Lesson 11: Toldot

From the book Mida Tova: Articles on the Principles of Halakhic Thinking by Rabbi Michael Avraham. Translated from Hebrew using gpt-5.4 (reasoning_effort=high, batch API).

---

With God’s help.

Concepts

• An objectively defined mitzvah (commandment) act, as opposed to an existential mitzvah.
• Relations of authorization: dynamic and static.
• Specification and branching of rabbinic laws from a Torah-level mitzvah.
• A halakhic fact. An objectively defined mitzvah act.

Summary

In this article we begin with a discussion in halakha (Jewish law) of the mitzvah of prayer, which according to Maimonides is Torah-level and according to Nahmanides is rabbinic. We ask what the relation of derivation is between the Torah-level layer of the mitzvah and its rabbinic layers. We present several possible models for such a relation between a Torah-level root and rabbinic branches: the sages shape the Torah mitzvah; the sages add a second, independent layer; the rabbinic layer constitutes a fulfillment of the Torah obligation, but not its only necessary form, since the Torah obligation can also be fulfilled in a manner other than that fixed by the sages; and finally we propose a new mechanism, which we call branching, according to which the rabbinic law grows out of the Torah law as branches grow from their roots.

We also bring several further examples, almost all from Maimonides, of such a relation: his remarks on the mitzvah of “love your neighbor as yourself”; his use of the phrase “so that he may rest” as the rationale for the prohibition of muktzeh; and his remarks in the first and second principles of Sefer Ha-Mitzvot concerning the branching of the duty to obey the sages in their interpretation and legislation from the commandment “do not deviate.”

In all these cases, Maimonides’ words have caused considerable perplexity among commentators, and awareness of an additional mechanism of derivation can clarify the picture.

We also gesture toward a possible connection with issues in jurisprudence, and discuss “relations of authorization” in Kelsen’s terminology, as well as hinting at the relation between judicial legislation and interpretation, which, for reasons of space, we could not address in detail.

The Rules and Principles Emerging from the Article

1. There is

Torah-Level and Rabbinic Prayer: A Look at Different Types of Halakhic Derivation

Introduction

Our point of departure in this article is the mitzvah of prayer according to Maimonides. We shall see that, in his view, this mitzvah has two levels: a Torah-level one and a rabbinic one, and that together, in practice, they constitute the mitzvah of prayer in its entirety. In this article we will examine the various forms of relation between two such levels, and describe the logical structure of those relations.

Such relations also appear in jurisprudence when it discusses the relation between primary legislation and secondary legislation. Primary legislation is enacted by the legislating authority, whereas secondary legislation is enacted by other bodies, usually within the executive branch, which receive from the legislature the power to enact regulations in areas relevant to them or in specific areas defined by the legislator. The relations between primary legislation and secondary legislation are called, by the Austrian legal thinker Kelsen, “relations of authorization.”

In this article we shall see the distinctive appearance of relations of authorization in halakha, not only with regard to the very authority of the sages, and its relation to the Torah prohibition of “do not deviate,” but also regarding the relation between Torah-level and rabbinic layers of specific mitzvot. As we shall see, failure to distinguish among these various forms of relation, or derivation, can lead to errors in halakhic interpretation.

The Prayers of the Patriarchs

At the beginning of the parashah, Isaac’s prayer is described as follows, in Genesis 25:21:

Isaac pleaded with the Lord on behalf of his wife, because she was barren; and the Lord responded to him, and Rebekah his wife conceived.

This is part of a larger set of prayers that we find in the book of Genesis, long before the sages instituted the mitzvah of prayer in its present form: three daily prayers, with defined texts, defined times, and the like.

At first glance, one might treat the prayers of the patriarchs as actions without halakhic significance. At most, they would constitute a prefiguration of the command that would later be given at Mount Sinai, along the lines of what we find in Babylonian Talmud, Yoma 28b:¹

Rav said: Our patriarch Abraham fulfilled the entire Torah, as it is said, “Because Abraham obeyed My voice…” Rav Shimi bar Hiyya said to Rav: Then say that he fulfilled the seven Noahide commandments! — But circumcision is also included. — Then say the seven Noahide commandments together with circumcision! — He replied: If so, why do I need “My commandments and My laws”? Rava said — according to another textual tradition, Rav Ashi said — our patriarch Abraham fulfilled even the ordinance of joining cooked foods for a festival that falls before Shabbat, as it is said, “My Torahs” — one Written Torah and one Oral Torah.

But even so, we still remain within the realm of an anachronistic rabbinic exposition; see Midah Tovah, Lekh Lekha, 2005, and elsewhere.

Yet it turns out that with respect to prayer the situation is different. The sages themselves view the prayers of the patriarchs as a halakhic act, and perhaps even as a full-fledged halakhic enactment. Thus we find in Babylonian Talmud, Berakhot 26b:

It was stated: Rabbi Yose son of Rabbi Hanina said: The prayers were instituted by the patriarchs. Rabbi Yehoshua ben Levi said: The prayers were instituted to correspond to the daily offerings. A baraita was taught in accordance with Rabbi Yose son of Rabbi Hanina, and a baraita was taught in accordance with Rabbi Yehoshua ben Levi. A baraita was taught in accordance with Rabbi Yose son of Rabbi Hanina: Abraham instituted the morning prayer, as it is said, “And Abraham arose early in the morning to the place where he had stood there,” and “standing” means prayer, as it is said, “And Pinhas stood and prayed.” Isaac instituted the afternoon prayer, as it is said, “And Isaac went out to meditate in the field toward evening,” and “meditation” means prayer, as it is said, “A prayer of the afflicted when he faints and pours out his speech before the Lord.” Jacob instituted the evening prayer, as it is said, “And he encountered the place and lodged there,” and “encountering” means prayer, as it is said, “And you, do not pray for this people… and do not encounter Me.”

