The Halachic Status of the Ways of Sermon – Analogy and Induction in Halachic

Noon – 2013

Induction and Analogy in Halacha: A Study of the Rambam's Root B

A. Introduction

In a previous article (Tzohar 12, hereinafter: Article 1), we discussed the logical status of the methods of sermon. In the second source, Maimonides disagreed with the Ramban regarding the halakhic status of the laws that arise from the methods of sermon (Doraita or Drabnan). In this article, I will attempt to show the connection between the two levels: the logical and the halakhic. For the sake of continuation, I will now briefly present the conclusions from Article 1.

We saw there a disagreement between the Ralbag, who believes that the middots are vague and therefore can only serve as a basis for known laws (and not to create new laws), and the Maimonides, who believes that the methods of preaching are univalent, and therefore it is also possible to create new laws through them (and not only to rely on accepted laws). We argued that the Maimonides seem to think that the middots themselves have no philosophical significance, and that they are nothing more than a code, or cipher, essentially arbitrary, for creating laws from the Bible.

On the other hand, we saw there the approach of the hermit Rabbi, according to which the qualities in themselves have a philosophical significance. His innovation was that although the qualities are analogical (or inductive), this does not mean that they are vague. In man (the Jew) there is an ability (which he calls: 'Shemei logic') to perceive analogies sharply, and to distinguish between true analogies and those that are not.

We also argued there that there is a problem with the relationship between analogy and induction. An analogical inference, for example, is learning from the fact that frog A is green that frog B is also green. A parallel example of inductive inference (from specifics to the general) is generalizing the fact that we observed some green frogs to a general rule that all frogs are green.

We have argued that induction is apparently based on many analogies, and collects them into a general rule. After we have learned about each frog individually that it is green, we generalize and determine that they are all like that. So, analogy is apparently the basic form of inference, and induction is a collection of analogies. On the other hand, any particular analogy between frog A and B implicitly assumes induction, since the similarity between them is based only on the very fact that B is also a frog. In other words, we are not learning about frog B, but about all frogs, and frog B in particular. This leads to the opposite conclusion: induction is actually the basic inference process, and analogy is merely its application to a particular individual.[1]

In this article, I would like to examine the early approaches to the essence of midrashic analogy, and the relationship between analogy and induction. Through this topic, we will also see the connection between the logical status of the methods of sermon and their halakhic status. We will also try to show some central implications of these approaches concerning the foundations of halakhic law, such as: understanding the relationship between plain and halakhic law, the relationship between the laws of the Torah and rabbinic law, and more.

B. The Dispute Between Maimonides and Ramban in Shoresh II

Maimonides opens the root with a distinction, also presented in his introduction to the commentary on the Mishnah, between sermons that "create" and "sustain" (in article 1: Sumkot). Maimonides clearly presents a position according to which there are also midrashim that create. In article 1 we saw that this is Maimonides' approach in other places (as mentioned, Ralbag represents the opposite position).

In the next stage of the discussion, the Rambam presents his main innovation: the laws that emerge from 'creating' midrashim are 'writers' deserts,' and the laws that emerge from 'implementing' midrashim are from Torah.[2] The Rambam's basic assumption is that a midrash is created, unless the sages who require it explicitly say that it fulfills. The way they say this is by stating that the law that emerges from it is from Torah. The Rambam explains that in such a situation we conclude that the midrash fulfills a known law that has been passed down in tradition from Sinai (and not created), and therefore this law has validity from Torah.

This position of Maimonides raises several difficulties:

A. The Rambam's determination that there are two types of sermon. In article 1, we challenged Ralbag: What is the point of a midrash that is valid if the halakha has been accepted in tradition? Here, we can also ask the opposite: What is the point of transmitting halakha orally from Sinai if they can be learned from the Scriptures in a clear and authoritative way (according to the Rambam, as stated, the methods of the sermon are not ambiguous).

B. Determining the status of the laws that emerge from the Midrash of the Scriptures as rabbinical laws. If these paths are indeed a reliable and authoritative interpretation of the Scriptures, how can it be possible to classify what emerges from them as rabbinical laws? Ostensibly, these laws are inherent in the Scriptures, and are part of the Torah's intention. This question is raised by the Ramban in his Misunderstandings, and the Rambam himself also addresses it, and see below.

C. Another difficulty raised by the Ramban is that the Rambam believes that the halakha of Moses from Sinai also has the validity of the rabbis.[3] If so, the Ramban asks, how can one believe that the halakha transmitted from Moses at Sinai has the validity of the rabbis, and the halakha required in the 13 standards is from the rabbis, but the combination, namely: the halakha required in the 13 standards and also transmitted from Sinai, is from the Torah.

