Lesson 3: Category 1 — The Second Root

From the book Roots Outstretched by Rabbi Michael Avraham. Translated from Hebrew using gpt-5.4 (reasoning_effort=high, batch API).

---

The Second Root

That it is not proper to count anything derived by one of the thirteen hermeneutical principles by which the Torah is expounded, or by inclusion.

A general look at the nature and force of halakhic midrash (rabbinic legal exegesis)

In this root, Maimonides drops a bomb into the field of Jewish law. He makes a claim that has generated controversy and interpretive perplexity for eight hundred years, and that has still not been fully clarified. This root deals with the status of laws derived through methods of derash (interpretive exposition). Maimonides rules here that such laws should not be included in the enumeration of the commandments. The question is whether this is a claim about the enumeration of the commandments, or a claim about the status of exegetically derived laws. In other words: are they excluded for a technical reason, because of one or another counting rule, or because their legal standing is not that of ordinary Torah laws?

Within this discussion Maimonides advances a striking thesis: these laws are rabbinic laws. At first glance, that seems to prove that they are excluded because of their legal status, not because of counting rules. Yet the commentators are divided on this point, and most traditional commentators actually incline to the other side. That is, they maintain that these laws are ordinary Torah laws, as is usually assumed, and that their exclusion from the enumeration of the commandments is only for a technical reason. By contrast, most scholars of Maimonides understand him in the first sense: that their legal standing is indeed like that of rabbinic laws. We shall propose here an intermediate model, according to which the very notion of “rabbinic” itself undergoes a transformation.

It should be noted that comprehensive examination of all of Maimonides’ statements, carried out by proponents of both of these positions, has shown that neither fully fits the overall picture. The structure we will propose here redraws the system of halakhic concepts, redefines the terms “Torah law” and “rabbinic law,” and in light of that also offers an explanation of the full range of Maimonides’ statements.

According to our approach, this root joins the previous one, and the two together constitute rules of non-enumeration based on legal force, not technical counting rules. See the introductory essay on this point.

In the course of this discussion, questions arise that touch the very foundations of Jewish law: what is meant by “Torah law”? What is the meaning of tradition? What is a halakha le-Moshe mi-Sinai (a law given to Moses at Sinai)? What is the relation between peshat (plain sense) and derash? What is the character of exegetical derivations in general, and what are the meaning and role of the thirteen hermeneutical principles and other methods of interpretation? Once again we will encounter the notion of “ramification,” as we did in the first root.

As in the previous root, an introduction is needed here regarding the nature of halakhic derash, and we will try to present the main points briefly. A considerable portion of the discussion appears in our essays from the years 2005-2006, and the rest is explained in detail in the fourth book of the quartet Shtei Agalot ve-Kadur Poreach.¹

A. Introduction: The Character of Halakhic Derash

Introduction

In this chapter we will describe the various systems of hermeneutical principles, examine the connections among them and their development, and then discuss two functions of the exegetical system, distinguishing between productive derivations and supportive derivations.

Different systems of hermeneutical principles

The earliest appearance of the hermeneutical principles is apparently in the Talmudic discussion at the beginning of chapter 6 of tractate Pesahim, which deals with the laws of the Passover offering when the eve of Passover falls on the Sabbath. There, in the Gemara, and see also the Tosefta there 4:11 and the Jerusalem Talmud there, it is described how this law was forgotten by the Benei Beteira, and Hillel the Elder, who came up from Babylonia, restored it by using several hermeneutical principles, among them kal va-homer (a fortiori reasoning) and gezerah shavah (verbal analogy).

It is known from several sources that Hillel the Elder had seven principles, which he expounded before the Benei Beteira; see the Tosefta, Sanhedrin 7:5, and the end of the baraita of the thirteen principles at the beginning of the Sifra. There are differences among the various textual versions concerning which principles Hillel had; see the comments of Rabbi ha-Nazir cited in Dov Schwartz’s essay in Sefer Higgayon. This is apparently the earliest historical point at which we encounter a formal system of hermeneutical principles.

The best-known exegetical system in our tradition is the thirteen principles of the school of Rabbi Ishmael. Their source is Rabbi Nehunya ben ha-Kanah, the teacher of Rabbi Ishmael; see Babylonian Talmud, Shevuot 26a. They are presented in the baraita of the principles at the beginning of the Sifra, which is also recited in the morning service before the verses of praise. In several places in the Talmuds, for example in the discussion in Shevuot there and parallel passages, there are hints to a parallel system of principles practiced in the school of Rabbi Akiva, whose source is Rabbi Nahum of Gimzo, Rabbi Akiva’s teacher. Those sages expounded by means of “inclusions and exclusions” rather than by Rabbi Ishmael’s method of “general and particular.”

Another system of hermeneutical principles appears in Sefer Keritut, at the beginning of part 3, Netivot Olam. Rabbi Samson of Chinon cites there the baraita of Rabbi Eliezer son of Rabbi Yose ha-Gelili, which counts thirty-two principles. See the comments of Rabbi ha-Nazir in Schwartz, note 14, that there is some ambiguity regarding their exact count. We possess no primary source for this baraita except the version cited in Sefer Keritut, and in Eisenstein’s Otsar ha-Midrashim. Some also associate this list with the school of Rabbi Akiva.

It is not entirely clear what exactly the dispute is between the school of Rabbi Ishmael and the school of Rabbi Akiva. Did each academy use an entirely different list? Or was there agreement concerning some of the principles? It is unclear on what they disagreed and on what they agreed. At first glance, the dispute seems to concern only the group of principles called “general and particular,” which Rabbi Akiva interprets through “inclusion and exclusion” rather than “general and particular.” To be sure, there are other principles about which they disagree as well; see, for example, our essay on the Torah portion Bo, 2005, regarding “two verses that contradict one another.”

Beyond that, there are many other methods of interpretation that do not appear on Rabbi Ishmael’s list. The author of Sefer Keritut counts several dozen such principles, and there are more besides. Yet it is difficult to assume that Rabbi Ishmael rejected them, for there are places in the Talmud where Rabbi Ishmael himself or his disciples explicitly use such principles. The same is true of the list of thirty-two principles of Rabbi Eliezer son of Rabbi Yose ha-Gelili, which omits some of Rabbi Ishmael’s principles; and conversely, Rabbi Ishmael’s list omits many of the principles counted there.

The relation among the different systems

As noted, the best-known list of principles is Rabbi Ishmael’s thirteen principles, appearing in the baraita that opens the Sifra:

“The Torah is expounded by thirteen principles: by kal va-homer, by gezerah shavah…”

Its relation to the other lists is not clear.²

The author of Sefer Keritut addresses the question of why Rabbi Ishmael did not count all thirty-two principles of Rabbi Eliezer son of Rabbi Yose ha-Gelili, and he proposes several types of answers, which are not mutually exclusive. Each principle may have a different reason for not being counted by Rabbi Ishmael. Throughout his detailed commentary on each principle, he also explains which of these answers is relevant in each case. The best-known explanation is that the thirty-two are principles of aggadic midrash, whereas Rabbi Ishmael’s thirteen include only principles of halakhic midrash. Yet, as noted, Rabbi Samson offers other lines of explanation as well, since there are certainly additional principles used in halakha that are not counted by Rabbi Ishmael, and yet it seems, whether by logic or by explicit evidence from Talmudic discussions, that Rabbi Ishmael accepts them too.

Rabbi Samson mentions the following possibilities there:³

1. Rabbi Ishmael’s principles are those accepted by everyone. He did not include disputed principles.³
2. Some are considered explicitly written in Scripture, and therefore were not included by Rabbi Ishmael.
3. Some are intended only to resolve the plain sense of verses, such as “a great matter is hung on a small matter,” and therefore were not included.
4. Others are principles of aggadic derash, or interpretive principles for resolving the plain sense of Scripture,⁴ but they cannot be used to derive halakhic conclusions, whether lenient or stringent.

Let us add one more important point: an explanation of principle 2 above, according to which some principles are considered explicitly written in Scripture. This principle will accompany us later as well, and so we will dwell on it briefly here. As emerges from Rabbi Samson’s detailed commentary on this baraita, his intent seems to be that some of these principles depend on superfluous words, that is, words not needed for the plain sense of the verse. The conclusion from the presence of such an extra word is that one must derive an interpretation here. Derivations of this kind are considered explicitly written in the verse, because they are the only possible interpretation of those words; without the derivation they would be redundant. Once the derivation is made, it becomes clear that the word obligates the law drawn from it, and so that law is as though explicitly written in the Torah. According to this approach, an interpretation that counts as derash is only one that comes as a “second story,” beyond the plain sense of the verse. But when a certain word has no meaning at all on the level of plain sense, then the derash is itself its plain meaning. Below we will see several important consequences of this distinction.⁵

The dispute over the origin of the hermeneutical principles

As for the origin of the hermeneutical principles, all commentators who addressed the issue agree that they fall under the category of halakha le-Moshe mi-Sinai. Thus wrote Maimonides in his introductions, for example at the beginning of his Introduction to the Commentary on the Mishnah; Nahmanides in his glosses on this root;⁶ the Raavad in his commentary on the baraita of the principles in the Sifra; Rashi on Babylonian Talmud, Pesahim 24b, s.v. “ve-im eino inyan”; and Sefer Keritut, part 1, section 1, no. 9, cites this from the responsa of the Geonim. So too all later authorities wrote.⁷

Some, however, were uncertain whether aggadic hermeneutical principles too were transmitted from Sinai. The rulings of Maimonides, the Raavad, and the commentators on the principles, that the principles are halakha le-Moshe mi-Sinai, refer only to Rabbi Ishmael’s thirteen principles. By contrast, Rashi there in Pesahim 24b says this regarding all the principles. Several later authorities followed these two approaches. See, for example, Responsa Radbaz, no. 232, and the Mevo ha-Talmud of Maharatz Hayyot, chapter 19, who maintain that all the principles are from Sinai. By contrast, the Shelah, at the end of the section on the Oral Torah, raises the possibility that only the principles of halakhic derash are from Sinai.

What all of them share, early and late authorities alike, is that in everyone’s view the principles of halakhic derash, and certainly Rabbi Ishmael’s thirteen principles, are halakha le-Moshe mi-Sinai. We should emphasize that this determination lies within the legal sphere: the force of the principles is that of a halakha le-Moshe mi-Sinai, which according to most opinions has the status of Torah law. Maimonides’ unusual view on this issue will be discussed below. But the background of the matter lies in the historical sphere: the principles were not created over the generations; they were received by Moses at Sinai.

Yet, against all of this, the overwhelming majority of scholars have held and continue to hold that the principles were developed by later generations. Most maintain that they began to take shape in the time of Hillel the Elder, and continued through Rabbi Ishmael and beyond. Their principal evidence is that within the literature of the Sages themselves there is no source stating that the principles are halakha le-Moshe mi-Sinai.

This claim is not quite accurate. For in Babylonian Talmud, Sanhedrin 99a, we find:

“Even if one says: the whole Torah is from Heaven except for this particular inference, this kal va-homer, and this gezerah shavah — this is ‘for he has despised the word of the Lord.’”

To be sure, one may distinguish between “from Heaven” and “from Sinai.” But in the discussion in Babylonian Talmud, Temurah 16a — also cited at the end of Maimonides’ discussion in this root — we find:

“One thousand seven hundred light and stringent, gezerah shavah, and scribal refinements were forgotten during the days of mourning for Moses…”

From here it seems explicit that the principles too were transmitted to Moses at Sinai, and were even forgotten during the mourning period. The same appears in several aggadic midrashim, for example the following midrash from Midrash ha-Gadol, from which David Zvi Hoffmann excerpted passages under the title Mekhilta de-Rabbi Shimon bar Yohai on Mishpatim, Exodus 21:1; see also the midrash on the thirteen principles in Midrash ha-Gadol on Leviticus, cited by Hoffmann in Birkat Avraham for the jubilee of Rabbi Avraham Berliner:⁹

“Rabbi Ishmael says: these are the thirteen principles by which the Torah is expounded, which were transmitted to Moses at Sinai.”

So too in Bereshit Rabbah, Theodor-Albeck edition, parashah 46, s.v. “and I will establish My covenant,” and in the parallel in Vayikra Rabbah, parashah 25, s.v. “Rav Huna”:¹⁰

“Rabbi Huna in the name of Bar Kappara: Abraham sat and reasoned by means of gezerah shavah… Rabbi Hanina said to him: Had gezerot shavot already been given to Abraham? I am astonished…”

This proves that the principles were regarded as something that was “given” at some stage after Abraham our father. For if the principles had developed naturally, it is unclear what would prevent us from assuming that Abraham too could have arrived at them. So there are really two claims here. First, the principles did not develop naturally and spontaneously; they were given to us from above. Second, this “giving” took place after Abraham and before the death of Moses — presumably at Sinai.

On the other hand, it is difficult to ignore the fact that the principles are indeed not mentioned before Hillel, and even with him only seven principles appear. Moreover, one can clearly discern a process of crystallization, including the appearance of disputes about them, and especially the development of two different schools with regard to methods of interpretation, namely Rabbi Akiva and Rabbi Ishmael, mentioned above. Let us recall Maimonides’ assertion that no dispute ever arose over anything transmitted at Sinai; he says this in the Introduction to the Commentary on the Mishnah and at the beginning of our root. Yet we see that disputes did arise over the system of principles over the generations, and perhaps they were even wholly forgotten by the sages of the Land of Israel in the time of the Benei Beteira. At first glance, this seems to show that they are not halakha le-Moshe mi-Sinai.

Take, for example, kal va-homer, one of the principles by which the Torah is expounded. We know that even in the Talmudic period there is dispute over the rule of dayyo, which is part of the principle of kal va-homer. Moreover, Babylonian Talmud, Bava Kamma 24a, brings sources for kal va-homer, and also for dayyo, from the Torah itself. According to Maimonides’ premises, this would seem to imply that it, like the other principles, was not really transmitted at Sinai.⁸ Yet Maimonides himself states that the principles were transmitted to Moses at Sinai and that their legal status is that of halakha le-Moshe mi-Sinai.

The principles are a different kind of halakha le-Moshe mi-Sinai

It seems very likely that the hermeneutical principles are not concrete halakhot given to Moses at Sinai in the same sense as the other such laws. Elsewhere we have shown that these principles are essentially intuitive modes of viewing the Torah, transmitted along with it from Sinai in a raw, undeveloped form, and later undergoing a process of crystallization, conceptualization, and formulation.⁹

Our conclusion is that the two pictures described above, the traditional and the scholarly, are not necessarily contradictory. It seems that the principles were not transmitted to Moses at Sinai in already crystallized form. Rather, they were modes of thought embedded within the natural reading of the Torah as it was given to Moses by the Holy One, blessed be He. God taught the Torah to Moses at Mount Sinai, and the explanations were given to him in that “language.” But it was more like a language than a fully formal system with explicitly formulated rules. Over time, forgetfulness affected the hermeneutical principles, as described regarding the mourning for Moses, because it was very difficult to transmit from teacher to student intuitive ways of seeing that were not formulated or defined. As a result of this forgetfulness, there arose an effort to establish explicit and defined rules of interpretation, just as grammatical rules arise after a language already exists and functions intuitively.

It is reasonable to assume that within this process of conceptualization and formulation, different ways of viewing these principles developed, and thus different approaches or schools arose, each using the principles somewhat differently. As generations passed, more external intuition entered into the use of these methods, and divergences developed out of differences in conception among different sages and among these academies. For that reason the need for formalization grew stronger, until the system of principles was cast into rigid and well-defined rules. In this way various systems of hermeneutical principles gradually took shape. Such systems are easier to transmit reliably from generation to generation.¹⁰

After this crystallization, the principles were divided into different categories and classified in different ways. But by this stage in the historical process there were already differences in conception between different academies regarding methods of interpretation. The process of formalization created, or at least sharply heightened, the distinction between two clear and defined schools, each grounded in a different broad and principled conception:

1. The method of “general and particular,” founded by Rabbi Nehunya ben ha-Kanah and carried on through Rabbi Ishmael and his school.
2. The method of “inclusions and exclusions,” founded by Rabbi Nahum of Gimzo and carried on through Rabbi Akiva and his school.¹¹

By the third generation of the Tannaim, the generation of Rabbi Akiva and Rabbi Ishmael, the formalization was apparently complete. That is why these methods are named after them rather than after their founders. From that point onward the sages had two distinct systems of principles.¹²

It is very difficult to find a consistent method in practical halakhic ruling with respect to these systems. If we take Maimonides as an example and examine all his rulings in passages where disputes appear between these two schools, the school of Rabbi Ishmael and the school of Rabbi Akiva, it seems at first glance that he is not consistent. Some rulings follow Rabbi Ishmael’s method, and some follow Rabbi Akiva’s.¹³

It seems that the reason is that over time a certain mixing took place between the two schools. The hermeneutical derivations are used indiscriminately by sages from both schools, and in fact after those schools disappeared, principles drawn from both continued to be used together. At that point a single exegetical system gradually emerged, synthesizing the two original systems into one unified framework, as several scholars have already noted.¹⁴ It therefore seems that by the end of the process, before the practical use of hermeneutical systems died out, a single system of derash had already formed — or perhaps several systems, each synthesizing the original two in different ways, though we know of no clearly distinct systems of that kind. It may be that on this Maimonides and the later decisors relied: in their rulings they did not take into account the particular character of the principles employed by the expositors in their various derivations, and they did not try to create a consistent structure in terms of the midrashic infrastructure underlying their rulings.¹⁵

In the years that followed, in the Amoraic period, use of the hermeneutical principles became steadily rarer. Midrash became primarily a tool for supporting existing laws rather than creating new ones; on this see below. The number of derivations found among the Amoraim, especially those that create new laws, is immeasurably smaller than what one finds among the Tannaim. After the sealing of the Talmud, the situation became even more pronounced, and an approach took hold according to which use of the hermeneutical principles ceased because the requisite expertise had been lost. There is no clear record of a formal decision to that effect, but in practice their use virtually ceased. One can still find more intuitive forms of derivation, especially supportive ones, in some later authorities as well, but this is very rare, and today it no longer exists at all.¹⁶

It is important to note that in principle there is no obstacle to any sage making use of the exegetical system. There is no source requiring that the interpreter possess formal ordination in order to use hermeneutical tools. More than that: from Maimonides’ language in several places, it appears that use of the exegetical system was not confined to founding new laws in a legislative process in the Great Court. Rather, these were tools used by judges in the ordinary work of legal decision-making. One of the tools for interpreting the Torah is the system of derash, and it is used just like considerations of plain-sense interpretation and other methods. For example, according to the author of Kin’at Soferim on Maimonides, in our root, when the Sages say that a person may not derive a gezerah shavah on his own, this does not mean that this mode of interpretation is unavailable to human beings altogether — that is, that everything was handed down from Sinai, as Rashi and most early authorities hold. According to his reading of Maimonides, the Gemara means that a gezerah shavah is entrusted only to the Great Court.¹⁷ And by implication, the other methods of interpretation are available to every sage.¹⁸

It thus emerges that the principles are a special kind of halakha le-Moshe mi-Sinai. They were given at Sinai, and their status is that of Sinaitic law, yet disputes nevertheless arose concerning them. The reason for those disputes lies in the uniqueness of how these laws were transmitted: they were not given as formulated laws, but as modes of contemplation that arise from study and accompany it. The dispute is born when those modes are conceptualized and formalized.

Productive and supportive derivations

What is the function of the hermeneutical principles? Could they create new laws — productive derivations — or did they serve only as a means of anchoring already known laws — supportive derivations? On this issue there is an old dispute that continues to this day. We will state here clearly that this dispute is illusory: there is no doubt at all that some midrashim are indeed productive. A survey of the literature of the Sages shows plainly that the other position is simply mistaken.

First approach: all derivations are supportive

Already among the early authorities we find some who support the approach that derivations always support already existing laws.¹⁹ The most prominent is Gersonides, who writes in the introduction to his commentary on the Torah as follows:

“They attached those true matters, which they had received by tradition concerning the commandments of the Torah, to those verses because they were like hints and supports for those matters. Not because they thought that those laws were actually derived from those passages. For a person could reverse all the laws of the Torah by such arguments, to the point that one could even declare a creeping thing pure, as the Sages mentioned. But we will attach them, that is, my own explanations, to the plain sense of the verses from which these laws can possibly be drawn, because that gives the mind greater satisfaction.”

