Front Matter — Title, Table of Contents, Introduction

From the book The Spirit of Law by Rabbi Michael Avraham. Translated from Hebrew using gpt-5.4 (reasoning_effort=high, batch API).

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The Spirit of Law

On the Synthetic A Priori in Halakhic and General Jurisprudence

The writing of this book was made possible through the assistance of the Minister of Education’s Prize for Jewish Creativity for the year 5764.

“And for a spirit of justice to him who sits in judgment, and for strength to those who turn back the battle at the gate.”

Isaiah 28:6

Table of Contents

• Introduction
• Preface: The Roots as a Framework for the General Architecture of Maimonides’ Writings
• Passages from Maimonides’ Introduction to the Mishnah
• Part One: The First Root
• The wording of Maimonides’ formulation of the first root
• Contents of Part One
• Gate One: The nature of rabbinic mitzvot (commandments) and the source of their legal force
  • Chapter 1: On the problem of the halakhic status of rabbinic mitzvot: an initial survey
  • Chapter 2: Nahmanides’ approach
  • Chapter 3: Maimonides’ approach
  • Chapter 4: Specification, ramification, and asmakhta (scriptural support)
  • Summary arising from Gate One: The legislative authority of the Sages
• Part Two: The Second Root
• The wording of Maimonides’ formulation of the second root
• Contents of Part Two
• Gate Two: The hermeneutical rules of drash (rabbinic exegesis), their source and meaning
  • Chapter 1: Systems of hermeneutical rules and their source
  • Chapter 2: Derivations that create and derivations that support
• Gate Three: A survey of the different sources in Maimonides’ writings and the various problems they raise
  • Chapter 1: Maimonides’ basic claim
  • Chapter 2: Difficulties in Maimonides’ approach: a survey of the sources in his writings
  • Chapter 3: Difficulties in Maimonides’ approach: conceptual aspects
  • Chapter 5: Difficulties in Maimonides’ approach: aspects arising from what is found in the Talmuds
  • Chapter 6: Directions of solution proposed by the commentators
• Gate Four: Our proposal for explaining Maimonides’ approach
  • Chapter 1: The concepts “de-oraita” (of Torah origin) and “derabbanan” (of rabbinic origin) at the conceptual level
  • Chapter 2: Applications to various halakhic categories
  • Chapter 3: The concepts “de-oraita” and “derabbanan” at the level of legal validity
  • Chapter 4: How Maimonides explains the legal differences between de-oraita and derabbanan laws
  • Chapter 5: Three types of operation of the tools of drash
• Part Three: The Synthetic A Priori in Jurisprudence
• Gate Five: Halakhic jurisprudence — a general view of the two roots
  • Chapter 1: Summary and general view of the two roots
  • Chapter 2: Halakhic implications: the parameters of “you shall not turn aside”
  • Chapter 3: The logical and halakhic relations between the two mechanisms
  • Chapter 4: A unification of the two modes of extension: extension and explanation
• Gate Six: Implications for general jurisprudence — law and halakha
  • Chapter 1: Halakha and law: Maimonides’ two roots in light of civil legal systems
  • Chapter 2: Foundational concepts and issues in the philosophy of law: a selective introduction to jurisprudence and legal interpretation
  • Chapter 3: Interpretation, agreement, stability, and discretion: between halakha and law
  • Chapter 4: Analyticity and syntheticity in law, in halakha, and in philosophy
• Gate Seven: The philosophical foundation — the synthetic a priori
  • Chapter 1: Chapters in dialectic
  • Chapter 2: The analytic and the synthetic
  • Chapter 3: Justifying the dialectical synthesis: two types of the synthetic a priori
• Summary and Conclusions: “The Third Way” as an expression of the synthetic a priori
• Appendices
• Appendix A: A study of Nahmanides’ objections to the first root, and the views of the other medieval authorities
• Appendix B: A study of Maimonides’ criticisms of Halakhot Gedolot in the second root
• Appendix C: The views of the other medieval authorities on issues arising in Gate Three
• Appendix D: Laws derived from reason
• Appendix E: What is a command?
• Appendix F: The interpretive theories of Maimonides and Nahmanides — the relation between plain meaning and drash
• Appendix G: The historical development of the concepts “de-oraita” and “derabbanan”
• Appendix H: The nature of the guilt-offering
• Appendix I: Two types of primary categories and derivatives: the relation between the general rule and the specific case that branches from it
• Appendix J: “The Third Way”
• Notes
• Note 1: The problem of normative grounding: Torah, halakha, and law — work undertaken for its own sake
• Note 2: The prohibition of “you shall not add” in rabbinic enactments
• Note 3: Maimonides on gezerah shavah (verbal analogy) as a prohibition
• Note 4: An example of a halakhic implication of the meta-halakhic plane of discussion: priestly garments
• Note 5: Essence and command
• Note 6: The difference between “what he lacks” and clothing the naked
• Note 7: On the nature of the mitzvot of ritual hand-washing and eruv
• Note 8: The individual and the community

Introduction

The Quartet

This book is the fourth and final volume in the quartet that began with Two Wagons and a Hot-Air Balloon (hereafter: the first book).¹ As I already noted in the previous books, the original plan was to write a trilogy laying out the implications of the analytic-synthetic confrontation in various fields. The first book presented the basic concepts and methods, together with the general cultural and philosophical background of the issue. The second book, What Is and What Is Not (hereafter: the second book), dealt with the application of those concepts and methods to science, religion, and myth. The third book, Man Is Like Grass (hereafter: the third book), presented the various implications with respect to the human being, and especially with respect to the way human beings think and act.

After completing the trilogy, I turned to examine Maimonides’ roots, which had always aroused great curiosity in me. This is a unique text, and I saw in it enormous potential for research and for understanding the foundations of halakha (Jewish law) and halakhic thought, and even for examining some of the foundations of general philosophy. After working on Maimonides’ first two roots, I realized that the picture emerging from them is a system touching on some of the very foundations of halakhic jurisprudence. Beyond that, and quite surprisingly, I came to see that this picture too is based on an application of the conceptual system developed in the trilogy, this time with respect to jurisprudence, both in halakhic law and in law generally. Thus the trilogy suddenly became a quartet.

Interpretation and Legislation as Thought and Cognition

This section is very important for understanding the context of the entire discussion. A fuller development of the points presented here briefly will appear in the third part of the book.

The main thesis of the present book is based on an analogy drawn here between the pair legislation-interpretation and the pair thought-cognition. In the first two books of the quartet we focused on the relation between thought and cognition. Cognition is a case of something-from-something, whereas thought is a case of something-from-nothing. Cognition is based on forming some connection with the world, and as a result impressions are created in our cognitive system. It brings data from the world to our awareness. There is therefore an element here of something-from-something, since the mental product is a derivative of the objective world itself. See on this the second gate of the first book. Thought, by contrast, is seemingly detached from connection with the facts, or with the world, and takes place wholly within the mind of the thinker. Thus, unlike cognition, thought creates its products as something-from-nothing.

Once the data are brought to our awareness by means of the tools of cognition, thought can process them. Part of this processing is analytic, in the terms of the first book, and part of it is expansive, or synthetic, in those same terms. Thought can also invent new ideas without any connection to the world, and in that sense too it is a case of something-from-nothing. Even intellectual extensions made from factual data, such as their generalization into universal laws of nature, are cases of something-from-nothing, because the general rule, or law, contains something beyond what is present in the particulars from which it is derived. This extension is a product of thought, not of facts or observation of something outside us. As we saw in the previous books, this is the foundation of synthetic thought, and especially of our synthetic a priori capacity.

The basic problem that exists in the relation between thought and cognition, as Kant formulated it, is this: how do we arrive at claims about the world that do not follow analytically from the data delivered to us by cognition? Kant calls such claims “synthetic a priori judgments.” The terminology was explained in the first gate of the first book, and we shall return to it in the third part here as well. All laws of nature are claims of this type, and therefore their validity cannot be explained or grounded by empirical observations alone. On the other hand, if such claims are products of thought, then apparently there is no basis for assuming that they fit the manner of operation and structure of objective reality as such. After all, thought is an autonomous mechanism, coming only after the gathering of factual data. Kant’s dilemma, then, is how synthetic a priori judgments are possible: products of our autonomous thought which nevertheless make claims about the objective world outside us.

