Study and Halachic Rulings – Lesson 8

[Rabbi Michael Abraham] Let’s begin. Last time we started talking about rabbinic law. We saw there the distinction that the Netivot makes between rabbinic law and Torah law. He claims that with rabbinic prohibitions of benefit, if I ate it unintentionally I do not need to repent at all, or more generally, if I violated a rabbinic prohibition unintentionally I do not need to repent at all—I didn’t commit any transgression at all. His proof was from the Talmud in Eruvin, which talks about a student who sees his rabbi about to commit a transgression: with a Torah prohibition he is supposed to stop him and ask him, “Didn’t you teach us, our master, that it is forbidden to do this?” But with a rabbinic prohibition, first we do the deed and only afterward raise the objection. Meaning, first let him do it, and afterward ask the question. So he asks why—after all, a rabbinic sin is also a sin, so why let the rabbi sin? And then he says that if the rabbi sins unintentionally in a rabbinic matter, that is not a transgression at all. Therefore nothing happened if the rabbi does such a thing unintentionally, and so there is no need to stop him beforehand. In a Torah prohibition, yes, an unintentional transgression is lighter or less blameworthy, but it is still a transgression, and therefore it is proper to try to prevent a Torah-level transgression even if it would be unintentional. I explained that behind this lies a conception that rabbinic prohibitions basically have no essence; they are only command. We said that in Torah prohibitions—and in any Torah commandment or Torah prohibition—there have to be two aspects. One aspect is the essence and the second aspect is the command. Say I fulfill a commandment: first, I brought about the benefit for which the commandment was intended, and second, I obeyed the command. If I committed a transgression, then first, I caused the damage because of which we were commanded not to do it, and second, I also rebelled against the command. So in Torah law there is this double aspect, both essence and command. If either the essence is missing or the command is missing, it will not be Torah law. The claim about rabbinic law—the Netivot’s claim—is that in rabbinic law there is no essence, only command. We are basically commanded, “Do not deviate from all that they instruct you.” If I violate a rabbinic prohibition, then I have violated the fact that I deviated from the command of the Sages; I violated “do not deviate,” but the act itself did not wreak damage in the world. Meaning there is no—no metaphysics behind it, I don’t know what to call it—there is no essence behind it. For example, when they tell me not to eat poultry with milk lest I come to eat meat with milk, then suppose I ate poultry with milk—nothing happened. Poultry with milk is not problematic in itself, otherwise the Torah itself would have forbidden it. It is not problematic. Rather, the Sages were concerned that if I eat poultry with milk, I may come to eat meat with milk, and that is already a problematic act. But if I ate poultry with milk and in the end did not come to eat meat with milk, then no, nothing problematic happened. Rather, there is a personal obligation on me, my obligation to obey the Sages. They tell me not to eat poultry with milk, and they have their reason, so that I should not come to eat meat with milk, but the act itself has nothing problematic in it; it is only disobedience to the command of the Sages. If you want, let’s say—if you adopt the metaphysical statements about spiritual dulling of the heart from forbidden foods, or spiritual harm that happens to us through transgressions—then with rabbinic prohibitions that probably would not apply, at least according to the Netivot. Since there is nothing problematic here, the act itself does not affect the soul or the world or anything. Rather, I may later come to something problematic, and therefore the Sages prohibited it. And there is an obligation to obey the Sages, and therefore it is forbidden to eat poultry with milk; it’s not that it’s permitted to eat poultry with milk. It’s just that if I violated it and ate poultry with milk, the only aspect that is problematic here is that I violated the command of the Sages. But the essence, the substantive damage caused by this transgressive act, does not exist in a rabbinic prohibition. That is basically the claim. People asked me what happens with commandments. They asked me what happens with rabbinic commandments and prohibitions of another kind, ones that are not fences. I said we would get to that later, we’ll get there, we’ll talk about it—we’ll deal with it today. Now I want to continue for a moment. I remembered that Rabbi Yosef Engel in Atvan DeOraita, siman 10, klal 10, basically notes that quite a few later authorities spoke about the fact that rabbinic prohibitions are by definition always person-based prohibitions and not object-based prohibitions. The meaning of that is that rabbinic prohibitions have no prohibited essence. Meaning, in reality itself nothing happens because I ate or violated a rabbinic prohibition. The whole problem is only that I am forbidden to do it; it is a law concerning the person. I said that the Netivot focuses this more and says it is not only a law concerning the person but a law of obedience, but I think that is basically also the idea of Atvan DeOraita. Now I want to bring an example of a sugya where maybe you can see this more sharply. So there is a rule—the Talmud says in tractate Shabbat 12 that a person should not read by candlelight lest he tilt it. Yes, it is forbidden to read on the Sabbath by candlelight, because if the flame flickers a bit or does not shine properly, it may be that I will come to adjust the flame, and then I will violate a Torah prohibition of kindling or extinguishing; I will violate some Torah prohibition, and therefore the Sages forbade reading by candlelight. Okay, meaning this is a rabbinic prohibition. What happens if I read by candlelight? But I did not end up tilting it. If I did end up tilting it afterward, then of course I violated a Torah prohibition of tilting, of kindling or extinguishing. But if I read by candlelight and did not come to tilt it, then I violated a rabbinic prohibition, right? And what is the rabbinic prohibition? After all, reading itself by candlelight is not problematic; there is no problem with that. The whole concern is that maybe I will come to tilt it, and that is a problematic act, but reading itself by candlelight has nothing in it. So this prohibition is basically a rabbinic prohibition of the type of a fence, okay, a protective barrier. Now the Talmud there in Shabbat 12b brings an incident with Rabbi Yishmael ben Elisha. Yes, Rava says: if he is an important person, it is permitted. There is some thesis there that if he is an important person, then he may read by candlelight, maybe because an important person does not arrange his own lamps—he has servants who do it, whatever, something like that. An objection is raised: a person should not read by candlelight lest he tilt it. Rabbi Yishmael ben Elisha said: I will read and I will not tilt it. So I will make sure not to tilt it, and then basically it is permitted for me to read. Once he read and wanted to tilt it. He read by candlelight because that was his view: that he would make sure not to tilt it, and therefore it was permitted for him to read. The whole issue is lest he tilt it. So he would make sure not to tilt it, and that’s it. So he read and wanted to tilt it, and he said: How great are the words of the Sages, who would say that one should not read by candlelight. Rabbi Natan says: He read and tilted, and wrote in his notebook: I, Yishmael ben Elisha, read and tilted the lamp on the Sabbath; when the Temple will be rebuilt, I will bring a fat sin-offering. Meaning yes, so Rabbi Natan’s version is that not only did he want to tilt it, but he actually tilted it, meaning he failed. According to the first version, it only means that he wanted to tilt it—meaning he caught himself at the last moment, he was about to tilt it and caught himself at the last moment, and understood and said: How great are the words of the Sages, who would say that one should not read by candlelight. Right. Now Rabbi Natan says that he read and tilted, and about that he says that he wrote in his notebook that he would bring a fat sin-offering. By the way, this issue of the sin-offering is interesting, because one could discuss whether one is בכלל liable for a sin-offering in such a case. Meaning if I absentmindedly tilt the lamp, that is not an unintentional sin; that is mere involvement without awareness. I am not at all paying attention that I am doing it; it happens in a kind of distraction. For mere involvement without awareness one is not liable to bring a sin-offering. A sin-offering is brought for an unintentional violation. Mere involvement without awareness is basically something that is permitted—it is like duress, so for such a thing one does not bring a sin-offering. I think it could be that the reason one is liable to a sin-offering here is because there is a rabbinic prohibition not to read by candlelight. Meaning, the Sages warned me not to read by candlelight lest I tilt it. Now I made sure not to tilt it, and therefore I read by candlelight; in the course of that, absentmindedly, I tilted it, okay? Now if that had happened without there being a rabbinic prohibition, then I would be under duress and not liable to a sin-offering. But Rabbi Yishmael wrote here that he would bring a fat sin-offering when the Temple is rebuilt, meaning he understood that this is an unintentional violation for which one is liable to a sin-offering. And why? Because there is a rabbinic prohibition on reading by candlelight, and the Sages warned you that if you read by candlelight you may tilt it. So afterward you cannot say, look, I read and it never occurred to me that I would tilt it—it happened absentmindedly. No. If the Sages warned you, then you cannot say that you were under duress. So this is equivalent to an unintentional violation, not to duress. There is actually an explicit Talmud in tractate Shevuot 18. The Talmud there speaks about someone who has relations with his wife close to her expected period, and the Talmud says that if he had relations with his wife close to her expected period and she saw blood during intercourse—yes, during the act of intimacy between them—then he brings a sin-offering, he is liable for a sin-offering. And the question is—yes, he is called unintentional. So the question asked there—yes, the Rashba asks there for example—is why unintentional? He is under duress. She saw blood during intercourse; what can he do? How could he know in advance that she would see blood? So true, he had relations with his wife close to her expected period, and there is a rabbinic prohibition on relations close to the expected period, but on the Torah level it is permitted. There is a rabbinic prohibition, but on the Torah level it is permitted. So if I violated the rabbinic prohibition, okay, then take me to task for having violated a rabbinic prohibition. But on the Torah plane I did something permitted, and then a blowout happened and she saw blood, so that is duress. Why am I liable for a sin-offering? Why am I considered unintentional? The Rashba says—and this is the plain meaning of the Talmud, but the Rashba sharpens it—the Rashba says that since there is a rabbinic prohibition on relations with one’s wife close to her expected period, therefore you cannot say that if you had relations with her and she saw blood, you are under duress. The Sages warned you not to have relations with her because there is concern that she might see blood. If they warned you, you cannot say you are under duress—they warned you. So you chose to ignore the warning; if in the end she had not seen blood, then you would have violated a rabbinic prohibition. But if she saw blood, then you cannot say you were under duress. So the rabbinic prohibition here serves as a warning that turns you from being under duress into being unintentional. Meaning, the rabbinic prohibition also plays on the Torah plane. Once they warned you, once the Sages warned you, then even on the Torah plane you are not considered under duress; you are considered unintentional. There is…

