Halakhic Adjudication on Questions of Jewish Thought (Column 667)

With God’s help

Disclaimer: This post was translated from Hebrew using AI (ChatGPT 5 Thinking), so there may be inaccuracies or nuances lost. If something seems unclear, please refer to the Hebrew original or contact us for clarification.

In the second book of my trilogy I argue that the domain called “Machshevet Yisrael” (Jewish thought) is empty. Beyond the fact that most discussions there are slogans unsupported by good arguments and that the concepts discussed are ill-defined, I claimed that it is difficult to speak of a tradition in this area, and no less difficult to derive conclusions in these fields from the Scriptures. Above all I argued that the notion of (formal) authority cannot apply to factual claims, and I pointed out that the overwhelming majority of claims in Jewish thought are factual claims. Here I wish to examine the issue of issuing halakhic rulings on questions of thought in light of Maimonides’ statements, and to comment on the significance of my contention about authority regarding factual claims (these matters were discussed in Lesson 3 in my Dogmatics series, and here I elaborate a bit more. Arel, take note.)

Maimonides’ Words in the “Perush ha-Mishnah”

It is well known that Maimonides writes in his Perush ha-Mishnah (Commentary on the Mishnah) in three places that one should not issue a halakhic ruling about questions that do not touch practice. Thus, for example, in his commentary to Mishnah Sanhedrin, Chapter 10 (in the Mishnah this is the chapter “Chelek,” which he counted as the tenth, unlike the Talmudic arrangement) mishnah 3. There the Mishnah states:

“The generation of the Flood have no share in the World to Come and they do not stand in judgment, as it is said (Genesis 6): ‘My spirit shall not strive with man forever’—no judgment and no spirit. The generation of the Dispersion have no share in the World to Come, as it is said (Genesis 11): ‘And the Lord scattered them from there over the face of all the earth’—He scattered them in this world, and ‘from there the Lord scattered them’ to the World to Come. The people of Sodom have no share in the World to Come, as it is said (Genesis 13): ‘Now the men of Sodom were exceedingly wicked and sinful against the Lord’—wicked in this world and sinful regarding the World to Come; but they do stand in judgment. Rabbi Nehemiah says: both these and those do not stand in judgment, as it is said (Psalms 1): ‘Therefore the wicked shall not stand in judgment, nor sinners in the congregation of the righteous.’ ‘The wicked shall not stand in judgment’—this refers to the generation of the Flood; ‘nor sinners in the congregation of the righteous’—these are the people of Sodom. They said to him: they do not stand in the congregation of the righteous, but they do stand in the congregation of the wicked. The spies have no share in the World to Come, as it is said (Numbers 14): ‘And the men who brought an evil report of the land died by the plague before the Lord’—they died in this world by a plague, [and also] in the World to Come. The generation of the Wilderness have no share in the World to Come and do not stand in judgment, as it is said (Numbers 14): ‘In this wilderness they shall be consumed, and there they shall die’—these are the words of Rabbi Akiva. Rabbi Eliezer says: concerning them it is said (Psalms 50): ‘Gather my pious ones unto Me, those who made a covenant with Me by sacrifice.’ The assembly of Korah is not destined to ascend, as it is said (Numbers 16): ‘And the earth covered them’—in this world; ‘and they perished from the midst of the assembly’—in the World to Come; these are the words of Rabbi Akiva. Rabbi Eliezer says: concerning them it is said (1 Samuel 2): ‘The Lord kills and makes alive; He brings down to Sheol and raises up.’ The Ten Tribes are not destined to return, as it is said (Deuteronomy 29): ‘And He cast them into another land as it is this day’—just as this day goes and does not return, so they go and do not return—these are the words of Rabbi Akiva. Rabbi Eliezer says: just as the day becomes dark and then lightens, so the Ten Tribes, for whom it became dark thus, are destined to have light shine for them.”

And in his commentary there Maimonides writes:

“We have already mentioned to you several times that any dispute that occurs among the sages and is not contingent on practice, but is the establishment of an opinion alone, there is no place to rule halakhically like one of them. And he mentioned this whole matter in this tractate because he already discussed earlier the death penalties of the court and those liable to karet and death [at the hands of Heaven], and therefore he informed you that if a person sinned and was put to death by one of these executions, do not think that he has no share in the World to Come; rather, he does have a share in the World to Come, and that is his statement that whoever confesses has a share in the World to Come. Therefore he adjoined to this matter those who have no share in the World to Come. And he returned to the topic of the tractate, namely dealing with who are executed and how they are executed, and said [so].”

The discussion is about who does or does not have a share in the World to Come (following the mishnayot at the beginning of “Chelek”). Maimonides says that in such questions one should not rule halakhically, since these matters belong to the realm of thought and do not touch practice.