In the first and second books we argued that accepting claims formulated through synthetic a priori judgments conceals behind it a principled abandonment of the dichotomy between thought and cognition. If thought yields analytic judgments, judgments that do not add anything beyond what was already in us before the act of thought, and cognition yields synthetic judgments, judgments that teach us something new that we did not previously know, then synthetic a priori judgments reach us by means of a third capacity: cognizing thought. This capacity is referred to by different thinkers, in different contexts, by different names, such as “a sixth sense” in ordinary language, “intuition,” as discussed in the previous three books, “eidetic vision,” that is, the viewing of essences, in Edmund Husserl’s terms, “the eyes of the intellect,” in Maimonides’ opening to Guide of the Perplexed, “auditory reason,” in the terminology of Rabbi HaNazir in his book The Voice of Prophecy, and so on. All of these express, in one way or another, a capacity composed of a combination of dimensions of cognition and thought together: eyes-intellect, reason-hearing, vision-ideas, and the like.

For example, when we observe objects with mass always falling toward the earth, that is, the fact that they cannot simply remain suspended in the air, we arrive at the conclusion that there is a general law of gravitation. That law is not a product of the empirical data alone, for those data could be interpreted in several other ways. Therefore the mechanism of generalization that led us to this law contains an a priori dimension, which is nonetheless synthetic, since it makes a novel claim about the world beyond what we observed directly. In the first and second books we saw that this part of our generalizing thought is the product of the capacities mentioned above.

If we now shift our gaze to the moral-normative sphere, we arrive at the picture described in the third book. There we discussed the structure of our map of norms, “norms” in the broad sense, including ethical, aesthetic, and other judgments, and the ways they are formed and validated. In the present book we narrow the focus further and look at a very specific kind of norms: those belonging to the legal-halakhic sphere.

In this context we distinguish between two different legal acts, legislation and interpretation. As noted, one can see a clear parallel between these two and the pair thought-cognition. Interpretation is the interpreter’s response to enacted law. It is not supposed to create something from nothing, but rather to bring legal data, that is, objective reality or facts in the legal context, to our awareness, and at most to interpret them. This is legal cognition, and in that respect it parallels cognition, as opposed to thought. It does not invent things; it discloses what is before us, by means of observation or reading, or what lies behind it, by means of interpretive tools. If cognition turns toward factual reality, interpretation turns toward legal “reality.” The facts standing before it are the laws, and it seeks to know, understand, and interpret them. Legislation, by contrast, is not an act performed upon existing law, but one that creates a new law. Usually this is an autonomous act performed within the legislative body itself, just as thought takes place within the mind of the thinker. It has no direct connection to what already exists, that is, to legal facts already present in the world, even though there must of course be coherence; here, however, we are concerned only with the general schema. In that sense, this is a creation of something-from-nothing, not something-from-something, and therefore it parallels thought rather than cognition. The principles of legislation are not products of any facts, even if they may take them into account.

We shall see here that Kant’s dilemma of the synthetic a priori appears in various forms in the legal sphere as well. This can be seen in places where the interpreter departs from pure “cognition” and adds a generalizing and expansive dimension of his own, something akin to legislation. Contemporary legal thought is well aware of such phenomena, some call them “judicial legislation,” and they provoke both professional and public controversy. What legitimates a judge, who was not elected by the public in order to legislate but appointed in order to interpret and apply enacted law, to employ expansive and generalizing interpretation? In principle, he is overstepping his authority, since such interpretation contains a legislative dimension, adding elements beyond the dry legal facts. Such activity lies beyond the interpreter’s natural mandate, which is supposed to be only to interpret and apply existing law, not to legislate. Ostensibly, the judge is meant to be a kind of official, whose authority is solely to interpret what the legislator creates, not to legislate himself. Yet again and again we are forced to see that, contrary to the positivist illusion that one can create a legal system from which every normative instruction can be derived by unambiguous deductive tools, nearly every act of interpretation contains some non-deductive dimension resembling legislation in its essence. This means that the product of interpretation is not hidden in the law itself, but is created to some degree by the interpreter, the judge. He legislates, and thereby adds further elements to the written and enacted law.

As we saw in the previous books, the same is true of cognition. Nearly every cognition contains some subjective dimension characteristic of thought, for the products of cognition are not just the bare facts we observe directly. Kant even relied on this in order to propose a solution to the dilemma of the synthetic a priori; in the first book we explained why that solution fails. In the same way, legal theory, or legal interpretation, contains active, generalizing components that go beyond passive cognition of facts. For that reason, it is difficult to distinguish between acts of thought or legislation and acts of interpretation, that is, legal cognition, exactly as we saw in everyday life and in scientific practice. The conclusion is that the world of law too contains a category of the synthetic a priori, and this is the philosophical basis for what is called there “judicial legislation.”

As with the examples we encountered in the first and second books, debates at these points in the legal sphere are conducted mainly on the practical-descriptive level, that is, the phenomenological one, and do not descend to the philosophical root of the problem. For this reason they are often fruitless. Sometimes it seems that each participant is occupied with his own formulations, but it is hard to find genuinely philosophical foundations for the theses under debate. From reading a considerable amount of material in these fields, I came to feel that one of the central reasons for this is that most theorists of law do not truly belong to the philosophical discipline. Most are jurists with one or another philosophical inclination. Consequently, they do not descend to the depth of the philosophical sphere of the discussion, and remain on its descriptive-phenomenological level.

In this book we shall attempt to descend to the philosophical root of the problem, and thereby to guide the discussion onto deeper and clearer tracks, even if that does not necessarily resolve it. We shall argue that this dilemma is nothing other than another expression of the analytic-synthetic conflict, this time as it appears in the legal sphere. Our position regarding the problem is a consequence of the message of the entire quartet: there is indeed legitimacy to the synthetic a priori. It does not express only subjective and arbitrary outcomes, as postmodern thinkers claim. Nor is it merely the result of a necessary evil, an unfortunate recognition that one cannot do without it. Its foundation lies in a human capacity implanted in all of us, what I called above “cognizing thought,” and see above for additional names, and therefore it contains an objective dimension, even if it is not necessary in the strict sense. From this it follows that judicial legislation is not only necessary but also legitimate. In jurisprudential thought, many justify it only out of necessity, that is, because one cannot interpret without expanding and introducing something of the interpreter himself into the interpretation. It appears to be a human defect, and necessity is not to be condemned. My claim here, by contrast, is that this is not merely a constraint, but a legitimate tool of our cognition and interpretation. The products of judicial legislation are legitimate, and even “valid,” products of the enacted law. They truly emerge from it, and are not merely an unavoidable concession. One may say that this is an “expansive disclosure” of what is present in the law. This is the synthetic a priori as it appears in jurisprudence. The term “expansive disclosure” will recur more than once in what follows.

Interpretation and Legislation in Halakha

The medium through which I shall present these matters will be halakhic. We shall see in halakhic issues dilemmas and perplexities very similar to those described above, although students of those issues generally do not identify them as such. I shall argue that the root of the misunderstandings and halakhic and meta-halakhic disputes in the topics discussed here lies in an implicit assumption about the dichotomy between legislation and interpretation, or more precisely in unawareness of the synthetic a priori domain that lies between legal-halakhic thought and legal-halakhic cognition.

In the philosophy of science, David Hume raised fundamental problems concerning the relation between thought and cognition, and Kant reformulated them by means of his distinction between the analytic and the synthetic. In our previous books we proposed a possible philosophical basis for that distinction, something Kant tried unsuccessfully to provide. In this book we undertake a very similar move. Problems concerning the relation between legislation and interpretation have accompanied halakhic thought for many years, but here we shall try to give them new clothing and formulation, placing them on a philosophical, or meta-halakhic, platform. That presentation, I believe, will lead us naturally toward solving those problems.

The first two parts of the book deal with halakhic legislation and halakhic interpretation. The texts that will serve us in examining these subjects are Maimonides’ first two roots, on which see below. We shall see in these two sources different faces of the halakhic tension between legislation and interpretation, and we shall see why the solution of the synthetic a priori is called for, and almost necessary. After that, in the third part, we shall broaden the scope beyond halakha. There we shall deal with the more general philosophical and legal dimensions, and connect them to the discussion conducted in the previous three books regarding the synthetic a priori in general.

