The Perplexed of the Generation – Lesson 12

[Speaker A] Thursday, the 8th of Tevet 5771, December 16, 2010, a lecture by Rabbi Michael Abraham on Perplexities of the Generations.

[Speaker B] We’re in chapter 5, in Rabbi Kook’s book there,

[Rabbi Michael Abraham] where, within the theory of development, evolution, some conception arose—he calls it the heresy that wickedly sprang up at the feet of the theory of development. And this conception basically says that since things develop in an evolutionary way, then no, they have no authority, no validity. You don’t need to obey them, because this is a human invention that came about over the course of history; it didn’t come down from Sinai. So Rabbi Kook attacks this on two levels. First of all, he says that it’s not true because of the temporal consideration, which we talked about a bit—that spirit doesn’t have to be subject to the rates we know from matter, and it could all have come down from Sinai, and that doesn’t interfere with anything; it doesn’t have to take a long time. We talked about how that argument seems a bit problematic. And stage two, he says: besides that, even if it’s true that things developed over the course of history, that doesn’t matter. They still have validity and must be obeyed because of the acceptance of the nation. That was a stage that already appeared in the pages—the supplementary pages of what was omitted here. I suspect that if I have to discuss why this part was omitted, then it’s really either because he raises some realistic possibility—meaning he realistically addresses the possibility that not everything was given at Sinai, but rather developed over the course of history. And the second claim is—and we haven’t read this yet, we’ll see it later—his claim that you also don’t need to get to the idea that “the early ones are like angels,” and that decline of the generations is also not really a necessary assumption. So that’s probably what seemed a little problematic to the censors, and that’s why they removed it. True, at first I didn’t really understand what made them do it here. In any case, his argument is a two-stage argument. That is, stage one: it’s not true. Meaning, in the spiritual world development can be faster, and therefore it could be that with Moses our teacher everything was already there; the things weren’t invented over the course of history. And stage two: even if it were true that it was invented over the course of history, it would still be binding. Meaning, the conclusion—even if the premise is correct, the conclusion doesn’t follow from it. Last time we mainly discussed the first part, meaning mainly the claim that it isn’t true. I tried a bit to examine what Rabbi Kook means, because it is true. So what does he mean when he says it isn’t true? Does he mean the naïve approach that says everything really came down from Sinai with all its details and fine points as we know it today, right down to the subparagraph of the Mishnah Berurah? That’s a bit hard to accept as a claim, and it was even hard for me to believe that Rabbi Kook really meant to say such a thing. So I suggested a second possibility, which says that everything came down from Sinai in some potential sense. Meaning, everything that developed over the course of history is latent in one way or another in the principles that came down at Sinai. Not that he means to say that all the details were already actually in Moses’ hands. I said that this seems much more reasonable to me conceptually, to make that claim, so at first I thought it more likely that Rabbi Kook meant that. But I noted that from his formulations it isn’t entirely clear. If I were reading only the wording without all the considerations of plausibility and familiarity with Rabbi Kook and so on, then I would say that he does mean the naïve conception. The conception that everything came down from Sinai, because otherwise what he says here about this temporal argument—that everything can be grasped in one blow and therefore there’s no difficulty from material development, which takes time—shows that with Moses our teacher all the details really were there. And that’s why he says it isn’t problematic, because he could have grasped everything all at once. Because the way I’m saying it, you don’t need to get to all these temporal considerations. Moses our teacher didn’t have all the details in hand; the details are products or derivatives of the principles that Moses our teacher had in hand. And if Moses our teacher had only principles, then there’s no issue here of a huge number of details that all have to be covered at once. The temporal argument wouldn’t have had to come up if Rabbi Kook had meant to say what I put in his mouth. So therefore I don’t know. In short, decide for yourselves. In any event, that’s the first step. Then the second claim was that despite the fact that… actually this is at the beginning of the page, in the supplementary page—does everyone have it?—“Indeed, even according to their claim, we have no room to exempt ourselves from anything accepted by the nation as a whole,” at the beginning of the supplementary page. We already read it; I’m just briefly reviewing it. “Indeed, according to their claim, we have no room to exempt ourselves from anything accepted by the nation as a whole, for this is the entire foundation of national existence. The Torah entrusted every doubt to a religious court, and the appointment of the religious court itself depends on the acceptance of the nation.” Meaning, it depends on the nation accepting it. “If so, whether the entire Oral Torah was received in all its details by Moses our teacher, peace be upon him, from Sinai, or whether it was instituted over thousands of years through explanations and enactments of religious courts, the acceptance of the entire nation is the foundation of obligation. And one who removes himself from the collective is as though he denied the essence.” Meaning, he says: even if you were right that this developed over the generations and not everything came from Moses our teacher, your conclusion—that if so it isn’t binding because it isn’t Torah from Sinai—isn’t correct. Because what obligates even the Torah from Sinai—what obligates—is the acceptance of the nation. So if there is acceptance by the nation also for things that developed over the course of history, then that binds in exactly the same way. That’s basically his claim. There are several points here. We also read the next paragraph; I still want to make a few comments here, because I read it quickly without too much elaboration, this paragraph too. First of all, his claim is that the appointment of the religious court itself depends on the acceptance of the nation. What does that mean? The religious courts, or ordination, are not a process that comes from below; it’s a process that comes from above. What are ordained judges? Someone ordained to issue rulings. Someone ordained to issue rulings is someone ordained from one ordained person back to Moses our teacher from the mouth of divine authority. Yes? The Holy One, blessed be He, ordained Moses our teacher; Moses our teacher ordained Joshua, and maybe the elders, and they continue ordaining further, and every ordained person can ordain others and thus continue the chain of ordination. The public has nothing to say about this. Nothing to say about it. Now, the public can demonstrate outside; it won’t help at all.

[Speaker D] No one will accept him as someone who, by virtue of

[Rabbi Michael Abraham] authority—no one will come to that religious court. If no one comes to that religious court, then everyone is acting criminally in a way—if no one wants to keep the Sabbath, then there won’t be Sabbath either. That’s true. But on the halakhic level, you don’t have… you can of course be a criminal; that’s always true. A person has free choice. But the public has nothing to say regarding who is a religious court and who is ordained.

[Speaker B] It comes from above. Does every religious court need to be ordained? Yes.

[Rabbi Michael Abraham] No, no, no—not every religious court; every religious court that innovates law… not every religious court—every religious court. Every—even one of three. Strictly speaking, every religious court needs ordained judges. There can be an arbitration court where this one chooses one and that one chooses one, or things like that; there can be three cattle herders. But that’s because the parties accepted the courts upon themselves. But a religious court that can force you to come litigate before it and enforce its decisions on you even though, of course, you didn’t accept it… if you did accept it, that’s by contract law—you obligated yourself to do what they say, like today when you go to arbitration. You go to an arbitrator, you commit yourself to do what he decides. Fine? So that’s something else. That’s arbitration, not a court. A court—you have to do what it says not because you decided so. Now here with us it somehow does come from us, because we vote for the Knesset, and through the governmental institutions they appoint the judges.

[Speaker B] Today, in terms of Jewish law, the halakhic institutions don’t obligate… if, say, I go to a religious court to sue someone in monetary law.

[Rabbi Michael Abraham] No. What happens today is that because there are no ordained judges, the Talmud says there is a rule that “they act as their agents.” That the judges today, even though they are not ordained, act as the agents of the ordained judges who once existed. Talmud in Gittin 88—some kind of

[Speaker B] sort of an after-the-fact arrangement.

[Rabbi Michael Abraham] Yes—not only after the fact; basically it isn’t valid in principle. But they are agents of the previous judges. There’s no choice; otherwise there would be anarchy. So the previous judges, as it were, appointed them to be their agents, and of course they really did have authority. So once they delegate the authority they had to their agents, that’s the halakhic theory for why today’s courts actually have validity. An interesting theory in itself. Of course, it never actually happened. Nobody ordained anyone as… nobody appointed them as an agent.

[Speaker B] They didn’t appoint them.

[Rabbi Michael Abraham] Yes, it’s clear that there was no real, actual, historical act of appointing agents here. It’s a halakhic fiction. Fine, but that’s the conception—the conception underlying the obligation toward today’s courts. Strictly speaking, everyone needs to be ordained. Now there is a dispute at the beginning of tractate Sanhedrin regarding a court of three for monetary law; there are opinions that maybe only one ordained judge is enough and the other two can be ordinary people and not all three ordained, or that this is only a rabbinic leniency, or—it’s a very, very complicated issue. But strictly speaking, courts need ordained judges; judges are ordained—there are no other judges. Now ordination is a process that comes from above, not from below. The Holy One, blessed be He, ordained Moses; Moses ordained those who came after him, and so on. It comes from above; the public has nothing to say about the matter. So what is Rabbi Kook talking about when he writes here that the appointment of the court depends on the acceptance of the nation? What suddenly? Nothing depends on the acceptance of the nation. On the formal halakhic level, the authority of a religious court comes from above.

