Biblical and Rabbinic Law – Lecture 7

Table of Contents

• The difficulties in Maimonides’ approach and the debate between the Tashbetz and Nachmanides
• Maimonides’ criterion for Torah-level vs. rabbinic: an explicit verse versus an interpretive derivation
• Identifying the distinctions: Written Torah / Oral Torah versus Torah-level / rabbinic
• Maimonides’ exceptional position among the medieval authorities (Rishonim) and possible sources
• A distinction within a law given to Moses at Sinai: explaining an already written law versus introducing an entirely new law
• “No punishments are derived from legal inference”: the halakhic significance of classifying derivation as rabbinic
• Maimonides versus Ralbag: the truth of derivations versus not counting them as branches from the roots
• Derivation as expansion rather than revelation: the heart of the interpretive dispute
• The logical inference: deduction versus non-deductive inference as the basis for understanding derivation
• “If the transmitters said it is Torah-level”: supporting derivations and creative derivations
• Nachmanides’ objections to “everything comes from the Holy One, blessed be He” and Maimonides’ response
• Examples in practice: priestly garments, “linen” versus “fabric,” and the Ran in Nedarim
• For Maimonides, “rabbinic” is not one single package: different kinds of rabbinic law and the laws of doubt
• In a Torah-level doubt we are stringent; in a rabbinic doubt we are lenient: command versus essence

Summary

General Overview

The text presents a basic difficulty in Maimonides’ approach, according to which laws learned through interpretive derivations are given the status of rabbinic law and words of the Sages, even though on the face of it in the Talmud they appear to be Torah-level. It examines the dispute among interpreters of Maimonides as to whether he means only the source of the law, or also its binding force. The conclusion tends toward accepting Nachmanides’ view that Maimonides really does mean genuinely rabbinic law, and from there a consistent system is built: Maimonides identifies Torah-level law with what is written in a verse and belongs to the Written Torah, while rabbinic law is what is not written in a verse, even if its source is from Sinai as part of the Oral Torah. On that basis, it is explained that for Maimonides the hermeneutic principles do not uncover some inner content latent in the verse, but rather expand from it “branches from the roots.” Therefore, the product of a creative derivation is rabbinic, and only when the Sages testify that it is “the body of the Torah” or that it is “Torah-level” is the derivation understood as revealing something already there, and then its status is Torah-level. Later, it is argued that for Maimonides “rabbinic” is not one uniform package, and there are different kinds of rabbinic law with different laws of doubt, along with an attempt to explain why sometimes doubt regarding derivations is treated stringently while doubt regarding a law given to Moses at Sinai is treated leniently.

The difficulties in Maimonides’ approach and the debate between the Tashbetz and Nachmanides

The text states that there are “very many difficulties” in Maimonides’ defining laws derived through interpretation as rabbinic words of the Sages, because in the plain sense the Talmud seems to treat them as Torah-level, and there is not much evidence in Maimonides that he means otherwise. The text presents a dispute over whether Maimonides means that the halakhic force is literally rabbinic, like enactments and decrees, or whether only the source of the law is from the Sages while its force is Torah-level, as suggested by the Tashbetz and those who follow him. The text rejects the Tashbetz’s reading on the basis of Maimonides’ language, since he is precise in terminology and calls it “rabbinic law” in the ordinary sense. Therefore the conclusion is that Nachmanides is correct and Maimonides meant genuinely rabbinic law, even though that leaves the difficulties fully in place.

Maimonides’ criterion for Torah-level vs. rabbinic: an explicit verse versus an interpretive derivation

The text describes a consistent “conceptual revolution” in Maimonides, according to which a “Torah-level law” is identified with a law that appears in the Torah and has a verse attached to it, whereas anything that does not have “an explicit written indication pointing to it” is rabbinic even if it was learned through interpretation. The text cites Maimonides’ language distinguishing between derivations in which the Sages “explained… that this is the body of the Torah or that this is Torah-level,” in which case “it is fitting to count it,” and derivations about which they did not explain this, in which case “it is rabbinic.” The text emphasizes that Maimonides repeats this distinction in many places, in his introductions and in his responsa, and this is not some incidental turn of phrase.

Identifying the distinctions: Written Torah / Oral Torah versus Torah-level / rabbinic

The text presents the accepted view, which distinguishes between Torah-level and rabbinic as a matter of legal force, and between Written Torah and Oral Torah as a distinction in source and mode of transmission, where even the Oral Torah is still regarded as within the Torah-level domain. The text gives the example of “something the Sadducees agree with” as something explicitly written in the Torah, as opposed to “something the Sadducees do not agree with” as Oral Torah, and yet both still fall under Torah-level law. The text argues that Maimonides “does not accept that distinction” and instead identifies the two: in his view, Torah-level law is Written Torah, and rabbinic law is Oral Torah, so the question of source and the question of legal force are one and the same.

Maimonides’ exceptional position among the medieval authorities (Rishonim) and possible sources

The text describes Maimonides as completely exceptional relative to the standard view among the medieval authorities (Rishonim), especially against Nachmanides’ argument: if the thirteen hermeneutic principles are tools given at Sinai and the text was given at Sinai, how can the result of using those tools become rabbinic. The text notes “a few sources among the Geonim” and also a hint among “Rashi’s teachers at the beginning of Ketubot” regarding betrothal by money as “from the words of the Sages,” while emphasizing that Rashi rejects this and that all the medieval authorities disagree, whereas Maimonides is consistent on this point. The text says that Maimonides explicitly claims that both a law given to Moses at Sinai and derivations that are not “among the count of the commandments” are rabbinic, and asks how that can fit with legal force, doubts, and lashes.

A distinction within a law given to Moses at Sinai: explaining an already written law versus introducing an entirely new law

The text presents a distinction in Maimonides based on his comments in his Commentary on the Mishnah in chapter 17 of Keilim: if a law given to Moses at Sinai adds details within a law that is already written in the Torah, those details receive Torah-level status because the law “only explains the law in the verse.” By contrast, the text sets against this a law given to Moses at Sinai that introduces a genuinely new law, such as the willow ritual and the water libation, regarding which it would have “the status of words of the Sages.” The text also raises the issue of betrothal by money as a derivation that explains the concept of betrothal that appears in the Torah, and therefore Maimonides may see the result as Torah-level even though its source is an interpretive derivation.

“No punishments are derived from legal inference”: the halakhic significance of classifying derivation as rabbinic

The text states that Maimonides’ words at the beginning of his enumeration of the commandments show that the classification “words of the Sages” is not just a literary description but has halakhic significance, because Maimonides writes that for something learned by derivation “one is not punished for it,” by virtue of the principles “we do not derive punishments from legal inference” and “we do not derive warnings from legal inference.” The text brings Nachmanides’ criticism that “legal inference” in the Talmud means only a kal va-chomer argument, whereas Maimonides expands the term to all thirteen hermeneutic principles and the entire world of derivation. The text explains that according to Maimonides, a derivation is not a “warning” to a person; only what is written in the Torah is a warning, and therefore only on that basis can punishment be imposed.

Maimonides versus Ralbag: the truth of derivations versus not counting them as branches from the roots

The text cites Maimonides’ wording in the principle: “Perhaps you will think that I refrain from counting them because they are not true… that is not the reason,” and emphasizes that Maimonides does not doubt the truth of the laws learned through derivation; even if “the one deriving them were Moses our teacher,” it would still not be proper to count them. The text presents Ralbag as someone who doubts the reliability of the thirteen hermeneutic principles and sees derivations only as supporting derivations, because the tools are amorphous, while Maimonides sees them in most cases as creative derivations rather than merely supporting ones. The text defines Maimonides’ key phrase as “branches from the roots that were said to Moses at Sinai,” and turns that into the basis for understanding the essence of derivation.

