line—books of rulings that only say what the Jewish law is in such-and-such a case and what the Jewish law is in another case—you cannot rely on anything he says. He simply does not understand a thing. I knew such people. They were examined for rabbinic ordination and things like that. You could not rely on anything they said. Because they knew all the particulars, they were tested, they knew to identify everything they said, but there was no ability to compare cases, no ability to apply it in any situation. You know there is a prohibition—the commentaries on the Shulchan Arukh write, several of them, the Bach I think and the Maharsha, write that it is forbidden to issue rulings from the Shulchan Arukh. It is forbidden to issue rulings from the Shulchan Arukh. They write that today, since there are already commentaries that debate his words and disagree with him and bring proofs from the Talmud and so on and so on, there is now permission. But basically one may not issue rulings from the Shulchan Arukh. And these disputes, these passages or rulings, whatever to call them, are the result of what is called the codification controversies, which Elon discusses at length in his book. Around Maimonides’ work too there was a very, very great controversy over this, no less great than over the Guide for the Perplexed; it seems to me there was a controversy over the Mishneh Torah. And around the composition of the Shulchan Arukh too there was this controversy; the Maharal and his brother, as is known, the Maharshal, stood at the head of those fighting against the Shulchan Arukh and the Rema. And the main point was this: they were not willing that some rigid system be imposed upon us. You don’t bring sources. Maimonides gives a halakhic ruling but no sources and no reasoning. Why should I accept it? I have proofs from the initial assumption of the Talmud that it is not like you. If you give me only the bottom line, I won’t know what the initial assumption says, I won’t be able to issue rulings. Because one rules not only according to the conclusion but also according to what was thought in the initial assumption and seeing how it changed in the conclusion. The bottom lines will not help at all. Someone who tries to subject us to bottom lines and rigid principles is not getting Jewish law right. It is simply something incorrect. I think that is what… Now Maimonides in this matter of course, as I just pointed out, occupies a certain position that nevertheless tries to impose upon Jewish law a system of rules—not hermetically, but much more than had been accepted before his time. That is clear. There was some kind of revolution there. And Nachmanides in his critical glosses around the roots, for example—and that is one of the examples—this is generally what he cries out. Maimonides establishes rules and in his eyes these rules must be correct. He is an extreme rationalist. If it sounds like straight reasoning it must be correct. Therefore all of Jewish law must fit that, and if it does not fit, it will fit. Meaning, Nachmanides brings hundreds of sources, and you can really see there amazing mastery—he brings hundreds of sources—and it simply doesn’t fit with a line in the Talmud. Every two lines there is a contradiction. The second root, for example; also the first root—he raises many sources that put Maimonides in a problematic light. It just doesn’t work. The Talmud pushes back against this approach, precisely because of this issue: you are trying to impose some system of rules, and the rules are very sensible, but it doesn’t work. There are many exceptional cases; it doesn’t fit. And Nachmanides keeps crying this cry, while Maimonides sticks to his own path. Maimonides imposes his rules and will squeeze everything into them. Usually he does not even give us an account of how; he did not answer Nachmanides. But he will force everything there, interpret it in this way or that way. It has to fit the rules. It is simply two approaches that we will see coming up throughout the roots, and I think they express a very, very, very fundamental disagreement. And it seems to me that despite the illusion that rules have nevertheless taken over the world of Jewish law—that is, Maimonides’ approach was in the end accepted, and then Shulchan Arukh—that is to a considerable extent an illusion. Because as I said before, after the Shulchan Arukh was accepted, the rule was also accepted that one may not issue rulings from it, except together with the commentaries and those who broaden the picture somewhat. And today too we see that there is still plenty of room for discretion and argument and the decisor’s sense of smell and so on. Of course this already depends on the character of the decisor, how willing he is to go with this and how formalist he is. But still it seems to me there is definitely not a little room for judgment, and people are not succeeding in fitting Jewish law into some such rigid and binding framework. Every such encyclopedia that appears, as I said before, one can argue in a thousand ways about every one of its clauses, and therefore basically that is good. Maybe one can rely on it for someone not inside the topic / passage. But how would Maimonides relate, for example, to something like the prosbul so that the door not be locked before borrowers? Enactments, fine, the Sages can