Torah Reasoning and Its Halakhic Status

2016

Outline:

• Reasoning of Torah origin or rabbinic origin

Not all reasonings are equal

Blessings over benefit — the Pnei Yehoshua’s view that reasoning is of Torah origin

The core obligation to bless is Torah-based reasoning; the formula is rabbinic

Blessings over benefit — the Tzelach’s view: reasoning is rabbinic

Resolving the Tzelach’s difficulty against the Pnei Yehoshua

The verse’s advantage over reasoning is the command

• Explaining the dispute over whether reasoning can obligate at the Torah level

Introduction

Two aspects of the system of commandments

Interpretive reasoning and reasoning that founds a novel rule

• The command in Maimonides’ teaching

Introduction

Maimonides’ distinction between two kinds of negation

Content and command in every Torah-level commandment

Several shades of laws of the Sages: the law of doubt

The law of doubt regarding laws grounded in reasoning

Interim summary

Rabbinic derashot based on reasoning

Note: the role of command in the service of God

• A gentile who observes the seven commandments on the basis of reasoning
• Even idolatry is incomplete without acceptance of authority
• Prohibitions grounded in reasoning for a minor, and their liability under heavenly law

Introduction

The obligation of minors in commandments to which reason inclines

Extending this to minors’ obligations in all Noahide commandments

The binding force of an oath

• Obligations whose source is the will of God

Introduction

The will of God

A source from the book Mesillat Yesharim

• The reasons for omitting command in duties grounded in reasoning

Introduction

Foundational duties and duties that must arise from initiative from below

1. Character refinement
2. The commandment of repentance
3. The commandment of Torah study

• a. Rabbi Shimon bar Yohai’s view was translated into Jewish law in the laws of oaths
• b. Torah study and the commandment of Torah study are distinct
• c. The continuation of the passage fits perfectly
• d. Resolving the contradiction in Rabbi Shimon bar Yohai’s words

A note on the commandment to settle the Land of Israel according to Maimonides

A note on the commandments considered equivalent to all the rest

Conclusion, and a note on the halakhic status of foundational duties and of reasonings in general

• Contemporary discussions

Introduction

The distinction between interpretive reasonings and substantive reasonings

Example: a prohibition on genetic manipulations

Genetic manipulations as an extension of the prohibition of mixed species

The halakhic difference between the two possibilities

An interesting example of a decree grounded in reasoning

———————————————–

Torah Reasoning and Its Halakhic Status

Reasoning is a central tool for clarifying laws and at times even for creating them. Even so, systematic work is still lacking on distinguishing among different kinds of reasoning and on clarifying the status of reasoning in Jewish law in general. The question of reasoning is, of course, tied at its core to the question of the meaning of command in a verse, for reasoning generally comes as a substitute for a commanding verse. In this article I shall try to sketch some initial lines for clarifying the status of reasonings in Jewish law, and through that, also for clarifying the meaning of commands.

• A. Reasoning of Torah origin or rabbinic origin

Not all reasonings are equal

At the beginning of Rabbi M. M. Kasher’s book, Mefa’ane’aḥ Tzefunot,[1] there appears a pamphlet entitled ‘Reasoning of Torah Origin.’ Rabbi Kasher opens it with several Talmudic sources that treat reasoning as equivalent to a verse: why do I need a verse? It is reasoning (‘why do I need a verse? It is reasoning’; Ketubot 22a), if you wish, say it is from a verse, and if you wish, say it is from reasoning (‘if you wish, say it is from a verse, and if you wish, say it is from reasoning’; Berakhot 4b and parallels), and more. Likewise, in the passage in Shabbat 96b, the labor of bringing in is derived from reasoning, and many other cases follow this pattern.[2]

At first glance this is puzzling. Every rabbinic enactment or decree has some reasoning because of which it was enacted or decreed; if every reasoning were of Torah status, there would be no rabbinic laws at all. One might distinguish between reasonings about the substance of the matter and reasonings that create a fence or safeguard. If the prohibition itself emerges from reasoning, it is of Torah origin; but if there is reasoning to reinforce some commandment or set boundaries for it, while the act itself has no substantive problem, then this is a rabbinic law. Such a distinction may explain the status of decrees, but why are enactments as well (such as Hanukkah and Purim) only rabbinic? They surely rest on substantive reasoning.

