Induction and Analogy in Jewish Law: A Study of Maimonides' Second Principle

A. Introduction

In a previous article (Tzohar 12, hereinafter: Article A), the logical status of the methods of interpretation was discussed. In the second principle, Maimonides disputes with Nachmanides regarding the halakhic status of the laws derived from the methods of interpretation (of biblical or rabbinic origin). In this article I will try to show the connection between the two planes: the logical and the halakhic. For the purposes of what follows, I will now briefly present the conclusions of Article A.

We saw there a dispute between Gersonides, who holds that the hermeneutical principles are vague, and therefore they can serve only as support for known laws (and not create new laws), and Maimonides, who holds that the methods of interpretation are univocal, and therefore new laws can also be created through them (and not merely accepted laws supported). We noted that from Maimonides it appears that the principles themselves have no philosophical significance, and are nothing more than a code, or cipher, arbitrary in its essence, for deriving laws from Scripture.

By contrast, we saw there the approach of Rabbi Ha-Nazir, according to which the principles in themselves do have philosophical significance. The essence of his innovation was that although the principles are analogical (or inductive), this does not mean that they are vague. A person (the Jew) has the ability (which he calls 'hegayon shim'i') to grasp analogies sharply, and to distinguish between correct analogies and incorrect ones.

We also noted there that there is a problem in the relation 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 particulars to the general) is generalizing from the fact that we observed several green frogs to the general rule that all frogs are such.

We noted that induction is ostensibly based on many analogies and gathers them into a general rule. After learning about each frog separately that it is green, we generalize and determine that all of them are such. If so, apparently analogy is the basic form of inference, and induction is a collection of analogies. On the other hand, every specific analogy between frog A and B apparently tacitly assumes an induction, for their similarity rests only on the fact that B too is a frog. That is, we are not learning about frog B, but about frogs in general, and in particular frog B. From here an opposite conclusion arises: specifically induction is the basic inferential process, and analogy is only an application of it to a particular case.[1]

In this article I wish to examine the approaches of the medieval authorities (Rishonim) to the nature of midrashic analogy, and to the relation between analogy and induction. Through this topic we will also see the connection between the logical status of the methods of interpretation and their halakhic status. We will also try to show several central implications of these approaches touching the foundations of Jewish law, such as: understanding the relation between plain meaning and midrashic exposition, the relation between laws of biblical origin and rabbinic laws, and more.

B. The Dispute between Maimonides and Nachmanides in the Second Principle

Maimonides opens the principle with a distinction, also presented in his introduction to the Commentary on the Mishnah, between 'creative' and 'confirmatory' expositions (in Article A: supportive ones). Maimonides clearly presents a position according to which, among the midrashim, there are also creative midrashim. In Article A we saw that this is Maimonides' view in other places as well (as noted, Gersonides represents the opposite position).

At the next stage of the discussion, Maimonides presents his main innovation: the laws that emerge from 'creative' midrashim are 'divrei sofrim,' whereas the laws that emerge from 'confirmatory' midrashim are of biblical origin.[2] Maimonides' basic assumption is that a midrash is creative unless the sages who expound it say explicitly that it is confirmatory. The way they say this is by determining that the law derived from it is of biblical origin. Maimonides explains that in such a situation we conclude that the midrash confirms a known law that was transmitted by tradition from Sinai (and does not create it), and therefore that law has biblical force.

Maimonides' position here raises several difficulties:

• Maimonides' determination that there are two kinds of exposition. In Article A we raised a difficulty against Gersonides: what is the point of a confirmatory midrash if the law was received by tradition. Here one may also ask the reverse: what is the point of transmitting laws orally from Sinai if they can be derived from Scripture in a clear and authoritative way (for Maimonides, as noted, the methods of interpretation are not vague).
• The determination of the status of laws derived from scriptural midrashim as rabbinic laws. If these methods are indeed a reliable and authoritative interpretation of Scripture, how can what emerges from them be classified as rabbinic laws? Apparently these laws are embedded in Scripture, and they are part of the Torah's intention. Nachmanides raises this question in his criticisms, and Maimonides himself also addresses it; see below.
• Another difficulty raised by Nachmanides is that Maimonides holds that a law given to Moses at Sinai also has rabbinic force.[3] If so, asks Nachmanides, how can one hold that a law transmitted to Moses at Sinai has rabbinic force, and a law derived by the thirteen hermeneutical principles is rabbinic, yet the combination—that is, a law derived by the thirteen hermeneutical principles and also transmitted from Sinai—is of biblical origin.