In halakha, the Sages are primarily interpreters, for the legislator is God, in the Written Torah and the Oral Torah. In that sense they parallel judges in a civil legal system, that is, the judicial branch. True, the Sages also have the power to enact new laws, namely rabbinic enactments of various kinds, and in that respect they resemble a parliament, that is, the legislative branch. As we shall see, these two powers derive, in one way or another, from the verse:

“According to the instruction that they instruct you and according to the judgment that they tell you, you shall do; you shall not turn aside from the matter they tell you, to the right or to the left.”

Deuteronomy 17:11

This verse is the source of the authority of the Sages both to interpret and to legislate. But it is important to notice that these are two powers fundamentally different in nature, and therefore also two utterly different directives of the verse. Below we shall sharpen the distinction between these two directives, yet we shall also see that it is not quite so unequivocal.

Maimonides’ first root deals with the legislation of the Sages, its nature, and the source of the Sages’ authority to legislate. That root will occupy us in Part One. The second root deals with the same questions regarding interpretation and drash, and it will occupy us in Part Two. In each of these discussions we shall see that one cannot interpret without legislating, and perhaps also cannot legislate without interpreting.

Already here I should say that these difficulties will lead us, in each part separately, to the conclusion that the sharp dichotomous distinction between legislation and interpretation must be abandoned, and thus the synthetic a priori will appear in the halakhic-legal sphere. As noted, in the third part we shall discuss the picture that emerges from the first two parts, its meaning, and its philosophical roots.

The title of the book, and the verse from which it is taken, expresses the fact that the end of the road on which we have walked through the four volumes of the quartet is the commandments of the Torah. There lies the root of everything, and to there everything ultimately goes.

About the First Two Roots

I now wish to devote a few words to Maimonides’ first two roots. Maimonides’ remarks in his first two roots, especially in the second root, have constituted a puzzle ever since they were written, for more than eight hundred years. Each of them separately, and both of them together, have provoked intense controversy, both regarding their interpretation and understanding and regarding their validity. As we shall see, in both cases the disputes and the different polar positions share a similar character. In both contexts a dichotomous conceptual system naturally and unnoticedly underlies the discussion, forcing all interpreters of Maimonides into one of two opposing corners, legislation versus interpretation. At the same time, all the interpreters themselves admit that neither of these polar approaches provides a reasonable answer to all the difficulties found in Maimonides’ words, at least with respect to the second root.

It is therefore no wonder that many pens have broken over the understanding of these two roots, and many of those who dealt with them conclude by saying that it is clear to them that they have not found a comprehensive and adequate meaning for Maimonides’ words. We shall see that if the discussion is conducted within the accepted conceptual framework, then a situation is created of a blanket too short to cover the whole body. Each rival camp pulls it to its own side, but neither succeeds to cover everything. This is true of more modern interpreters as well, who try to propose various syntheses or to distinguish between Maimonides’ statements in different sources, claiming that he retracted, positing various forced construals, and so forth, as well as of the traditional interpreters.

This book proposes a different path. It assumes that Maimonides had a coherent approach to halakha. As we shall see in the preface, the main aim of his halakhic and meta-halakhic writings was to establish precisely such a coherent structure. For that reason it is very difficult to assume that he intended one of the polar proposals advanced concerning his words in the two roots, and at the same time failed by running into all the obstacles and contradictions generated by each of them.

In later responsa he repeatedly returns to these issues as they appear in the Yad HaChazakah, in the roots, in the Commentary on the Mishnah, and in his other writings. It therefore seems clear that we have here a coherent and complete structure, from none of whose parts did Maimonides retract, and which he saw as a coherent whole with harmony among its parts. Our assumption, therefore, is that all these parts, as they emerge from the totality of sources in Maimonides’ writings, are meant to fit one another and create a unified structure.

The roots are a unique work, because they express a rare reflexivity on the part of a great halakhic sage who was aware of the rules that guided him in his work, and who even took the trouble to conceptualize them and present them explicitly. This is the place to mention that, in parallel, we published through Midah Tovah a book containing essays on all of Maimonides’ roots. The essays on the first two roots overlap to some extent with the first two parts of the present book. In the course of our discussion there will be references to essays in that volume, in the form: “the essay on the first root,” and the like.

The Framework of the Discussion

In such a situation there is no choice but to examine the matter with a willingness to change the accepted conceptual and meta-halakhic assumptions, in order to discover where the basic failure lies into which apparently all the disputing parties have fallen. Quite naturally, the focus of analysis is the shared foundation underlying them all, since our assumption is that despite their disputes, all of them erred in understanding Maimonides’ approach. As noted, many of his interpreters themselves testify to this, both regarding themselves and regarding others.

The basis of what I shall say here is the presentation of an alternative to the conceptual dichotomy assumed by the interpreters in the two roots, the dichotomy between legislation and interpretation. This method may therefore be called “the third way.” See on this Appendix J at the end of the book. This way lays out a different conceptual ground, within and from which Maimonides’ words in all their sources become much clearer. As far as I have been able to examine the matter, once this proposal is adopted there is no need for forced readings, either in Maimonides’ language or in conceptual reasoning, anywhere. Nor is there any need to assume that Maimonides retracted, or that his statements contradict one another. As we shall see, his words correspond well to the sources of the Sages, sometimes even better than the methods of those who dispute with him, and they also accord well with his own language.²

It follows from our discussion that Maimonides carried out a conceptual revolution in the halakhic and meta-halakhic world. He changes, or perhaps restores to their original meaning, the concepts “de-oraita” and “derabbanan,” and also changes the relation between the Written Torah and the Oral Torah. We shall see that he almost eliminates the distinction between the question of a law’s validity and the question of its source. In practice, the notion of the “validity,” or halakhic status, of a given law, what people ordinarily call de-oraita or derabbanan, loses much of its meaning with him. As I shall propose, these concepts, almost all of them, are interpreted within a conceptual-logical framework different from the accepted one, specifically, a non-binary framework.

In addition, Maimonides also changes the accepted dichotomous relation between legislation and interpretation, in ways quite similar to what has occurred in legal thought over the last hundred years. We therefore found ourselves compelled to examine as well the implications of this proposal for jurisprudential thought and for general jurisprudence. In the third part of the book we shall also discuss the differences that exist between these two contexts.

The book thus proposes a comprehensive picture of the halakhic world in its various branches and of the connections among them. As we shall see, the picture emerges naturally from Maimonides’ language and rulings, which create a broad and complex halakhic and meta-halakhic mosaic. It seems to me that one can see here that Maimonides indeed succeeded in the enormous task he took upon himself: to build a coherent and complete structure of halakha in a manner that does not deviate from the Talmud.³

An Apology and a Request

As mentioned, so far as my modest powers have enabled me to examine the matter, the fit of our proposal to Maimonides’ words, and the fit created by it between him and what is found in the Talmuds, appears full and elegant. I therefore ask the reader to approach the book with patience and with tolerance. Patience is needed in order to read all the detail and argumentation that were required here, since the claims are innovative and must be reasoned, validated, and grounded, just as Maimonides himself did in his roots when he came to challenge what was accepted in his generation, as we shall describe below. Tolerance is needed toward the conceptual changes, which sometimes run against what is accepted in the halakhic world. Were it not for the difficulties in Maimonides’ words, and the enduring puzzle they present, I would not have dared to propose these ideas on my own. Yet it seems to me that my discussion can persuade the reader that the true proposer of them is Maimonides himself. Perhaps it may calm some readers if I say already now that the halakhic implications of these conceptual changes are not as numerous as one might think, although such implications certainly do exist. Let the reader read and judge.

Structure of the Book

The first part of the book deals with the first root, whose subject is the Sages as legislators. This part contains only one gate. The second part, which contains three gates, deals with the second root, whose subject is the Sages as interpreters, and exegetes. The conclusion emerging from each of the first two parts is that there exists an intermediate category standing between pure legislation and pure interpretation. In the third part we shall try to present the overall picture that results from the discussion of the two roots together, and what is similar and different between them. There we shall examine both the sources and the implications of this picture in and from various fields, and especially its connection to the question of the synthetic a priori that has accompanied us throughout all the books of the quartet.

Our primary focus in each of the roots is of course Maimonides’ own words, but we shall also discuss Nahmanides’ objections, and examine to some degree the views of the other medieval authorities. Unlike the usual studies of Maimonides’ roots, whose main concern is the clarification of some halakhic point that arose in the course of the discussion, or a halakhic dispute with Nahmanides in his objections, our main concern here is the clarification of the basic principles discussed in the roots themselves. We shall turn to the discussions of specific points only insofar as this is necessary, as illustration, proof, or refutation, for the general discussion.

