Biblical and Rabbinic Law – Lecture 3

Table of Contents

• The dispute between Maimonides and Nachmanides about the basis of the obligation to obey the sages
• The built-in dilemma: a Torah source versus authority without a source
• "Do not deviate," lashes, and the rebellious elder
• Rabbinic-level doubt is ruled leniently, and the explanation of "they said it and they said it"
• The Shemaita, legal doubt, and a dispute among halakhic decisors as doubt
• The possibility that leniency in rabbinic-level doubt is itself a Torah law
• Netivot, Rabbi Shimon Shkop, and Rabbi Shlomo Zalman: rabbinic law as a prohibition of rebellion / a matter of obedience, not as an inherent object-status
• Tzafnat Pa'neach and an alternative direction: "Do not deviate" applies only to someone who denies the authority of the sages
• Communal enactment, a vain oath, and the Vilna Gaon
• "Do not add," the counting of the commandments, and the claim that Nachmanides read Maimonides incorrectly
• A proposal to unify Maimonides and Nachmanides, and a summary of the sticking point

Summary

General Overview

The text presents an inherent difficulty in justifying the validity of rabbinic laws: if they have a Torah source, then they seem to be Torah-level laws with all the implications that follow; and if they do not have a Torah source, then it is unclear why one is obligated to obey them. It presents Maimonides and Nachmanides as each choosing a different side of that dilemma, raises an attempt to reconcile Maimonides’ view with the rule that rabbinic-level doubt is ruled leniently, and develops different directions among the later authorities to explain the relationship between "do not deviate" and violating a rabbinic prohibition. In the end, it suggests that perhaps there is no real dispute between Maimonides and Nachmanides, and that both agree that "do not deviate" applies mainly in the context of rebellion against the authority of the sages. But it then comes back and sharpens the original question: if in an ordinary violation of rabbinic law there is no Torah-level "do not deviate," then what is the binding source that obligates obedience?

The dispute between Maimonides and Nachmanides about the basis of the obligation to obey the sages

Maimonides is understood as grounding the entire obligation to heed the words of the sages in "do not deviate," to the point that someone who eats poultry with milk violates "do not deviate." Nachmanides attacks that understanding because it erases the category of rabbinic prohibition, turns every violation of rabbinic law into a Torah prohibition, and therefore should also create Torah-level doubt requiring stringency and eliminate accepted distinctions such as human dignity and other differences between rabbinic and Torah law. Nachmanides proposes that "do not deviate" is only an asmachta, but the text emphasizes that asmachta itself does not explain what the real binding source is, because if there were some other Torah-level source, then the very same difficulty that Nachmanides raises against Maimonides would return.

The built-in dilemma: a Torah source versus authority without a source

The text formulates a kind of principled "short blanket" problem: if there is a verse that obligates obedience to the words of the sages, then apparently that places the obligation at the Torah level; and if there is no verse, then there is no explanation for why one must obey. It presents Maimonides as taking the "there is a source" branch through "do not deviate," and then having to explain why the category of rabbinic law still remains intact; and Nachmanides as rejecting the grounding in "do not deviate" in order to preserve rabbinic law, but then having to explain what makes obedience binding. It raises the suspicion that this shared difficulty pushes toward the possibility that the two medieval authorities (Rishonim) are really saying the same thing in different words.

"Do not deviate," lashes, and the rebellious elder

The text cites Nachmanides’ remark that Maimonides himself writes that one does not receive lashes for "do not deviate" because it is a prohibition linked to a warning for a death penalty administered by a religious court, and presents this as evidence that Maimonides sees "do not deviate" as an actual prohibition. It connects this to the law of the rebellious elder, where there is a death penalty for rebellion against the authority of the court, and suggests that the link to death by religious court emphasizes that "do not deviate" deals primarily with authority and rebellion. It suggests that within that framework, the theoretical lashes belong specifically where there is a refusal to recognize the authority of the sages, even though in practice there are no lashes because of the halakhic rule governing such a prohibition.

Rabbinic-level doubt is ruled leniently, and the explanation of "they said it and they said it"

The text notes that Nachmanides himself raises the possibility of explaining Maimonides’ view through "they said it and they said it"—meaning that the sages who enacted a prohibition can also limit it so that it does not apply in cases of doubt, and therefore rabbinic-level doubt is ruled leniently. It emphasizes that according to Maimonides this is "much simpler still," because in his view Torah-level doubt is ruled leniently by the basic law, and the obligation to be stringent in Torah-level doubt is itself a rabbinic rule, whereas Rashba disagrees and holds that stringency in Torah-level doubt is itself a Torah law. It notes that Nachmanides immediately rejects the "they said it and they said it" direction as implausible, without explaining why.

The Shemaita, legal doubt, and a dispute among halakhic decisors as doubt

The text presents, in the name of the Shemaita (Shemaita 1), the claim that the explanation of "they said it and they said it" gets stuck on legal doubt and doubt arising from disputes among major authorities—that is, disputes among halakhic decisors in which there is no original enactor saying that one may be lenient in doubt. It rejects the necessity of that argument and suggests that one could establish a sweeping rule that the sages determined that in any doubt involving rabbinic prohibitions one may be lenient, and therefore even doubt arising from dispute could be included within the rule. It adds a principled reservation about the halakhic world’s assumption that a dispute among decisors creates "doubt," and argues that one can view dispute as an invitation to decide, not as personal doubt.

The possibility that leniency in rabbinic-level doubt is itself a Torah law

The text develops a theoretical possibility according to which the rules for dealing with rabbinic laws are themselves part of a Torah-level framework, and therefore it may be that leniency in rabbinic-level doubt is a Torah-level rule that accompanies the authority of "do not deviate." It presents this as an "inside-out reversal" in relation to Maimonides, for whom stringency in Torah-level doubt is a rabbinic rule, and in relation to Rashba, where there is significance to attributing the rule to the Torah level. It makes clear that there is no explicit source for this suggestion and presents it as a conceptual possibility meant to open up a direction of thought.

Netivot, Rabbi Shimon Shkop, and Rabbi Shlomo Zalman: rabbinic law as a prohibition of rebellion / a matter of obedience, not as an inherent object-status

The text cites Netivot (section 232), who says that someone who unintentionally ate a rabbinic prohibition does not need repentance, and explains this by saying that rabbinic prohibitions are not "a transgression in the object itself," but rather a problem of disobeying their words. It brings proof from the Talmudic text in Eruvin regarding the difference between preventing a teacher from a Torah violation versus a rabbinic one, and explains that when there is no intent of rebellion, there is no essential transgression here. It expands, in the name of Rabbi Shimon Shkop and Rabbi Shlomo Zalman, that when there is doubt regarding a rabbinic prohibition, there is no "rebellion," because doubtful rebellion is not rebellion, and therefore rabbinic-level doubt is ruled leniently even if formally there is a "do not deviate" here. It notes a possible difficulty from comparison to Torah-level personal prohibitions such as an oath, and suggests distinguishing between a personal prohibition whose whole content is obedience and a personal prohibition of another kind.

Tzafnat Pa'neach and an alternative direction: "Do not deviate" applies only to someone who denies the authority of the sages

The text suggests, in the name of Tzafnat Pa'neach and other later authorities (Acharonim), that when a person violates a rabbinic law because of impulse and weakness, he does not violate "do not deviate," and only someone who eats poultry with milk out of principled refusal to recognize the authority of the sages violates the Torah prohibition of "do not deviate." It describes two motivations for transgression in Torah law and in rabbinic law: denial of obligation to the system of commandments versus practical failure, and it places "do not deviate" on the axis of authority rather than on the act of eating itself. It concedes that in the case of someone who denies authority and is in a factual doubt, questions of Torah-level doubt requiring stringency may arise, but argues that the relevant cases of doubt generally belong דווקא to someone who accepts the authority of the sages and is asking whether the case falls within the parameters of the enactment.