Indeed, in light of difficulty C, it seems possible to understand the answer to A. According to Maimonides, the reason a law is transmitted to Moses at Sinai even in a case where that law can be derived from scriptural midrashim, and vice versa, is to indicate that the status of this law is of biblical origin and not rabbinic. As we have seen, in his view each of these mechanisms by itself creates rabbinic laws, and only their combination can create a law of biblical origin.[4]

At the outset we should attend to a novel conclusion. According to Maimonides' conception, the notion of 'of biblical origin' has an interpretation different from the accepted one (including among Maimonides' interpreters and scholars). Usually it is explained that Maimonides classifies as laws of biblical origin all the laws that were transmitted to Moses by the Holy One, blessed be He, at Sinai (see, for example, Halbertal), and that this classification expresses the difference between Moses' prophecy and the prophecy of the other prophets. From our discussion here it emerges that Maimonides' conception is utterly different: a 'law of biblical origin' is a law explicitly found in the Torah. Laws transmitted to Moses at Sinai directly from the Almighty, such as the laws Maimonides calls 'a law given to Moses at Sinai,' are not necessarily laws of biblical origin. According to Maimonides, only what is explicitly found in the Torah is a law of biblical origin.[5]

This is explicit in Maimonides' aforementioned responsum, where he writes:

And nothing has biblical status except what is explicit in the Torah, such as wool-linen mixtures, mixed species, the Sabbath, and sexual prohibitions…

The first difficulty above is technical in nature, and therefore it can be understood as we have seen. However, two substantive difficulties still remain in Maimonides' view (B and C above). In light of our remarks here, which define the notion 'of biblical origin' in Maimonides' thought as a category describing laws explicit in the verse, we need a more precise definition of the notion 'explicit in the verse,' and through this perhaps we will understand the classification of midrashic laws as rabbinic laws (B above). In what follows we will examine this topic, and from the discussion the combination of the two criteria—which seemingly creates laws of biblical origin almost ex nihilo—will also become clear (difficulty C).

Later in his remarks, Maimonides attacks BaHaG, representing those who hold that the laws derived from halakhic midrashim have biblical force, in two main directions:

• A verse never departs from its plain meaning. In several places, after a halakhic exposition is cited, the Talmud asks what the plain meaning of the verse is, for a verse never departs from its plain meaning (see, for example, Babylonian Talmud Yevamot 11b). Maimonides asks: if the midrash really exposes the meaning of the verse, as BaHaG holds, why does the Talmud not suffice with the midrashic interpretation of the verse?

According to Maimonides' assumption, a verse has only one fitting interpretation, and it is precisely on this point that Nachmanides disagrees with him in his criticisms. Nachmanides determines that different interpretations of a single verse are indeed possible, and all of them can be true.[6]

Another question raised by Nachmanides is: what is the status of halakhic midrashim as interpretations of the verses? If Maimonides holds that these are true interpretations of the verse, why should they not be considered a legitimate interpretation and counted as independent commandments of biblical origin? And conversely, if they are not true, then they have no place at all. The sages can enact ordinances and impose decrees, but halakhic midrashim are interpretations of verses and not ordinary rabbinic laws.

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

Perhaps you may think that I refrain from counting them because they are not true; but whether the law derived by a hermeneutical principle is true or not is not the reason. Rather, the reason is that whatever a person derives are branches from the roots that were stated to Moses at Sinai in explanation, and they are the 613 commandments. Even if Moses himself were the one deriving them, it would not be proper to count them.

It seems to me that in this passage lies the key to understanding Maimonides' novel method. In the next chapter I will try to examine these remarks and, on their basis, understand the points that remained problematic in Maimonides' words in the second principle, as described in this chapter.

C. 'Branches that Emerge from the Roots': On the Nature of Midrashic Analogy

In the introduction to the Commentary on the Mishnah, as in other places, Maimonides states that the thirteen hermeneutical principles were transmitted to Moses at Sinai. If so, Nachmanides' claim seems correct: how can one say that the use of methods of interpretation transmitted from Sinai, and their application to a text that was also given there, produces laws whose force is rabbinic. Nachmanides' assumption is that the midrashic laws are found, albeit indirectly, within the text itself and constitute an authoritative interpretation of it. We saw that Maimonides too, when addressing this question, determines that the laws derived from these principles 'are not untrue'; if so, the question arises all the more forcefully why their force is only rabbinic.

Halbertal proposes a classification according to the nature of the results of halakhic midrash. A midrash whose purpose is interpretive, that is, one that merely clarifies the meaning of expressions in the text, has biblical force, whereas a midrash that infers from the verses additional external conclusions has rabbinic force. As an example of this distinction, Halbertal discusses a (hypothetical) law that determines that vehicles may not be parked in a public garden. Interpreting what 'vehicles' are for purposes of that law would constitute interpretation of the law itself, and therefore it would have the same status as the original law (= biblical). By contrast, a determination that learns from that law a prohibition on bringing vehicles into schools as well would be 'branches that emerge from the roots.' That is, this is not an interpretation of the law but an attempt to expand (to grow) it into additional rules (branches) that are not found within it, and therefore its legal conclusions do not have the same force as the original law (they are rabbinic).