Because of the book’s meta-halakhic character, the third part also includes comparisons with general law, especially with jurisprudence. There, in light of what we have argued in the first two parts, we shall examine the overall meta-halakhic picture, also in legal terms, which will help clarify it further. Conversely, the discussion also sheds new light on general jurisprudence itself. This comparison has implications in both directions. The third part concludes with a philosophical discussion that attempts to ground and generalize the conclusions of the first two parts, and to propose a framework that will establish the full picture. As I explained in the introduction, it is here that the present book connects with the quartet as a whole, since, as we shall see, the matter is another expression of the analytic-synthetic confrontation, this time within jurisprudence.

Technical Notes on Philology and Text

1. In this book I use the text of Maimonides and the roots, including Nahmanides’ objections, as they appear in the Frankel edition. The texts of the two roots, taken from the Bar-Ilan Responsa Project, appear at the end of the book. Also included there are sections from Maimonides’ introduction to the Commentary on the Mishnah, where he classifies the laws into the five types mentioned above.
2. Every reference to Maimonides, Nahmanides, and their commentators follows the page numbers of the Shabtai Frankel edition.
3. Many of the quotations are taken from the Bar-Ilan University Responsa Project.
4. Beyond that, this book hardly deals at all with textual problems and textual considerations.

Acknowledgments

Before I set out, I must thank quite a few people. I cannot name them all, for they are many, but I shall mention some of them here.

First among them is my teacher and master, Rabbi Moshe Reichenberg of the yeshiva Netivot Olam in Bnei Brak, from whom I learned most of my Torah, although perhaps what I learned has by now come to seem rather foreign in his eyes. I hope and believe not entirely.

Second is my longtime friend Rabbi Moshe Rabinowitz, now rabbi of the community of Beit Hagai, who during our years of joint study, mainly his study, at Yeshivat Har Etzion many years ago, awakened in me an interest in Maimonides’ roots and in the controversies surrounding them. He also sent me the original and fascinating book of his late father, Rabbi A. Z. HaLevi Rabinowitz, of blessed memory, who served as Air Force rabbi and as rabbi of various communities in Israel and abroad, on the enumeration of the commandments, The Commandment and Scripture, which certainly served me in this work. My thanks to him for not losing hope despite my failed responses in that period. I hope he will see here at least some reward, though with a slight delay one might call contrary to the prohibition against withholding wages overnight, for his labor.

Next, blessings should come upon my friends and colleagues, the ramim, the yeshiva lecturers, at the hesder yeshiva in Yeruham, as well as upon the Rosh Yeshiva and its administration, for enabling me to engage in Torah and teach Torah. They also enabled me to take a year off and devote myself more intensively to these subjects. Today I teach at the Institute for Advanced Torah Studies at Bar-Ilan University, and my thanks go also to the institute’s staff and those who head it for providing those opportunities and for their good and instructive companionship.

In the sabbatical year in which I began writing the book, I had intended to deal with all the roots. But once I began working on them, it became clear to me that the first two roots contain an entire subject both quantitatively and qualitatively, and that they also attach themselves to the trilogy that preceded them. I therefore devoted to them, and to what branches out from them, a separate book, the present one, and in addition a volume with essays on all the roots was published by Midah Tovah.

If the conception of these two books lay in that old attempt of my friend Rabbi Rabinowitz, then its continuation was in a series of lectures given on Sabbaths at the hesder yeshiva in Yeruham, dealing with all the roots. My thanks to the students and married students for listening, and for not fulfilling in practice the injunction “do not awaken and do not arouse.”

And now that the conception of the book has been completed, I should say that its birth had several additional partners, chiefly the listeners at the regular class in Bnei Brak, foremost among them my friend Rabbi Shmuel Eichenbronner, the organizer and administrator of the class. Wonderful married students and younger students, who learned from me and also taught me when they came to hear my classes on the roots. There the final shape of the lessons on the roots was formed. These lessons too were published as essays in the Midah Tovah series in 5768, and later as a book in their own right. The people of the Ministry of Education also have a share in this, and I thank them for it.

Thanks to all the members of my extended family, especially the children, who bore their suffering, for the most part silently, from the fact that in the sabbatical year they had less of a father than in an ordinary year. From there I lift my eyes to the mountains, to our dear parents on both sides, for their support and interest. And finally to my wife Dafna, who also bore her suffering with patience and shared the burden with me.

Special thanks to my good friend Reb Gabriel, Gabi, Hazut of Kfar Hasidim, who both does and makes everything concerning Midah Tovah, in every sense. Thanks to Shifra, whose capable and talented hand did the graphic editing of the Midah Tovah pages and of this book as well, as with some of its predecessors, for her cooperation, patience, and long-suffering.

Partners in the sabbatical during which most of the book was written were also the people of the Ministry of Education, particularly the staff of the Department of Torah Culture, and at their head the then Minister of Education, Mrs. Limor Livnat, as well as the members of the prize committee, who in their great kindness, though there was no wrong in my hands, awarded me the Minister’s Prize for Jewish Creativity for the year 5765, thereby enabling me to sit over Torah and labor and occupy myself with writing this book.

Preface

The Roots as a Framework for the General Architecture of Maimonides’ Writings⁴

The Architecture of Maimonides’ Writings as a Framework for Organizing Halakha⁵

Maimonides devoted tremendous effort to constructing a complex architectural structure that would include the entirety of halakha, from its roots to the full range of its branches. The order and coherence of that structure required a systematic construction, proceeding from an order and methodology that he defined in advance, consciously and reflexively. The final product of this undertaking appears in his monumental work, the Yad HaChazakah — the Mishneh Torah — which is the only comprehensive halakhic codex ever written in Jewish history.⁶ Yet in order to arrive at such a complete and comprehensive structure, he had to pass through all the stages of halakhic development in order and distill from them the various parts of halakha, sort them, classify them, and decide among them. He had to organize halakha into its constituent parts, and make sure that not a single detail was omitted.

As a general background he began this work with the Commentary on the Mishnah, through which he surveyed all parts of halakha in summary fashion and mapped them. But when he came to construct the Yad HaChazakah, he had to decide on the building blocks, or the headings, that would form the skeleton from which the entire structure would be assembled. To that end, Maimonides decided to go over the Written Torah from the perspective of the whole literature of the Sages and distill from it the 613 mitzvot, which would serve as the skeleton of his overall enterprise. These mitzvot are the subheadings that make up his halakhic structure.⁷ After he constructed Sefer HaMitzvot as the halakhic skeleton of the Yad HaChazakah, Maimonides could gather under those headings all the halakhic material from the Talmudic literature and the literature of the Geonim, the early post-Talmudic authorities, and sort it by those subjects. Indeed, in the Yad HaChazakah, at the beginning of every collection of laws, there appears a list of the positive and negative commandments detailed in that collection. As we shall see, the roots are the foundational infrastructure for the enumeration of the mitzvot.

The Enumeration of the Mitzvot

The fundamental basis of Maimonides’ project of enumerating the mitzvot is the statement of Rabbi Simlai, a second-generation amora, in Babylonian Talmud, Makkot 23b:

“Six hundred and thirteen commandments were stated to Moses: three hundred and sixty-five prohibitions, corresponding to the days of the solar year, and two hundred and forty-eight positive commandments, corresponding to the limbs of a human being.”⁸

Rav Hamnuna said: “What verse teaches this? ‘Moses commanded us Torah as an inheritance.’ The numerical value of the word ‘Torah’ is 611; ‘I am the Lord your God’ and ‘You shall have no other gods’ we heard from the Almighty Himself.”

This saying contains the determination that 611 commandments were given to Moses, plus two that were spoken directly by the Almighty, making a total of 613 commandments.

Maimonides goes on to cite a parallel passage from the midrash (rabbinic homiletic text) Tanhuma on the portion Ki Tetze 2, which serves him later in his discussion of other roots:

Rav Adda said: “There are 248 positive commandments in the Torah, corresponding to the limbs of a human being, and every day they cry out to a person: ‘Perform us, so that you may live by our merit and prolong your days.’ And there are 365 prohibitions, corresponding to the days of the solar year, and every day, from sunrise to sunset, cries out and says to a person: ‘I decree upon you, by Him who has brought your days to this day, do not commit this transgression through me, and do not cause yourself and the whole world to be tilted to the side of guilt.’ Thus there are 613 commandments.”