“This does not depart from the words of the Sages, for they did not intend, as we said, that those laws must necessarily be derived from the passages to which they attached them. Rather, these laws were received by them from one person to another back to Moses our master, and they sought a hint for them in Scripture, as the Guide wrote in the Sefer ha-Mitzvot and in the Commentary on the Mishnah.”²⁰

From Gersonides’ words we learn that he sees the derivations as supporting existing laws, not as creating new ones. It is noteworthy that he also explains the logic behind this. In his view, one cannot place trust in these methods of interpretation, since by means of them one could overturn the entire Torah and even declare the impure pure. He does not trouble himself to bring any proof for this assertion. It is an a priori claim, based on a line of reasoning that casts doubt on the reliability and univocal force of these exegetical methods. It seems that this is the principal reason why almost everyone who follows such approaches maintains that all derivations are merely supportive.

The same is found in the Kuzari, at the end of part 3:

“One of two things: either they had hidden secrets, unknown to us, in the way they interpreted the Torah, and these they possessed by tradition, like the use of the thirteen principles; or they cited verses merely by way of support, using them as a sign for their tradition.”

So too wrote Rabbi Hasdai Crescas in the introduction to his Or Hashem:

“He left the entire body of commandments and beliefs in writing and orally, together with rules and signs — namely the thirteen principles by which the Torah is expounded — which are foundations of the Oral Torah. This is one of the mnemonic techniques, making signs for matters so that they should not be forgotten.”

Similar approaches can be found among the Geonim,²¹ and many have connected them to the polemic against Karaism.²² All of these assume that the derivations function as support, as memory aids, or as signs for the received laws, but imply that one cannot create new laws through them.

We should note that Gersonides at the end of the last quotation, and likewise Zecharias Frankel in his Darkhei ha-Mishnah, who also endorsed this approach, supported their position by appealing to Maimonides’ introduction to the Commentary on the Mishnah and to his words in our root. But this is a common misunderstanding of Maimonides.

Maimonides’ view: there are productive derivations

Maimonides writes in the fourth chapter of the Introduction to the Commentary on the Mishnah:

“It follows that the general body of laws stated in the Mishnah can be divided into these five parts. Some are interpretations received from Moses and have a hint in Scripture, or can be learned by one of the hermeneutical principles. Some are halakhot given to Moses at Sinai. Some were learned by one of the principles, and in them disputes arose. Some are decrees, and some are enactments.”

Here Maimonides divides the Torah’s laws, apart from enactments, fences, and traditions from the prophets — the last two categories are not cited here — into three main groups:

1. Laws that came down by tradition and have some scriptural basis, through hermeneutical principles or other interpretive tools. These are laws anchored by supportive derivations.
2. Laws that came down by tradition and have no basis at all in Scripture. These are the laws called halakha le-Moshe mi-Sinai.
3. Laws that have a basis in Scripture but did not come to us by tradition. These are novel laws produced by productive derivations.

The third halakhic category thus consists of laws created through productive derivations. It therefore follows that according to Maimonides, the methods of derash do indeed have the power to create new laws. This is explicit as well in his words in our root, as will be explained below. It is also explicit in Hilkhot Mamrim 2:1, where he states that every court in every generation can innovate laws and even dispute an earlier court that was greater in wisdom and number, by virtue of reasoning or derivations through the thirteen principles.²³

There are also several proofs of this from the literature of the Sages, but this is not the place to elaborate.

The problem: the ambiguity of the hermeneutical methods

If so, the words of the group of early authorities who say that derivations are only mnemonic supports are puzzling. Their basis indeed lies in the fact that these exegetical methods appear to lack logic and consistency — and that is truly a difficult problem — but their position does not withstand the test of the evidence.

We must now explain, according to Maimonides’ conception, how one can rely on such ambiguous methods to create new laws. At first glance one could thereby transform the entire Torah and turn it upside down.

The root of these problems lies in the assumption that there really is ambiguity in the use of the hermeneutical principles. Yet in the passage from the Kuzari cited above one can see a hint toward a possible solution to both problems. The Kuzari raises the possibility that in the past the sages possessed a clear, systematic, and unambiguous method for deriving interpretations, and that the fact that these methods seem so ambiguous and non-univocal to us today stems from the process of forgetfulness through which they passed. It is an art that has been forgotten.²⁴

Another note on supportive derivations

As for the meaning — legal and otherwise — of supportive derash, we cannot dwell on it here, and so we refer the reader to our essay on the Torah portion Vayishlah, 2005. In our essay on the portion Miketz, 2005, we showed that the very distinction between supportive and productive derash is itself not sharp.

B. Maimonides’ Basic Claim

Introduction

In this chapter we will examine Maimonides’ view on several levels. First we will try to determine from the various sources in his writings what exactly he is claiming. Then we will survey several approaches that have been proposed over the course of history to explain his words. After that we will examine those interpretations in several ways: in light of Talmudic sources, by logic, and in light of considerations that arise from Maimonides’ own writings.

The title of the root

Already in the title of the root, as printed in the opening page, when Maimonides formulates the principle addressed by the root, he leads us straight into a problematic point. He defines the subject of the discussion as follows: “everything learned by one of the thirteen principles by which the Torah is expounded, or by inclusion.” The definition here is not stated in general language, such as “laws that emerge from derivations.” Maimonides refers only to laws that emerge from certain specific methods of interpretation — fourteen methods: the thirteen principles and inclusion.

This immediately raises the question: what about laws that emerge through other methods of interpretation? Moreover, does Maimonides mean specifically Rabbi Ishmael’s thirteen principles? If so, why does he add the principle of inclusion? And if not, why does he mention only inclusion, when as we noted above there are many other methods beyond these?

There seem to be three principal ways to understand Maimonides’ wording here:

1. Only the thirteen principles, together with inclusion, are true methods of derash. On this view, one must explain why inclusion was added to the thirteen principles, while the other methods were not. According to this line, the other methods are presumably plain-sense interpretation, and therefore are not under discussion here.

We may already note that this interpretation becomes quite plausible if we recall Rabbi Samson of Chinon’s explanation for the absence of the other agreed-upon halakhic principles from Rabbi Ishmael’s list. We saw that Rabbi Samson claims that all the agreed-upon principles used in halakhic derivation, and not only in aggadah, that are not listed by Rabbi Ishmael are omitted because the laws learned from them are considered explicitly written in Scripture. On that basis, it is entirely possible that Maimonides too does not discuss them for a similar reason. What is explicitly written in Scripture counts as Torah law and is counted among the commandments. Therefore, the root that says that exegetically derived laws are not to be counted because they are rabbinic addresses only those laws derived through the thirteen principles — that is, those not considered explicitly written in Scripture. See further below.

2. Maimonides means all methods of derash. On this view, his expression can be read in two ways:
   – He mentions only examples. But then one must still explain why he chose specifically these examples and why he did not state his point in a more general formula, or at least add words like “and the like.”
   – The word “inclusion” serves as a collective term for all other derivations, since all derivations include various laws in various ways.

3. It is possible that the term “inclusion” in Maimonides is meant to add the interpretive methods of Rabbi Akiva, who expounded by means of “inclusions and exclusions,” in addition to the thirteen principles that characterized Rabbi Ishmael’s method.²⁵

As we saw above, in Maimonides’ rulings, and in the approach of the sages of the generations after the Amoraim, including the Amoraim themselves, there is an attempt to unite the two academies and to create from them one comprehensive system of derash. We saw above that this may also be Maimonides’ assumption in his various rulings. If so, here he simply continues in that direction and lists the full range of methods from both those schools as expressing the whole exegetical system.

The opening paragraphs of the root: the essentials of Maimonides’ view

Maimonides begins the root by referring to the division of laws into five types, as he himself writes in his Introduction to the Commentary on the Mishnah, as mentioned above. We will cite his wording in the first three paragraphs, for there he lays down his doctrine on this grave issue. This is his language:

“We have already explained in the introduction to our work, the Commentary on the Mishnah, that most of the laws of the Torah are derived through the thirteen principles by which the Torah is expounded; that a law derived by one of those principles is sometimes subject to dispute; and that there are laws which are interpretations received from Moses, about which there is no dispute, though they bring proof for them through one of the thirteen principles. For it is among the wisdom of Scripture that one may find in it a hint pointing to that received interpretation, or an analogy indicating it. We have already explained this matter there.”

This paragraph briefly explains the three categories of laws set out in the introduction to the Commentary on the Mishnah:

1. Laws received by tradition and anchored in Scripture — supportive derivations.
2. Laws received by tradition and without any scriptural anchor, namely halakhot given to Moses at Sinai. These are not mentioned here explicitly, since this root does not deal with them directly. Below we will see that indirectly this category too is addressed.
3. Laws that have an exegetical anchor in Scripture but were not transmitted by tradition from Moses our master — productive derivations, and with respect to these disputes arose.

In his Introduction to the Commentary on the Mishnah, Maimonides does not address at all the legal status of the different kinds of laws. He merely classifies them by source. Here, in this root, he is apparently dealing with classification by legal status, and with the implication of that classification for including such laws in the enumeration of the commandments.

Yet, as we already noted above, there was room to understand this principle in two different ways:

1. The legal status of laws learned through methods of derash is rabbinic.
2. This is only a methodological classificatory matter, even though their status is that of Torah law.

Below we will see that the commentators on Maimonides disagreed in understanding his words in this root between these two possibilities.

In the next paragraph Maimonides continues and draws a conclusion:

“Since this is so, not everything that the sages derive by inference from the thirteen principles is to be said to have been told to Moses at Sinai. Nor is everything that we find in the Talmud supported by one of the thirteen principles to be called rabbinic, for sometimes it is a received interpretation.”

At the beginning of this paragraph it seems, at first glance, that Maimonides is dealing with a historical question: whether these or those laws were said to Moses at Sinai. That still seems not to be a direct discussion of their legal status, as we noted in the essay on the first root. But in the second half of the paragraph he contrasts “said to Moses at Sinai” with the concept “rabbinic.” This latter concept is not merely historical; it has clear legal significance. It thus appears that Maimonides is stating here, albeit somewhat obscurely, that some of the laws that arise from derivations — those for which we have no tradition, category 3 — are rabbinic laws. If so, the fact that they are not counted is a result of their legal standing. This suggests that in this root Maimonides is trying to establish a substantive principle, not merely a methodological one.

In this paragraph Maimonides ties this division to the division between the two kinds of laws made at the outset of his remarks, in the first paragraph. He determines that laws transmitted by tradition and having a scriptural anchor through derivation are Torah laws, whereas laws created through derivation but not transmitted by tradition are rabbinic laws. How are we to distinguish between these two kinds of law? Maimonides addresses this in the third paragraph:

“Therefore the proper rule here is that anything you do not find written in the Torah, and you do find in the Talmud that it was learned by one of the thirteen principles — if they themselves made it clear and said that this is the essence of the Torah, or that this is from the Torah, then it should be counted, for the transmitters said that it is from the Torah. But if they did not explain this and did not say so, then it is rabbinic, for there is no written text indicating it.”

Maimonides rules that a law derived by midrash is rabbinic unless we find in the Talmud an explicit statement that it is a Torah law. At first glance, when we have no clear proof of the status of a given law, we should not be able to determine with certainty that it is rabbinic. We would seemingly have to remain in doubt, and perhaps even be stringent out of doubt.²⁶ Nahmanides already noted this in his glosses on this root.

Yet Maimonides’ wording here implies that he intends a categorical ruling. This is not a law arising from doubt but a certain determination: whenever we do not have a source in the Talmuds that the law derived through the hermeneutical principles in question is Torah law, we conclude with certainty that it is rabbinic law. This also emerges from his famous responsum concerning the laws of marriage,²⁷ where he writes:

“And in those chapters, that is, in the roots, in our root, I explained that not everything learned by inference, or by kal va-homer, or by gezerah shavah, or by one of the thirteen principles by which the Torah is expounded, is a law of the Torah, unless the sages explicitly say that it is from the Torah.”

It therefore appears that Maimonides intends here a categorical rule of classification.

The different understandings of Maimonides’ view

As noted, Maimonides’ commentators, early and late, disagreed in their understanding of his words in this root. Four main camps can be identified among them:³¹

1. Those who understand Maimonides to mean only a methodological principle. According to this group, Maimonides regards laws derived from derash as full Torah laws in every respect. Only the term “words of the Sages” distinguishes them, but it does not necessarily have any legal consequences. The sages are the ones who learned these laws, and therefore they are called by their name.

Some proposed a few legal consequences, but these appear only in minor points that do not reflect a substantive characterization; substantive consequences move us into group 3 below. At the head of this camp stands the Tashbetz, part 1, nos. 1 and 151. Alongside him are the Rashba, part 2, responsum 230, and see also part 1, no. 185; Rabbi Daniel ha-Bavli, in his correspondence with Rabbi Abraham son of Maimonides in Ma’aseh Nissim; the Maggid Mishneh on Hilkhot Ishut 1:2; the author of Megillat Esther on this root; and after them the author of Dorot ha-Rishonim, volume 4, pp. 514-542; Rabbi Akiva Eiger, responsa and rulings no. 94; the Shakh; the Noda bi-Yehudah; and with them most later decisors and commentators on Maimonides.

As Neuwirth shows, almost all of them interpret Maimonides in this way so that he not depart too far from accepted doctrine, rather than because of interpretive considerations internal to Maimonides’ own words.

According to this approach, the expression “words of the Sages,” or “rabbinic,” in Maimonides’ words in this root expresses only the source of the law. See, for example, Maimonides’ Commentary on the Mishnah, Kelim 17:12, cited below, where he explains this almost explicitly. It does not necessarily express its force or legal status. It is so called because the sages are the ones who exposed these laws to us, by means of exegetical tools. But the legal standing of such laws, according to this approach, is that of Torah laws.

2. Those who understand Maimonides literally: laws produced by productive midrashim are genuinely rabbinic laws. At the head of this camp stands Nahmanides in his glosses on this root. In light of Maimonides’ responsum, where he repeats what he said here, Nahmanides writes that according to Maimonides it follows that if a man betroths a woman with money — and such betrothal is, according to Maimonides, only by “words of the Sages,” as explained in Hilkhot Ishut 1:2 and in that responsum — then if he has relations with her, neither he nor she is liable to stoning. So too the Rivash, responsa 14 and 163; the Raavad at the end of chapter 3 of the laws of marriage; the Rashba, part 2, responsum 23, apparently in tension with his responsum cited above; the Maggid Mishneh on Hilkhot Ishut 4:6, apparently in tension with his comments on the laws of marriage; Lev Sameah on this root; Divrei Emet, pamphlet 8, “Kuntres Divrei Soferim,” at the end of the book;²⁸ and see also the Shakh, Hoshen Mishpat 33:1.

In addition, this understanding is supported by most of those who know and understand the Arabic original in which the roots were written. They argue that the term Maimonides uses is the ordinary halakhic term for rabbinic laws. On that basis they also reject the term “words of the Sages” as a unique label for these laws, as many others proposed. Most academic scholars adopt this position.²⁹ Neuwirth goes furthest, labeling group 1 “the method of forced interpretation.”

3. Some divide the various laws into two classes: some have the standing of rabbinic law, and some the standing of Torah law. See, for example, the Lehem Mishneh on Hilkhot Ishut 4:6; some used this to explain the apparent contradiction in the Maggid Mishneh. Also Rabbi Bezalel Ashkenazi, responsum 18, who distinguished between laws derived by gezerah shavah, which are Torah law, and laws derived from other principles, which are rabbinic. In Neuwirth’s terminology this is the “restricted forced-interpretation method.”³⁰

One possible way to ground such an approach in Maimonides is the possibility noted in the previous chapter: that everything Maimonides says in this root concerns only laws derived by the thirteen principles, and perhaps inclusion, but not all derivations whatsoever.³¹

Such a claim would have to be tested systematically throughout the Mishneh Torah. In practice there is no hint of such a direction in Maimonides’ words, and so it is rather strained. True, the distinction between the thirteen principles and all the others has some support in the title of the root, where Maimonides speaks of the thirteen principles and inclusion. Even so, it is hard to see this as a full answer to the difficulties we will raise below.

4. Those who understand Maimonides here as defining a third halakhic category, which some call “words of the Sages”; see Rabbi Tam Ibn Yahya in his Ohalei Tam, no. 83, cited in Lev Sameah here.³² This category lies between Torah law and rabbinic law. This standing finds expression in legal consequences, some like Torah law and some not. Here too different proposals have been made regarding the legal consequences of such a category.

An example may be seen in the Kesef Mishneh on Hilkhot Ishut 1:2, who, unlike the Maggid Mishneh there, proposes legal consequences for the category “words of the Sages”; see also Kesef Mishneh on Hilkhot Tum’at Met 5:5. Rabbi Rabinovitch follows this route as well in his essay cited above. One may also include here the consequence mentioned by the author of Dorot ha-Rishonim: the law of the rebellious elder does not apply to laws created by the sages’ own reasoning, since any court in any generation may dispute them.³³ The law of the rebellious elder applies only to laws that the court announced to be the essence of Torah; according to his view, recall, there are only supportive derivations.³⁴ But these are technical rather than substantive considerations, and therefore these views might also be classified under group 1.

Some understood Maimonides to mean that these are Torah laws, but of lower force. See Lev Sameah here, Divrei Emet, “Kuntres Divrei Soferim,”³⁵ and below. These too speak of some kind of intermediate view. We will expand and detail this direction below, and then the depth of Maimonides’ innovation will become clear.

Types of difficulties in Maimonides’ view, and the various responses to them

Each of these approaches must be tested on three levels: by logic, against Maimonides’ own language and references, and against the facts in the Talmuds. Accordingly, these tests generate three different kinds of difficulty for the various approaches:

1. Testing Maimonides’ language here and in other sources raises interpretive difficulties: internal contradictions or failure to fit Maimonides’ own words.
2. Logical examination raises substantive difficulties.
3. Examination against the Talmud raises empirical difficulties, that is, contradictions from different Talmudic sources.

In the following chapters we will try to identify the various considerations arising in the examination of Maimonides’ view, and the various responses proposed by the commentators. Out of all this we will attempt to extract a consistent method in Maimonides’ severe statements here.

C. Arguments for the Different Directions from a Survey of the Sources in Maimonides’ Writings

Introduction

The sources in Maimonides’ writings that bear directly on our subject are five:

1. His responsum on the laws of marriage.
2. The Mishneh Torah.
3. The Introduction to the Mishnah.
4. The Sefer ha-Mitzvot.
5. His words in the present root.

Each of these raises several difficulties, and a comprehensive examination of all this material is what produces the uncertainty among all commentators regarding the intent of Maimonides’ words. We cannot discuss all those difficulties in detail here, and so will touch on them as briefly as possible.

Let us note already that some tried to resolve the contradictions and part of the difficulties by claiming that Maimonides later retracted what he wrote here in his halakhic code. But this route is impossible, because when Maimonides was asked about the meaning of his words at the beginning of the laws of marriage, he referred the questioner back to his words in the second root — and he did so in a responsum, mentioned above, written after the Mishneh Torah had already been completed and circulated. Thus Maimonides retained this approach even when writing the Mishneh Torah, and one cannot say that he retracted it.

The absence of application of the principle stated in this root

Maimonides states at the beginning of this root and in the introduction to the Mishnah that “most of the laws of the Torah are derived through the thirteen principles by which the Torah is expounded.” He later writes in this root, in one of his objections to the Halakhot Gedolot, that if one were to count all the laws derived by the thirteen principles, “the number of commandments would rise to many thousands.”

In addition, in his famous responsum on betrothal by money in the laws of marriage, he writes:

“And there is nothing called ‘from the Torah’ except something explicit in the Torah, such as mixtures of wool and linen, diverse species, Sabbath, and forbidden sexual relations, or something that the sages said is from the Torah — and these are only some three or four matters.”

If so, there are thousands of laws derived through the various hermeneutical principles, and all of them, with only a tiny handful of exceptions — “three or four matters only”³⁶ — should, according to Maimonides, be classified as words of the Sages, whereas other decisors treat them as Torah laws. This should be reflected both in the enumeration of the commandments, though there other counting considerations also come into play, such as the fact that a given law may already be included in another counted commandment, and the like, and in the law as codified in the Mishneh Torah. If so, all these many thousands of places should have appeared in his code as rabbinic laws rather than Torah laws.

There are indeed a few isolated places throughout the Mishneh Torah where Maimonides surprises us and declares that a certain law is “from the words of the Sages” and not from the Torah.³⁷ But each of these sources is disputed by the commentators, and their total number is still nowhere near the picture just described.

This difficulty would seem to support understanding 1: that Maimonides means these laws are Torah laws, and the description of them as rabbinic refers to their source rather than to their legal force.