Halbertal's distinction is based on the purposes, or results, of the act of exposition; that is, we have here the accepted distinction between explanatory midrash and creative midrash.[7] It seems to me that this distinction indeed explains well the expression 'branches that emerge from the roots,' but with respect to the other problematic points described above it is not enough to provide a remedy. Beyond that, it says nothing about midrash as an essence, but only distinguishes among different types of midrash, and therefore Maimonides' distinction is not entirely clear, since his remarks address all midrashim as such. The explanation of why creative midrash, by virtue of its methodological definition, yields rabbinic laws still requires further clarification. I would like to add here a further explanation of Maimonides' method, in light of the definition we saw for the notion 'of biblical origin' in his thought, one that grounds the difference in the character of the hermeneutic method itself and not only in its purposes.[8]

In Article A we noted the analogical character of the methods of interpretation. We also saw there that deduction is characterized by the fact that its conclusion is in effect already hidden in its premises, and therefore it is nothing more than exposure and analysis of what we already know, and bringing it to light (or into actuality). Analogy and induction, by contrast, are not an exposure of the known but the drawing of additional and new conclusions from the known premises.

According to our proposal, Maimonides' approach is based on the fact that halakhic exposition is the drawing of conclusions from Scripture by way of analogy. Deductive analysis of Scripture exposes what is hidden within it, and in this sense it is only interpretation. The results of deductive inference from the verse will of course have the force of laws of biblical origin, since such inference exposes what was hidden within it, and according to Maimonides what is actually inside Scripture is 'of biblical origin.' However, the results of analogical inferences from Scripture cannot be regarded as actually present in it, but rather as an extension of the verse by way of analogical resemblance. Conclusions inferred in this way are not considered by Maimonides to be truly present in the verse, and therefore they cannot be regarded as having the force of biblical law.

Nachmanides holds that even the result of an analogical inference from the Written Torah counts as an interpretation found within it, as long as the methods of interpretation that led to it are legitimate, that is, among those given at Sinai. Therefore Nachmanides holds, as we saw in the previous chapter, that a situation is possible in which there are two legitimate interpretations of the same text of the Written Torah, whereas for Maimonides this is impossible. According to Maimonides, every interpretation that is not the 'plain sense' is not actually found in Scripture.

There is no doubt that Nachmanides also understands that the methods of interpretation are analogical, and on this point he does not disagree with Maimonides. It may be that he defines the concept 'of biblical origin' differently. But Nachmanides also disputes Maimonides even on Maimonides' own assumptions. He argues against him that if the principles were given at Sinai and the Torah was given there, then the combination of the two necessarily yields laws explicitly found in the text. Therefore we must clarify more fully the basis of the dispute between him and Maimonides.

To do so, we must pay attention to an additional assumption (beyond the analogical character of the methods of interpretation) that is embedded in Maimonides' position, and we will try to clarify it by first introducing an important distinction in the philosophy of science (and in philosophy in general).

Kant divided propositions into synthetic and analytic. An analytic proposition is one that is derived from the very definition of its subject. For example: this ball is round. This proposition does not add new knowledge about the world, beyond what is found in the definition of the subject. To know it, it is enough for us to analyze the subject of the proposition. By contrast, a synthetic proposition is one that adds knowledge beyond the very definition of its subject. For example: this ball is heavy. Heaviness is not an essential characteristic of balls, and therefore new knowledge is being added here beyond what is embedded in the definition of the concept 'ball' (which is the subject of the proposition).

The accepted approach in philosophy is that analytic propositions are a priori; that is, we do not need experience in order to be convinced of their truth. The philosopher Saul Kripke challenges this conception by saying that there are analytic propositions for whose truth we need experience in order to become convinced. For example, the proposition 2+2=4 is an analytic proposition. This fact does not emerge from experience, but from the very definition of the concepts involved in this proposition (the numbers 2 and 4). Even so, in order to teach the child this analytic fact, the teacher uses empirical demonstrations (combining objects). It may even be that without the demonstrations it would be impossible to learn this proposition.

This challenge teaches us that there are situations in which we learn an analytic fact, that is, one embedded in the very definition of its subject, yet the mode of learning is by way of analogy and not by way of analyzing the subject under discussion.