We are therefore almost forced to say that there are several levels of reasoning, stronger and weaker, and only the stronger reasonings generate Torah-level laws. Laws generated by weaker reasonings are rabbinic. This is stated explicitly in the responsa Shevut Yaakov, part 3, no. 135, where he rejects the claim that reasoning is only rabbinic. He writes:

Also, what follows from the words of his honored Torah learning, that whatever arises from reasoning is only rabbinic — this principle does not seem correct to me for several reasons… And what advocates have brought for his view from the Talmud in Pesachim 68b, beginning with ‘all agree’ — this is no general rule, for if so, many Talmudic passages would be difficult where it asks, ‘Why do I need a verse? It is reasoning,’ and Tosafot ask similarly in Shevuot 22b. If it were as his honor says, there would be no difficulty at all, since reasoning would only be rabbinic. Also, even according to Tosafot’s answer it is evident that not all reasonings are equal: there is strong reasoning and weak reasoning. And in that case in Pesachim there is also reasoning in the opposite direction — that it is the day of the giving of the Torah — and a verse too supports this, as it is written, ‘a solemn assembly to the Lord your God.’

He notes precisely that there is no basis for claiming reasoning is only rabbinic, since the Talmud treats reasoning as equivalent to a verse; his proof is that if reasoning were only rabbinic there would be no place for the objection why do I need a verse? It is reasoning. On the other hand, on the basis of the passage in Pesachim he writes that there are reasonings that are not sufficiently strong, or where there is counter-reasoning, and therefore the laws derived from them are rabbinic. That is exactly our point.

Blessings over benefit — the Pnei Yehoshua’s view that reasoning is of Torah origin

One of the central sources that arises in discussions of the status of reasoning is the passage in Berakhot 35a, where the Talmud discusses the source of the law of blessings over benefit (the blessing before food). It rejects several proposals for the source of this law, and in conclusion determines:

Rather, it is reasoning: it is forbidden for a person to benefit from this world without a blessing. The Rabbis taught: it is forbidden for a person to benefit from this world without a blessing, and whoever benefits from this world without a blessing has committed misuse of consecrated property. What is his remedy? He should go to a sage. — He should go to a sage? What can the sage do for him? He has already committed the prohibition! — Rather, Rava said: he should go to a sage beforehand and learn the blessings, so that he not come to misuse. Rav Yehudah said in the name of Shmuel: whoever benefits from this world without a blessing is as if he benefited from sacred things belonging to heaven, as it is said: ‘The earth and all it contains belong to the Lord.’ Rabbi Levi raised a contradiction: it is written, ‘The earth and all it contains belong to the Lord,’ and it is written, ‘The heavens are the heavens of the Lord, but the earth He gave to human beings’! This is no difficulty: here it is before a blessing, there it is after a blessing. Rabbi Ḥanina bar Pappa said: whoever benefits from this world without a blessing is as if he robs the Holy One, blessed be He, and the Jewish people, as it is said: ‘Whoever robs his father and his mother and says, There is no transgression, is a companion to a destroyer,’ etc.

We see that the source of the law of blessings over benefit is reasoning: one who enjoys this world without a blessing is as though he had misappropriated consecrated property, benefited from sacred things belonging to heaven, or robbed the Holy One, blessed be He, and the Jewish people.