make enactments. No problem, as long as you do not say that this emerges from the Torah itself, that it is Torah-level. And according to Maimonides there is no influence of a ruling of the great sage of the generation upward? It has no power? Meaning, like that story, that enactment of that court that intercalated the year, and Maimonides ruled for them that it is valid, so the ruling itself is what determined that it would be so, after the ruling and not before the ruling. Why is this connected to the issue of rules? There is an issue of determining reality here. No, if this righteous man or decisor uses rules, then maybe you can attribute such power to the rules. There is a well-known Shakh who brings the Jerusalem Talmud: for a girl under three, the hymen grows back. Yes, the Shakh says: what happens if the religious court intercalated the year? Meaning under age three, what happens if a girl had intercourse, meaning the hymen was broken—it grows back. After age three it no longer grows back. In adults it certainly doesn’t grow back. What if the religious court intercalated the year? I wouldn’t ask such a question. What do you mean? Obviously the intention is approximately age three. What does it matter if the religious court intercalated the year? To save this because we need her halakhic status? Does that change her status from the standpoint of Jewish law? The point is not that now a gynecological examination will show that because the court intercalated the year, then indeed… even after that question of the Jerusalem Talmud I would still interpret it as Yossi interprets. I’d say the Jerusalem Talmud still only wants to establish halakhic status. Whether when the religious court intercalates the year, then from the halakhic standpoint I relate to age three as the halakhic age, not the calendar age—not the calendar duration. Yes, but the Shakh for example understands it as a mystical determination. Meaning if the religious court intercalates the year it changes the biology of the girl. No, I think even the Shakh doesn’t. There is a passage—I think—in… where Rabban Gamliel has some gynecological trick to determine whether a woman is a virgin or not. Then one in that discussion of intercalating the year does not suggest a similar trick. Why not? Because the question whether virginity returns or not concerns her status with respect to the ketubah, I think, or something like that. And on that the power of the court can rule. It can rule against biology. The Shakh writes this. The Shakh takes it as a biological determination—that’s what I said. In the Jerusalem Talmud I’m not at all sure that’s right, but the Shakh takes it as a biological determination; he writes that. So it’s not just some passage. Well, that really does seem to me a bit far-fetched; I wouldn’t go there. But I don’t think the Shakh was less a man of rules. So I don’t think this is necessarily tied to our discussion. You can be a man of rules and determine that this ruling, in light of the rules, also determines the biology. So I don’t think it necessarily belongs to the discussion we’re having here. Good. Basically this leads us to focus more on Maimonides. Can we go until ten? Is that okay? Or… okay? I don’t think so. It’s just already been an hour until now, but I want to finish. Maimonides… yes. Maimonides has some agenda, and he writes in the beginning of his introduction that he wants to cover—maybe I’ll read you a few words from his introduction. He writes: “I also saw fit to compose a work that will include all the laws of the Torah and its judgments so that nothing shall be missing from it,” meaning it will include everything in the Torah, nothing missing, “and in it I will do what ought properly to be done, omitting mention of disputes and rejected opinions, and I will mention only settled Jewish law, and that work shall include all the laws of the Torah of Moses our teacher, what is needed in the time of exile and what is not needed.” Everything. Meaning Maimonides in fact undertook a halakhic enterprise without parallel from the days of Moshe Rabbeinu until today; no one did such a thing. There is no work parallel to Maimonides’ work; such a thing was never done. What Maimonides did was to take all the material that existed until his time—the halakhic midrashim of the tannaim, the Jerusalem Talmud, the Babylonian Talmud, Mishnah of course, Tosefta, whatever you want, the Geonim, the medieval authorities (Rishonim), the earlier earlier ones before him, the Ritz Giat and so on—he took this entire very large and very messy corpus and wanted to ensure that it all would enter into an organized, classified, sealed book. Meaning decided. Every dispute would be decided. He would not bring reasons, he would not bring the opposing views, he would simply give the bottom line, without leaving anything outside. He writes later that anyone wishing to look up Jewish law would not need to open any book other than this one. And without sources. What? And without sources. But he did commit himself to make another book afterward. No, that I don’t remember. There are things he explicitly writes about himself that he wrote—commentaries on the Talmud. He wrote, and apparently it was lost, on three orders; he writes in a responsum that he had already done commentaries on three orders. Possibly. I don’t know