Communal enactment, a vain oath, and the Vilna Gaon

The text cites the Shulchan Arukh, Yoreh De'ah 228, that one who swears not to submit to a communal enactment has made a vain oath, and the communal enactment applies to him and he may stumble into the ban of their enactment. It presents the Vilna Gaon’s question that, according to the assumption that an oath can take effect regarding a rabbinic prohibition, it is not clear how a communal enactment is stronger than a rabbinic prohibition over which one can swear. It suggests, based on the new distinction, that the oath here relates to refusal to accept the authority of the community, and the parallel to that with respect to the sages is the place where "do not deviate" applies, whereas swearing regarding some specific rabbinic detail does not touch on denial of authority and therefore has a different law.

"Do not add," the counting of the commandments, and the claim that Nachmanides read Maimonides incorrectly

The text argues that if rabbinic prohibitions are only a "specification" of "do not deviate," in the style of "he shall not violate his word" in vows, then there should be no concern of "do not add" when the sages enact decrees without stating that they are rabbinic. It notes that Maimonides in fact is concerned with "do not add" when they do not make known that the enactment is rabbinic, and from this concludes that there is a separate "rabbinic prohibition" that is not simply an implementation of "do not deviate." It adds proof from the first root in the counting of the commandments in the dispute with the Ba'al Halakhot Gedolot, where Maimonides does not argue that rabbinic commandments are not counted because they are already included in "do not deviate," which implies that in his view they are not simply subsumed under it.

A proposal to unify Maimonides and Nachmanides, and a summary of the sticking point

The text cites, in the name of Rabbi Chaim and Rabbi Elchanan Wasserman, that Nachmanides too agrees that someone who rebels against the authority of the sages violates "do not deviate," and that the dispute concerns someone who violates a rabbinic law in the ordinary way, not as rebellion. It summarizes the possibility that Maimonides and Nachmanides are really saying the same thing, and that Nachmanides simply understood Maimonides as though every violation of rabbinic law were a Torah-level "do not deviate." It concludes by saying that this distinction brings us back to the question with which it began: if eating poultry with milk out of impulse is only a rabbinic prohibition and not a Torah-level "do not deviate," what is the source that obligates obedience? And the text promises that next time an answer will come that closes the circle.

Last time, as far as I remember, we started dealing with Maimonides’ approach. Just to summarize briefly: the dispute, apparently a dispute between Maimonides and Nachmanides, is about the question of what the basis of the obligation to obey the sages is. According to Maimonides, it seems that everything comes from “do not deviate,” which basically means that if, say, someone eats poultry with milk, then he violates “do not deviate.” And Nachmanides attacks him by saying that according to this, it turns out that there is really no such category as a rabbinic prohibition at all. In other words, every violation of a rabbinic prohibition is בעצם a Torah prohibition. So a doubt should have to be treated stringently, and human dignity, and all the implications we know of the difference between rabbinic law and Torah law, basically couldn’t exist. And then the question arises: so what does Nachmanides think? If it doesn’t come from “do not deviate,” then where do we learn that one must obey the sages? I went through all kinds of possibilities for explaining Nachmanides, and none of them really seems convincing, I have to say. I think I’ve mentioned more than once what I heard from Rabbi Meidan, that there are twenty-two answers to why we read the Book of Ruth on Shavuot. But he knows only one answer to why we read the Book of Esther on Purim. The Book of Esther is read on Purim, obviously, because that is the content of the day. But if you need twenty-two answers for why we read the Book of Ruth on Shavuot, that means none of them is convincing. So with Nachmanides too, I raised various possibilities, but somehow it still seems that something is missing. All right, I’ll come back to that in a moment.

In Maimonides’ approach, I said that really both of them are sitting on some problem that is built in. It’s not that they invented this approach or that approach; if there are difficulties, they are real difficulties. There is some built-in problem here. How can one create a separate category, what they call rabbinic laws, that obligates us? If there is a verse from the Torah, then it should be identical to the category of Torah law. And if there is no verse in the Torah, then why must one obey it? So either way: if there is a source, that’s a problem, and if there isn’t a source, that’s also a problem. So Maimonides chooses one branch of the dilemma, and then he has to explain what happens with the second branch. He says: it comes from “do not deviate.” Fine, so he solved the problem of why we are obligated to listen to the rabbis, because the Torah says “do not deviate.” But he runs into the problem on the other side of the issue: then how can it be rabbinic and not Torah law? Then it is ordinary Torah law. Nachmanides does not want to choose that side of the dilemma. He says: it cannot be that it comes from “do not deviate,” because then every rabbinic violation is a Torah violation. But then he runs into the first part of the dilemma: so why does one have to obey the sages? There still has to be some source. Fine, that was Nachmanides. I’ll come back to him, because I strongly suspect that they don’t disagree at all; I think I already mentioned that.

In Maimonides’ approach, the question comes up: okay, fine, you derived it from “do not deviate.” More than that, as Nachmanides—I think Nachmanides already points this out—that Maimonides writes, and I think I mentioned this, that why don’t we receive lashes for the prohibition of “do not deviate”? Because it is a prohibition linked to a warning for capital punishment by a religious court. Meaning: a prohibition for which there are circumstances where someone who violates it is liable to death; then even in other circumstances where someone who violates it is not liable to death, he does not receive lashes. That is the rule: a prohibition given as a warning for capital punishment by a religious court is not punishable by lashes. Maybe it is to give significance to capital punishment and so people won’t think lashes are some kind of substitute, one can suggest explanations, but that is the rule. So Maimonides says: why don’t we receive lashes when violating a rabbinic prohibition? Because it is a prohibition given as a warning for capital punishment by a religious court. So you see explicitly that Maimonides takes this to be a full-fledged prohibition; lashes would apply. That is what Nachmanides says, and rightly so. In other words, this is not a game. Maimonides says this is a Torah prohibition. Whoever violates a rabbinic prohibition violates the Torah prohibition of “do not deviate.” It is only a technical matter why lashes are not administered, but in principle lashes should have applied.

So really, why is a doubt not treated stringently? Why is doubt in rabbinic law treated leniently? It should really have been that doubt is treated stringently. I think I had already started this last time. I said that Nachmanides himself raises the possibility of “they said it, and they said it,” meaning, as a way of explaining Maimonides. Maimonides says it comes from “do not deviate” and nevertheless says that in a case of doubt one rules leniently. Why leniently? “Do not deviate” is a Torah prohibition. What would one have said? The rabbis, after all, could also have chosen not to enact anything, right? They could also have chosen not to enact anything at all. The Torah does not obligate them to enact; it only says: if you do enact, then there is “do not deviate,” one must heed your voice. But they could also have chosen not to enact. So obviously they can also enact, and qualify the enactment so that it does not apply in a doubtful case. What is the problem? The sages now come and say—what?—that the rule is lenient. Yes. The sages say: for example, we are now enacting that one may not eat poultry with milk. Then Nachmanides asks: so why, if I have a doubt about poultry with milk, should I have had to be stringent, since it is a doubt involving a Torah prohibition? But that is not correct, because the sages have it in their power either to enact a prohibition on poultry with milk or not to enact one. So obviously, if they have the power both to enact and not to enact, then they can also enact it and say that when you are in doubt, they did not enact it for that case. They can do what they want; that is the mandate the Torah gave them. And therefore, regarding doubt in the prohibition of poultry with milk, the rule is lenient. Why? Because the sages themselves, who enacted the prohibition, also said that in a case of doubt one may be lenient.

On each and every enactment? What? On each and every enactment, each decree? What do you mean, on each and every enactment? Does each one have this appendix, or is this some general rule? Yes, yes, it applies to everything, to everything together. It does not have to be stated separately for each one. There is such a rule regarding rabbinic prohibitions. I think last time I gave two formulations. Especially according to Maimonides’ view, one has to remember that Torah-level doubt is really lenient by strict law. It is only a rabbinic rule that one has to be stringent in Torah-level doubt. That is Maimonides’ view. Rashba disagrees with him, but that is Maimonides’ view, and therefore it is much simpler. Because according to his view, the entire obligation to be stringent in doubtful cases, even in Torah law, is itself only a rabbinic obligation. So in rabbinic prohibitions, the sages did not establish that one has to be stringent in doubtful cases; they left it at the strict law. According to Maimonides’ approach, it is much, much simpler.