It is therefore no surprise that the Pnei Yehoshua there raises the following difficulty:

In the Talmud: ‘Rather, it is reasoning — it is forbidden for a person…’ From the language of all the decisors it appears that according to this conclusion all blessings over benefit are rabbinic except Grace after Meals alone; and according to the Rashba, the after-blessing for the seven species is also of Torah origin, but regarding the other blessings he agrees. In my humble view this is puzzling, for throughout the Talmud it appears that something derived from reasoning is of Torah origin; indeed the Talmud asks, ‘Why do I need a verse? It is reasoning.’ And in truth Tosafot’s language is not decisive, for it may be that what they wrote — that the verse cited above is merely a support — means this very point, that since it is reasoning, no verse is needed.

He asks: why is the accepted law that blessings over benefit are rabbinic and that in cases of doubt one is lenient (‘when in doubt about blessings, one is lenient’), if reasoning is of Torah status and therefore one should be stringent in a doubtful case? He answers, though with difficulty:

However, it seems to me that even if you should say that this reasoning too is of Torah origin, still it works out well that we rule leniently in doubtful blessings, because there is no place to be stringent: since it is forbidden to recite an unnecessary blessing, that very reasoning falls away. And for this very reason as well it works out that one who has had a seminal emission does not bless before food, because since he is obligated only by reasoning and refrains out of honor for the Divine Name, this reasoning does not apply. Moreover, after food he does bless; if so, he has not benefited from this world without a blessing. So it seems to me, though it still requires further analysis; see also my later notes.

At the end of the day he remains unresolved.[3]

The core obligation to bless is Torah-based reasoning; the formula is rabbinic

It therefore seems preferable to resolve the issue by distinguishing between the obligation of blessing over benefit, which is from the Torah (because reasoning is of Torah status), and the fixed form and wording of the blessing (mentioning the Divine Name and kingship, etc.), which is of course a rabbinic enactment. Consequently, if a person is in a case of doubtful blessing, he should indeed be stringent and bless, since this is a Torah-level doubt. But he should not recite the fixed text that includes the Divine Name and kingship, for that is only a rabbinic doubt, and the prohibition of uttering the Name unnecessarily is also implicated (as the Pnei Yehoshua himself writes). This yields a striking practical conclusion: in a case of doubtful blessing one should indeed be stringent, but not say the full formula; rather, one should simply thank the Holy One, blessed be He, in one’s own words for having given us food.[4] One who fails to do so has transgressed a possible Torah prohibition of benefiting from this world without a blessing, something akin to a doubtful case of misuse of consecrated property.

We have assumed here that the fixed formula established by the Sages is only a rabbinic obligation. Yet one could ask the Pnei Yehoshua: surely there is reasoning even at the basis of that formula, so if reasoning is of Torah status, why should that not also be part of Torah law? It seems the answer follows from what we saw above in Shevut Yaakov: there is indeed reasoning here as well, but the primary reasoning is that one must thank the Holy One, blessed be He, and not benefit without a blessing. That core thanksgiving is therefore truly a Torah rule. But the reasoning to express that thanksgiving specifically in this fixed form is not primary (‘weak reasoning,’ as he calls it there), and therefore it is only a rabbinic obligation.

Still, one must ask how it was so clear to the Pnei Yehoshua that the primary reasoning — that it is forbidden to benefit from this world without a blessing — is sufficiently strong for the rule to be of Torah status. He could easily have answered his own difficulty (why we are lenient in doubtful blessings) by saying that this reasoning is weak and therefore the law derived from it is only rabbinic. One might say that the Pnei Yehoshua simply felt this reasoning to be important rather than weak, but that still does not seem enough, since in the end he remains with a difficulty against the Talmud and could have resolved it in that way.