This enumeration is accepted by most of the recognized enumerators of the commandments, aside from a few exceptions. For example, Nahmanides, at the opening of his objections to Root One, raises doubts about this number.⁹ Two questions concern him: first, is this number agreed upon by all the sages of the Talmud? Second, does Rabbi Simlai’s view rest on a tradition he received that this is the number of the commandments, or did he simply count all the commandments in the Torah according to his understanding and happen to arrive at that number? There is, of course, a connection between these two questions. Nahmanides remains uncertain, but after all his doubts he too assumes that we must rely on this number despite them, mainly because of tradition, since he found no one who disputes this count. In Nahmanides’ words there, additional Talmudic sources are cited that confirm this number as the accepted count.

Let us now follow Maimonides’ enterprise one step further. We have seen that there is a basis for establishing the number of commandments. But determining which are those 613 commandments is by no means simple. From the Torah itself it is very difficult to extract an orderly list of 613 commandments. The literature of the Sages is also not organized systematically, and therefore does not help, to put it mildly, in creating such a list. There is no doubt that the creation of a comprehensive count of commandments presupposes various methodological and meta-halakhic assumptions, yet in halakhic literature one can scarcely find discussions of this kind. Maimonides therefore had no choice but to become a pioneer on the methodological plane as well. He was in fact the first to formulate and define explicitly and systematically the methodological assumptions underlying his enumeration of the commandments.

In Maimonides’ day there were several accepted enumerations of the commandments. Foremost among them was the enumeration of Halakhot Gedolot, usually referred to as Behag, which many followed, with slight variations. Maimonides, in his introduction to the Yad HaChazakah, speaks somewhat dismissively of the enumerators of commandments who preceded him, writing that they followed Behag without any criticism, in these words:¹⁰

“They did not depart from his intention in their numbering except by a small deviation, as though all intellects had come to a halt at the statement of that man.”

That is, there is an attitude of uncritical admiration toward Behag, and Maimonides protests against it here.

The Roots

Maimonides himself does not agree with Behag’s enumeration in several respects, and therefore had to establish an entirely different count. This is a creation of something from nothing, proceeding explicitly and frontally against the sole authoritative power in this field and against the accepted consensus. In order to ground his rebellion against Behag’s exclusive authority, Maimonides had to sift, refine, explain, and prove the rules, that is, the roots, that guided him in enumerating the commandments, and to clarify how they differed from the rules that guided Behag — who, as noted, never defined such rules at all, and perhaps that itself was part of the problem Maimonides saw in his enterprise.

It may perhaps be conjectured that for this reason Maimonides wrote the work of the roots and Sefer HaMitzvot in Arabic, unlike the Yad HaChazakah itself, so that everyone could read and be persuaded by his arguments. He likely saw the Yad HaChazakah as a work meant to stand for generations, and therefore composed it, as he says in his introduction, in the language of the Mishnah, that is, in Hebrew rather than Aramaic, and not in Arabic. The roots were probably intended to help the main work, the Yad HaChazakah, gain entry and establish its status against Behag. After that, they likely completed their task and became unnecessary in Maimonides’ eyes. It seems that they were written only for their own time and place.¹⁰

From this perspective Maimonides approached yet another pioneering undertaking: the construction of a system of principles and rules, the roots, according to which he would determine and classify his enumeration of the commandments. This is a meta-halakhic undertaking, and as we have seen, such an undertaking is very rare in the Torah world. Within the halakhic corpus down to Maimonides’ day, and indeed still today, it was not customary to formulate and define explicitly the methodological assumptions and rules that guided any interpreter or decisor, or the assumptions of halakha itself as they appeared in the eyes of such an interpreter or decisor. Usually the rules, if there were any at all, emerged only as an ex post facto description, after the interpretive or halakhic enterprise had already been completed.¹¹ Up to Maimonides, halakha had a distinctly casuistic character, based on collections of cases and the halakhic rulings about them, rather than on a system of general and formal principles.¹²

For that reason, the importance of studying Maimonides’ roots extends beyond clarifying Maimonides’ own approach. It is the clarification of a uniquely ordered doctrine in halakhic literature, belonging to one of the greatest masters of Torah and Jewish law of all time. The reflexivity of Maimonides’ enterprise is highly unique in the halakhic world, and has a strongly modern flavor. In any case, it is clear that here lies a principal and fundamental basis for the study and understanding of the foundations of halakha in general.

Before the enumeration of the commandments, Maimonides presents his “roots,” the fourteen rules according to which he decided how to construct the 613 commandments. It should be noted that they were written before the enumeration itself, and therefore one may sometimes perhaps detect contradictions between them and what appears in Sefer HaMitzvot. These roots are the results of a meta-halakhic study of the literature of the Sages carried out by Maimonides. That study was partly empirical, meaning the collection and classification of rabbinic material, and partly a priori and conceptual, meaning meta-halakhic analysis of the concepts used by halakha.

Among these fourteen rules are some that are based on Talmudic literature, whether on rules explicitly stated there or on those implicitly present within it. But among Maimonides’ roots there are also rules whose foundation is a collection of different logical assumptions of an a priori character. These were formed not only through study of the Talmudic literature but also through defining the meta-halakhic conceptual system itself. These rules, at least in part, lead to conclusions that do not easily accord with the Talmudic material itself. Maimonides’ intention was apparently to reorder and reorganize the Talmudic material itself, yet at times it seems that his a priori rules do not “obey” what we find in the literature of the Sages in all its forms. Maimonides seems to impose upon the sea of the Talmud a rigid conceptual system and logical structure,¹³ and at times the Talmud, as a living and stiff-necked Jewish creation, seems unwilling to yield to them. The representative of the Talmud, crying out for the simple meaning of the text against Maimonides, especially in the first two roots, is Nahmanides in his objections to the roots. We shall see expressions of these two approaches and viewpoints throughout our discussion in the first two parts.

The Uniqueness of the First Two Roots

Two of the most striking examples, many would say the most striking examples, of this confrontation are found in the first two roots, with which our book is concerned. Generally speaking, it should be known that the roots are not necessarily general halakhic rules. The distinctions that arise in them generally concern not the halakhic status of the law under discussion, but rather rules of sorting and classification, as we shall see below.

In these two roots, however, there is apparently a halakhic determination of Maimonides that has meta-halakhic implications. Unlike the other roots, these two deal with the halakhic status of the laws discussed in them, and not only with rules of sorting and classification. The halakhic determination in both seems to have an a priori character, that is, one stemming from conceptual understanding rather than from direct study of the sources, and some would say perhaps even contradicting them. In both cases, examination of the sources of the Sages themselves raises serious problems for Maimonides’ proposals. It is therefore no wonder that in both cases sharp controversies arise, both about the interpretation of Maimonides’ words, what exactly he means, and about the substance of his words themselves, namely whether he is in fact correct.

To illustrate this, it is worth citing here Nahmanides’ language in his objections to these two roots, which is exceptional in its sharpness compared to what he writes on the other roots. In his objections to Root One, Nahmanides writes as follows, p. 19:¹⁵

“Thus the master, by means of the principle presented in the first root, builds a high wall around the words of the Sages; but it is like a breach opening in a lofty wall, whose collapse comes suddenly and all at once, for it is a defective reasoning in most places in the Talmud.”

And at the end of his objections to Root Two, Nahmanides writes as follows:

“This is what I had in mind to write on this principle, as briefly as possible. I know that many more passages in the Gemara contradict its purport. For this book of the Rabbi, of blessed memory, is sweetness itself and altogether delightful, except for this principle, which uproots great mountains in the Talmud and casts down fortified walls in the Gemara. For students of the Gemara this matter is bitter and evil; let it sink and not be spoken.”

For this reason, Maimonides’ first two roots provide an excellent platform on which to examine an ordered meta-halakhic doctrine of two of our great medieval masters, Maimonides, whose doctrine is unusual, and Nahmanides, who represents the accepted approach. In the course of our discussion we shall try to show why Maimonides’ words do not contradict what is found in the Talmuds, and in fact usually fit them better than do the views of those who disagree with him. This is a good example of the correlation that must prevail, and apparently does prevail, between a priori conceptual insights and what is found in the Talmuds themselves.

The Importance and Meaning of Dealing with the Enumeration of the Mitzvot and the Roots

We saw above that meta-halakhic and methodological discussions among the Sages, the medieval authorities, and the Torah world generally are rare. Apparently they did not regard them as particularly important.