[Speaker B] No, but regarding mere involvement without awareness, that’s a bit different, isn’t it? From duress. What? Regarding the case of mere involvement without awareness on the Sabbath, that’s a bit different from duress, no? There maybe there’s no transgression at all.

[Rabbi Michael Abraham] It is different from duress, but it’s a kind of duress, meaning you are not liable for a sin-offering for it.

[Speaker B] Yes, but maybe even if I knew that I could come to that kind of absentminded involvement, maybe it still counts as that kind of involvement, no? Why, why? No. If you know, it’s not by the law of duress, it’s only by the law of don’t come into it. I think there is also a dispute—I think between Mekor Chayim and Rabbi Akiva Eiger, I think—about whether in a case of mere involvement without awareness I am liable.

[Rabbi Michael Abraham] Rabbi Akiva Eiger says that mere involvement without awareness is forbidden rabbinically.

[Speaker B] Right, and therefore if I see a person unwittingly about to do something in that category, maybe I also don’t even need to stop him.

[Rabbi Michael Abraham] We’ll get to that in mere involvement without awareness. No, that’s the position of Mekor Chayim.

[Speaker B] Yes, that’s the view of Mekor Chayim. Okay.

[Rabbi Michael Abraham] So?

[Speaker B] No, just according to that, isn’t it somewhat different from duress? Like that…

[Rabbi Michael Abraham] No. If you don’t warn him, then he really is under duress. But if you warned him and he still went and did it, then he won’t be considered under duress.

[Speaker B] Yes, because then he is no longer a case of mere involvement without awareness, right? Like if I warned him and he did it, then it’s no longer that.

[Rabbi Michael Abraham] Correct. You warned him, but it still may not happen. But you warned him: pay attention, this can happen. Meaning, he cannot say, look, I went ahead, suddenly it happened, I didn’t think of it. No—if they warned you, then you were supposed to think of it. And still, in practice too, whether I need to warn you is one question, and once I warned you, the question is when you did it and failed, are you considered mere involvement without awareness or duress or whatever—that is another question. Right.

[Speaker B] So even if in practice I would be in that category, since in the end I could have been careful not to get into that category, I still am not considered fully in that category, so to speak.

[Rabbi Michael Abraham] Yes. And by the way, this appears in Klei Chemda—yes, it’s a book on the Torah by Rabbi Meir Dan Plotzki. I once used to read it every Sabbath; it was a genuine Sabbath delight—halakhic pilpulim on the Torah, wonderful. In any case, he has a long essay there on this matter, and he brought there from Yeshuot Malko, I think, Rabbi Yehoshua of Kutna, that Yeshuot Malko wants to argue that anyone who violates a rabbinic prohibition—if in the end he stumbles into a Torah prohibition, he is not under duress. And his proof is the Rashba, the Talmud in Shevuot. And he disagrees, and argues that this is not true of every rabbinic prohibition, only of a rabbinic prohibition whose whole purpose is to warn you that you may violate that Torah prohibition. Suppose, for example, I had relations with my wife and there was some rabbinic prohibition involved that had nothing to do with the expected period—some other rabbinic prohibition. Okay, a chalutzah, fine, some other rabbinic prohibition. And I had relations with her. Now she saw blood. In the end it turned out to be a Torah prohibition. Okay, but as for the Torah prohibition—meaning the fact that she saw blood—I was under duress. So Rabbi Yehoshua of Kutna says that if I violated a rabbinic prohibition, I cannot claim that I was under duress also regarding the Torah law. But plainly he is not right, as Klei Chemda says correctly. Everything the Talmud in Shevuot says is only about rabbinic prohibitions of the kind that come to warn you against that very Torah prohibition which you ended up violating. For example, expected periods—having relations with one’s wife close to her expected period was forbidden because at that time she is likely to see blood. That is the prohibition. It is not just because you violated some rabbinic prohibition; rather, the rabbinic prohibition serves as a warning against the possibility that you will violate a Torah prohibition. Once it is that kind of rabbinic prohibition, then if in the end you violated the Torah prohibition you cannot be considered under duress, because they warned you. But if you violated some other rabbinic prohibition and got caught up in violating a Torah prohibition, then you remain under duress. True, you violated that rabbinic prohibition, but that rabbinic prohibition did not warn you against the Torah prohibition that you ended up violating. So you cannot say that you are not under duress. But for our purposes, we really are talking about that kind of case. If I read by candlelight and the Sages prohibited me from reading by candlelight lest I tilt it—meaning the prohibition is because of the concern that I may come to tilt it—and now I tilted it. Now true, maybe in a case of mere involvement without awareness, or under duress, or whatever, but I tilted it. Since this tilting came about through my violating the rabbinic prohibition of reading by candlelight, and since the whole point of that rabbinic prohibition is because I may come to tilt it, then if I really did end up tilting it, I cannot say that I was under duress—they warned me. And therefore Rabbi Yishmael says, in time to come, I will bring a fat sin-offering, because he was unintentional, not under duress and not merely uninvolved without awareness.

[Speaker B] Right. And that’s only if it’s a rabbinic prohibition. If I thought—if someone warned me, a friend warned me, said listen, a situation could arise where you end up violating a Torah prohibition, but the Sages didn’t decree about such a case—then what?

[Rabbi Michael Abraham] There is room to discuss that. Because someone could say, I don’t think you’re right; I’m not obligated to listen to you. When the Sages say something, you are obligated to listen to them.

[Speaker B] And about the fat sin-offering, maybe you can’t say that it’s just rhetorical.

[Rabbi Michael Abraham] If someone warned me, I can say: you assess reality one way, and I don’t agree with your assessment. I think otherwise. I don’t know. So there is room to discuss it. In any case, so this is basically Rabbi Yishmael. And then the Talmud says that I, Rabbi Yishmael ben Elisha, since he places—let me reconnect you for a second.

[Speaker B] But Rabbi, one second, there’s something I didn’t quite understand, because seemingly when he disagreed with the Sages, he also didn’t accept them as Sages who obligate him. Because if he did, then we don’t need all this—it’s simple, he’s violating “do not deviate.”