The Gemara brings a view according to which the prayers are enactments of the patriarchs. That is, the patriarchs did not merely anticipate a command from Sinai, nor later rabbinic enactments, but instituted an enactment themselves. This is not anachronism, but the foundation that binds us in the mitzvah of prayer to this very day.¹ One could perhaps have taken this as a purely aggadic statement, but a careful reading of the sugya there shows that it is understood as a genuinely factual, historical, and halakhic statement, one with halakhic implications:

And a baraita was taught in accordance with Rabbi Yehoshua ben Levi — that is, the one who holds that the prayers correspond to the offerings, not that the patriarchs instituted them: Why did they say that the morning prayer may be recited until noon? Because the morning daily offering could be brought until noon. Rabbi Yehudah says: until four hours, because the morning daily offering could be brought until four hours. And why did they say that the afternoon prayer may be recited until evening? Because the afternoon daily offering could be brought until evening. Rabbi Yehudah says: until the later afternoon division, because the afternoon daily offering could be brought until then. And why did they say that the evening prayer has no fixed limit? Because the limbs and fats that were not consumed by evening could continue to burn all night. And why did they say that the additional prayer may be recited all day? Because the additional offering could be brought all day. Rabbi Yehudah says: until seven hours, because the additional offering could be brought until seven hours… Shall we say that this is a refutation of Rabbi Yose son of Rabbi Hanina? Rabbi Yose son of Rabbi Hanina could answer: I can still say that the prayers were instituted by the patriarchs, and the sages later associated them with the offerings. For if you do not say so, then who instituted the additional prayer according to Rabbi Yose son of Rabbi Hanina? Rather: the prayers were instituted by the patriarchs, and the sages later associated them with the offerings.

The Gemara ties the halakha of prayer times to the dispute whether the prayers were instituted by the patriarchs or correspond to the offerings, and it challenges the various halakhic positions on the basis of the claim that the prayers were not instituted by the patriarchs.² The same impression emerges from other rabbinic and medieval sources as well, but this is not the place to elaborate.

Torah-Level or Rabbinic Prayer

It is commonly assumed that the mitzvah of prayer is rabbinic. Yet in practical halakha we find a dispute on this matter between Maimonides and Nahmanides. In Sefer Ha-Mitzvot, positive commandment 5, and see also Sefer Ha-Chinukh, commandment 433, Maimonides writes as follows:

The fifth commandment is that we were commanded to worship Him, exalted be He. This command is repeated several times: “And you shall worship the Lord your God”; “Him shall you worship”; “Him shall you worship”; and “to worship Him.” Although this command is also one of the general commands, as we explained in the fourth principle, it nonetheless has a specific aspect, namely that it commands prayer. The language of the Sifrei is: “‘To worship Him’ — this is prayer.” They also said: “‘To worship Him’ — this is Torah study.” And in the teaching collection of Rabbi Eliezer son of Rabbi Yose the Galilean they said: From where do we know that the essence of prayer is among the commandments? From here: “The Lord your God shall you fear, and Him shall you worship.” And they also said: “Worship Him through His Torah; worship Him in His Sanctuary” — that is, to go there and pray in it and toward it, as Solomon explained.

Maimonides understands the obligation of prayer as a Torah-level obligation, and its source is a rabbinic exposition of the verse “to worship Him with all your heart.”

Nahmanides, in his glosses to this commandment, disagrees and brings many proofs that the obligation of prayer is rabbinic. In the course of his remarks he writes as follows:

There is no agreement in this matter. For the sages already explained in the Gemara that prayer is rabbinic, as they said in the third chapter of Berakhot (21a) regarding one who had a seminal emission: he recites the Shema and blesses after meals, but he does not pray; and they explained the reason for this as follows: the Shema and grace after meals are Torah-level obligations, whereas prayer is rabbinic. They also said there: if one is uncertain whether he recited the Shema or not, he recites it again; if one is uncertain whether he prayed or not, he does not pray again, because the Shema is Torah-level and prayer is rabbinic…

He therefore concludes:

Rather, certainly the whole matter of prayer is not an obligation at all; rather, it is one of the Creator’s gracious kindnesses to us, that He hears and answers whenever we call to Him. The main purport of the verse “to worship Him with all your heart” is a positive commandment that all our worship be directed to God with our whole heart, that is, with full and fitting intention for His sake and without evil thought, and not that we perform the commandments without intention or merely on the chance that they may be beneficial. This is like the verse “And you shall love the Lord your God with all your heart and with all your soul and with all your might,” where the commandment is to love God with one’s whole heart, and to risk our lives and property for His love. As for what they expounded in the Sifrei — “‘to worship Him’ means Torah study; alternatively, this means prayer” — that is only a scriptural support, or else it means that included within worship are Torah study and prayer to Him in times of distress, when our eyes and our hearts are directed to Him alone, like the eyes of servants to the hand of their master. This is like what is written: “When you go to war in your land against the foe that oppresses you, you shall sound the trumpets, and you shall be remembered before the Lord your God.” This is a commandment that, for each and every distress that comes upon the community, they should cry out before Him in prayer and with trumpet blast.