It is interesting to note that these remarks appear in his commentary to “Chelek,” while in his introduction to that very chapter he sets forth the Thirteen Principles (ikkarim), and ostensibly there he definitely decides theological questions. We shall return to this contradiction below.

Another place where Maimonides writes similarly is in his commentary to Sotah 3:3–4. The Mishnah there brings a dispute:

“If she has merit, it suspends [the effect of the bitter waters] for her. There is merit that suspends for one year; there is merit that suspends for two years; there is merit that suspends for three years. From here Ben Azzai says: a person is obligated to teach his daughter Torah, so that if she drinks she will know that merit suspends for her. Rabbi Eliezer says: whoever teaches his daughter Torah, it is as if he taught her frivolity [licentiousness]. Rabbi Yehoshua says: a woman prefers one kav with frivolity to nine kavim and restraint. He would say: a pious fool, a cunning evildoer, a woman ascetic, and the wounds of ascetics—these destroy the world.” “Rabbi Shimon says: merit does not suspend in the bitter waters; and if you say that merit suspends in the bitter waters, you dull the waters before all the women who drink, and you bring out a bad name upon the pure ones who drank, for people will say: they were impure, but merit suspended for them. Rather, merit suspends [only] for them [in other ways]. Rabbi says: merit suspends in the bitter waters, but she does not conceive and does not improve; rather she wastes away until, in the end, she dies the same death.”

The Tannaim disputed whether merit suspends the effect of the bitter waters, and for how long.

And Maimonides writes in his commentary:

“And I have already said to you more than once that if the sages dispute regarding some outlook or opinion whose end is not an action among actions, there is no saying there, ‘the halakha follows so-and-so.’”

The discussion in that Mishnah is about what women desire and who are “destroyers of the world.” In the discussion that arises there regarding whether women are obligated in Torah study, Maimonides does rule halakhically, since that touches practice.

The third place is in Maimonides’ commentary to Shevuot 1:4. The Mishnah there states:

“And for one who had no awareness at the beginning nor at the end—[the sin-offering of] the festival he-goats and the new-moon he-goats effect atonement—these are the words of Rabbi Yehuda. Rabbi Shimon says: the festival he-goats atone, but not the new-moon he-goats. And for what do the new-moon he-goats atone? For one who was pure who ate the impure. Rabbi Meir says: all the he-goats have the same atonement: for impurity of the Sanctuary and its holy things.”

And in his commentary there Maimonides writes:

“What Rabbi Meir said—‘all the he-goats’—means the festival he-goats, the new-moon he-goats, and the goat offered outside on Yom Kippur. And in this dispute one does not say, ‘the halakha is like so-and-so,’ for this matter is entrusted to the Exalted and Glorious God, and they disputed regarding proofs and derivations from verses, and this is not the place to mention the methods by which they derived them. And we have already explained that any opinion among opinions in which there is no action among actions, about which the sages disputed, we do not say regarding it, ‘the halakha is like so-and-so.’”

The discussion there concerns what the new-moon he-goats and the festival he-goats atone for, since the matter of atonement is entrusted to the Holy One, blessed be He, and not to us; therefore one should not issue a halakhic ruling on it. This is a particular case of the earlier rule, for what is entrusted to God does not concern us in practice, and thus one should not rule on it.

It is interesting to note that in his fourteenth “root,” Maimonides cites the words of the Ba’al Halakhot Gedolot (Bahag), who counted punishments in his enumeration of the commandments as separate prohibitions, and among them counted karet and death at the hands of Heaven. Maimonides disputes this and argues that one should not count the punishment as a separate prohibition; rather, each kind of punishment is a positive commandment (see our essay in Yishlach Shoreshav on Root Fourteen). And about karet and death at the hands of Heaven Maimonides adds and writes as follows:

“More difficult than this is that he counted those liable to karet and those liable to death at the hands of Heaven among the prohibitions. They think that the liability of karet and the matter that incurs karet and the punishment for it is the enumerated commandment, to the point that the author of Sefer ha-Mitzvot spoke about this and said in the first gate, in informing what that gate includes—his words are as follows: ‘And among it are thirty-two matters that He, may He be exalted and uplifted, informed us that He would deal with them, not we—He guaranteed all of them.’ As for his saying ‘and among it,’ he meant, ‘among the matters that gate includes,’ and the thirty-two matters are twenty-three cases of karet alone and nine cases of death at the hands of Heaven, as he counted. And the meaning of his saying ‘He guaranteed all of them’ is: He, may He be exalted, guaranteed that He would cut off this one and put that one to death. There is no doubt that this one [i.e., the author] holds that the 613 commandments are not all obligations upon us; rather, among them are those that are an obligation upon us to fulfill, and among them are those that are upon Him, may He be exalted, to fulfill, as he said and clarified: ‘He will deal with them, not we.’ This—all of it, God knows—is in my eyes complete intellectual confusion that is not proper to speak of in any way, for these are statements whose falsity is manifest.”