Derivation as expansion rather than revelation: the heart of the interpretive dispute

The text presents Nachmanides’ view, according to which the tools of derivation uncover a meaning embedded in the verse, so that a derivation such as “You shall fear the Lord your God” coming to include Torah scholars reveals a dimension that is already written in the verse, and therefore it is Torah-level. Against this, the text sets Maimonides’ view that the derivation “is not found inside the verse,” and that the hermeneutic principles expand the verse rather than expose its inner content, and therefore the result is an expansion rather than part of what is written. The text connects this to the metaphor of root and branches, according to which the verse is the trunk and the derivations are branches that emerge from it.

The logical inference: deduction versus non-deductive inference as the basis for understanding derivation

The text develops a philosophical analogy according to which a deductive inference is one where the conclusion “is contained within the premises,” whereas analogy and induction are forms of inference that add information and therefore are not certain. The text argues that the hermeneutic principles are non-deductive forms of inference that add information, and therefore what emerges from them is not “written in the Torah” but is an expansion beyond the verse. The text quotes Nachmanides’ wording in the introduction to Milhamot: “For the wisdom of our Torah is not like astronomy and mathematics, whose proofs are decisive,” and uses that to describe the world of halakhic inference as not mathematically certain.

“If the transmitters said it is Torah-level”: supporting derivations and creative derivations

The text argues that the Tashbetz and Nachmanides “are both right” in the sense that Maimonides does not distinguish between source and force, and therefore when the Sages say about a derivation that it is “Torah-level,” Maimonides agrees that it is Torah-level, while in other cases it is rabbinic. The text explains that the key is the distinction between a derivation that is “growing / supporting,” meaning that it reveals a traditional law already known from Sinai, and a “creative” derivation, which is an expansion that is not a written warning. The text describes an overarching structure of four categories: laws explicitly written in the Torah, laws derived without tradition, a law given to Moses at Sinai without a derivation, and laws that have both tradition and derivation. It suggests that this division is what Maimonides uses to distinguish between a derivation that reveals and a derivation that expands.

Nachmanides’ objections to “everything comes from the Holy One, blessed be He” and Maimonides’ response

The text formulates Nachmanides’ objection this way: if the text and the tools are from Sinai, how can the result be rabbinic, since “everything comes from the Holy One, blessed be He,” and He wants us to apply the tools to the text. The text answers, in light of its understanding of Maimonides, that the purpose of the tools is not to uncover what is already written, but to make expansion possible, and therefore the result is not a written warning and is not Torah-level. The text adds another objection: how can a law given to Moses at Sinai be rabbinic, and how can derivation plus tradition become Torah-level? It answers that tradition combined with derivation indicates that the derivation reveals what is already written in the verse and does not expand beyond it.

Examples in practice: priestly garments, “linen” versus “fabric,” and the Ran in Nedarim

The text brings an example from the Talmud in Yoma and Zevahim about the repetition of the word “linen” regarding priestly garments, where the Talmud learns from it both various laws and also that it is indispensable, by force of the rule “every place where Scripture repeats something, it is to make it indispensable.” The text notes that Maimonides rules that the laws are extended even to garments regarding which the word “fabric” is used, but the indispensability applies only to “linen” and not to “fabric,” and explains this by saying that the indispensability was stated about what is written in the verse, whereas the extension to “fabric” is an expanding derivation. The text also cites the Ran in Nedarim 8a, who distinguishes between what is explicitly written in the Torah and what emerges from derivation regarding the possibility of taking an oath, while stating that both are Torah-level in status, but only about what is explicitly written do we say that a person is “already sworn from Mount Sinai.”

For Maimonides, “rabbinic” is not one single package: different kinds of rabbinic law and the laws of doubt

The text argues that when Maimonides says that laws derived through interpretation are rabbinic, he does not mean that all the usual consequences of rabbinic law apply uniformly. Rather, the category “words of the Sages” includes a law given to Moses at Sinai, laws derived through interpretation, enactments, decrees, customs, and logical reasoning, and each subcategory has different laws. The text says there will be rabbinic laws where “in cases of doubt we are lenient” and others where “in cases of doubt we are stringent,” and that every aspect of the distinction has to be discussed on its own terms. The text points ahead to a continuation in which it seeks to explain a rule distinguishing between rabbinic law that lacks “essence” and rabbinic law that lacks “command,” and according to that its law in cases of doubt is determined.

In a Torah-level doubt we are stringent; in a rabbinic doubt we are lenient: command versus essence

The text presents an objection to Maimonides based on Nachmanides: if rabbinic law is grounded in the Torah-level command “Do not deviate,” why are we lenient in a doubt involving rabbinic law. The text brings an explanation attributed to later authorities (Acharonim) such as Rabbi Shimon Shkop, Rabbi Shlomo Zalman Auerbach, and the Netivot, according to which in rabbinic law the issue is the duty of obedience and not the essence of the prohibition, and therefore in a case of doubt there is no rebellion and no clear obligation, whereas in Torah-level law there is both command and “essence,” and so we are stringent. The text proposes applying this to Maimonides’ approach, so that with a law given to Moses at Sinai what is lacking is the essence and only the command remains, and therefore “in a case of doubt we are lenient,” whereas with derivations what is lacking is the written command but there is still an expansion of the essence, and therefore “in a case of doubt we are stringent,” even though both are called rabbinic.

Earlier I spoke about the difficulties in Maimonides’ approach, where Maimonides says that laws derived through exegetical interpretation have the status of rabbinic enactments, of rabbinic law. There are a great many difficulties with this. On the face of it, in the Talmud it seems that this is Torah-level law. In Maimonides there isn’t much evidence for that. And then I began talking, if I remember correctly, about the meaning of Maimonides’ words, since his commentators disagreed about whether he meant to say that these laws really are rabbinic laws, like enactments and decrees, the laws derived through interpretation, or whether he actually meant to say that these laws originate with the sages, rabbinically, but the halakhic status of these laws is Torah-level status—that’s what the Tashbetz suggests, and those who follow him. As I noted, it’s very hard to interpret Maimonides that way, because Maimonides uses the terminology that this is a rabbinic law, and that’s the standard terminology everywhere. There’s no reason to assume that specifically here these terms are being used in a different sense, especially with Maimonides, who is very precise about terminology, and there are places where he devotes an entire law just to define what terminology he uses in each case. So suddenly to use the term rabbinic law when he really means a Torah-level law whose source is the sages—that’s strange. Fine, so if that’s the case, the necessary conclusion is that Nachmanides is really right, that Maimonides meant an actually rabbinic law. But then all the difficulties remain. Meaning: how can it be that laws derived through interpretation are rabbinic laws?

So here we’ll try—because today I want to finish this topic; we’re heading into the break between terms—so I’ll do it a bit in leaps. Maimonides basically, in several places, identifies the expression—let’s put it this way—identifies and defines the expression Torah-level law as a law that appears in the Torah. You see this in a few places, among them here in this root. For example, when he defines and gives a criterion for which law is Torah-level and which is rabbinic from among those derived through interpretation, he says: if they explained it themselves and said that this is the body of the Torah or that this is Torah-level, then it is fitting to count it, since the transmitters said that it is Torah-level. If the sages said that it is from the Torah. But if they did not explain this and did not speak of it, then it is rabbinic, because there is no written text indicating it. Why is it rabbinic? Because there is no verse teaching it. It’s an interpretation. But there’s no verse teaching it. Meaning, for Maimonides, the criterion for what is called Torah-level and what is called rabbinic is whether there is a verse for it or there isn’t a verse for it.