Let us take a scientific example. In Newtonian mechanics we learn by experimental means, using analogies and inductions, that when a force acts on a body with mass, it accelerates with an acceleration proportional to the force. This is Newton's second law. Even after we have learned this law by way of analogy or induction, it is still possible to think that it is derived analytically from the concept 'mass.' It may be that if we could understand the concept 'mass' in all its depth without experience (as in the previous example, regarding the numbers 2 and 4), we could infer the second law a priori from that understanding. If so, the second law is derived analytically from the concepts of force and mass, except that because of our lack of ability we learn it by analogies and not by purely conceptual analysis.

One can think of an even more general conception, according to which after we understand any law of nature, we will always discover that it is in fact an analytic proposition. According to this philosophical conception, the laws of nature that are learned through various analogies and inductions can themselves be analytic deductions.

The conclusion is that there is no necessary connection between the way a person infers a given conclusion from a given premise and the real relation that exists between the premise and the conclusion. Analogy describes the person's mode of learning, but not necessarily the relation that exists between the premise and the conclusion in themselves.[9]

Let us now return to the topic of the methods of interpretation. When we use analogical methods of inference in order to create laws from the verses, we have described only the way those laws are learned by the exegete. It is still possible to say that the laws that emerge in these ways are actually present in the verses under discussion.

In order to understand Maimonides' position in the way it was presented above, it is not enough to assume the simple and accepted fact that the methods of interpretation are analogical and not deductive. We must add the assumption that the result derived from the midrash is also connected to the plain meaning of Scripture only by an analogical relation and is not actually present in it. It is very plausible that the determination that the law is rabbinic depends on the relation between it and what is written in the Torah, and not on the question of how we arrived at this law.

Nachmanides' position is that even though the methods of halakhic midrash are analogical, the conclusions of the exposition are present in the text itself, and in principle could have emerged from it by conceptual analysis. Their force is therefore of biblical origin.

Nachmanides probably does not accept the second assumption Maimonides makes. In his view, the analogies in the principles by which the Torah is interpreted characterize the exegete's way of reaching his conclusions, but after the conclusions are inferred, what we have here is an exposing (analytic) interpretation of the verses. After we expounded 'You shall fear the Lord your God'—to include Torah scholars—it became clear that fear of God truly includes fear of Torah scholars as well. According to Maimonides, this is not included in fear of God, but constitutes an extension of the commandment to fear God.

If so, the first difficulty above in Maimonides' position—why these laws are rabbinic—is understandable in light of his own criterion that only laws actually present in the verse have biblical force. The laws created by midrash are not actually present in the verse.

We now move to discuss the second question: why, when the two requirements are fulfilled (tradition and halakhic exposition), is the law indeed of biblical origin, whereas each of those requirements by itself is not sufficient for that.

In light of the conception of Maimonides presented here, a law that emerges from an exposition of the verses is not understood as present in the verse, but as an extension, a kind of analogical extension, of it. The reason for this, as noted, is that Maimonides understands analogy not only as the way the exegete arrived at his conclusion, but as a relation that also exists between the laws themselves. The conclusion of the exposition is not present in the verses under discussion themselves, but constitutes an extension of them.

D. Analogy and Induction in the Hermeneutical Principles

We saw in the introduction that there is a dilemma regarding the relative status of analogy and induction. Is analogy the basic process, and does it underlie induction as well, or the reverse? The dilemma can be formulated with respect to analogy as follows: is there an independent analogical process behind which no induction stands? Or: can one discern a similarity between two particulars without passing through the general category (the species) common to them both? If there is indeed such an analogical process, then analogy is not necessarily built upon a hidden induction. If there is no such process, then every analogy is based on a hidden induction. Parallel questions can of course be asked with respect to induction as well. There is also, naturally, a third possibility, according to which these two processes are independent, and both are autonomous. In the course of our discussion we will find support for all three approaches among the commentators.

In the simple and widespread conception of analogy, a general principle is always hidden behind it. When I see that Jacob is mortal, I do not see a particular creature that is mortal; rather, I discern that human beings are mortal. This is a mode of cognition called, in the phenomenological teaching of the philosopher Edmund Husserl, 'eidetic seeing': through the particular, which is as it were transparent, I see the universal.[10]

Let us now apply this mode of reference to the interpretation of Scripture. When I study the command 'You shall fear the Lord your God,' I am in fact learning the general principle that requires one to fear anyone essentially connected to the Torah, and therefore I infer that one must also fear Torah scholars. In such a mode of viewing, the command to fear Torah scholars is explicitly written in Scripture. The mode of writing is by means of a particular case (fear of God Himself) that exemplifies the general principle that stands behind it.