Maimonides wonders how it is possible to include, in the enumeration of the commandments, directives that pertain to the Holy One, blessed be He, and not to us. This recalls his position we saw in his commentary to Shevuot regarding matters entrusted to God. Admittedly, his claim here could arise even if one maintained that halakhic rulings are issued about questions that pertain to God; still, it seems implausible to include them in the count of commandments, since a commandment is something addressed to us.

As for Maimonides’ challenge to the Bahag, one could perhaps say that there are ramifications to karet and death at the hands of Heaven, both regarding kim lei be-derabba minei (one who is liable to death at the hands of Heaven is exempt from monetary penalties), and regarding lashes, since the rule is that those liable to karet receive lashes and are then exempted from karet (see Mishnah Makkot 3:1: “All those liable to karet who received lashes are exempted from their karet”). Again I note: this could perhaps explain why one rules halakhically about it, but it is harder to understand why it would enter the enumeration of the commandments.

Contradictions to Maimonides’ “Perush ha-Mishnah”

David Henshke, in his article “On the Limits of Deciding Halakha: The Evolving Maimonidean Methodology Within the Milieu of Shifting Talmud Approaches” (Da’at 61, Summer 2007), addresses these statements of Maimonides and argues that Maimonides contradicts himself. First, he notes that Maimonides relates to matters of thought (the domain of “pardes”) as part of Torah study and deals with them extensively himself in Hilkhot Yesodei ha-Torah and elsewhere. He himself established the Thirteen Principles, and that constitutes deciding theological questions. But beyond this he shows that in at least two of the three sources in the Perush ha-Mishnah that we cited above, where Maimonides refrains from issuing a ruling, in the Yad (the Mishneh Torah) he does in fact decide.

The first is in Hilkhot Shegagot 11:9, where Maimonides rules on the dispute we cited in Mishnah Shevuot:

“[Regarding] impurity of the Sanctuary and its holy things—if one had awareness at the beginning but no awareness at the end, the inner Yom Kippur goat and Yom Kippur suspend [punishment] until it becomes known to him and he brings a variable sin-offering. If there was no awareness at the beginning but there was awareness at the end, the outer Yom Kippur goat and Yom Kippur atone. And for one who had no awareness at the beginning nor at the end, the festival he-goats and the new-moon he-goats atone. And for deliberate impurity of the Sanctuary and its holy things, the bull of the High Priest on Yom Kippur atones if the deliberate sinner was among the priests; and if he was an Israelite, the blood of the inner goat and Yom Kippur atone, as it is said, ‘And he shall atone for the holy place because of the impurities of the children of Israel.’”

He rules like Rabbi Yehuda in the Mishnah we brought above (see Kesef Mishneh there), and the author of Tzror ha-Kesef already wondered at him, since in the Perush ha-Mishnah he wrote that one should not rule on this.

And in Hilkhot Sotah 3:20 he decides the dispute regarding the merit of the sotah:

“A foolish woman who had the merit of Torah study—even though she is not commanded in Torah study—this merit suspends for her, and she does not die immediately; rather she wastes away and gradually deteriorates, and heavy illnesses come upon her until she dies after one, two, or three years, according to her merit; and she dies with swelling of the abdomen and the falling of the limbs.”

Here he rules like Rabbi against Rabbi Shimon. The Tiferet Yisrael already noted this and suggested that Maimonides did not decide this as halakha but merely expressed that Rabbi’s reasoning seems preferable. That, of course, is very forced.

It seems, then, that Maimonides retracted what he wrote in the Perush ha-Mishnah, and therefore in the Mishneh Torah he decides even in issues that do not touch practice.

A Non-Priest Eating Terumah

Henshke there brings another example regarding the prohibition of a non-priest eating terumah, which appears in the Sefer ha-Mitzvot but not in the Perush ha-Mishnah. The Sefer ha-Mitzvot was written after the Perush ha-Mishnah and before the Mishneh Torah, and therefore one may infer that at that stage Maimonides still held that one should not decide questions that are not practical. Thus he writes in Negative Commandment 133:

“The 133rd commandment is that He warned every non-priest from eating any terumah, and that is His statement (Leviticus 22:10): ‘And no non-priest shall eat sacred food.’ And the ‘sacred food’ here means terumah. Likewise the first fruits, which are called ‘terumah,’ as I will explain (at the end of Positive Commandment 149). This is what I intended by saying ‘any terumah.’ And if one ate terumah deliberately he is liable to death at the hands of Heaven, and he is liable for adding a fifth only if he did so unwittingly, as was explained in the sixth (Mishnah 1–2) and seventh (Mishnah 1) chapters of Tractate Terumot.”