Indeed, in light of difficulty 3, it seems possible to understand the answer to A. According to the Maimonides, the reason that a halakha was given to Moses from Sinai even in a situation where this halakha can be extracted from the Midrash of the Scriptures, and vice versa, is in order to say that the status of this halakha is from Torah and not from the rabbis. As we have seen, in his opinion, each of these mechanisms separately creates rabbinic laws, and only their combination can create a halakha from Torah.[4]

At the outset, one must consider a new conclusion. According to the Rambam's view, the concept of 'Torah' has a different interpretation than the common one (also among his commentators and scholars). It is usually explained that the Rambam classifies as Torah laws all the laws that were given to Moses by God at Sinai (see, for example, Halbertal), and this classification expresses the difference between the prophecy of Moses and the prophecy of the other prophets. From what we have said here, it emerges that the Rambam's view is completely different: 'Torah law' is a law that is explicitly found in the Torah. Laws that were given to Moses at Sinai by the Almighty, such as the laws called by the Rambam 'Torah law of Moses from Sinai', are not necessarily Torah laws. According to the Rambam, only what is explicitly found in the Torah is Torah law.[5]

These things are explained in the above-mentioned response of Maimonides, where he writes:

And there is nothing there that is from the Torah except something that is explained in the Torah, such as Shatnaz, Khilai'im, Shabbat, and Ariyat...

The first difficulty above is essentially technical, and therefore can be understood as we have seen. Although two fundamental difficulties still remain in the opinion of the Rambam (2 and 3 above). In light of what we have said here about the definition of the concept of 'torah' in the Rambam's teaching as a category describing laws that are explained in the Scriptures, we need a more precise definition of the concept of 'explained in the Scriptures', and thus perhaps we will understand the classification of the midrashic laws as laws of the rabbis (2 above). In the following, we will examine this issue, and from this it will also be understood the combination of the two criteria that creates, as it were, laws of the Torah out of nothing (difficulty 3).

Continuing his remarks, Maimonides attacks the Baha'i, who represents those who believe that the laws that come from the midrash of halakhah are valid from the Torah, in two main directions:

A. No Midrash is beyond its literal meaning. The Gemara asks in several places after a halakhic sermon is presented, what is the literal meaning of the text, since no Midrash is beyond its literal meaning (see, for example, Bavli Yevamot 11b). Maimonides asks: If the Midrash does indeed reveal the meaning of the text, as the Ha-Hag believes, why is the Gemara not satisfied with the Midrashic interpretation of the text?

According to the Rambam, there is only one appropriate interpretation of a text, and this is precisely where the Ramban disagrees in his interpretations. The Ramban states that different interpretations of a single text are certainly possible, and all of them can be true.[6]

Another question raised by the Ramban is what is the status of the halakhic midrash as commentaries on the scriptures. If the Rambam holds that these are true commentaries on the scriptures, why should they not be considered legitimate commentaries and be counted as independent commandments from the Torah? On the other hand, if they are not true, then they have no place at all. Sages can amend regulations and issue decrees, but the halakhic midrash are commentaries on the scriptures and not ordinary rabbinical laws.

Maimonides himself already feels this question and rejects it by saying: 

And you might think that I am avoiding mentioning them because they are untrue, and because the law that comes out in the measure is true or untrue, that is not the reason. But the reason is that everything a person brings out are branches from the roots that were told to Moses at Sinai in the explanation, and they are 313 commandments. Even if Moses himself brought them out, it is not appropriate to mention them.

It seems to me, in my humble opinion, that this passage contains the key to understanding Maimonides' renewed method. In the next chapter, I will attempt to examine these things, and based on them, understand the points that remain problematic in Maimonides' words in the second root, as described in this chapter.

C. 'Branches emerging from the roots': On the question of the essence of the midrashic analogy

In the introduction to the commentary on the Mishnah, as in other places, the Rambam states that the thirteen virtues were transmitted to Moses from Sinai. If so, the Rambam is apparently correct in his claim: How can it be said that using methods of interpretation (deresh) transmitted from Sinai, and applying them to a text that was also transmitted from there, gives rise to laws that are valid from the rabbis? The Rambam's assumption is that the midrashic laws are found, albeit indirectly, within the text itself, and constitute an authorized interpretation of it. We have seen that the Rambam, in addressing this question, also states that the laws that emanate from these virtues are 'not untrue,' and if so, the question arises with greater force why their validity is only from the rabbis.