Why doesn’t Nachmanides like this possibility? Yes. That is Nachmanides’ question: he asks himself how this can fail to be stringent if it is Torah law. Didn’t he know that Maimonides rules that Torah law itself is lenient in cases of doubt? Yes, he knew, but there is still such a rule: Torah-level doubt is treated stringently. There is such a rule. True, it is a rabbinic rule, but there is such a rule. So why doesn’t it apply here? He himself raises this possibility. Not only did he notice the possibility—he says it. He says one could have explained Maimonides by saying “they said it, and they said it.” But it cannot be; it is not plausible, and he moves on. He does not explain why. It’s not plausible? No. He notices it, says it is not plausible, and moves on.

Yes. There is the fundamental question: the whole passage of “if a matter of judgment is hidden from you,” that whole passage applies only when there is a Sanhedrin. Right. If there is no Sanhedrin, then it does not apply. The story of Rabban Gamliel and Rabbi Yehoshua, Yom Kippur, that is one example. So maybe “do not deviate” is only a scriptural support for the rabbis, but not really Torah law. Fine, that is what Nachmanides says. But it is not connected to the question of whether this applies only in the case of the Sanhedrin. Why does that matter? Even if it were not only in the case of the Sanhedrin, but for every sage, one could still say there is an obligation to obey, but it is only a scriptural support from “do not deviate.” Nachmanides on Maimonides on the—fine, I understand. You are right that this is only the Sanhedrin. The Sefer HaChinukh wants to say otherwise, but the simple understanding is that it applies only to the Sanhedrin. But I don’t see why one needs to say that in order to say what you said afterward. What you said afterward is simple. Nachmanides says that “do not deviate” is only a scriptural support, but really it does not derive from there. The question of course is: fine, then why must one obey this scriptural support? Why must one do it? A scriptural support is nice; if I have a Torah law, I can say it is a law given to Moses at Sinai, or whatever, something else, and the verse is only a mere support. Fine, then there is another source that obligates me to do it, not the verse but something else. But according to Nachmanides, there cannot be another source obligating me, because then he himself would run into the same problem he raises against Maimonides—that it becomes a Torah prohibition, and then a doubtful case should be treated stringently. Everything he asks against Maimonides would be difficult for him too. So the issue of scriptural support—Nachmanides says in passing that “do not deviate” is a scriptural support—but that still does not give us an answer. So why must one obey it? Scriptural support is nice, but what is the real source? Why really must one obey it? The support comes only after there is a real source, and then I can also attach it to a verse. All right?

I do not remember whether I mentioned this or not. In Shema’ta I, he wants to argue that what Nachmanides did not like in this explanation of Maimonides is what happens in legal doubt, doubt among authorities. Meaning: when there is a dispute, say, a dispute among Amoraim, among medieval authorities (Rishonim), on some halakhic question, okay? Now I am in doubt; there is a dispute between Maimonides and Rashba. So may I be lenient? According to the idea of “they said it, and they said it,” Shema’ta argues no, you cannot be lenient. Why? Because Maimonides does not claim this is a doubt; Maimonides says this is certain—he thinks it is prohibited—so he certainly did not permit me to be lenient. Rashba says it is completely permitted, so there is no prohibition at all and there is no need for permission to be lenient. So at the end of the day, I am now in doubt, and about this doubt no sage tells me that if you are in doubt, then you may be lenient. If I have a doubt in law or a doubt in facts… then the sages who established the prohibition can say: look, if you are in doubt, then we did not establish it for that case. But here Maimonides says: this is a definite prohibition; you must do this; there is no issue here of me allowing you to be lenient when you are in doubt. Therefore Shema’ta says that this is why Nachmanides did not like that explanation.

I do not think that argument is really necessary; it is very narrow, he puts it in a very, very narrow frame. No, I would formulate it this way: to the extent that this is what he means, he assumes that basically next to every enactment—what someone here asked earlier—next to every enactment there sits a clause that says: yes, but if there is doubt, then I waive it for you, I, the one who enacted it, let you off. But that may not be so. It may be that there is a sweeping rule in the laws of rabbinic prohibitions that anyone who is in doubt—the sages established, not the sages of some particular enactment—the sages established: if you are in doubt regarding a rabbinic enactment or decree, you may be lenient. And if that is so, why should it not apply also to doubt in rabbinic law? I have—there is a doubt in a dispute between Maimonides and Rashba. It is not Maimonides who permits me to be lenient; rather, it is the sages who established this rule, that when you are in doubt regarding a rabbinic prohibition, you may be lenient. Therefore I do not see—this formulation can certainly stand.

Now I remember that I said this: according to that, something comes out that is the reverse of the reverse—namely, that “doubt in rabbinic law is treated leniently” is a Torah rule. Earlier I spoke about “doubt in Torah law is treated stringently”—whether that itself is a rabbinic rule or a Torah rule. Now I am saying that “doubt in rabbinic law is treated leniently” is not rabbinic; it is Torah law. The Torah itself said that every doubt you have in rabbinic law should be treated leniently. The Torah said that, and therefore you do not need the permission of Maimonides or Rashba or the sage who enacted it or whoever else. There is such a rule; it is a rule in the laws of rabbinic prohibitions, and it can be a Torah-level rule, namely, that in rabbinic prohibitions, the sages have authority to establish prohibitions, because that is what is written in “do not deviate,” at least according to Maimonides. But that same rule that gives them the authority to establish prohibitions is also qualified by this: if you have a doubt, you may be lenient. Then it may be, in this upside-down kind of way, that the rule “doubt in rabbinic law is treated leniently” is a Torah-level rule. Just as we saw in Maimonides that the rule “doubt in Torah law is treated stringently” is rabbinic.

How do you get to that? From the second formulation I just gave. I said that Shema’ta asks about the—he explains Nachmanides as to why he does not like this answer in Maimonides, that “they said it, and they said it.” So I said one could answer that maybe there is a sweeping rule saying that in rabbinic prohibitions, if you are in doubt, you may be lenient. It is not Rabbi Akiva, who enacted this enactment, saying to me that I may be lenient if I am in doubt. Rather, it is a halakhic rule; it is from Sinai. Meaning, it is a rule that is part of how one handles rabbinic laws. Just as there is the rule of “do not deviate,” a Torah-level rule that tells me what to do with rabbinic enactments and decrees, right? The Torah relates to the actions of the sages. So just as the Torah tells me that they have authority to enact enactments or decree decrees, it also tells me that if I am in doubt, I may be lenient.

But why do you need to go to the theoretical level that the rabbis, the sages who began enacting, said all—yes, but they did not say that anywhere. When they began enacting, they came by virtue of the authority the Torah gave them. The one that determined the framework in which the rabbis operate and the force of their authority is the Torah, according to Maimonides. Okay? But even that is not seen anywhere. Why? “Do not deviate.” That is the verse “do not deviate.” From there you want to understand that? Obviously. The verse “do not deviate” says that when the sages do something, you must obey, right? So that verse—or whatever the accepted interpretation of that verse is—says that, yes, unless you are in doubt. If you are in doubt, then no. So it turns out there are rules for how one handles rabbinic law, and these are Torah-level rules. This is not my novelty; it is simple. There are rules for the framework within which the sages operate, and the Torah determines those rules. So it is certainly possible—I am saying at least possible—that one of those rules, which is a Torah-level rule, says that if you are in doubt, be lenient.