“And in Sanhedrin 9 (83b) they counted those liable to death at the hands of Heaven, and among them is a non-priest who ate terumah. And they set their proof as follows (Terumot 2:9): ‘And they shall die for it if they profane it,’ and afterwards, ‘And no non-priest shall eat sacred food.’ And in Bikkurim 2 (Mishnah 1 and the end of Challa 1) they said: ‘For terumah and first fruits one is liable to death and a fifth, and they are forbidden to non-priests.’ And Rav (Sanhedrin 83b) disputes all these mishnayot and says: ‘A non-priest who ate terumah is [liable to] lashes.’ And it is known that Rav is a Tanna and disputes [mishnayot]. And we have already explained in our commentary to the Mishnah (Sotah 2:5, 3:3, and Shevuot 1:4 and “Chelek” mishnah 3) that any dispute that does not entail a difference in action, but only in opinion, I will not rule in it halakhically nor say, ‘the halakha follows so-and-so.’ Therefore I will not say here whether the halakha is like Rav or like the anonymous mishnah, for according to everyone he receives lashes. For anyone liable to death at the hands of Heaven for violating one of the prohibitions is [also] liable to lashes, as we explained in the introductions to this work (beginning of Root 14, section 193). Likewise anyone who misappropriates sancta deliberately is certainly [liable to] lashes. And that is what they said in Niddah (46b) about one who consecrated a person and others ate it: Rabbi Yohanan and Resh Lakish both said: they receive lashes.”

Here he repeats that with regard to liability for death at the hands of Heaven one should not decide halakhically (while regarding lashes there is no dispute, and therefore he is lashed; and apparently the same regarding the additional fifth, which is agreed by all).

And behold, even on this matter Maimonides is faithful to his new approach in the Mishneh Torah, and he rules that a non-priest who ate terumah is liable to death at the hands of Heaven (see Hilkhot Terumot 6:6; 10:4; Hilkhot Bikkurim 3:1; Hilkhot Sanhedrin 19:2). However, here already in the Perush ha-Mishnah he decides like the Tanna that a non-priest who ate terumah is liable to death at the hands of Heaven (see his Perush ha-Mishnah to Challa 1:9; Sanhedrin 9:6). Admittedly, in those mishnayot the dispute was not cited, and it is possible that Maimonides simply cites the Tanna’s view and is not truly deciding.

It is appropriate to mention again what we saw above in Maimonides’ words in Root Fourteen, where he says that one should not count the punishments of karet and death at the hands of Heaven among the commandments. I already noted there that there is a difference between the question of enumeration and the question of halakhic decision. It may be that one should decide halakhically about it, but still, since it concerns something entrusted to God, there is no place to include it in the enumeration of the commandments.

Conclusions and General Distinctions

As we have seen so far, Maimonides is consistent in his Perush ha-Mishnah in not deciding questions that do not touch practice, whereas in the Mishneh Torah he decides even on them. However, at the beginning of Root Nine Maimonides prefaces (see our essay on this root in the book Yishlach Shoreshav, where we discussed its significance and the fact that Maimonides chose to place it specifically at the beginning of this root), and there he explicitly determines that there are four kinds of commandments:

“Know that all the commands and warnings of the Torah are in four things: beliefs, actions, character traits, and speech. That is, He commanded us to believe a certain belief, such as that He commanded us to believe in His unity and love of the Almighty and fear of Him; or He warned us against believing a certain belief, such as warning us not to ascribe lordship to another. Likewise He commanded us regarding a certain action, such as the command to offer sacrifices and to build the Temple; and He warned us against a certain action, such as warning us not to offer [sacrifice] to another [being] and not to bow to a being other than the Almighty. Likewise He commanded us to conduct ourselves with a certain character trait, such as commanding us regarding compassion, mercy, charity, and kindness, which is His statement ‘You shall love your fellow as yourself.’ And He warned us about a certain character trait, such as warning us against hatred, bearing a grudge, taking revenge, blood-seeking, and other bad traits, as I will explain. And He commanded us to say a certain statement, such as the command to praise Him and pray to Him and confess sins and transgressions, and the like, as will be clarified. And He warned us against a certain speech, such as warning us not to swear falsely, not to gossip, not to speak slander, not to curse, and the like.”

That is, according to him there are commandments that pertain to thought and speech without any practical ramifications. So what is the meaning of his statements in the Perush ha-Mishnah and the Sefer ha-Mitzvot that one should not decide matters that do not touch practice? It seems that indeed in matters of thought Maimonides certainly rules and decides and regards them as binding commandments (as we also saw regarding the Thirteen Principles). All the mishnayot where Maimonides wrote those statements deal with matters whose ramifications lie only with the Holy One, blessed be He. If we have a command to think something, or a prohibition not to think something—that is a halakhic directive in every sense. But the question whether someone has a share in the World to Come, and whether there is death at the hands of Heaven or karet—this is a directive that pertains only to God. In other words, the definition is not “matters that do not touch physical practice,” but “matters that have no ramifications (even if not practical in the physical sense) for us.”