We saw that Nachmanides understands the command to fear Torah scholars as explicit in the verse. He apparently holds that analogy is always carried out through understanding a general principle that stands behind the particular example, for otherwise analogies cannot be made at all. Therefore, when it is written in the Torah 'You shall fear the Lord your God,' this is only a way of writing in particular form the general principle that commands fear of anyone connected to the Torah. From this conception Nachmanides reaches the conclusion that fear of the sages is explicitly written in Scripture within the command to fear God, for what the Torah really says is that one must fear anyone connected to the Torah. The analogy of the exegete merely serves as the tool by which he exposes the general principle to which the Torah itself intends, that is, a tool for carrying out a generalization, or induction.[11]

Maimonides, by contrast, apparently understands that midrashic analogy is made directly between the particulars. There is no general rule behind it that includes both particulars (the source and the target of the analogy). When it is written 'You shall fear the Lord your God,' the meaning is to fear Him alone. The sage who expounds senses in his intuition that Torah scholars too are to be feared, for there is something in them that resembles their Creator. But this is not derived from any inclusive principle found in the intention of the verse itself. It seems that Maimonides offers here an expansive interpretation of the principle 'we do not expound the rationale of the verse,' according to which one may not determine even what generalization, if any, stands behind the particular command in the verse.

It follows that Maimonides and Nachmanides understand in different ways how midrashic analogy works. For Nachmanides, analogy is based on a hidden induction, and therefore it exposes a general principle that is present in the verses, whereas Maimonides holds that specifically analogy is the more basic tool, and there is no hidden induction in its background.

We can now perhaps understand the last difficulty that remained in Maimonides' view (C above). When there is a tradition that supports the law that emerges from the exposition of the verses, it teaches me to relate to the analogy I make in the process of exposition as based on induction. Without the tradition, I have no logical ability to generalize the particular example that I learned from the verse into a general rule (for 'we do not expound the rationale of the verse'). Consequently, in such a case, the law learned is not found in the verse but constitutes an extension of it, and therefore its status is that of a rabbinic law. If there is a tradition that supports the exposition, its meaning is that I may assume that a general rule stands at the basis of the midrashic analogy, and therefore the conclusion of the exposition is regarded as explicit in the verse (as happens, according to Nachmanides' method, in all expositions).

One can find support for these two approaches among the authors of the hermeneutic rules. It is customary to classify the midrashic process called 'learning from precedent' as analogy, whereas induction is the principle called 'constructing a paradigm rule.'[12] The term 'father,' which lies behind the name of this principle, is usually interpreted as indicating the teaching law, which is the 'father' of the law learned (the 'son').[13] However, in light of the determination that 'constructing a paradigm rule' is an inductive midrashic process, one can also understand that the 'father' is the general command that stands at the basis of the two particular laws (the teaching law and the law learned: the two 'sons'). What underlies the teaching law is in fact a general rule, and this is what is called the 'father' of the law learned.

The principle 'learning from precedent' is not mentioned explicitly among Rabbi Ishmael's thirteen principles in the baraita of the thirteen principles at the beginning of Sifra. However, in the book Halikhot Olam, Gate 4 (the laws of 'constructing a paradigm rule'), it is brought that some wrote that this is the principle called in Rabbi Ishmael's baraita 'constructing a paradigm rule from one verse' (or: and one verse). This is also the view of Rabbi Shimshon of Chinon in Sefer HaKeritut, part 1 (Houses of the Principles), house 3, room 2,[14] and see there for his proofs. However, the view of the Raavad (cited there), in his commentary to the above baraita, is that the term 'constructing a paradigm rule' applies both to deriving one from one and to deriving one from two. Rabbi Aharon ibn Hayyim likewise understood in his book Middot Aharon, chapter 4, on the principle of 'constructing a paradigm rule,' that Rabbi Shimshon and the Raavad disagreed about this (and his own view inclines toward that of Rabbi Shimshon).[15]

In summary, the Raavad's method is that even 'one from one' is 'constructing a paradigm rule,' whereas according to Rabbi Shimshon only 'one from two' is called 'constructing a paradigm rule,' and 'one from one' is 'learning from precedent.'

It seems that there is a dispute here about the very matter under discussion. When one learns 'one from two,' one in fact requires two teaching cases in order to extract the property common to them, and thus one can learn that the law applying to them does not characterize them alone but all those who possess that property. This is, as noted, an inductive generalization. By contrast, when one learns 'one from one,' it can indeed be understood as an induction based on one teaching case, but more simply it seems that it should be understood as a direct analogy from one particular to another.

The need for two teaching cases in learning a 'constructing a paradigm rule' of 'one from two' is precisely because of the difficulty I pointed to above. From a single particular one cannot always extract what the relevant property is for the inductive generalization. When one examines two examples and asks what is common to them (= 'the common element'), one can point with greater confidence to the correct generalization.[16] Analogy from one particular to another, by contrast, is done intuitively and does not assume a generalization (induction) at its basis, and therefore it does not require two teaching cases.