[Speaker B] Right.

[Rabbi Michael Abraham] There is Maimonides’ well-known innovation regarding the renewal of ordination. Maimonides struggles with what will happen in the future—“And I will restore your judges as at first,” and so on—the ordained judges will return. Fine, but how will they return? An ordained judge has to be ordained by an ordained judge. How will that happen? How will it be done? Maimonides was a realist; he didn’t think ordination would descend from heaven. Meaning, somehow this has to happen through processes known to us, the ordinary halakhic processes that we understand and know. So there he introduces his great and famous innovation: ordination can also be renewed from below. “From below” means that if all the sages of the Land of Israel decide to ordain one of their number, then he again becomes ordained even today, in any period. He starts a new chain, as though he had been ordained by an ordained person all the way back to Moses our teacher. That’s Maimonides’ great innovation, and the famous ordination controversy from the 16th century, and even Rabbi Maimon had something of an attempt like this, and more. In any case, then there is in fact an alternative mechanism of ordination that really does come from below. And when Rabbi Kook explains this mechanism that Maimonides innovates, Rabbi Kook ties it to this. So Rabbi Kook says: how can this be? We said that an ordained judge must be ordained by an ordained judge—there are rules. Maimonides writes that a court that ordains must include one ordained judge and two laymen. So it has to be a court of three containing one ordained judge. Meaning, there must be an ordained judge in order to produce a new ordained judge. You can’t create ordination out of nothing. So where did Maimonides suddenly get a law that contradicts all the laws we received? So Rabbi Kook argues that once there are no ordained judges—once the ordained judges disappear—the authority returns to the public as a whole. And once it returns to the public as a whole, then it is now basically in the public’s hands. Now if the public then decides to ordain someone new, the authority didn’t vanish into heaven; it remained with the public. The moment the public decides to ordain someone new—fine, very good—it can transfer the authority that remained with it and return it to a person who can now begin a new chain. And that is, of course, consistent with his position here, that he understands that something in the authority of the religious courts does in some way draw from the public. And therefore, when the courts disappear, the authority somehow remains in the public’s hands. It isn’t entirely clear where this comes from, because as I described earlier, the regular mechanism of ordination doesn’t indicate even by a hint that the public has anything to say in the matter. But this innovation of Maimonides may indeed say just that. This innovation of Maimonides really does say that there is at least something alternative here. Or perhaps you could say that when the Holy One, blessed be He, ordained Moses our teacher and Moses our teacher ordains others, in this conception they are really acting, as it were, on our behalf. It doesn’t really come from above; rather, the Holy One, blessed be He, decided what we want—rather like Stalin also liked to decide. Meaning, he would decide what the public wants, and that’s what the public wants. So there’s—I don’t know—something like that here. And therefore Maimonides, and following him Rabbi Kook as well, understand that the public nevertheless does have something to say as to who the judges are. We’ll see this aspect later in his remarks too, because there are more comments for which I’ll need this point. But it’s an important point. As for the very fact of acceptance of the Torah, it’s fairly clear where Rabbi Kook gets the idea that it depends on the acceptance of the nation—“we will do and we will hear”; he says this. The Torah itself says that the public accepted it upon themselves, and that is how the obligation was created. So in that sense it’s fairly clear. What I just noted concerns only the appointment of the courts, not the obligation to the Torah. Okay, now: “From what has been said you learn that the belief that the Oral Torah in its entirety was transmitted to Moses our teacher, peace be upon him, by divine revelation, is a belief we received from our fathers and is true in itself, but it is not only upon it that the existence of the Oral Torah in Israel depends.” Once again he returns to his two-stage argument. “And we were also obligated in commandments that are certainly rabbinic.” What is his proof? Basically, after all, rabbinic commandments also obligate us. And rabbinic commandments are certainly a later product. They weren’t created at Mount Sinai. So why are we obligated in them? Well, that’s not difficult. You might say: “Do not deviate” is from the Torah. The commandment of “do not deviate,” which obligates us in this, is a commandment written in the Torah. So that’s no great proof. Rabbinic commandments have an anchor in the Torah itself. So he says: “After all, many of our rabbis hold that where the rabbis attached them to the prohibition of ‘do not deviate,’ since according to them this is only an asmakhta, from where does the foundation of the obligation come?” Nachmanides, after all, attacks Maimonides. Right? Maimonides says that from “do not deviate” we derive the authority of the sages also to enact and decree decrees, even regarding rabbinic law, and then Nachmanides attacks Maimonides: how can that be? According to your view, it comes out that every rabbinic prohibition is really a Torah prohibition. Because the moment I eat fowl with milk, I’ve violated “do not deviate,” which is a Torah prohibition, so doubts, for example, should have to be treated stringently and not leniently. That’s how Nachmanides attacks Maimonides. Therefore, says Nachmanides, there’s no such thing—it doesn’t come from “do not deviate.” “Do not deviate” gives the sages authority to interpret the Torah, or expound the Torah, or perhaps transmit a tradition of a law given to Moses at Sinai—but not to enact and decree decrees, not regarding rabbinic laws. So where does it come from? The authority of the sages to enact and decree decrees? That Nachmanides doesn’t explain. He has a very long gloss on Maimonides’ first root, and it isn’t explained there. He only rejects Maimonides’ possibility; that much is clear.

[Speaker B] In one place he writes, “According to the Torah that they instruct you.”

[Rabbi Michael Abraham] No, that’s a positive commandment; it doesn’t matter, it won’t help, because if that were the source, then once again doubts would have to be treated stringently. Rabbi Elchanan Wasserman points this out. He says everyone asked what Nachmanides’ source is—why, according to Nachmanides, must one obey the enactments and decrees of the sages? If it doesn’t come from the verse “do not deviate,” then where does it come from? So Rabbi Elchanan Wasserman says the problem is much more severe, because even if we assume there is some hypothetical verse from which one could derive it, it still won’t help, because the same problem he found in Maimonides’ view would arise in his own view too. After all, if it is based on some verse, then it becomes Torah law, and if it becomes Torah law, then doubts should have to be treated stringently. So the very same difficulty he raised against Maimonides would really be difficult for him as well. Therefore, on its face, a priori—even before we start looking—it is clear that according to Nachmanides this is not based on any verse, no verse at all. Fine. So if it isn’t based on any verse, maybe it’s based on reason? Rabbi Elchanan says no, it can’t be based on reason either. Why can’t it be based on reason? Because reason is Torah-level. If it were based on reason and not on a verse, that too should have been Torah law. How do we know that? Because the Talmud says, after all, “Why do I need a verse? It is logical,” regarding all sorts of laws, right? What does that mean? It means that laws learned from a verse—if we have a logical reason for them—the Talmud sees the verse as unnecessary. Why is it unnecessary? Because even if we learned it from reason, it would apparently be Torah law. Because if what we learn from reason were rabbinic law, what sense would it make to say, “Why do I need a verse? It is logical”? Why do I need a verse? Learn it from logic. But if I had learned it from logic, it would have been rabbinic law, and the Torah wants to teach me that it’s Torah law. So what kind of question is “Why do I need a verse? It is logical”? Rather, we are forced to conclude that what comes from reason is also Torah law. So he says: fine, then it can be based on neither a verse nor reason. So what’s left? The fellowship of the sages. Fine. So there he engages in some kind of pilpul that isn’t entirely clear to me—Rabbi Elchanan Wasserman. What he says there sounds a bit dubious to me, but it really is a difficult question. So Rabbi Kook offers a solution here. What is the solution? Acceptance by the nation. He says: just as the nation accepted the Torah itself upon itself—after all, why are we obligated to keep the Torah? Because we accepted upon ourselves to keep the Torah. Meaning, we see that acceptance by the nation is a foundation that is sufficient to obligate us in norms that we accept. So too with rabbinic laws: since the nation accepted upon itself the authority of the sages, therefore that obligates us also in rabbinic laws even without a verse. Like Rabbi Shimon Shkop in Sha’ar 5, when he speaks about—it’s his innovation, I won’t go into the details now—he innovates that at the basis of the laws of ownership, or not at the basis—property law itself is not located on the formal halakhic plane; it is located on a meta-halakhic plane, what Rabbi Shimon Shkop calls “the theory of legal systems.” Meaning, the question of who is an owner and in what way one becomes an owner—that is a question decided according to legal rules, not halakhic rules; the point is that they precede Jewish law. What society determines. What society determines is what determines ownership. Jewish law only places the prohibition of “do not steal” on top of the laws of ownership. Meaning, after we decide who owns what, when I take an object from you that you own, then I violate “do not steal.” But what determines who the owner is and who is not the owner, or how ownership is acquired—that is fixed outside Jewish law, before Jewish law. That is what is called the theory of legal systems. Then he asks: perhaps you’ll say, so why should one obey that? There’s no verse in the Torah for it. So why are you asking me that? Ask me why one has to fulfill what is written in the Torah. What is written in the Torah one has to fulfill because reason says so; well, reason says that too. So Rabbi Kook is making a somewhat similar move here. Rabbi Kook is basically saying: wait, so why do we have to obey rabbinic laws according to Nachmanides if there’s a verse “do not deviate”? And you ask me this? Ask me why according to Maimonides one has to obey rabbinic laws because there is a verse “do not deviate.” And why must the verse “do not deviate” be fulfilled? Torah law is so obvious, and rabbinic law raises a question for you? You understand why Torah law has to be fulfilled? Why does it have to be fulfilled? Because we accepted it upon ourselves to fulfill it. Fine. If we accepted it upon ourselves to fulfill it, very good—we also accepted this upon ourselves to fulfill, namely rabbinic law. So what’s the problem?