[Rabbi Michael Abraham] I’ll get to that in a moment, in a moment. Rabbi Abba said: Rabbi Yishmael ben Elisha is different, because he treated words of Torah like an ordinary person. Yes, after all Rava begins by saying that an important person is permitted, so what do they want from Rabbi Yishmael? Rabbi Yishmael was an important person, so it should have been permitted for him. So the answer is no—he treated himself regarding words of Torah like an ordinary person, and therefore for him too it was forbidden, and so on. Now one has to notice that Rabbi Yishmael here, when he was about to tilt—or according to the other version, he actually tilted—what did he really say? He basically said: How great are the words of the Sages, who said one should not read by candlelight. What does that mean, how great are the words of the Sages? It means that although I disagreed with the Sages and thought I could guard myself, the Sages were more right than I was. They prohibited it, and they apparently assume that a person will not succeed in guarding himself. At least many times a person will not succeed in guarding himself. It sounds from his words that he did not retract from his basic conception. Meaning, he still held to the conception that if he can guard himself not to tilt it, he may read by candlelight. He only says that his assessment that he would not come to tilt it was a mistaken assessment of reality. The Sages assessed reality better than I did. But if, hypothetically, I had assessed reality correctly, then it really would have been permitted for me. For example, in the Shulchan Arukh itself, regarding the prohibition of reading by candlelight, it says that if you place a guard next to yourself, then it is permitted to read by candlelight. The guard is supposed to make sure that if you—yes, you are reading by candlelight and someone is standing beside you—then the moment he sees your hand moving toward the candle, he immediately stops it; he won’t let you tilt it. Then it is permitted to read by candlelight. Why? Because there is no concern that you will come to tilt it. But another law appears in the Shulchan Arukh: what if the lamp is two stories high? There is no chance I can reach it to tilt it; it is too high. Then it is forbidden. Interesting question why. Really, if I put a guard there then it is permitted; if I put the lamp two stories high then it is forbidden.

[Speaker B] No distinctions, right?

[Rabbi Michael Abraham] So then why with a guard is it not a case of no distinctions? What’s the difference?

[Speaker B] Because with a guard there’s already a good basis to distinguish; it’s a different kind of reality.

[Rabbi Michael Abraham] If it’s two stories high, I can’t reach it. What? If I can’t reach it, then seemingly it should be permitted. You’re saying it’s hard to determine the minimum height? Fine, maybe, I don’t know. In any case I don’t have a good answer to that; it’s difficult. In any event, we do see there that in situations where there truly is no concern that I will come to violate the prohibition, as with a guard, then it really is permitted. So what Rabbi Yishmael is really saying is: I am someone who knows how to be careful, and therefore I can read by candlelight because I won’t tilt it. And therefore I am not obligated to obey the rule not to read by candlelight. Not because I’m some great sage who doesn’t accept the authority of the Sages, but because the Sages never prohibited this case at all. Everything they did was only in a situation where you may come to tilt it, and if you cannot come to tilt it, then no. And when he retracts at the end, he does not retract from that conception—it doesn’t look that way from the Talmud. That conception remains even in the conclusion. He just says: in practice, my assessment of reality was unsuccessful; the fact is that in the end I came to tilt it. I thought I could guard myself; I was mistaken. But hypothetically, if I really could guard myself—say, for example, at a height of two stories—Rabbi Yishmael would permit it. He would permit reading by candlelight if the candle were two stories high, because there it is clear that he would not tilt it.

[Speaker B] So then what does he mean by “How great are the words of the Sages”? That’s just a different interpretation.

[Rabbi Michael Abraham] What do you mean, a different interpretation? The fact is that the Sages assessed reality better than I did.

[Speaker B] Ah, so the rabbi is not saying that he didn’t disagree with the Sages—he disagreed with them on the factual issue.

[Rabbi Michael Abraham] No, he did not disagree with the Sages. Why not? Because a decree of the Sages in general is directed only to someone for whom there is concern that he may come to a Torah violation. But if there is no concern that you will come to a Torah violation—there isn’t even meat in your city, there’s nowhere you could get meat even if you wanted to—is it forbidden to eat poultry with milk? Because there is concern that you may come to meat with milk, but there is no concern—you won’t come to it.

[Speaker B] Right, and on that the Sages said that nevertheless it should be forbidden. What? Meaning, on that the Sages said it should still be forbidden.

[Rabbi Michael Abraham] The Sages claimed that you will not succeed in guarding yourself, therefore don’t read—unless you are an important person who does not adjust lamps. But Rabbi Yishmael did not regard himself as an important person. So if that is so, then you were not allowed to rely on that, and in fact the Sages were right: you cannot rely on it. And you were mistaken—but you were mistaken not in the law; you were mistaken in assessing reality. But in the halakhic conception, Rabbi Yishmael in the conclusion remains with the same conception he had before: that if hypothetically I really have a good assessment of reality that I will not come to tilt it, then it is permitted for me to read by candlelight.

[Speaker B] Yes, because that’s the essence of the enactment, so to speak—the assessment of reality, whether I can reach such a situation.

[Rabbi Michael Abraham] The question is actually the opposite. You yourself asked earlier: how did he allow himself to read by candlelight? What difference does it make if he won’t tilt it? Bottom line, they forbade reading by candlelight. Right, that is the simple conception regarding rabbinic prohibitions. Now I’m telling you something that isn’t like that. You can see here in the sugya, at least according to Rabbi Yishmael, that no—the whole point of rabbinic prohibitions is only where you may come to a Torah prohibition. If you cannot, then the Sages basically did not prohibit the rabbinic act. They prohibited the rabbinic act because you might come to a Torah prohibition; if you cannot come to a Torah prohibition, do whatever you want.

[Speaker B] So the rabbi is saying that basically the essence of a rabbinic prohibition exists only where I can come to a Torah prohibition, even if they said that in other places too I would have to listen? Even if they enacted it for me?

[Rabbi Michael Abraham] No, they didn’t say that. They didn’t say that.

[Speaker B] No, let’s say they said that this is the assessment.

[Rabbi Michael Abraham] If they had forbidden reading by candlelight in general, then I assume Rabbi Yishmael also would not have read by candlelight. He claims that every decree of the Sages is a decree stated only if you can in practice come to a Torah transgression. And if not, then there is no problem; you are not bound by the rabbinic decree. And that was probably also their intention according to his view, not that he is disputing them.

[Speaker B] So what is “no distinctions”? When we say “no distinctions” in rabbinic law, what does that mean?

[Rabbi Michael Abraham] There are places where the Sages said no distinctions, so then no distinctions. So when the Sages established no distinctions, then fine, indeed, there we really do have to keep it in every case, because that is what they established in advance. And all this is in places where they say no distinctions.

[Speaker B] So the rabbi is just saying, basically, that the Sages established the enactment so that I should not come to a Torah prohibition, and besides that they also made an independent extension, they made an extension that you too could reach it. And you’re saying: I won’t reach it.

[Rabbi Michael Abraham] Anyone who isn’t an important person can get to that. Now, maybe I’ll say one more sentence before we continue. I think that even if we accept this way of looking at Rabbi Yishmael, I think that’s the straightforward reading of the Talmudic text. But you have to remember that in the Talmud, when this enactment appears—“a person may not read by candlelight”—it immediately says: “lest he tilt it.” In most rabbinic enactments, the reason for the enactment does not appear in the Talmud. For example, it’s forbidden to eat poultry with milk; it doesn’t say that this is a decree because of meat with milk. The commentators say that. It’s not written in the wording of the enactment. Now, there are later authorities who claim that I’m allowed to interpret enactments or decrees in a purposive way in a place where the purpose is written in the body of the enactment, in the formulation of the enactment. For example, like here: “a person may not read by candlelight lest he tilt it.” The “lest he tilt it” is not the Talmud’s interpretation. If it had said only, “a person may not read by candlelight,” and afterward the Talmud or the medieval authorities (Rishonim) came and said the concern is lest he tilt it—that’s their interpretation, and then you’re expounding the reason of the verse, of course here in a rabbinic prohibition, but you’re not allowed to make purposive interpretations of rabbinic prohibitions. But in a place where the purpose is written in the wording of the enactment itself—then why did they add that? In most places it isn’t written. Why did they write it here? Because they wanted to tell you to make a purposive interpretation. Meaning: if there is concern that you’ll tilt it, then it’s forbidden to read by candlelight, but if not, then not. And if that’s really so, then the conclusion that comes out of this passage is less radical. Not that every rabbinic decree was said only in a place where I can actually fail with a Torah-level prohibition, but only those decrees in which the rationale—the concern that you’ll fail with a Torah-level prohibition—is written explicitly in the wording of the enactment, the decree. In those places, it really was said only where you can come to ruin. But if the Sages said something generally and didn’t add the rationale or the reason, then there you’re not allowed to make interpretations of that kind. Maybe about that you can say the “they did not distinguish” that you mentioned earlier.

[Speaker B] There I’d say that the Sages simply broadened the prohibition and didn’t come because of an actual stumbling block—so that people won’t come to a stumbling block.