Halbertal proposes a classification according to the nature of the results of the halachic midrash. A midrash whose purpose is interpretive, meaning that it merely explains the meaning of expressions in the text, has the validity of the Torah, while a midrash that draws additional external conclusions from the text has the validity of the rabbis. As an example of this distinction, Halbertal discusses a (imaginary) law that states that vehicles may not be parked in a public park. An interpretation of what constitutes a 'vehicle' in the context of the aforementioned law would be an interpretation of the law itself, and therefore would have the same status as the original law (=halbertal). On the other hand, a determination that learns from the aforementioned law that a prohibition on bringing vehicles into schools would be considered 'branches that emerge from the roots'. In other words, this is not an interpretation of the law but an attempt to expand (grow) it to include additional rules (branches) that are not found within it, and therefore its legal conclusions do not have the same validity as the original law (they are from the rabbis).

Halbertal's distinction is based on the goals, or results, of the act of preaching, that is, there is the conventional distinction here between a midrash that is expounded and a midrash that is created.[7] It seems to me that this distinction does indeed explain well the expression 'branches coming out of the roots,' but with regard to the other problematic points described above, it is not enough to raise a long one. Furthermore, there is no statement here about the midrash as such, but rather a distinction between different types of midrash, and therefore Maimonides' distinction is not entirely clear, since in his words he refers to all midrash as they are. The explanation of why from the midrash that is created, by its very methodological definition, the laws of the rabbis are learned, still requires further explanation. I would like to add an additional explanation here to Maimonides' method, in light of the definition we have seen of the concept of 'da'orita' in his mishnah, which places the difference in the nature of the way of preaching itself, and not just in its goals.[8]

In Article A, we discussed the analogical nature of the methods of teaching. We also saw there that deduction is characterized by the fact that its conclusion is actually already hidden in its premises, and therefore it is nothing more than the exposure and analysis of what we already know, and its publication (or implementation). Analogy and induction, on the other hand, are not the exposure of the known, but rather the drawing of additional and new conclusions from the known premises.

In our proposal, Maimonides' approach is based on the fact that the halakhic sermon is the drawing of conclusions from the Bible, which is carried out by way of analogy. A deductive analysis of the Bible reveals what is hidden within it, and in this sense it is only an interpretation. The results of a deductive inference from the text will of course have the validity of the laws of the Torah, since such an inference reveals what was hidden within it, and according to Maimonides, what is actually within the Bible is 'from the Torah.' However, the results of analogical inferences from the Bible cannot be considered to be found in it literally, but rather as an extension of the Scripture by way of analogical analogy. Conclusions drawn in this way are not important in Maimonides' eyes as being found in the actual Scripture, and therefore cannot be considered to have the validity of the Torah.

The Ramban believes that the result of an analogical inference from the written Torah is also as important as the interpretation found within it, as long as the methods of preaching that led to it are legitimate, from those given at Sinai. Therefore, the Ramban believes, as we saw in the previous chapter, that it is possible for there to be two legitimate interpretations of the same text of the written Torah, while for the Rambam this is not possible. According to the Rambam, any interpretation that is not the 'plain' is not actually found in the scriptures.

There is no doubt that the Ramban also understands that the methods of preaching are analogous, and in this he does not disagree with the Rambam. He may define the concept of 'torah' differently. However, the Ramban also disagrees with the Rambam on his own system. He argues against him that if the standards were given at Sinai and the Torah was given there, then the combination of the two necessarily gives rise to laws that are commanded to be preached in the Scriptures. Therefore, we must clarify more fully the basis of the disagreement between him and the Rambam.

For this purpose, we must pay attention to another assumption (beyond the analogical nature of the sermon's methods) that is embedded in Maimonides' position, and we will try to explain it as soon as possible. This is an important distinction in the philosophy of science (and philosophy in general).

Kant divided synthetic and analytic sentences. An analytic sentence is a sentence that is derived from the very definition of its subject. For example: This ball is round. This sentence does not add new knowledge to us about the world, beyond what is contained in the definition of the subject. To know it, it is enough for us to analyze the subject of the sentence. In contrast, a synthetic sentence is a sentence that adds knowledge to us beyond the very definition of its subject. For example: This ball is heavy. Weight is not an essential property of balls, and therefore there is the addition of new knowledge beyond what is inherent in the definition of the concept ball (which is the subject of the sentence).

The accepted view in philosophy is that analytic theorems are a priori, meaning that we do not need experience to verify their truth. The philosopher Saul Kripke challenges this view by saying that there are analytic theorems that we need experience to verify their truth. For example, the theorem 2+2=4 is an analytic theorem. This fact does not arise from experience, but from the very definition of the concepts involved in this theorem (the numbers 2 and 4). Nevertheless, to teach the child this analytic fact, the teacher uses experimental demonstrations (combining objects). It is even possible that without the demonstrations this theorem cannot be learned at all.

This appeal teaches us that there are situations in which we learn an analytical fact, that is, one that lies in the very definition of its subject, but the way of learning is by analogy, and not by analyzing the subject in question.