Even according to Rashba? What? Even according to Rashba? Yes. On the contrary, according to Maimonides the whole obligation to be stringent is rabbinic, so there is no point in saying that the permission to be lenient in rabbinic law is Torah-level. According to Maimonides it is obvious, because even the obligation to be stringent in Torah law is rabbinic. Only according to Rashba is there really significance to what I am saying here.

From Sinai, he received the whole Hebrew Bible (Tanakh), right? Even the Torah I’m not sure about; the whole Hebrew Bible is already— But that is what is written in the Talmud. He received the whole Hebrew Bible. Where is that written? I do not remember the exact source, but I can show you afterward. Fine. The whole Hebrew Bible, the whole Hebrew Bible. Even the Writings. Everything that a veteran student is destined to innovate was given to Moses at Sinai. That is in the Talmud, even about things said by the sages of the Oral Torah, not only prophets. But I think I spoke about this once. I said this is a normative statement, not a historical one. You must relate to it as if it was given to Moses at Sinai.

What about “make for yourself a rabbi,” which we learn in Pirkei Avot? “Make for yourself a rabbi”—that too. So why is it only the Sanhedrin? Why isn’t it only— No, those are recommendations. “Make for yourself a rabbi,” that is Pirkei Avot. Those are recommendations. Recommendations? Yes. If you do not know, make for yourself a rabbi. A reasonable recommendation, no? You want to know what to do. What, there is no law of “make for yourself a rabbi”? I do not know of such a law. There is the law of “do not deviate.” Sanhedrin is certainly so. “Judges and officers you shall appoint for yourself.” It is written. Certainly. It is a positive commandment to appoint judges and officers everywhere, and there is a commandment to heed them and a prohibition against not heeding them. But everything in Pirkei Avot is only a recommendation. Yes, obviously. Where does it appear in the Shulchan Arukh or in Maimonides? It does not appear. These things are not there. The halakhic decisors do not bring it. It is not Jewish law.

The possibility that leniency here is a law given to Moses at Sinai when it is not written in the Torah? Yes, it is not written. Or it is some reasoning, or a law given to Moses at Sinai. I am saying this is only a conceptual possibility; I have no source for it. But I am saying it opens up an interesting conceptual possibility that people generally do not think about—that the rule “doubt in rabbinic law is treated leniently” is Torah-level. The opposite of what Maimonides says, that the rule “doubt in Torah law is treated stringently” is rabbinic. Okay, so this now becomes completely symmetrical. Fine.

Those are the first possibilities. There is a third possibility, which comes up in Rabbi Shimon Shkop; Rabbi Shlomo Zalman says it; Shema’ta writes it in Shema’ta I. They say as follows. I once mentioned that Netivot in section 232. Netivot says that someone who ate a rabbinic prohibition unintentionally does not need to repent. If you ate a Torah prohibition unintentionally, you need to repent for the unintentional transgression. In rabbinic law, if it was unintentional, you do not need to repent. Why not? He brings a proof for this: the Talmud in Eruvin, I think, says that if a person sees his rabbi violating a Torah prohibition, he must stop him—ask him politely, “Did you teach us, our master?”—because after all, he made him his rabbi, even though he was not obligated to. So… he says to him: “Did you teach us, our master, that one must do such-and-such?” to prevent him from the transgression. But if he sees him committing a rabbinic prohibition, then he should let him do it, and only afterward ask him: why did he do that? The Shiltei HaGiborim? Netivot? What do you mean? Why? How can it be that he should not prevent him from a rabbinic transgression? What, is a rabbinic transgression permitted? So he says: since his rabbi is acting unintentionally, then yes, there is no problem. He committed a rabbinic transgression unintentionally; there is no problem with that. That is one of his proofs.

In any case, he says that an unintentional rabbinic transgression does not require repentance. Why really? I basically mentioned this—the Netivot, yes. So why is that? Because rabbinic prohibitions are not prohibitions in the object itself. Meaning, when the sages prohibited poultry with milk, it is not that poultry with milk became an object of prohibition like meat with milk. Rather, there is an obligation to obey the sages. And the sages said not to eat poultry with milk, so I need to obey them and not eat poultry with milk. But that does not turn poultry with milk into an object of prohibition, into something prohibited in its essence. Rather, the act of eating poultry with milk is problematic because it contains disobedience to the command of the sages. So he says that if I act unintentionally—I do not know that this is poultry with milk, okay?—and I ate it, then I did not violate any prohibition. I did not violate a prohibition unintentionally, because the prohibition is not “do not eat poultry with milk.” I ate poultry with milk, but that is not itself the prohibition. The prohibition is not to disobey the sages, but disobeying the sages—I did not disobey, because I did not know they were commanding this at all. So here it is not an unintentional prohibition; it is not a prohibition at all, and therefore one need not repent. That is Netivot; that is how he is usually explained.

The same thing is said by Rabbi Shlomo Zalman and Rabbi Shimon Shkop regarding a case of doubt. What happens in a case of doubt? If I am uncertain whether or not there is a rabbinic command regarding something. Okay? So let’s say I do not know whether this is poultry with milk or soy with milk. Fine? So I am unsure. Then I am in doubt about a rabbinic prohibition. The moment I am in doubt, then when I eat it, there is no act of rebellion here. This is not rebellion against a command of the sages; I do not even know whether there is a command here. Such a thing, they say, is not rebellion. Doubtful rebellion is not rebellion. But it is not that I do not know— No, of course not. I am saying they expand the point made by Netivot. Yes, they expand Netivot. Basically, behind this stands, it seems to me, the view that says that the problem is not that you fail to obey the sages; the problem is when you rebel against the sages. That is not the same thing. Rebellion, when there is a clear command and I go against it—that is rebellion, not merely failing to obey. If I am in doubt, you cannot call it rebellion. I do not even know whether the sages commanded such a thing, so there is no rebellion here. Obviously, that is one step beyond Netivot. Yes. It is a very sharp explanation of why doubt in rabbinic law is treated leniently.

What? Yes. But that is the explanation for why doubt is treated leniently. They say this is the explanation proposed for why, according to Maimonides, doubt in rabbinic law is treated leniently, because otherwise it should have been stringent due to “do not deviate.” So they say: because the prohibition here is only a prohibition of obedience. So true, it is Torah law, but it is only a prohibition of obedience—“do not deviate.” Therefore, if I am in doubt, then I do not know whether the Torah commands “do not deviate” here. Right? I do not know whether the Torah commanded or did not command; I am in doubt. And here, according to Maimonides, this is a Torah prohibition of “do not deviate.” When I eat poultry with milk, there is a Torah prohibition of “do not deviate.” But the nature of this Torah prohibition is like Netivot: it is a duty of obedience. This is not a prohibition because the thing itself is prohibited, right? It is a Torah-level duty of obedience, yes—the Torah said “do not deviate.” This is a duty of obedience. But here I do not know; I am in doubt whether it exists or not, and doubtful rebellion is not rebellion. Therefore, in cases of doubt, one can be lenient in rabbinic prohibitions even though—and here this is the assumption—even though according to Maimonides anyone who violates a rabbinic prohibition is basically violating a Torah prohibition, and still in cases of doubt we go leniently.

Now one might hesitate a bit, because there are other Torah prohibitions that are obligations on the person rather than on the object. The question is whether there too we would say “doubt is treated leniently.” An oath—would doubt about an oath also be treated leniently? We do not say such a thing. An oath is a personal prohibition, as we said at the beginning of Nedarim. Fine, but that is another kind of personal prohibition, not a personal prohibition of obedience. There is room here to distinguish, but that is their claim. It is a very interesting claim.