[Rabbi Michael Abraham] No. In a place where the Sages did not mention the concern, the reason, “lest he tilt it”—if it had said, “a person may not read by candlelight,” then Rabbi Yishmael too would not have read. That’s my claim. The whole reason he allowed himself to read was because in the wording of the enactment it said: “one may not read by candlelight lest he tilt it.” Now, why did the Sages add into the wording of the enactment itself the concern “lest he tilt it”? Because they wanted to tell you that here you’re allowed to go by purposive interpretation. And if you think you can make sure not to tilt it, okay. But in enactments where the rationale is not mentioned within the body of the wording of the enactment, and instead the medieval authorities (Rishonim) say the reasons, or you think of the reasons yourself, or whatever it may be—then apparently there you have “they did not distinguish.” There we don’t make that kind of interpretation.

[Speaker B] Even if it’s certain that the reason is “lest I tilt it,” still there the Sages tell me: they did not distinguish.

[Rabbi Michael Abraham] There are later authorities who want to make such a claim. Anyone who wants can look in Sipnasky’s Enactments in Israel—he has four volumes, and in the first volume he talks about this a bit. The truth is that it’s very parallel to expounding the reason of the verse. After all, with Torah law we do not expound the reason of the verse; we don’t make purposive interpretations of commandments in the Torah. With rabbinic commandments, basically we also do not expound the reason of the verse—not a verse, but of the rabbis. We don’t make the kinds of interpretations Rabbi Yishmael made. Okay, but both in Torah law and in rabbinic law, the Rosh writes—the Rosh is in Piskei HaRosh on Bava Metzia on page 90—he…

[Speaker B] He talks there about Torah law, and in a responsum of the Rosh he talks about rabbinic law.

[Rabbi Michael Abraham] In Piskei HaRosh he writes that in Torah law, if the reason is clear, then yes, we do expound the reason of the verse. If you… According to Maimonides, we do not expound the reason of the verse even when it is written.

[Speaker B] Even when it’s written.

[Rabbi Michael Abraham] But the Rosh argues that if the reason is clear, then yes, we do expound it. And in a responsum he writes that regarding rabbinic prohibitions, generally if the reason lapses the enactment does not lapse. And if the reason no longer applies, we are still supposed to keep the enactment. He says: yes, but all that is where the reason is not clear. But if it is clear that the reason has lapsed and there is no room here for interpretations, then you can also make a purposive interpretation of rabbinic laws. So there are different approaches here. I don’t need to mix the approaches together. And I’m saying that, in principle, here in the Talmud itself, it seems that at least according to Rabbi Yishmael you can make a purposive interpretation of decrees of the Sages. And if the reason for the decree doesn’t apply to you, then you can refrain from keeping the decree. I qualified that afterward and said: it may be that this was said only in laws of this type, where the reason is written explicitly in the wording of the decree. And then it somewhat narrows the novelty we see here in the passage in Rabbi Yishmael’s view. Now let’s continue for a moment. There is a book called Chazut Kashot, which is a book that resolves Rabbi Akiva Eiger’s difficulties in order, one after another, on the Talmud. I have it—it was in a volume that basically collects three books. One resolves Rabbi Akiva Eiger’s difficulties in the Talmud, which is Chazut Kashot; one resolves his difficulties on the Mishnayot; and one resolves his difficulties in responsa. So it’s all the famous “requires analysis” comments of Rabbi Akiva Eiger. It’s a kind of yeshiva sport to resolve the “requires analysis.” So here in Chazut Kashot, which resolves the difficulties in the Talmud, at the end of tractate Beitzah on page 36a, he talks about this Talmudic passage. And he says this: “At first glance one can challenge the Talmud’s answer there, that Rabbi Yishmael ben Elisha treated himself in matters of Torah as an ordinary person. If so, what did he think initially, that he read and transgressed a rabbinic prohibition? What in the world made him allow himself? If he treated himself in matters of Torah as an ordinary person, then for an ordinary person too the prohibition is that one may not read by candlelight. So how did he allow himself to read by candlelight and transgress a rabbinic prohibition? And should he not thereby be disqualified from testimony and judgment like other ordinary people?” How did he allow himself at all, even if he didn’t end up actually tilting it? The Sages forbade reading by candlelight, period. What calculations are you making here? Now, admittedly, according to the questioner—it doesn’t matter, for the questioner this is not difficult—but according to the conclusion it is difficult. Yes? “If so, it is difficult: what did he think initially, that he transgressed a rabbinic prohibition? And to say that initially he did not know of this decree, that one may not read by candlelight?” At the beginning he didn’t know there was such a decree? “But from the fact that he said, ‘How great are the words of the Sages,’ it is evident that he had already known of this decree beforehand.” This decree was not newly revealed to him after he tilted it; rather, he knew the decree, he didn’t keep it, and then he understood that the words of the Sages are great and that this decree indeed must be observed. “Therefore one must say that although Rabbi Yishmael ben Elisha treated himself in matters of Torah as an ordinary person, nevertheless initially he held that even regarding an ordinary person the rabbis decreed only in the ordinary case. But if one explicitly says that he will guard himself from tilting, as Rabbi Yishmael ben Elisha said, in such a case the Sages did not decree. For reading itself by candlelight is not forbidden intrinsically, but only because of the concern lest one tilt. And Rabbi Yishmael ben Elisha held that once he had in mind to read and to be careful not to tilt, in such a case the rabbis did not decree.” Yes, that’s basically what he says. That Rabbi Yishmael ben Elisha, at first—why did he allow himself to read by candlelight? Because he thought that all the decrees of the Sages apply only when there is someone for whom there is concern that he may tilt, but if he will guard himself not to tilt, then there truly it is permitted for him to read by candlelight. Only afterward, when he saw that nevertheless he came to error and sought to tilt it, he said: “How great are the words of the Sages, who stated generally that one may not read by candlelight,” and they did not make any distinction in this. “And therefore Rabbi Yishmael ben Elisha was not disqualified from testimony and judgment, since he thought that by this he was not transgressing the words of the Sages.” Yes, because even if he later retracted, in the end, at the outset he did it. So apparently he’s a transgressor; he should have to be disqualified from testimony and judgment. “And what emerges from this”—now look at his conclusion, he’s speaking about the actual conclusion now, not Rabbi Yishmael ben Elisha’s initial assumption—so he says: “And what emerges from this is that in a place where the Sages forbade doing something, and that act does not bear the character of prohibition intrinsically, but only because of concern that through this act one might come to commit a Torah-level prohibition, one may say that if one transgressed the words of the Sages and did it, he is not called one who transgresses the words of the Sages, because he thought that since he knows about himself that he will not come to transgress the Torah-level prohibition about which the Sages were concerned, the Sages permitted him to do that act which they forbade. As was Rabbi Yishmael ben Elisha’s initial assumption, and he retracted only because he stumbled in it.” Yes, that’s exactly the inference I mentioned earlier. After all, the only reason Rabbi Yishmael ben Elisha retracted was because he actually saw that he did indeed stumble. But if he had really succeeded and had not stumbled, then he would have remained with his position that it was permitted to read by candlelight. “Nevertheless, even afterward he does not have the status of a transgressor, since in truth he did not come in order to commit a Torah-level prohibition.” Meaning, still—and despite the fact that he actually stumbled, and it became clear to him that he was indeed prone to tilt, and what he did was not okay—still, since he did not come in order to commit a Torah-level prohibition, all the same this is not called being a transgressor, meaning someone disqualified as wicked. What does this actually mean? Basically, what comes out here from the Talmud is maybe even one step further than what we saw in the Netivot. In the Netivot we saw that there is a difference between rabbinic prohibitions and Torah prohibitions: rabbinic prohibitions are pure obedience-prohibitions, and there is no essence there; the action itself has nothing problematic in it. I just need to obey the Sages; there is an obligation of “do not deviate,” one must obey the Sages. Rabbi Yishmael ben Elisha says: if that’s really so, then let’s say I read by candlelight but in the end did not come to tilting—then basically I’m not a transgressor. Since the whole concern behind saying not to read by candlelight is lest I tilt, because there is no problem in reading by candlelight in itself. There’s no essence here, it’s only a command. I can become a transgressor if in the end I actually came to tilt, because that’s already a Torah-level prohibition. So even if I did it unwittingly or inadvertently, still there is some Torah-level prohibition here, so that is something problematic. But the rabbinic prohibition is not something problematic in itself; it’s only a concern lest you come to a Torah-level prohibition. If there is no concern in my case, then nothing happened. So that is of course a more novel continuation, one step further than what the Netivot said. The Netivot said this is a prohibition on the person, but even according to the Netivot one could still say that it’s a prohibition on the person, a prohibition on the person—but still it’s forbidden to read by candlelight because the Sages forbade reading by candlelight. It doesn’t matter whether I will tilt or not tilt. Once the Sages forbade it, then there is a personal prohibition and I may not read. Chazut Kashot takes it one step further. He says not only is this a personal obedience-prohibition, but once there is no problem with the object in the end—meaning the Torah-level problem I would eventually reach—then even the personal prohibition isn’t there, or at least I am not considered a transgressor.