Beyond this, it seems that Maimonides emphasizes in all these places that it is a matter of deciding among sevarot (reasonings). That is, it concerns mere human reasoning—some kind of human judgment or angle of view about which sages disagreed—and in that there is no place to establish a binding halakhic ruling. But there are obligations of thought whose foundation is an absolute and clear reasoning (in Maimonides’ view) or in the Scriptures (as he understood them), and there there is a decision, and it is binding. Such errors are “errors in something explicitly taught” and not in “judgment,” and in that there is room to decide.

In addition, one could distinguish between disputes about theoretical principles that have halakhic-practical ramifications—in which there is room to decide—and disputes about theoretical questions that have no halakhic-practical ramifications. About the latter, Maimonides wrote that there is no place to set a binding decision.

Even so, within this there is room to distinguish between principles that have direct ramifications (almost every halakha has certain conceptions at its base, and therefore it is reasonable that a dispute about it begins with theoretical-philosophical questions) and principles with indirect ramifications. For example, establishing principles of faith has indirect ramifications, since one who denies them is a heretic in a fundamental principle, and the halakha prescribes a binding stance toward him (e.g., “we lower but do not raise,” etc.). That is itself a ramification of the theoretical determination, and therefore perhaps there is room to decide about them.

Indeed, we find this in the prohibition “do not stray” (lo taturu) (see on this in columns 6, 576, 657 and below), about which Maimonides writes in Hilkhot Avodat Kokhavim 2:3 (see also Negative Commandment 42 in the Sefer ha-Mitzvot):

“All these prohibitions are of one kind—namely, that one not turn after idolatry; and anyone who turns after it in a manner that he performs an action incurs lashes. And it is not only idolatry that it is forbidden to turn after in thought, but any thought that causes a person to uproot a principle of the Torah—we are warned not to bring it up in our hearts, nor to divert our minds to it, to think and be drawn after the wanderings of the heart; for a person’s understanding is limited, and not all minds can apprehend the truth in its fullness. And if every person were to go after the thoughts of his heart, the world would be destroyed according to his limited understanding; how so? At times he will stray after idolatry; at times he will ponder the unity of the Creator—perhaps it is so, perhaps not; what is above and what is below, what was before and what will be after; and at times about prophecy—perhaps it is true, perhaps not; and at times about the Torah—perhaps it is from Heaven, perhaps not. And he does not know the measures by which he should judge until he knows the truth fully, and he will end up in heresy. About this the Torah warned, saying, ‘Do not stray after your hearts and after your eyes after which you go astray,’ meaning: let not each of you be drawn after his limited understanding and imagine that his thought comprehends the truth. Thus did the sages say: ‘After your hearts’—this is heresy; ‘after your eyes’—this is licentiousness. And even though this prohibition causes a person to be banished from the World to Come, there are no lashes for it.”

There is not only a decision here, but there is even a biblical prohibition.

Arel noted to me in a Q&A that in the second chapter of his Eight Chapters, Maimonides makes another distinction relevant to our topic:

“Know that obedience and rebellion in matters of Torah are found in two parts of the soul: the perceptive part and the appetitive part alone, and in these two parts are all transgressions and commandments. But the nutritive part and the imaginative part—there is no obedience or rebellion in them, since neither of them has actions within the purview of knowledge and choice, and a person cannot nullify their activity nor restrict them to a certain act. Behold, you see that these two parts—namely the nutritive and the imaginative—operate during sleep, which is not so of the other faculties of the soul. As for the rational part—there is confusion here; but I say that it is possible that in this faculty there is also obedience and rebellion, by believing a false opinion or by believing a true opinion. But there is no act in it for which one would say, generally, the name of an act of a commandment or a sin; therefore I said above that in those two parts are found the commandments and the transgressions.”

But here he deals with matters of instinct (not under our control) versus matters of thought, which certainly are. Admittedly there is no act here, but there is a true opinion and a false one. It appears from his words here that in his view commandments and transgressions are relevant to this as well (as we also saw above in “do not stray”), but not a “deed” of a commandment or transgression.

Maimonides’ “Epistle on Resurrection”

In the Epistle on Resurrection Maimonides writes:

“As for what someone mentioned about us—that we said that the resurrection of the dead mentioned in Scripture is allegory—this is a clear falsehood and complete slander from the one who said it. Our writings have been published and are read; let it be seen where we said this. Unless we said it as others among the sages of Israel have said—such as the dead in Ezekiel—that the Talmudic sages dispute about them. And any matter in which there is a dispute, which does not lead to action, it is possible to decide either of the two opinions over its fellow; and we have already mentioned this in our commentary to the Mishnah several times.”

Here we see that in a matter that has no practical ramifications it is possible to decide according to either of the opposing views. This seems similar to what we saw in his statements above, and he even refers back to his words in the Perush ha-Mishnah. Moreover, these words were written long after the Mishneh Torah (and also after the Guide of the Perplexed), and we see that he still holds to his earlier approach and did not retract it.