Nahmanides determines that the exposition of the Sifrei is merely a scriptural support, or at most a source for the obligation to pray in a time of distress, but not for the regular obligation of prayer.³

Now in Sefer Mitzvot Katan (Semak), commandment 11, this mitzvah is also brought:

To pray with proper intention every day, as it is said, “to worship Him with all your heart.” And our sages expounded: What is worship of the heart? This is prayer with intention.

Let us note that in Semak it emerges that, unlike most mitzvot, where there is a dispute whether intention is required in order to fulfill one’s obligation, in prayer intention is part of the very definition of the mitzvah itself,⁴ and its source is apparently the verse itself, which commands us “to worship Him with all your heart.” According to Nahmanides above, that is in fact the entire content of the command.

How Can These Positions Be Reconciled with the Determination That Prayer Is Rabbinic?

In Semak there, he discusses the question of how this determination can be reconciled with the halakha that prayer is a rabbinic obligation, and he writes:

This means that even though the essential prayers are rabbinic, there is nevertheless a prayer that is from the Torah, as it is written, “From there you will seek the Lord your God and find Him, if you seek Him with all your heart and with all your soul.” And from here we also learn the prayers that the sages instituted.

This formulation is not entirely clear, and it may be interpreted in two different ways, which we shall now spell out. The first appears in the glosses of Rabbi Peretz there, who writes:

Rabbi Peretz says: Since he counts this among the positive commandments, it follows that prayer is always from the Torah, with everything depending on the occasion: in a time of distress, God forbid, or when the Omnipresent brings us out from distress. Even when the Temple stood and Israel dwelt peacefully upon its land, they would pray that the communal offerings be accepted favorably, just as the sages instituted the representatives of the offerings, who would fast four days a week, and they derived this in the Sifrei from the verse “You shall be careful to offer My offering at its appointed time” — meaning, at its attendance.

His words imply that the fixed prayers are indeed rabbinic, but there are special circumstances in which there is a Torah-level obligation to pray, such as in times of distress or prayer that the offerings be accepted. According to this approach, there are two distinct types of prayer: prayer in time of distress, which is Torah-level, and the regular obligatory prayers, which are only rabbinic.

It should be noted that this claim comes very close to one of the proposals we saw above in Nahmanides, who also writes that prayers in times of distress are Torah-level. We should also note that, according to what we have said here, Isaac’s prayer cited at the beginning of our discussion is, by all opinions, a Torah-level prayer. He prayed and sought deliverance from Rebekah’s barrenness, and prayer in time of distress is a prayer required by the Torah according to all views.

In any case, according to this proposal there is no real relation between the two obligations in prayer: the Torah-level obligation concerns prayer in time of distress, while the obligatory prayers are an additional rabbinic layer that appears in other circumstances. Before we turn to the second conception of the relation between these two dimensions of prayer, let us first introduce a brief discussion of women’s obligation in prayer.

Women’s Obligation: Rabbi Peretz’s Approach

A conclusion that follows naturally from the approach presented above appears in Rabbi Peretz’s gloss there:

I also found this gloss: Women and slaves are obligated in prayer, because it has no fixed time by Torah law and therefore is not a positive time-bound commandment.

Rabbi Peretz writes that although women are exempt from positive time-bound commandments, prayer is different. Since there is a Torah-level obligation of prayer that is not fixed to a particular time, women too are obligated in it. And indeed, in Maimonides’ formulation cited above, no exemption of women from this mitzvah appears.

This, however, is said regarding the special prayers, such as prayer in time of distress, whose obligation is Torah-level, and in which women too are obligated. But what about the fixed rabbinic prayers? Perhaps there women would be exempt, for there the dependence on time certainly exists: the fixed prayers are rabbinic, and fixed times were assigned to them. That question depends on whether women are exempt from rabbinic positive time-bound commandments or not.⁵

Women’s Obligation: Maimonides’ Approach

But what follows according to Maimonides himself? The Torah-level obligation, according to Maimonides, is not to pray in time of distress, but to recite one obligatory prayer each day. Yet even that is not time-dependent, and women are certainly obligated in it. Still, it is not clear what the law of women should be regarding the regular prayers. At first glance, this would seem to be a positive time-bound commandment, at least according to Tosafot, who hold that women are exempt even from rabbinic positive commandments that depend on time, and women should therefore be exempt from them.

But this is not so simple. In Shulchan Arukh, Orah Hayyim 106:1, it is written:

Women and slaves — although they are exempt from the Shema — are obligated in prayer, because it is a positive commandment not caused by time.

Shulchan Arukh rules that women are obligated in prayer. It does not specify which prayer or how many prayers are involved. On its plain sense, the wording suggests that they are obligated in the mitzvah of prayer in all its details, just like men. Yet the obligatory prayers are, after all, time-dependent.

Now the Mishnah Berurah there, subsection 4, writes:

Because it is a positive commandment, etc. — all this is according to Maimonides, who holds that only the times of prayer are of rabbinic origin, whereas the essential mitzvah of prayer is from the Torah, as it is said, “to worship Him with all your heart” — what is worship of the heart? This is prayer. However, the Torah gave no fixed text for it, and one may pray in any formulation one wishes and at any time one wishes. Once one has prayed once during the day or the night, one has fulfilled one’s Torah obligation. The Magen Avraham wrote that, according to this reasoning, the custom of most women, who do not regularly recite the eighteen-benediction prayer in the morning and evening, is understandable, because immediately after washing in the morning they recite some request, and by Torah law they fulfill their obligation thereby. It is possible that even the sages did not obligate them more than this.