And Netivot’s explanation for poultry with milk in a deliberate case is that it is rebellion, yes? In a deliberate case it is rebellion. And in the case of… According to Maimonides it is “do not deviate.” According to Nachmanides? According to Nachmanides I have not answered yet. I proposed various suggestions last time, but I will come back to it, all right? After I explain Maimonides, I will say that Nachmanides thinks the same thing, simply. How can you say that—that an oath, the prohibition of an oath, which is a rabbinic prohibition—you want to say that— No, no, not a rabbinic prohibition, a Torah prohibition. A Torah prohibition that is personal and not object-based. The prohibition of an oath is not— Ah, that is Torah law. Torah law, but a vow is on the object and an oath is on the person. If you say that every doubtful case involving the person is lenient, then there are other Torah prohibitions whose doubtful cases should also have been lenient. But this is real Torah law. He also said “do not deviate” is real Torah law. Yes, but with “do not deviate” it is not about the person or the object; it is about the Torah telling you that if the sages determine something, then you have to obey. And then you ask: but the sages—are they operating on the person or on the object? That is not the same as when the Torah directly creates a personal obligation. It is not the same thing. That is the distinction I mentioned earlier. I said there is room here to distinguish between two types of personal prohibitions. “Do not deviate” is a personal prohibition whose content is obedience. You have to obey. So if you are in doubt, maybe that is not called disobeying, or not called rebelling. But an oath—true, it is a personal prohibition, but it is not a prohibition of obedience. It is a personal prohibition, and perhaps in doubtful cases of that kind of personal prohibition one still goes stringently. Because in that personal prohibition, it is not because it is personal, but because its content is obedience. And in something whose content is obedience, then in doubtful cases one can be lenient. Okay.

But this whole prohibition is only about obeying? It does not relate to nullification and things like that? What do you mean? When the sages tell you not to do something, then the sages are telling you that you must not do it; there is a duty of obedience. There has to be some difference between poultry with milk and meat with milk or—why? The sages do it according to the pattern of Torah law, but still, in the end, you did not eat a prohibited food; you only failed to obey. And if there is nullification here, then there is no problem, then you obeyed, because the sages did not prohibit. Everything the sages enact, they enact in the pattern of Torah law. They operate like the Torah pattern, they also do this on the rabbinic level, but still, at bottom, in Torah law the object itself is prohibited, whereas on the rabbinic level it is only a matter of determining what act the sages demand of you in obedience. In other words, in which case the sages demand that you obey. Even though everything operates in the same way.

This also joins up reasonably with the rule that the public cannot endure it, or something like that. Since the whole point here is— Right. Because if there were something essential here, why should I care whether the public can endure it? Right. Many want to argue that rabbinic prohibitions are indeed personal prohibitions. It is not just Netivot; there is Avnei Milu’im that discusses this, and others too, that rabbinic prohibitions are personal prohibitions. Meaning, this is a common approach among later authorities (Acharonim), not universally agreed upon, but common. There are a number of later authorities who say this.

Fine, if so, that is yet another explanation for why, according to Maimonides, doubt in rabbinic law is treated leniently, even though there is a source in “do not deviate.” I want to suggest something else, which is basically said by others—it is not me. A number of later authorities say it. In Tzafnat Pa’aneach it is written very clearly, and afterward I saw that quite a few later authorities go in this direction. There it is written clearly? What? Tzafnat Pa’aneach writes something clearly? Yes, that happens sometimes. This he writes clearly. The “look, look, look” afterward is less clear.

In any case, there are several—you can look in the Frankel index at the beginning of the laws of rebels against rabbinic authority. He brings quite a few commentators there who go this way. In Maimonides this is the simple plain meaning. I think it is quite clear that this is what he means. What they basically argue is that when the sages prohibit poultry with milk, and there is a Torah prohibition of “do not deviate,” that is only in a case where you eat that poultry with milk because you do not recognize, in principle, the authority of the sages.

A person can eat poultry with milk—let’s start with Torah prohibitions. Let’s say I desecrate the Sabbath. You know, I can do it because I am not committed to Jewish law at all, I do not accept the commands of the Holy One, blessed be He, they do not obligate me. And I can do it because my impulse overcame me. What can I do? I do it—not that I do not accept it, but rather… I do not believe that there is such a command. Or I do not accept it. Two possibilities. But if I do not believe there is such a command, it may be that I am under compulsion. But if I do not accept the command, I am rebelling against the command; I am unwilling to accept halakhic obligation. That is not compulsion; that is a decision which is itself a transgression. Okay? But there can also be someone who did not make some principled statement that “I am not bound by Jewish law,” but fine, he fell, what can you do. He had an impulse. That is not compulsion; he will be punished for it. But there is no essential rejection here of the commanding system; rather, he fell into this transgression because he had an impulse.

The same exists on the rabbinic plane. Someone who eats poultry with milk: one person will eat poultry with milk because he does not recognize the authority of the sages. Who are they to establish prohibitions? The Holy One, blessed be He, establishes prohibitions, but the sages—human beings like you and me—how can they determine for me what is forbidden and what is permitted? He does not recognize their authority. This is someone who on the principled level does not recognize the authority of the sages, and therefore he eats poultry with milk. And there is another person who eats poultry with milk the way that first person, in Torah law, simply fell. He had an impulse; he ate poultry with milk. He recognizes the authority of the sages; he understands that this is forbidden and that he is forbidden to do it, but he fell, he had an impulse.

When Maimonides says that someone who violates a rabbinic prohibition has violated a Torah prohibition, a Torah prohibition of “do not deviate,” he is speaking only about the first type. That is exactly—and it is also the plain sense. What does “do not deviate” mean? It means that you have to accept the authority of the sages. The thing itself is not an object of prohibition, as I said earlier in the name of Netivot. All you have here is authority. You must obey the sages. So when do you violate that? When you fail to recognize that one must obey the sages. But if you simply ate that poultry with milk, and you do recognize the authority of the sages, but your impulse got the better of you, then you did not violate “do not deviate.” You violated the sages. So you ate poultry with milk. That is only a rabbinic prohibition. It is not a Torah prohibition. The Torah prohibition of “do not deviate” exists only where I come out head-on against the authority of the sages. I do not recognize their authority. That is what Tzafnat Pa’aneach and other later authorities say.

What is the doubt in that context? What? What counts as doubt in this context? What do you mean, as doubt? You defined two kinds of failure to observe a rabbinic law. You said that “do not deviate” applies only in the first case. What would be a doubt regarding the first case? Whether the sages said it or did not say it. There can be a situation of doubt as to whether the sages said it or not, but that does not interest me, because I do not accept their authority either way. It does not matter whether they said it or not. It has no significance. There can be a situation of doubt, but the doubt does not come into expression here, because the person is unwilling to accept the authority of the sages. So what difference does it make whether this is doubtful poultry with milk or definite poultry with milk? He will eat it either way. But if he does accept and still eats it? There is where doubt exists. That is exactly the point. The cases of doubt we are talking about are only of the second type, right? What happens when I am in doubt whether it is poultry with milk or soy with milk? Fine? Now if I am one of those who do not accept the authority of the sages, then I do not accept their authority. What does that have to do with anything? It is irrelevant. Fine?

Now true, even if I do not accept the authority of the sages, I do not receive lashes for the mere view that the sages have no authority. You have to do an act in order to receive lashes. And in the end, lashes are not administered anyway because this is a prohibition linked to a warning for capital punishment by a religious court. But on the conceptual level, in order to violate the prohibition, I do not think this is a prohibition in thought. It is not merely “I do not accept the authority of the sages.” Obviously, if I do something because I do not accept the authority of the sages, then I have violated the prohibition. So there is room here to discuss what happens if there is doubt: poultry with milk or soy with milk. I do not in principle accept the authority of the sages, and I ate this thing. Now the question is—maybe this is what you intended to ask—what do we do in such a case? After all, it is not clear that he did the prohibited act. And to violate the prohibition, it is not enough that he holds the view that he does not recognize the authority of the sages; there also has to be a prohibited act. But it is not certain that a prohibited act occurred. There is doubt here. So perhaps the rule of doubts would apply here; I do not know. Here would it be stringent? What? Here would it be stringent? Yes. In this case, Torah-level doubt is treated stringently. Yes. Torah-level doubt, because it is Torah law. No, because he is rebelling. I mean, Torah-level doubt is treated stringently, yes, right. If it were because of desire, it would be lenient. Right? I am saying: since he is rebelling and this is a Torah prohibition, the laws of doubt would apply here, and Torah-level doubt would be treated stringently.