It seems that the Pnei Yehoshua holds that if some law emerges from reasoning alone, then by definition it is a Torah law and cannot be merely rabbinic. A rabbinic law is one enacted or decreed by an authorized court. Of course they always have reasons for their enactments or decrees, but an enactment is stated as a determination of law and is not suspended on its rationale. When a rule is presented as being grounded in reasoning, it is plausible that this is not a rabbinic enactment but a law that obligates of itself, without enactment. It obligates by virtue of the reasoning itself, not because some court enacted it. Therefore such a rule appears to the Pnei Yehoshua necessarily to be Torah law. By contrast, the formula of the blessing really does look like an enactment of the Sages. There they set halakhic principles (the Divine Name and kingship), and did not discuss at all the reasoning behind those requirements, though it is clear that reasoning exists there too. Those rules obligate because an authorized court determined that a blessing must be said in such a form, and therefore it is clear to the Pnei Yehoshua that this is rabbinic law. Thus: a law grounded in reasoning is Torah law, whereas a law grounded in an enactment of the Sages — even if reasoning underlies it, and even if that reasoning is probably weak — is rabbinic.

Indeed, the very flow of the passage in Berakhot is that it searches for a source for the blessing before food and in the end grounds it in reasoning. Had this been a rabbinic enactment, the Talmud should have said there is no source and that the Sages enacted this law. Of course, like every rabbinic law, it has a rationale, but that is not the way the Talmud presents rabbinic enactments. Here the reasoning is presented as the source that obligates one to bless before food, not as a rationale for an enactment of the Sages, and that strongly implies that it is a Torah rule.

In the commentary of the disciples of Rabbenu Yonah on the Rif, there (Berakhot, p. 25a in the Rif pagination), we find a major novelty:

‘What is his remedy?’ Rava said: ‘He should go to a sage expert beforehand,’ etc. That is, one who does not know the blessings — how can he eat? For if he eats he will become liable for a misuse-offering every single time. And we answer that he should go to an expert and learn the blessings for each and every thing. And the same would apply that even if he knew only the blessing ‘By whose word all things came to be,’ he would thereby leave the category of misuse, for we learned (Berakhot 40a): ‘For all of them, if he said “By whose word all things came to be,” he has fulfilled his duty.’ Still, he must learn in order to recite the blessing appropriate to each and every thing.

According to them, one who ate without a blessing is liable to bring a guilt-offering for misuse of consecrated property. This is astonishing, for eating without a blessing is only a rabbinic prohibition; if so, bringing such an offering would seem to be a case of unconsecrated slaughter in the Temple courtyard. It appears that they too, like the Pnei Yehoshua, hold that eating without a blessing is a Torah prohibition.[5]

According to our approach, it also seems that what they write here — that one is released from misuse even with the blessing ‘By whose word all things came to be’ — follows from the reasoning above. Their point is that any blessing-form whatsoever removes the status of misuse, since in the end he did thank the Holy One, blessed be He. True, if he used the wrong formula he did not fulfill the rabbinic obligation (for the Sages established a specific formula for each blessing), but at the Torah level he has exited the category of misuse.

Blessings over benefit — the Tzelach’s view: reasoning is rabbinic

The Tzelach, in his novellae there, challenges the assumption of the Pnei Yehoshua and writes:

As for what the great scholar, the author of Pnei Yehoshua, wrote — that since the Talmud concludes that it is reasoning, it is therefore מן התורה, for we find that they say ‘Why do I need a verse? It is reasoning,’ showing that reasoning functions like a verse — I say that this applies only to one legal rule among other legal rules, such as in Ketubot 22a, ‘From where do we know that the same mouth that forbade is the mouth that permits?’ and in Bava Kamma 46b, ‘From where do we know that the burden of proof rests on the claimant?’ and the like, where the Talmud asks, ‘Why do I need a verse? It is reasoning.’ But to say of something that is derived from reasoning that it is itself an important Torah commandment — that we have never heard. For if that were so, all the rational commandments were written for nothing. Moreover, this reasoning — that it is forbidden to benefit from this world without a blessing — applies to all who enter the world; if so, blessings over benefit should be an obligation even for Noahides — astonishing! Rather, certainly the meaning is that because this is logical, the Sages instituted blessings over benefit.