But Nahmanides holds that the essential mitzvah of prayer is rabbinic, enacted by the Men of the Great Assembly, who instituted the eighteen blessings in their proper order to be prayed as an obligation in the morning and afternoon, while the evening prayer is optional. And even though this is a rabbinic positive time-bound commandment, and women are exempt from all positive time-bound commandments, even rabbinic ones, such as the sanctification of the moon, nevertheless they obligated women in the morning and afternoon prayers just as men are obligated, since prayer is a request for mercy.

The Mishnah Berurah writes that according to Maimonides the mitzvah of praying is Torah-level, and only the times and the text are rabbinic; therefore women are obligated at least in one prayer. He appears to understand the relation between the Torah obligation and the rabbinic obligations in a way similar to Rabbi Peretz: they are two separate obligations, and therefore each must be considered independently. But on the simple reading, the intention of Shulchan Arukh and Maimonides seems different. Their words suggest that women are obligated in all the prayers, perhaps apart from the evening prayer, which is optional.⁶ The explanation seems to be that the format fixed by the sages is itself the fulfillment of the Torah mitzvah. According to Maimonides, the sages did not add another, separate rabbinic mitzvah; rather, their enactments were meant to shape the format in which the Torah mitzvah is to be fulfilled.

If, according to Rabbi Peretz, we saw two separate mitzvot here, such that when one fulfills one of them one does not thereby fulfill the other, and the same emerged from the Mishnah Berurah‘s understanding of Maimonides, according to our reading of Maimonides the rabbinic form is simply the proper format in which to fulfill the Torah mitzvah. Therefore, if women are obligated in the Torah mitzvah, then they must fulfill it in the format established by the sages. Hence they do not receive an exemption because of the factor of time, for this entire format is merely the implementation of the Torah-level obligation in which women are included.⁷ True, the Magen Avraham writes that according to Maimonides women are obligated only in the Torah-level prayer and not in the three daily prayers, whose obligation is rabbinic, and therefore they are exempt from them because that obligation depends on time. But in my view this is not the plain sense of Shulchan Arukh and Maimonides.

According to Nahmanides, who holds that the entire matter is a rabbinic positive time-bound commandment, women really should have been exempt, were it not for the reasoning cited by the Mishnah Berurah that prayer is a request for mercy.⁸

The Meta-Halakhic Meaning of These Disputes: Different Types of Derivation

We have seen that according to Semak there is a Torah-level mitzvah of prayer, and nevertheless Rabbi Peretz, consistently with his own position, writes that women are exempt from the regular prayers and obligated only in the special prayers. The same would apparently have followed according to Nahmanides, were it not for the reasoning of the Mishnah Berurah just noted. The reason is that he sees the Torah-level obligation and the rabbinic obligation as two independent obligations, each of which must be discussed separately. According to our reading of Maimonides, by contrast, he holds that the rabbinic format is the form in which the Torah obligation itself is fulfilled, and therefore it follows quite simply that, in his view, women are obligated in all the prayers.

It should be noted that Maimonides also presents the mitzvah of prayer as an expression of the more general mitzvah, which is not counted separately, as discussed in the fourth principle, namely the mitzvah to worship Him, that is, the service of God. According to Maimonides, prayer is the formal and concrete halakhic expression of the obligation to serve God, and the sages shaped that obligation in a more detailed manner. If so, it is no wonder that according to Maimonides the obligation to pray three times a day is almost like a Torah obligation, for the sages have informed us that this is the way in which we are to fulfill the Torah mitzvah itself.

Up to this point we have encountered three possible forms of relation between the rabbinic dimension of a mitzvah and its Torah-level dimension:

1. The performance of the rabbinic mitzvah is in fact the form of performance of the Torah mitzvah. The sages merely explain to us what the Torah requires of us. Analogously to this, though there the detailed plane is not rabbinic, the Torah commands us to rest on Shabbat, but does not spell out the details. The sages tell us that it is forbidden, at the Torah level, to perform the thirty-nine primary categories of labor and their derivatives in detail. This specification is nothing but an interpretation of the obligation of rest imposed by the Torah itself. If a Jew rests in a different way, that is, if he performs labor on Shabbat, he has not fulfilled the mitzvah of rest at all. This is the relation that we shall henceforth call specification of the Torah mitzvah. True, it is a specification performed by the sages, but it lies entirely on the Torah plane. Here the sages function as interpreters, not legislators.⁹

2. The rabbinic mitzvah is indeed a fulfillment of the Torah mitzvah, but even if one fulfills it not in the format fixed by the sages, one has still fulfilled the Torah obligation and has only violated a rabbinic rule. For example, if someone prayed once a day in a spontaneous formulation, he has fulfilled the Torah mitzvah of prayer, though he has not fulfilled the rabbinic requirement. By contrast, if he prayed in the text fixed by the sages, he has fulfilled the Torah obligation. He does not need to recite some other prayer in order to fulfill the Torah command as well.

In such a case there is a rabbinic obligation to pray in the format they fixed. True, if one does so one thereby fulfills the Torah obligation, but the obligation to do so is only rabbinic. On the Torah level one could have sufficed with some form of prayer once a day. This too is a kind of specification, but of a different type. Here the details belong to the rabbinic plane, though Torah dimensions may stand behind them.

3. The rabbinic mitzvah is entirely separate from the Torah obligation. For example, according to Rabbi Peretz, prayer in time of distress is a Torah-level obligation, whereas fixed prayer is a rabbinic obligation. One who fulfilled one has not thereby fulfilled the other, and vice versa.