To take a scientific example. In Newtonian mechanics, we learn experimentally, using analogies and inductions, that when a force acts on a body with mass, it accelerates with an acceleration that is proportional to the force. This is Newton's second law. Even after we have learned this law by analogy or induction, it is still possible to think of the possibility that it was derived analytically from the concept of 'mass'. It is possible that if we could understand the concept of 'mass' in its entirety without experience (as in the previous example, regarding the numbers 2 and 4), we could a priori deduce from this understanding the second law. If so, the second law is derived analytically from the concepts of force and mass, but due to our inability, we learn it by analogy and not by purely conceptual analysis.

A more general view is that once we understand a natural law, we will always find that it is in fact an analytic theorem. According to this philosophical view, natural laws learned by various analogies and inductions can themselves be analytic deductions.

The conclusion is that there is no necessary connection between the way in which a person draws a particular conclusion from a given premise and the actual relationship that exists between the premise and the conclusion. The analogy describes the way a person learns, but not necessarily the relationship that exists between the premise and the conclusion themselves.[9]

Let us now return to the issue of the methods of sermonizing. When we use analogical inference to create laws from the Scriptures, we have only described the way in which these laws are learned by the preacher. And yet it can be said that the laws that are derived in these ways are actually found in the required verses.

To understand Maimonides' position in the way it was presented above, it is not enough to assume the simple and agreed-upon fact that the methods of preaching are analogical and not deductive. We must also assume that the result that emerges from the midrash is also related to the plainness of the Bible only by analogy and is not found in it in reality. It is very clear that the determination that the halakha is from the rabbis depends on its relationship to what is written in the Torah and not on the question of how we arrived at this halakha.

The Ramban's position is that although the methods of the halakhic midrash are analogous, the conclusions of the sermon are found in the text itself, and in principle could have been derived from it by means of conceptual analysis. In any case, their validity is from Torah.

The Ramban apparently does not accept the second assumption made by the Maimonides. According to him, the analogies in the measures that the Torah requires characterize the preacher's way of reaching his conclusions, but after drawing the conclusions, there is a revealing (analytical) interpretation of the scriptures. After we preached, "Fear the Lord your God" - including the Torah scholars, it became clear that the fear of the Lord actually includes the fear of the Torah scholars. According to the Maimonides, this is not included in the fear of the Lord, but constitutes an extension of the commandment to fear the Lord.

Therefore, the first difficulty above in Maimonides' words, why these laws are from the rabbis, is understandable in light of his own criterion that only laws that are found in actual scripture have validity from the Torah. The laws that are created from midrash are not found in actual scripture.

We will now move on to discuss the second question: Why is it that when both requirements (tradition and halakhic exhortation) are met, the halakhah is indeed from the Torah, while each of these requirements alone is not sufficient for this.

In light of the Maimonides' view presented here, a law that emerges from a sermon on the Scriptures is not perceived as being found in Scripture, but rather as an extension, a kind of analogy, of it. The reason for this, as stated, is that Maimonides understands analogy not only as the way in which the preacher reached his conclusion, but as a relationship that also exists between the laws themselves. The conclusion of the sermon is not found in the required verses themselves, but constitutes an extension of them.

D. Analogy and induction in the dimensions of the sermon

We saw in the introduction that there is a dilemma regarding the relative status of analogy and induction. Is analogy the basic one, and is it also the basis of induction, or vice versa? The dilemma regarding analogy can be formulated as follows: Is there an independent analogous process that is not underpinned by induction? Or: Is it possible to discern the similarity between two particulars without going through the general (=type) common to both? If such an analogous process does exist, then analogy is not necessarily built on implicit induction. If there is no such process, then every analogy is based on implicit induction. Parallel questions can also be asked regarding induction. There is of course also a third possibility, according to which these two processes are independent, and both are independent. In what follows, we will find references to these three approaches in the commentators.

In the simple and widespread conception of analogy, there is always a general principle hidden behind it. When I see that Jacob is mortal, I do not see a particular being who is mortal, but I notice that human beings are mortal. This is a recognition called in the phenomenological doctrine of the philosopher Edmund Husserl 'idiotic vision': through the particular, so to speak transparent, I see the general.[10]

Let us now apply this form of reference to biblical interpretation. When I study the commandment, "Fear the Lord your God," I am actually studying the general principle that requires fearing anyone who is intrinsically connected to the Torah, and from that I conclude that one should also fear the scholars. In this form of viewing, the commandment to fear the scholars is explicitly written in the Bible. The form of writing is through a particular case (fearing God himself) that demonstrates the general principle behind it.