Yet if we are precise in his words, differences emerge. First, he does not say that one should not decide, but that one may decide even contrary to the usual rules of halakhic decision (for example, like an individual against a majority; see Rabbi Shilat’s essay, chapter 4). Second, he speaks of deciding a dispute among the sages, but it does not appear that, in his view, one may go out against a view agreed upon by the Sages. Third, he speaks of a matter that “does not lead to action,” and does not mention that it is a matter of reasoning, and certainly not specifically something that pertains to God. Perhaps Maimonides is simply more cautious in his language because of the delicate situation of the Jews of Yemen, to whom this epistle was addressed; but in essence his approach is that there is no place to decide here at all.

Summary of Maimonides’ Approach

I will summarize Maimonides’ approach similarly to what Henshke wrote there. It appears that on theological questions Maimonides certainly decides and views his decision as binding. Admittedly these are not purely theoretical questions, for they have practical ramifications (our stance toward an apikoros). In matters that pertain to the Holy One, blessed be He, there is no place to decide, and that is what we saw in his commentary to Mishnah Sanhedrin. Admittedly there it concerns the share in the World to Come, which is a theological matter; but note that there is no discussion there of a general principle—who has or hasn’t a share in the World to Come—but of specific questions regarding certain people. These are questions of biblical interpretation and history, not direct and general theology. On such questions there is no binding decision. In the other two examples, the matter is God’s conduct—in the Perush ha-Mishnah and in the Sefer ha-Mitzvot he thought there is no place to decide, but in the Mishneh Torah he retracted and decided, and likewise regarding death at the hands of Heaven and karet. Admittedly, in the Epistle on Resurrection he addresses also a question of interpretation-history in which ostensibly there is no place to decide (though, as we saw, the wording there is milder and he does speak of decision, and I already qualified regarding his intention there).

Henshke sees this as some retreat from the principle set forth in the Perush ha-Mishnah, but it seems to me that there is no necessity to understand it this way. Maimonides indeed does not decide any question that does not pertain to us in practice. Questions of thought do pertain to us, since there are “duties of the heart” and Hilkhot Yesodei ha-Torah. Even karet and death at the hands of Heaven and the sotah’s merits—at least in the Mishneh Torah—are taken as questions about which there is a decision (perhaps with practical ramifications for repentance). The question of what to think certainly pertains to us in practice. The principle that one does not decide questions that are not practical is directed to biblical interpretation or to the conduct of the Holy One in certain cases (and not to general conduct).

This can connect to the question of “sevara” that I noted above. In Maimonides’ view, questions of thought not only pertain to us in practice, but they are not the product of mere human reasoning. He sees his considerations as absolute (whether philosophical considerations or interpretations of biblical verses), and one who does not accept them, in his view, is making a proven and clear error. Therefore, in these there is certainly room and it is proper to decide.

I note that according to this proposal, indeed there is some retraction from his statements in the Perush ha-Mishnah (for in the Mishneh Torah he decides questions left open in the Perush ha-Mishnah), but the principle itself remains fully in place. Now I will propose a possibility according to which Maimonides did not retract at all.

The Meaning of Decision in These Questions

One may wonder whether deciding such questions is a halakhic decision. In his decision, Maimonides determines what is true—but in what sense is this a halakhic decision? After all, it truly does not concern us in practice. Perhaps, in questions of thought, one can say that there is an obligation to think thus; but in questions that pertain to God (whether merit suspends [punishment], whether there is a share in the World to Come or not, death at the hands of Heaven or karet), what obligation does that place upon us? In what sense is this called a halakhic decision? And perhaps the discussion is not whether this decision has a binding halakhic status, but whether it is possible and proper to decide these questions at all.

Accordingly, it may be that Maimonides remains in his approach that one does not decide halakhically in these questions—that is, there is no obligation to think in one particular way—and these are his words in the Perush ha-Mishnah; but there is certainly room to determine what is true, and that is what he does in the Mishneh Torah. This can connect to my remark above about the difference between the question whether to decide and the question whether to include the decision in the enumeration of the commandments (as the Bahag does regarding karet and death at the hands of Heaven). Maimonides’ claim is that there is room to decide what is true, for every Tanna among the disputants certainly decided and formed his own position on the matter. But Maimonides maintains that such a decision does not have a binding halakhic status; therefore, even if we determined a position on the question which of the two Tannaim is right, this does not bind halakhically one who disagrees. This can also explain his words in the Epistle on Resurrection, where he says there is room to decide what is true, and certainly the truth cannot be like neither of the Tannaim (thus is Maimonides’ general approach). But one may decide like either of them without regard to the rules of halakha, since this is not a halakhic decision but a decision of what is true.