As we shall see below, this range does not exhaust all the possibilities.

“You Have Never Fulfilled the Mitzvah of Sukkah in Your Life”: The Dispute between Tosafot and the Ran at the Beginning of Sukkah

The Gemara in Berakhot discusses the question of the legal status of one who acted in accordance with the rulings of Beit Shammai in a case where the halakha was decided like Beit Hillel. In that context it brings the following case, in Babylonian Talmud, Berakhot 11a:

Rav Yehezkel taught: If one acted according to the words of Beit Shammai, he has acted; if according to the words of Beit Hillel, he has acted. Rav Yosef said: If one acted according to the words of Beit Shammai, he has done nothing at all. For we learned: If one had his head and the greater part of his body in the sukkah, while his table was inside the house, Beit Shammai disqualify and Beit Hillel validate. Beit Hillel said to Beit Shammai: There was an incident in which the elders of Beit Shammai and the elders of Beit Hillel went to visit Rabbi Yohanan ben Ha-Horanit, and they found him with his head and the greater part of his body in the sukkah while his table was inside the house, and they said nothing to him. They said to them: Do you bring proof from there? They too said to him: If this was your practice, you have never fulfilled the mitzvah of sukkah in your life.

To which of the three possibilities mentioned above would we assign the relation according to Tosafot? At first glance, this concerns a rabbinic law not to sit in the sukkah while one’s table remains in the house, the reason being a rabbinic decree lest one be drawn after one’s table and eat outside the sukkah. At first glance, then, this looks like a normal case of type 2: the person sitting in the sukkah fulfills the Torah mitzvah, but the obligation to do so with the table inside is only rabbinic. One who sat in the sukkah while his table remained in the house fulfilled the Torah obligation and only violated the rabbinic decree.

Now Tosafot, on Sukkah 3a, s.v. de-amar lakh, discuss this case, raise a difficulty, and finally state:

We must say that there it was necessary to bring a case in which Beit Hillel are stringent on rabbinic grounds while Beit Shammai ground the matter in Torah law. And we do not say that if one acted according to Beit Shammai he fulfilled at least his Torah obligation. For we find, according to Beit Shammai, in the case where one sits at the entrance of the shaded area, that they decreed lest he be drawn after his table, and yet they say, “You have never fulfilled the mitzvah of sukkah in your life,” meaning that he did not fulfill it even on the Torah level. And from Beit Shammai we may infer the same for Beit Hillel.

That is, the rule is that if a person fulfills the mitzvah of dwelling in the sukkah in a manner contrary to what the sages fixed on rabbinic grounds, he has not even fulfilled the Torah obligation.

At first glance, Tosafot thus return us to type 1: the sages are merely determining the form of sitting that the Torah itself requires. But the Gemara explicitly states that this is not the case, for the reason for the rule requiring the table to be inside the sukkah is a rabbinic decree lest one be drawn after the table, and not an interpretation of the Torah-level parameters of the mitzvah of dwelling in the sukkah.¹⁰ If so, why has he not fulfilled the Torah mitzvah of sukkah?

Apparently there is no escape from the conclusion that we are dealing here with a special uprooting enacted by the sages. He did in fact fulfill the Torah mitzvah, but in order to strengthen their enactment the sages determined that one who violates their ruling thereby forfeits the status of fulfillment even on the Torah plane.¹¹

According to Maimonides there is certainly room to say something similar regarding prayer: if a person did not pray in the form fixed by the sages, it may be that he has not fulfilled even the Torah obligation. Here this is even more plausible than in sukkah, since in prayer there is real reason to view the determination of the sages as the pattern they fixed for carrying out the Torah obligation itself. The format of prayer is not the product of a concern or a decree, but of an understanding of what proper prayer looks like, at least for us. Needless to say, according to Rabbi Peretz there is certainly no room for such a view.

The example of Tosafot in Sukkah thus constitutes in practice a fourth type of relation between Torah-level and rabbinic law. The rabbinic enactment is not a shaping of the Torah law, yet in the final analysis it determines de facto the form in which the Torah mitzvah is fulfilled. We now turn to a fifth type, fundamentally different from all the previous ones, of relation between Torah-level and rabbinic law.

“Love Your Neighbor as Yourself”

At the beginning of chapter 14 of the Laws of Mourning, Maimonides writes the following:

It is a positive commandment of rabbinic origin to visit the sick, comfort mourners, accompany the dead, bring the bride under the wedding canopy, escort guests, attend to all the needs of burial, carry on the shoulder, walk before the bier, mourn, dig, and bury; likewise, to gladden the bride and groom and support them in all their needs. These are acts of lovingkindness performed with one’s person, for which there is no measure. Although all these mitzvot are of rabbinic origin, they are included within “love your neighbor as yourself”: whatever you would want others to do for you, do for your brother in Torah and mitzvot.

These words of Maimonides raise serious difficulties, and many of his commentators struggled with them without, it seems, reaching clarity. On the one hand, Maimonides states that visiting the sick, comforting mourners, accompanying the dead, and the like are rabbinic mitzvot. On the other hand, he concludes by stating that these mitzvot are included in the Torah mitzvah of “love your neighbor as yourself.” So are these Torah mitzvot or rabbinic ones?

Some of Maimonides’ commentators held that these are Torah mitzvot, and that his opening words are not to be taken strictly, perhaps consistently with his approach in the second principle, where he broadens the concept of “the words of the scribes.” Others took the opposite view: that the opening clause is decisive, and the closing clause is merely rhetorical, indicating the spirit of the matter. But the plain sense of his words indicates that he seriously intends both statements at once. How can that be understood?