Yet if we take seriously those places where Maimonides does apply the principle of this root, it appears that the picture cannot be sweeping in either direction, neither 1 nor 2. There seems to be some division among the laws, corresponding to direction 3 above, and only a minority are regarded by Maimonides as rabbinic laws.

We cannot examine Maimonides’ words in all those places here, since each requires separate study, and one must of course address the controversies among commentators and scholars on the different issues, including textual problems and claims that Maimonides retracted, for example, what he says at the beginning of the laws of marriage. As stated, retraction from the fundamental conception of the root itself is out of the question. Therefore we will deal here briefly only with the source in the laws of marriage.

A brief discussion of the ruling at the beginning of the laws of marriage

With respect specifically to Maimonides’ ruling at the beginning of Hilkhot Ishut that betrothal by money is from the words of the Sages — and Maimonides himself says in the above responsum that this ruling reflects the principle of our root — one can bring several proofs showing beyond doubt that he rules that the force of betrothal by money is that of Torah law, as the Tashbetz held.

This is clear already in the very next law in Maimonides there, 1:3:

“Once the woman has been acquired and become betrothed, even though the marriage has not been consummated and she has not entered her husband’s house, she is a married woman; whoever has relations with her, other than her husband, is liable to death by the court; and if he wishes to divorce her, she requires a bill of divorce.”

These are clear and explicit words, already in the text we possess, even before Rabbi Abraham’s correction. In betrothal by money she is a married woman for purposes of capital liability for one who has relations with her, and for the requirement of a divorce document.

Some brought another proof for the Tashbetz from Maimonides’ rulings on doubtful cases: he rules stringently with respect to betrothal by money, even though the rule is that in doubtful rabbinic matters one is lenient; see, for example, Hilkhot Ishut 3:10 and elsewhere. The author of Dorot ha-Rishonim himself adduces proof from Hilkhot Ishut 3:20, where Maimonides writes: “The law of money is Torah law, but its interpretation is from the words of the Sages,” though see there the Kesef Mishneh, who emends the wording.

Rabbi Rabinovitch brings another proof for the Tashbetz from another passage in Maimonides.³⁸ In Hilkhot Mamrim 4:2 Maimonides writes:

“And how is there a matter that can lead to something for whose deliberate violation one is liable to karet and for whose inadvertent violation one brings a sin offering? … If they dispute a matter of monetary law… according to the one who says this one is liable to that one, whatever he took was taken lawfully, and by authority of the court. According to the one who says he is exempt… whatever he took is robbery in his hand, and if he betrothed a woman with it she is not betrothed. But according to the one who says he took what was his, if someone has relations with her deliberately he is liable to karet, and if inadvertently he brings a sin offering. Thus the matter leads to something for whose deliberate violation one incurs karet and for whose inadvertent violation one brings a sin offering.”

Maimonides’ language proves that betrothal by money, although he calls it “from the words of the Sages” at the beginning of the laws of marriage, takes effect as Torah law. Therefore one who has relations with her deliberately is liable to karet, and if inadvertently, to a sin offering. As Rabbi Rabinovitch notes, this law has no textual variants, and it was written before Maimonides decided on any change of wording in the laws of marriage, if indeed there was such a change.

At first glance, this proves that the legal force of exegetical laws that Maimonides calls “from the words of the Sages” is in fact that of Torah law, as in direction 1.³⁹

Now in the Sefer ha-Mitzvot, positive commandment 213, Maimonides writes:

“The 213th commandment is that we were commanded to have relations by way of betrothal, and to place something in the woman’s hand, whether money, a document, or by intercourse. This is the commandment of betrothal. The allusion to it is the verse, ‘When a man takes a woman and has relations with her,’ which indicates that he acquires her by intercourse. And it says, ‘and she goes out and becomes,’ just as going out is by document, so becoming is by document. So too we learned that she is acquired by money from the verse regarding the Hebrew maidservant, ‘there is no money’ — they said: there is no money to this master, but there is money to another master, namely the father. But betrothal by Torah law is made explicit through intercourse, as is explained in places in tractates Ketubbot, Kiddushin, and Niddah. The laws of this commandment are fully explained in the tractate attached to it, namely Kiddushin. And it is explicitly said: ‘betrothal by intercourse, which is from the Torah.’ Thus it has been clarified that the commandment of betrothal is from the Torah.”

At first glance this suggests that all the forms of betrothal are Torah law. Some attributed this to Maimonides having retracted, as recorded by his son Rabbi Abraham in Birkat Avraham.⁴⁰ On the other hand, Maimonides goes on to specify that only intercourse is explicit, while the others are learned through derivations. This seems to be a contrary statement. Yet even if he means what he says in the second root, we saw there, and in greater detail in the responsum, that he distinguishes between money and document — a distinction not found here at all. This seems to imply that only intercourse is Torah law.

Maimonides’ language suggests that his intention is to say that there is a commandment to betroth a woman, regardless of the method by which it is done, unlike the early authorities who held that there is no commandment of betrothal, only a preparatory act for the commandment of procreation. His proof is from betrothal by intercourse, which is explicitly said to be from the Torah. Yet the commandment is fulfilled in all three ways by force of the derivations. The difference between the methods concerns only the source of their force: one is explicitly written, and the other two emerge from derivations.

Perhaps one might object that in truth the force of betrothal by money is only rabbinic, while the commandment to betroth a woman — not the legal effect of the betrothal, but the commandment to betroth — is fulfilled on the Torah level.⁴¹ Indeed, at the beginning of this commandment Maimonides speaks of a commandment, whereas later he speaks of whether the woman is acquired by these methods, and there he introduces the distinction.⁴² Still, the distinction here does not seem to concern legal force. For if betrothal by money were only rabbinic, how could the Torah commandment be fulfilled by means of it? And why is there no distinction here between money and document?

It therefore seems that the simple conclusion is that Maimonides means there is a Torah commandment of betrothal, since this is proven from intercourse, which is explicit in the Torah. Some of the details of the ways of betrothal, however, are learned from the words of the Sages.

In sum, at least regarding betrothal by money, it is very difficult to deny that Maimonides means this is Torah law.

Does this really prove direction 1?

Many commentators, ancient and modern, inferred from here the sweeping conclusion that the legal standing of all laws derived from midrash is Torah-level. As noted, this law in the laws of marriage is the only one about which there is no dispute that it is tied to the second root, since Maimonides himself says so in the responsum. It therefore seems to prove that this is indeed his intention, and thus supports the Tashbetz’s view, direction 1.

But it seems that this proof should be rejected. In light of what we saw from Maimonides’ language in Sefer ha-Mitzvot, positive commandment 213, it is certainly possible to say that Maimonides holds that betrothal is a Torah law, but that some of its details are learned from derivations, and are therefore called “words of the Sages.” This is explicit in Maimonides’ language in Hilkhot Ishut 3:20, though see there the Kesef Mishneh:

“If one betroths by intercourse, this is Torah betrothal; and likewise by document she becomes betrothed by Torah law, just as a document effects and dissolves, as it is said, ‘and he shall write her a bill of divorce,’ so too it effects and brings her in. But money is from the words of the Sages — and the law of money is Torah law, but its interpretation is from the words of the Sages — as it is said, ‘when a man takes a woman,’ and the sages said: such taking shall be with money, as it is said, ‘I have given the money for the field; take it from me.’”

Thus it appears that the law of money is a Torah law as part of the general laws of betrothal, while its interpretation is from the words of the Sages. Betrothal by money is learned from the words of the Sages, but its law is like Torah law. Not because every “word of the Sages” is Torah law — if that were so, why would Maimonides find it necessary to say this specifically here, according to this textual version? It seems rather that this is a specific statement about betrothal by money. Maimonides’ intention is that since betrothal itself is from the Torah, all the details learned by derivation are subsections of the law of betrothal, and therefore all count as Torah laws. The derivation reveals a detail within an existing commandment. But where there is a truly new law, one that is not a detail within an existing commandment, and it is learned by derivation, its force can indeed be rabbinic.⁴³

This claim undercuts any possibility of proving anything from the law of betrothal by money one way or the other. Moreover, it is very difficult to show what counts as a genuinely new law and what counts as a subsection within an existing law. Therefore it will be difficult to prove from any place in the Mishneh Torah what Maimonides’ view is on this.

In any event, if our words are correct, this would explain why so few laws generally accepted as Torah laws appear in the Mishneh Torah as rabbinic laws, as noted in the previous section. The reason is that most of them are details within Torah laws, and therefore their force is like Torah law.

The Sefer ha-Mitzvot

Nahmanides, in his glosses here, points to a whole series of commandments that Maimonides counts in his Sefer ha-Mitzvot even though they are learned from inclusions. He mentions, for example, prohibitions 287, 322, 145-149, 124, 135, 196, 76, 91-94, 187. Rabbi Perlow also notes this in his comments on the second root.

It should be stressed that this is a difficult objection even according to direction 1, the Tashbetz’s view, as well as the other directions within Maimonides. For even if there is no difference in force, Maimonides explicitly states with respect to the enumeration of the commandments that what is learned from derash should not be counted. Yet in all these cases he did count such commandments.

We cannot enter into the details of each case, and so let us state the matter only generally. These objections can be answered in two ways:

1. For some of these prohibitions, Maimonides may have had a source that the Sages treated them as Torah prohibitions. Nahmanides argues at the end of his remarks that we do not find such a source, but it is hard to see how he could establish such a claim.⁴⁴
2. Some of them may be derivations that interpret existing laws, and therefore yield Torah laws, as we saw above regarding betrothal by money.

Indeed, we find at least several clear examples of this type. For instance, prohibition 322, that judicial execution does not override the Sabbath, can be read as a prohibition that is a detail within the laws of the Sabbath and the laws of the court. Likewise prohibitions 145-149 regarding eating sacrificial meat outside the curtains can be read as derivations teaching details within the laws of sacrifices.

To be sure, this requires further specification, because if these derivations are really interpreting already counted commandments, then they should have been included within those commandments rather than counted separately. Yet we do find many commandments that are counted even though they are details of other commandments, and these are only some of them. This is the route taken by the author of Lev Sameah on this root.

Proofs from Maimonides’ own criterion

At the end of his discussion in the second root, Maimonides writes:

“But what will indeed be counted is that which was a received interpretation from Him, namely where the transmitters explain and say that this act is forbidden and that its prohibition is from the Torah, or they say that it is the essence of the Torah. Then we count it, because it is known through tradition and not through inference. The mention of the inference there, and the proof brought for it through one of the thirteen principles, serves only to display the wisdom of Scripture, as we explained in the Commentary on the Mishnah.”

Here Maimonides is discussing the criterion for inclusion in the enumeration of the commandments, which is a classificatory question, not necessarily one of force and legal status. Yet within this discussion he says that one must count what the Sages said has “a prohibition from the Torah.” This implies that the criterion concerns the force of the prohibition. If not, as the Tashbetz held, they should have said not that its prohibition is from the Torah, but that its command is from the Torah. From this it clearly emerges that the exception Maimonides makes for laws derived through derivations that are nonetheless Torah law depends on their legal standing. In other words, it cannot be that there is a prohibition which the Sages call Torah-level and yet it falls under the principle of the second root. The conclusion is that the second root deals with laws whose force is rabbinic, not merely laws whose source is from the words of the Sages. This appears to support directly Nahmanides’ understanding of Maimonides, namely direction 2 above.

This proof is reinforced by two further considerations. First, the term “Torah law” in the Talmud, even if in Maimonides it does not always appear in the context of clarifying a legal implication, clearly denotes legal standing, not some meta-halakhic semantic point. It refers to force, not source. How, then, can Maimonides, who is known for the precision of his formulations, use the same term in a different sense without defining that sense for us?

More than that: Maimonides repeatedly relies on the language of the Sages in the Talmud for his determinations regarding the enumeration of the commandments. One might explain that he cites them only as linguistic evidence. But when the Sages in the Talmud use the term “Torah law,” they plainly mean Torah-level force, not merely source. If so, their words prove only the legal status of the law under discussion, not its source. How then can Maimonides bring their language as evidence for his own question?

At first glance one could say that Maimonides understands the Talmudic usage in the same way he understands his own — that even in the Talmud the terms “Torah law” and “rabbinic law” concern the source of the law, not its force. But it is unlikely that Maimonides understands the Talmud itself in that way. Even if he wishes to found a different usage for those terms, it would be hard for him to deny that in the Talmud they denote legal standing.

Thus the criterion Maimonides proposes to distinguish between Torah and rabbinic laws is a criterion bearing on legal standing rather than on source. One can add other similar examples from the Sefer ha-Mitzvot.

In positive commandment 175, which Nahmanides mentions at the beginning of his glosses, where Maimonides discusses the commandment to follow the majority, he proves that it should be counted by citing the Sages’ language, “majority is Torah law.” This expression appears in overtly halakhic contexts, that is, that the legal force of following the majority is from the Torah. And beyond that, the expression “Torah law” in the Talmud certainly expresses legal force, not merely a question of legal source.

Likewise in prohibition 199 Maimonides cites from Babylonian Talmud, Pesahim 4b, “leaven from the sixth hour and onward is Torah law,” or from Pesahim 2b, “so as not to touch a Torah prohibition.” It is very difficult to say that Maimonides thinks the Talmud itself intends in the expression “Torah law” a methodological rather than halakhic point.

Again, in prohibition 135 Maimonides brings proof from a halakhic statement, not merely from language, since he relies on the fact that the Sages enact a decree to safeguard an exegetically derived law — they forbid a person whose foreskin has been artificially drawn forward out of concern for an actual uncircumcised person with respect to terumah — in order to prove that it is a Torah law. Thus he relies on a legal consequence, not on a linguistic formula, which is not even present there in the sugya.

In several commandments in the Sefer ha-Mitzvot Maimonides notes that he counts them despite the second root. The reason for this exception is that the Sages said they are from the Torah, according to the criterion just discussed. Interestingly, all of them are negative commandments: 135, 194, 199, and 336. In the first three, Maimonides justifies counting them by using language that concerns their legal standing, for example, that “their prohibition is from the Torah.” Yet the point seems even clearer in prohibition 194 regarding wine of libation. There Maimonides proves that it must be counted among the commandments from the laws of nullification by majority, which is an unmistakably halakhic plane. Still, careful attention to Maimonides’ wording there suggests that he is speaking specifically on the semantic plane rather than the legal one.

So too in prohibition 181 Maimonides adds, regarding domesticated animals and wild animals that are trefah and were slaughtered properly, that one who eats them “is flogged rabbinically.” Later authorities already noted, from Maimonides’ ruling in Hilkhot Ma’akhalot Asurot 4:6-9, that he rules it is forbidden and one receives lashes on the Torah level.⁴⁵ Therefore they all wrote that Maimonides must have retracted, and thus in his code he rules that one is flogged under Torah law.

But according to direction 2 there is no need at all to say that Maimonides retracted. Rather, it appears that Maimonides means that one receives the standard forty lashes, even though the source, not the force, is rabbinic — that is, derived through a midrash. Indeed this is suggested by his wording there: he does not say “receives disciplinary lashes,” but “is flogged rabbinically.” Moreover, it is not his way casually to insert into the list of commandments details whose prohibition is merely rabbinic and whose penalty is only disciplinary lashes. It therefore seems that he means ordinary Torah lashes, but that the source of the prohibition is “rabbinic.”

If so, these two latter places seem specifically to indicate that Maimonides means that a prohibition learned through derivation is Torah law, not rabbinic. That would make the second root a claim about source, not force — thus agreeing with the Tashbetz rather than Nahmanides.

But this conclusion contradicts what we established earlier. How are we to understand the fact that Maimonides deals only with the question of source, and yet repeatedly uses language that among the Sages denotes legal force? And how are we to explain the fact that the language of the Sages itself serves as Maimonides’ criterion for counting? And likewise the fact that Maimonides himself generally uses such language with respect to legal consequences?

The unavoidable conclusion from this discussion is that Maimonides indeed thinks that even among the Sages the terms “Torah law” and “rabbinic law” indicate source rather than legal force — or at least, not only legal force. More than that, it appears that Maimonides does not distinguish at all between these two meanings of the terms, as descriptions of source and as descriptions of legal force. When Maimonides brings proofs from the language of the Sages that commandments should be counted, he understands that the Sages are speaking about legal force, but in his view the legal force derives from the source of the law. The primary discussion is always about source, and only afterward about force. At most, the force derives from the source: a law whose source is “rabbinic,” or “from the words of the Sages,” has rabbinic force as well; and conversely, a law whose source is from the Torah has Torah-level force as well. Such an approach explains all that we have seen so far. From Maimonides’ words in the root itself, it is clear that most of his claims concern source rather than force, but on our account that does not matter, because he does not distinguish between these two questions.

And yet legal consequences: warning by inference

To convince the reader that Maimonides projects his historical distinction onto the plane of legal force as well, we must cite sources where Maimonides himself addresses such questions. Up to this point we have not seen a direct legal consequence of classifying some commandment as “from the words of the Sages.” Throughout his remarks he does state that the force of these laws is “rabbinic,” as at the beginning of the laws of marriage and in our second root, but nowhere does he spell out a legal consequence. For example, nowhere does Maimonides write that doubt regarding such commandments is treated leniently, or any similar legal consequence. This leaves room for the adherents of direction 1, who claim that the statement that these laws are from the words of the Sages is only a historical-methodological claim, not a halakhic one.

Nevertheless, we do find several places where there is a legal consequence to this classification. In his introduction to the Sefer ha-Mitzvot Maimonides rules that if a punishment is explicit in the Torah but the warning is based on a derivation, one does punish for that prohibition, and this does not contradict the rule that one may not formulate a warning by inference. That rule applies only when no punishment is stated and we want to issue a warning that there is a prohibition on the basis of the hermeneutical principles.

Two determinations follow from this:

1. When a warning is based on a derivation through the hermeneutical principles, it is not regarded as a warning, and therefore one does not punish for that prohibition, since the accepted rule is that there is no punishment unless there is a prior warning.⁴⁶
2. If the punishment itself is explicit in the Torah, then even a warning based on a derivation suffices.

This proves clearly that Maimonides is not speaking only about a meta-halakhic methodological question, as the Tashbetz and his school wished to claim. As Nahmanides also understood him in his glosses, Maimonides sees legal consequences in classifying these laws as being from the words of the Sages. One cannot issue a warning on their basis, and therefore presumably cannot punish on their basis either, since one does not punish by inference.⁴⁷

Example: Maimonides on gezerah shavah as a warning

In Mishnah Yoma 8:1 it is explained that one who eats and drinks on Yom Kippur in one lapse of awareness is liable for one sin offering, but one who eats and also performs labor on Yom Kippur in one lapse of awareness is liable for two sin offerings. Maimonides, in Hilkhot Shegagot 6:5, brings the law that one who eats and drinks is liable for one sin offering, but does not bring the second law.

Perhaps this can be explained in light of Babylonian Talmud, Keritot 3b, which writes that if two prohibitions are learned through gezerah shavah, slaughtering and offering up, they count as two prohibitions. Maimonides does not rule this way, and it may be that in his view there is only one prohibition.

Indeed, we find in two places that Abaye holds that what is learned through gezerah shavah is counted as one prohibition with its source:

1. Babylonian Talmud, Sanhedrin 54b, in Rashi s.v. “ela mena lan,” and so rules Maimonides in Hilkhot Shegagot 5:3.
2. Babylonian Talmud, Sanhedrin 34b, regarding slaughtering and sprinkling, and see Rashi there.

To be sure, in the case of slaughtering and sprinkling, both are learned from an analogy to offering up, not one from the other, so the comparison might be challenged. But the Ran there in his novellae writes that the same applies to sprinkling and offering up; see also Maharsha there.

Within Maimonides one may ask whether the reason they are not counted as two prohibitions is that they are regarded as one, or because what is learned through gezerah shavah is not in general Torah law, and so only the written prohibition exists, not the learned one. The difference would bear on the second source above, where two gezerot shavot are involved, not a verse and a gezerah shavah.

From Maimonides’ omission of the law of one who ate and performed labor, it would seem that he held that the warning for the prohibition of affliction comes from a gezerah shavah to labor, and therefore he does not count them as two. On the other hand, in the enumeration of the commandments Maimonides counts these two prohibitions separately. This would seem to prove that they are not learned from one another, nor by gezerah shavah.

Yet we saw above that when a punishment is written explicitly, then even a warning derived by gezerah shavah is counted in the enumeration of the commandments. But perhaps for the purpose of receiving two sets of lashes it is still regarded as one, because in the end it derives from a gezerah shavah to labor. Thus there is indeed a prohibition, but not punishment, and this is a consequence of the fact that the warning comes from a derivation.