[Speaker B] The act in itself is…

[Rabbi Michael Abraham] Not problematic, but that…

[Speaker B] doesn’t mean there’s no prohibition in it.

[Rabbi Michael Abraham] I don’t know. There’s room to hesitate about what exactly he means here. So what exactly is the answer, then, to Rabbi Yishmael ben Elisha’s initial assumption—that he did in fact act against the Sages? I didn’t understand. So what exactly is the answer to the initial assumption that he acted against the Sages, as if? That he acted against the Sages who told him not to, and then said, “How great are the words of the Sages.” The only problem was that he didn’t correctly assess the risk. It’s not so clear to me. When he assesses it correctly, does the Sages’ enactment not apply, or when he assesses it correctly is he permitted…

[Speaker B] But in fact the Sages’ enactment does apply, he just doesn’t have to observe it? What? What is that? It’s…

[Rabbi Michael Abraham] It’s the same thing. “The enactment of the Sages does not apply” means it doesn’t apply—he doesn’t have to observe it. What’s the difference between saying it applies but he doesn’t have to observe it, and saying it doesn’t apply? They didn’t forbid it to him.

[Speaker B] So like—what? So does it matter whether there really was an enactment of the Sages or not?

[Rabbi Michael Abraham] Maybe, yes—that’s one possible way to understand it. I’m saying again: it could be that he means there is a prohibition in any case, even if in the end you didn’t come to tilting, but you still can’t be seen as a transgressor. Because you didn’t do an action that is problematic in itself. Okay? And even regarding obedience, it’s not really disobedience, because all in all you thought you wouldn’t tilt. You thought everything was fine. So then it’s like an unwitting rabbinic transgression in the Netivot, where once you are unwitting there is no disobedience here. So here too, once I thought I wouldn’t tilt, there is no disobedience here, and therefore I read by candlelight and even the rabbinic prohibition I violated only unwittingly, and then it’s not—it’s not—it’s not really a rabbinic prohibition. There is, in the laws of doubt generally as well, interpretations—Rabbi Shimon Shkop in Gate 1, in Sha’arei Yosher, discusses the question; he ties to it the famous dispute between Maimonides and the Rashba regarding whether a rabbinic doubt is ruled leniently or stringently. He discusses the question of a Torah-level doubt being ruled stringently. Is the prohibition that I transgressed a prohibition on entering the state of doubt? Meaning, is the very fact that I entered a situation in which I am violating a doubtful prohibition itself forbidden, or is doubtful prohibition—this rule that a Torah-level doubt is ruled stringently—not really forbidden at all? Rather, only if in the end you ate and it turns out that it was pork, then you can’t say you were under compulsion because they told you to be stringent in doubtful cases—like the Rashba in tractate Shevuot that I cited earlier. Meaning, there is no such thing at all as doubtful prohibitions. Doubtful prohibitions are only a warning. Meaning: know that if this meat is doubtful pork, doubtful kosher meat, then if you eat it and nothing happened—enjoy. But if you eat it and in the end it turns out that it was pork, then you won’t be able to claim that you were under compulsion, because the Sages said—or not the Sages but even the Torah, depending whether it’s Maimonides or the Rashba—told you to be stringent in cases of doubt and not eat it. So it turns out that stringency in doubtful cases—if I was not stringent in a Torah-level doubt—I did not violate a prohibition.

[Speaker B] And what about obedience, Rabbi?

[Rabbi Michael Abraham] The rule that a Torah-level doubt is ruled stringently is not a prohibition. It’s a warning against the prohibition. If you transgress the prohibition, you can’t say you weren’t warned, that you were under compulsion, because they warned you—they told you to be stringent in doubtful cases.

[Speaker B] And what about obedience? What obedience? Seemingly the Torah told me: when I’m in a state of doubt, go stringently. Now in the end, true, you didn’t do something essential…

[Rabbi Michael Abraham] According to that side, it didn’t tell you to go stringently. It only told you: know that if you take the risk and in the end you fail, you won’t have the claim that you were under compulsion, because I recommended that you be stringent. I warned you that you might be eating pork here. One could say…

[Speaker B] Can you say that also in Torah law? Can you say that also if we say that a Torah-level doubt being ruled stringently is also from the Torah and not only rabbinic?

[Rabbi Michael Abraham] Yes. Why not? The question is what was said in that Torah law. Does that Torah law tell you that there is a doubtful prohibition? Or does that Torah law tell you that if in the end it turns out that you failed, you won’t have a claim of compulsion, unwittingness, or whatever? Okay? Like that Rashba in Shevuot, what we talked about earlier. Rabbi Shimon talks there about this. I’m saying the same idea can also be said here in Chazut Kashot regarding rabbinic prohibitions. Are rabbinic prohibitions a prohibition in themselves, and the reason is lest one come to tilt, lest one come to transgress a Torah-level prohibition—or is there no such thing at all as a rabbinic prohibition? The decree is not forbidden in itself; only if you reach the Torah-level prohibition will you not have the claim that you were under compulsion. It is only a warning that removes from you, strips from you, the status of being under compulsion when you come to a Torah-level prohibition. Of course, that’s an extreme formulation. But one could also adopt such a formulation. Now, maybe another expression of this matter—because what I’m really trying to show here is that rabbinic prohibitions—and of course this Chazut Kashot approach is extreme, and even the Netivot is not universally agreed upon, as I said, there is a dispute about it—but still, sitting here is a certain conception that starts from the assumption that a rabbinic prohibition is not an act that is problematic in itself in the object. There’s no—you didn’t do anything problematic here. The whole debate, the whole discussion, is about the question whether there was disobedience here. So you can say there is disobedience even unwittingly; still, you should have clarified. You can say in a case of doubt, you can say all sorts of things like that. But this option, this conception that says there is only obedience here and not essence, also makes it possible to reach the extreme positions we just saw. Those positions, of course, take it to the edge, but still what that means is that there is something different in rabbinic prohibitions from what exists in Torah prohibitions: in rabbinic prohibitions, the act in itself—and this is what the Chazon Ish writes explicitly—the rabbinic act in itself is not a problematic act; nothing happened. If you read by candlelight, so what? Is reading forbidden? Reading is permitted. The whole problem is only the concern lest you tilt it, but reading by candlelight itself is not a problematic act. There is only a personal obligation not to do it because the Sages said so. So these are of course extreme expressions of the correct conception. The conception is correct. Whether we go all the way to the extreme expressions or not—that can be debated. But the extreme expressions certainly assume this conception. Another implication of this matter: there is that same Rabbi Yosef Engel, but in another of his books, Lekach Tov, principle 8. He discusses the question whether there are fences in Torah law. Are there Torah laws that are a fence? Or are all fences rabbinic laws? He brings there the Ran and the Maggid Mishneh regarding seclusion and regarding “it shall not be seen and it shall not be found” in relation to leaven. Those are the two examples I remember he brings; maybe there are more, I no longer remember. Seclusion is a concern that one may come to a forbidden act, and “it shall not be seen and it shall not be found” is a concern that one may come to eat or benefit from leavened food. And those are two examples where he brings medieval authorities (Rishonim) who say—yes, one authority regarding each of those prohibitions—that this thing is a fence even though both of those are Torah-level, both seclusion and “it shall not be seen and it shall not be found” are Torah-level. So these are examples brought for Torah-level fences. But generally the accepted conception is that there is no such thing as a Torah-level fence. That means: if a law is a Torah law, then it is not a fence; fences are by definition rabbinic laws. What exactly is the idea behind that? Why do they assume that Torah laws cannot be fences? That fences are, in their essence, rabbinic laws?