Now you have to understand well that this is a conceptual revolution. He repeats this in many places, also in the responsum I mentioned, and in many, many other places, and very consistently; this is not some accidental turn of phrase. It’s a conceptual revolution, because we usually are accustomed to two distinctions that on their face are completely different. One distinction is between Torah-level and rabbinic, which is a distinction on the plane of halakhic force. What is the legal force of the law—rabbinic or Torah-level? The second distinction is a distinction relating to source, you could say the difference between Written Torah and Oral Torah. Written Torah and Oral Torah means: what is found in the written Torah, what has a verse for it, and what is Oral Torah. It could be a law given to Moses at Sinai, things derived through interpretation, things not written explicitly in the Torah, but the Oral Torah helps us either derive them from the Torah or receive them through an oral tradition that accompanies the Torah—that is a law given to Moses at Sinai. This distinction between Written Torah and Oral Torah does not overlap in any way with the distinction between rabbinic and Torah-level. These are independent distinctions. At most there’s a dependence in one direction; in the common conceptions—and later this got broadened—in the common conceptions, the distinction between Written Torah and Oral Torah is a distinction within Torah-level law. Meaning: within Torah-level laws there are two types. There are laws written explicitly in the verse, what the sages call “something the Sadducees would concede.” “Something the Sadducees would concede” means something written explicitly in the Torah, because the Sadducees did not recognize the Oral Torah, only the Written Torah. And there is “something the Sadducees would not concede,” which is Oral Torah. But all of that is within Torah-level law; the only question is whether it is written explicitly, which is Written Torah, or whether it is derived through interpretation or transmitted orally as a law given to Moses at Sinai—which is Oral Torah. Meaning, the distinction between Written Torah and Oral Torah is not really a halakhic distinction at all. It’s just terminology, but in the standard view it has no halakhic significance whether something is Written Torah or Oral Torah, because it’s a distinction within the category of Torah-level law.

Alongside that there is rabbinic law. What is rabbinic law? Enactments, decrees, customs—there it has nothing to do with whether there is or isn’t a verse; it’s not tied to the Torah. It is an innovation of the sages, legislation. That’s what I began this whole series with: that rabbinic law versus Torah-level law—the difference between them is the question of what the sages are doing here. Are the sages functioning as interpreters, in which case the law is Torah-level, or are they functioning as legislators, in which case the law is rabbinic? These are two different authorities, both deriving from “you shall not deviate.” The second one is what we dealt with in the first root, the authority to legislate, and now I’m dealing with the authority to interpret or expound. So basically, in the standard conception, the halakhic division is between rabbinic laws and Torah-level laws. Within Torah-level laws there is a division that has no direct halakhic significance, at least, between Written Torah and Oral Torah.

Maimonides, very consistently, does not accept the distinction, the separation, between these two divisions. He identifies the two divisions. For him, Torah-level law is Written Torah, and rabbinic law is Oral Torah. You can see this in many places. One of them I just read, but in many—dozens of places—you see it in his introductions, in lots of places, in responsa. So what does this mean, basically? It means that for Maimonides, this whole big argument over what Maimonides meant—the Tashbetz versus Nachmanides—the Tashbetz understood that Maimonides is talking about the question of source, not the question of legal force, right? That when Maimonides says this is “from the sages,” he means it comes from the sages, not from the Torah. It’s only a matter of source, but the halakhic force is Torah-level, so says the Tashbetz. So he says Maimonides is really dealing only with the question of source, not the question of force. Nachmanides claims that Maimonides is dealing with the question of force. They’re both right. Maimonides does not distinguish between the two questions. For Maimonides, the question of source and the question of force are the same question. If the source is from the Torah, then it is Torah-level. There is a verse indicating it. If the source is not from the Torah but from interpretation or a law given to Moses at Sinai, then it is not Torah-level; it is rabbinic, from the sages.

But there are commandments that Maimonides counts that have no verse at all—I don’t remember which ones. There are a few isolated cases; I collected some of them here, and each one has an explanation; maybe I’ll get to that. In principle, this is basically what Maimonides says, quite explicitly. Meaning, it sounds very logical that Written Torah is one thing and Oral Torah is another. But why is that connected to Torah-level and rabbinic? Why is that connected to the division in legal force? That’s exactly what Nachmanides attacks in Maimonides. Maimonides, says Nachmanides, you say that the thirteen hermeneutical principles are tools that are a law given to Moses at Sinai; we received them from the Holy One, blessed be He. The Torah itself we also received from the Holy One, blessed be He. So now when we apply the tools we received from Him to the text we received from Him and derive some law—suddenly it’s a rabbinic law? How? Everything came from the Holy One, blessed be He. He told us: take the text I’m giving you together with these tools, apply them to the text, and whatever comes out is what I want from you. So how does that come out rabbinic? That is the standard conception—not only Nachmanides; that is the standard conception of all the medieval authorities (Rishonim). Maimonides is completely exceptional. I already said there are a few sources—very few sources—among the Geonim for Maimonides’ view. There are those who see some source for Maimonides’ view also in Rashi’s teachers at the beginning of tractate Ketubot, where they say that betrothal by money is “from the sages,” and therefore whoever betroths does so subject to rabbinic authority is said only about betrothal by money. Rashi himself rejects that view; all the medieval authorities (Rishonim) disagree with it. But Maimonides, as far as I know, consistently maintains it.

And Maimonides claims that the question of force and the question of source are the same question. A law given to Moses at Sinai? A rabbinic law, according to Maimonides. He says this explicitly in a number of places. Also interpretations that are Torah-level? Those among the count of the commandments are rabbinic according to Maimonides? Yes. Laws that emerge from interpretation, or from a law given to Moses at Sinai—according to Maimonides these are rabbinic laws. No one agrees with him. And is the legal force the same thing? The legal force of a rabbinic law—meaning rabbinic force. Certainly, in a case of doubt one should be lenient. What? Still, doubt… in a moment we’ll see; that’s more subtle, we’ll get to it in a moment. No, the real question is whether Maimonides’ “rabbinic” is the same as ordinary “rabbinic”… I’m only at the beginning.

According to that, details for example in phylacteries, where all the details of phylacteries—are those also Torah-level? No, that is Torah-level. Why is that Torah-level? I think I discussed that last time, because there are laws given to Moses at Sinai—this is Maimonides in chapter 17 of the Mishnah on Kelim—where Maimonides says that if there is a law given to Moses at Sinai that adds details within a law that is written in the Torah, then the details are Torah-level; the law only explains the law in the verse. But if there is a law given to Moses at Sinai that introduces a new law, such as the willow branch and the water libation are laws given to Moses at Sinai—that is a novel law, not a detail within an existing law—then it has the status of “from the sages.” And isn’t betrothal by money just a detail? What? Betrothal by money. I said that I think what Maimonides means—after all, there is a contradiction in his words on this issue, and in that context I brought it up—I said that betrothal by money is not a law given to Moses at Sinai; it is an interpretation. But it is an interpretation that explains the concept of betrothal, which does appear in the Torah. Therefore there Maimonides really says that in the end the result is Torah-level.

And what about lashes, and especially the fact that there are all kinds of commandments for which one receives lashes, but according to Maimonides no, one does not receive lashes for commandments that emerge from interpretation. Only if the sages said that this is a Torah-level commandment, in which case Maimonides says that even though it comes from interpretation, it is still Torah-level because the sages said so. That too has to be understood—what do you mean, “they said”? Either it’s rabbinic or it’s Torah-level. I’ll get to that, God willing.

All right, so let’s begin for a moment; I’ll try to build Maimonides’ view in an orderly way. First of all, the first insight that emerges from what Maimonides says: Maimonides identifies the question of source with the question of force. Meaning, where the law comes from is what determines its force, all right? He is not willing to detach the distinction between Written Torah and Oral Torah from the distinction between Torah-level and rabbinic. For him it is the same thing. Literally interchangeable terms, conceptually, in the same place. So how does this work?

It seems to me that what Maimonides is basically saying—and I mentioned this too in one of the previous sessions, in one of the proofs I brought that Maimonides intends a legal claim and not just a literary description, you might call it—is what he says at the beginning of his count of the commandments. He says that if a law is derived through interpretation, one does not punish for it, because one does not derive punishments by logical derivation, and one does not derive warnings by logical derivation. Meaning, if we learned, say, through an analogy or an a fortiori argument, some prohibition, there will be no lashes for it. Maimonides says this explicitly. Why? First of all, this means that when Maimonides says that something derived through interpretation is rabbinic, he means some statement that has halakhic significance, not just a literary classification of source, where it comes from, but something with legal significance. Because Maimonides says one does not punish by logical derivation, one does not warn by logical derivation. And Nachmanides attacks him, as I mentioned. Nachmanides attacks him and says: “one does not warn by logical derivation” and “one does not punish by logical derivation” speak only about “din.” What is “din”? An a fortiori argument. “Is it not a logical conclusion?”—when the Talmud says that, what does it mean? An a fortiori argument, right? The term “din” in the language of the Talmud means an a fortiori argument. For Maimonides, no. “Din” means a derivation from the whole world of interpretation, from the exegetical tools in general. And “one does not punish or warn by logical derivation” means you do not impose punishment for something learned through any of the exegetical tools. An a fortiori argument is one example, but all the examples are like that. That’s Maimonides’ position.