He distinguishes between reasonings ‘within an existing law’ and reasonings that come to found a new obligation. A reasoning that interprets a principle or commandment already rooted in the Torah may receive Torah status, for it is simply an interpretation of what the Torah itself says, and once interpreted, that is the content of the Torah’s own command. But in our passage the Talmud brings a reasoning that founds a novel rule, not a detail within an existing law whose source is in the Torah, and in such a case it is obvious to him that one cannot say the general principle that reasoning is of Torah status.

He raises two objections to the Pnei Yehoshua: (1) according to that view, all humanity should be obligated in blessings over benefit, and that we have never heard; (2) on that view, the verses of rational commandments would be superfluous. Below I will propose a resolution to these objections.

Resolving the Tzelach’s difficulties against the Pnei Yehoshua

We have cited the two objections raised by the Tzelach against the Pnei Yehoshua. Regarding the obligation of gentiles in blessings over benefit, this can be sharpened through the words of Rabbi Nissim Gaon in his introduction to the Talmud (printed in many editions at the beginning of tractate Berakhot), where he writes:

If the objector should answer and say: since you say that everyone whose mind is sound is obligated in the commandments, why did the Holy One, blessed be He, single out Israel to give them the Torah and burden them with its commandments — they alone, and no other nation besides them — when all are equal with respect to the obligation of the commandments? And further one may ask: how could it be proper to punish them for something in which they were never obligated and which was never given to them, since they could reply: had we been commanded, we would have done it, and had we been warned, we would have been careful and accepted it as they did. We answer these claims as follows: all the commandments that depend on reasoning and the understanding of the heart already obligate everyone from the day God created man upon the earth — him and his descendants after him, throughout all generations. And as for the commandments known by tradition from the words of the prophets, our God did not refrain from obligating the ancients in whatever His wisdom saw fit to obligate them in. Thus we find that Adam was charged with some commandments…

Rabbi Nissim Gaon states that commandments grounded in reasoning obligate anyone who understands the reasoning, and they require no command. If so, the Tzelach seems correct in saying that gentiles too should be obligated in blessings over benefit.

Still, one can explain this according to our approach: gentiles too are indeed obligated in the core thanksgiving, for only that aspect is grounded in reasoning. But the formula established by the Sages — which is only rabbinic and does not rest on strong reasoning — does not obligate gentiles. The fact that not all gentiles do this is either because they do not fulfill their obligations generally, or because they do not understand the reasoning and so do not observe it. In fact, those among them who believe and understand that one should give thanks for what one has received before eating do do so. For example, it is well known that Christians as well are careful to bless and give thanks before meals.

As to the Tzelach’s second difficulty — the need for verses for rational commandments — as will be explained below, that is in fact our main issue here.

First, I note that in my article on false witnesses and scriptural decree[7] I showed that even a scriptural decree has rationales, and not only that, but often those rationales are even accessible to us as human beings. This naturally raises the question why in such cases a verse (= a scriptural decree) is needed at all. There I distinguished among several possibilities: (a) the reasoning is not sufficiently unambiguous and strong for us to act on it, and so a verse is needed; (b) the reasoning conflicts with other halakhic principles, and so we would not act on it without the permission of a scriptural decree; (c) we understand the reasoning only after Scripture reveals the law to us, but now it appears simple. All these explanations can also account for the need for verses in rational commandments.

One may perhaps add yet another explanation: sometimes verses are needed to add various legal details and boundaries to a commandment that we would not know from reasoning. For example, the prohibition of murder is surely among the rational commandments, but the laws of grama (indirect causation), metzamtzem, sof ḥammah lavo, the need for prior warning, two witnesses, and the other laws governing a murderer in Jewish law — none of these would emerge from reasoning alone. Morally speaking, one who causes murder indirectly is a murderer in every sense: he acts intentionally and the result will certainly occur, only in an indirect or unusual way. From the moral standpoint, that makes no difference at all.[8]

Of course, in a case like blessings over benefit, where we understand the reasoning without a verse, and it is unambiguous and does not conflict with any other principle, reasoning itself suffices for practical conduct. In such cases, if a verse is nevertheless brought, the Talmud asks, why do I need a verse? It is reasoning. And where there is no verse, it is the same Torah law as in a case where there is a verse. That is what the Pnei Yehoshua wrote.