But in questions that have practical ramifications, such as the principles of faith, there the decision also has a binding halakhic status. Therefore the sanctions and consequent ramifications may be applied to one who does not accept those decisions. That is a halakhic decision in every sense.

I note that in all three places in the Perush ha-Mishnah that we cited, Maimonides is careful to phrase it: “in these cases one does not say, ‘the halakha follows so-and-so’”—that is, he speaks about a halakhic decision. Note that he does not speak about whether the truth is like so-and-so, and perhaps not by chance. According to this proposal, contrary to Henshke’s suggestion, Maimonides’ words stand as they are and he did not retract at all.

The Conceptual Problem

But here a conceptual problem arises that Maimonides appears to ignore. I have pointed out more than once that formal authority cannot apply to factual questions. One can require a person to do or not do something against his understanding—for example, not to sift on Shabbat even if in his opinion sifting is not among the prohibited labors, or to take the lulav even if in his view there is no need. If some authoritative body instructs this, the demand to obey does not entail a contradiction. But with beliefs and opinions the situation is different. One cannot require a person to think something he does not think. One can persuade a person that he is mistaken by arguments, and then he will change his view. One can also come with substantive authority (such as expertise or wisdom) and persuade him that I understand better than he, and if I say so then I am likely right even if he does not grasp why. Here too, in the end, he was persuaded that this is the truth. But so long as I have not persuaded him, the demand that he think otherwise than what he thinks is an oxymoron. Note: I am not claiming that the demand is improper, or that the Holy One chose not to demand it. My claim is that even if He had chosen to demand it, it would be contentless and meaningless. Intrinsically, one cannot fulfill such a demand; therefore it cannot exist (see in the columns mentioned above regarding “do not stray”).

Note that the entire discussion thus far assumed that such a demand is not self-contradictory; the question was only whether in practice it exists—i.e., whether halakha or Torah indeed demands such of us. But such a discussion cannot take place if the demand is self-contradictory. Even if Maimonides is right that there is truth and falsehood in beliefs and opinions (and in my view he is of course right), that does not mean that there can be commandments on this subject. A commandment requires me to do something regardless of whether I identify with it or agree. That is the meaning of the obligation and authority of Torah or of the Holy One (see column 631). Such a demand cannot arise regarding beliefs and opinions.

More precisely: such a demand cannot arise regarding factual claims. One cannot demand of me to adopt some factual claim if I do not agree to it. We must understand that all theoretical principles are factual claims. Belief in the coming of the Messiah, in Divine providence, in redemption, in resurrection, in the giving of the Torah, in the existence of the Holy One, and many more—these are all demands to adopt factual claims. Admittedly, not facts observable by the senses; but categorically they are factual claims, and as such one cannot raise a demand to adopt them toward one who does not agree. As noted, one can persuade him by arguments; one can persuade him by virtue of the authority or superior knowledge of a sage or of the Holy One; but one cannot demand that he adopt them without being persuaded. Such a demand is an oxymoron.

The Significance of Maimonides’ Decisions: Did Maimonides Advocate Dogmatics?

I emphasize again that I am not saying there is no truth and falsehood here. I am not a pluralist but a monist. Moreover, regarding facts it is clearest that there is one truth and no other. My claim concerns only relating to them as commandments or applying considerations of authority to them. Hence it follows that one can certainly decide who is right in theoretical and factual questions, but one cannot define that as a binding commandment. For this reason I claimed (in the columns cited) that the commandment “do not stray” cannot be accepted in its plain sense. This, of course, returns us to the previous section, where I noted that one can decide what is true, but one cannot relate to that decision as halakha—that is, as a binding commandment.

If so, decisions regarding principles of faith—that is, theoretical principles—cannot be defined as commandments and binding principles. At most, one can view them as defining a cognitive framework for Judaism. Maimonides can view the Principles as such a framework, even if one cannot demand that people adopt them. He may claim that one who does not adopt them stands outside the Jewish framework. Admittedly, regarding sanctions upon such a person, it is difficult to accept them. He is coerced in his beliefs. Even if he is not coerced but adopts positions only because of his evil inclination, then perhaps one may demand of him to re-examine the issue—but not demand of him the conclusion itself.

But in Maimonides himself it seems that he ignores this conceptual difficulty. Despite his words in the Perush ha-Mishnah that people like to cite again and again, it turns out that he is a thoroughgoing dogmatist, without hesitation. In his view the dogmas are entirely binding. He is prepared to define them as commandments, and even to impose sanctions upon one who does not adopt them. Therefore it seems that establishing the Principles, for him, is not merely pointing to a framework that defines Judaism, but a set of foundational principles that one is absolutely obligated to adopt; one who does not do so is a heretic in a fundamental principle or an apikoros (see Hilkhot Teshuvah, chapter 3 throughout).