[Speaker B] If in the very end that’s the source and that’s the foundation for why we do what we do, then נכון,

[Rabbi Michael Abraham] the legislator did not give it the same degree of force. We accepted upon ourselves an obligation to whatever the legislator says. But if the legislator himself tells me that this law has a lesser meaning, a lower halakhic force—fine, then that is what he determined. Even in the Knesset there’s a kind of hierarchy of laws. There are basic laws; there are laws built upon the basic laws. Whoever accepted upon himself obligation to what the Knesset legislates behaves according to the hierarchy the Knesset established.

[Speaker D] Yes, in the end it turns out that the value of acceptance is the fundamental value, the most

[Rabbi Michael Abraham] the most basic,

[Speaker D] yes, it comes before the value of the obligation to fulfill a commandment.

[Rabbi Michael Abraham] Right, right. It’s the basic value.

[Speaker B] Right, so it seems to me that here someone is trying to prove from rabbinic law to Torah law, and that’s what he means there.

[Rabbi Michael Abraham] No, he is proving the

[Speaker B] only in the sense that he says—he goes here as if trying to show in passing that rabbinic law is just a mere asmakhta, and from that he wants to show that… but they’re not making that claim, that same claim, to those who say evolution proves that this has no authority. It’s obvious they don’t agree that rabbinic laws have authority. No, leave evolution aside—you don’t need to get to asmakhta through evolution. You’re just not obligated to Jewish law. No, I’m not obligated, I’m not—so let’s say, someone who makes the claim—those who argue that what is made by human hands has no authority, no binding force, right? Then rabbinic laws aren’t binding on them either. No, so yes, right—you’re correct on the logical level, but then you don’t need evolution for this. After all, what is he saying? If until now you kept Torah, then why did evolution suddenly wake you up? Until now you kept it, including rabbinic laws. Why did you keep it? Because you accept upon yourself the acceptance of

[Rabbi Michael Abraham] the nation.

[Speaker B] Fine, I

[Rabbi Michael Abraham] accepted the acceptance of the nation, so evolution also shouldn’t bother you. That too. Obviously someone who doesn’t accept this won’t accept it, but that’s obvious; some assumption has to be made here. In any case, that’s what Rabbi Kook argues, and therefore from this Nachmanides he basically proves that acceptance by the nation is the basic norm; it’s the thing that fundamentally obligates us in Torah and commandments and also in rabbinic law. Maybe let’s just finish this paragraph: “Rather, this matter belongs to the simple dictates of reason: that the nation as a whole is obligated to conduct itself after its elders and sages, and that the individuals in the nation are obligated to conduct themselves according to the simple center of the collective.” Here “center” means the heart, yes? The leadership—the elders and sages, basically. “And this is certainly a full Torah-law obligation, and it stands above every obligation, to the point that it is fit to be the foundation of every holy obligation”—what we called earlier the basic norm. “For after all, even regarding the very existence of the Torah, although it was directly by God, nevertheless the Sages received that for us it must become a complete obligation precisely through willing acceptance, namely the willing agreement of the whole nation. And in the Torah it is explicit that we accepted the Torah upon ourselves by saying, ‘We will do and we will hear.’ Therefore, aside from the fact that in truth all matters that are explanatory of the commandments or are fences for them—we make no distinction at all in their severity whether they were transmitted as a law given to Moses at Sinai or were explained by the reasoning of some agreed-upon religious court; once the ruling has spread through the nation, we have already become fully obligated by it. If so, even if the claimant says that all the laws of the Oral Torah are nothing more than things clarified by religious courts over time, the obligation remains standing at its full level. And matters that are rabbinic—the foundation of the matter is certainly the nation’s general acceptance. If so, those who sought to strike at people’s hearts and raised a grudge by saying that the Oral Torah was instituted over time by various sages and religious courts, and by this wanted to weaken people’s hearts and slacken their hands in observing the Oral Torah—they gained nothing by their trickery; their trickery did not help them at all, because the obligation is founded only on the acceptance of the nation as a whole. For after all, even those laws that were received as a law given to Moses at Sinai—if they were forgotten, we would restore them by way of exegesis, we would derive them, as happened with the three hundred or three thousand laws forgotten during the mourning for Moses.” And on that Talmudic passage in Temurah I already commented—the Pnei Moshe, I think, one of the commentators on the Jerusalem Talmud, says that after we reconstructed it, it did lose some of its force. This was a law given to Moses at Sinai: a sin-offering whose owners died. That was a law given to Moses at Sinai; we forgot it; Othniel ben Kenaz restored it through his dialectic, and now the Pnei Moshe says: if so, then it’s no longer a law given to Moses at Sinai. Its force actually dropped. But Rabbi Kook here assumes that it doesn’t work that way. In any case, a few more comments on this passage—several comments that seem important to me. First point: Nachmanides himself, when he tries to explain—I said that in one place he does try to explain why we are obligated to obey rabbinic law. He has one sentence there within his enormous introduction to the first root. And what he says there is that the sages attached it to “do not deviate.” It is an asmakhta on the verse “do not deviate.” So he too somehow connected the obligation to obey the enactments and decrees of the sages with the verse “do not deviate.” He only claims that this is merely an asmakhta, and not, as Maimonides says, something derived directly from that verse. Now what does this term asmakhta mean? On the face of it, what he says there is complete nonsense. Because the term asmakhta, as we usually encounter it in the Talmud, means a rabbinic law for which they found some support in a verse. Okay?

[Speaker B] So it’ll be easy to remember.

[Rabbi Michael Abraham] Yes, so it’ll be easy to remember, regardless of this reason or that one. Yes, but that’s a rabbinic law. So what is Nachmanides actually telling us, sorry? Why does one have to obey rabbinic laws? Because there is a rabbinic law that says you have to obey rabbinic laws. That’s basically what he’s saying. There is a rabbinic law for which they found a textual support in the verse “do not deviate.” But as I said last time when I spoke about the basic norm, right? A basic norm always has to be outside the normative system that is based on it. There can’t be a law that says one must obey laws. Because then there is no reason to obey that law itself. Right? It has to be some principle that lies outside the system. So how can it be that the basis of our obligation to obey rabbinic laws is itself a rabbinic law? Something here is problematic. The concept of a textual support doesn’t solve anything here. And Rav Kook really does propose a solution. Rav Kook doesn’t leave it at that. Rav Kook suggests that there is really some kind of acceptance by the nation. And once there is acceptance by the nation, the obligation to keep rabbinic laws remains in force, and there is a textual support in “do not deviate.” But it doesn’t really stem from the verse “do not deviate”; it comes from the nation’s acceptance. There is room for a comment here. I don’t think that’s the correct straightforward reading in Nachmanides, because if indeed the nation’s acceptance is the highest and most important foundation there is, then once again we return to a kind of reasoning. And then Nachmanides’ question comes back again: why isn’t every rabbinic law a Torah-level law? It’s somewhat similar to the question you asked earlier, but not exactly. Because Nachmanides himself, when he questions Maimonides—Maimonides says that rabbinic laws derive from “do not deviate.” Nachmanides asks him: if that’s so, then these are not rabbinic laws, they are Torah-level laws. Because someone who ate poultry with milk violated “do not deviate.” So in cases of doubt you should have to be stringent, and so on. He himself raises the possibility of saying that the sages themselves, since they could after all have chosen not to enact the prohibition of poultry with milk, when they did enact it they themselves gave it a lower halakhic status—what I answered you. But Nachmanides rejects that. Nachmanides says that’s not correct. By the way, he doesn’t explain why. He says it is obvious to any person of understanding that it is not correct. That cannot be the explanation, and therefore he rejects Maimonides. Now why is it really not correct? That is an interesting question. The Shev Shema’teta, in Shema’teta 1 by the author of the Ketzot, right? He wrote Shema’teta—a book he wrote in childhood, in his youth. Maybe he polished it a bit when he got older, but it’s a book written in his youth. There, in Shema’teta 1, he deals with the laws of doubt, and he explains there why Nachmanides rejected Maimonides. And what he says there is this. What did Nachmanides ask against Maimonides? That a doubtful case in rabbinic law should be treated stringently, because it is really a doubt in a Torah law, a doubt about “do not deviate.” So what is the answer we propose? And many later authorities really do say this, even though Nachmanides rejects it. They say that this is really the plain meaning in Maimonides: that the sages themselves, when they established this law not to eat poultry with milk, also established that in cases of doubt one rules leniently—that it has a lower halakhic status than a Torah law. They could have chosen not to enact it at all, so of course they can also determine what force it will have, right? After all, they could have chosen not to establish at all that it should be forbidden to eat poultry and milk. So they can also establish it at a lower level. That is what Maimonides claims—or at least raises as a possibility—and that is what many later authorities say. That is the accepted explanation of Maimonides.