[Speaker B] Fences for what, Rabbi? What does that mean? In Torah law I don’t really understand what “fences” means—fences for what?

[Rabbi Michael Abraham] For example, “it shall not be seen and it shall not be found” is a fence so that one won’t come to eat leavened food.

[Speaker B] Right, because there there is a prohibition against eating leavened food, so it’s a fence for the prohibition. But in places where there’s no prohibition, then it is itself the prohibition.

[Rabbi Michael Abraham] In all places I’m talking about where there is a prohibition. Seclusion too is a prohibition because of forbidden sexual relations, for example.

[Speaker B] But forbidden sexual relations are prohibited because—yes, forbidden sexual relations are there, but you’re not telling me forbidden sexual relations are a fence for something. Forbidden sexual relations are not a fence for anything.

[Rabbi Michael Abraham] No—seclusion is a fence for forbidden sexual relations. Yes. So?

[Speaker B] But yes, that’s what the Rabbi said, so in the other commandments, in the other commandments or transgressions, there isn’t a fence for something—as in, not eating carrion, that’s not a fence for something, it’s simply not eating carrion.

[Rabbi Michael Abraham] So some things are and some things aren’t, but the question is whether fences can exist in Torah law. I didn’t say all Torah commandments are fences. Can there be fences that are Torah laws? So these two examples apparently show yes: “it shall not be seen” and seclusion are two examples of laws that are seemingly fences and yet are Torah-level. But he and most later authorities assume no: there is no such thing as a fence that is a Torah law. Fences are by definition rabbinic laws. Why really? Why is that? Why should there be such a difference between Torah law and rabbinic law? Again, it’s the same point. Regarding Torah law we said—and this is even a condition for being considered Torah law—that there has to be essence and there has to be command. A fence, by its very definition, is an act which in itself is not a problematic act. It is a fence lest you come to do something else that is problematic. An act that has no problem in itself cannot be Torah law. Any act that is a Torah transgression has to be an act whose very essence contains something forbidden in reality. Something that is merely a fence for something else is not problematic in itself; it is only the concern that something else may happen. That can’t be Torah law. It is the role of the Sages to establish prohibitions like that. The Torah does not deal with such things; the Torah deals only with things that are problematic in themselves. It points to phenomena or actions that create problems in the world or create repairs in the world—positive commandments or prohibitions. Anything that is because of concern for something else, that in itself is not needed but is because of concern for something else—that is rabbinic. The Torah does not deal with such things. In the Torah, in every action that is a Torah law, commandment or prohibition, there is repair or damage in reality, and not only command, and not only concern for something else. And again this stems from the same conception: that the Torah speaks about things that are problematic in themselves. Some spiritual defect is created, I don’t know what, and the prohibition comes to prevent it. And Torah laws—fences are the business of the Sages. The Sages are supposed to “make a safeguard for My safeguard.” So the Sages are commanded to make fences and boundaries so that we won’t come to Torah-level prohibitions, and that is the role of the Sages. The Torah does not deal with that. Now, I want to sharpen this a little more. There are rabbinic laws that are not decrees and not fences, but rather enactments. For example: lighting Sabbath candles, Hanukkah candles, reading the Megillah, washing hands, reciting Hallel, all kinds of things like that. Now those actions, those rabbinic actions—someone asked me about this in the previous class, and I said I’d get to it—those actions are not fences, even though they are rabbinic laws. This is not something intended as a means to another purpose. These are things that have value in themselves. Right? To read the Megillah. I read the Megillah not because if I don’t read the Megillah I might come to something problematic. I read the Megillah because there is value in reading the Megillah, or in lighting candles. So here it seems that there are rabbinic laws that are not fences or decrees, and they do have essence and not only command. There is something problematic there, if these are prohibitions, or something reparative there, if these are rabbinic positive commandments, but there is essence in them as well and not only the duty of obedience. All the examples I brought until now were all decrees and fences: poultry with milk lest one eat meat with milk, and so on. All these are easy, because they are fences; in themselves they are not problematic. But there are rabbinic laws that are problematic in themselves. So before, I was speaking about the question whether there are things that are not problematic in themselves and yet would be Torah law. The accepted answer is no. Everything that is Torah law is problematic or beneficial—if it is a positive commandment or a prohibition—in itself. If it is not in itself, then it is a rabbinic law. But now I’m asking the opposite question. Are there things that have an essence in themselves and yet will not be Torah law? That can still be so; it doesn’t follow from what I said earlier. Do you understand what I’m saying? In other words, I’m saying anything that is not essential must be rabbinic—we saw that earlier according to most later authorities, okay? The question I’m now asking is the reverse: does everything that is essential have to be Torah law? Logically, it doesn’t depend on the earlier claim.

[Speaker B] The Rabbi said that it’s essential but not from the Torah because it’s not a Torah-level essence. It can be an essential rabbinic thing. The Rabbi said that rabbinic enactments can be essential, but not that they have Torah-level force.

[Rabbi Michael Abraham] Meaning, there are things that are rabbinic laws that have essence and yet they are still only rabbinic. So why are they rabbinic? We said that anything that has essence and has command is Torah law. If one of the two is missing—either the command or the essence—then it is rabbinic. Here suddenly we see something that has both command and essence, and it is rabbinic.

[Speaker B] What command is there, Rabbi?

[Rabbi Michael Abraham] A command of the Sages by force of “do not deviate.”

[Speaker B] Yes, but Maimonides said you need a Torah command; he didn’t just say command. “Do not deviate” applies to all their commands too, at least according to Maimonides.

[Rabbi Michael Abraham] So the claim—I think I said this in the previous class—I think the correct view is that they do have essence, but that essence is probably not sufficiently unequivocal or not sufficiently strong to obligate on a Torah level. And therefore there is here a distinction that we’ll still need later on: there are rabbinic laws that also have an aspect of essence. They are still not Torah laws because the essence is not critical enough or important enough to obligate on a Torah level. But it is still not correct to say that there is nothing there in itself and it is only a means to something else. There are such rabbinic laws. Rabbinic commandments, as opposed to rabbinic prohibitions, are almost all like this. Maybe all of them, not almost. With prohibitions there is room to hesitate. For example, there are later authorities who write and distinguish between two types of shevut on the Sabbath. There is a shevut because of concern that you may come to a Torah-level prohibition. For example, I don’t know—if it is forbidden to separate refuse from food, but rabbinically they also forbade separating food from refuse, one could say that they forbade food from refuse lest you come to separate refuse from food. So that is basically a decree. That’s one type of shevut. There is another type of shevut, which is an extension of the Torah-level prohibition. For example, regarding separating, one could also explain that separating refuse from food is the substantial form of selecting and is forbidden by Torah law. Separating food from refuse is selecting in a less significant way; still, it has the essential problem of selecting, just at a lower intensity, and therefore it is only rabbinic. It is an extension of the Torah-level prohibition, a kind of half-Torah, and it is done only rabbinically because it doesn’t cross the threshold of Torah law. In contrast to other shevut prohibitions which are certainly not an extension of the Torah law. For example, it is forbidden to ride a horse on the Sabbath lest one pull off a branch, a twig. Okay? Now nobody would think to say that riding a horse on the Sabbath is reaping on a rabbinic level. What does that even mean? I’m riding a horse—what, is that reaping that simply isn’t significant enough to be forbidden on a Torah level, and therefore is forbidden only rabbinically? I’m riding a horse. Riding a horse is not reaping. Only if I ride a horse is there concern that I may come to reap. Therefore riding a horse on the Sabbath is certainly a shevut of the type of a fence, not of the type of an extension of the Torah-level labor. Same thing with “one may not read by candlelight lest he tilt it,” what we saw earlier. Reading by candlelight—you can’t say that’s kindling on a rabbinic level. If I read by candlelight, I didn’t kindle anything; I didn’t perform any act of kindling. The only thing forbidden to me is lest I come to tilt it and then I’ll violate the prohibition of kindling. Therefore here it is clear that this is a shevut of the type of a fence, not a shevut of the type of an extension of the Torah-level labor.

[Speaker B] Megillah and Hanukkah, Rabbi—seemingly that’s not a fence. Megillah and Hanukkah, seemingly that’s not a fence, and it’s also not an extension.

[Rabbi Michael Abraham] Correct, which is why I wasn’t talking about that. Right now I’m talking about shevut prohibitions.

[Speaker B] No, so how is the Rabbi talking about Megillah and Hanukkah—what category is that?