This is true with respect to the enumeration of the commandments itself, and even more so with respect to the roots, which are rules for counting them. Nahmanides, in his objections, states consistently in several places that the Sages never addressed questions that concern only the enumeration of the commandments.¹⁴ For example, in his objections to Root Eleven he writes:

“And it is taught in the Sifrei: ‘The four fringes prevent one another; all four are one commandment. Rabbi Ishmael says: all four are four commandments.’ From here we learn that when they say ‘one commandment’ they mean that they prevent one another… Did this tanna come now to count the 248 positive commandments and teach us that in our reckoning we should count the commandment of fringes as only one commandment? That is not something one ought to err about.”

Maimonides himself, however, apparently holds that the Sages did in fact refer in their words to the enumeration of the commandments.¹⁵ Even so, it is unclear whether inclusion in the enumeration has a direct halakhic implication, that is, a practical difference, or only an intellectual value, since for Maimonides the enumeration is intended primarily for a methodological purpose, as subheadings for the Yad HaChazakah, as described above. Let us discuss this briefly now.

A striking example of an extreme view denying the value of the enumeration of the commandments is found in the well-known statements of the Vilna Gaon on the subject. These are cited in his name in the introduction to Pe’at HaShulchan and in Ma’alot HaTorah by Rabbi Avraham, the brother of the Vilna Gaon. The Vilna Gaon argues that the question whether some commandment is counted or not counted in the enumeration has no importance at all, and therefore he too did not deal with it. The halakhic validity of a commandment is unrelated to whether it is counted in the enumeration. A commandment may be uncounted and yet still have the status of a de-oraita commandment, for example if it is not counted because it is duplicated by another commandment, or because it is a general prohibition, and so forth.

Nevertheless, we do find some of the medieval authorities dealing with the enumeration of the commandments, from which it follows that they did see some value in it. This can be explained in several ways:

1. It is possible that there is an implication with respect to punishment, specifically lashes. Some have interpreted Maimonides to mean that one is lashed only for a counted commandment. See on this his responsum no. 368 in the Jerusalem print edition, printed in the Frankel edition of Sefer HaMitzvot, p. 9, and also in his introduction to the enumeration of the commandments, after Root Fourteen, where he rules that lashes apply only when the warning appears in the verse itself, and not when it is derived by interpretation. This also seems to follow from his words in Laws of Forbidden Foods 3:6 regarding eggs and milk produced by impure animals, which are prohibited by Torah law but do not incur lashes. See there in the Maggid Mishneh and the other commentators that the absence of lashes is because this law is learned from an inclusive derivation. Some have compared this to the law of a half-measure, which is also learned from the inclusive term “any fat.” thus wrote also the Pri Megadim at the end of his “General Introduction,” fifth section, no. 33, and in Yoreh De’ah 86, Siftei Da’at no. 10, s.v. “And know.” We shall discuss this further in the second part. A broader examination of Maimonides makes it fairly clear that this proposal does not withstand scrutiny.
2. The Pri Megadim, at the beginning of his “General Introduction,” raises several halakhic implications of inclusion in the enumeration of the commandments. Apparently his words imply that a commandment not counted has only derabbanan force. These claims are by no means necessary, but they do seem to accord with Maimonides’ view in the second root. Among the implications he mentions is that an oath can take effect upon commandments that are not counted. We shall discuss this in the third part, in Gate Five. He also writes that a half-measure is prohibited in such cases only by rabbinic law, and that in cases of doubt one rules leniently. These proposals too are very difficult, and it is quite clear that there is no direct halakhic implication to inclusion in the enumeration of the commandments.
3. The necessary practical consequence that arises from the enumeration of the commandments is described by Rabbi Yerucham Fishel Perla in his introduction to Sefer HaMitzvot of Saadia Gaon. There he writes, in section 10, p. 56, that the total number itself is the main practical consequence. From the tradition of 613 commandments it follows that anyone who wishes to include some commandment in his count must remove another commandment from his count in order to preserve the total number. The reasons for adding or subtracting a commandment from the count are sometimes halakhic reasons, as we shall also see below, and therefore many halakhic implications indirectly emerge from the enumeration of the commandments.

Indeed, our own eyes see that although the disputes are meta-halakhic in essence, the disagreements between Maimonides and Nahmanides throughout the roots give rise to a great many specific halakhic implications.

It should be noted that Rabbi Perla’s words do not necessarily contradict the Vilna Gaon’s statements mentioned above. Even according to his proposal, the implications do not derive from the mere fact that the commandment is counted or not counted. The enumeration is only an indication of those implications. Therefore, at least theoretically, one who already knows those implications does not need the enumeration of the commandments as an indicator.

And in truth we find that the medieval authorities sometimes decided to include or omit commandments from the count because of numerical pressure. For example, the Tashbetz, in his book Zohar HaRakia, positive commandments 11, writes:

“The upshot of all this is that the words of the Gaon, namely Behag, are closer to the straightforward meaning of Scripture and to the plain sense of the sayings of our Sages, unless the count itself compels us, when the tally of 248 positive commandments cannot be completed except by including the utterance ‘I am’ in the count.”

Likewise Maimonides, in Root Three, writes about Behag: “Others besides ourselves have erred in this root too, and counted because their ability was constrained…” That is, Maimonides explains that it was the numerical pressure that led Behag to count certain commandments. We shall see in the first two roots as well arguments that rely on this numerical constraint, and they may also lead to halakhic implications.

The Fourteen Roots: A General View

Let us now describe the system of the roots as a whole. First, it is important to understand that Maimonides does not present all the rules that served him, because there is no point in presenting rules that are accepted and obvious. Maimonides focuses on those rules that are not self-evident, or at least not agreed upon, mainly by Behag and his school.

We can see this approach already at the beginning of his words in Root One, where he writes:

“Know that this matter, namely the first root, ought not to have required explanation at all, for after the language of the Talmud is ‘Six hundred and thirteen commandments were said to Moses at Sinai,’ how could one say of something that is derabbanan that it belongs to this count? But we were moved to address it because many erred and counted the Hanukkah lamp and the reading of the Megillah among the positive commandments…”

One sees from the opening language of Maimonides that he sees no need at all to present self-evident rules. From his words here it emerges that the reason he presents so obvious a rule as the first root is only that it is not agreed upon by all the enumerators of the commandments, that is, by Behag and his school. We thus learn two things about Maimonides’ approach in the roots: first, he presents only rules that are not trivial, and he likely presents such rules even if they are agreed upon. Second, he also presents rules that are trivial in his eyes if they are disputed.¹⁶

We may conclude from this that Maimonides’ fourteen rules do not constitute a complete set of his meta-halakhic rules concerning the enumeration of the commandments. Only those among them that are not simple, or that are disputed, are brought here. Hence, even if it sometimes appears that there is disagreement among the enumerators of the commandments about most of the roots, this does not necessarily express deep disagreements concerning the enumeration itself. The reason is that in the background there are quite a few additional rules agreed upon by all the enumerators of the commandments.

Almost all of the fourteen roots are principles of non-counting for various reasons. Only the sixth root is a principle that determines counting rather than non-counting. Maimonides’ fourteen roots can be divided into five groups of rules of different character:

1. Rules concerning the validity of commandments. These rules determine principles of counting or non-counting because of halakhic validity. For example, in Root One Maimonides determines that derabbanan commandments are not to be counted. In Root Two he determines that commandments learned from interpretive derivations are not to be counted either, and he also calls these “derabbanan commandments.” Thus both of these roots are principles of non-counting on the basis of halakhic validity.¹⁷ This type includes the first and second roots.
2. Rules concerning time. These rules establish principles of non-counting that concern the time axis. For example, in Root Three Maimonides determines that commandments not in force for future generations are not counted. In Root Thirteen he determines that the number of commandments is not to be counted according to the number of days on which the commandment applies. These rules do not concern halakhic validity, because the non-counting is not due to the commandment not being de-oraita, but because it is already counted, or because it is no longer relevant, and that latter point does already touch on questions of halakhic validity. This type includes the third and thirteenth roots.
3. Rules concerning duplication. These rules establish principles of counting and non-counting on the basis of the principle that there is no duplication among the 613 commandments. Here too we are not dealing with questions of halakhic validity, since by all opinions the matters under discussion are de-oraita commandments. The rules of non-counting in this type stem from the fact that the commandments in question are already included in other counted commandments. This type includes the fourth, sixth, and ninth roots.
4. Rules concerning the nature of a commandment as a command. For example, the fifth root establishes that the reason for a commandment is not to be counted as an independent commandment. The reason is that a reason for a commandment is not itself a command, and therefore is not counted. So too with the eighth root, which establishes that the negation of an obligation is not to be counted because it is not a prohibition. So too with the tenth root, which rules that preparatory acts for a commandment are not to be counted, and perhaps also with the fourteenth root. Some of these roots are connected to questions of validity and some are not. This type includes the fifth, eighth, tenth, and perhaps also the fourteenth roots.
5. Rules preventing the counting of parts of a commandment. The seventh root, for example, establishes that one does not count the legal details or fine points of a commandment. This type includes the seventh, eleventh, and twelfth roots, and perhaps also the fourteenth.