From this we learn that Maimonides treats all the principles as forms of warning by inference, and further, that when there is warning by inference and an explicit written punishment, that suffices for us.⁴⁸

Halakha le-Moshe mi-Sinai

We find another source where Maimonides uses the expression “words of the Sages” in a way that seems to concern the source of the law, but on closer inspection appears to concern legal force as well.

This appears in his Commentary on the Mishnah, tractate Kelim 17:12:

“I must mention here a rule of great practical benefit. They said in the Tosefta: with an olive’s bulk of a corpse and with a lentil’s bulk of a creeping thing, if there is doubt whether the requisite quantity is present or not, its doubt is impure; for anything whose root is from the Torah but whose measure is from the words of the Sages, its doubt is impure. Remember this rule, for by it you will know in every case where you have doubt about some measure whether to be stringent or lenient. And do not let their saying ‘its measure is from the words of the Sages’ mislead you, despite the rule we possess that all measures are halakha le-Moshe mi-Sinai. For everything not explained in the language of the Torah is called ‘from the words of the Sages,’ even matters that are halakha le-Moshe mi-Sinai. For ‘from the words of the Sages’ can mean either something received by the Sages, like all interpretations and laws received from Moses, or an ordinance of the Sages, like all enactments and decrees. Remember this as well.”

We see here that halakha le-Moshe mi-Sinai is regarded by Maimonides as “from the words of the Sages.” But here we also see that this has a legal consequence: its doubtful cases should be treated leniently. In the cited example that does not happen because the law has a root in the Torah and only the measure is from a Sinaitic tradition. But by implication we learn that a law whose entirety is halakha le-Moshe mi-Sinai is treated leniently in cases of doubt, like rabbinic laws.

The same appears in the Commentary on the Mishnah, Mikva’ot 7:7:

“When they said ‘because it is from the Torah,’ they meant the root obligation of immersion in a collection of water. And the Tosefta says: with an olive’s bulk of a carcass and with a lentil’s bulk of a creeping thing, if there is doubt whether there is the required measure or not, its doubt is impure; for anything whose root is from the Torah and whose measure is from the words of the Sages, its doubt is impure. We have already explained that this does not contradict the saying that measures are halakha le-Moshe mi-Sinai, because everything not written in Scripture is called ‘from the words of the Sages.’”

As noted, halakha le-Moshe mi-Sinai is with Maimonides a separate category within his classification: laws for which we have tradition but no anchor, plain-sense or exegetical, in Scripture itself. Yet just as with the category of laws that do have a scriptural anchor but no tradition, namely exegetical laws, here too Maimonides treats them as laws whose legal force, not only their source, is rabbinic.

Let us note again that he repeats this in almost identical language in the responsum mentioned above, so one cannot say that in the Mishneh Torah he retracted this view.⁴⁹

Summary

Our conclusion so far is that the first two directions in understanding Maimonides are both correct together. Maimonides does not distinguish between the question of a law’s source and the question of its legal force. Laws whose source is rabbinic also have rabbinic force, and if their source is from the Torah then their force is from the Torah. Those who interpret him here as addressing the source of the law, direction 1, and those who interpret him as addressing its force, direction 2, are both right. He unites these two distinctions. Below we will spell this out further and explain the assumptions underlying it and its implications.

To conclude, let us return for a moment to Maimonides’ initial classification of laws generally regarded as Torah laws. We saw that he divides them into three types:

1. Laws for which we have tradition and which have an exegetical anchor in Scripture — supportive derivations.
2. Laws for which we have tradition and no exegetical anchor in Scripture — halakha le-Moshe mi-Sinai.
3. Laws for which we have no tradition but which have an exegetical anchor in Scripture — productive derivations.

The picture emerging from our discussion thus far is that according to Maimonides only the first type is Torah law, whereas the latter two are rabbinic laws. Our conclusion is that this determination concerns not only the historical source of those laws, as direction 1 thought, but also their legal force, as in direction 2. As noted, Maimonides links these two questions to one another.

D. Maimonides’ Copernican Revolution: The Conceptual Plane

Introduction

In this chapter we will begin to see Maimonides’ general picture of Jewish law. As in the first root, and even more sharply here, we will again encounter his rationalist tendency, in contrast to Nahmanides’ meta-halakhic empiricism: reason precedes the facts, and even shapes their form and meaning.

The a priori character of Maimonides’ approach

First, we must notice that in the responsum to Rabbi Pinhas the Judge, in the introduction to the Mishnah, and throughout the second root, Maimonides never directly addresses the legal status of the laws under discussion. He deals only with the semantic question of what is called “words of the Sages” and what is called “Torah law,” that is, with the question of their source, not their force. He does not attack the Halakhot Gedolot for counting such laws on the basis of their legal force. This is very similar to what we saw in the first root.

To be sure, as we saw in the first root, the Halakhot Gedolot includes rabbinic commandments in its enumeration, so considerations of legal force cannot by themselves constitute proofs against it. Even so, one would have expected Maimonides to raise such considerations if he had proofs for them, just as in the first root. Especially so when he is trying to defend so far-reaching a claim, contrary to both fact and intuition, according to which halakha le-Moshe mi-Sinai and productive derivations are rabbinic laws.

It seems that Maimonides did not bring such proofs simply because he had no such proofs. From that consideration emerges a striking conclusion: Maimonides’ revolutionary position here emerges entirely from an a priori legal understanding, not from Talmudic sources. See the introductory essay on Maimonides’ general tendency in this regard.

Accepted terminology, and the standard halakhic and Talmudic usages, all stand against this innovation. The first question, therefore, is: from where, and why, did Maimonides come to propose so sweeping a novelty — “a principle that uproots and overturns many foundations in the Talmud,” as Nahmanides writes at the beginning of his glosses?

Of course, if Maimonides means only a methodological classification of laws, not a substantive claim about their legal standing, then the question does not arise. But in light of our conclusion above, that Maimonides also intends legal force, the question becomes all the sharper: why do this at all, and without any proof?

It therefore seems that the root of the matter lies in an a priori understanding of interpretive concepts. As emerges from Maimonides’ wording in the root, he thinks that beyond the plain sense there can be no further meaning in those verses. His assumption is that every text has only one interpretation. The consequence is that there cannot be any further content latent in the verses beyond their plain sense, and therefore his conclusion is that derash is not in fact embedded within them. We will elaborate below. This emerges from his treatment in this root of plain sense as against derash, and from Nahmanides’ responses at this point. As we shall see, Nahmanides too understood that this is the central point of dispute between them.

From here one can see the centrality and importance of the discussion of interpretive theory, and of the relation between peshat and derash, which stand at the heart of Maimonides’ novel view in this root, and for the sake of which he is prepared to shake the very foundations of Talmudic study and its sages.

The paradox: how the combination of tradition and derash succeeds in doing more than either one alone

As noted, Nahmanides understands Maimonides to mean that laws created through derivations have only rabbinic legal force. On the basis of that assumption he raises, at the beginning of his glosses, a series of objections. The first is formulated as a dilemma. If the hermeneutical principles are not genuine, and the truth is only the plain-sense interpretation of the verses, as Maimonides himself mentioned from the Sages’ statement that “a verse never departs from its plain meaning,” then we have uprooted the thirteen principles from their significance. They simply are not real interpretive tools for Scripture. But Maimonides himself admits that they are real tools, and that they were given to Moses at Sinai, so that for us they have the standing of halakha le-Moshe mi-Sinai. If so, then what difference is there between laws transmitted to us by tradition from Sinai and anchored in Scripture through derash, which Maimonides says are Torah law, and laws anchored in scriptural derivations where the interpretive tools themselves were transmitted to us from Sinai together with the biblical text? That too was given at Sinai, and therefore it too should be Torah law. How can tools transmitted to us from Sinai, operating upon a text transmitted to us from Sinai, yield laws whose legal status is treated as though they had not been transmitted from there? De facto, such laws too are as though transmitted from Sinai.

Nahmanides’ second objection goes in the opposite direction. First he notes that according to Maimonides even halakha le-Moshe mi-Sinai has the legal standing of rabbinic law. To be sure, this determination is not found in the Introduction to the Commentary on the Mishnah, for as we saw Maimonides there is not discussing legal status but only meta-halakhic classification. It is also not stated explicitly in our root. Yet Maimonides says it in several places, two of which we cited above, and also in the Mishneh Torah.

Nahmanides continues: if even laws given to Moses at Sinai are “words of the Sages,” then how does the fact that a law supported by derivation, namely a supportive midrash, was received by tradition from Sinai turn it into a Torah law?

Put differently, Nahmanides’ second objection may be stated thus: according to Maimonides, a law received by tradition from Sinai but without an exegetical anchor in Scripture, that is, a halakha le-Moshe mi-Sinai, has the force of rabbinic law. Likewise a law that has an exegetical anchor in Scripture but no tradition, that is, whose midrash is productive, also has the force of rabbinic law. If so, how does the combination of these two mechanisms — tradition and derivation — each of which on its own yields laws whose force is rabbinic, together produce laws whose force is Torah law? This is a very strong objection, indeed the central logical objection to Maimonides’ whole view.

Underlying the entire discussion is a more basic question: why distinguish at all between laws received by tradition from Moses at Sinai without any scriptural anchor, namely halakha le-Moshe mi-Sinai, and laws explicitly written in the Torah? Both are expressions of the will of God; neither is legislation by the Sages, but rather an expression of God’s will. On this distinction, see the essay on the first root. And what sense is there in saying that the combination of these two criteria creates a different legal status?

Two meta-halakhic axes of division: “Torah law versus rabbinic law,” and “Written Torah versus Oral Torah”

As we have already remarked several times, the usual understanding of the expression “Torah law,” certainly in the language of the Sages, is a law whose force is from the Torah. Which laws have that status? We saw in the essay on the first root that the difference depends on the relation between legislation and interpretation. Laws that are the result of interpretation are Torah laws, because the interpretation shows that they express the will of God as it appears in Scripture or in tradition. By contrast, novel laws instituted by the sages are the result of legislation, and are therefore classified as rabbinic laws. The force of laws arising from interpretation comes from the divine will as it appears in Torah commands or in tradition, such as halakha le-Moshe mi-Sinai, and therefore these are Torah laws. The force of laws arising from legislation comes from the authority of the sages, whatever the source of that authority may be, and therefore these are rabbinic laws.

According to this classification, it is clear enough that laws arising from derivations are interpretations of verses — a deciphering of the divine will — and are therefore generally classified as Torah laws. The same applies to halakha le-Moshe mi-Sinai, which is also not legislation but an expression of the divine will outside the Written Torah.

There is another common distinction, not necessarily of legal significance, between the Written Torah and the Oral Torah. This may correspond to the Sages’ phrase “a matter acknowledged by the Sadducees,” which has certain indirect legal consequences, though certainly not consequences touching the legal force or status of such laws.

This distinction is not equivalent to the distinction between Torah law and rabbinic law, because large parts of the Oral Torah belong to the domain of Torah law. Indeed, in the original meaning of “Oral Torah,” rabbinic laws are not included in it at all. The reason is simple and follows from what we have said: laws belonging to the Oral Torah are produced by the sages, but not as enactments; rather, as interpretation. Therefore we view them as the deciphering of God’s will and commands. It follows that their legal force is from the Torah, unlike the decrees and enactments of the sages.

Maimonides’ definitions

If we attend carefully to Maimonides’ language in the different places, we will immediately see that he takes an altogether different path here, and in fact his terminology differs from the accepted one. Maimonides holds that a Torah law is a law that is found in the Torah — not necessarily a law transmitted at Sinai, or a law expressing God’s will. The expression “from the Torah” means with Maimonides that the law is explicitly found in the Written Torah. Incidentally, that is precisely the literal meaning of the term. On this basis it is clear that halakha le-Moshe mi-Sinai is not Torah law, because it is not included in the Written Torah; with regard to laws produced by derivation, see below.

As noted, this is not the accepted definition. What is found in the Torah is indeed not legislation by the Sages, but neither are halakha le-Moshe mi-Sinai or derivation legislation by the Sages, and yet Maimonides still defines them as “rabbinic” laws. The reason is that they do not appear in the Written Torah itself. Thus, contrary to the common view, Maimonides actually identifies the distinction between Written Torah and Oral Torah with the distinction between Torah law and rabbinic law. For Maimonides, “Torah law” means belonging to the Written Torah, and “rabbinic” means belonging to the Oral Torah.⁵⁰

A clear and central source for this definition appears in the responsum on the laws of marriage, cited by Nahmanides here, where Maimonides writes:

“Even with regard to something that is halakha le-Moshe mi-Sinai, we call it ‘from the words of the Sages.’ Nothing is ‘from the Torah’ except something explicit in the Torah, such as mixtures of wool and linen, diverse species, Sabbath, and forbidden relations, or something that the sages said is from the Torah.”

It is therefore clear that according to Maimonides even halakha le-Moshe mi-Sinai, for example, is not Torah law. This is also explicit in the Commentary on the Mishnah, Kelim 17:12, which we cited above:

“For everything not explained in the language of the Torah is called ‘from the words of the Sages,’ even matters that are halakha le-Moshe mi-Sinai. For ‘from the words of the Sages’ means either something received from the Sages, like all interpretations and laws received from Moses, or something instituted by the Sages, like all enactments and decrees. Remember this as well.”

It is worth noting that exactly the same principle appears in almost the same words in the responsum. This is important because some tried to claim that in the Mishneh Torah Maimonides retracted this novel principle. As noted, the responsum was written after the Mishneh Torah and refers to laws appearing there, in Hilkhot Ishut 1:2. Clearly, then, this principle still held for Maimonides when he wrote his code.

So too we find in the Commentary on the Mishnah, Mikva’ot 7:7:

“We have already explained that this does not contradict the saying that measures are halakha le-Moshe mi-Sinai, because everything not written in Scripture is called ‘from the words of the Sages.’”

The same is also proved by Maimonides’ language at the end of the first root, where he writes:

“For this entire principle, meaning the commandments, is wholly written in the Torah; there is nothing rabbinic in it, as we shall explain.”

Thus the opposite of “rabbinic” is “written in the Torah.” That is exactly our point. To complete the picture, let us now see Maimonides’ formulations in the second root itself. Already at the beginning of his remarks he writes:

“But if they did not explain this and did not speak of it — then it is rabbinic, for there is no written text indicating it.”

Thus, according to Maimonides here, the definition of “from the Torah” is that there is a written text indicating it, and a “rabbinic” law is a law for which there is no such written text.

Later in the root he also writes:

“All these are without doubt rabbinic, yet they count them among the commandments, although the plain sense of the verse does not indicate any of those matters…”

Thus for a law to be counted, and not to be “rabbinic,” it must be included in the plain sense of the written text.

Near the end of his discussion in the second root, however, Maimonides formulates the matter a bit differently:

“For everything they did not hear at Sinai by explicit explanation is from the words of the Sages.”

At first glance this suggests a different criterion: whatever was not said at Sinai. According to that, halakha le-Moshe mi-Sinai should indeed fall under Torah law, contrary to what we saw above in the responsum and the Commentary on the Mishnah. But one must notice the extra word Maimonides adds here: “by explicit explanation.” Not everything “heard at Sinai” is Torah law, only what was “heard at Sinai explicitly.” According to what we have said so far, this means: only what all Israel heard explicitly from the mouth of the Holy One, blessed be He, namely what is included in the Written Torah. The phrase “by explicit explanation” excludes halakha le-Moshe mi-Sinai, which is “from the words of the Sages,” because such laws were not heard explicitly; they were given to Moses at Sinai in a way that accompanies the Written Torah but is not found within it. For that reason Maimonides also carefully adds the same word in the preceding passage, “explicitly.”

Exegetical laws

We can now understand why laws produced by derivation are also regarded by Maimonides as rabbinic laws. Maimonides himself writes in the second root, to explain his central idea:

“Perhaps you may think that I refrain from counting them because they are not true. But whether the law that emerges from that principle is true or not true is not the reason. Rather, the reason is that everything a person derives is a branch from the roots that were stated explicitly to Moses at Sinai — and these are the 613 commandments. Even if the one deriving them were Moses himself, it would not be proper to count them.”

Here too Maimonides says that the criterion is not the truth of the law but whether it is within the written text. His claim is that exegetical laws are not contained in the written text but branch out from it as branches from roots, and are therefore regarded by him as rabbinic laws. That is, he sees derivation as an expansion of the written text, not as the unveiling of what lies within it. Therefore laws created in this way are not Torah laws, because they are not found in the text, but rabbinic laws.

Similarly in the Mishneh Torah, Hilkhot Mikva’ot 4:2, Maimonides writes:

“It is from the words of the Sages that drawn water disqualifies immersion, even though the disqualification of drawn water is from the words of the Sages, they learned it by analogy.”

Thus we see that Maimonides treats laws learned by analogy as a kind of “words of the Sages.”

This also clarifies Maimonides’ words in the responsum cited above:

“And in those chapters I explained that not everything learned by inference, or by kal va-homer, or by gezerah shavah, or by one of the thirteen principles by which the Torah is expounded, is a law of the Torah, unless the sages explicitly say that it is from the Torah, and I brought proofs for this. And there I explained that even something that is halakha le-Moshe mi-Sinai we call ‘from the words of the Sages,’ and nothing is from the Torah except something explicit in the Torah, such as mixtures of wool and linen, diverse species, Sabbath, and forbidden relations, or something that the sages said is from the Torah — and these are only some three or four matters. And in that book I explained everything, and when you read it it will become clear to you, though it is in Arabic, except that most of those chapters cite the words of the Sages in the holy tongue.”

From Maimonides’ words here it seems that the principle that only what appears in the written text is Torah law, and that halakha le-Moshe mi-Sinai is from the words of the Sages, ought to be explained in our root. Yet on the face of it we do not find in our root any direct discussion of that issue. As we saw, it is discussed rather in the introduction to the Mishnah. So what does Maimonides mean in this responsum?⁵¹

In light of our analysis above, however, we can see that the matter is indeed explained in our root as well. The criterion that Torah law is only what is found in the written text necessarily entails that halakha le-Moshe mi-Sinai is not Torah law but from the words of the Sages. And this is indeed stated several times in Maimonides’ language in the root, as we have seen. It is thus clear what he means when he says in the responsum that the matter is explained in the second root. Therefore Maimonides also associates with this root the determination that laws produced by derivations are not Torah laws. The reason is the same: they are not found within the Torah.

Two sources for Maimonides’ view

Maimonides thus identifies two distinctions that most other early authorities keep separate: the distinction between Written Torah and Oral Torah, and the distinction between Torah law and rabbinic law. For Maimonides, Written Torah is Torah law and Oral Torah is rabbinic law.

In this context it is interesting to note the textual variants cited by Henshke in his essay “Shniyot le-Divrei Soferim” regarding parallel midrashim on eruvei tavshilin. The Babylonian Talmud, Yoma 28b, states:

“Rav said, and some say Rav Ashi: Abraham our father observed even eruvei tavshilin, as it is said, ‘My Torahs’ — one the Written Torah and one the Oral Torah.”

Maharsha and Rashash already noted, and see also Rabbi Eliyahu Mizrahi on Rashi to Genesis there, that eruvei tavshilin is only a rabbinic enactment, and it is therefore unclear why it is called here “Oral Torah.” The author of Dikdukei Soferim there reports that all the manuscripts read: “My Torahs — one the words of Torah and one the words of the Sages.”

Henshke explains the development of the extant reading as the accidental combination of two different interpretations, yielding an implausible expression. He concludes, at the end of chapter 1: “words of Torah fructify one another and are enriched by one another.” It is not clear whether this is ironic, but in any case it is hard to see what enrichment he found in a meaningless error of this sort. At first glance we have here an improper grafting of one kind onto another.

Even if the historical account of the textual corruption is correct, as long as no real meaning can be found for the received text, it is difficult to see in such a blind process any enrichment of Torah. Moreover, the early authorities who adopted this reading still need explanation: what did they mean? Did they really not distinguish between rabbinic laws and the Oral Torah?

The answer is apparently that they did not distinguish between those two classifications. This is an interesting source for our claim concerning Maimonides, who identifies “Torah law” with “Written Torah” and “rabbinic law” with “Oral Torah.” Precisely so.

To conclude this point, let us cite the sugya in Babylonian Talmud, Bava Kamma 25a. In the Mishnah there, Rabbi Tarfon and the Sages dispute the law of dayyo. At the beginning of the sugya the Gemara raises an objection against Rabbi Tarfon’s view:

“Does Rabbi Tarfon not hold of dayyo? But dayyo is from the Torah, as it was taught: ‘And the Lord said to Moses: if her father had but spit in her face, would she not be shamed for seven days?’ By kal va-homer, should not the Divine Presence require fourteen days? Rather, it is sufficient for the inference to be like the original case.”