[Speaker B] Wait, wait—but in cases of doubt they established a principle. Yes, obviously.

[Rabbi Michael Abraham] But since with regard to each and every matter they could have chosen not to enact, they established a general principle. All right? That is usually how Maimonides is explained, and I’ll say again: Nachmanides raises it and rejects it. I also think it is not the explanation in Maimonides. Maybe we’ll get to that later. But says the Shema’teta: why can’t that be correct? Let’s see what happens when there is a major doubt. There is a dispute between two sages regarding a rabbinic law. All right? A dispute between Rabbi Shimon and Rabbi Yehuda, it doesn’t matter right now, regarding a rabbinic law. Okay? What do you tell me? A doubt in rabbinic law is ruled leniently. Right? Why? Because that sage who told you the rabbinic law also told you that it is only a law with rabbinic force, such that doubts are ruled leniently. But here the doubt was created because I do not know who is correct, Rabbi Yehuda or Rabbi Shimon. Right? It’s not that I have an enactment of Rabbi Yehuda—say, not to eat poultry with milk—and now I have something before me and I’m not sure whether it is poultry or not; I’m in doubt. The enactor tells me: know that I forbade poultry with milk, but in cases of doubt I allow you to be lenient. But here, if I had asked Rabbi Yehuda, may I be lenient if I am in doubt? Certainly not. Rabbi Yehuda says it is forbidden; he has no doubt. I am in doubt because I don’t know whether Rabbi Yehuda is right or Rabbi Shimon is right. But neither of them tells me that even if it is forbidden, in this kind of doubt you may be lenient. Rabbi Yehuda says this is not a doubt at all—it is forbidden. Rabbi Shimon says it is permitted, so then it doesn’t matter. So who here said this notion, that even if it is forbidden, in such a doubt I may be lenient? That is the Shema’teta’s claim. Now, I don’t think it’s all that terrible. It could be that there is some general principle here that the sages say overall: when you are in doubt regarding our words—not Rabbi Yehuda regarding his own enactment—

[Speaker B] Including if there’s doubt, yes,

[Rabbi Michael Abraham] including even if there is doubt between us, it was also on that basis that they enacted that you may go leniently. I don’t think that’s such a devastating objection, but that is how he explains why Nachmanides does not accept this explanation in Maimonides. But for our purposes, the reason doesn’t matter. If Nachmanides doesn’t accept this explanation in Maimonides, then he himself certainly can’t use it here. Right? And what are we proposing? What Rav Kook is actually proposing, it seems to me, is this type of explanation. What Rav Kook is suggesting is that Nachmanides claims that one must obey the words of the sages because of the nation’s acceptance. And the nation’s acceptance is the most authoritative foundation there is, like a Torah-level law. It is a Torah-level law. Well then, why in doubtful cases of rabbinic law need one not be stringent? Why are these not Torah-level laws? We said: either reasoning or a verse—everything leads us to Torah-level law. So what is it? It’s not reasoning and not a verse? It is reasoning. Reasoning that says one must obey what the nation’s acceptance established. So what will you tell me? Yes, but the nation itself accepted this on lower levels, that it is only rabbinic. But Nachmanides himself doesn’t accept that line of reasoning. So in Nachmanides, that can’t be the explanation. He himself does not accept that explanation. So even if it were true, in Nachmanides himself it certainly cannot be the explanation of his words. Therefore I don’t think Rav Kook is correct in the explanation he offers for Nachmanides, this whole “nation’s acceptance” idea. In my opinion, something else is going on here. That’s just a parenthetical comment; it’s not an explanation of him, it’s a comment on him. In fact, any explanation I bring in defense of Nachmanides will be an own goal. Because why didn’t Nachmanides say it? Nachmanides devotes miles of critique to the first root—miles. He raises there objections with truly amazing breadth of knowledge, and it is very impressive to see Nachmanides’ critiques of the roots. He sails there through all of rabbinic literature in a really virtuoso way, at enormous length. Give us a sentence or two. Explain why you think this is your discussion. Explain why you think one has to obey the sages. Maimonides proposes “do not deviate,” a hierarchical method that is logically ordered: there is Torah, the Torah said “do not deviate,” that grants authority to the sages, everything is orderly. Nachmanides says no, “do not deviate” does not grant power to the enactments of the sages. So what does? Why don’t you say a word? He says: a textual support in “do not deviate.” What is “a textual support in do not deviate”? So what is the real reason—not what is your textual support, but what is the real reason? The nation’s acceptance? Then why didn’t you say so? What is this nation’s acceptance? Why didn’t you say it? Okay, so it seems to me that… what?

[Speaker B] Some authority from the Torah?

[Rabbi Michael Abraham] So where does it come from then? From rabbinic law? Is there rabbinic authority for the claim that one must obey rabbinic law? Where does it come from? How does it begin? What is the basic norm?

[Speaker B] If you don’t want to, don’t keep it.

[Rabbi Michael Abraham] Fine, so that’s not it. Torah-level law too—if you don’t want to, don’t keep it, then you’ll suffer for it.

[Speaker B] If you don’t want to, don’t keep it, then you’ll suffer for it. Is there a Torah-level punishment if a person violates a rabbinic prohibition? Yes. What punishment?

[Rabbi Michael Abraham] Punishment at the hands of Heaven.

[Speaker B] Fine, you’ll get to Heaven and see. All right.

[Rabbi Michael Abraham] The assumption is that this is a halakhic obligation. To say there is no such halakhic obligation—that’s possible. By the way, I once actually thought this could be Nachmanides’ explanation. Nachmanides says: you have to keep rabbinic laws because they are correct, not because there is some formal obligation. After all, we talked about the traffic light—the traffic light keeps accompanying us all the time—crossing on red, right? Basically, it makes sense not to cross on a red light even before it was legislated. It only becomes legally forbidden after it was legislated. Right? With rabbinic laws there isn’t really that layer. But since the sages were wise people, we have some trust that their judgment is correct. Okay? So if that’s so, then what they said is probably right. And therefore one should do it, not because there is some legal duty here, but because it is right.

[Speaker B] But then it already depends on me—whether I think it’s right or not.

[Rabbi Michael Abraham] Exactly. And then there could be a personal side to it for each person. The whole world thinks they are wise, so how do you suddenly think they are not? Fine. I once thought that might be a possible way out, but it seems to me there is a more sensible or better way out. And the way out I want to propose here has two aspects. I’ll start with the simpler aspect. When we look at the sages and ask ourselves why one has to obey the sages, we always search—this is an oppositional picture, right? We are standing opposite the sages, they command us, and the question is why one should listen to them. Who are you? So what if you command me? Lots of people issue commands at me. Why should I obey you? In this oppositional picture, a justification is required. Right? You command me—why should I obey? Give me a justification why I must obey you. But if the picture is not oppositional, think of it this way: it’s not that the sages stand there and we stand opposite them. The sages are also facing in that direction. We stand behind them. They represent us; they do not stand opposite us. Meaning, when the sages decide something, it obligates us not because they have authority over us. It is because they are our representatives; we determined it, not they. They are our representatives, and when they determine something it is as if we determined it. Now, what we determined certainly has to be kept. That does not need explanation. What a person determined for himself, he must keep. So the whole assumption that searches for explanations of why one must obey the sages is an assumption that sees the picture as some kind of face-to-face picture, like the faces of the cherubs, right, facing one another. The sages opposite the public. And the question is why the public should obey them. Who are you? Some kind of government coming to impose its authority on the citizens? But if I say no—the sages are actually walking ahead of me, and I am behind them. When they speak, when they legislate, they do so in my name, in the name of the public. Once the public decided something about itself, then of course that obligates it. What you decided about yourself you must keep. Obligations have to be kept, like contracts, like oaths, like vows, it doesn’t matter. Meaning, everything to which you are obligated, of course you must do, right? So therefore Nachmanides is basically claiming that no justification is needed. That is what is beautiful about this explanation. Because any justification you bring, even if it is wonderful, the question will always remain: why didn’t Nachmanides bring it? Why doesn’t he write it? The nation’s acceptance, whatever you want—say it! Why don’t you write, in one sentence or two, why one must obey the sages? What alternative are you proposing to what Maimonides says, which is the most sensible thing, the most logical thing: there is a verse in the Torah that delegates to the sages, everything is fine.