We have seen that the Ramban understands that the command to fear the scholars is explicit in Scripture. He apparently believes that the analogy is always made through understanding a general principle that stands behind the particular example, otherwise it would be impossible to make analogies at all. Therefore, when it is written in the Torah, "Fear the Lord your God," it is only a way of writing in a particular way the general principle that commands the fear of everyone connected with the Torah. From this perception, the Ramban comes to the conclusion that the fear of the sages is explicitly written in the Bible within the command to fear the Lord, since in fact the Torah states to fear everyone connected with the Torah. The preacher's analogy merely serves as a tool with which he reveals the general principle to which the Torah itself refers, that is, a tool for making a generalization, or induction.[11]

The Maimonides, on the other hand, apparently understands that the midrashic analogy is made directly between the details. There is no rule behind it that includes both details (the one who taught and the one who was taught). When it is written, "Fear the Lord your God," the intention is to fear Him alone. The wise man who demands feels intuitively that one should also fear the scholars of Torah, since there is something in them that resembles their Creator. But this is not derived from any general principle that is contained in the intention of the text itself. It seems that the Maimonides here has an expansive interpretation of the principle that states that "they did not teach for a reason," according to which it is not possible to determine what generalization, if any, underlies the particular commandment in the text.

It was found that the Rambam and the Ramban understand differently how the Midrashic analogy works. For the Rambam, the analogy is based on implicit induction, and therefore it reveals a general principle found in the Scriptures, while the Rambam holds that analogy is precisely the more basic tool, and there is no implicit induction behind it.

Now we can perhaps understand the last remaining difficulty in the Maimonides' view (3 above). When there is a tradition that supports a halacha that comes from the Midrash of the Scriptures, it teaches me to treat the analogy I make in the process of preaching as based on induction. Without the tradition, I have no logical ability to generalize the particular example that I learned from Scripture into a general rule of law (for 'we did not preach without a cause'). In any case, in such a case, the halacha being taught is not found in Scripture but rather constitutes an extension of it, and therefore its status is the same as that of the rabbinic halacha. If there is a tradition that supports the sermon, its meaning is that I am permitted to assume that the basis of the midrashic analogy is a general law, and therefore the conclusion of the sermon is considered to be explicit in Scripture (as is the case with the Ramban's method in all sermons).

References to both of these references can be found in the scholars of the rules. It is customary to classify the midrashic process called "what we infer" as an analogy, while induction is the measure called "building a father."[12] The term "father," which appears in the name of this measure, is generally interpreted as indicating the teaching law that is the "father" of the law being taught (the "son").[13] Indeed, in light of the determination that "building a father" is a midrashic process of induction, it can be understood at the same time that the "father" is the general commandment that underlies the two particular laws (the teacher and the taught: the two "sons"). What is at the foundation of the teaching law is in fact a general law, and this is what is called the "father" of the law being taught.

The measure of 'what do we find' is not explicitly mentioned among the thirteen measures of Rabbi Yishmael in the baraita of the 13 measures at the beginning of the Sifra. Indeed, in the Book of the Law of the World, Section 4 (Laws of Building a Father), it is stated that some wrote that this is the measure called in the baraita of Rabbi Yishmael, 'building a father from writing (or: and writing) one.' This is also the opinion of Rabbi Makinon in the Book of the Laws of the Cuttings, Part 1 (Bayt Midot), Chapter 3, Chapter 2,[14] and in the light of his evidence. Indeed, the opinion of the Rabbi (cited there), in his commentary on the aforementioned baraita, is 'building a father from a kari between a hada and a hada between a hada and a hada). This is also the understanding of Rabbi Aharon, son of Chaim, in the Book of the Virtues of Aaron, Chapter 4, of the measure of building a father, on which the Rabbi and the Rabbi disagreed (and his opinion tends to the opinion of the Rabbi).[15]

In conclusion, the Rabada's method is that even Hada Makhda is a father's building, while for the Rash only Hada Mitareti is called a father's building, and Hada Makhda is 'what we find'.

There seems to be a disagreement here about the subject of Didan. When one studies Hada Matari, one actually needs two teachers in order to extract the characteristic common to both, and thus one can learn that the law that applies to them does not characterize them alone but all those who possess that characteristic. This is, as stated, an inductive generalization. In contrast, when one studies Hada Makhda, although this can be understood as induction based on one teacher, it seems more simply that it should be understood as a direct analogy from one detail to another.

The need for two teachers in studying the construction of the father of Hada Matari is precisely because of the difficulty I pointed out above. From a single specification it is not always possible to extract the relevant feature for the inductive generalization. When one looks at two examples and examines what they have in common (= the comparable side), then one can more confidently point to the correct generalization.[16] Analogy from specification to specification, on the other hand, is done intuitively and does not assume a generalization (induction) at its core, and therefore it does not require two teachers.