The Gemara assumes that if there is a verse from which dayyo emerges, Rabbi Tarfon cannot disagree with it. That is a reasonable assumption as long as Rabbi Tarfon does not interpret the verse differently. But the terminology used by the Gemara seems problematic: why does the fact that dayyo is “from the Torah” prove that Rabbi Tarfon cannot dispute it? Are there not many Torah laws about which the sages disagree?

At first glance, one might infer from here that the absence of dispute is an indication that a law is from the Torah. Yet, as we saw, that is not correct in explaining Maimonides. According to Maimonides, for example, even though no dispute arose over halakha le-Moshe mi-Sinai, it is still “from the words of the Sages.” We therefore need to say that the assumption in this sugya is the reverse: it is not true that the criterion of Torah law is the absence of dispute, but it is true that disputes did not arise regarding Torah laws. Therefore, if there is a Torah law, then clearly we have a tradition concerning it, and therefore clearly no dispute arose about it. Yet there are certainly laws about which no dispute arose that are not Torah laws, such as halakha le-Moshe mi-Sinai.

In any event, this sugya does provide support for Maimonides’ view, that dispute is a relevant criterion in determining whether a law is Torah law or not. According to the other early authorities there is no connection at all between these questions, because “Torah law” expresses legal force rather than source or consensus.

Several more Talmudic sources for Maimonides’ terminology

To conclude, let us cite several sources in the language of the Sages where exegetical laws are referred to as “words of the Sages.” These can hardly be seen as real proofs for Maimonides’ position, but it is certainly important to note that such terminology is not foreign to the Sages.

Mishnah Orlah 3:9 states: “kilayim outside the Land are from the words of the Sages.” In Babylonian Talmud, Kiddushin 39a, this expression is interpreted literally, as a genuinely rabbinic law. But in the parallel Jerusalem Talmud it appears that, at least according to Rabbi Yohanan, the phrase refers to a derivation of the sages. The same follows from his words in the Babylonian Talmud there: “one is flogged for kilayim as a matter of Torah law.”

Likewise in Mishnah Sanhedrin 11:3: “One who says there are five compartments in the tefillin, thereby transgressing the words of the Sages, is liable, for this is only a scribal interpretation.” Indeed, the criterion adopted by the sages for liability of the rebellious elder is: “He is not liable unless he denies and rules concerning a matter whose root is in the Torah and whose interpretation is from the words of the Sages”; see Sanhedrin 87a, 88b, and elsewhere, and also the Jerusalem Talmud. In the sugya in Sanhedrin 87a, the opposite of “words of the Sages” appears as “scribal refinements”:

“The Sages taught: a rebellious elder is liable only concerning a matter for whose deliberate violation one incurs karet and for whose inadvertent violation one brings a sin offering; these are the words of Rabbi Meir. Rabbi Judah says: concerning a matter whose root is in the Torah and whose interpretation is from the words of the Sages. Rabbi Shimon says: even for one refinement among the scribal refinements.”

We see that “words of the Sages” is a term for derivations. Decrees and enactments are here called “scribal refinements.”

Another source is Tosefta Mikva’ot 5:3, where we read: “Anything whose root is from the words of Torah and whose measure is from the words of the Sages…” There the intent is apparently halakha le-Moshe mi-Sinai. Above we saw the same kind of expression in the Mishnah and in Maimonides’ Commentary on the Mishnah to Kelim.

Branches issuing from roots: is there a third category between interpretation and legislation?

We mentioned that Maimonides writes in this root that exegetical laws are “like branches issuing from the roots,” that is, from the 613 counted commandments, and therefore are not counted. Nahmanides objects: if these exegetical laws, the “branches,” are part of the content of the principles, the “roots,” then even if they were Torah laws explicitly written in the verses, they should still not be counted, because they are already included in the counted commandments, according to the principle discussed in the seventh root. But in that case they would be full Torah laws, and their non-enumeration would be technical rather than substantive. Yet that is not what Maimonides says in this root, for his reason is that exegetical laws are not counted because they are from the words of the Sages. If, on the other hand, those exegetical laws are not part of the content of one of the counted commandments, as with the prohibition of an uncircumcised person eating terumah, then they are genuinely new commandments and cannot be regarded as branches issuing from the roots, so they should indeed be counted.

In any case, Nahmanides says that Maimonides has here unintentionally mixed together two different reasons. On the one hand, he writes that non-enumeration is because exegetical laws are from the words of the Sages. On the other hand, he says they are not counted because they are like branches included in the roots, and thus even though they are Torah laws, they need not be counted because they are already included within one of the counted commandments.

This is the tension that has accompanied us from the lesson on the first root and throughout the present one: between understanding the root as a substantive principle and understanding it as a classificatory principle, or between a law’s being a specification of a Torah commandment and its being a ramification from it as a rabbinic law. In this objection, Nahmanides assumes that Maimonides’ phrase “branches from the roots” means that the laws derived from the verses are specifications of those verses — in effect, applications of them, where the derivation reveals the meaning of the verse. Therefore he attacks Maimonides on the basis of the principle of the seventh root: such laws are not counted because they are already included in the commandments upon which they are built.

But we can now see that this is not at all what Maimonides means. Maimonides means that exegetical laws are not part of the Torah itself; rather, they intertwine with it and branch out from it, existing outside it. Derash is an expansion of the written text, not a revelation of what lies inside it. That is precisely why the laws produced by it are not found in the written text, and why Maimonides classifies them as rabbinic laws and excludes them from his enumeration. In the terminology of our essay on the first root, we may say that according to Maimonides laws created by derivation are ramifications of the verses rather than specifications of them — exactly parallel to what we saw there, that rabbinic laws ramify from “you shall not turn aside” rather than being simple specifications of it. There too we explained in detail the process of ramification. Thus, here too Maimonides repeats his innovation that there is a third kind of relation between a novel law and a written scriptural text: ramification.

One should note the principled significance of this innovation. Usually we assume a sharp distinction between legislation and interpretation. Legislation creates a new law, whereas interpretation unveils an existing law, perhaps one previously unknown, but still latent within the text. We now arrive at the conclusion that there are intermediate mechanisms between legislation and interpretation. Derivations are a working tool that enables us to expand the written text. They do not reveal what is already inside it, but neither do they amount to legislating a new rule from scratch, for wholly novel legislation has no need at all for derivation. This mechanism is thus a middle path between legislation and interpretation.

The explanation of this interpretive theory, which sees derash as a tool of expansion, lies in the distinction between the analytic and the synthetic. Deduction is an analytic mode of inference that reveals what is already contained in the premises. But analogy and induction are modes of expansion, because they add something beyond what is embedded in the premises themselves. At this point Maimonides’ approach brings us back to the discussion of the analytic and the synthetic, and of the synthetic a priori, which we needed in earlier discussions and which is presented at length in Michael Avraham’s four-volume quartet. We cannot enter into those aspects here.

The relation between peshat and derash

Later in his glosses Nahmanides turns to another central point of his disagreement with Maimonides: the relation between peshat and derash.

We saw that Maimonides presents his revolutionary picture without any real source. Everything emerges from reason alone. Our claim is that the most fundamental point motivating him was his interpretive theory. He held that only the plain sense can be considered a true interpretation of Scripture, and therefore only a plain-sense interpretation can count as Torah law. Derash cannot be an additional interpretation of Scripture beyond the plain sense, because in Maimonides’ view there cannot be two different interpretations of the same text: “a verse never departs from its plain meaning.” Thus he writes in this root:

“Their ignorance reached an even more serious point than this: when they found a derivation in a verse, and from that derivation one would have to perform some act or distance some matter — all of which are without doubt rabbinic — they counted them among the commandments, even though the plain sense of the verse indicates none of those matters. This despite the principle taught us by the Sages, namely their statement: ‘a verse never departs from its plain meaning’; and despite the fact that the Talmud in every place asks, ‘what does the verse itself speak about?’ when it finds a verse from which many matters are learned by way of clarification and proof.”

That is, derash expands Scripture; it does not reveal what lies within it. So too we should understand the explanation cited above, that the laws learned from derivations are “like branches issuing from the roots,” that is, from the commandments or verses of the Torah.

Nahmanides understands very well that this is the focal point, and writes:

“Our master has suspended this collapsing mountain by a strand of hair, saying: ‘the principle our Sages taught us is their statement: a verse never departs from its plain meaning…’”

In other words, he understands that the entire “mountain” of Maimonides depends on this: everything begins and ends here. Nahmanides also says that this is only a strand of hair, and therefore Maimonides should not hang so great a mountain upon it. To explain why it is only a strand of hair, Nahmanides attacks Maimonides directly on his basic theory of interpretation. Maimonides’ foundational assumption is that every text can have only one true interpretation. Nahmanides himself, however, thinks this is false: several different interpretations can be true at once. He writes:

“So too everywhere they expound in the mode of parable and figurative language, they believe that both are true: the inner and the outer…”

And he adds at the end of that discussion:

“This is the meaning of their statement, ‘a verse never departs from its plain meaning.’ They did not say: ‘a verse has only its plain meaning.’ Rather, we have its derivation together with its plain meaning, and it departs from neither of them. The text can bear them all, and both are true.”

It should be stressed that Nahmanides does not mean merely that there can be disputes about the correct interpretation, with each side offering its own reading of the same verse. He means that several interpretations can be true simultaneously even according to the same view. Hence, he argues, peshat and derash are not competing interpretations, but different layers of meaning in the text, and together they are all true interpretations of it — “inner and outer,” in his phrase above — in the spirit of “the judgments of the Lord are altogether righteous.”

Thus we have here an important, perhaps the main, point of dispute between Maimonides and Nahmanides. For Maimonides, each text has only one correct interpretation, and anything else cannot count as an interpretation of the text. For Nahmanides, several different interpretations can apply to the same text, and all can be true simultaneously.

From this description a hard question arises immediately: according to Maimonides, are the laws produced by derivations not true? Do they not correctly describe the intention of the verses? If not, why do we accept them at all? Maimonides himself senses this and answers by saying that exegetical laws are “branches from the roots.” His conception of derash as expansion thus follows from his theory of interpretation. If every text has only one correct interpretation, or only one true meaning, then only peshat reveals the intent of the text. Accordingly, a midrashic interpretation cannot be an interpretation of what is in the written text, and so Maimonides sees it as an expansion of the text. But if it is an expansion rather than a revelation, then the laws learned in this way cannot belong to the category of Torah laws, since for Maimonides that category describes only laws actually found in the Torah itself.

Nahmanides’ opposition

We saw that Nahmanides opposes Maimonides’ interpretive view, according to which each verse has only one true interpretation. His opposition to Maimonides’ conclusion regarding the role and nature of the hermeneutical principles follows directly from this. In the following passage he presents Maimonides’ position — and it corresponds exactly to the picture we have described so far — and then objects to it:

“Perhaps he thinks that the law derived through one of the principles, though true, has no hint in Scripture, and the verse was written only for its plain sense, not in order to derive that law from it; and therefore it is called rabbinic. But when we hear them say that it is from the Torah, or that it is the essence of the Torah, we count it because it is known by tradition that the inclusion or the gezerah shavah in that verse was written in order to derive that law from it. Still, in those cases where they did not say it is from the Torah, the truth of that law remains uncertain: whether it is entirely from the words of the Sages, innovated by the court, or whether they learned it from Moses our master and it is called words of the Sages because it has no hint in the written Torah and is not included in ‘the Torah that Moses commanded us,’ that is, the 613 commandments. But we do not find such an opinion among the Sages, for all the principles are in their view like something explicit in the Torah, and they expound them by their own understanding.”

In other words, Nahmanides understands Maimonides to be saying that derivations are expansions rather than revelations, exactly as we have seen. But he rejects this, because the accepted view is that derivations produce Torah laws, and therefore they must reveal rather than expand.

Here the opposite tendencies of Maimonides and Nahmanides appear clearly. Maimonides follows his logic consistently and forces the facts into that mold. Nahmanides, by contrast, is an empiricist. He begins from the facts and subordinates logic and reasoning to them.

A legal consequence of the conceptual determination

Up to this point we have dealt only with the conceptual plane, that is, with the meaning of the terms “Torah law” and “rabbinic law.” The dilemma whether to understand those terms within the legal sphere or within the historical sphere has not yet been resolved. We saw above that there are legal consequences to this determination, and we will explain them further below. But let us first present a fascinating example showing a legal consequence of the conceptual distinction itself.⁵²

The Torah commands concerning the threads from which the priestly garments are to be woven, Exodus 39:27-29:

“And they made the tunics of fine linen, the work of a weaver, for Aaron and for his sons; and the turban of fine linen, and the ornamental caps of fine linen, and the linen breeches of twisted fine linen; and the sash of twisted fine linen, blue, purple, and crimson, the work of an embroiderer, as the Lord had commanded Moses.”

On this the Gemara expounds, Babylonian Talmud, Yoma 71b:

“The Sages taught: wherever ‘fine linen’ is stated, its thread is sixfold; ‘twisted’ means eightfold; the robe, twelvefold; the curtain, twenty-fourfold; the breastplate and ephod, twenty-eightfold.”

“From where do we know that its thread is sixfold? For the verse says: ‘And they made the tunic fine linen… and the turban fine linen, and the ornamental caps fine linen, and the linen breeches of twisted fine linen.’ Five verses are written: one for itself, that they be of linen; one that the thread be sixfold; one that they be twisted; one for the other garments in which ‘fine linen’ is not stated; and one to indicate that it is indispensable…”

Thus the Sages include sixfold spinning both for garments in which “fine linen” is explicit and for other garments as well, even those in which it is not said. And finally the Gemara derives that this requirement is indispensable.

Yet Maimonides, in Hilkhot Kelei ha-Mikdash 8:14, writes:

“Every place where the Torah says ‘fine linen’ or ‘twisted fine linen,’ the thread must be sixfold. But wherever it says ‘linen,’ even a single thread is valid, though the preferred manner of fulfilling the commandment is that it be sixfold…”

That is, Maimonides holds that spinning the thread from six strands is indispensable only for garments in which “fine linen” is explicitly stated. Other garments also require sixfold spinning, but there it is not indispensable. His words appear to stand in direct contradiction to the Gemara’s derivation, which learns that it is indispensable. His commentators have struggled with this.

But in light of what we have said above, Maimonides’ ruling is simply a consequence of his principled interpretive approach. The inclusion of other garments in the requirement of sixfold spinning is an inclusion by way of derash. Therefore it is clear that the rule requiring other garments also to be sixfold is not found in the verse itself but expands it. Once so, we can understand that the derivation from the verse that its stated requirements are indispensable refers only to the laws actually in the verse itself, and thus does not include laws added by the tools of derash. Therefore sixfold spinning does indeed apply to the other garments as well, but it is not indispensable there.

We should emphasize that this is a case where there is a clear consequence of Maimonides’ interpretive approach. So even if we understand his claims on the interpretive plane, as the Tashbetz did, this legal consequence still stands. Therefore this consequence too does not tilt the scales in favor of direction 1, which sees Maimonides’ statement that exegetical laws are rabbinic laws as a direct legal ruling.

Another consequence: deriving from halakha le-Moshe mi-Sinai

A similar point can be seen in the principle that one does not derive from halakha le-Moshe mi-Sinai. If the hermeneutical principles are tools for expanding what is found in the verses, then halakha le-Moshe mi-Sinai, even if it expresses the will of God, cannot serve as a basis for derash. For example, there is a tannaitic dispute whether one may make a kal va-homer from a halakha le-Moshe mi-Sinai. Rashi, on Babylonian Talmud, Pesahim 81a, s.v. “u-mi,” explains that kal va-homer can be learned only from something written in the Torah. Rashi on שבת 132a, s.v. “Akiva,” adds that the Oral Torah was not given to be expounded by the hermeneutical principles.⁵³

To be sure, there are principles about which the sages disagreed as to whether they are applied to halakha le-Moshe mi-Sinai.⁵⁴ It is possible that the disputes depend on whether the principle in question is logical, in which case it can be applied even to halakha le-Moshe mi-Sinai, or whether it is an interpretive tool of Scripture, in which case it cannot be applied there.

The classification of type 1 laws: those received by tradition and anchored in Scripture

We noted that Nahmanides wondered why Maimonides classifies laws received by tradition without scriptural anchor, and laws generated through derivation without tradition, as rabbinic laws. But he continues: on Maimonides’ own view, since each of these two sources, tradition and derivation, yields only rabbinic laws, how can their combination yield Torah laws? We can now begin to understand this.

The basis of Maimonides’ conception is that exegetical inferences are based on analogy and induction, not deduction. Therefore they expand the verse rather than revealing what is within it. But sometimes analogy can function as a mode of revelation. We cannot expand here on the logical aspects of this claim, which we have already discussed elsewhere; see, for example, Michael Avraham’s essays in Tzohar 12 and 15.

Briefly, Maimonides’ criterion — that a received tradition concerning an exegetical law turns it into a Torah law — can be understood thus: the tradition of the Sages tells us that in this case the analogy of derash is revelatory rather than expansive. There are several possible criteria for examining such a question, and they are discussed in detail in the fourth volume of Avraham’s quartet.

In any event, the logic of the point is very simple. If the law produced by such a derivation were really an expansion rather than a revelation, then there would have been no need for tradition. Why would God transmit to Moses a law that could be extracted from Scripture by means of the thirteen principles? It therefore seems that where there is a supportive derash, that is, where we have a tradition concerning it, that tradition teaches us precisely that the derash is deciphering rather than expanding, and therefore the law produced from it is Torah law.

Against this background it is interesting to return to Nahmanides’ words:

“And when we hear them say that it is from the Torah, or that it is the essence of the Torah, we count it because it is known by tradition that the inclusion or gezerah shavah in that verse was written in order to derive that law from it.”

Nahmanides writes here that the existence of a tradition reveals that we must view the verse as having been written and intended for that very derivation, and so it counts as explicitly written in the verse.

Below we will see a simpler explanation for the classification Maimonides proposes for laws of this type, which makes the foregoing mechanism unnecessary.

Warning by inference: halakhic parallels to type 1 laws

We cited above Maimonides’ words, in the introduction to the Sefer ha-Mitzvot and at the end of the fourteenth root, regarding warning by inference. We saw there that according to Maimonides, a law produced by the thirteen principles cannot serve as a warning, and therefore one does not punish someone for violating such a law.⁵⁵ But when Scripture explicitly states a punishment for that transgression, then even warning by inference suffices for punishment. What is the logic of this distinction? Either way, is a law learned by derivation regarded as a warning written in the Torah or not?

In light of our discussion, it seems that Maimonides’ intention here is exactly parallel to what we saw concerning type 1 laws. There we saw that if there is a tradition regarding a given law, then the tradition teaches us that the midrash which yields this law is revelatory and analytic, not expansive. In that case the law counts as written in Scripture itself.

Earlier we saw a very similar example. Betrothal by document is learned through a derivation by gezerah shavah. Yet Maimonides classifies it as Torah law, that is, as a law explicitly present in the written text, because of the indirect proof he brings from the laws of the maiden betrothed while still a virgin. A plain textual hint functions as a substitute for Sinaitic tradition. What is the logic of that? It seems that here too we have proof that the derivation is revelatory rather than productive, because the fact is that on the Torah level itself there is a betrothed maiden who has not had relations, which shows that betrothal can take place not only by intercourse. The hint is not formulated as a command, so it cannot by itself serve as an independent source for the law of betrothal by document. But it reveals that the derivation did not create a new law here; rather, it uncovered a law already present in the written text.

Exactly parallel reasoning underlies Maimonides’ innovation concerning warning by inference. If the Torah explicitly writes a punishment, then although we still lack a command or warning verse, we do have a clear plain-sense hint that such a reality exists already on the Torah plane. Thus, once we find a derivation that supports the law in question, this hint reveals that the derivation is revelatory rather than productive. Consequently the law learned by the derivation is present in the written text, and so it is a Torah commandment. Just as such a law is counted among the commandments, so too it can serve as a warning that grounds punishment.

Consequence: the uniqueness of the thirteen principles and inclusion

This point brings us back to the title of Maimonides’ second root, where he defines the discussion as concerning laws derived from the thirteen principles and inclusion. At the beginning of our discussion we raised several possibilities to explain exactly what he means. The simplest explanation, also suggested in the Lehem Mishneh, Hilkhot Ishut 4:6, is that Maimonides means precisely what he says: the thirteen principles and inclusion. We asked there why Maimonides chooses specifically these methods of derivation. What distinguishes them from the others? Why are laws derived by other methods not included in the discussion of this root, and in what direction should they then fall? Are they necessarily rabbinic, or necessarily Torah law?