[Speaker B] Yes, but why are they our representatives? By force of the nation’s acceptance?

[Rabbi Michael Abraham] In just a second.

[Speaker B] This—

[Rabbi Michael Abraham] That’s the second aspect, which we’ll discuss in a moment. It definitely could be that this is indeed based on Rav Kook’s nation’s acceptance. Not the obligation itself, but the recognition that when they speak, they speak in our name. And it makes a lot of sense that this would be based on the nation’s acceptance.

[Speaker B] Like elected officials.

[Rabbi Michael Abraham] Yes, exactly. Like a legislator, yes, like a ruler or legislator or something like that. His authority is because of that. There too, by the way, it is the same with law, in my view. All the explanations you find in books on legal theory—very learned explanations—of why one must obey the law. There is a book by Haim Gans called Obedience and Refusal, and in the first chapter he surveys all the well-known positions in the literature on why one must obey the law: cooperation with just institutions, gratitude, social contract, and things of that sort. The fact is that when you ask a person on the street, why is something forbidden to do if it is against the law, it is the kind of question that for the average person is not even really a question. What do you mean? The law said so, no? Now for many years that always seemed terribly naïve to me. What, so the law said so—so what? It’s still arbitrary. There are lots of people who can say things. So what if he said it? I think there is something very deep here. There is something here that really says no explanation is needed. So I don’t think “why is that?” I don’t fail to think it because I’m stupid, but because it is agreed upon for me, it is obvious. If someone is acting in my name, then really I am the one speaking here. Once I am the one speaking here, then if I legislated it, obviously I must keep it. No explanations are needed here. It isn’t a question of explanations. So here too, that national conception as though the legislator stands opposite me—when there was a king, it really was a harder question. Because a king usually did not come by virtue of the public. A king was imposed on the public from above. But in a democratic regime, in my opinion, it’s basic. In a democratic regime, the whole meaning of the obligation to obey the law is entirely different than in a monarchical regime.

[Speaker B] A king among us does not come by virtue of the public.

[Rabbi Michael Abraham] I’m not speaking specifically about us. I’m speaking in general, about any society, speaking in terms of legal theory. When you look at a legal system in some state, usually it’s the king. What—who appointed him? He took over by force at some point, and now passed it on to his children and grandchildren.

[Speaker B] If it’s a dictatorship, then it’s imposed.

[Rabbi Michael Abraham] Exactly. And then the national feeling is always: wait a second, why do I have to obey him? And if I can outsmart him, I’ll outsmart him. Then the question arises: even if you do outsmart him, it still destroys the social fabric, and there are various explanations for why maybe one should still obey the law—and perhaps that is the basis of the law of the kingdom is law—and all is well. But it seems to me that looking at it as the law of the kingdom is law is the wrong perspective. Because when we are speaking about representatives who truly come by our authority—and again, with the sages it is not so simple that they come from us; Rav Kook understands it that way, at least—but when we are speaking about people who come by our authority, the whole question never arises. It’s not that I’m searching for explanations. There’s no need; there is no question. It’s like saying: I decided to do such-and-such. Why am I obligated to do such-and-such? Because that’s what I decided, what do you mean?

[Speaker B] If I decided, then I have to do it. But the nation’s acceptance also says that about the Torah.

[Rabbi Michael Abraham] But the Torah isn’t from our authority. What? The nation’s acceptance says… no, no, Rav Kook says that. That’s why I’m saying I don’t think Rav Kook meant this. I’m saying the nation’s acceptance could have been the basis for the idea that the sages speak in our name, not for the obligation itself. I don’t think Rav Kook means that, precisely because of your point. Because otherwise with Torah-level law it would already look a bit harder. All right? Now the other side of the same coin is the following. I really asked, regarding Nachmanides, what is this textual support from “do not deviate”? This textual support from “do not deviate” is strange. If this is a rabbinic law, and it has a textual support in a verse, then how can a rabbinic law constitute the basis of our obligation to rabbinic laws? Right? That was basically the question. Some kind of loop. It seems to me that the concept of textual support in the context of Nachmanides here is being used in a different sense than the term textual support elsewhere. I’ll give you an example. This morning I found a lesson on this, and suddenly the penny dropped. In the Talmud in Yevamot that we studied this morning in the kollel. I’ll read you a passage. They’re discussing “secondary forbidden relations,” more distant relatives than the forbidden relations that appear in the Torah, which are also forbidden but rabbinically. And the Talmud is searching for the source of this prohibition of secondary forbidden relations. Hints and this and that—it’s obviously a rabbinic law. But there are various hints from here and hints from there. The fourth approach in the Talmud says as follows: Rav Kahana said, from here: “And you shall keep My charge”—make a safeguard for My charge. “And you shall keep My charge” is said in the section dealing with forbidden relations. Right? “And you shall keep My charge”—make a safeguard for My charge. The forbidden relations are the charge of the Holy One, blessed be He, and we need to make a safeguard for the charge, to forbid also the secondary forbidden relations. Abaye said to Rav Yosef: but that’s Torah-level law, isn’t it? “And you shall keep My charge” is a verse. So if so, secondary forbidden relations ought to be forbidden by Torah law, not rabbinically, if it comes from a verse. So the Talmud says: it is Torah-level, and the sages interpreted it. Right, there is a verse, but the sages interpreted it. What does that mean, the sages interpreted it? The sages explained that “a safeguard for My charge” means secondary forbidden relations? Then that’s still Torah-level. The sages merely interpreted the verse, but if that’s what is written in the verse, then it is Torah-level, right? So the Talmud says: all the Torah too is interpreted by the sages. After all, you want to explain to me why secondary forbidden relations are rabbinic, so what are you telling me? There is a verse and the sages interpreted it. If that is called rabbinic, then ninety percent of the laws that we call Torah-level are rabbinic laws. They are laws interpreted by the sages—ninety-eight percent. The Talmud says: rather, it is rabbinic, and the verse is only a textual support. Exactly the same thing, right—authority of the sages regarding something, and again the expression rabbinic and the verse is only a textual support. What do these words mean? Look, the expression “make a safeguard for My charge” can be understood in two ways. It could be that the Torah commands the sages to make a safeguard for My charge. “Make a safeguard for My charge” means to the legislator, the sages: make a safeguard for My charge. Establish rabbinic prohibitions that will be a fence around the Torah prohibition. All right? How does one violate this Torah commandment? Or who violates this Torah commandment? The sages. If they do not create a rabbinic prohibition around the forbidden relations, they have neglected a positive commandment. But if they did create it, then the commandment has been fulfilled. Fine? Now if I have relations with a secondary forbidden relative, have I violated the prohibition of “make a safeguard for My charge”? That speaks to the sages—what does it have to do with me? I violated the rabbinic prohibition, not the Torah prohibition of “make a safeguard for My charge,” right? Second possibility: “make a safeguard for My charge” speaks to the ordinary citizen, not to the legislator. You should beware of forbidden relations, be careful, build a safeguard around forbidden relations, be stricter. And the sages interpreted what it means to make a safeguard around forbidden relations. So they determined that these and these secondary relatives are secondary forbidden relations, and they are forbidden. A different interpretation. What happens in that case? In that case it is Torah-level, not rabbinic, right? Because in that case the Torah commanded me to make a safeguard for the charge; that’s Torah law. The sages merely interpreted what the Torah said to me. So they said be careful about these secondary forbidden relations; they explained to me what this positive commandment of “make a safeguard for My charge” is—or maybe a prohibition, I’m not sure, because “charge” uses language of “beware,” and “beware,” “lest,” and “do not” are expressions of prohibition. But it doesn’t matter—it is Torah-level law. So these are two possible ways to understand it. It seems to me that this is the give-and-take in the Talmud here. The Talmud starts with this and says as follows: “And you shall keep My charge”—make a safeguard for My charge. Abaye said to Rav Yosef: but that’s Torah-level law, isn’t it? If it’s a verse, it’s Torah-level. How is he understanding it here? That “a safeguard for My charge” is addressed to the citizens, right? Not to the sages. “You shall make a safeguard for My charge” means don’t have relations with secondary forbidden relatives, right? That means it’s Torah-level law, right? So the Talmud says: it is Torah-level and the sages interpreted it. It’s not Torah-level because the sages interpreted it. The Talmud asks: what do you mean? All the Torah too is interpreted by the sages. What does that have to do with anything? The sages interpreted for me what the Torah commanded me, but the Torah commanded it to me; the sages just explained what it commands. That is Torah-level law. How do you say it is rabbinic law? Then comes the clarification: you didn’t understand me correctly. The clarification is: rather, it is rabbinic, and the verse is only a textual support.