that. Possibly. In any case, that is his goal in this book. That is, he comes with some prior agenda, with a planned program, to produce a complete halakhic code. There is no complete halakhic code in all the history of Jewish law except Maimonides. There is perhaps one, Arukh HaShulchan together with Arukh HaShulchan HeAtid, but that is after Maimonides, so it matters less. Yes. That too is of course far from really being structured as a code. In any case, this is a monumental project. I don’t understand how a human being manages to do such a thing, while also being a physician and a philosopher and I don’t know what else, and sending letters and guiding students and consoling poor people in Yemen. It’s simply impossible to understand the work this man did. And I’m not talking about the quantity of writing. If you gather the Mishneh Torah as a continuous book without all the surrounding commentaries, it is not such a huge book. There are bigger books. That isn’t the point. The point is what theoretical work was done as infrastructure in order to build the Mishneh Torah precisely in such a concise form. Wisdom lies in shortening, not in lengthening. There is a well-known story about the Ketzot. Someone came to him and said: tell me, how did your book merit acceptance in the study halls? My book seems to me no less good and somehow it wasn’t accepted. So the Ketzot said to him: when do you write your book? He said: in the morning, when I’m alert, I write my book. He said: no, I write at night. In the morning, when I’m alert, I erase. And that is why his book was accepted. Meaning the wisdom is to shorten, not… that takes more work. Writing briefly takes much more work than writing at length; everybody knows that. In any case, to do this, and remember in the background the chaos prevailing until that period—think what it means to do such a thing. From the Talmud, Babylonian Talmud, Jerusalem Talmud, Geonim—how do you even begin? What was the primary classification that Rabbi did into six orders? Fine, there are tractates, a very associative order within the tractates, even among the orders. It does not really begin to be a usable skeleton. Maimonides himself writes how he debated how to do this, in what language to write, whether to use Rabbi’s division or not use Rabbi’s division; he writes all this in the introduction. In the end he writes that he had to establish some categorical system, how to arrange the laws so that it would cover all areas of Jewish law, that the categories would be more or less mutually distinct and would together include the whole halakhic corpus, so that nothing would remain outside. In order to do this one has to build a conceptual system. Meaning “hafla’ah,” “ahavah,” all these names of the books are not just names. They are decisions about an essential division of Jewish law into parts that have some connection, representing some idea. I’ll give an example. After the Tur divided Jewish law into four parts, and following him the Shulchan Arukh, and said that there is one part called Choshen Mishpat, in my humble opinion that is a halakhic revolution. A halakhic revolution. There are things we say today as self-evident that if the Tur had not made this division, it would be impossible to say them. That is, when the Tur distinguished that there is actually some part of Jewish law with a completely different character—the legal part, Choshen Mishpat—people knew that even earlier, there were implications, you could point to what is written in the Torah in matters of finance, so it was not from nothing. But the final conceptualization, the final determination that there is a part of Jewish law called Choshen Mishpat which is entirely different, whose logic is entirely different, whose halakhic status is entirely different—it is not exactly what today would be called, say, criminal law and civil law in the legal context—it is not something the Talmud could even have thought in those terms before the Tur. They simply did not think in those categories. There are hints, of course. There was some intuition that there are nevertheless different things here. But this determination can point to things that could not be said before the Tur’s division. They could not be said. It was impossible to think of them at all. In other words, dividing Jewish law into categories is work behind which there is a great deal of thought and idea. How do you organize the laws into categories that have meaning? Maimonides puts circumcision, blessings, and prayer within the Book of Love. In the Shulchan Arukh circumcision is in Yoreh De’ah and blessings and prayer are in Orach Chayim. There are different conceptions here of what circumcision is, perhaps. So this is not just some technical division. There is some thinking here about the entire halakhic structure: how best to divide it, what kinds of laws appear in it at all. He does this in more detail in the Guide for the Perplexed, in the third part, where he explains how he built the fourteen books. Now in order to reach such a sophisticated categorical system, which ultimately came out as fourteen books, each book divided into collections of laws—each of the fourteen books—he thought about how to do it. He first describes here in the introduction that he thought how to do this. He said: fine, the best way to do this is simply to