This book deals with principles of non-counting on the basis of halakhic validity, type 1 above, which includes the first two roots. In the course of our discussion we shall see that the character of these two roots is not simple, and it is doubtful whether there is in fact non-counting here on the basis of halakhic validity. Along the way we shall also make some use of the other roots, especially the seventh root, but only insofar as this is necessary for understanding our discussion of the first two roots.

In any event, the fact that these principles concern halakhic validity is also the reason that halakhic jurisprudence must be sought first and foremost specifically in these two roots. The other roots deal more with sorting and classification and less with meta-halakha, and therefore they do not directly concern the understanding of the concepts of validity and halakhic status with which we are occupied here.

The First Two Roots as a View of the Entire Halakhic Whole

Before we enter into the heart of the matter, let us first present the general classification of the laws into their various kinds, as it appears in Maimonides’ introduction to the Commentary on the Mishnah. There Maimonides divides the various laws into five types; see the quotation brought below at the end of the preface:[^20]

1. Laws that were transmitted to us by tradition and also have a source in interpretive exposition of the verses.
2. Laws that are derived from the verses, and concerning which we have no tradition.
3. Laws transmitted to us by tradition, and for which we have no derivation from the verses.
4. Decrees.
5. Enactments and customs.

The first three types, which are usually classified as de-oraita laws, are treated by Maimonides in Root Two. The last two, which are usually classified as derabbanan laws, are treated by him in Root One. Thus these two roots deal with examining the foundations of all the types of law in the Torah and the relations among them. Once again one can see how fundamental and necessary the discussion of both of them is, and why dealing with them yields a broad picture of the whole halakhic system.

As we noted, in the accepted meanings, the division of laws presented above is arranged according to criteria of validity, from de-oraita validity to derabbanan validity. But below we shall see that this axis of division and classification is not at all simple, and Maimonides probably does not view it as an axis expressing different levels of validity, but rather more as an interpretive hierarchy expressing the relation to the Written Torah.

Throughout our discussion we shall return repeatedly to this classification of laws, and also add to it several further types. We shall examine the complex relations among the different kinds, and try to sketch the picture that emerges from their combination.

Passages from Maimonides’ Introduction to the Mishnah

It follows, according to the principles we have set out, that all the established laws in the Torah are divided into five parts.

The first part consists of the accepted interpretations from Moses that have an allusion in Scripture or can be learned by one of the hermeneutical rules, and concerning this there is no dispute at all. Whenever someone says, “I received thus and thus,” all argument falls away.

The second part consists of the laws about which they said that they are a law given to Moses at Sinai, and for which there is no proof, as we have said. This too is something concerning which there is no dispute.

The third part consists of laws derived by one of the hermeneutical rules, and in them dispute arises, as we have said, and the law is decided according to the majority, following the principles we set out above. This applies when the matter is evenly balanced. Therefore they say, “If it is a received halakha, we shall accept it; but if it is an inference, there is room to answer it.” Dispute and give-and-take arise only regarding matters about which we have not heard a received tradition. Throughout the Talmud you will find them investigating the modes of reasoning by virtue of which dispute arose between those who differ, and saying, “What exactly do they disagree about?” or “What is Rabbi So-and-so’s reason?” or “What difference is there between them?” For at least in some places they proceed in this way in these matters and explain the reason for the dispute, saying that one sage relies on one consideration and another sage relies on another, and the like.

But the opinion of one who thinks that even the laws over which there is dispute were received by tradition from Moses, and that the dispute fell out because of error in transmission or forgetting, so that one sage was correct in his tradition and the other erred in his tradition, or forgot, or did not hear everything he needed to hear from his teacher, and who brings proof for this from the statement, “When the disciples of Shammai and Hillel increased, and they had not sufficiently served their masters, dispute increased in Israel and the Torah became like two Torahs” — by the life of God, this is a very ugly and strange thing. It is incorrect, does not fit the principles, and casts suspicion on the people from whom we received the Torah. All of it is null. What led them into this mistaken outlook was their insufficient knowledge of the words of the Sages found in the Talmud. For they found that the interpretation was received from Moses — and this is correct according to the principles we set out — but they did not distinguish between the accepted principles and the new matters learned through the paths of inquiry.

But if you are in doubt about anything, you will surely not be in doubt about the dispute between the House of Shammai and the House of Hillel when they say: Does one sweep the house and afterward wash the hands, or wash the hands and afterward sweep the house? Neither of those two views was received from Moses, and neither was heard at Sinai. The reason for their dispute is, as they themselves said, that one of them forbids making use of an unlearned person, and the other permits it. And so too with all disputes of this kind, which are branchlets of branchlets of branchlets.

But their statement, “When the disciples of Shammai and Hillel increased, and they had not sufficiently served their masters, dispute increased in Israel,” its meaning is very clear. Two people equal in understanding, inquiry, and knowledge of the principles from which laws are derived will not disagree at all regarding what is learned by one of the hermeneutical rules; and if they do disagree, it will be only to a slight degree. Thus we do not find disputes between Shammai and Hillel except in a few laws, because the methods by which they learned whatever they learned through the hermeneutical rules were close to one another, and the correct principles possessed by the one were possessed by the other as well. But when their disciples’ study diminished, and their methods of reasoning became weaker in comparison with those of their masters Shammai and Hillel, disputes arose among them in the course of analysis in many matters, because each reasoned according to the power of his own intellect and according to the principles known to him. This is not something for which they can be blamed, for we cannot compel two people who debate to debate at the level of the intellect of Joshua and Phinehas. Nor are we permitted to cast doubt on what they disputed because they were not equal to Shammai and Hillel, or greater than they, for God did not require that of us. Rather, He required us to heed the sages, the sages of whatever generation it may be, as He said: “Or to the judge who shall be in those days, and you shall inquire.” In this way dispute arose — not because they erred in their transmission, with one tradition true and the other null. How clear these things are to one who reflects on them, and how great is this principle in the Torah.

The fourth part consists of the laws established by the prophets and the sages in every generation as a fence and safeguard for the Torah. God commanded in general that they be made, saying, “You shall keep My charge,” and the received interpretation came and said, “Make a safeguard for My charge.” These are what the Sages call decrees. In these too there can be dispute — for one person may see reason to prohibit something for a certain cause, while another may not see reason for that, and this appears often in the Talmud: Rabbi So-and-so decreed because of such-and-such, while Rabbi So-and-so did not decree. This is one of the causes of dispute. You surely see that fowl cooked in milk is a rabbinic decree to distance people from transgression; by Torah law only the meat of a pure domesticated animal is prohibited. The Sages prohibited fowl in order to distance people from the forbidden matter. Yet some did not accept that decree, for Rabbi Yosei the Galilean permitted eating fowl in milk, and all the people of his place ate it, as is explained in the Talmud. But when there is universal agreement on one of these decrees, one may not transgress it in any way. Once its prohibition has spread throughout Israel, there is no way to abolish that decree, and even prophets could not permit it. The Talmud says that even Elijah could not permit one of the eighteen matters decreed by the Houses of Shammai and Hillel. The reason given for this is that their prohibition was accepted throughout all Israel.