At first glance, one who performs these acts does indeed fulfill the Torah mitzvah, but on the Torah level there is no obligation to do them. If one did not escort the dead or bring the bride under the canopy, one can still fulfill the Torah mitzvah of loving one’s fellow; but if one did perform these acts, then in doing so one also fulfilled the mitzvah of “love.”

But then how does one fulfill only the Torah mitzvah of “love your neighbor”? If not by these actions, how is it fulfilled on the Torah level? The simple answer is that the Torah mitzvah is a commandment of the heart: to love one’s fellow, not a commandment to perform any specific act.¹² Of course, one who expresses that love in practice through such actions thereby also fulfills the Torah mitzvah.

Up to this point the distinction does not seem especially problematic, to the extent that it is not entirely clear why the commentators saw any difficulty in Maimonides’ words at all. At first glance this would seem to be a relation of type 2 discussed above, also called specification: rabbinic performance constitutes Torah fulfillment, but one is not obligated to do it.

The problem that apparently troubled Maimonides’ commentators is the relation between the two planes. If a person brings a bride to the canopy without any feeling of love toward her, or accompanies the dead without love for him, or comforts mourners without love for them, it would seem that he fulfills the rabbinic mitzvah but certainly not the Torah mitzvah. Conversely, if he loves his fellow without performing any act toward him, he fulfills the Torah obligation without fulfilling the rabbinic mitzvah.

According to this proposal, the picture that emerges is as follows: the Torah mitzvah is fulfilled by inner love alone, with no necessary relation to the mitzvah-act, whereas the rabbinic mitzvah is fulfilled by the actions alone, with no necessary relation to intention. If so, this seems to be a “relation” of type 3, which is really the absence of relation: these are two different mitzvot with no connection between them. True, sometimes one can fulfill the two together, but that is accidental.¹³ There is no essential and necessary relation between them. Yet Maimonides’ language makes it clear that this is not what he intended, for he explicitly tied the two obligations to one another.

Branching: A Fifth Type of Relation

There is no escaping the conclusion that here we have a fifth type of derivational relation between Torah-level and rabbinic law. If the details were the only possible fulfillment of the Torah mitzvah, then the rabbinic format would be a specification of the Torah mitzvah. The sages would merely have specified the Torah obligation into concrete practical details, and the way to fulfill the Torah mitzvah would be only through the forms they fixed. That would be the type 1 relation we saw above, but as we have seen, that is not the situation here. As we have just seen, a relation of type 2 also does not correctly describe what we have encountered, since there too there is, basically, no real relation between the Torah and rabbinic planes.

It seems that we must conclude that what we have here is a relation of branching, not of specification. The rabbinic mitzvot branch out from the Torah mitzvah like branches growing from roots — compare a similar expression in Maimonides’ second principle: “like branches issuing from roots” — but they do not constitute its fulfillment. The relation is not one of specification, which belongs to the logical sphere, but one of growth of one from the other. In another formulation, one could say that the relation between root and branch is built on analogy or extension, not on deduction.¹⁴

According to the proposal offered here, one who loves his fellow inwardly, without any practical expression, indeed fulfills a Torah mitzvah. But one who comforts him in his mourning fulfills a rabbinic mitzvah that branches out from the Torah mitzvah. After all, such actions are usually an expression of love, and therefore the spirit of the command “love” finds fitting expression in these actions. For that reason the sages instituted an obligation to perform such actions, and that obligation branches out from the Torah obligation to love one’s fellow. But the performance of these actions as such does not itself fulfill the Torah mitzvah, unless at the same time he also loved his fellow in his heart.

A relation of branching means that the rabbinic laws branch out from the Torah mitzvah but do not constitute an expression of it itself. There is a connection between them, but it is not airtight. One who fulfills the rabbinic mitzvot does not thereby necessarily fulfill the Torah mitzvah, which is what happens in specification; rather, so to speak, he has fulfilled “half,” in a qualitative sense, of the Torah mitzvah. Therefore these are rabbinic laws, unlike specification of type 1, yet they still have a root in the Torah.

We should not allow ourselves to be trapped within a binary dichotomy of yes or no. The question whether rabbinic laws constitute an expression of a Torah mitzvah receives here an answer different from either yes, which would mean specification, type 1, or no, which would mean type 3. We have here another kind of derivational relation to the Torah plane, one of intermediate intensity: branching.

Another Example: “So That He May Rest”

In chapter 24 of the Laws of Shabbat, law 12, Maimonides writes:

The sages forbade moving certain things on Shabbat in the way one does on a weekday. Why did they involve themselves with this prohibition? They said: If the prophets warned and commanded that your walking on Shabbat should not be like your walking on a weekday, and that Shabbat speech should not be like weekday speech, as it is said, “and speaking of matters,” then all the more so moving objects on Shabbat should not be like moving them on a weekday, so that Shabbat should not appear to him like a weekday, and he should not come to lift and arrange utensils from corner to corner, or from house to house, or put away stones and the like. For he is idle and sits at home and will seek something with which to occupy himself, and it turns out that he has not rested, and the rationale stated in the Torah, “so that he may rest,” is nullified.