The verse’s advantage over reasoning is the command

But it seems more correct to say that in truth verses are required for rational commandments in an essential sense, and in principle reasoning alone does not suffice. They are not needed merely to add specific legal boundaries or to strengthen the reasoning, but to add a command, which is an additional dimension within the commandment itself. In order to clarify this, I will first present several important preliminaries, and then return to explain the views of the Pnei Yehoshua and the Tzelach, and the matter of reasoning in general.

• B. Explaining the dispute over whether reasoning can obligate at the Torah level

Introduction

When reasoning is seen as a substitute for a commanding verse, one implicitly assumes that the command contains nothing beyond revealing information. When the Holy One, blessed be He, commands me to put on tefillin, He merely reveals thereby that this is His will. Hence, if I have a reasoning that tells me this is God’s will, or that this is what ought to be done (later I will distinguish between these two kinds of reasoning), then there is no need for a verse.

In this chapter I shall try to show that this assumption is incorrect. At least according to Maimonides (and not only according to him), verses have a role that is not merely the transmission of information about God’s will. We will see that understanding the dispute among the later authorities we have discussed depends on understanding this meaning of reasoning and of command.

Two aspects of the system of commandments

Rabbi Elchanan Wasserman, in Kovetz Ma’amarim, in the essay ‘Ha-Teshuvah,’ cites the Ramchal, who distinguishes between two aspects in every commandment and every transgression: the dimension of obedience/rebellion and the substantive dimension. When a person eats pork, there are two aspects to the transgression: he has rebelled against the command not to eat pork, and he has brought about the spiritual damage that this prohibition is meant to prevent. The same is true when a person performs a commandment, such as putting on tefillin: he obeys the command, and beyond that he also brings about the benefit or repair for the sake of which we were commanded. So it is with every commandment and every transgression. See there for his proofs and several consequences of this distinction.

A source for this idea may be found in the words of the medieval authorities explaining the dictum of the Sages (Bava Kamma 38a):

Mar the son of Rabina said: this teaches that even if they fulfill them, they do not receive reward for them. Is that so? But was it not taught: Rabbi Meir says, from where do we know that even a gentile who engages in Torah is like a High Priest? Scripture says: ‘Which a person shall do and live by them’ — it does not say priests, Levites, and Israelites, but rather ‘a person’; from this you learn that even a gentile who engages in Torah is like a High Priest. They answered: they do not receive reward as one who is commanded and does, but as one who is not commanded and does. For Rabbi Ḥanina said: greater is one who is commanded and does than one who is not commanded and does.

The Talmud states that even a gentile who performs commandments receives reward, though he is not commanded in them. It then adds that greater is one who is commanded and does than one who is not commanded and does. The connection between the two is obvious. The gentile fulfills the commandment and brings about its benefit, but that is only the substantive dimension of the commandment. He does not have the dimension of obedience to command, since he is not commanded. That is the explanation of the rule that greater is one who is commanded and does: the commanded person has both of these aspects, whereas the uncommanded person has only the substantive dimension.

This conception of ‘greater is one who is commanded and does’ is explicit in Tosafot HaRosh on Kiddushin 31a (see also the Ritva there in the name of Nachmanides):

Greater is one who is commanded and does… Furthermore, the Holy One, blessed be He, has no need of any of the commandments; rather, by them His will is done. Therefore one who is commanded and does is doing the will of his Creator, but one who is not commanded and does — it is not relevant to say of him that he is doing the will of his Creator, for He did not command him anything. Even so, he does receive reward.