[Speaker B] It really is a different clarification; the initial thought wasn’t understandable.

[Rabbi Michael Abraham] Exactly, it is a clarification of that first thought there—that this is really rabbinic and not Torah-level as you thought. It is rabbinic. Why? Because the verse is only a textual support. What does “only a textual support” mean? The verse authorizes the sages to establish laws. The verse does not speak to you. The verse speaks to the sages. This is not a textual support in the same sense we speak about elsewhere in the Talmud, where when it says textual support it means some hint in a verse. “Only a textual support” here means that this verse does not command you to make a safeguard for the charge. It authorizes the sages to establish the prohibition of the safeguard. Now that the sages established it, they fulfilled the Torah positive commandment imposed on them, not on me. So what I do, if I have relations with a secondary forbidden relative, is violate a rabbinic prohibition. So the concept of textual support in this context, if I am right, is not the usual concept of textual support. Why did they say “only”? I think that the “only” here is just habitual wording. People always say “textual support” as “only a textual support.” I don’t think that’s the point. “Textual support” means that this verse is not a commandment verse; it is an authorizing verse. This verse authorizes the sages to establish a safeguard around forbidden relations. It gives them authority. It is not a commandment verse. What other verse like that do we know?

[Speaker B] “According to all that they instruct you,” “do not deviate”—those are Torah-level matters for all intermediate festival days, if I remember correctly.

[Rabbi Michael Abraham] Yes, Scripture handed it over to the sages. But that is something else, because in “Scripture handed it over to the sages,” the result is Torah-level. In “Scripture handed it over to the sages,” that is the second mechanism. The result is Torah-level. The Torah forbade labor on the intermediate festival days—that’s a dispute between Maimonides and Nachmanides—but Nachmanides says that in “Scripture handed it over to the sages,” what does it mean? The Torah forbade labor on the festival and told the sages: you will determine which labor is forbidden. That is exactly the second mechanism, where the Torah says to the citizen himself, “make a safeguard for My charge,” and the sages determine what the safeguard is. But I am talking about the first mechanism. This first mechanism is exactly like “do not deviate,” exactly the same thing. When Nachmanides says that “do not deviate” is only a textual support, he means this sense. He means to say that this authority derives from “do not deviate.” But I asked about Maimonides: why, when I eat poultry with milk, is that not a Torah prohibition? Exactly like the Talmud’s question here, right? And what is the answer? That it is only a textual support. What does that mean? That “do not deviate” is really a verse that gives force or authority to the sages to establish rabbinic laws.

[Speaker B] But to whom is the command “do not deviate” addressed?

[Rabbi Michael Abraham] Right, I’ll get to the command in a moment. One second, your comment is correct; there will be an explanation in just a moment. But the verse basically reveals to me that I may not deviate from their words. What does it mean that I may not deviate from their words? That they have authority. The implication is that one may not deviate from their words, but the verse says they have authority. Okay? So this verse too is a textual support in the same sense as “a safeguard for My charge.” So now this verse, when you ask yourself: when I ate poultry with milk, did I violate a Torah prohibition or a rabbinic prohibition? A rabbinic prohibition. Because basically this verse is not a commandment verse; it is an authorizing verse. Okay? The verse gives authority to the sages to establish rabbinic laws. But what are the laws that the sages will establish? They will be rabbinic laws, not Torah-level laws. Because that is the authority the Torah delegated to them. The Torah delegates to them authority to establish laws that will be added to the corpus of Torah law. But these will be laws with a lower status or force. So this verse is an authorizing verse and not a commandment verse. Now, I’m getting in just a moment to—

[Speaker B] In the enumeration of the commandments, does “do not deviate” appear? Yes.

[Rabbi Michael Abraham] Yes. But that doesn’t matter. In the enumeration of the commandments there also appear things that are not commandments at all. I mentioned this one of the previous times. Right? Like, for example, impurity—determining the boundaries of impurity. There is no prohibition against becoming impure and no commandment to become impure. They determine who is impure and who is not impure. That is a determination for which the sages have authority. Every halakhic determination is called a commandment, just as what is called a statute in the legal context is called a commandment אצלנו. It is not necessarily a command. All right? So now, let’s return for a moment to Maimonides. Nachmanides asked Maimonides: why does every rabbinic law basically become a Torah-level law? Right? What would Maimonides answer to that? It seems to me that Maimonides did not answer all the things people put into his mouth. It is simply irrelevant. Maimonides says something very simple. It depends what you are doing. You eat poultry with milk. So Nachmanides says: what do you mean? That means it becomes a Torah prohibition—you violated “do not deviate.” Not so, says Maimonides. If I ate poultry with milk because I did not accept the sages’ authority in principle, then I violated “do not deviate.” Why? Because the Torah commanded or instructed that they have authority. If I do not accept that, then I have violated what the Torah requires. But if I ate poultry with milk—not accidentally, but fully intentionally—just because my impulse overcame me, I didn’t hold out, I stumbled. Just as one can also fail in Torah law, right? Then I violated a rabbinic prohibition even according to Maimonides. I did not violate “do not deviate.” You violate “do not deviate” only when you deviate, only when you rebel against the authority in principle. This verse is an authorizing verse. It is a verse that establishes authority. If you do not accept that authority, then you violated that verse. But if you do accept the authority and just failed—you ate poultry with milk, what can you do, your impulse got the better of you—then you violated a rabbinic prohibition. So the verse “do not deviate” is true: it is not only authorizing. It is also a verse that contains an element of command. But the command is to preserve the authority. Meaning, that authority was given to the sages, and we are of course supposed to preserve it, obey it. That is what is incumbent upon us. But not that the poultry with milk itself, when I ate it, was a Torah-level transgression. It wasn’t. It was a rabbinic transgression. And in my opinion, Maimonides and Nachmanides are not arguing at all on this point. There is no dispute here whatsoever. Maimonides and Nachmanides hold exactly the same thing. There is just a misunderstanding here. Nachmanides thought that Maimonides held that if I eat poultry with milk it is literally “do not deviate,” that one would get lashes for it or something like that. To that Maimonides says: not true. But Maimonides never meant that either. Maimonides only meant to say that if you deviate because you do not in principle accept the authority of the sages, then you violated “do not deviate.” But if you simply eat poultry with milk fully intentionally, but not because you deny the sages’ authority, rather because your soul desired it… yes. It hurts. Fine? Then it is a rabbinic prohibition. And Nachmanides agrees with that too; there is no disagreement between Nachmanides and Maimonides. In my opinion they are saying the same thing. But I’ll bring a point from Netivot, which says that specifically in a rabbinic prohibition there is not this issue of rebellion; there is only the issue of the content, which is the reverse.

[Speaker D] Exactly the reverse. There is the rebellion and not the content. Do you have a Rema? No, no. There is only the rebellion and not the content.

[Rabbi Michael Abraham] The second view is that there is also content, not that there is only content. In the lectures I said there is only content and no command.

[Speaker D] Someone says that it’s worthwhile to listen to the sages—not an obligation, but that it’s worthwhile because they are right. So… what do you mean, someone says?

[Rabbi Michael Abraham] I said that earlier; I don’t know anyone who says it. I thought that could be a good explanation of Nachmanides’ view. But I don’t know—it’s a bit hard to accept such a thing within a legal system. It seems to me this explanation is better. Nachmanides too says that “a textual support in do not deviate” is exactly the same meaning as “only a textual support” in the passage in Yevamot. Here, “textual support” does not mean a hint in a verse, but that this verse is an authorizing verse and not a commandment verse. That is the point. Maybe there’s another example I can bring—

[Speaker B] For you, what’s happening here is that everyone becomes Maimonides. What does that mean, Maimonides? That’s everything.