The fifth part consists of laws established through deliberation in order to regulate matters among people, involving no addition to the words of the Torah and no subtraction from them, or in matters intended for the ordering of the world in religious affairs. These are what the Sages call enactments and customs. It is forbidden to violate them in any way once the whole nation has agreed to them. Solomon, peace be upon him, already warned against violating them when he said, “Whoever breaks through a fence, a serpent shall bite him.” These enactments are very numerous and are mentioned in the Talmud and the Mishnah. Some concern what is forbidden and permitted; some concern monetary law; and some are enactments instituted by prophets, such as the enactments of Moses, Joshua, and Ezra, as they said: “Moses instituted for Israel that they should ask and expound the laws of Passover on Passover.” And they also said: “Moses instituted for Israel the blessing ‘Who nourishes all’ at the time when the manna descended.” The enactments of Joshua and Ezra are many. Some enactments are attributed to individual sages, such as: Hillel instituted the prosbul; Rabban Gamliel the Elder instituted; Rabban Yohanan ben Zakkai instituted; and many times in the Talmud: Rabbi So-and-so instituted. Some are attributed to the collective, as when they say: “At Usha they instituted,” or “the Sages enacted,” or “an enactment of the Sages,” and many others of this kind.

It follows that the whole body of laws mentioned in the Mishnah is divided according to these five parts: some are accepted interpretations from Moses and have an allusion in Scripture or can be learned by one of the hermeneutical rules; some are laws given to Moses at Sinai; some are learned by one of the hermeneutical rules and dispute arose in them; some are decrees; and some are enactments.

Part One: The First Root

It Is Not Fitting to Count Among This Total the Mitzvot That Are Derabbanan

In this root Maimonides determines, against the position of Behag, the principle that derabbanan commandments are not to be included in the enumeration of the commandments. On its face, this seems to be merely a technical root, for it does not appear at first glance that there is any dispute at all regarding the status of such commandments. The dispute concerns only the question whether they are included in the count of 613 in Rabbi Simlai’s statement. Despite this, very important points arise here, for two reasons: first, some understood Maimonides to hold a different view also of the halakhic status and validity of derabbanan commandments; second, as will become clear below, at the foundation of the discussion lie different understandings of the meaning of derabbanan commandments, their status, and their character, and this has direct halakhic implications as well. Even so, in the final analysis it is not clear that this root is indeed essential; it may be merely technical. But, as we shall see from the discussion, highly important substantive implications emerge from it, which will also find expression in the discussion of the second root, in Part Two, and more generally in Maimonides’ meta-halakhic doctrine, on which see Part Three.

The Text of Maimonides’ Formulation of the First Root

It is not fitting to count among this total the mitzvot that are derabbanan.

Know that this matter ought not to have required explanation at all. For once the language of the Talmud is “Six hundred and thirteen commandments were said to Moses at Sinai,” how could one say of something that is derabbanan that it belongs to this count? But we were moved to address it because many erred and counted the Hanukkah lamp, the reading of the Megillah, the one hundred blessings each day, comforting mourners, visiting the sick, burying the dead, clothing the naked, calculation of the seasons, and the eighteen days on which Hallel is recited in full among the positive commandments.

Consider the words “were said to Moses at Sinai,” and then imagine someone counting the recitation of Hallel, with which David, peace be upon him, praised God, and saying that Moses commanded it, or counting the Hanukkah lamp, which the Sages instituted in the Second Temple period, and likewise the reading of the Megillah. That Moses was told at Sinai that he should command us that at the end of our kingdom, when such-and-such would happen to us with the Greeks, we would be obligated to light the Hanukkah lamp — I do not think anyone would imagine or entertain such a thought.

What seems to me to have led them to this is the fact that we recite a blessing over these matters: “Who has sanctified us with His commandments and commanded us” concerning the reading of the Megillah, lighting the lamp, and completing Hallel. And the Talmud asks, in Babylonian Talmud, Shabbat 23a: “Where did He command us?” and answers: from “You shall not turn aside.” But if they counted them for that reason, then they ought to count everything that is derabbanan, because everything the Sages told us to do, and everything they warned us against, Moses our teacher was already commanded at Sinai that he should command us to uphold it, as it says in Deuteronomy 17:11: “According to the instruction that they instruct you and according to the judgment that they tell you, you shall do,” and he warned us not to transgress anything they instituted or decreed, as it says there: “You shall not turn aside from the matter they tell you, to the right or to the left.”

If everything that is derabbanan is to be counted among the 613 commandments because it falls under the verse “You shall not turn aside,” then why did they count these in particular and not others? Just as they counted the Hanukkah lamp and the reading of the Megillah, they should also have counted ritual hand-washing and the commandment of eruv, for we recite the blessing “Who has sanctified us with His commandments and commanded us” over hand-washing and over eruv just as we do over the reading of the Megillah and over lighting the Hanukkah lamp, and all of these are derabbanan.

Indeed, they said explicitly in Babylonian Talmud, Hullin 106a: “The first washing of hands is a commandment.” What commandment? Abaye said: “A commandment to heed the words of the Sages,” just as they said concerning the reading of the Megillah and the Hanukkah lamp: “Where did He command us?” From “You shall not turn aside.”

It has already been made clear that everything instituted by the prophets who arose after Moses our teacher is also derabbanan. They said explicitly in Babylonian Talmud, Shabbat 14b, and Babylonian Talmud, Eruvin 21b, that when Solomon instituted eruvin and hand-washing, a heavenly voice came forth and said, “My son, if your heart is wise, My heart too shall rejoice,” and so on. Elsewhere they explained that eruvin are called derabbanan, in Babylonian Talmud, Eruvin 5b and Babylonian Talmud, Shabbat 34a, and hand-washing is called “from the words of the scribes,” in Mishnah, Yadayim 3:2. It has thus been made clear to you that everything instituted after Moses is called derabbanan.

I have explained this to you so that you should not think that the reading of the Megillah, because it is an institution of prophets, is called de-oraita. Eruvin are derabbanan even though they are an institution of Solomon son of David and his court. This is what escaped others, and thus one of them counted clothing the naked because he found in Isaiah 58:7, “When you see the naked, cover him,” not knowing that this is included under the verse “sufficient for his lack, which he lacks,” in Deuteronomy 15:8. For the meaning of that command is undoubtedly that we feed the hungry, clothe the naked, provide bedding for one who has no bedding and clothing for one who has no clothing, marry off an unmarried person who lacks the means to marry, and mount one who is accustomed to ride, as is well known in the language of the Talmud, Babylonian Talmud, Ketubot 67b, that all this is included under the verse “sufficient for his lack.”

The language of the Talmud, for such people, was as though joined with stammering lips and another tongue. Were it not so, they would not have counted the reading of the Megillah and the like together with the commandments said to Moses at Sinai.

The language of the Gemara in Babylonian Talmud, Shevuot 39a is: “I have only the commandments that were commanded at Mount Sinai. From where do I know commandments that would later be instituted, such as the reading of the Megillah? Scripture says: ‘They fulfilled and accepted’ — they fulfilled what they had already accepted.” This means that they are to believe in every commandment later instituted by the prophets and the Sages.

What is astonishing is why they counted positive commandments that are derabbanan, as we mentioned, but did not also count negative commandments that are derabbanan. Just as they counted among the positive commandments the Hanukkah lamp, the reading of the Megillah, the one hundred blessings each day, and Hallel, so too they should have counted among the negative commandments the twenty-one secondary forbidden relations as twenty-one negative commandments, for just as each forbidden relation is a de-oraita prohibition, so too each secondary relation is a derabbanan prohibition, as they explained and said in Babylonian Talmud, Yevamot 20a: “Secondary relations are from the words of the scribes.” And it has already been explained there that when the Mishnah says “a prohibition that is a commandment,” it means the secondary relations, and they said: “What commandment? The commandment to heed the words of the Sages.” Likewise they should have counted among them the sister of a woman released from levirate marriage, which is from the words of the scribes, Babylonian Talmud, Yevamot 41a and parallel passages.

In general, if we were to count every positive derabbanan commandment and every negative derabbanan commandment, the total would rise into many thousands. This is obvious.

The principle, then, is that everything that is derabbanan is not to be counted among the 613 commandments. For this total is entirely written in the Torah; it contains nothing derabbanan, as we shall explain. As for those who count some matters that are derabbanan and omit others by arbitrary choice, this is something that cannot be accepted in any way, no matter who says it. We have thus explained this root and demonstrated it, so that no doubt remains about it for anyone.

Contents of Part One

• Gate One: The nature of rabbinic mitzvot and the source of their legal force
• Chapter 1: On the problem of the halakhic status of rabbinic mitzvot: an initial survey
• Chapter 2: Nahmanides’ approach
• Chapter 3: Maimonides’ approach
• Chapter 4: Specification, ramification, and asmakhta
• Summary arising from Gate One: The legislative authority of the Sages

Footnotes