It is found, therefore, that according to the R'ash, analogy does not pass through latent induction, but is made directly from one detail to another, and therefore hada mahdah cannot be called 'building a father'. We are not looking for a 'father' here, but rather learn from one 'son' directly to his brother. In contrast, the R'Abd apparently understands that every analogy is fundamentally based on latent generalization, and therefore the study of hada mahdah (=analogy) is also included within 'building a father', meaning that this is also induction.

Indeed, according to Rabbi Makinon, induction is only carried out according to two teachings, since extracting the common feature between them is a necessary indication of the truth of the inductive generalization. It is clear that in the case of building a father from a mother, we are dealing with two laws that have a necessity between them, meaning that one cannot learn from the other and vice versa. In such a case, we make a 'what is the side' between them, and only then is this the measure of 'building a father from two scriptures'. If there is no necessity between them, then the second law does not add anything to the first, and therefore it does not help us to put our halakhic generalization to another test. Two laws that do not have a necessity between them do not add logical validity to the inductive generalization beyond the single law. If such a law nevertheless appears (which is not necessary), then these two are in the nature of two scriptures that do not teach (or even teach the opposite, and these things are ancient).[17]

We have, therefore, found support in the halachic interpretation for both directions we proposed in the Rambam and the Ramban. According to the Rambam, the midrashic analogy is not based on induction, similar to what we saw in the method of the Rash, while according to the Ramban, the fundamental inference that underlies the analogy is induction, similar to the method of the Rabbad.

It should be noted that I do not intend to depend on the position of the Rambam on the position of the Rabbani, but only to provide an illustration from it. According to the Rabbani, constructing a principle from two texts is induction, and if so, according to our method, a conclusion that arises from such a principle is explicitly found in the text and should, also for the Rambam, have the status of a halakhah from the Torah. On the other hand, the Rambam explicitly writes regarding all the qualities that the Torah requires, that the laws that arise from them are valid from the rabbis.

Therefore, there are three methods: 1. The Rabbinical Rabbis perceive that induction is also at the basis of analogy, that is, induction ('Benin Av') is the fundamental method of inference. 2. The Rabbinical Rabbis understand that two methods of inference exist in halakhic discourse ('Benin Av' and 'Ma Mitzinu'), and neither of them is based on the other. 3. The Rambam holds that analogy is the fundamental method of inference, and it is also at the basis of induction. Benin Av from two texts is indeed induction, but induction, according to the Rambam's view, is nothing more than a composition of analogies. Therefore, according to the Rambam, the status of all methods of discourse is the same as the fundamental status of analogy, that is, an expansion of the text beyond what is contained in it. In any case, according to the Rambam's view, the laws that arise from all methods of discourse will have rabbinical validity.

E. The Halachic Status of the Midrashic Laws According to Maimonides

Thus far we have discussed the logical status of the halakhic sermon methods. Now I would like to briefly discuss a more popular issue, which is the halakhic status of the midrashic laws according to the Rambam method. As mentioned, many have discussed this issue, some of whom have argued that their status is like the laws of the Torah, and some have argued that their status is like the laws of the rabbis. Some have proposed an intermediate status called 'words of the scribes' (and have proposed various characteristics for it).

As stated, textual considerations teach that Maimonides intended to say that these are actual rabbinic laws, and so on. However, it is still difficult to understand the status of these laws as actual rabbinic laws.

The Ramban, in his interpretation of the second root, makes it difficult for the Rambam to determine the difference between actual sermons and those classified as illegitimate references, ostensibly these and those are references to the laws of the rabbis. Beyond that, it is finally clear that the will of God is indeed expressed in these commandments. These laws are taught in ways that were the laws of Moses from Sinai (the Virtues), from the text given at Sinai, and if so, these sermons cannot be regarded as purely rabbinical laws.

Regular rabbinic laws are created from motives that exist among the correcting sages (qualification, decree, regulation, etc.). Midrashic laws are not created from motives that arise in the understanding of the sages, even according to the Maimonides, but rather as an interpretation of Scripture. The reason for the commandment to fear the sages is not the understanding of the correcting sages, otherwise it would simply be a rabbinic regulation, and the sermon would be a reference. The reason for the obligation is an expansion of the meaning of the law written in the Torah, and not a law with an independent reason. If there were no sermon by the "you" including the rabbis, this law would not have been established in this way, but at most as an independent regulation from the rabbis. It can be said briefly that rabbinic law is a law that was created by the initiative of the sages, while midrashic law is imposed on them by Scripture, that is, it is the "initiative" of God.[18]

This intermediate status of the Midrashic laws can be linked to the status of the laws of Moses from Sinai. As stated, both types of laws are clearly the will of God, and it can also be said that they were delivered de facto from Sinai, but these laws are not found in the text itself. This is precisely the root of the intermediate status given to them in the Mishnah of Maimonides.