Why? What is there in the exegetical tools that doesn’t let us punish? With an a fortiori argument there are all kinds of discussions—we spoke about this once at the beginning. I said that regarding an a fortiori argument there are those who want to explain why one does not punish by logical derivation: maybe there is a refutation, maybe the punishment won’t suffice, maybe the learned law is more severe—there are various explanations. But those are explanations specific to an a fortiori argument. When Maimonides says “one does not punish by logical derivation” regarding all thirteen principles, that means there is something else going on. And Maimonides really explains why: because one punishes only if there was a warning. Maimonides holds that if there is a law that emerges from interpretation, that does not count as warning the person. A warning to the person is what is written in the Torah. If it says in the Torah that something is forbidden, then the Holy One, blessed be He, is warning us: friends, this is forbidden. Then you can punish, because we were warned. But if it is something that comes out of interpretation, it does not have the status of a warning. That is the point of “one does not warn by logical derivation.” Why?

So here Maimonides says, further on in his root: and perhaps you will think that I refrain from counting them because they are not true. Maybe you think I don’t count the commandments that emerge from interpretation because I doubt their reliability, maybe they’re not correct. I mentioned that Gersonides, in the introduction to his commentary on the Torah, really does cast doubt on the reliability of the thirteen principles, and therefore says they are all only supportive interpretations, because it is hard to grant legal force to tools that are so amorphous, so not unequivocal. Fine, you play these games of the thirteen principles, derive some law—that’s dubious, says Gersonides. It can’t be. Clearly we know the law beforehand, and the interpretations are only an allusion supporting the known law. But with Maimonides we said that, except for three or four laws, the interpretations are productive, not merely supportive—unlike Gersonides. So he says: perhaps you think I refrain from counting them because they are not true, and whether the law derived through that principle is true or not true. Meaning, I’m not dealing with the question of truth. It has nothing to do with whether it is true or not true; it is certainly true. That is not the reason. Rather, the reason is that everything a person derives are branches from the roots that were stated to Moses at Sinai by way of explanation, and they are the 613 commandments. And even if the one deriving them were Moses our teacher, they are still not fit to be counted. Meaning, I do not doubt the reliability of these laws at all. Even if Moses our teacher himself used the thirteen principles and derived that law, I still would not include it in the count of the commandments. Why? Not because it isn’t true, but because these are branches emerging from the roots. That is really the key phrase here. What does it mean?

It seems to me that what this means is the following. There are two ways to understand the meaning of the whole world of interpretation. Nachmanides represents the standard conception among the medieval authorities (Rishonim): that the whole world of interpretation, all the exegetical tools, the whole toolbox of interpretation, are tools that uncover the meaning embedded in the verse. When I say, “the Lord your God you shall fear”—to include Torah scholars—I am really saying that in the verse “the Lord your God you shall fear” another law is hidden. Not only fear of God, but also fear of Torah scholars. True, it is hidden in some way that requires a special key, the key of interpretation, not the simple key of plain textual reading. Here you need some special code to get it out of the safe, so to speak, from within the verse. But after I use that code, which I received from the Holy One, blessed be He, at Sinai—the hermeneutical principles—I discover another aspect that is written in the verse. The interpretation exposed another dimension that is in the verse. So Nachmanides says: then what difference does it make whether this is interpretation or plain meaning? Bottom line, the verse says it, therefore it is Torah-level.

Maimonides says: here begins my disagreement with Nachmanides. I do not agree with that description. The hermeneutical principles do not expose what is in the verse. The interpretation is not inside the verse. The hermeneutical principles expand the verse; they do not expose what is inside it. When I say, “the Lord your God you shall fear”—to include Torah scholars—that is a branch that emerges from the root. The root, the trunk, yes, is the verse. From it emerge all kinds of branches; it expands. That is the metaphor Maimonides uses to say that the hermeneutical principles do not expose; they expand. This is really where the whole argument begins. Therefore Maimonides says: since in my view only something that appears in the verse is a Torah-level law, because only that is what is called a warning—the Torah warned us about it—so if there is something that is an expansion of the verse, even though I do it with exegetical tools, in the end the product is not something found inside the verse, not something that comes from the verse itself, so it is not a Torah-level law.

The foundation is from the verse? Yes. The foundation—but what emerges from it is an expansion. An expansion. Why do I… notice this point—and that is rabbinic. Yes, that is what he says. Why? What, because of some assumption? I can derive it with deductive tools. Meaning, to say: all human beings are mortal, Socrates is a human being, conclusion: Socrates is mortal. What does a deductive derivation mean? A deductive derivation basically means what is usually called logical necessity, right? It basically means that the conclusion is contained within the premises. If you say all human beings are mortal and Socrates is one of the human beings, then you have already said in the premises that Socrates is mortal. Meaning, a valid logical argument is really an argument whose conclusion is carved out from the premises; it was there, it is inside the premises, the argument just brought it out, but it was there beforehand too. When you say all human beings are mortal, you said in particular that Socrates is mortal. Maybe that wasn’t obvious from the outset, so you need the logical workout to expose it, but in the end, after I expose it, I understand that it was there all along. It isn’t always as simple as that basic logical argument—think of a mathematical proof, Fermat’s theorem, and see how much Andrew Wiles worked in order to derive that conclusion from the premises. But if he derived it in a logically valid way, that means it was there. There is nothing new here; it was inside, you just need a lot of work and a lot of intelligence to manage to bring it out, but it’s there. Unless you’re Fermat. Yes, Fermat maybe didn’t derive it from anywhere, he just conjectured it. He says he had a proof, but it never underwent anyone’s review.

In any case, it’s like Fermat, like Maimonides—Maimonides in the laws of lender and borrower, I think, or maybe not there, maybe in the laws of hiring—Maimonides writes there that if a guardian guarded properly the thing he received, the animal he received to guard, and the animal caused damage, then the owner is exempt, because he did what he was supposed to do: he gave it to a guardian and the guardian guarded it properly. All right? Then you go after the guardian, not the owner, because the owner is exempt. And the guardian guarded it properly—what do you want from him? So everyone points out that this is also against the Talmud. The Talmud says that he is exempt; the injured party gets no money from anyone once the thing was guarded properly. So there are pilpulim this way and that way, and how Maimonides learned the Talmud and how he learned the Talmud there—and then on the side, look: the Kesef Mishneh there brings a responsum of Maimonides to the sages of Lunel, where he writes that this is a printer’s error. Simply, the printer understands nothing and wrote it, and it is against the Talmud. Heaven forbid that I wrote this, says Maimonides; it’s a printer’s error. That still doesn’t stop people to this day from building systems that reconcile Maimonides with the Talmud. And what does that mean? Fermat too said he had a proof. Fine, you don’t know whether he had a proof or not. For who knows how many hundreds of years people worked on the thing until in the end they really did manage to prove it. I have no idea whether Fermat really had a proof or not, but he certainly spurred people on to build structures that in the end proved it. Yes, afterward you’ll see all these structures and you’ll see that in fact it’s a method that can be reconciled with the Talmud. Maimonides himself didn’t think so, but after he told us that this is what is correct, everyone worked on the proof and in the end did arrive at proofs.