Perhaps this is part of the Ra’avad’s critique in Hilkhot Teshuvah 3:7 against Maimonides—that anthropomorphizing God cannot be regarded as heresy in a principle, for many great people erred in it. The Ra’avad argues that this is indeed an error (and in that he agrees with Maimonides), but his claim is that it cannot be a “principle.” It seems that in his view it cannot be a principle in the binding sense that Maimonides regards it, and also not a framework-defining principle that would exclude many great people (even if they erred).

The Commandments of Faith

The most prominent example in Maimonides of such dogmatic approach is his first positive commandment:

“The first commandment is the command with which we were commanded to believe in the Deity—that is, that we believe that there is a Prime Cause Who is the agent of all existents; and that is His statement, ‘I am the Lord your God.’ And at the end of Makkot (23b–24a) they said: ‘613 commandments were said to Moses at Sinai.’ What is the verse? ‘Moses commanded us the Torah’—meaning the numerical value of Torah. They challenged that: the numerical value of ‘Torah’ is 611. The answer was: ‘I am’ and ‘You shall have no other [gods]’ were heard from the mouth of the Almighty [directly]. Thus it has been clarified to you that ‘I am the Lord’ is among the 613 commandments, and it is a command to believe, as we have explained.”

On the surface, “I am the Lord your God” is not a commandment but a preface to the commandments, as some commentators wrote. But Maimonides sees this as an actual commandment. Beyond the exegetical considerations (some of which are brought in his words here, and the commentators discuss them at length), there is also a principled problem, which some of his commentators also noted: what is the point of commanding faith, when faith is the basis for commandments as such? One who does not believe—there is no meaning in commanding him; and if he does believe—there is no need to command him. This is a common formulation, but in light of what we saw above there is a sharper formulation: belief in God is a factual claim, and as such one cannot command it. The former argument is specific to the commandment of faith; this argument applies to any theoretical principle, of which belief is only a particular case.

In the past I suggested that perhaps Maimonides does not see this as a commandment, but as a heading for the Sefer ha-Mitzvot (see Positive Commandments 95–96, where there are positive commandments that do not require of us anything but only define). But people have rightly noted to me that Maimonides lists belief as one of the perpetual commandments that must be fulfilled at every moment. We see that in his view this is a full-fledged commandment. Moreover, as we saw above, he does not shy away from commandments of this sort. He is a dogmatist.

Halakhot Whose Factual Basis Is Incorrect

I distinguished between normative directives, regarding which authority is relevant and thus they can be defined as commandments, and factual directives, which cannot be regarded as commandments. But in light of what we saw thus far, there is room to consider also the validity of halakhic directives whose basis is factual. A prime example is the permission to kill lice on Shabbat (Shabbat 12–13 and 107). The permission is based on the assumption that lice do not reproduce sexually, but arise through other processes. Today we know this is not the case. Does the halakhic directive remain in force? If one cannot command facts, then the normative directive also falls.

I will not enter here into detail on this topic, which many have already discussed. I will note only that on the conceptual-logical level, one can demand that a person obey a norm even if he does not agree with the factual basis on which it rests. In this case it is a lenient directive (permission to kill on Shabbat). Suppose it were a prohibition to kill the louse. One could demand of a person not to kill the louse even if, in his view, it does not reproduce sexually and thus should not be prohibited. This is not essentially different from the demand to obey a halakhic directive with which you disagree as such. As I explained, this is precisely the meaning of formal authority. Here too the demand is practical, not cognitive. For my part, I believe that such a demand does not exist in halakha, and that the permission to kill lice is null and void, and likewise for stringent directives whose factual rationale has been shown to be false (e.g., mayim shelanu?—“water rested overnight”). But this claim of mine belongs to the interpretive plane of halakha and not to the conceptual plane. Conceptually, such a demand is possible; but in my view halakha does not require it. The inability to repeal laws set by a court or in the Talmud does not apply where it has become clear that it was a mistake. In such a case, the halakhic determination falls of itself, as in a sale in error. But that is another discussion, of course.

Compulsion in Beliefs

I conclude with another point relevant to this discussion. If one cannot demand that a person think something he does not think, this affects our stance toward heretics—that is, those who hold false opinions. A person who truly and sincerely does not believe—there cannot be a demand of him to believe. He is coerced in his beliefs. In the past, the sages assumed that if a person held an incorrect opinion, it resulted from submitting to his evil inclination. Their assumption was that every person understands that there is a God, that He revealed Himself, and that His commands are binding. Therefore if he denied something of this, it was certainly submission to his inclination (as in the story of Rav Ashi and King Menashe). Hence perhaps there was room to accuse him (and even that is not trivial). But today, when most unbelievers truly and sincerely do not believe, it is difficult to regard them as transgressors and certainly to impose sanctions (see columns 490, 657 and others). They are coerced. This expresses the general view that there cannot be commandments regarding facts—that is, regarding thoughts and beliefs.