In fact, a very similar question could already be asked of Rabbi Ishmael himself, who chose to include only the thirteen principles in his baraita: why did he not include the rest? The obvious answer is that the other principles belong to the school of Rabbi Akiva, and Rabbi Ishmael in fact disputes them and does not use them. Indeed, the principal example, inclusion, is what characterizes Rabbi Akiva’s halakhic method, as the Gemara in Shevuot 26a says: Rabbi Akiva expounds by inclusions and exclusions, and Rabbi Ishmael by general and particular.

But we saw that this cannot be said of at least some of the other methods. It is quite clear that Rabbi Ishmael accepts them as well, and still he does not count them in his baraita. We noted that the author of Sefer Keritut already raises this objection, with respect to the baraita of thirty-two principles, and offers several explanations. The main one is that in the other principles, at least those belonging to halakhic derash, the laws produced by them are regarded as explicitly written in the text. Rabbi Ishmael listed in his baraita only derivations whose resulting laws are not explicitly present in the written text.

We explained this by saying that the other halakhic methods of derivation are based on superfluous words in the verses, that is, words that there is no to them plain-sense interpretation. In such a case, the midrashic interpretation is itself the plain meaning of the verse, and that is precisely the meaning of the superfluous word. If so, the law produced by such a method of derivation is explicit in the text, because it is the meaning of that word.

In light of our explanation of Maimonides, this picture emerges naturally. First, Maimonides includes inclusion because he rules like Rabbi Akiva too, not only like Rabbi Ishmael’s baraita; see what we said above about the historical development of the hermeneutical methods. Second, as we saw, Maimonides’ discussion revolves around whether the exegetical law is present in the written text or not. His main innovation is that although these laws have some connection to the text, they are not really present in it, but only ramify from it, and therefore they are “from the words of the Sages.” According to this, if there are other methods of derivation whose laws are considered actually present in the text — even if the text chose to indicate them only indirectly, through derash, because the verse has no simpler plain meaning — then they are not relevant to the discussion of this root. Those are certainly Torah laws, not laws from the words of the Sages.

Thus the picture described so far, together with Rabbi Shimshon of Shantz’s assumption in Sefer Keritut, naturally and clearly yields the conclusion that laws derived from the other principles are Torah laws. One only needs to add that the principle of inclusion, which Rabbi Ishmael does not accept at all in Rabbi Akiva’s form, though he does employ some kinds of inclusion, is apparently regarded by Rabbi Akiva as something not explicitly written in the text. The reason is the same reason Rabbi Ishmael rejects it: even if the letter or word, such as the word “et” in the derivation about revering Torah scholars or honoring an older brother, is superfluous, there is still no extra substantive word here, and therefore it is not treated as plain-sense interpretation. If there were laws derived from inclusions based on a superfluous substantive word, not a single letter and not a connective like “et,” then it may be that Rabbi Ishmael and Rabbi Akiva, and Maimonides following them, would also regard those as Torah laws.

We should note that our approach here provides a foundation for resolving many objections to Maimonides’ view, both from different Talmudic passages and from internal tensions in his writings, especially with regard to various rulings in the Mishneh Torah. There will be places where the Talmud, or Maimonides himself, treats exegetical laws as Torah laws, but this will not contradict the principle of the second root, because those cases concern derivations not based on the thirteen principles or on inclusion. According to this, when Maimonides writes in the responsum that there are only “some three or four places” where a law received by tradition also has an exegetical anchor and is therefore counted as Torah law, he means only anchors from the thirteen principles and inclusion, not every kind of derivation. In other kinds of derivation there are additional cases that yield Torah laws, but for that no tradition is needed. Even without a tradition accompanying the derivation, the laws that emerge from those methods are Torah laws.⁵⁶

E. Maimonides’ Copernican Revolution: The Halakhic Plane

Introduction: are there any halakhic consequences at all to Maimonides’ innovative semantics?

Up to this point we have dealt with the terminological and semantic classification of the different kinds of laws. We have seen what counts as Torah law and rabbinic law, and linked that to the distinction between Written Torah and Oral Torah. But we have not yet addressed the force of each of these types of law. As noted, the main dispute over the interpretation of Maimonides’ words revolves around whether he is discussing force, as Nahmanides understood, or only source, as the Tashbetz understood. In this chapter we will address the question of the legal force of laws that are “from the words of the Sages.”

By way of background, let us return to Maimonides’ classification of laws into five types. Of these, laws explicitly written in the Torah are Torah laws in force as well. Laws belonging to types 4 and 5 are rabbinic laws in force as well. The problem arises in types 2 and 3, which Maimonides defines as “words of the Sages.” Here the commentators disagreed whether he means only that their source is outside the Torah, or whether he also means that their legal force is rabbinic.

Let us say at the outset: if one examines the terms “Torah law” and “rabbinic law” on the purely semantic plane, apart from the associations they have acquired through generations of study, then it is quite clear that these expressions denote source, not force. When we say that a given law is rabbinic, what we mean is that it is a product of the rabbis. That says nothing directly about its force, except perhaps by way of consequence from the question of source. The same is true of the term “Torah law,” which also denotes source, literally “from the Torah,” and not force.

At first glance this itself would support the Tashbetz, who maintained that the whole discussion concerns source and not force. But that is not necessary. It may be that force simply derives from source, and therefore once source is determined — Torah or rabbinic — force is determined as well. According to this, laws whose source is “from the words of the Sages” would also have lighter, rabbinic force. This accords both with Nahmanides’ understanding of Maimonides and with our conclusion above, that Maimonides regards these two questions as parallel, and certainly not independent.

A priori indications

Let us begin by noting several points showing that Maimonides’ discussion certainly does have halakhic implications. First, it is hard to believe that Maimonides would invest so much effort and develop so complex a theory about the concepts “Torah law” and “rabbinic law” if it had no practical consequence.

More than that: we saw in the discussion of warning by inference that Maimonides draws a clear legal conclusion from the fact that a law arises from derivation, namely that it does not constitute a warning that allows punishment. This is a direct legal consequence of the determination of source.

It is important, however, to note that this particular consequence has a unique character. Even if Maimonides means only what the Tashbetz and his school say, it would still be very plausible that his conception should have a legal consequence with respect to warning. The reason is that the requirement of warning is not a question of force, but of presence. The fact that one does not punish without warning does not follow from the lesser severity of the prohibition, but from the fact that the offender was not warned. Maimonides’ criterion of being found in Scripture, which is what “Torah law” means in his method, is very fitting as a measure of whether there is warning: if a prohibition is found in Scripture, a person knows of it and is regarded as having been warned. If it is not found there, then even if its force is extremely severe, a person cannot be regarded as having been warned.⁵⁷

Therefore, this legal consequence cannot serve as evidence against the Tashbetz’s interpretation. Indeed, as we saw, several commentators who belong to the Tashbetz’s school nevertheless derive legal consequences from Maimonides’ definitions. As we already noted at the start of the discussion, this does not remove them from the Tashbetz’s camp, because in their view the primary discussion is still about source, though the question of source has several legal consequences. A parallel is the category “a matter acknowledged by the Sadducees.” This category is not unique in legal force; it is an ordinary Torah law. Yet there is no doubt that this designation has several halakhic consequences.⁵⁸ In the plain sense, these consequences do not indicate greater severity or special force, but rather follow from the very nature of the designation “a matter acknowledged by the Sadducees,” that is, a matter explicit in the Torah.⁵⁹

In Maimonides there is no difference between source and force

As we saw, the discussion of the classification of betrothal by money as a law “from the words of the Sages” dealt only with the semantic layer. Maimonides did bring proofs for it, but they were essentially linguistic. In the various sources he does not present any legal consequence flowing from the statement that betrothal by money is “from the words of the Sages.” On the contrary, as we saw from several very clear sources in Maimonides, betrothal by money appears to be Torah law even in its legal force.

Yet from the discussion of Maimonides’ proofs and criteria, and from the fact that he appears not to distinguish carefully between terms like “Torah law” and “rabbinic law,” which ordinarily express legal force, if he is using them only in the context of source without regard to force — it follows that if so, betrothal by money has nothing in common with ordinary rabbinic laws. Why, then, does Maimonides, famous for precision of language, use the same term?

We also saw that Maimonides nowhere details the consequences regarding legal force, and all his discussion concerns only source. Why does he not inform us about the legal force of the different classes of laws? This question is very weighty, especially given Maimonides’ comprehensive halakhic purpose. The primary purpose of the Mishneh Torah is the architectural ordering of practical law, not the determination of its sources. According to the Tashbetz, large portions of Maimonides’ principled discussions in the roots and introductions deal not with legal questions at all but with historical questions devoid of legal significance. That is an intolerable claim about Maimonides’ method.

From this schematic picture of the problem, the solution already emerges naturally: Maimonides does not recognize questions of force apart from questions of source. For him, the discussion of source and the discussion of force are one and the same discussion. This is clearly indicated by the transitions we saw in his various writings from questions of source to questions of force and vice versa. Let us mention only the two passages from the Commentary on the Mishnah in Kelim and Mikva’ot, where he moves explicitly from source to force in a completely natural way. It is quite clear that he does not distinguish between those two planes at all.

If so, determinations about the source of laws of types 2 and 3 automatically radiate onto the question of their legal force. This means Nahmanides is right that these laws also have a rabbinic legal status. Yet this determination seems very problematic in Maimonides’ method, especially regarding betrothal by money, where we proved decisively that its legal force is Torah-level. The same seems to follow from most of his treatments in the Mishneh Torah, which, as we saw, usually do not diverge from what is accepted in the words of the Sages and the decisors: what is commonly regarded as Torah law is indeed treated as Torah law.

We are thus trapped. On the one hand, it is clear that Maimonides does not distinguish between source and force; force derives from source and the discussion is one. On the other hand, with respect to source he rules that types 2 and 3 are laws from the words of the Sages, while with respect to force, at least for some laws that he defines as rabbinic, he rules that their legal force is Torah-level.

The inevitable conclusion is therefore still more revolutionary. Not only does the question of force not stand independently, but it derives from source. And not only are the two questions tightly linked. It seems that according to Maimonides there is no single overall question about the force of a law at all. Put differently: Maimonides has no general categorical division of laws into two classes of force, Torah and rabbinic. The concepts “Torah law” and “rabbinic law” indicate only source, nothing more.

This should not be confused with a return to the Tashbetz’s view, because we are not accepting the claim that the force of all these laws is Torah-level. After all, we saw, at least regarding halakha le-Moshe mi-Sinai, that its force too is like that of rabbinic law. Our claim is rather that these laws have differing force, but not necessarily the same force across all kinds of “rabbinic” law. Each kind of rabbinic law, that is, each law whose source is the sages and not something found in the Torah, may have a different force.

An important methodological note: intension and extension

If we try to distinguish categorically between the two kinds of law, Torah and rabbinic, we almost always turn to their legal consequences, such as stringency in doubt, whether they are overridden by human dignity, and so on. The best-known consequence is the rule of doubt: in cases of doubt regarding Torah law one is stringent, while in cases of doubt regarding rabbinic law one is lenient. But Maimonides, as is well known, has a unique approach there too. He holds that all the rules of doubt are themselves rabbinic. The distinction between a doubtful Torah matter, which is treated stringently, and a doubtful rabbinic matter, which is treated leniently, belongs entirely to the rabbinic plane.

This strongly suggests that according to Maimonides the categorical division itself does not really exist. The various consequences that we usually associate with the terms “Torah law” and “rabbinic law” must each be examined separately. One cannot draw sweeping halakhic conclusions from the mere fact that a law is Torah-level or rabbinic. Each consequence must be analyzed on its own.

If we examine the pair “Torah law” and “rabbinic law” in their accepted meaning, namely with respect to force, and ask what that question itself means, we again run into trouble. Definitions always end up being given in terms of legal consequences, such as stringency in doubt. But in truth we need to define the concepts themselves. We must ask: what do the terms “Torah law” or “rabbinic law” mean in themselves, apart from their legal consequences? If we are interested in the essential plane that underlies the legal consequences, then we cannot make do with listing those consequences — that is, defining by extension — but must search for a definition by content, that is, by intension.⁶⁰

As a starting point, note that Nahmanides and the other commentators offer the following intensional definition: a law with Torah force is a law whose source lies in the will of God as directly expressed by Him, in writing or orally, or in what emerges from interpretation, whether plain-sense or derash, of those divine expressions. These commentators do not really address the question of source, except indirectly as part of clarifying force, namely whether this law was expressed directly by God, in writing or orally.

By contrast, in Maimonides it seems utterly implausible to propose this as the intensional definition, for if that were his definition, why would he develop so complex and elaborate a conceptual system, supported by such a novel and intricate legal theory as we have seen? What significance would the discussion of source have, if not as a condition for clarifying legal force? It is therefore clear that Maimonides has another intensional definition. What is it? In light of all that has been said, the answer is clear enough: Maimonides’ intensional definition of “Torah law” and “rabbinic law” is exactly the one we have been discussing: whether the law is present in the Torah or not. This definition underlies the questions of legal force. Thus source provides the basic infrastructure that determines the issue of force. Yet Maimonides still makes no sweeping determination that all rabbinic laws have lesser or even uniform force.

According to Nahmanides, the intensional definition of “Torah law” is a law that is the direct will of God. Such a criterion naturally defines legal force, that is, halakhic severity. The more directly a law is God’s will, the more severe it is. From such an intensional definition one can derive in a straightforward and global way its extension. But from Maimonides’ intensional definition — “Torah law” means what is found in the written text — one certainly cannot simply derive questions of severity. Why should what is found in the written text be more severe than what is not? Why, for example, should halakha le-Moshe mi-Sinai, which is not found in the written text but is the most direct possible expression of God’s will, because each of these laws was given one by one directly from the mouth of God to Moses at Sinai, be less severe than laws explicitly written in the Torah?

The conclusion is that from Maimonides’ intensional definition one cannot directly derive severity. Therefore the various consequences must be examined one by one. Put differently: the extension of the concepts “Torah law” and “rabbinic law” cannot be naturally and directly derived from their intension.

To be sure, even according to Maimonides, by virtue of the logical relation between intension and extension there must be some way to define, from the nature and source of a law, its legal force — that is, the various halakhic meanings of this classification. But here the derivation will not be as simple as it is for Nahmanides and his school.

Let us now define more explicitly and sharply the relation between the intension and extension of the concepts “Torah law” and “rabbinic law” in Maimonides.

Presence in the written text as command

The basic question is: why should the fact that something is found in the Torah have any significance for legal force, at least in certain respects? Or to put it differently: what legal consequence can possibly flow from a criterion like presence in Scripture, beyond the trivial consequences noted above, such as those also suggested by members of the Tashbetz’s school through the category “a matter acknowledged by the Sadducees”?

The answer apparently lies in what we saw above in the discussion of warning by inference. The only halakhic consequence anywhere in Maimonides’ writings that is explicitly presented as flowing from his definition of exegetical laws as “from the words of the Sages” is that laws created by derivation cannot serve as warnings, unless there is an explicit punishment in Scripture.⁶¹ We noted above that such a consequence is natural in terms of Maimonides’ own criterion, because the function of warning requires conspicuous presence, or explicit location, in the written text.

This very point gives us a first clue to the meaning of the criterion of presence in the text. A commandment that is present in the written text itself can be said to have been explicitly commanded by the Holy One, blessed be He. Where there is a command, the person is considered warned. Thus the criterion of presence in the text appears relevant to warning. This reveals the basis of the significance of presence itself: presence in the written text constitutes warning, or command, with respect to that law. This brings us very close to the view of Nahmanides and the other early authorities, who tie the concept “Torah law” to a direct expression of the divine will. Yet the matter is still different: for Maimonides, the classification as “Torah law” does not depend on expressing a will, nor on whether an action causes repair or damage, but on the objective existence of a command.

For Maimonides the command is not heard directly from God’s mouth; rather, it is written in the Torah. Thus only what is found in the Torah counts as a divine command. What is not found in the Torah counts as an instruction regarding which we do not possess a direct command.

We should also mention the basic point made by Rabbi Elhanan Wasserman in his essay “Teshuvah,” in his collected essays. He argues that every commandment has two aspects:

1. Obedience to the command of the Holy One, blessed be He.
2. The proper substantive conduct itself.

For example, we are commanded to put on tefillin, and presumably there is some reason for this. It brings some benefit, and therefore the Torah commands it. It follows that one who puts on tefillin accomplishes two things:

1. He obeys the command of the Torah.
2. He attains that hidden benefit.

The same applies to prohibitions. When a person commits a transgression, he commits two wrongs:

1. He rebels against God’s command.
2. He causes some damage or wrong — for if there were no such damage, it is likely that the Torah would not have prohibited it.

Presence in the Torah is the source of the command addressed to us. A law that is found in the Torah comes with a command. If a law is not found in the Torah, then there is no command with respect to it. It may still, and very likely does, bring some benefit; otherwise why would we be required to observe it?

This distinction sketches the first outlines of how the different kinds of law are to be distinguished, and we can now spell that out further.

Applying this to Maimonides’ halakhic distinctions

Thus, “Torah laws” are laws with respect to which we have a command, and therefore they carry a halakhic norm or obligation. “Rabbinic laws” are laws with respect to which we have no direct command, and therefore no basic halakhic norm, but at most a derivative or supported norm — namely, rabbinic law. See our essay on the first root.

A law grounded in reason, such as the blessing over enjoyment before eating, as discussed in Babylonian Talmud, Berakhot 35a, and in the Penei Yehoshua there, is also based on the divine will that we observe it. But that is a will not expressed in a command. There is benefit here, but not command. One who fulfills such a law attains its benefit, but is not regarded as carrying out a divine command, though perhaps he is fulfilling the divine will, just not the divine command.

What about rabbinic laws, like decrees and enactments? Clearly they have no hint in the written text, though sometimes an asmachta is a kind of hint, and may even reflect some degree of inclusion in the written text. But perhaps they do come with an indirect command, as discussed in the essay on the first root, one that concerns the authority of the sages rather than the content of the commandments themselves.

We are now left with the two intermediate shades:

• Laws that arise through derivation, type 3.
• Halakha le-Moshe mi-Sinai, type 2.

Recall that according to Maimonides both are “rabbinic.”

With respect to halakha le-Moshe mi-Sinai, it is clear that such laws have no hint in the written text; they are not found in Scripture. But we have now tied this to the question of command. It is difficult to say that there is no command concerning halakha le-Moshe mi-Sinai, for Moses received these laws directly from God at Sinai, just like the Torah itself. Therefore there seem to be two possibilities:

1. A command exists only in the written text itself. Hence these laws, which have no anchor in the written text, carry no command. According to this direction, God’s speaking them to Moses was a kind of informative disclosure — that a certain act is beneficial or harmful, fitting or unfitting — rather than the imposition of a normative obligation. According to this, when we fulfill a law received by tradition, namely halakha le-Moshe mi-Sinai, we are not obeying a command but only fulfilling the divine will. There is some substantive value, but not obedience to a command. Likewise, when we violate such a law, there is no rebellion against the authority of the Torah, only improper conduct.

On this view, the definition of a Torah law is a law with respect to which we have a command, as we saw above. That is why halakha le-Moshe mi-Sinai does not count as Torah law for Maimonides.

2. Normally commands are received only through being written in the Torah, but halakha le-Moshe mi-Sinai is an exceptional case: here there is indeed a command, but it was given orally. According to this direction, such laws have command but no substantive content.

If so, the definition of a Torah law cannot simply be a law with respect to which we have a command, because even halakha le-Moshe mi-Sinai has a command, and yet Maimonides still treats it as rabbinic law. The technical definition would then be: what is found in the Written Torah. The substantive definition would be: what has both command and substantive content. The absence of either one would prevent the law from being classified as Torah law.⁶²

It is worth noting that both of these possibilities supply an explanation, lacking in the view of most of the early authorities who disagree with Maimonides, for why there is a unique category of laws not written in the Torah itself but transmitted orally. That fact itself requires explanation. If the force of these laws is identical to that of laws written in the Torah, why did God choose to give some by oral tradition while others, not essentially different, were given in writing? According to our analysis, the explanation is simple: halakha le-Moshe mi-Sinai is a different kind of law — either a law with command but no substantive content, or with substantive content but no command.

We will now argue that according to Maimonides the second explanation is the correct one. He views halakha le-Moshe mi-Sinai as laws that come with command but without accessible substantive meaning.