[Rabbi Michael Abraham] It has an essence that is not important enough, and therefore it is rabbinic.

[Speaker B] Ah, so the Rabbi… it’s not because of extension.

[Rabbi Michael Abraham] Not because of extension. But with shevut on the Sabbath it’s also the same idea: it’s an essence that is not important enough—it’s a kind of half-Torah thing—so it’s not Torah law, it’s rabbinic, but it’s a kind of rabbinic law that is not of the fence type. Rather, it has the same problem as the Torah prohibition, just at a lower intensity. Many later authorities talk about this. You can infer it from Maimonides and from other places, that there are these two kinds of shevut. So separating food from refuse, for example, one could say that this is basically an extension of the Torah prohibition of separating refuse from food, except that maybe it has less severity for some reason, so they forbade it only rabbinically. But there is still an essential problem even when you separate food from refuse; it’s not only because of concern that you’ll come to separate refuse from food. One can explain it that way. In contrast, riding a horse on the Sabbath or reading by candlelight—there you can’t explain it otherwise. There it is necessarily a fence. I don’t have a labor category whose extensions I could say these are. Okay? Now this distinction… I once saw this in an article in the first issue of Higayon, which later became Badad, “In all your ways know Him,” published at Bar-Ilan. Those were articles on Torah and science. In the first issue there was an article by some physicist named Daniel Weil. I don’t know him—someone from Jerusalem, I think. He tried to show that there is quantum logic in the words of the Sages. He tried to show there is quantum logic in the words of the Sages. He brought some Talmudic passage in the chapter Tolin in tractate Shabbat, “one may hang the strainer,” where the Talmud says there is no dispute from one extreme to the other. Meaning, there are no Tannaitic disputes where one says forbidden by Torah law and the other permits completely. If one forbids by Torah law, the other will forbid rabbinically. If one permits completely and the other forbids, then he will forbid rabbinically. But there is no dispute where one permits completely and the other forbids by Torah law. That’s a dispute from one extreme to the other. Then the Talmud asks: wait, but with a “golden city” ornament we do find a three-way dispute. One says it is forbidden to go out with a golden city on the Sabbath—this is a women’s ornament, like the one Rabbi Akiva bought for Rachel. So going out with a golden city on the Sabbath: one Tanna says that is forbidden by Torah law, one Tanna says it is completely permitted, and one Tanna says it is rabbinically forbidden. So we see there can be a dispute from one extreme to the other. One says completely permitted, the other says forbidden by Torah law. The Talmud says no, no—here there’s someone who also says it is rabbinically forbidden; there is a middle opinion. Once there is a middle opinion, then a dispute from one extreme to the other can indeed exist. And then he starts making a whole big deal out of it regarding quantum logic and all the rest. I think that’s casuistry. But for our purposes, what really stands behind this is the claim that probably—why does such a middle opinion really solve the problem? There are still two Tannaim here, one of whom says it is completely permitted and the other says it is forbidden by Torah law. How can they see it so differently from one another? And the answer is probably, if I understand correctly, that the fact that there is a middle opinion and that it is a rabbinic prohibition—this is a rabbinic prohibition of the kind that is half-Torah, not a rabbinic prohibition that is a fence, but rather a half-Torah. Meaning, it is Torah-like, but not enough to be forbidden by Torah law. And if so, then there really is some kind of continuum here. Because if the middle opinion were forbidding it only as a fence, then basically there is no problem going out with a golden city at all; they just decreed lest you come to go out with something else with which it is forbidden to go out. But the act in itself is a completely fine act, and then this is indeed a dispute from one extreme to the other. But if you understand that the prohibition to go out with a golden city, according to the one who says it is rabbinically forbidden, means that it is basically a prohibition of carrying, just in a less severe form, and therefore it is forbidden only rabbinically and not by Torah law—then if that is so, there really is some sort of continuum here. One says it is entirely forbidden by Torah law, one says it is half-forbidden by Torah law, and the other says it is not forbidden by Torah law. So here there is significance to the fact that there is a middle opinion. If the middle opinion were forbidding it only as a fence, then basically in essence the middle opinion says it is permitted. It itself would be a dispute from one extreme to the other; it’s not really a middle opinion. It says it is permitted, only there is a decree as a fence that nevertheless forbids it rabbinically. But that is not considered a middle opinion. In what sense is it in the middle? Okay? So this sharpens the point a bit—that there are shevut prohibitions that are a kind of half-Torah prohibition, except that it is not enough to be forbidden by Torah law, and therefore they forbade it rabbinically. And there too, like the enactments I spoke about earlier, these too are rabbinic prohibitions that have essence; it’s just that the essence is not important enough to be forbidden by Torah law, and therefore they forbid it only rabbinically. Now one more point in this context. There is a whole collection of rabbinic enactments that resemble fences. They are not like fences, but they resemble fences. Not decrees but enactments. For example, the enactment of the oath of inducement, or all the oaths of the Mishnah. At the beginning of chapter 7 of tractate Shevuot appear all the rabbinic oaths; these are called “the oaths of the Mishnah.” There are three Torah-level oaths: one witness, bailees, and one who admits part of a claim. And there are all sorts of rabbinic oaths that appear at the beginning of chapter 7 of Shevuot in the Mishnah, and the oath of inducement is the oath of the Gemara, right? It does not appear in the Mishnah. That is the oath of the Gemara. All these enactments of oath regulations are not enactments like Hanukkah candles or Megillah or lighting candles, even though it is an enactment and not a decree. But these are enactments that basically come to solve some problem. Or the market enactment, the enactment for returning thieves. The market enactment is, say, if I bought something in good faith and then it turns out it was stolen, I am not obligated to return it to the robbery victim. The victim should sue the robber, but I as the innocent buyer don’t have to return it. Why, really, did they do that? In order to enable people to conduct commerce. Because if I had to suspect every item I buy of perhaps being stolen—and how exactly are you supposed now to check whether it was stolen or not? Are you going to convene a court over every tomato you buy? It’s not practical; you can’t function that way. So if you bought in good faith—if you knew it was stolen, then no—but if you bought in good faith and afterward it turned out to be stolen, you don’t have to return it. That is called the market enactment. Now from the standpoint of strict law, of course you should have to return it—it’s not yours. The owner can claim, “My property is in your possession.” The owner is entitled to that item. The fact that someone tricked you and sold it to you—so what? He could also sell you the Brooklyn Bridge. It isn’t his. So the claim is that although under the strict law I would have had to return it, the Sages established that there is a market enactment and one does not return it. Likewise the beam enactment, the enactment for those who repent. If I stole something—I stole a beam—and built it into my house, and now I want to repent. Now in order to repent I have to return the theft. I would have had to dismantle the house, take out the beam, and return it to its owner. That makes repentance very difficult. Many people would shy away from repenting if they had to dismantle their house for it. So in order to ease the way for penitents, the Sages exempted you from dismantling the house. You don’t have to return that beam. Okay? So all sorts of enactments of this sort—these are enactments, not decrees. But these enactments—notice, this is an interesting point—although they are enactments and not decrees, they have no essence. They have no essence. In that sense they resemble decrees, even though they are enactments. Why? Because they resemble fences. There are later authorities…

[Speaker B] Something like “for the sake of peace in the world,” maybe? What? For the sake of peace in the world. The Rabbi once talked about this, that it’s like they replace what the state is supposed to do—they do it.