All right. But I am saying it may be even more than that—not only Torah-level doubt treated stringently; here he is definitely rebelling. And the punishment… here he is definitely rebelling. Why? Because first of all, he does not accept the authority of the sages regardless of this specific case. And now that is also expressed in practice, because in fact he ate something that in principle he should not have eaten. So if there is practical expression and he has a principled view that he does not recognize the authority of the sages, perhaps this is even certainly a prohibition; I do not know. But at least a doubt. It seems there is room to say…

What if it is the same thing— No, there are no lashes for “do not deviate,” because it is a prohibition given as a warning for capital punishment by a religious court. That is what Maimonides says. Rabbinic lashes? Yes, rabbinic lashes, yes. Because what you said about stringency in this context—what does that mean? If he already violated and ate, then it is over. But if he is deliberating whether to eat or not, then there is doubt here, and one should be stringent. Only this is absurd, because of course he will eat—he does not recognize the authority of the sages. So it is not… perhaps, you know what, if Torah-level doubt is treated stringently on the Torah level, then maybe here he would be stringent because Torah law he does obey. Fine, but then he should obey “do not deviate” too. I do not know.

And what is the law… this is admittedly not connected to Torah law, but there is the case of someone who intended to eat forbidden fat and ate permitted meat. Yes. What is the law there? Nothing. He needs atonement, says the Talmud. Even though he wanted to eat forbidden fat—in other words, here he wanted to defy the Holy One, blessed be He? Yes, but he did not do it, so I say there must be an act; intentions are not enough for this. A good thought the Holy One, blessed be He, joins to action—and even there, a good thought is not an act, it is just…

So the example of poultry with milk and soy—poultry with milk and soy with milk. So what if he ate… if he intended to rebel and in the end ate soy, then certainly nothing happened. I do not know if certainly, because there was doubt, and in doubt he should have been stringent, and he was not stringent. So that means there was practical expression of his theoretical rebellion against the Holy One, blessed be He. And then I said that perhaps… With the milk not—there there is rebellion… there is a prohibition of doubt, not of the milk. There is a prohibition; one may not enter a doubtful situation. You have to be stringent in doubtful cases. You did not do that; in practice you did not do that. So there is practical expression of your principled rebellion. I am saying: perhaps this would already be an actual prohibition, not even merely doubt—I do not know. There is room to think about it.

And what about… is there a distinction between not agreeing with rabbinic law and not accepting rabbinic law? Not agreeing with something they say… he is fine, he accepts the authority but does not agree with the specific law. What? Not agreeing—he is entirely allowed not to agree. You just have to do it. Simply do it. They have authority; that is the meaning of authority. Authority means that you have to do it because they said so, not because you agree. If you agree, then you do it because you agree. Authority—that is exactly its meaning—that you must do it regardless of whether you agree or not. To disagree with the rabbis is entirely permitted; there is no prohibition in that. You just have to fulfill what they say. It is like the Knesset—you know, one can disagree with the Knesset, right? But the laws are binding; it means you must obey the law.

Like Korach? What? Like Korach. Yes, fine, and that is the meaning of authority, exactly the point. If you do things only because you agree, then that is not called having authority; it means I persuaded you. Authority means that you do it because I said so, not because you were convinced. I said that your not agreeing does not mean you violated that prohibition—that is what I said. Yes, only if it comes to practical expression. Right, yes.

Are there any stories in the Talmud of people who really rebelled against their rabbis and told their rabbis, “We do not agree to do this”? I do not remember at the moment, but those are usually aggadic passages, and I skip aggadic passages, so I do not know. Maybe there are. Elisha ben Avuyah is not about rabbinic law, it is… yes, even that aggadic passage I know. It is a dispute with our sages. We do not see rebellion like Korach or something like that within the Talmud, right? In the period of… I do not remember, I do not remember something like that.

What about what they did with Rabbi Yehoshua? Yes, but there it was a dispute among sages, not rebellion. It was a dispute over how to determine Yom Kippur correctly; I mean, there are sides to it that make it look like rebellion and so on. No, no, no, there… Fine, there it was an argument within the Sanhedrin, and in the end he did accept it. But that too is not a representative case, because in fixing the calendar there is mandatory authority in the head of the Sanhedrin. “You, even if you acted intentionally; you, even if you acted unintentionally; you, even if you were under compulsion.” So when the head of the Sanhedrin determines the calendar, that has binding status even if I do not agree with him; even if it were proven by signs and wonders that he is mistaken, it does not matter. Once he determined it, that is the calendar. But with Rabban Gamliel and Rabbi Yehoshua there were three disputes, not just about the calendar. Right, so the calendar is the unrepresentative example.

Yes. But there it did not seem that the rabbis had trouble getting the obedience of the people. In those days, after all, it was not like today. Even today I think more or less there is… yes, there is friction even in Torah law today, but I do not think there is principled rebellion against rabbinic laws. There was one sect that actually went back with them. Ah, okay, right, there were parts of the public that indeed did not accept the authority, right. Yes. Okay.

What, and in their time did they also determine the Sanhedrin? What they determined—who sat in the Sanhedrin and all kinds of laws, and the High Priest too they determined, okay… No, the Sanhedrin I do not know to what extent. The High Priest, usually the Sadducees appointed there in the Second Temple period, and 380 High Priests died there, as the Talmud says. Regarding the Sanhedrin—yes, there was also a period in which they determined who sat in the Sanhedrin. I do not remember such a thing, but maybe again it is in the area that I do not… Fine, what do you do here? Let’s say yes—what do you do? I would not obey. Fine. Rebellion? Yes. Look, authority also has limits. We do not go all the way with formalism. It is like that old standard Godwin law, yes, what about the Nazis? The Nazi party was the sovereign, lawful, authorized government—so what, I must obey them? And I believe that in principle one should obey the law, fine, as long as it stays within reasonable bounds. If the law tells me to do something beyond reasonable bounds, then no, I will not obey. A black flag, exactly.

There is some view I read recently that apparently at some point in the period of the sages there were Sadducees inside the Sanhedrin, and therefore they did not decide in various places. They did not decide. Ah, okay. Fine.

In any case, let’s move on for a moment. Basically, I’ll perhaps give you an example of this. Look, in the Shulchan Arukh, Yoreh De’ah 228, it says: one who swears not to enter into the communal enactment. If someone swore—say the community enacted some regulation, and I swore that I would not keep it, I will not enter into the communal enactment—this is a false oath, and against his will the communal enactment takes effect upon him, and if he does not act as they do, he stumbles into the ban of their enactment; the ban falls upon him. Because communities usually excommunicated those who did not obey them; that was the tool they had, since they had no other means of enforcement. So he says that this oath is a false oath. It is like swearing to nullify a commandment. In other words, the oath does not take effect.

So the Vilna Gaon asks here: how can that be? After all, an oath does take effect even on a rabbinic prohibition. That is his assumption, by the way; it is disputed among the halakhic decisors. But his assumption is that an oath concerning a rabbinic prohibition does take effect. For example, if I swear to eat poultry with milk, the oath takes effect. Now the question of what to do in practice is a different question, but according to the Vilna Gaon, the oath takes effect. There are later authorities who say it does not, and some connect it to our dispute between Maimonides and Nachmanides. If it is “do not deviate,” then it is Torah law, so one cannot swear about it; an oath does not take effect. If it is not “do not deviate,” as Nachmanides says, if it is only a rabbinic prohibition, then the oath does take effect. But never mind that—the Vilna Gaon assumes that an oath relating to rabbinic law takes effect, so he asks: how can a communal enactment be stronger than a sworn obligation involving rabbinic law? Do the rabbis have more authority than the seven good men of the city, than a limited community?