By contrast, exegetical laws for which we have no tradition are laws for which we have no command, because derivation does not reveal them from the Torah but creates them by means of tools of expansion. What is not written in the Torah is not commanded. According to this, the role of derash is to show that the law being derived follows from the spirit of the command contained in the Torah. We do not have a command regarding it, but the logic underlying the written command shows us that a similar logic underlies the derived law. For example, the derivation Maimonides himself cites in the second root: “You shall fear the Lord your God” — this comes to include Torah scholars. The command “You shall fear the Lord your God” should not be read as a command also to fear sages, for sages are not to be equated with God. But the rationale underlying fear of God is also present in fear of Torah scholars. Thus a law learned through derivation is a law that has substantive content behind it — it is proper to behave that way — but with respect to it we have no command.

What is Maimonides’ actual view?

We can now see the first indication that this is indeed Maimonides’ position. This picture naturally explains the puzzling intermediate category Maimonides defines. We saw that according to him, laws of types 2 and 3 are rabbinic laws. That is, tradition alone or derivation alone each yields rabbinic laws. But their combination yields Torah laws. How can that be? The explanation is now simple. A Torah law is a law that has both command and substantive content. Therefore halakha le-Moshe mi-Sinai, which is command without substantive content, is a rabbinic law. For the same reason, exegetical laws, which have substantive content but no command, are also rabbinic laws. The combination of these two components — tradition and derivation — yields a law that has both command and substance, and that is why it counts as Torah law for Maimonides, as though it were explicitly written. Not necessarily because of the earlier mechanism, but because it has both command and substance, even if it is not explicitly written in the Torah.

Earlier we spoke of a mechanism of revelation versus expansion as the basis for classifying type 1 laws. We no longer need that here. The explanation we are now offering bears directly on the question of force without needing to invoke source. The source of such laws may indeed be the sages, but their force is that of Torah law. Still, the very fact that Maimonides treats these laws as Torah laws — and as we saw, in his terminology this designation fundamentally concerns source rather than force — obligates us also to adopt that earlier explanation, in order to show that these laws count as though explicitly written in Scripture and therefore deserve the title “Torah laws” even in terms of source. In terms of force, they deserve that title because of the explanation offered here. The two layers coexist.

Preliminary remarks toward clarifying legal force

The picture described here still does not itself address practical law; it is only a classification of the different kinds of commandments according to Maimonides. We have not yet touched the actual questions of force. But as we saw above, questions of force ought somehow to flow from the classification of sources. True, it is not the case that every category of rabbinic law has the same force. Similar source does not necessarily imply similar force. Yet the questions are connected.

To complete the first layer of the picture, we must therefore map the kinds of force associated with the different kinds of law. We have already noted that it is difficult to speak about “force” in Maimonides, because the distinctions are not derived directly from degrees of severity. As we will now see, Maimonides’ distinctions are indeed not about severity, but about the differing nature of the various categories.

Because of limitations of space, we will examine only one aspect of force: the laws of doubt. This will serve as an illustration of how the discussion should be conducted with respect to every halakhic aspect.⁶³ Each such aspect must be analyzed on its own, and for each category of law — halakha le-Moshe mi-Sinai, productive derivations, supportive derivations — the answer will follow from its nature. According to Maimonides it is impossible to make some sweeping statement that applies to all three categories together, such as “a rabbinic law is less severe, therefore its doubt is treated leniently,” or therefore it is overridden by human dignity, and the like. Whether doubt is treated leniently, or whether the law is overridden by human dignity, must be decided in each category by criteria specific to it.

The ambiguity regarding the laws of doubt in the various categories

As is well known, the halakhic rule is that doubt concerning Torah law is treated stringently, while doubt concerning rabbinic law is treated leniently. As we have mentioned more than once, this is one of the central rules from which Maimonides is challenged in both the first and the second roots. The reason is that it is the sharpest and most common practical consequence of the accepted distinction between Torah law and rabbinic law in terms of force and severity.

But according to our way of understanding Maimonides, the distinction between Torah and rabbinic law is a distinction of kind, not of severity. If so, why is there a general rule that doubt in Torah law is treated stringently and doubt in rabbinic law leniently? Does this rule also apply to exegetical laws and to halakha le-Moshe mi-Sinai? As Nahmanides repeatedly notes, and as also emerges from Maimonides’ own rulings, apparently it does not.

We thus learn that according to Maimonides there is a certain ambiguity here. The laws that he defines as rabbinic are divided into several kinds, some of which are usually classified as Torah laws. As Nahmanides proves, doubts regarding laws learned through derivation are treated stringently. By contrast, as we saw above, according to Maimonides doubts regarding halakha le-Moshe mi-Sinai are treated leniently. Ordinary rabbinic laws — decrees, enactments, customs — are certainly treated leniently in cases of doubt. What principle governs this complex map? How does it connect to the distinctions we drew earlier?

Maimonides’ own view concerning the laws of doubt

First, we should repeat here that Maimonides’ view is that the rule that doubt concerning Torah law is treated stringently is itself only rabbinic. He writes in Hilkhot Tum’at Met 9:12:

“It is known that all these impurities and the like, where the issue is doubt, are only by their words, and no one is impure by Torah law except one who became definitely impure. But all doubts, whether in impurities, forbidden foods, sexual prohibitions, or Sabbaths, are not of concern except by the words of the Sages, as we explained in the laws of forbidden intercourse and in several places. [Even so, a matter for whose deliberate violation one incurs karet, its doubt is forbidden by Torah law, for one who does it must bring a provisional guilt offering, as we explained in the laws of errors.]”

The bracketed addition in this version is the subject of great dispute among Maimonides’ commentators and among the different textual traditions. Many reject it on textual grounds. For example, how can it say that in matters punishable by karet doubt is forbidden, when Maimonides himself includes Sabbath and forbidden relations in his general statement? Moreover, in all the parallel passages in Maimonides’ writings — such as Hilkhot Issurei Bi’ah 18:17, Hilkhot Kilayim 10:27, and Hilkhot She’ar Avot ha-Tum’ah end chapter 16 — there is no hint of such a distinction, and the rule that all doubts are rabbinic is stated in a general and sweeping way. It therefore seems that there is no real basis for this textual addition, despite the fact that the Kesef Mishneh cites it and other later authorities mention it, and despite its adoption in the Frankel edition.

In truth, it is quite clear that the chief motivation for adopting this addition as the correct text is halakhic rather than textual. It apparently seems necessary, on halakhic grounds, that in cases of doubt where a definite prohibited object is present, one must be stringent by Torah law. The reason is that Maimonides himself rules at the beginning of chapter 8 of the laws of errors that in such cases one must bring a provisional guilt offering. But if the prohibition is only rabbinic, such an offering would be non-sacred in the Temple courtyard. That is why commentators wanted to understand the added text as distinguishing between cases where a definite prohibition existed, where even Maimonides agrees that one must be stringent by Torah law, and cases where no definite prohibition existed, where the obligation to be stringent is only rabbinic. But that is simply not what the text says here, even according to the corrected version in brackets. Below we will see that this halakhic pressure is not compelling at all, and one can fully maintain that the obligation to be stringent in all doubtful cases is only rabbinic, while preserving the original text of Maimonides as coherent.

Let us now return to the objection against Maimonides. If indeed the obligation to be stringent in doubtful cases is only rabbinic, then the objection to him becomes less severe. It is possible that the sages, for various reasons — perhaps they wanted to sharpen the distinction between Written Torah and Oral Torah, as Nahmanides suggests in his glosses on the first root to explain Maimonides’ rule that doubt in rabbinic law is treated leniently — laid down the rule that all doubtful rabbinic matters are treated leniently and all doubtful Torah matters stringently.

But this is probably not right. For we saw in Maimonides that in cases of doubt about betrothal by money one rules stringently; see, for example, Hilkhot Ishut 3:20. Moreover, Nahmanides takes pains to prove from many sugyot that doubts regarding exegetical laws are treated stringently. It is hard to believe that Maimonides disagrees with this in practice, and as noted one does not see him clearly ruling otherwise anywhere. We must therefore look for an explanation that depends on the specific type of law, not on a broad formal classification, as we already said one must do in Maimonides.

First we must set the boundaries of the discussion. Laws explicitly written in the Torah are certainly treated stringently in cases of doubt. At the other end, decrees and enactments are certainly treated leniently in cases of doubt. Regarding exegetical laws, we noted above that Maimonides probably agrees that their doubtful cases are treated stringently, even though he calls them “words of the Sages.” Regarding halakha le-Moshe mi-Sinai, there are several proofs from his words that doubts are treated leniently.

The first principle: in a state of doubt, is the command still manifest?

In order to tie the laws of doubt to the picture described above, let us first note what several later authorities wrote. See Rabbi Shlomo Zalman Auerbach’s explanation of the Shev Shema’tata, cited in the essay on the first root. Rabbi Auerbach assumes that Maimonides agrees with Nahmanides’ understanding of him in the first root, according to which every rabbinic transgression is in fact a violation of the Torah prohibition “you shall not turn aside.”⁶⁴ If so, we must explain why doubt concerning such prohibitions is not treated stringently; this was Nahmanides’ question on the first root. Recall that the discussion there concerned only enactments, decrees, and customs — that is, prohibitions traditionally regarded as rabbinic.

Rabbi Auerbach first explains that rabbinic laws have a different character from Torah laws. We saw above that Torah laws contain both an aspect of obedience versus rebellion and a substantive aspect. By contrast, rabbinic prohibitions contain only rebellion or obedience to the command, with no substantive dimension. Put differently: fowl cooked in milk is not intrinsically prohibited, at least not on the Torah level, for if it were, it would be an ordinary Torah prohibition. Our entire obligation not to eat fowl with milk arises from the obligation to obey rabbinic ordinances. One who violates it and eats has rebelled against rabbinic authority, but has not done an act that is intrinsically improper.

The source of this conception is the author of Netivot ha-Mishpat, section 234, who ruled that one who transgresses rabbinic prohibitions inadvertently need not repent, because he does not require atonement. He explains that one who inadvertently violates a command cannot be regarded as rebelling, since he did not know his act was prohibited. But in rabbinic laws there is no substantive dimension, only obedience to command. Therefore, when he transgresses inadvertently, he has done nothing wrong. There is no rebellion, and there is no intrinsically improper act in the sphere of rabbinic law.⁶⁵

Rabbi Auerbach then adds that something similar occurs in a situation of doubt. When we are in doubt, there is a doubtful command. But someone who acts leniently in a doubtful situation is certainly not regarded as rebelling, just as we saw regarding an inadvertent offender. Hence, in rabbinic prohibitions, unlike Torah prohibitions, if a person is in doubt he may commit the act, because there is no rebellion and no substantive problem, for in rabbinic prohibitions there is no substantive dimension at all.

This explains rabbinic prohibitions. We must now continue this line of thought and ask why doubt concerning Torah law — that is, laws explicitly written in the Torah — is treated stringently. We assumed above that according to Maimonides Torah laws have two components: substantive content and obedience to command. Which of these is responsible for the stringency in doubtful Torah cases?

Rabbi Auerbach’s reasoning clearly shows that the obligation to be stringent stems only from the substantive element. When we are in doubt concerning Torah law, the command as command is no longer operative, because in a state of doubt there is no prohibition of disobedience. What remains is the substantive element, namely the concern that if the prohibition is real, we will violate the original substance — we will damage or corrupt — and therefore in cases of doubt we must be stringent.⁶⁶ It follows that the rule that doubt in Torah law is treated stringently is due only to substance, not to command. For that reason, in rabbinic prohibitions there is no obligation to be stringent, since there is no substantive element there but only obedience.

Explanation of the overall map according to Maimonides: stringency in doubtful Torah matters is itself rabbinic

We can now begin to see the implications of this. First, it follows that the obligation to be stringent in doubtful cases is itself an obligation that carries no command in the Torah. For example, the obligation to be stringent when we are uncertain whether a food is meat cooked with milk does not derive from the command prohibiting meat and milk. In a state of doubt, the command attached to that law does not apply; one who violates it and eats is not regarded as rebelling against the command, as Rabbi Auerbach reasoned.⁶⁷ We can now see at once why, according to Maimonides, the obligation to be stringent in doubtful Torah cases is itself a rabbinic obligation. In Maimonides’ system, as we have seen, an obligation without command — that is, an obligation not written in the Torah — is not a Torah obligation but is called “from the words of the Sages.” Thus Maimonides’ famous view that the stringency in doubtful Torah cases is itself a rabbinic rule follows naturally from the analysis we have presented. Here too our analysis shows the coherence of Maimonides’ view.

At this point it is important to stress that in Maimonides generally, and here in particular, when we say an obligation is “rabbinic,” we do not mean its force or level of severity, but only its type. The obligation to be stringent may be a complete obligation — what is usually called, though not in Maimonides’ terminology, Torah-level force — just as according to other early authorities who think that the obligation is from the Torah. As we saw, Maimonides does not use the terms “Torah law” and “rabbinic law” to describe force, only source, and therefore his classification is different. His practical halakhic treatment of such an obligation, in terms of its severity, may be very similar to that of the early authorities who hold that the obligation to be stringent is from the Torah.

It remains to consider, however, what later authorities wrote — see Shev Shema’tata, section 1, chapters 1-2; Responsa Maharit, Yoreh De’ah 1; Pri Megadim, Yoreh De’ah 110; and many others — distinguishing within Maimonides between doubtful Torah cases where a definite prohibited object was present, where even according to Maimonides the obligation to be stringent is from the Torah, and doubtful cases where no definite prohibition was present, where Maimonides holds that the obligation to be stringent is only rabbinic. As noted above, some even sought to read this distinction into his wording in Hilkhot Tum’at Met. But according to our analysis this is very difficult, for even where a definite prohibition was present, we still have no more than a doubtful command, and we saw that doubtful command does not count as command. It is therefore only a doubt regarding substance. If so, here too the obligation to be stringent should be only rabbinic.

Indeed, our claim is that according to Maimonides the obligation to be stringent in all doubtful Torah cases is only rabbinic. Maimonides himself does not distinguish between cases with a definite prohibited object and cases without one when discussing the laws of doubt. He distinguishes only regarding the law of the provisional guilt offering; see the beginning of chapter 8 of the laws of errors. Those later authorities ask how, according to Maimonides, one can bring a provisional guilt offering if all doubtful prohibitions are only rabbinic, for then the offering would be non-sacred in the Temple courtyard. Therefore they concluded that doubtful cases requiring a provisional guilt offering, namely where a definite prohibited object was present, must be forbidden by Torah law even according to Maimonides.

But even if that difficulty is accepted, there is no need to force Maimonides in this way. One can say that there is truly no Torah obligation to be stringent in doubtful cases, even where a definite prohibited object was present, and nevertheless one who did not act stringently in such a case must still bring a provisional guilt offering. The reason is that a guilt offering is brought even when there is no sin at all.⁶⁸ A good example is the guilt offering for relations with a designated maidservant, where as is well known there is in fact no negative prohibition at all on one who has relations with her, and yet he must bring a guilt offering. More than that: Tosafot on Keritot 17b, s.v. “mi-de-saifa,” write that even in a double doubt one must bring a provisional guilt offering, though in a double doubt there is certainly no obligation to be stringent, not even rabbinically. Later authorities were puzzled by Tosafot on this point; see Sha’ar ha-Melekh on Hilkhot Tum’at Met 9:12 and the Lehem Mishneh on Hilkhot Shegagot 8:2. But on our account there is no difficulty at all, because a guilt offering can come even without any sin.⁶⁹

According to our analysis, then, Maimonides truly holds that doubtful Torah matters are treated leniently by Torah law, and the obligation to be stringent is only rabbinic, both where a definite prohibited object was present and where it was not. And yet where a definite prohibited object was present one still brings a provisional guilt offering. Thus the pressure to force a distinction into Maimonides, a distinction he himself never makes, and certainly to alter the text of his words, disappears.

Our conclusion is that according to Maimonides, in every doubtful Torah case the obligation to be stringent is only rabbinic. This is a necessary consequence of the picture we have described.

Doubt concerning “rabbinic” laws according to Maimonides’ definition

Up to now we have dealt with the implications of this picture for laws traditionally regarded as rabbinic. What about exegetical laws, type 3, and halakha le-Moshe mi-Sinai, type 2? We now turn to that.

With respect to exegetical laws, we saw above that they possess substantive content but no command. If so, in a doubtful case regarding a law learned through derivation, all we have is doubt concerning substance, because from the outset these laws contain no dimension of command. But as we proved above, doubt concerning substance obligates stringency — exactly as in ordinary Torah law, for in a state of doubt the element of obedience disappears and only the substantive issue remains. It follows that even in exegetical laws, although Maimonides defines them as rabbinic laws, in doubtful cases one must act stringently. Here we have a clear example of the distinction we made between “rabbinic” in the sphere of source and its significance in the sphere of force. It is therefore no problem for Maimonides that the sources cited by Nahmanides show that doubt concerning exegetical laws is treated stringently. These are rabbinic laws whose doubtful cases are stringent.

What about halakha le-Moshe mi-Sinai?⁷⁰ Here the matter depends on how we understand its nature. Above we proposed two possibilities. According to the first, halakha le-Moshe mi-Sinai has no command and only substantive content. On that view, its doubtful cases should clearly be treated stringently, as we saw that doubt regarding substance requires stringency. According to the second, halakha le-Moshe mi-Sinai has only command and no substantive content. On that view, doubt concerning it should be treated leniently, not stringently.

Now it is generally accepted among the decisors that doubt concerning halakha le-Moshe mi-Sinai is treated stringently. The only exceptional figure is Maimonides, and among his commentators there is dispute concerning this very point. On the one hand, most of his commentators write that doubt concerning halakha le-Moshe mi-Sinai is treated stringently. See, for example, Yad Malakhi, rules of Maimonides, letter 7; the Maggid Mishneh at the beginning of the laws of marriage; Megillat Esther here; and others. On the other hand, anyone who examines Maimonides’ Commentary on the Mishnah to Mikva’ot 7:7 and Kelim 17:12, which we cited above, sees immediately that doubt regarding halakha le-Moshe mi-Sinai is treated leniently. This is his language there:

“When they said ‘because it is from the Torah,’ they meant the root obligation of immersion in a collection of water. And the Tosefta says: with an olive’s bulk of a carcass and with a lentil’s bulk of a creeping thing, if there is doubt whether there is the required measure or not, its doubt is impure; for anything whose root is from the Torah and whose measure is from the words of the Sages, its doubt is impure. We have already explained that this does not contradict the saying that measures are halakha le-Moshe mi-Sinai, because everything not written in Scripture is called ‘from the words of the Sages.’”

Maimonides is explicitly ruling here that where a Torah law has a measure that is from the words of the Sages, meaning halakha le-Moshe mi-Sinai, doubt is treated stringently only because the law has a root and foundation in the Torah. By implication, where the entire law is halakha le-Moshe mi-Sinai, its doubt is treated leniently. The same appears in Maimonides, Hilkhot Shehitah 5:3.

To be sure, in Hilkhot Tum’at Met 2:10, in the discussion of a barley-sized bone that conveys impurity by touch and carrying, Maimonides writes:

“The impurity of a single bone is a law from tradition, for it is said, ‘and whoever touches a bone’; they learned by tradition that even a barley-sized bone conveys impurity by touch and carrying.”

“And because its impurity is a law, it is Torah law and not from the words of the Sages.”

At first glance this seems to show that Maimonides holds that doubt concerning halakha le-Moshe mi-Sinai is treated stringently. See the Kesef Mishneh and other commentators there, and Tosafot Yom Tov to Ohalot 7:3. But this can be rejected on the ground that Maimonides here may mean a different concept, “a law” or “from oral tradition,” not specifically halakha le-Moshe mi-Sinai.⁷¹ Moreover, perhaps because the laws of corpse impurity themselves are present in the Torah, and the derivation merely interprets the measure, this resembles what we saw above in the Commentary on the Mishnah to Mikva’ot: a matter whose root is in the Torah and whose measure comes from tradition is Torah law and its doubtful cases are treated stringently.

This principle can resolve many of Nahmanides’ objections, where he proves from several places in the Talmud that halakha le-Moshe mi-Sinai is regarded as Torah law and its doubtful cases are treated stringently. The terminology “Torah law” is not difficult for Maimonides, since it denotes force rather than source. And the severity of the law, namely that doubtful cases are treated stringently, as we have seen, is not always a matter of severity but of type. Doubts concerning halakha le-Moshe mi-Sinai that interprets existing laws are indeed treated stringently, because those laws are included in the written text. In such cases the Sinaitic law is interpretive rather than innovative.