For the Ramban, like most poskim, there are two levels of validity of mitzvot: 1. Torah: laws that were handed down at Sinai, or that were required from what was handed down there. 2. Rabbinic: laws that were renewed throughout the generations.

In contrast, with Maimonides, there appear to be three levels: 1. Torah: laws that appear explicitly in Scripture. 2. Scribes' Sayings: laws that are the will of God that are not explicitly in Scripture. 3. Rabbis: laws that are commands of the sages on their own initiative (regulations, decrees, etc.).

According to this, it is clear that sermons defined as references are in fact regular rabbinic laws.[19] They belong to the third halakhic status according to the Rambam's system. In contrast, regular midrashic laws, which are also from rabbinic laws, belong to the second status (which we have discussed above as 'words of the writers'). It is found that according to the Rambam there are also three types of 'midrashic' laws in the Talmud: sermons supported by tradition: laws of the first type (Daurayita). Regular sermons: laws of the second type ('words of the writers'). References: laws of the third type (Daurayitan).[20]

The halakhic implications of this division need to be discussed at length, and this is not the place for it.[21]

Finally, we will examine the meaning of the expression that Maimonides uses to describe his approach to halachic midrash: 'like branches emerging from the roots.' This expression is reminiscent, and not without reason, of the Talmudic aggadah midrash on the verse in Ecclesiastes 12: "The words of the sages are like spurs and like nails planted in...". In Babylonian Hagiga, page 3b, Rabbi Yehoshua expounds on this verse:

What is this nail that is lacking and not more, even the words of Torah are lacking and not more, the word "planted" is not allowed. What is this planting that is fruitful and fruitful, even the words of Torah are fruitful and fruitful.

The words of the sages can be described as enriching and multiplying the Torah only according to the Maimonides' view as presented here. According to the accepted approach, the words of the sages reveal what is already in the Torah (through sermons), or add to it laws that are not derived from it (regulations and rabbinic laws). None of these actions is the fertilization and multiplication of the words of the Torah themselves. Only according to the Maimonides does the Midrash fertilize and multiply the Torah, that is, it adds to it laws that were not in it: 'as branches', and on the other hand it does so in the form of its fertilization and multiplication, that is, it extracts these branches from the Torah itself: 'from the roots'. The results of this process are laws that are in the category of 'words of the sages' (=laws of the rabbis) that are nevertheless considered to be the fertilization and multiplication of the Torah itself, as nails planted within it.

[1] We saw there that this relationship can be expressed as follows: analogy = induction + deduction.

[2] There is a detailed and extensive discussion of the Maimonides' intention in these words. Did he mean to say that these laws are from the rabbis, or from the Torah, or some intermediate state? See the length of Neubauer's book, Maimonides on the Words of the Scribes (hereinafter: Neubauer), and in the article by Rabbi Nachum Eliezer Rabinowitz, 'On the Words of the Scribes That Are Validated by the Maimonides' Mishnah', Sefer Hagyon, Tzamet Institute, Gush Etzion, 1995. p. 87. Also see Rabbi Yeruham Perla's introduction to the Book of Commandments of the Rassa in his edition, in the section discussing the second root of Maimonides, and more.

Below I will assume that Maimonides' intention is to say that these are literally rabbinic laws, and at least not ordinary Torah laws. This is well anchored in his language in the Arabic original of the roots. See on this subject Moshe Halbertal, 'Sefer HaMitzvot Rambam', Tarbet 59, 1979, note 12 (hereinafter: Halbertal). See also a brief discussion below at the end of our remarks.

[3] Although the introduction to the commentary on the Mishnah and the second root do not explicitly mention the statement that the law of Moses from Sinai has rabbinical validity, elsewhere in his writings the Rambam does explicitly state such a position. See, for example, in the Freiman edition, Teshuvah 121 (Blau, Teshuvah 555). This Teshuvah is cited by the Rambam in his interpretations of this root (in the Frankel edition, page 54). This Teshuvah is central to understanding the Rambam's method, and so on.

The statement that the LBM is a rabbinical law is also found in the Maimonides' commentary on Mishnat Kelim (17:12).

[4] It is possible that these problems are what led Rambam to his revolutionary innovations on this issue.

[5] What causes confusion in understanding the Maimonides' view is his statement in the introduction to the Mishnah that the laws handed down in the tradition of Moses at Sinai have never been disputed (see Chavvi Teshuvah 272, and the words are ancient). In our opinion, this does not mean that these are laws from the Torah. The laws of Moses at Sinai, in their status as rabbinical, are not disputed, but they have never been disputed.