At first glance, Maimonides is spelling out here the prohibition of muktzeh, or the decree concerning utensils — see Babylonian Talmud, Shabbat 122b, “in the days of Nehemiah…” He explains the rationale of the decree by saying that people will come to violate the character of Shabbat. As is known, Nahmanides in his commentary to Parashat Emor sees such a state as itself a Torah prohibition, learned from the word “a day of solemn rest”; see also Ritva on Rosh Ha-Shanah 32b, who cites him. Maimonides, after presenting the rationales for the decree, grounds them in the verse “so that he may rest.” Yet at the beginning of his remarks he writes, “The sages forbade,” which shows that this is a rabbinic prohibition.

Here the expression is clearer than in the previous example, since he is not speaking about the nullification of an ordinary positive commandment, but about the nullification of the rationale of the mitzvah, that is, its spirit. Rabbi Elhanan Wasserman, in Kovetz Shiurim, Kuntres Divrei Soferim, section 1, subsection 17, explains that the intention is that this runs against the Torah’s will even though it does not violate an explicit command. We may note that it is certainly still a genuine rabbinic prohibition.

According to our approach, this example is exactly like the previous one. The spirit of the Torah is that Shabbat should have a certain character. The sages cast that inchoate will into halakhic patterns. These are rabbinic laws, but they branch out from the Torah law. So to speak, this is a “half-mitzvah,” in a qualitative sense.

“Do Not Deviate”

A good example of this matter can be seen by examining the status of rabbinic mitzvot in general. As is known, Maimonides holds in several places — see the beginning of the Laws of Rebels and the first principle of Sefer Ha-Mitzvot — that the obligation to fulfill rabbinic mitzvot also derives from the commandment “do not deviate.” Nahmanides disagrees, and in his view the mitzvah of “do not deviate” gives authority to the sages only with respect to Torah-level law, for example when they expound or interpret the Torah, but not with respect to rabbinic law, that is, when they institute enactments or decrees.

The reason for Nahmanides’ distinction is his objection to Maimonides’ position: according to Maimonides, it would follow that anyone who violates a rabbinic prohibition has in fact violated a Torah prohibition. For example, one who eats poultry cooked with milk has really violated the Torah command “do not deviate.” One implication raised by Nahmanides is that we should seemingly have to be stringent even in cases of doubt concerning rabbinic law, since every such doubt would contain within it a doubt concerning a Torah prohibition. We will not dwell on this issue, since here it serves only as an example for our purposes.¹⁵

It is quite clear that Maimonides too does not hold that every time a person violates a rabbinic prohibition he is actually violating a Torah prohibition. Our claim is that Maimonides sees the relation between a rabbinic prohibition and the Torah prohibition of “do not deviate,” from which it is derived, as a derivation of branching, not of specification. The prohibition of eating poultry with milk is not a Torah prohibition that constitutes a specification of “do not deviate”; rather, it branches out from the prohibition of “do not deviate.”

Let us bring one implication of this, specifically on a plane accepted even by Nahmanides, namely laws learned by interpretive derivations. The author of Minhat Chinukh, on commandments 495-496, subsections 2-3, makes a highly problematic claim: if a person faces a situation in which he must eat forbidden food — for example, because he is dangerously ill — it is preferable that he eat something explicitly forbidden in the Torah rather than something forbidden only by interpretive derivation. The reason, he says, is that in a prohibition explicitly written in the Torah there is only one prohibition, whereas in violating a prohibition learned by derivation there are two: the prohibition of “do not deviate” and the derived prohibition itself.

With all due respect to the author of Minhat Chinukh, this is something that simply cannot be said, and we will not elaborate here on the many proofs for that. What led him to this problematic claim is a failure to understand the nature of the prohibition “do not deviate.” He understood the prohibition learned through derivation as one prohibition in itself, with rebellion against the authority of the sages adding another prohibition on top of it. But the truth is that only the derived prohibition is a real prohibition. The commandment “do not deviate” is not an independent prohibition at all; it merely reveals to us that the sages’ derivations create laws that we must obey. True, if someone violates a prohibition learned by derivation and does so out of rebellion against the sages’ authority, then he has indeed violated two prohibitions. But in an ordinary violation of a law learned by derivation there is only one prohibition, and at most it is equal in severity to a Torah prohibition, or perhaps lighter than one.

This is exactly our point above. The prohibition of “do not deviate” is not an ordinary prohibition. A rabbinic transgression, or a transgression of a law learned by derivation, is not a specification of that prohibition, but a branching of it. “Do not deviate” is the source showing that there is prohibition in the derivative commands, but violating them does not itself constitute violating it — unless rebellion against the authority of the sages accompanies the act, exactly as we saw with the mitzvah of “love your neighbor as yourself,” where the feeling of love that accompanies the act is the fulfillment of the Torah mitzvah, while the absence of that feeling is its nullification.

Note: A Double Plane of Discussion

It should be noted that the concept of branching stands between Torah law and rabbinic law on two different planes:

1. Branching describes the derivation of the principled binding force of rabbinic law from the mitzvah of “do not deviate.”
2. It also describes the derivation of the content of a specific rabbinic mitzvah from the root of that mitzvah in Torah law, as in the case of “love your neighbor as yourself.”

The first plane concerns the principled question of authority, whereas the second concerns the derivation of content. As we saw, in the mitzvah of “do not deviate,” because of its special character, the content is the very authority that it grants. The mitzvah of “do not deviate” is not a specific commandment but a delegation of power for subordinate legislation. Therefore, with respect to it, these two planes converge into the halakhic derivation that we have called here branching.