Fine, so Maimonides basically claims that the hermeneutical principles are non-deductive inferential tools. That is really what he says, and that’s obvious; Nachmanides agrees with that too. And if there had been other rabbis, it could have been that they would derive different results. We know this from the Talmud: there are disputes over interpretations, so you can see it’s not mathematics. Nachmanides himself, in the introduction to Milhamot Hashem—Nachmanides, the very one who argues here—writes: because the wisdom of our Torah is not like the wisdom of astronomy and mathematics, physics and mathematics, whose demonstrations are cut and dry. He thinks that about physics too, which is not right, but about mathematics it is right, whose demonstrations are cut and dry. Torah is not like that. Not certain, necessary logical derivations; it is not logic. It is straight reasoning, this sort of common sense, with softer inferences, yes—not mathematics, not logic. Not exactly common sense. Sometimes interpretive common sense. The law itself may not be common sense, but when you derive a conclusion from a verse or compare one matter to another, you use your reason. It’s not some kind of mathematics. Particles such as “only” and “but” and inclusive terms—what? In Jewish law, that rule that “only” and “but” come to include—now I use that and I say: okay, what is included? “The Lord your God you shall fear”—to include what? To include clouds? Walls? Birds? What? To include Torah scholars. Why? Because my logic tells me that if something is being included—again, that there is inclusion is given, that’s not common sense. But once I have the exegetical tool, I activate my logic, and that’s what I do.

So Maimonides is basically saying: if we divide modes of inference into two categories, there is a mode of inference that is certain—that’s logical tools. And there is a mode of inference that is not certain, for example analogy and induction and all sorts of softer tools of that kind. When I say, this chair is made of wood, there’s a chair up there, so apparently it too is made of wood; both are chairs—you understand that this is not a necessary inference. It’s not even always true. Okay? But someone can come and say: I’m making an analogy; I have no better way of knowing the nature of that chair up there, so I make an analogy from the chair I know. This is an inference we use; it is an inference that is common sense in many contexts. You have to be careful with it; it’s not certain. But we use it all the time. Science uses only such inferences, unlike what Nachmanides said. In mathematics that is true, but in science these are not deductive inferences. In science they are analogies and inductions; they make generalizations based on things we’ve seen. Analogies and inductions are non-necessary inferences. Why are they non-necessary? Because unlike deduction, these are inferences whose conclusion is not embedded in the premises.

I think I talked about this once too. All human beings are mortal, Socrates is a human being, conclusion: Socrates is mortal. I said the proof helped me see that the conclusion was already embedded in the premises. If I say Jacob our forefather did not die, therefore Socrates, who is also a human being, also did not die—a verbal analogy. Fine? Clearly the conclusion that Socrates did not die is not found in the premise that Jacob our forefather did not die. I did not assume that all human beings do not die. I know one example: Jacob our forefather did not die. I make an analogy, so maybe Socrates also did not die. Either I’m right or I’m not. Why? Because the conclusion—even after the inference, when I reached the conclusion that Socrates did not die—I did not expose something inside the statement “Jacob our forefather did not die.” I am making an analogy, I am expanding what is inside that statement, I am adding information. Inferences that add information are non-certain inferences. Certain inferences are inferences that never add information.

I once mentioned, I think, the principle of logical certainty. The principle of logical certainty says that the amount of information in an inference multiplied by its reliability is constant. Meaning, if the inference is completely certain, it contains no information. And if the inference is a bit less certain, it can contain a bit of information. And if the inference is very loose, it can contain a lot of information—and then the question is what that information is worth. But it’s very loose. It’s always some kind of tradeoff between reliability and the degree of speculation in the inference. The more speculative the inference is because it moves from two examples to all the examples in the world, you understand that such an inference should be viewed suspiciously, right? It is very unreliable. If I say I’ve seen many examples and apparently the one I don’t know is also like that, that’s less speculative because I’ve already seen many examples, and so it’s more compelling—but it contains less information, because I already knew most of the information beforehand; I only added a little bit. A deductive inference adds no information at all, because the conclusion I reached was already embedded in the premises; it’s not a new conclusion. Therefore it is completely certain. So what is an inference that is completely certain? An inference that takes no risk. It has no measure of speculation at all; it does not add information. Okay?

Maimonides says that all the hermeneutical principles are non-deductive modes of inference. They are modes of inference that add information, and because of that they basically expand what is in the verse rather than exposing, as deduction would, what is inside it. And therefore Maimonides says: if I hold—says Maimonides—that there is identity between the question of source and the question of force, something written in the Torah is Torah-level and something not written in the Torah is not Torah-level, and now I want to know the status of laws derived through interpretation—productive interpretations, yes, productive interpretations. Go ahead. Yes. Then I say: what is the status of a law that emerges from a productive interpretation? I need to check whether that law is written in the Torah or not. If the hermeneutical principles expand rather than expose, then the product of the interpretive inference is not written in the Torah; it is an expansion of what is written in the Torah, so it is rabbinic, not Torah-level.

So that is the second step. The first step is the identification of Written Torah and Oral Torah with Torah-level and rabbinic, the identification of the question of source with the question of force. The second step is an assumption for understanding Maimonides—we’re now trying to understand Maimonides in a structured way. The second step in Maimonides’ view is that interpretation expands rather than exposes. All right? Meaning, when I derived a law from an interpretation, I did not expose something that was in the verse, but expanded it. It’s like the spirit of the thing or something like that—I expanded what is in the verse beyond what is in it. Is that always so? Does Maimonides say it is always so? Almost always. Except in places where the sages say it is not so—one moment—and then what? One moment. Yes, in his view that is Torah-level. Yes, he says that. I’ll return to that in a moment.

Did the sages themselves have self-awareness of these methods, or is all this a backward-looking perspective of the medieval authorities (Rishonim)? I have no idea. I tend to think not. Meaning, rabbis get up in the morning, go to the study hall, and think: okay, today I’m going to expose, today I’m going to expand. No, no—you just made an expansion, too great a logical leap. You expanded your first argument, your first claim. The conclusion does not follow from your first premise. It’s just that when I say the sages weren’t aware, it doesn’t mean it’s speculative; rather, it means they work with a kind of common sense and they don’t understand, or haven’t conceptualized for themselves, they don’t have reflection on how they work so as to see what they are doing. But when I look at them from the side, I can see that they are working reasonably. But from the side, that’s something that happened years later, thousands of years. So now people analyze it, but the person himself is not aware. Not aware; he just flows with it. It’s like—I once mentioned Aristotle.

Maybe he is systematic, maybe he is consistent, but… Aristotle was the one who conceptualized, in his Organon, the one who conceptualized logic, right? All the basically logical tools, syllogisms, logical inferences—these are Aristotle’s definitions from the Organon. Do you really think that before Aristotle nobody ever made an inference that if all peacocks have two wings and this is a peacock, then it has two wings? Obviously people did this before Aristotle too. Anyone with ordinary common sense knows that this is correct. People do it all the time. Yes, I don’t know, dog, cat, afraid—once upon a time but not today—a cat is afraid of dogs. Okay? Once that was the case; I don’t know, in my childhood I grew up on the idea that cats are afraid of dogs; today it’s not like that at all—the wonders of evolution. So yes, the cat is afraid of dogs. How does it know? It met five dogs up to now; how does it know it should be afraid of this new dog too? It says: if I’m afraid of all dogs, and this one is also a dog, then I should be afraid of him. It’s making an Aristotelian inference. You see? But clearly it’s not doing that consciously. But it’s not an arbitrary inference, not some nonsense, some whim it woke up with in the morning and decided to do. Not everything we do is conscious. Daniel Kahneman talks about this intuitive thinking, this thinking that doesn’t pass through our awareness, when we function on automatic pilot. You understand? We’re driving, we’re not aware of what we’re doing, and we make excellent decisions. It’s not connected.