It follows, then, that according to Rabbi Shimshon analogy does not pass through a hidden induction, but is made directly from one particular to another, and therefore 'one from one' cannot be called 'constructing a paradigm rule.' We are not seeking here a 'father'; rather, we learn from one 'son' directly to its fellow. By contrast, the Raavad apparently understands that every analogy is fundamentally based on a hidden generalization, and therefore even a derivation of 'one from one' (= analogy) is included within 'constructing a paradigm rule,' that is, this too is induction.

Induction, according to Rabbi Shimshon of Chinon, is carried out only on the basis of two teaching cases, because extracting the property they share is a necessary indication of the truth of the inductive generalization. It is clear that in the case of 'constructing a paradigm rule from two' we are dealing with two laws between which there is indispensability, that is, one cannot be learned from the other and vice versa. In such a case we make between them a 'common element,' and only then is this the principle of 'constructing a paradigm rule from two verses.' If there is no indispensability between them, then the second law adds nothing to the first, and therefore it does not help us test our halakhic generalization once again. Two laws between which there is no indispensability add no logical force to the inductive generalization beyond the single law. If such a law nevertheless appears (one that is unnecessary), then these two are a case of two verses that do not teach (or even teach the opposite, and the matter is well known).[17]

We have found, then, support in halakhic interpretation for the two directions we proposed in Maimonides and Nachmanides. According to Maimonides, midrashic analogy does not rely on induction, similar to what we saw in Rabbi Shimshon's method, whereas according to Nachmanides the basic inference that stands behind analogy is induction, similar to the Raavad's method.

It should be noted that I do not intend to make Maimonides' position depend on Rabbi Shimshon's position, but only to bring an illustration from it. According to Rabbi Shimshon, 'constructing a paradigm rule from two verses' is induction, and if so, according to our approach, a conclusion that emerges from such a 'constructing a paradigm rule' is explicitly present in the verse and should therefore, even according to Maimonides, have the status of a law of biblical origin. On the other hand, Maimonides writes explicitly with regard to all the principles by which the Torah is interpreted that the laws that emerge from them have rabbinic force.

If so, there are three methods: 1. The Raavad holds that even at the basis of analogy there stands induction, that is, induction ('constructing a paradigm rule') is the basic mode of inference. 2. Rabbi Shimshon understands that both modes of inference exist in halakhic exposition ('constructing a paradigm rule' and 'learning from precedent'), and neither of them is based on the other. 3. Maimonides holds that analogy is the basic mode of inference, and it also stands at the basis of induction. 'Constructing a paradigm rule from two verses' is indeed induction, but induction, according to Maimonides' conception, is nothing more than a composition of analogies. Therefore, according to Maimonides, the status of all the methods of interpretation is like the principled status of analogy, namely: an extension of the verse beyond what is found in it. Consequently, in Maimonides' conception, the laws that emerge from all the methods of interpretation will have rabbinic force.

E. The Halakhic Status of Midrashic Laws According to Maimonides

Up to this point we have discussed their status in logical terms—that of the methods of halakhic exposition. I now wish to discuss briefly a more popular issue, namely their halakhic status of the midrashic laws in Maimonides' method. As noted, many have discussed this topic: some have held that their status is that of laws of biblical origin, while others have held that their status is that of rabbinic laws. Some proposed an intermediate status called 'divrei sofrim' (and suggested various characteristics for it).

As noted, textual considerations indicate that Maimonides intended to say that these are truly rabbinic laws, and this is not the place to elaborate. Even so, it is difficult to understand the status of these laws as genuinely rabbinic laws.

Nachmanides, in his criticisms on the second principle, asks Maimonides what the difference is between actual expositions and those classified as mere scriptural support; apparently both are scriptural supports for rabbinic laws. Beyond that, in the end it is clear that God's will is indeed expressed in these commandments. These laws are learned by means that are themselves a law given to Moses at Sinai (the principles), from the text that was given at Sinai, and therefore one cannot relate to these expositions as merely ordinary rabbinic laws.

Ordinary rabbinic laws are created out of motives that exist among the sages who enact them (a fence, a decree, an ordinance, etc.). Midrashic laws are not created out of motives that arise in the reasoning of the sages, even according to Maimonides, but as an interpretation of the verses. The reason for the commandment to fear the sages is not the reasoning of the sages who enact, for if it were, then this would simply be a rabbinic ordinance, and the exposition would be a mere scriptural support. The reason for the obligation is an extension of the meaning of the law written in the Torah, and not a law with an independent rationale. Were it not for the exposition of the particle 'et' to include Torah scholars, this law would not be established in this way, but at most as an independent rabbinic ordinance. In brief, a rabbinic rule is a rule created on the sages' own initiative, whereas the midrashic law is imposed upon them by the verse, that is, it is the 'initiative' of the Holy One, blessed be He.[18]

One can connect this intermediate status of the midrashic laws to the status of laws given to Moses at Sinai. As noted, both these kinds of laws are manifestly God's will, and one can also say that they were transmitted 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 Maimonides' teaching.