A Similar Example: Interpretive Derivations According to Maimonides

This is not the place to expand, but let us note that we find a similar derivational relation in Maimonides’ second principle, between laws learned by interpretive derivation and their scriptural source. Most medieval authorities see the derivation as exposing what is already present in the text itself, and therefore they regard such laws as Torah law. Maimonides, by contrast, holds that the relation between these two planes is not one of specification, and therefore such laws are not Torah law. Rabbinic exegesis is an expansive mechanism, not a revelatory one. This relation is not deductive in its nature but rather one of analogy or induction, and therefore the branch does not contain everything that is found in the source, unlike a deductive relation.¹⁶

An Implication for Jurisprudence: Relations of Authorization

We conclude this article by pointing out that the two types of derivation defined above, specification and branching, appear in very similar form in general jurisprudence as well.¹⁷

The Austrian legal thinker Kelsen was one of the fathers of legal positivism. Like every positivist thinker, he conceived the world of law as a system of norms that are related to one another through what he called “relations of authorization,” that is, relations between an authorizing norm and an authorized norm. At the top of the entire pyramid stands a fundamental rule, the “parent rule,” in Dworkin’s terminology, which has a different character from all the other legal norms. From that rule the entire pyramid of the normative system is built and derived. In Kelsen’s doctrine this is the “basic norm,” and in Hart it is the “rule of recognition.” We will not enter here into the differences between them. The structure is built in a logically deductive way through relations among the various norms: from the parent norm to the norms below it in the hierarchy, and so on.

Now Kelsen divides relations of authorization into two main types:[^19]

1. Dynamic authorization relations. These relations are not based on a content-based logical relation between norms, but on institutional relations of delegated authority. The validity of the norm is not proved by pointing to another norm from which it is derived or inferred, but by pointing to another norm, valid and authorized in itself, that authorized its creation. For example, a general norm may determine that the Minister of the Interior, when establishing a local council, shall determine its functions, powers, and duties. That norm authorizes the specific norm consisting in the minister’s order laying down instructions about street cleanliness. This is dynamic in essence, because it does not determine the authorized content, but only the possibility of creating it. The substantive question — which norm is to be created — is left to the authorized authority. As an example, some view inheritance laws, meaning a person’s right to bequeath his property, as a kind of dynamic authorization relation, because they empower the bequeather to determine the legal status of his property after his death.

2. Static authorization relations. Such relations are based on a content-based logical relation between the authorizing norm and the authorized norm. The relation between them is one of deduction and logical derivation. For example, there may be a general norm that one must not infringe the private property of others and their right to use it as they wish. That norm authorizes the specific norm that theft is forbidden. These relations are static, because unlike the previous case, here the authorizing norm also dictates the authorized content. That content is fixed in advance within the authorizing norm and is not left to anyone’s choice.

These two types of relation also define two kinds of systems of norms, depending on the character of the authorization relations that operate within them. We will not deal with that here.

One can immediately see that this division corresponds exactly to the division we made between the first principle, which deals with the halakhic status of rabbinic laws, and the second principle, which deals with the halakhic status of interpretive derivations, in Maimonides. As we saw, the first principle concerns a dynamic authorization relation, whereas the second concerns static authorization relations.

One may now ask: what law has been violated by someone who acted contrary to an instruction of a local council? Has he violated state law, or the laws of that local authority? At first glance, he has violated state law, since there is a law requiring people to act in accordance with the instructions of the local authority. Yet that offense is considered less severe than a direct violation of state law, because primary legislation has greater force than secondary legislation. How can such a difference arise, if there is a law authorizing the local authority to legislate? At first glance, this would seem to be a violation of primary legislation. The answer is exactly what we saw above with regard to Minhat Chinukh: the derivation of secondary legislation from primary legislation is not specification but branching.

Dynamic authorization relations are, by their very nature, forms of branching. But static authorization relations may be divided into two types. There too we find relations of specification, meaning that violating a particular clause of the law of theft constitutes actual theft, and situations in which the violation concerns something derived through an extension of the law of theft, so that it is not literally theft. Here we have branching within static authorization relations.¹⁸

And Again: “The Patriarchs Instituted the Prayers”

We opened the article with the Gemara that understands the prayers as enactments of the patriarchs. If there is indeed a Torah mitzvah here, as Maimonides writes, then we must conclude that the patriarchs instituted the proper form in which this mitzvah is to be fulfilled, as the Torah itself would want it to be done. Once that form has been fixed, it is the fulfillment of the Torah mitzvah.

The opposing view is that the form of the prayers is shaped in light of the laws of the offerings. If so, the dispute concerns what the proper form of prayer is, and its basis lies in how one understands the meaning of the Torah obligation to pray. The enactment of the patriarchs, or of the sages in light of the laws of the offerings, is nothing but an attempt to understand what the Torah itself would want us to do in our prayer. True, the status of these norms is that of rabbinic law, and therefore they are not a specification of the Torah mitzvah, but one may say that they branch out from the Torah obligation, like branches issuing from roots.

In Kuntres Divrei Soferim there, subsections 21-22, Rabbi Elhanan wonders how we can find enactments of sages before the giving of the Torah — for example, regarding a gentile who had relations with a daughter of Israel, by decree of the court of Shem — when the source of the sages’ authority is the verse “do not deviate.” The same question can be asked about the institution of prayer by the patriarchs.

According to our approach, one should say that they indeed had no formal authority, but they were the ones able to interpret the Torah’s own will, and therefore we are bound by the enactment because it was the correct expression of the character that the Torah itself demands of us. The actions of the patriarchs constitute an indication of the proper form of prayer, and therefore when the sages later formalized this into law, they preserved the character created by the patriarchs.

Footnotes