So this dispute only arose in the period of the medieval authorities (Rishonim)? Meaning, in the days of the sages themselves there was no dispute about it? There were disputes that might express it, but not within explicit awareness. By the way, even what I’m now doing to Maimonides and Nachmanides, I don’t know how conscious it was in Maimonides. Same thing. I don’t know how much Maimonides himself could now give the lecture I’m giving you, though I do believe that this is what he meant. Many times when you come and analyze what a person says, you say: look, this is the theory. His theory, that’s what he thinks, and you’re right. Just yesterday I mentioned the exchange of letters between the Seridei Esh and Rabbi Yehoshua Hutner, one of the editors of the Talmudic Encyclopedia. I no longer remember who says what, but one of them kind of dismisses Brisker thinking and says: what, Maimonides never dreamed of the conclusions that Rabbi Chaim put in his mouth. Clearly not. And the other answers him—I don’t remember again who says what—and rightly so: that’s simply not true. Even though it’s a famous joke, it’s simply not true. True, Maimonides did not work in Brisker language, not with these modern analytic tools, but assuming you use them correctly, you really are exposing what Maimonides meant. It doesn’t matter that Maimonides himself couldn’t have said it to you, certainly not in that language, but I do believe that this is really what he meant. He really did mean that this is a rule in the object and not a rule in the person, even though he did not use that distinction. All right? So that doesn’t necessarily mean that because someone is not aware, when I decipher him I’m doing something illegitimate. Otherwise all literary interpretation—although many mock it—is nonsense. That’s what deconstruction, Derrida, holds: that when you interpret a text, really it’s you, not the text. But that’s not right. Many times, even if I don’t have clear information from the author of the text, I still have estimations about what he meant. Maybe I’m right, maybe I’m not, but it can definitely be reasonable.

Yes, but you can’t avoid the question whether the sages thought their interpretations were Torah-level or rabbinic. No, that’s clear. Clear. The theory standing behind it—that I’m not sure of. It’s clear that Maimonides meant to claim that this is what the sages themselves held. Yes, clearly. And if there are places where they say that the interpretation leads to Torah-level force? Then Maimonides says: that is exceptional. No, then Maimonides claims: those are exceptional places where I too agree that it is Torah-level. But seemingly, if there they said “here it’s Torah-level,” then that gives grounds to say that in other places it is not Torah-level. Yes, that’s what Maimonides says. Therefore I say: even though something that emerges from interpretation is rabbinic, if the transmitters themselves say it is Torah-level, then it is Torah-level. What is the idea behind that? Now we can understand. Third level. Now I’ll explain.

Third level. Why really is that so? After all, Nachmanides asks him: what difference does it make whether they said so or not? Either decide that interpretations produce rabbinic law or they don’t. What is the difference between productive interpretations and supportive interpretations? That is really the point. Maimonides says that supportive interpretations are Torah-level; productive interpretations are rabbinic. The answer is that because supportive interpretations, what the interpretation does is expose the law already known to me within the verse. It shows me that this law was already inside the verse. In other words, when I say, “the Lord your God you shall fear”—to include Torah scholars—assuming that reverence for Torah scholars was already a known law, and the interpretation comes to support it, then Maimonides says that in such a case the interpretation reveals to me that this was already inside the verse.

You can see, for example, if we return to the scientific example. When I make a generalization, you’re saying it’s not a branch, it shows me that it’s a root. Exactly. Yes. When for example I make a scientific induction, I see several ravens and they are black; my conclusion is that all ravens are black. I can say that this conclusion is an expansion of the facts I know, and I can say that this conclusion was really embedded in the facts I know. After all, why were the several ravens I saw black? Because all ravens are black. I looked at the general rule through the specific examples I observed. And that is how Nachmanides always reads. All the hermeneutical principles in his eyes are exposing principles. They expose what is inside the verse. Maimonides says: you are right in those places where the interpretation is supportive. But where the interpretation is productive, it expands.

But what tool is there to decide whether it exposes or produces? For the sages, what tools did they have to know whether it exposes or creates? How did they know it was embedded there? So I said: Maimonides says this explicitly. Maimonides says: if it is a supportive interpretation, then that means you received the law from Sinai. Because it was already there. Exactly. You received the law from Sinai, and know that the interpretation you found is an exposing interpretation. What gives you the indication that it exposes is precisely the fact that it was already there. And that is what Maimonides says explicitly, and Nachmanides is astonished at him. What difference does it make whether this is exposing interpretation, productive interpretation, whether the sages said so or not? The answer is that behind this stands a very simple point.

Maimonides is basically saying this—let’s approach it top-down now, not automatically. Look from above and see that there are laws written explicitly in the Torah. There are laws that emerge from interpretation with no tradition about them. There are laws for which we have tradition but no interpretation for them—this is called a law given to Moses at Sinai. And there are laws for which we have both tradition and interpretation. Why did the Holy One, blessed be He, divide the laws into these four categories? For what purpose? What’s the difference? Why didn’t He write everything, or not write everything? Why these different categories? What is the significance? Why did He decide to transmit certain laws to us even though we could derive them through interpretation from the verse, while other laws He did not transmit and the interpretation would create those laws? What is the difference?

Maimonides says: the difference is that the Holy One, blessed be He, wanted to tell us: this law—after you derive it through interpretation—it is a Torah-level law. It is written in the verse; that is what I meant. A law that emerges from a productive interpretation, the Holy One, blessed be He, did not transmit, because that is not what He meant. He did not mean that. He did not transmit it. One could ask: why not write it explicitly in the verse? What? Which one? A law already known, which I am now exposing. The Talmud itself says that “of making many books there is no end.” Meaning, there is a limit to how much you can write into verses. The Talmud in Eruvin 21 asks why all the laws were not written down. And it says: because “of making many books there is no end”; you can’t write everything. And here there is an infinity. Meaning, according to Maimonides there are few. Yes, true. Okay, and Maimonides himself undertook to write all the laws in the Mishneh Torah. Yes, but clearly he did not write all the laws that had been written up to his time. Fine, but afterward much more was written—some fourteen volumes came out? Yes. Fine, I don’t know, one has to think about that.

In any case, this is what Maimonides says: when the Holy One, blessed be He, decides how to communicate this law to us, He says as follows. If this law is an expansion of the verse, I will not tell it to you. You will derive it yourselves. If it comes through interpretation, then it is an expansion of the verse. If it is a law that I transmit to you orally, that too is rabbinic—a law given to Moses at Sinai—because it is not written in the verse. Not because it is not My intention; it is My intention. But it is not written in the verse; you do not have a warning for it in the verse. So it is a law from the sages; it is a law given to Moses at Sinai. If there is a law that I transmit to you by tradition, but I know you will also succeed in deriving it through the hermeneutical principles from the verse, that is basically a law by which I mean to tell you that this is an exposing interpretation and not an expanding one, and that is a Torah-level law. Okay? That is really what Maimonides says. Therefore when the sages say that it is Torah-level, even though it is a law that emerges from interpretation, it really is Torah-level.

And therefore Nachmanides’ difficulty with Maimonides—where Nachmanides asks Maimonides how it can be that a tool given to us at Sinai, the hermeneutical principles, applied to a text given to us at Sinai, produces “from the sages”? How can that be? Maimonides says: because it is a tool whose purpose is to give us the possibility of expanding the verse, not exposing what is in the verse. True, it was given to us at Sinai—how to expand the verses—but it is still an expansion, not exposure of what is in the verse.

Nachmanides asks another, very similar question. How can a law that comes by tradition be “from the sages” according to Maimonides—a law given to Moses at Sinai? A law that emerges from interpretation is also “from the sages”? Yet if there is a law for which we have both tradition and interpretation, that is a Torah-level law. How do zero plus zero make one? So the Talmud says—it’s similar but not the same. Here too the answer is what I said earlier. When we have tradition, it is a rabbinic law because it is not written in the Torah. And for Maimonides, Torah-level means written in the Torah. It does not mean God’s will. There is no identity there. God’s will also includes a law given to Moses at Sinai. But He did not write it in the Torah. Why didn’t He write it in the Torah? Because He did not want to warn us about it; it is not Torah-level in legal status. Okay? Here is the opposite example. In terms of source it is a source from the Holy One, blessed be He, and in force it is rabbinic. That’s not always the reverse, all right?

Now, this is a law given to Moses at Sinai. In something that emerges from interpretation, it is an expansion, and therefore that too is “from the sages.” Nachmanides says: then how is it that something that emerges from interpretation plus tradition—when you combine the two together—it is Torah-level, which is basically a supportive interpretation? Because here the interpretation is exposing rather than expanding. That is why we received the tradition. The tradition tells us that after you made the interpretation, know that you discovered what is written in the verse; you did not expand beyond the verse. So it is Torah-level because it is written in the verse. And that is why the tradition was necessary. Therefore Maimonides says it is Torah-level.