According to what I am saying now, this is not difficult at all. In order for me to swear, say, to eat poultry with milk, that can take effect. But if I swear that I do not obey the sages, that I do not recognize the authority of the sages, that will not take effect, because only about that is there “do not deviate.” It will not take effect. Okay? But here, I suggest, here we are talking about someone who swore not to enter into the communal enactment—he does not accept the authority of the community to enact enactments. So even in rabbinic law that would not take effect. But the parallel case, if he does not accept some particular enactment—according to what I am proposing now—the Vilna Gaon is right; that really would take effect, exactly as in a rabbinic prohibition it would take effect. That is what I want to argue. In other words, and that is exactly the difference between someone who does not in principle accept the authority of that body, whether the seven good men of the city or the rabbis, and someone who is speaking about a particular matter. A particular matter is only rabbinic law and does not derive from “do not deviate.”

Fine. But the oath—if there is no act, what do you mean, if there is no act? Poultry with milk—if I make him swear to eat poultry with milk, but he does not eat it, what is that? An oath—what do you mean? He swore a false oath. He can do, excommunication? He made the oath; there is no act, but there is a false oath, and if he swore a false oath, that itself is a prohibition. Rabbinic? No, Torah law. A false oath, uttering the divine name in vain, “you shall not take the name in vain.” What do you mean? The prohibition is rabbinic, but the oath is a Torah prohibition—you took an oath pointlessly, you uttered the divine name, uttered the divine name in vain. An oath is always by definition a prohibitory oath. There is a prohibition to violate an oath. When I swore, now it is forbidden for me to do this. Once I did it, I violated “he shall not profane his word.” But the prohibition of swearing a false oath is not “you shall not take the divine name,” not that I violated the oath. Rather, the oath itself is a false oath; that is the prohibition. The speech.

The claim I basically want to make here is the following. On the one hand—if I understand Maimonides in the simple way, the way Nachmanides understood him—then it turns out there is no such thing as rabbinic prohibitions. Rather, rabbinic prohibitions are parallel to, say, a vow. There is an obligation to keep vows: “he shall not profane his word.” Now I vow not to derive benefit from this book, for example. Okay? So when I derive benefit from this book, I have not violated a prohibition of benefiting from this book; I have violated “he shall not profane his word.” In other words, when I vowed benefit from this book, that merely became one way of violating “he shall not profane his word.” It is not another prohibition. It is “he shall not profane his word.” Only “his word”—whose word? What I myself said. I spoke this once, I spoke this once. That is the simple understanding of Maimonides’ words.

Maimonides, according to the usual reading—the way Nachmanides read him—holds that poultry with milk is not a prohibition at all. The prohibition is only “do not deviate.” If you ate poultry with milk, then through that you violated “do not deviate.” There is no prohibition of poultry with milk; poultry with milk is just a specification or implementation of the prohibition “do not deviate.” Exactly like a vow—there is nothing else here.

Now in such a situation I would not expect, for example, that there would be an issue of “do not add.” Suppose the sages establish the prohibition of poultry with milk, the prohibition against eating poultry with milk. So Maimonides says that if they do not announce that this thing is rabbinic, and instead leave it unstated, then people may think it is Torah law, and then they violate “do not add”; the sages violate “do not add.” Rashba claims that sages cannot violate “do not add,” but that is their dispute. Maimonides says they can. If everything the sages say is merely a branch of “do not deviate,” what does that have to do with “do not add”? “Do not add” means adding another prohibition that is not written in the Torah. It is like if I vow not to benefit from this book—do I violate “do not add”? Did I add another prohibition? No. “He shall not profane his word” simply applies here. It is not another prohibition.

When we speak in the language of “do not add,” we are really assuming that the prohibition of poultry with milk is a prohibition—it is not simply from “do not deviate.” There is the prohibition of poultry with milk, a rabbinic prohibition. “Do not deviate” is a Torah prohibition when I substantively rebel against the authority of the sages, and there is poultry with milk, which is a prohibition in its own right when I eat poultry with milk. This is an additional separate prohibition, and therefore in principle it is possible to violate “do not add,” unless I announce: no, this is not an additional prohibition; it is only a rabbinic prohibition, and we acted within our authority—we are allowed to establish rabbinic prohibitions. I say this is proof that Maimonides is not as Nachmanides understands him. It is not that poultry with milk is just a specification of “do not deviate”; rather, it is another prohibition. The authority derives from “do not deviate”; the verse “do not deviate” gives them authority to establish an additional prohibition, and with regard to that one must be careful that this determination not be “do not add,” as Maimonides says.

Perhaps another proof that Nachmanides is not right in how he reads Maimonides: in all of Maimonides’ discussion in the first root, where he argues with the author of Halakhot Gedolot—Halakhot Gedolot counts rabbinic commandments in its enumeration of the commandments, and Maimonides says that rabbinic commandments should not be counted. Maimonides does not write anywhere the simplest argument I would have expected him to write: that rabbinic prohibitions are already included in “do not deviate,” so why count them separately? Just as I do not count that if you vowed a prohibition of benefit from this book, then commandment number 614 is that this too is forbidden to you. Obviously it is included in “he shall not profane his word.” “He shall not profane his word” is realized in many ways. So what? Many prohibitions in the Torah can be realized in many ways. I would have expected that the first argument Maimonides would raise against Halakhot Gedolot would be: why are you counting rabbinic commandments like reading the Megillah or Hanukkah lights or hand washing or things like that? Why are you counting them? They are included in “do not deviate.” What is the problem? You already counted “do not deviate”; it is inside that. It is like “he shall not profane his word.”

Maimonides does not bring this. There is a problem in counting rabbinic commandments: suppose the Sanhedrin arose today and there were more rabbinic commandments—what would one do with that? What would one do with the 613 commandments? I do not know, a good question. That is what Maimonides does ask against Halakhot Gedolot. But what Maimonides does not ask Halakhot Gedolot is what I just said. He asks the other question, but he does not ask: why are you counting this? It is already included in “do not deviate.” Even if you say it should be counted—fine, count it because every rabbinic law is Torah law because of “do not deviate.” Fine. But still it is included in “do not deviate,” so do not count it separately—not because its force is lower, but because it was already counted. Why does he not raise that? Why does he not raise the most basic question? In other roots he raises many arguments like that—why are you counting this? It is already included in that commandment, which is already counted. So why does he not raise it here? Because it is not included. As I said before, it is not included: eating poultry with milk is not just an implementation of “do not deviate,” even according to Maimonides. Not when I eat poultry with milk not out of rebellion. Then I have not violated “do not deviate.” That is a separate rabbinic prohibition. When I eat poultry with milk out of rebellion, then I violated the Torah-level “do not deviate.” That is included; it is included because the prohibition itself is the rebellion. The prohibition is “do not deviate”—that is the prohibition, that is it. But when I eat poultry with milk not out of rebellion, then it is not included in “do not deviate”; it is a separate prohibition. Maimonides only says: fine, but it is a rabbinic prohibition—why are you counting it? He cannot ask: but it is already included in “do not deviate,” because it is not included. So that is further proof, I say, that Maimonides does not view the specific rabbinic prohibitions as included in “do not deviate.”

What does it mean, another separate prohibition? If there is no “do not deviate” connecting to everything you said about “do not add,” then why is it forbidden to do this? That is an excellent question, and that is where I am heading; I am going to get there. I do not know if today, but I want to get there.