For example, Nahmanides, in the first root, cites the sugya in Babylonian Talmud, Kiddushin 39a:

“And they treated matters that are halakha le-Moshe mi-Sinai stringently, as with Torah law. Thus they said in the first chapter of Kiddushin: ‘Orlah outside the Land is halakha le-Moshe mi-Sinai.’ And they asked: but was it not taught that doubtful orlah in the Land is forbidden, while in Syria it is permitted? This implies that if it were halakha le-Moshe mi-Sinai, its doubt would be forbidden.”

According to our analysis, one can answer that here the halakha le-Moshe mi-Sinai adds a detail within the laws of orlah, and therefore its doubtful cases are treated stringently.⁷² See also Nahmanides there for another proof from the passage in Yoma 28a; this too may be answered similarly.⁷³

According to the understanding of Yad Malakhi, halakha le-Moshe mi-Sinai has substantive content, and therefore in doubtful cases one must be stringent, just as with ordinary Torah laws. On that view it would be just like exegetical laws regarding doubt. But from the Commentary on the Mishnah cited above, and from Hilkhot Shehitah, the conclusion seems to be that according to Maimonides doubt regarding halakha le-Moshe mi-Sinai is treated leniently. This indicates that in halakha le-Moshe mi-Sinai there is only command and no substantive content. Therefore we are lenient in cases of doubt, because doubt regarding a law that has only command is treated leniently, since doubtful disobedience does not count as rebellion against command.

As noted above, the plain sense in Maimonides seems closer to the second direction, namely that halakha le-Moshe mi-Sinai contains command without substantive content, and therefore its doubtful cases are treated leniently. This also seems more plausible for another reason: halakhot given to Moses at Sinai usually seem not to be comprehensible and to lack explanation.⁷⁴ As we already noted above, this too points to the second direction, against Yad Malakhi.

In type 1 laws, which have both command and substantive content, the law of doubt will be exactly the same as with ordinary Torah laws, namely those explicitly written in the Torah. In such doubtful cases, what remains in doubt is the substantive component, and therefore one must be stringent.

Summary

We have seen that in Maimonides there is no sweeping rule in the laws of doubt — neither “doubt concerning Torah law is treated stringently” nor “doubt concerning rabbinic law is treated leniently” in the simple, uniform sense. The terms “Torah law” and “rabbinic law” in Maimonides do not describe force and severity; they simply describe different kinds of law. Therefore with respect to doubt, each of the kinds of “rabbinic” law must be considered on its own, not by a global rule based on source.

Laws that have a source in the Torah come with command. Laws with no source in the Torah, such as exegetical laws of type 3, come with no command, unless they are halakha le-Moshe mi-Sinai, type 2. As we saw, this radiates onto the laws of doubt. Those laws are to be determined according to the following principles:

• doubt regarding substance is treated stringently;
• doubt regarding command is treated leniently.

These two rules replace the familiar rules that doubt in Torah law is treated stringently and doubt in rabbinic law leniently. This explains why there are “rabbinic” laws regarding which we must be stringent, because they possess a substantive aspect, as with exegetical laws. By contrast, there are “rabbinic” laws regarding which we are lenient, because they contain only command and no substantive content. Regarding halakha le-Moshe mi-Sinai, we saw two possibilities reflected in the ambiguity surrounding its doubtful cases. But from Maimonides, in at least two places, it appears that he understands its doubtful cases leniently — that is, that halakha le-Moshe mi-Sinai is law with command but no substantive content — and, as noted, he holds that doubt regarding command is treated leniently.

Now in the responsum Sho’el u-Meshiv, sixth series, no. 51, the author writes:[^79]

“In my humble opinion, a new point may be suggested: that Maimonides too holds that all doubtful cases are from the Torah, and that the only difference is in terminology. For it is already known that our great master established as a principle that anything not explicit in the Torah is called by him ‘from the words of the Sages,’ even though in truth its law is like Torah law in every respect. As he wrote in the second root, and as the Zohar ha-Rakia and Megillat Esther explained, and so too the Maggid Mishneh wrote in chapter 1 of the laws of marriage, that Maimonides calls betrothal by money ‘from the words of the Sages’ even though its law is like Torah law, because it is not explicit in the Torah…”

“According to this, here too, although doubt concerning it is treated stringently by Torah law, still it is not explicit in the Torah that one should be stringent by Torah law. Therefore our master wrote that it is only ‘from the words of the Sages’; for that is what he calls ‘from the words of the Sages’…”

“Accordingly, our master properly wrote in chapter 18 of the laws of forbidden intercourse, and in Kilayim and Tum’at Met, that these are only from the words of the Sages — meaning only in terms of nomenclature, but in actual law their status is that of Torah law in every respect. And now this wording is very well explained, because our master already established in the roots that whenever we find the Sages calling something ‘a matter of Torah,’ it is called Torah law, even if it is not explicit in Scripture. If so, then certainly in a matter for which one is liable to bring a provisional guilt offering, where the Torah explicitly imposes that offering, it is then also called Torah law. Thus all the structures, difficulties, and contradictions raised against our master from many places are overturned, and according to what I have written everything is resolved. Reflect well, for this is a new insight.”

This passage offers a summary touching almost all the principles we have discussed, and so it is worth considering carefully. First, the author of the Sho’el u-Meshiv states that for Maimonides the term “Torah law” means “found in the Torah.” That is exactly what we proved above. He then assumes, as did most commentators, that according to Maimonides “from the words of the Sages” refers only to source and not to legal force. Here too he is proceeding along the lines we have taken, and in fact this is necessary, because if the distinction is not between the will of God and the will of the sages but between what is found in the Torah and what is not, then clearly the distinction is not one of force and severity, as according to the other early authorities, but one of type.

The author of the Sho’el u-Meshiv adds that the force of these laws is Torah-level. Here he parts company with our view, for we argued that according to Maimonides there is no global division according to force, and every practical consequence must be discussed on its own. The distinction between Torah and rabbinic law is a distinction of source, while force is determined contextually in each case. From this he concludes that one can also explain Maimonides’ statement that the rule of stringency in doubtful Torah cases is itself “rabbinic,” because with Maimonides “rabbinic” denotes source rather than force. Here too that certainly accords with our approach.

He concludes that the force of the obligation to be stringent in doubtful Torah cases is in fact Torah-level, and that its being called “from the words of the Sages” concerns only source. This is exactly parallel to what we suggested above: the obligation to be stringent does indeed have its source “from the words of the Sages,” because it is not itself written in the Torah, while its force must be examined in each context separately. Of course, the Sho’el u-Meshiv assumes, like the Tashbetz, that the force of all these laws is Torah-level. Here we have departed from him, because we argue that according to Maimonides there is no such concept of uniform force; each context must be examined on its own, and in particular the distinction between halakha le-Moshe mi-Sinai and exegetical laws cannot be ignored.

In the end he also assumes that a provisional guilt offering is brought for sin, and from this he proves that the rule of stringency must itself be Torah-level. But as we already noted, that is not necessary, for guilt offerings are brought for damage or substantive violation, not necessarily for sin in the sense of rebellion against command.

Having seen how our explanation of Maimonides applies to the laws of doubt, we would next have to go through all the other places where halakha distinguishes between Torah and rabbinic law, and ask how each is to be explained according to Maimonides at the substantive level, without using sweeping notions of force and severity. In every such context one must find a substantive explanation of the halakhic rule in question, according to the nature of the laws involved rather than merely their severity. In all these cases there is room to distinguish between the various kinds of rabbinic law, depending on the matter.

Nahmanides listed a good number of such cases in his glosses on Maimonides in the first root. There he brings all the places where the Sages distinguish between Torah and rabbinic laws.

We would therefore now need to go through all those places and see what their implications would be for the kinds of rabbinic law introduced here. In which matters should exegetical laws and halakha le-Moshe mi-Sinai be treated like rabbinic law, and in which matters like Torah law? Again, everything must be determined by the substance of the case, not necessarily by force or severity. This is not the place to elaborate, and, God willing, the matter will be discussed in the fourth volume of the quartet.

F. Appendix: The Sorites Paradox — Between Legislation and Interpretation⁷⁵

Introduction

In this chapter we depart somewhat from the discussion of the root itself, in order to note a point common to both roots studied so far. This point has very great halakhic and jurisprudential importance, because it can illuminate several contemporary problems concerning the relation between legislation and interpretation. Even so, because of limited space, we will confine ourselves here to brief remarks.

The first root

In the first root we drew attention to a puzzling point that arose from Maimonides’ treatment of the commandment of “sufficient for his need.” There Maimonides attacked the Halakhot Gedolot for including the commandment to clothe the naked in its count, even though this is included within the general commandment of charity, learned from the verse “sufficient for his need, whatever he lacks.” At first glance this suggests that Maimonides views clothing the naked as a Torah commandment, and objects only on the basis of a rule of non-enumeration grounded in duplication, the rule described in the seventh root. But if so, it is puzzling that Maimonides includes this attack in his discussion of the first root, where he deals with whether to count rabbinic commandments; that is not the issue in the commandment of clothing the naked.

We are therefore forced to conclude that Maimonides regards the commandment to clothe the naked as a rabbinic commandment, even though it also constitutes fulfillment of a Torah positive commandment. This reminds us of Maimonides’ well-known ruling at the beginning of chapter 14 of the laws of mourning:

“It is a positive commandment of their words to visit the sick, comfort mourners, accompany the dead, bring in the bride, escort guests, occupy oneself with all the needs of burial, carry on the shoulder, walk before the bier, eulogize, dig, bury, and likewise to gladden bride and groom and support them in all their needs. These are the acts of lovingkindness performed with one’s body, for which there is no measure. Even though all these commandments are from their words, they are included within ‘you shall love your neighbor as yourself’: whatever you would want others to do for you, do for your brother in Torah and commandments.”

The contradiction is plain. On the one hand, the commandments listed here are “from their words”; on the other hand, they fulfill the Torah positive commandment “you shall love.” How can this be? The conclusion is that Maimonides is prepared to recognize particular applications of Torah commandments that nevertheless have the standing of rabbinic commandments.

In truth, this picture fits exactly the main conclusion of our essay on the first root. There our conclusion was that, at least according to Maimonides, and perhaps Nahmanides as well, rabbinic commandments ramify from “you shall not turn aside,” yet still have the standing of rabbinic commandments rather than that of a Torah prohibition. That is precisely the point of the definition we proposed there of “ramification” as opposed to “specification.” Specification is the logical, deductive growth of branches from roots, in which the conclusion is already contained in the premises; it is only a particular case of them. In such a case it is clear that the legal status of the conclusion is exactly that of the premises. Ramification, by contrast, is a softer kind of growth. The branches do not simply specify the roots but expand them in some way. Such expansion proceeds by means of analogy and induction, not deduction. There we also proposed a detailed argument showing how rabbinic laws ramify from the prohibition “you shall not turn aside,” in such a way that not every rabbinic transgression becomes a Torah prohibition.

Thus at the opening of the discussion we were faced with two opposite poles: either rabbinic commandments are specifications of a Torah prohibition, in which case we face the problem of understanding their lower status, or they are not derived from the prohibition at all, in which case we face the problem of the source of their authority and force. That dichotomous situation seemed insoluble. The way out was to seek a middle path that gives up the conceptual dichotomy. Instead of assuming that the relation between rabbinic law and Torah law can only be one of specification or complete disconnection, we proposed a more complex intermediate relation: there is a connection between the rabbinic law and its root in Torah, but it is by no means a simple specification of it. This is the only way to solve the dilemma before us.

The second root

In the second root we present a very similar phenomenon. There too we faced a dichotomous dilemma, this time between two positions about Maimonides’ view: either derivations are interpretations of the verse, in which case their status is Torah law and Maimonides’ words concern only history, not halakha; or they are merely asmachta, in which case they clearly are not interpretations of the verse, and their status is that of rabbinic law.

We saw that neither of these sides can accurately describe the full range of Maimonides’ statements. The conclusion was that we must abandon the dichotomous assumption underlying the dilemma: the relation between a law and the verse from which it is learned is not binary — either derived from the verse or unrelated to the verse. There are intermediate cases in which the law expands the verse but is not a simple realization of it. In the terminology of the previous root, it ramifies from the verse but is not a specification of it.

In fact, in the fourth volume we will broaden the discussion and examine a number of such intermediate shades, such as substantial and insubstantial asmachta, and others. Here too we have seen several such shades, such as halakha le-Moshe mi-Sinai, productive derivations, supportive derivations, and so forth.

This phenomenon joins what we saw in the previous essay: dilemmas that seem insoluble are sometimes resolved by freeing ourselves from the conceptual captivity in which we are trapped. Maimonides changes the meaning of the concepts “Torah law” and “rabbinic law,” replacing the dichotomy with a continuum of relations between the laws established by the sages and the written text. That continuum stretches from laws explicitly written in the Torah to full asmachta, laws having no substantial relation to the text. We have seen that this also has halakhic consequences, and that each shade can carry different halakhic characteristics.

The sorites paradox⁷⁶

To expand on this, let us consider the sorites paradox, which we have discussed more than once in other contexts as well. Many everyday concepts do not conform to strict binary logic. This phenomenon was first presented by the Greeks in relation to the concept of “bald.” In contemporary philosophy it is usually called the “sorites paradox.”⁷⁷ Let us formulate the familiar version:

• Premise A: A single grain of gravel is not a heap.
• Premise B: If a pile of gravel is not a heap, then adding one more stone will not change its status, and it still will not be a heap.
• Premise C: A pile of a million stones is a heap.

As is easy to see, although each of these three premises sounds highly plausible in itself, they cannot all be accepted together. At least one must be false. So what is wrong? Which one is mistaken, and why?

Before answering, note that almost all everyday concepts are vulnerable to a similar attack. For example, the concept “afternoon”:

• Premise A: 12:00 is not afternoon.
• Premise B: If a given instant is not part of the afternoon, then adding one second will not change that.
• Premise C: 16:00 is afternoon.

Each of these sounds plausible on its own, but they cannot all be true together.

The same is true of the question what counts as “red,” where the steps are minute changes in wavelength; or what counts as an “island,” as opposed to mainland or a rock in the sea; or what counts as a “table,” when a chair is gradually transformed into a table, whether functionally or formally; and so forth.

The root of all these perplexities is one: everyday concepts do not have sharp meaning. For example, “heap” is not a binary concept, that is, one taking only two truth-values, true and false. A pile of stones is not simply either a heap or not a heap. Such a pile can be “not a heap,” “a bit of a heap,” “very much a heap,” or “fully a heap.” More generally, the truth-values relevant to everyday concepts are not merely the pair true/false, but a continuum of values.⁷⁸

Consequences for the relation between Torah law and rabbinic law

In these terms we can say that in both roots we discover that the concepts “Torah law” and “rabbinic law” are not binary. There is a continuum of intermediate levels that are “somewhat Torah” or “rather rabbinic,” and so on.

An even more fruitful formulation is obtained if we look at the roots of these concepts. In the essay on the first root we argued that rabbinic laws are typically produced by a mechanism of legislation, whereas Torah laws are generally produced by a mechanism of interpretation. We can now generalize and say that the terms legislation and interpretation are themselves not binary. There are mechanisms that contain elements of both legislation and interpretation. But that is not yet the main point. If this were only a simple mixture of the two, there would be no great novelty. Our claim is stronger: the concepts themselves are not sharp. There are mechanisms that are rather legislative and very interpretive, or quite interpretive and somewhat legislative, and so forth. This is not merely a mixture but a continuous conceptual system.

When a sage expounds the Torah, he expands what he finds in the verse; he does not merely uncover what is already contained in it. But clearly this is not full legislation. The act remains highly interpretive. The result is not simply a product of the sage’s own reasoning, but of his understanding of the text, though certainly interwoven with his own reasoning.

Thus legislation and interpretation are not dichotomous mechanisms. There is a continuum of inferential processes lying between the two in their ordinary sense.

Consequences for interpretive theory

We have noted that both the interpretations of Maimonides and the dispute between Maimonides and Nahmanides itself rest on differing theories of interpretation. According to Maimonides there is only one true interpretation for each text, and Nahmanides revolts against that point. We can now say that even Maimonides does not assert this in its absolute form. He says only that there is only one plain-sense interpretation — one that he is willing to say actually reveals what is in the scriptural text. There are many further modes of expanding the text, but they are not “interpretation” in the full sense. Thus the continuum of values characterizes the concept of interpretation itself as well.

Put differently: for Maimonides, “Torah law” means present in the written text. But presence in the written text is not binary. It is not correct to say that every law is either present in the text or is legislation disconnected from it. There are different degrees of relation to the text, and the various derivations deal with these intermediate shades. They contain something of revelatory interpretation and something of legislation. The hermeneutical principles are tools of expansion that discover ramifications of what is written in Scripture.

The commentators ask how Maimonides can on the one hand treat exegetical laws as included within the Torah, thereby distinguishing them from rabbinic enactments, that is, treat them as a kind of interpretation and not as legislation; and at the same time say that they are not included within the Torah itself, thereby distinguishing them from Torah laws, that is, treat them as legislation and not as interpretation.

Our answer is that the concepts “included in” or “present in” the Torah are not sharp concepts. They are everyday concepts and therefore inherently vague. A given law may be fully included in the Torah, very much included in the Torah, fairly included in the Torah, only slightly included in the Torah — this is probably the Ritva’s notion of asmachta in Rosh Hashanah 16a, which we have encountered several times — or not included in the Torah at all. Laws truly included in the Torah, that is, explicitly written in verses, are Torah laws. Laws very much included in the Torah, that is, received by tradition and having an exegetical anchor in verses, are also Torah laws. Laws fairly included in the Torah are laws from the words of the Sages in the sense we defined above. Maimonides does not actually call them by that name, though he classifies them separately. These too divide into two categories, productive derivations and halakha le-Moshe mi-Sinai. Laws not included in the Torah at all, or included only slightly, meaning they have merely asmachta, are rabbinic laws.

Exegetical laws are present in the written text only loosely, in such a way that their derivation proceeds by analogy and induction rather than deduction. But they are not a complete invention, for if they were that, we would have legislation rather than midrash.

It should again be noted that halakha le-Moshe mi-Sinai is exceptional, since it is not included in the Torah at all, yet still has an intermediate status. These are laws from the words of the Sages in our terminology, not ordinary rabbinic enactments. This is probably an expression of their force, not their classification. That point connects to the question discussed below: whether according to Maimonides there is an independent plane of legal force apart from the plane of source.

Legislation and interpretation in jurisprudence

We referred in the first root to the distinction between delegated legislation and primary legislation. Delegated legislation receives its authority by virtue of primary legislation, which authorizes some governmental body to issue regulations in its sphere of competence. The same question arises there as well: why is the status of delegated legislation lower than that of primary legislation? After all, anyone who violates a regulation thereby indirectly violates the statute that authorized its enactment, and yet we still regard him as violating only secondary legislation.

Here too the answer would be that delegated legislation ramifies from primary legislation, but is not a mere specification of it, though the mechanism may differ from the one described in the earlier essay.

Similar questions arise regarding the judicial activism introduced by Aharon Barak. Why does the court not confine itself to the role of interpreter of the law, and instead resort to “creative” interpretations that amount de facto to legislation? One may debate the proper balance, but it is important to remember that the distinction between legislation and interpretation is vague by its very nature. Every interpreter contains something of the legislator. There is no escaping this difficulty, and the positivist illusion — that adjudication can proceed by purely deductive tools, deriving the decision from the written law by logic alone — has long since ceased to be tenable.

The great question, which still has not been answered, here no less than elsewhere, is what justifies a judge in employing quasi-legislative mechanisms. Is it only an unavoidable necessity, or is there also a substantive justification? Does expansive interpretation genuinely reveal something, or at least connect to the law in some real sense, or is it merely an expression of the interpreter’s own desires, values, and aspirations?

We have already mentioned several times, beginning with the introductory essay, the analogy between the axis interpretation-legislation and the axes rationalism-empiricism and thought-perception. The basis for there being intermediate shades between all these pairs is very similar, and it touches on Kant’s problem of the synthetic a priori and on the analytic-synthetic distinction discussed at length in the quartet Shtei Agalot ve-Kadur Poreach.

Our basic claim here in fact belongs to hermeneutics, the theory of interpretation: the interpreter also reveals something in the very act of interpretation, and not only in the legislative component that accompanies interpretation. A fuller treatment of this general formulation lies beyond the bounds we allow ourselves here. For further expansion we refer the reader to the fourth volume of the quartet, which, God willing, will appear next year.

Footnotes