Now, that is stage one of the discussion. All right? That is basically the first level of Maimonides’ theory. And notice that this level is an interpretive level. Everything I have said so far has not dealt with Jewish law. Everything I have said so far dealt with interpretation. The dispute between Maimonides and Nachmanides is a dispute about how to relate to interpretation or midrash: does it expose or create? That’s all. The normative question, whether it is rabbinic or Torah-level, is another question. You can say that interpretation expands but still the product is Torah-level. There is some normative statement here saying that if this is my interpretive conception, then the status of the law that emerges in that way is rabbinic and not Torah-level. That is another statement. Okay?

I’ll sharpen for you why these are two different statements. On the first, I think there are other medieval authorities (Rishonim) who agree. On the second, no one agrees. There are other medieval authorities (Rishonim) who think like Maimonides—I quoted earlier his remark about astronomy and mathematics—who agree that the hermeneutical tools expand rather than expose, in terms of their logic. It is not deduction; clearly it is not deduction. But they will not agree that if so, then it is rabbinic. No—the Holy One, blessed be He, said: expand the law. We expanded it, so it is Torah-level, even though it is an expansion. They do not accept the identification of Torah-level with “written in the Torah.” So it is not written in the Torah—you’re right, it is an expansion. So what? The halakhic status is still Torah-level. So one can accept Maimonides’ interpretive theory and disagree with his legal theory, right? These are two independent statements.

I’ll show you an example of a halakhic practical difference emerging from the interpretive dispute. Meaning, suppose someone agrees with Maimonides only on the interpretive plane, like the Ran—if I remember correctly it’s the Ran; I mentioned him once in tractate Nedarim on page 8. The Ran says that with regard to something not written explicitly in the Torah, one can take an oath about it. We do not say that he is already sworn from Mount Sinai; one can take an oath about something that emerges from interpretation. Something written explicitly in the Torah is Torah-level, and the Ran explicitly says that both are Torah-level. But about one of them you cannot take an oath, and about the other you can. I claim that the Ran accepts Maimonides’ interpretive theory. An oath does not take effect on something written in the Torah, because regarding that we are already sworn and standing from Mount Sinai. What is not written in the Torah is Torah-level in terms of halakhic status, but regarding it we are not already sworn; it was not in the Torah given at Sinai. So there an oath does take effect. All right? There’s an example of a legal implication.

I’ll give you another example. There is a very puzzling Maimonides, and I did not find good explanations for it. The Talmud in Yoma says, and there is a parallel in Zevahim, the Talmud says that with regard to the priestly garments, the word “linen” appears six times. Their garments were made of linen, and sash of linen, and twisted linen, and all sorts of things like that. So the Talmud expounds: what is “linen”? One is according to its plain meaning—that it is flax, yes? The second comes to teach, I don’t know, some law that it should be made of six strands when you spin the thread from which the priestly garments are made, that it should be made of six fibers. All right? Sixfold. And a few more laws. And in the end, the last word “linen” makes it indispensable. Because anywhere Scripture repeated something, it did so to make it indispensable. Meaning, if the verse does not repeat it again, then the law is only ideal, not indispensable. So it has to repeat it in order to say that these laws are indispensable too. All right? That’s what the Talmud says.

Maimonides rules according to this Talmud, brings all the relevant laws, and then he—sorry, “indispensable,” sorry. One of the earlier laws I should have said is the requirement that the things be sixfold, and that all the requirements learned from the verse apply also to garments about which the Torah uses the term “separate thread” and not only to garments about which it uses the term “linen.” This is an inclusion from the fact that “linen” appears again in the verse: not only the things where the Torah says “linen,” but also the things where it says “separate thread”—all these laws apply to them. “Separate thread” also means six? Yes, but it uses a different word, bet-dalet, that’s six. Obviously. Ah, gematria. Obviously. But “separate thread” also literally means six. But it is written with a different term. Doesn’t matter. And with that other term written, there too all the laws apply. That’s what the Talmud says. And lastly, that all this is indispensable.

Maimonides rules that this applies to all garments where it says “separate thread” too, not only “linen.” But it is not indispensable there. Where? For “separate thread” it isn’t indispensable, and for “linen” it is? Yes. For “linen” it is indispensable. For “separate thread” not? Yes. That’s odd. Decide—are you following this interpretation or not? The answer is very simple. The word “linen” is the basis for an inclusion, for an inclusive interpretation, right? We include from it the garments of “separate thread,” we include from it that it should be sixfold, and so on, because all the interpretations are inclusive. Its plain meaning is plain sense. It is Torah-level that it be made of flax. All the other interpretations are expanding interpretations, right? So in effect these interpretations do not tell me that their result is written in the verse. The obligation to apply these laws to garments that appear in the Torah with the word “separate thread” and not the word “linen” is an obligation not written in the verse; it is an expansion of what is written in the verse. Right? That is how Maimonides understands the world of interpretation, because we learned it from midrash. Okay?

So now when the verse tells me that everything we learned here is indispensable, according to Maimonides that applies only to the garments where “linen” is written, not to the garments where “separate thread” is written. Because the interpretation that says that the sixth “linen” comes to teach that all these interpretations are indispensable means that it tells me that everything written in this verse is indispensable. But the interpretation that expands this to verses of “separate thread” is an interpretation; the verses of “separate thread” are not written here in this verse, but are an expansion of this verse. It was not said about that that it is indispensable. So Maimonides says: “linen” is indispensable, “separate thread” is not. That solves everything there. Everyone raises many difficulties against him, and I think it’s simple. And I looked for more examples; I didn’t find them, maybe there are some, I didn’t find. Because this is a very nice example. I’ll tell you why it is a nice example. It is an example that even the Ran would agree with. The Ran does not accept that laws emerging from interpretation are rabbinic laws. He does not accept Maimonides’ legal theory. But the Ran does accept Maimonides’ interpretive theory, that interpretations are expanding inference rather than exposing inference. And here this is a halakhic practical difference stemming from the interpretive thesis, not the legal one. And that the Ran should accept.

What is the legal thesis? The legal thesis basically says that what is written in the Torah has warning attached to it, and therefore it is Torah-level; and things expanded beyond what is in the verse do not come with warning, and therefore they are rabbinic. That is Maimonides’ conception, from which all the medieval authorities (Rishonim) disagree. Okay, but that is Maimonides’ position.

Now let’s start seeing all the difficulties, how this structure resolves all the difficulties. I’m really doing this with very broad brushstrokes, skipping some things because I want to finish. How does it solve all the difficulties? First of all, we explained how the difficulties Nachmanides raises can be answered—how can something given at Sinai, applied to a text given at Sinai, produce a rabbinic law? How can it be that when the sages say an interpretation is merely an allusion, it is Torah-level? And now all the contradictions.

When Maimonides says, or the Talmud says, that a law emerging from interpretation—its doubtful cases are treated stringently. After all, Nachmanides points to many such places. The answer is very simple: yes, doubtful cases are treated stringently. Maimonides—this is the fourth level—when Maimonides says that these laws are rabbinic laws, for him the concept “rabbinic law” is not a package deal. We are used to the idea that if you said something is rabbinic, then in a doubtful case you are lenient, human dignity overrides it, in cases of suffering or great loss one may be lenient—an entire set of laws characterizing rabbinic laws as opposed to Torah-level laws. For Maimonides it is not like that. The term “rabbinic” is interpreted in many ways. Sometimes there are rabbinic laws whose doubts are treated leniently; there will be rabbinic laws whose doubts are treated stringently. That is why I said I’d get to it in a moment. In a moment I’ll explain what determines it. But for Maimonides—and this is the final and most important level—Maimonides relates to the division of rabbinic and Torah-level as follows: for him, Torah-level means only pure Torah-level. Rabbinic means many things that are not Torah-level, which he calls “from the sages.” This starts with a law given to Moses at Sinai, laws emerging from interpretation, enactments, decrees, customs, logical conclusions—many things. All of these are rabbinic. Each of these categories has different laws. Some: doubtful cases are lenient. Some: doubtful cases are stringent. Some: human dignity overrides them. Some: human dignity does not override them. Each thing requires… I think there is a rule. I think I can think of a rule.