For Nachmanides, like most halakhic decisors, there are two degrees of force for commandments: 1. of biblical origin: laws transmitted at Sinai, or derived from what was transmitted there. 2. rabbinic: laws that were innovated over the generations.

By contrast, for Maimonides there seem to be three degrees: 1. of biblical origin: laws that appear explicitly in the verse. 2. divrei sofrim: laws that are God's will but are not explicit in the verse. 3. rabbinic: laws that are commands of the sages on their own initiative (ordinances, decrees, etc.).

According to this, it is clear that expositions defined as mere scriptural supports are in fact ordinary rabbinic laws.[19] They belong to the third halakhic status in Maimonides' method. By contrast, ordinary midrashic laws, which are also rabbinic, belong to the second status (which we called above 'divrei sofrim'). It follows that according to Maimonides there are also three kinds of 'midrashic' laws in the Talmud: expositions supported by tradition: laws of the first kind (of biblical origin). Ordinary expositions: laws of the second kind ('divrei sofrim'). Scriptural supports: laws of the third kind (rabbinic).[20]

Much could be said about the halakhic implications of this division, and this is not the place for it.[21]

In conclusion, let us examine the meaning of the expression Maimonides uses in order to describe his approach to halakhic midrashim: 'like branches that emerge from the roots.' This expression recalls, and not accidentally, the Talmudic aggadic midrash on the verse in Ecclesiastes 12, 'The words of the wise are like goads and like well-planted nails…'. In Babylonian Talmud Hagigah 3b, Rabbi Yehoshua expounds this verse:

If you would say: just as a nail diminishes and does not increase, so too the words of Torah diminish and do not increase—therefore Scripture says, 'planted.' Just as a planting bears fruit and multiplies, so too the words of Torah bear fruit and multiply.

The words of the sages can be described as fructifying and multiplying the Torah only according to Maimonides' conception as presented here. According to the accepted approach, the words of the sages expose what is already found in the Torah (through expositions), or add to it laws that are not derived from it (ordinances and rabbinic laws). Neither of these actions is a fructification and multiplication of the words of Torah themselves. Only according to Maimonides does midrash fructify and multiply the Torah, that is, add to it laws that were not in it: 'like branches'; and on the other hand it does so in a manner of fruitfulness and multiplication, that is, it brings those branches out of the Torah itself: 'from the roots.' The results of this process are laws that fall under the category of 'the words of the sages' (= rabbinic laws) and yet are considered a fructification and multiplication of the Torah itself, like nails planted within it.

[1] We saw there that this relation can be expressed in the following way: analogy = induction + deduction.

[2] There is an extensive and detailed discussion of Maimonides' intention in these remarks. Did he mean to say that these laws are rabbinic, or of biblical origin, or some sort of intermediate status? See at length in Neubauer's book, Maimonides on Divrei Sofrim (hereinafter: Neubauer), and in Rabbi Nahum Eliezer Rabinovitch's article, 'On divrei sofrim whose force is of biblical origin in Maimonides' teaching,' Sefer Higgayon, Tzomet Institute, Gush Etzion, 1995, p. 87. Also see Rabbi Yeruham Perla's introduction to the Book of Commandments of Saadia Gaon in his edition, in the section dealing with Maimonides' second principle, and more.

Below I will assume that Maimonides intended to say that these are actual rabbinic laws, and at the very least not ordinary laws of biblical origin. This is well grounded in his wording in the Arabic original of the principles. See on this Moshe Halbertal, 'Maimonides' Book of Commandments,' Tarbiz 59, 1990, note 12 (hereinafter: Halbertal). Also see a brief discussion below at the end of our remarks.

[3] Although in the introduction to the Commentary on the Mishnah and also in the second principle the determination that a law given to Moses at Sinai has rabbinic force is not explicitly mentioned, elsewhere in his writings Maimonides does indeed explicitly adopt such a position. See, for example, in Freimann's edition, responsum 161 (Blau, responsum 355). This responsum is cited by Nachmanides in his criticisms on this principle (in the Frankel edition, fol. 54). This responsum is central for understanding Maimonides' method, and this is not the place to elaborate.

The determination that a law given to Moses at Sinai is a law with rabbinic force also appears in Maimonides' commentary to Mishnah Kelim (17:12).

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

[5] What causes confusion in understanding Maimonides' conception is his determination in the introduction to the Mishnah that laws transmitted by tradition from Moses at Sinai were never subject to dispute (see Havot Yair, responsum 192, and the matter is well known). According to our remarks here, this does not mean that these are laws of biblical origin. Laws given to Moses at Sinai have rabbinic status, but they were never disputed.