[6] In a detailed discussion of this subject, we need to examine the relationship between the Midrash of the Scriptures and their interpretation. See on this subject the two articles by David Haneska, 'No Scripture Escapes From Its Interpretation', Ha-Ma'in 17, Jerusalem, 1977, and Rabbi Whitman's response in the booklet Ha-Ma'in 18 (1978), and the addition by Haneska (ibid.). In our remarks to Lekman, the position of the Maimonides and the Ramban on this issue will be explained, and it will be found that both do not agree with Haneska's interesting proposal there. Problems that arise in Rabbi Whitman's remarks in his aforementioned article are also resolved in light of the explanation that I will provide below in the remarks of the Maimonides (see, for example, note no. 1 on page 49 regarding the term 'interpretation in the manner of the sermon', which is not understood by him).

[7] See Menachem Alon's "Hebrew Law," and more.

[8] Ultimately, this proposal can be seen as an explanation for Halbertal's distinction, but later I will try to show that this form of presentation has far-reaching implications for understanding the essence of the methods of preaching in general, and that it fundamentally rests on a different position than Halbertal's for understanding the concept of 'Dauriyata' in Maimonides' teaching.

[9] For a generalization of this principle, see the beginning of Chapter 2 of the first chapter of the aforementioned books.

[10] See, for example, Introduction to the Theory of Logic, Hugo Bergmann, Bialik Institute, Jerusalem, 1975, pp. 334, 349. For more on this matter in more detail: Edmund Husserl, Cartesian Reasons, Magnes, Jerusalem, 1971, and in the introduction by the translator A. C. Brown. Husserl is usually perceived as offering generalizations that do not rely on induction, and not as he is presented here, which is a mechanism that establishes induction, and there is no place for that here.

[11] It is important to note here that the commandments of fearing God and the sages are presented here only as an example. The Ramban's position on the relationship between these commandments is more complex, as can be seen in his remarks on the second root.

[12] See, for example, Kol HaNavova in the above-mentioned article, sections 16 and 17, and especially in his comments there, which cites the words of commentators and scholars.

[13] See Talmudic Encyclopedia, Volume 4, entry 'Benin Av'.

[14] Published by the Bnei Torah Library. The original edition does not appear in the copy I have. It is noted there that this edition is identical to the one printed in Amsterdam, 579 (with numerous corrections).

[15] See Talmudic Encyclopedia, ibid. These sources were cited in the book Kol HaNoveva, page 57, note 44, see ibid.

[16] A similar procedure is accepted in the methodology of modern science. A scientific theory (a general law of nature) cannot be proven, and therefore it is arrived at by induction from particular cases. The more particular cases are added, the greater the confirmation of the general theory. As argued here, in the halakhic sermon too, we need at least two different cases with a common side in order to deduce a general law from them.

[17] There is something new in our discussion here. The prevailing view is that the necessity between two teachers in the construction of the father ('what side') appears to prevent an obstacle to learning due to the rule that 'two scriptures that come together do not teach.' Here I suggest that the necessity is required for the very purpose of learning, so that the preacher can inductively generalize from these two cases to the relevant and correct general property.

[18] In the laws of Shabbat, the distinction between the practices of the rabbis and regulations, restrictions, etc. is well-known. The distinction here is similar.

[19] It turns out that the references must be 'defective' sermons, since these sermons would have created laws from the Torah or ordinary 'scribes' deserts. For comparison: according to Ralbag, references are sermons that do not support known laws.

[20] I will briefly note here that the Ritva's interpretation of the concept of 'asmakhta' in his novellas to Tractate Rosh Hashanah shows that even sermons that are in the nature of asmakhta are not actually rabbinical laws created at the initiative of the sages. According to the Ritva, such laws have some root in Scripture, and in this sense they are similar to the laws of the midrash as they are perceived by the Maimonides. See Talmudic Encyclopedia, entry 'asmakhta'.

[21] For example, one might think that the validity of Midrashic laws would be more severe, even though they are rabbinic laws, since ultimately there is a concern here about transgressing God's will, or about the spiritual corruption that the commandment causes.

This discussion is complicated mainly by the Rambam's own method, which holds that doubt from the Torah to the Kola is from the Torah. Regarding doubt in the halacha of Moses from Sinai, see, for example, The Strong Hand, Laws of Slaughter, Chapter 5, Halacha 3, and in the comments of the bearers of the tools there. Some believe that the Kola is sufficient even for those who believe it is from the Torah (see, for example, the Talmudic Encyclopedia, entry 'Halacha of Moses from Sinai').