[Rabbi Michael Abraham] Exactly. Meaning, what’s going on is that these enactments are not the truth. They are not the truth. The legal truth is that you have to return the stolen item. That’s the truth. Except what? The world has to be repaired; in order to create order in the world, they tell you: fine, you are exempt from returning it. Whether through the enactment for penitents, or the market enactment, or whatever it may be, or an oath—it doesn’t matter. All of these come to solve problems. Any law that comes to solve problems, by definition is rabbinic law. Torah-level laws do not come to solve problems. Torah-level laws state the truth. That is the Torah truth: if you do this, then the truth says that this is what should be done. That’s it, that’s the truth. Anything that is not intrinsically true, but rather comes to solve other problems, that serves as a solution to other problems, is by definition rabbinic law. Therefore, for example, some later authorities (Acharonim) discuss at great length the market enactment and the hesset oath. There is a long passage by Beit HaLevi about this, and others as well: when was this rabbinic law created? Or what problem arose over the course of history that caused the sages to institute this enactment? What, did robbers become more common? Or someone who completely denies the claim has to take a hesset oath—before that maybe he didn’t have to swear? What suddenly happened that they began obligating someone who completely denies the claim to take a hesset oath? Or did robbers become more common, and therefore the beam enactment or the market enactment was instituted? What, suddenly there were lots of robbers? In what period did this happen, and what caused it? And Beit HaLevi works out a whole calculation there of how this could be and when it happened and when it didn’t happen, and until what point it was like this and until what point it was like that. Now, there are later authorities who already noted that the hesset oath has hints in the Mishnah, even though it is called an oath of the Talmud. It has hints in the Mishnah, although it does not appear there by its full name, but you can see hints to the hesset oath in the Mishnah too. And I think this whole treatment by the later authorities is a mistake. These rabbinic enactments are rabbinic enactments not because they were born at some point in history when some problem arose. That problem has existed since the creation of the world. It is a problem embedded in human nature. But since these enactments come to solve problems and are not enactments that reflect truth, they are rabbinic laws. Even if this existed in the time of Abraham our forefather and Adam, it really makes no difference. It does not have to be something that came into existence over the course of history because some need arose. People think that something that was true at the time of the giving of the Torah is Torah-level, and if some need arose only afterward, then it is rabbinic law. That has nothing to do with chronology at all. Meaning, if this law is a law that comes to solve problems, but in itself it is not truth, then it is rabbinic law, even if it existed in the time of Adam. And if this law is truth, then it is Torah-level law. It has essence, yes? That’s what I mean by truth. All these… all these laws, in terms of essence, are not the truth. The truth, the law, says that the truth is that if you stole, you have to return it. That’s the truth. True, it creates problems, so I need to solve the problems, repair the world, create order. Okay, then by definition, this type of law is rabbinic law. There is no need to search for when in history it was created. It was created with the creation of the world. It doesn’t matter. Even if this need is embedded in human nature, still it is a need external to the law. The law itself is not intrinsically correct; it does not reflect truth. And Torah-level laws are laws that reflect truth. The Torah deals only with truth. Anything that comes as a trick to solve other problems and so on, that serves other things, that is a means to other things, is rabbinic law. And fences are one particular case of this, but not only fences. Anything that is not intrinsically true, but comes to serve other things, is rabbinic law. And again you see how we arrive at the same conclusion, that in rabbinic law by definition there is no essence. Anything that has no essence is by definition rabbinic law. Because what is found in the Torah is necessarily something that has essence, that is true in itself, that reflects some kind of spiritual reality or I don’t know exactly what. Rabbinic laws reflect nothing; they are arrangements, conventions. Yes, arrangements intended to make life easier or organize life in some way. This type of law is by definition rabbinic law. Okay, shall we stop here.

[Speaker B] Rabbi, so is that also the practical difference in the Nativot, basically—the completing cases that the Rabbi is talking about—would that also apply only to a rabbinic prohibition that comes by way of a fence and not an extension?

[Rabbi Michael Abraham] Right. If in fact you see your rabbi, say, about to violate a rabbinic prohibition that is an extension of a Torah-level law—not a fence, not “lest it lead to a Torah prohibition”—then there is definitely room for the reasoning that you need to stop him just as with a Torah-level law. Even though the problematic nature is not as severe as a Torah-level law, but what difference does that make? It is still problematic. Why should a person create something problematic, do something problematic? Right?

[Speaker B] So then also what the Rabbi is saying regarding the Torah, basically, is that rabbinic enactments might indeed be considered Torah, but fences are not?

[Rabbi Michael Abraham] You’re jumping ahead. That’s where I want to get to. We’ll get there. Okay? Anyone else? Sabbath peace. Okay, Sabbath peace.

[Speaker B] Rabbi, could I just get clarification on a completely different matter? I saw that the Rabbi speaks about this regarding self-imposed prohibition (“shavya anafshei chatikha de-isura”). And the Rabbi—I think you have an article in B’Tzel HaChokhmah—the Rabbi calls it “the subjective dimensions of Jewish law.” So there the Rabbi says that self-imposed prohibition is basically also a matter of credibility, but only in its subjective dimension. Right. So I just wanted clarification: doesn’t the Rabbi say that since this concerns my subjective realm, then I am, as it were, clarifying reality more—I clarify reality more by this than by testifying about myself?

[Rabbi Michael Abraham] If that were so, you would be believed vis-à-vis others as well.

[Speaker B] Yes, that’s what… so that’s not what the Rabbi…

[Rabbi Michael Abraham] When it concerns yourself, we have an indication that this is true. Now, if it is true, then it is true for us as well.

[Speaker B] Yes, no, because maybe one could say that I clarify only for myself, and that would be a real clarification of reality—even more than two witnesses—but only regarding a prohibition and only on myself, where I have no interest, as it were. But that’s not what the Rabbi… you can’t say that.

[Rabbi Michael Abraham] On the contrary, even regarding a litigant’s admission I said there that a litigant’s admission is like a hundred witnesses, but where it harms another party, he is not believed.

[Speaker B] Yes, where it harms another party.

[Rabbi Michael Abraham] When it harms another party, he is not believed, because maybe he has some scheme, maybe he is admitting in order to hurt someone, or something like that. I argued there: no. I argue that because it harms another party, it no longer belongs to his private domain, and therefore he does not have that credibility.

[Speaker B] Yes, so basically I’m just… so basically the Rabbi is saying there are subjective dimensions in Jewish law, and that is a complete novelty. There isn’t some reasoning here to understand it; it’s just a full Torah-level novelty. Simply a scriptural decree of that sort.

[Rabbi Michael Abraham] A litigant’s admission is a novelty of the Torah, but for example the status of dreams, which I discussed there—that is not a novelty of the Torah, that dreams have a status. That is something the sages said based on their own reasoning. So what?

[Speaker B] But does the Rabbi understand there to be some reasoning in this matter of subjective dimensions—that I go by a person’s credibility regarding himself, because that is his territory, as it were?

[Rabbi Michael Abraham] It’s hard for me, yes, that’s it, it’s hard for me to offer some explanation in terms of evidence or probability. But yes, there is some intuition that says that with respect to my own domain, with respect to me, I am the one who determines it. Meaning, if I decide that something is forbidden, okay, then behave as if it is forbidden. Meaning, you yourself say: fine, if that’s what you think, then that’s what you should do. It has nothing to do with the question of what the truth is.

[Speaker B] But yes, when that contradicts the truth, then I don’t go that way, right? When it contradicts reality, I don’t say that, because there there is no governing rule at all.

[Rabbi Michael Abraham] Certainly when it contradicts reality. What, if I have two witnesses?

[Speaker B] No, no, not if I have two witnesses. Two witnesses, yes, that is a governing rule; it does not contradict reality. But if I, say, like Rabban Gamliel on Yom Kippur—what the later authorities bring in this context—there I would not say that Rabban Gamliel forbade it upon himself, a self-imposed prohibition, and therefore he has to observe two Yom Kippurs, basically.

[Rabbi Michael Abraham] Why would Rabban Gamliel have to observe two Yom Kippurs?

[Speaker B] Because no, I would say that…

[Rabbi Michael Abraham] Since he was the head of the Sanhedrin, that is not self-imposed prohibition; he determined the calendar for all the Jewish people.

[Speaker B] Yes, but Rabbi Yehoshua came to him and said, for me this is Yom Kippur. And he said to him, you will go anyway. And there I still do not say that even though the reality is that it is not Yom Kippur, I will impose Yom Kippur on him because he wants to forbid it upon himself. That certainly cannot be said. When I know the reality—for example, if they slaughtered in front of me, you are the religious court and they slaughtered the lamb in front of the religious court and you know it is kosher, and someone comes and says, I know it is non-kosher—you cannot say there self-imposed prohibition.

[Rabbi Michael Abraham] I suspect that indeed there would not be a law there of self-imposed prohibi-

[Speaker B] tion.

[Rabbi Michael Abraham] Yes, there would not be there,

[Speaker B] Right? Because it contradicts reality. Right? When it contradicts reality, then I do not say there is…

[Rabbi Michael Abraham] You’re living in a movie, living in a movie, but that doesn’t make the movie true. But if there is no known objective truth, then if you established something in your own domain, then in your own domain that is what determines.

[Speaker B] Yes, so that is sort of a bit of an explanation—it’s based a little on territory. Yes. Okay Rabbi, thank you very much.

[Rabbi Michael Abraham] With great pleasure, good news.