[6] A detailed discussion of this topic requires us to address the question of the relation between exposition of the verses and their plain meaning. See on this issue David Henshke's two articles, 'A Verse Never Departs from Its Plain Meaning,' HaMa'ayan 17, Jerusalem, 1977, and Rabbi Witman's response in HaMa'ayan 18 (1978), as well as Henshke's supplement (ibid.). In our remarks below, the positions of Maimonides and Nachmanides on this topic will become clear, and it will emerge that neither of them accords with Henshke's interesting proposal there. Problems that arise in Rabbi Witman's remarks in that article are also resolved in light of the explanation I will offer below of Maimonides' words (see, for example, note 1 there on p. 49 regarding the term 'plain meaning by way of exposition,' which he finds unintelligible).

[7] See Menachem Elon, Ha-Mishpat Ha-Ivri, and more.

[8] In the end, this proposal can be understood as an explanation of Halbertal's distinction, but in what follows I will try to show that this mode of presentation has far-reaching implications for understanding the nature of the methods of interpretation in general, and at its foundation lies a position different from Halbertal's with respect to understanding the notion 'of biblical origin' in Maimonides' teaching.

[9] For a generalization of this principle, see at the beginning of chapter 2 of the first section in my above-mentioned book.

[10] See, for example, Introduction to the Theory of Logic, Hugo Bergmann, Bialik Institute, Jerusalem, 1975, pp. 334, 349. Further on this, in greater detail: Edmund Husserl, Cartesian Meditations, Magnes, Jerusalem, 1991, and in the translator A. Z. Brown's introduction. Usually Husserl is understood as one who proposes generalizations that do not rely on induction, and not as he is presented here, where this is a mechanism that grounds induction, and this is not the place for that.

[11] It is important to note here that the commandments of fear of God and of the sages are brought here only as an illustration. Nachmanides' position regarding the relation between these commandments is more complex, as can be seen from his remarks in his criticisms on the second principle.

[12] See, for example, Kol HaNevuah in the above-mentioned article, sections 16 and 17, and especially in his notes there, where he cites this from commentators and scholars.

[13] See Talmudic Encyclopedia, vol. 4, entry 'Binyan Av.'

[14] In the edition of Sifriyat Bnei Torah. The original edition does not appear in the copy in my possession. It is noted there that this printing is identical to what was printed in Amsterdam, 1709 (with corrections of many typographical errors).

[15] See Talmudic Encyclopedia there. These sources were brought in Kol HaNevuah, p. 87, note 44; see there.

[16] In the methodology of modern science, a similar procedure is accepted. A scientific theory (a general law of nature) cannot be proven, and therefore one reaches it by way of induction from particular cases. The more numerous the particular cases that accumulate, the greater the confirmation they provide for the general theory. As argued here, in halakhic exposition as well we need at least two different cases with a common feature in order to infer from them a general rule.

[17] There is an innovation in what I say here. The prevalent conception is that indispensability between two teaching cases in a 'constructing a paradigm rule' ('the common element') appears in order to prevent an obstacle to the derivation because of the rule 'two verses that come as one do not teach.' Here I suggest that indispensability is required for the derivation itself, so that the exegete can generalize inductively from these two cases to the relevant and correct general property.

[18] In the laws of the Sabbath, the distinction between rabbinic categories of labor and ordinances and protective decrees and the like is well known. The distinction here is similar.

[19] It would appear that asmakhtot must be 'defective' expositions, for otherwise such expositions would create laws of biblical origin or ordinary 'divrei sofrim.' By way of comparison: according to Gersonides, asmakhtot are expositions that do not support known laws.

[20] I note briefly here that from Ritva's interpretation in his novellae to tractate Rosh HaShanah of the notion 'asmachta,' it emerges that even expositions that are merely an asmachta are not actually rabbinic laws created on the sages' own initiative. According to Ritva there, such laws have some sort of root in the verse, and in this sense they are similar to midrashic laws as understood by Maimonides. See Talmudic Encyclopedia, entry 'Asmachta.'

[21] For example, one might think that doubt regarding midrashic laws should be treated stringently, even though they are rabbinic laws, since after all there is here concern for transgressing God's will, or for spiritual harm that the commandment is meant to avert.

This discussion is especially tangled in Maimonides' own method, since he holds that a doubt concerning Torah law is treated leniently by Torah law. Regarding doubt in a law given to Moses at Sinai, see for example Mishneh Torah, Laws of Slaughter, chapter 5, law 3, and the notes of the commentators there. Some hold that its doubt is also treated leniently even by one who holds that it is of biblical origin (see, for example, Talmudic Encyclopedia, entry 'A Law Given to Moses at Sinai').