I did not understand—according to this approach, does Maimonides disagree with Netivot or something? Again, we said that according to Netivot, if it is not rebellion or something… I do not know if he disagrees with Netivot. You can arrive at Netivot and you can not arrive at Netivot. You do not need to arrive at Netivot in Maimonides according to this. That is actually an important point, what I am saying now. What I am proposing now is not like the direction that goes by way of Netivot. Not because it is unlike Netivot in principle—you can hold like Netivot—but you do not have to get there. That is, Netivot explained why doubt—or according to those who go with Netivot, they explained why doubt in rabbinic law is treated leniently. After all, there is a Torah-level doubt of “do not deviate.” No, this is doubt about obedience, doubt about rebellion or not rebellion, right? But then I have to understand that rabbinic prohibitions in their essence are duties of obedience; they are not object-based prohibitions, right? According to what I am saying now, they can also be object-based prohibitions. I do not have to get there. Netivot may be right or may not be right, but I do not need that in order to say what I am saying here. What I am saying here could mean that this is an object-based prohibition too—it is forbidden for me to eat it—and that does not derive from “do not deviate,” because I am not eating it in rebellion. Only the prohibition of “do not deviate” is because of rebellion, but the rabbinic prohibition of poultry with milk could be a prohibition that is not rebellion, but rather an object-based prohibition.

This is Tzafnat Pa’aneach? Yes, this is Tzafnat Pa’aneach and those who follow it. I am saying that this is Tzafnat Pa’aneach, only Tzafnat Pa’aneach does not have to assume Netivot’s view that all rabbinic prohibitions are only duties of obedience. It may be object-based prohibitions, and one can still say this. But then the question arises: why do I need it? What is the authority? From where? Exactly—that is what he asked earlier, and I will get to that, but I need a little time for that. It will probably be next time.

But I just want to finish with this in order to give more motivation to clarify that question. I claim that Nachmanides says the same thing too. Not me—this was said before me. Rabbi Chaim, for example, says this. Rabbi Elchanan Wasserman also brings it. Nachmanides too agrees that if you go in rebellion against the authority of the sages, you violate “do not deviate.” Nachmanides argues with Maimonides only in the ordinary case where you simply eat poultry with milk. He says: that is not a Torah prohibition; that is not in itself “do not deviate.” But if you do not in principle recognize the authority of the sages, then of course you violated the Torah-level “do not deviate.” That is what Rabbi Chaim says; that is what—he even brings a proof from Nachmanides’ wording. Fine, one can argue with the proof, but that is his claim.

Now if that is really so, then it turns out that Nachmanides did not understand Maimonides correctly? Yes. Then it turns out that there is basically a dialogue of the deaf here. In practice, Nachmanides and Maimonides are saying the same thing. Both of them are saying the same thing. What? That when you rebel against the authority of the sages, you violated the Torah prohibition of “do not deviate,” even if all you ate was poultry with milk. If you eat poultry with milk only because of desire, then you violated a rabbinic prohibition. There is no Torah-level “do not deviate” here.

And when Maimonides talks about lashes, for example, regarding “do not deviate,” then Maimonides says those lashes would apply only to someone who… the lashes that should have existed were it not for the fact that this is a prohibition linked to a warning for capital punishment by a religious court. Where is that? That is only where someone does not recognize the authority of the sages. So Maimonides says: right, that is a Torah prohibition, but even for that one does not receive lashes, because it is linked to a warning for capital punishment by a religious court. Where is it linked to a warning for capital punishment by a religious court? Where is one liable to death for “do not deviate”? The rebellious elder. Right, the rebellious elder is liable to death. Now what is the prohibition in the case of the rebellious elder? Rebellion. Obviously, in the case of the rebellious elder, the problem is one of authority, right? In the homilies of Ran, he asks this: after all, the elder is as much a Torah scholar as the Sanhedrin. He knows as much as they do; he knows they are mistaken. So why must he obey them and eat non-kosher food? So he says yes, he must. Why? Because there is authority. One must preserve the authority of the sages. So there it is clear that we are talking about the question of authority, and that is the concept of “do not deviate from all that they instruct you”—it means the matter of authority. Therefore, the prohibition for an ordinary person too, not just the rebellious elder—even an ordinary person who comes to eat poultry with milk—the Torah-level problem is only a problem of authority. It is a problem of “do not deviate,” that he deviates from the authority of the sages exactly like the rebellious elder. So concerning such a thing, for which he should have received lashes, I say he does not receive lashes. Why does he not receive lashes? Because in another context one is liable to death for this same thing. Because that authority, the obligation to obey that authority, leads to liability for death in the case of the rebellious elder. So in the case of an ordinary person, there are no lashes. That is basically the point.

Now what… let me summarize where we are so that next time I can go out from here and explain it. Because the question you asked is indeed a good one. But first I will summarize where we stand, so you can see where the whole discussion has now been funneled—to one point in the whole sugya. I began with the fact that there is a problem in grounding the authority of the sages. Either it turns into Torah law, or there is no source, and then why obey them? Right? I said there is a short blanket here. And Maimonides and Nachmanides each try to—one tries to cover the head and the legs stick out, the other tries to cover the legs and the head sticks out. It is impossible; it is a short blanket. All right? Therefore, neither of their approaches really holds up.

So where did we end up with Maimonides? That there is some intermediate conception. What does that mean? When I fail to obey the sages in principle, then I violate the Torah prohibition of “do not deviate.” When I eat poultry with milk, that is a rabbinic prohibition. Then it turns out that I do have a source from the verse “do not deviate,” and yet in doubtful cases the rule is lenient, because in fact I do not really violate “do not deviate.” Okay? So this is basically, seemingly, the only logical way out of the tangle. A priori, I should have understood that there is some such way out—not because of one textual nuance or another. But if this is the only way out of the tangle, then how can one say that Nachmanides does not say it? This is the only possibility here. Therefore it is no wonder that I come to the conclusion that in the end both Maimonides and Nachmanides say this. There is no other option on the table. All the other options lead us into problems. So the only thing left is just this option, which both Maimonides and Nachmanides say.

Now what remains for us to clarify is: why is that an option? Who says it is an option? Why—let me ask it now, your question and the question asked earlier. We have returned to the starting point. So poultry with milk, when I eat it because of desire, does not derive from “do not deviate,” right? It is not a Torah prohibition. So why must one listen to them? What prohibition did I violate? What is the problem? When I eat poultry with milk not because I am rebelling against the sages, I eat poultry with milk simply because my impulse got the better of me. That is only a rabbinic prohibition. There is no verse of “do not deviate” here, right? It does not derive from “do not deviate.” So why must one not eat it? That was the point from which we opened the whole discussion.

You can distinguish between the prohibition you violate and the source of the obligation, something like Netivot. So the source is what? So “do not deviate” does tell me to obey? But if “do not deviate” tells me to obey, then I violated “do not deviate.” If through “do not deviate” I violated “do not deviate,” then it is a Torah obligation. You violated Torah law. Why? So if I did not violate Torah law, that means “do not deviate” does not command it. So if it does not command it, why do I obey? If it does command it, then why did I not violate “do not deviate”? Either way—either it is a source, and then you are back in the tangle from which I began. If it is a source, then it becomes Torah law. If it is not a source, then why obey? So Tevuot Shor makes a distinction. Wonderful—but that distinction leaves me at the starting point. Because this rabbinic prohibition—either I have no source, because it is not “do not deviate,” and then why obey? Or there is a source, but then it is Torah law. So apparently we have not explained anything.

I will try—I will try perhaps to put it in the form of a parable, and maybe we will get somewhere else. A father tells a child, “Don’t do it,” and the child does it. But the father will not throw him out of the house, because the father still loves him; it is not that severe. In that sense the question is one of punishment. I am asking whether there is a prohibition. At the end of the day, when you violate the prohibition, then there is a prohibition! There is a prohibition. Forget the punishment; the punishment does not interest me; there is no punishment. The rabbi said that in any case, even for ordinary “do not deviate,” there is no punishment; it is something for which there are only lashes by a religious court. The whole question is whether there is a prohibition. Because if “do not deviate” applies to this, then seemingly there is a prohibition, no? I violated a Torah command, “do not deviate,” after all it applies here too. So what will you say? It does not apply here. Fine—if it does not apply here, then why must one obey? The same question with which I started this entire discussion. Basically we remain at the same point where we opened. So no, we have not remained at the starting point, and next time I will explain that point, and that will basically close it.