After all, there is no rule saying that everything rabbinic is lenient. No. For Maimonides, no, because the concept “rabbinic” is not just enactments and decrees. Enactments and decrees: their doubtful cases are treated leniently. But for Maimonides the concept “rabbinic” is broader, more varied, and not with respect to every rabbinic law is a doubtful case treated leniently. Therefore Maimonides says as follows. A law given to Moses at Sinai—Maimonides writes explicitly that doubtful cases are treated leniently. I brought that Maimonides in his commentary on the Mishnah in Kelim, where he says there that the legal measurements are laws given to Moses at Sinai, and likewise the Talmud in Sukkah on “a land of wheat and barley”—all the legal measurements, an olive’s bulk and so on—but in the end this is a law given to Moses at Sinai. So Maimonides says: then why isn’t a doubtful case lenient? If you have a doubt whether there is the required measure or not, why can’t you be lenient? But no—doubtful cases are stringent. Maimonides says: because this is a detail within a Torah commandment. Say, the Torah says not to eat pork. The law given to Moses at Sinai says the prohibition begins from an olive’s bulk. So the law given to Moses at Sinai that adds a detail to a commandment written in the Torah is not introducing a new law; here you are simply explaining that the prohibition of pork applies only from an olive’s bulk. So this is Torah-level, not rabbinic; therefore its doubtful cases are stringent, says Maimonides. But by implication we learn from his words that with a law given to Moses at Sinai that introduces an entirely new law, when he says this is rabbinic, he means genuinely rabbinic—its doubtful cases will also be lenient. Right? That is what he writes. You see this in other places too.

So Maimonides says that a law given to Moses at Sinai, for example, is one kind of rabbinic law that joins enactments and decrees, whose doubtful cases are lenient. By contrast, laws that emerge from interpretation—there are several proofs both in Maimonides and in the Talmud itself, and these are the difficulties people raise against him, many difficulties—that their doubtful cases are treated stringently. This too is a rabbinic law, but there doubtful cases are stringent. Why? I’ll tell you what my theory is here; this is the fourth level. It seems to me Maimonides is basically saying this: when we discuss the laws of doubt, let’s say—but this is a model for many implications—why do we go stringently in a Torah-level doubt and leniently in a rabbinic doubt?

There is a well-known difficulty on Maimonides’ own view, because Maimonides says that every rabbinic law derives from “you shall not deviate.” Nachmanides asked this—we discussed it in the previous root. Nachmanides asks: then why is a doubtful case not stringent? If you eat poultry with milk and you don’t know whether it’s soy or poultry—okay? Poultry with milk is a rabbinic prohibition. So you have a rabbinic doubt, and the rule is to be lenient. But Nachmanides says: why? There is “you shall not deviate.” Whoever violates a rabbinic law violates the Torah-level “you shall not deviate,” so the doubt should be treated stringently.

To that, several later authorities say—Rabbi Shimon Shkop and Rabbi Shlomo Zalman Auerbach say this, among others—they say that rabbinic laws—the Netivot, whom I cited once—rabbinic laws are grounded in the obligation to obey. There is no intrinsic substantive content to the prohibition; otherwise the Torah itself would have prohibited it. You have to obey the sages when they said poultry with milk is forbidden, not because there is some problem in poultry with milk itself, but because the sages say you have to obey. That is a rabbinic law. They say: when you are in doubt, then you don’t know whether the sages forbade it—maybe yes, maybe no—so you can be lenient. Why in Torah-level law are you stringent? Because in Torah-level law, beyond the fact that you have to obey the Torah’s command, “do not eat pork,” it may actually be pork; if you eat it, you have eaten pork, so be careful. Therefore you have to be stringent in a case of doubt. Even though from the standpoint of the command itself you don’t know whether there is a command or not, because you are in doubt, still there is a possibility that it really is pork and that if you eat it, you will have eaten pork, so you must be stringent. But in rabbinic law, I have no problem with your eating poultry with milk; the whole issue is only that you are not obeying the sages. After all, if you are in doubt, you are not sure the sages commanded it. And what they say is: doubtful rebellion is not rebellion. A rabbinic prohibition is rebelling against the authority of the sages. If you are in doubt, that’s not called rebellion; you don’t even know whether there is a command at all.

What do we learn from this? Why is a Torah-level doubt treated stringently? In Torah-level law there is both command and essence, right? In rabbinic law there is only command, no essence; poultry with milk is not problematic in itself. But with pork there is both the command that the Torah prohibited it and the essence. When there is doubt, why is a Torah-level doubt treated stringently? Because doubtful command is not command. Therefore if I am in doubt regarding a rabbinic law, all that exists in rabbinic law is command. If I am in doubt, doubtful command is not command, so there is no problem, I can be lenient. In Torah-level law too, doubtful command is not command, because doubtful command is not command. But in Torah-level law there is also the essence—maybe you are eating pork; you must be careful—so Torah-level doubt is treated stringently.

Now Maimonides says as follows. If there is a law given to Moses at Sinai, why did it really remain oral and not written in the Torah? To tell you that this is only command without essence. What appears in the Torah is essence, something whose very nature is forbidden, something problematic. A law given to Moses at Sinai is some external factor because of which the Torah wants to prohibit this, but there is no essential problem in it by itself; it is not in the object, it is in the person. Therefore the Torah left it as a law given to Moses at Sinai, an oral tradition. Maimonides says: this is “from the sages.” But it is “from the sages” also with respect to the laws of doubt. Why? Because here, if you are in doubt, the whole problem is only the command, and doubtful command is not command. It is like the rabbinic law of decrees and enactments.

But with interpretations it is the opposite. In interpretations there is no command—that is the whole idea. In interpretations there is no command; that is what Maimonides means when he says “there is no written text indicating it.” There is no command, no warning; therefore it is rabbinic. A law given to Moses at Sinai is not rabbinic because there is no warning, but because it is not written in the Torah. In interpretations it is not Torah-level—sorry—because there is no warning. So what is there, yes? It is an expansion of what is in the verse. What does it mean, an expansion of what is in the verse? When I say “the Lord your God you shall fear” and I include Torah scholars, then the same problem that exists in someone who does not fear the Holy One, blessed be He, exists in someone who does not fear Torah scholars. It is the same idea. It is an expansion of the spirit of the matter, an expansion of the essence itself. There is no command for it—it is not written in the Torah. Through the interpretation I am not exposing that this is what is found in the verse; there is no command. But it is an expansion of essence; the same problem that exists here exists there too. Maimonides says: so it is rabbinic, because for Torah-level law you need both command and essence. So it is rabbinic. But it is rabbinic in such a way that its doubtful cases are treated stringently, since here the essence is forbidden. So if you are in doubt, it may still be that you violated something essentially problematic, and you must be stringent, just as with pork.

So although a law given to Moses at Sinai and a law emerging from interpretation are both rabbinic, they are rabbinic for different reasons. Torah-level law has to have both command and essence—that is the definition of Torah-level. If one of them is missing, it is rabbinic. But it matters very much which one is missing. If the command is missing and there is only essence, doubtful cases are stringent—that’s interpretation. If the essence is missing and there is only command, doubtful cases are lenient—that’s a law given to Moses at Sinai. Okay? Therefore with regard, say, to human dignity, maybe both would be rabbinic and human dignity would override them, but with regard to laws of doubt, no. Every aspect of the distinction between Torah-level and rabbinic requires separate analysis according to Maimonides. And therefore all the difficulties against Maimonides fall away in this way. I think I can show you that no type of difficulty remains, from all the different kinds of difficulties.

What I wanted in the context of purity and impurity—according to this theory, why, how can it be that it appears…