[Rabbi Michael Abraham] He says the same thing, says the same thing—and he says the same thing because there is no escape. Because on the one hand you need a source that gives authority, and on the other hand it is obvious that it cannot become Torah-level law, because it is only rabbinic law. No source will turn it into Torah-level law. The only possible way out is this kind of way out; there is no other. So of course everyone should agree with it. Another place where you can see the appearance of a similar phenomenon is at the beginning of chapter 14 in the laws of mourning in Maimonides. Maimonides writes there: “It is a positive commandment of their words to visit the sick, comfort mourners, escort the dead, bring in the bride, accompany guests, and involve oneself in all burial needs—to carry on the shoulder, walk before him, eulogize, dig, and bury; and likewise to gladden the bridegroom and bride and support them in all their needs. And these are acts of kindness performed with one’s body that have no measure.” All right? So all these are positive commandments of their words. Fine? He says: “Even though all these commandments are of their words, they are included within ‘And you shall love your neighbor as yourself.’” Even though this is of their words, meaning rabbinic, it is included within “And you shall love your neighbor as yourself,” which is of course a Torah-level positive commandment. “And you shall love your neighbor as yourself.” So what does that mean—is it Torah-level or rabbinic? All these are of their words, but included in “And you shall love your neighbor as yourself.” Here too there is something similar—not exactly the same thing, but something similar. The Torah basically says, “And you shall love your neighbor as yourself.” The Torah’s command is to love my fellow as myself in my heart, not in actions. To love him, right? The sages cast this into a practical pattern; they translate it into practical commands such as escorting the dead, bringing in the bride, visiting the sick, and so on and so on. Fine? So now when you do one of these things, ostensibly it is included in “And you shall love your neighbor as yourself.” What does “included” mean? If you do it without loving your neighbor in your heart, but just because you want to look righteous, I don’t know exactly why, fine? Then you fulfilled the rabbinic commandment but not the Torah-level one, because the Torah-level one is the command to love. If you only loved but did not escort the dead, or did not visit the sick, or something like that, then you fulfilled the Torah-level law and did not fulfill the rabbinic one. What Maimonides is saying is that since the motivation for all these enactments is drawn from the commandment “And you shall love your neighbor as yourself,” then obviously, in the simple case, when you do this you fulfill both—the rabbinic and the Torah-level—if you do it out of love. So here too there is basically some Torah-level verse from which the sages derive concrete commands that are rabbinic law, even though their foundation is really the Torah-level verse. But that does not mean that every time you perform this rabbinic law you thereby fulfill the Torah-level verse. The same structure as “do not deviate,” like “make a safeguard for My charge.” All right? Now Nachmanides, in his critiques on the first root—“and these secondary relatives,” says Nachmanides, “secondary forbidden relations as well are not based on the prohibition of ‘do not deviate,’ for they have nothing to do with the meaning of the Torah,” and so on. “Rather they and others like them are based on the positive commandment ‘And you shall keep My charge.’” What we saw in the passage in Yevamot. “And there in tractate Yevamot they expounded: make a safeguard for My charge. And they challenged: but this is Torah-level? It is Torah-level, and the sages interpreted it. Is all the Torah too rabbinic? They interpreted it. It is rabbinic, and the verse is only a textual support.” He repeats the Talmud. “Just as they based the others, the other rabbinic laws besides secondary forbidden relations, on the prohibition of ‘do not deviate,’ so too that is only a textual support.” I think it is very clear: he does not mean to say that this too is a textual support just as that one is a textual support—I have a hundred thousand textual supports in the Talmud. That is not the point. He means that the concept of textual support in this context of “make a safeguard for My charge” is the same concept as the textual support I told you about in “do not deviate,” that in both these places “textual support” means: this is an authorizing verse and not a commandment verse. Not textual support in the usual sense in which we normally find “only a textual support.” For example, Nachmanides brings a source for this, and they explicitly said in chapter “One Whose Dead Lies Before Him”—that is in Berakhot 19—“Great is human dignity, for it overrides a prohibition in the Torah.” Rav bar Sheva interpreted this before Rav Kahana as referring to the prohibition of “do not deviate.” Human dignity does not override a Torah prohibition, only the prohibition of “do not deviate,” meaning only rabbinic prohibitions. Ostensibly like Maimonides, right? But that is a difficulty. Rav Kahana said to them: “A great man said something; don’t laugh at him.” When a Torah scholar says something, don’t laugh so quickly. There is something to what he said. “All rabbinic matters they supported on the prohibition of ‘do not deviate,’ and because of human dignity the sages did not decree in those cases.” Here it is explained, says Nachmanides, that this prohibition of “do not deviate” is like the other Torah prohibitions. But their words they supported on that prohibition, merely as support for reinforcement. Meaning, Nachmanides is basically saying that “do not deviate” is the support on which they relied. “Relied” not in the sense of a hint—relied in the sense that from there comes the authority to establish all rabbinic laws. And that is what he also says later, that it is the same as “make a safeguard for My charge” regarding the secondary forbidden relations, where too it is exactly in the same sense of “they relied on.” And that is his explanation of where the authority of the sages comes from. So when it says there “only a textual support,” it is “only a textual support” only in the sense that it is an authorizing verse. They have authority by force of the verse. And now I return to public acceptance and Rav Kook. What is basically written here is that the sages have authority granted to them by the Torah to legislate, whether regarding secondary forbidden relations or all the other laws from “do not deviate” and “make a safeguard for My charge,” and so on. So now when we observe these or do not observe them, we are either fulfilling or violating a rabbinic prohibition, or a rabbinic commandment—not a Torah-level one. Right? Now of course the question arises: why really… why, that is, let’s ask it differently. From the previous angle I said that the sages basically speak in our name, and therefore no explanation is needed for why that obligates us. You asked earlier by virtue of what do they speak in our name? So Rav Kook of course goes from below upward. Rav Kook claims: because it is by virtue of us, we appointed them. I mentioned Maimonides with the renewal of ordination and so on. But it is definitely possible that the explanation is not that. The explanation is what the Torah said when it supported this on “do not deviate.” In “do not deviate” the Torah established not merely that they have authority, but that they are our representatives. It authorized them to be our primary speakers, our official spokesmen, so that what they say, they say in our name. Consequently now we are obligated to obey it. Meaning, this can be the explanation—but not from below upward, rather from above downward. And this “they relied on it,” or this “only a textual support,” means that this is their authorization to speak in our name, and therefore we are in fact obligated—because after all, we are not the ones who really authorized them. That was in fact the question. Fine. That was a comment I had on this paragraph. Let’s keep reading; I do want to finish this chapter today. “And from this we will also come to understand that many pure-hearted people erred when they thought that what we believe in the greatness of the sages in general, in what was transmitted to us from their mouths of blessed memory—‘if the earlier ones were like angels, we are like human beings’—that this is the foundation for the obligation to observe all the laws of the Talmud and what branches out from it. Therefore bold people arose who said one should assess the worth of the sages by the standards of ordinary human beings, and they thought that in this way they would succeed in exempting the world from the obligation to be careful with the words of the sages as a whole.” They thought that if they said that the sages were really ordinary people—which according to Rav Kook is not true—but even if we suppose they are right, they thought that if they are right then we solved the problem. Not true. Even if they are right, by the same move he made earlier—even if they are right, it still doesn’t solve the problem; there is still an obligation to obey them. Why? “And this indeed also came to them because of a lack of knowledge of the foundation of the Torah and its obligation: for even if the builders of the Talmud were immeasurably lower in stature than they truly were, nevertheless, since we merited a center in the nation to understand it and to teach all the judgments of the Torah from its mouth, and the nation accepted it and it spread among it, then anyone who breaches the fence destroys the strength and existence of the nation as a whole.” In other words, there is still the nation’s acceptance. All right? Even if they were lesser, if they were ordinary people and they created the laws through evolution in later generations and we are dealing with ordinary people, not “if the earlier ones were like angels and we are like human beings,” exactly… exactly the same thing. All the questions that bother us so much in the Torah context—for some reason, when we get to civil law everything seems obvious. And when there are Torah legislators over the years who legislated things, then if they are ordinary human beings we don’t obey them? Only if they are… if they are not like that then one need not obey them? That is a mistake—the same mistake from both sides.

[Speaker B] Right, exactly. But you can’t compare the level of religious obligation to the level of obligation to state law. Why? Why not?

[Rabbi Michael Abraham] You accepted that and you accepted this. Because there no one is watching you. This is a religious group and this is a social, political group—I don’t know what to call it.

[Speaker B] And there is no concept of transgression in that sense. Of course there is.

[Rabbi Michael Abraham] The Holy One, blessed be He, requires you to keep the laws; it’s just that these laws were legislated by the legislators we appointed. So what? What difference does it make? It’s the same thing.