make a count of the commandments, to gather the 613 commandments, which are the fundamental principles from which almost all Jewish law branches out, apart from laws given to Moses at Sinai, some of the laws given to Moses at Sinai, and perhaps enactments like Hanukkah and Purim. But aside from small margins, most Jewish law branches out from this—even rabbinic laws as extensions, it doesn’t matter. Then if I look at this essence of the 613 commandments, I can derive from it the categories—what kinds of laws there are, what kinds of commandments—and then from that come the fourteen categories and so on. Now before him—notice this—we are moving backward in the structure. This is how Maimonides, as it were, planned it. He describes it; I’m not trying to psychoanalyze him. He writes it. Then he asks himself: but what do we do? How do we count the commandments? There were counts of commandments before his time too. Earlier these were mostly admonitions and liturgical poems by various poets, whom Maimonides mocks greatly, saying they were more poets than analysts. And therefore everyone went like sheep to the slaughter after the Halakhot Gedolot. The author of the Halakhot Gedolot was of course a Torah scholar, not just a poet, and his count of the commandments stormed the stage because all the others were not of his stature, and therefore basically, as Maimonides describes it, everyone was drawn after him as though human intelligence had come to a halt with that man. As if what he says is final; one can no longer argue. And thus the count of the commandments was under the complete hegemony of the Halakhot Gedolot. Maimonides disagreed with the count of the Halakhot Gedolot in many areas. So he had to do two things: first, establish for himself principles for how one should in fact count commandments, how to organize it; and second, persuade the public to abandon that count and treat his count as the binding, authoritative count. And for that—in order to build the 613 commandments, notice the stages of the work, all this planned in advance, meaning an actual work plan, really a research team for several generations, what is done today in codification we know—even in Israel there is some team that has been sitting for quite a few years on a civil code. It is no simple work. So when he tries to find the rules for how to count commandments and how to prove that the Halakhot Gedolot is mistaken, he arrives at the fourteen roots, and that is the result of his work. These fourteen roots—the question is: where do you derive them from? If these are the roots that determine the count of the commandments, from where do they themselves derive? How can I reach these rules? Where are these rules written, according to what one counts commandments and according to what not? That itself is a very major work of classification of the talmudic material before him, together with a great deal of his own reasoning—straight reason, simply what seemed sensible to him, and what seemed sensible to Maimonides had real weight. The combination of these two things together gives him these fourteen rules. And on this, as I said before, Nachmanides cries out at him. With all due respect to straight reasoning, the material does not comply with it. It doesn’t work. It doesn’t fit the sources. Therefore one must be careful in using intuition, straight reasoning, and not establish such rigid rules. Then Maimonides of course begins to roll the carpet back the other way. After he manages to get through—he had to go through all the material before him, more or less remember it, gather it for himself, I don’t know how he did this. Then derive from it fourteen—or some number, it happened to come out fourteen—rules for how commandments are counted. In light of these rules, go through all the material again—and anyone with a bit of familiarity knows how complicated it is to derive what the 613 commandments are from all this material. You can’t derive it from the Talmud. You really can’t know what is a commandment, what is not a commandment, what is a separate commandment, what is the same commandment. From these rules Maimonides derived what the 613 commandments are. He then looks at those 613 commandments and builds fourteen categories. All this work he did himself. Altogether it took him decades. And he built these fourteen categories, which are the fourteen books of the Mishneh Torah, with subcategories in each of specific collections of laws, and then he goes over all the material once again and all the laws he finds in all the material he begins to slot under those headings and subheadings, and that is how he builds the Mishneh Torah. In other words, this is completely systematic work. There is no choice; there is no other way to do it. If you aspire to cover everything and forget nothing and have nothing contradict, you must work in such a systematic way. So Maimonides, beyond his nature and personality, the mission he took upon himself compelled him to do this work. In other words, this unusual work was not done by Maimonides by chance, because that was the goal he set for himself; it is impossible to do it without the theoretical work that preceded it. And he did very, very thorough theoretical work. So the first stage of that theoretical work is the roots, and that will be our topic over the course of the year.