[Speaker B] I said: but if you don’t keep a state law, there is no Holy One, blessed be He, standing at the top of the pyramid.

[Rabbi Michael Abraham] Ah, the opposite! There’s no comparison—it’s even stronger. So I’m saying the reverse: if in state law it’s so obvious to us that the legislator doesn’t have to be some supreme holy person in order to have authority, then what’s the problem here? By the way, the same question comes up, for example—people always say, how is it that halakhic decisors or rabbis or whoever express positions on all kinds of things or make rulings about matters they understand nothing about? And doesn’t the High Court rule on things it understands nothing about? It consults experts and then it has to decide. By the way, I have no criticism of that—that’s exactly how it should be. In the end, at the top of the pyramid, somebody has to decide in the end whether it’s right or not right. The experts don’t have authority to decide; they have the knowledge. So if the High Court consults them, they tell it the facts, and then it has to make a decision. It’s exactly the same with the religious authority—what’s the difference? But somehow it always seems like there are terrible problems; we get terribly tangled up with religious authority, while with political authority everything seems very orderly, and nobody has to be some supreme saint or anything. There’s some kind of authority that’s just taken for granted. This really convinces me again on this point.

[Speaker D] That’s pragmatism. I don’t break the law because afterward they’ll put me in jail. No, that’s different.

[Rabbi Michael Abraham] No, no, I’m saying that’s not right. The simple intuition is not like that. The simple intuition is that there’s a value in keeping the law, not just obeying on a pragmatic level. No, I think it’s wrong to describe it only as some kind of pragmatic consideration. What do I mean, wrong? Maybe for you that’s how it is, but that’s not the plain conception—not in legal philosophy, certainly not, and not among ordinary people either. I don’t think that’s right. People understand that it is right to obey the law. It’s not only because I might get caught.

[Speaker D] If I’m driving at two in the morning and there’s no traffic at all and I see a red light, I won’t necessarily stop.

[Rabbi Michael Abraham] Yes, first of all, there are people who won’t, and second, I’m saying again: you don’t have to be insanely rigid. Even when you build a theory, every rule has exceptions. “One does not derive from general rules, even where it says ‘except.’” Fine. I’m only saying—it’s like those people who, the moment they decide that democratic governing institutions can have the status of kingship from a halakhic perspective, meaning they have authority, immediately start applying to them all the laws of a king—that if someone harms him, he can have you killed. Leave it alone—it’s a democracy, it’s a different kind of king. Leave the… don’t mix in the details. Let’s go with the basic principle. With a democratic king, you’re also allowed to insult him. What do you mean? Part of democracy is that I can insult the prime minister. What’s the problem? A monarchic king would have cut off my head for that. No problem. Does that mean Jewish law forbids insulting the prime minister? Of course not. Jewish law forbids what democracy forbids, and what democracy permits, it permits. Or the president of the Supreme Court. Anyway—so this last passage is basically saying, and this too is a problematic passage, which I think is one of the reasons it was omitted—there is really a very far-reaching claim here: the authority of the sages does not stem only from their being some kind of supreme holy figures. They have formal authority. They are the legislators; one must obey them. It doesn’t matter even if they were mistaken, even if they are people like you and me—it doesn’t matter, it changes nothing. So you do not need the idea that “if the earlier authorities were like angels, we are like human beings” in order to ground halakhic authority. That’s the point here. And I think it’s a very powerful point. Maybe I’ll just bring one example of this. There is a passage in Maimonides, in Hilkhot Mamrim, at the beginning of chapter 2. Maimonides writes there in halakha 1: “If the Great Court expounded one of the interpretive principles as it appeared to them that the law was such, and they gave judgment accordingly, and another court arose after them and saw another reason to overturn it, then that court may overturn it and judge according to what appears correct in its eyes.” Any court in any generation can decide what it thinks and interpret the Torah and so on; it is not bound at all by what earlier courts did. As it says, “to the judge who shall be in those days”—you are obligated to follow only the court of your own generation. Halakha 2: “If a court enacted a decree, instituted an ordinance, or established a custom, and the matter spread throughout all Israel, and another court arose after them and sought to nullify the earlier rulings and uproot that ordinance, decree, or custom, it may not do so unless it is greater than the earlier one in wisdom and in number. If it was greater in wisdom but not in number, or in number but not in wisdom, it may not nullify its words.” What is the relation between these two halakhot? In the first halakha we are talking about Torah-level laws. In Torah-level laws, any court in any generation can disagree with all previous courts, even if it is smaller than them in wisdom and in number. But with decrees and ordinances, with rabbinic laws, there you need to be greater in wisdom and in number. The sages were stricter with their own enactments than with Torah law. Right? So there you need to be greater in wisdom and in number in order to change what the previous court did.

[Speaker B] So the Kesef Mishneh says that this is a question of what the law says, not of authority.

[Rabbi Michael Abraham] Right, and if you think it says something else, then don’t listen to them. Exactly. There the question is what is written. If you think it says something else, then don’t listen to them—it says something else. After all, when you come, you’re asking what the Torah says, not what the court said. But when you’re talking about ordinances and decrees, you do what the court said. So when you want to change what they said, you are in effect opposing them. After all, the source of the authority is them. That’s why you need to be greater in wisdom and in number. Now, the Kesef Mishneh there on the spot says this, after explaining that one case is rabbinic and the other Torah-level. He says: “And if you ask, if so, why don’t Amoraim disagree with Tannaim?” If that’s the case, then why don’t the Amoraim disagree with the Tannaim? Or the medieval authorities (Rishonim) with the Amoraim, and so on? After all, any court in any generation—at least in Torah-level law—can disagree with them, so what’s the problem? Even if it is not greater than them in wisdom and number. For in every place we challenge an Amora from a Mishnah or a baraita. When an Amora is challenged from a Mishnah or a baraita, that’s a knockout—if he has no answer, he’s rejected. What do you mean, rejected? He disagrees with the baraita—so what’s the problem? Or with the Mishnah—why not? So he says: “It is possible to say that from the day the Mishnah was sealed, they upheld and accepted that later generations would not disagree with the earlier ones. And they did the same with the sealing of the Gemara, that from the day it was sealed, permission was not given to anyone to disagree with it.” Do you notice? He does not say, “If the earlier authorities were like angels and we are like human beings.” What does he say?

[Speaker B] We accepted upon ourselves not to disagree, that’s all. He can’t say it’s because they weren’t greater in wisdom, maybe? No, he can say it because it’s built into the halakha—

[Rabbi Michael Abraham] In the halakha, even if he is smaller in wisdom, he can still disagree. You can’t say they are greater and therefore you don’t disagree. No—the opposite, the opposite. Yes, but why in practice don’t we disagree, even though we could? Because they are like angels and we are like human beings, because we are lesser—therefore we don’t disagree. He doesn’t say that. Even if that may be true, that’s not the point, and that’s not the reason we don’t disagree. The legal reason we don’t disagree is because we accepted it upon ourselves, that’s all. There is no other limitation. So here you can see this conception, which says that the authority of the sages does not derive from their greatness. The authority of the sages derives from the fact that they have formal authority on the legal level. That’s all. Not because they are greater.

[Speaker D] But why did we accept it upon ourselves? Why did we accept it upon ourselves?

[Rabbi Michael Abraham] That he explains, and Rabbi Kook also explains it here later on. In the passage at the end of the excerpt—I’m not going to read it now; next time, read it on your own, the concluding passage—that’s what he explains there. So he says there, first, also because of their greatness, because he thinks that their greatness is real even though it isn’t required. What is required is that we accepted it upon ourselves. But also because of their greatness. Yet he says more than that: they simply decided to close it off, because otherwise, once the Jews were dispersed to the four corners of the earth—and that happened already around the sealing of the Mishnah, and perhaps a bit after the sealing of the Gemara, when they had already begun to scatter, when the Babylonian exile had already begun to disperse—the sages decided to fix something in place, because otherwise every ten Jews would make a different Torah. That’s all—for technical reasons, that’s all. So they decided that this one does not disagree with; this is canon. On this, one does not disagree. That’s all. Rabbi Kook explains that here later on; that is exactly what he explains. And the whole idea here is a fairly revolutionary one in relation to conventional thinking. An idea that basically says that the authority of the sages is formal legal authority, not because they are great and righteous and towering geniuses—which, according to Rabbi Kook, is true—but that is not the legal reason they have authority. That is not why they have authority. Fine. All right, so finish this up on your own. The rest here is nothing special.

[Speaker A] That concludes the lecture of Rabbi Michael Abraham, Machon Meir, 8 Tevet 5771, December 16, 2010.