This understanding, as applied to women who are not commanded, is explicit in Nachmanides there:

But women certainly do receive reward for performing time-bound positive commandments, as they said here: greater is one who is commanded and does than one who is not commanded and does — implying that in any case he has reward even though he is not commanded and does… But one who performs the commandments of the Torah properly, even though he was not commanded in them, such as women and gentiles, does receive reward for them, for all its ways are ways of pleasantness and all its paths are peace.

He explicitly states the point: one who is not commanded and does (such as a woman or a gentile) has only one aspect to his act — the substantive one. There is no command here, and therefore there is also no obedience to command.

We can now understand why a verse is needed in an essential sense for rational commandments (this resolves the Tzelach’s second difficulty). Reasoning shows us that an act has substantive benefit, because it brings some spiritual repair to the world or to us. But the verse always adds another dimension to every commandment — the command. Without the verse, one who fulfills the commandment would be like one who is not commanded and does; that is, he would bring about the spiritual benefit, but he would not be fulfilling God’s command. The verse is needed so that he be one who is commanded and does, even if it adds nothing to the legal contours of the commandment or to the strength of the reasoning.

The rational, substantive dimension is universal, and it obligates anyone who understands the reasoning. That is what Rabbi Nissim Gaon wrote, and indeed the Tzelach himself made this point when he asked why, according to the Pnei Yehoshua, gentiles are not obligated in blessings over benefit. But once a verse is added that commands the act, the command addresses only Israel and adds for them a commanded dimension on top of the substantive reasoning. When there is a verse commanding the act, the act of commandment has two dimensions. That is why the verse is needed.

This resolves the Tzelach’s difficulty. But it also lets us understand the dispute itself. An act of commandment grounded in reasoning without a verse is, for the one who does it, like the act of one who is not commanded and does. In that it differs from a commandment concerning which we have a command, where the one who fulfills it has two benefits: the substance and the obedience. A clear example is blessings over benefit, because there there is reasoning but no command. This is therefore a test case, and we must examine what the halakhic meaning of such a case is: is it a Torah obligation or not? If there is reasoning without command, is that still a Torah commandment (as the Pnei Yehoshua holds), or does a Torah law also require command (as the Tzelach holds)? Before turning to that, however, we return to the Tzelach’s distinction, which should now seem self-evident.

Interpretive reasoning and reasoning that founds a novel rule

We saw that the Tzelach distinguishes between reasonings that generate a new obligation, where those obligations are only rabbinic, and reasonings that generate a rule or detail within a commandment that has some other Torah source, where that detail truly will be of Torah status. In light of the explanation we proposed — that the verse is needed in order to add a dimension of command — we can now better understand the Tzelach’s distinction. If the reasoning is only an interpretation of a commandment that already has a source in a verse, that is, it merely adds a detail or boundary within that commandment, then it reveals to us the intention of the verse. Once we have interpreted the verse in that way, it is clear that the verse’s command applies to that detail as well. Therefore even according to the Tzelach, such reasoning establishes a rule that is a Torah obligation, like any law for which there is a verse that commands it. For example, the labor of bringing in on the Sabbath is an extension of the prohibition of carrying out, and so its prohibition is certainly of Torah origin even without an explicit command. The command prohibiting bringing in is the general command that prohibits labor on the Sabbath, and the reasoning merely reveals that bringing in too is included in that command.

By contrast, a reasoning that generates an obligation to bless before food is a reasoning that founds a new rule, not a detail within an existing law. Here there is no source at all that prohibits such behavior. Such reasoning, says the Tzelach, cannot constitute a Torah commandment, because a Torah prohibition requires command — that is, a source in the Torah. In his view, even if there is substantive reasoning in the obligation, meaning that it brings some spiritual repair or benefit, still, without a command it cannot be a Torah prohibition, because it lacks the dimension of obedience to command, and one who does it is like one who is not commanded and does.

The Pnei Yehoshua, by contrast, holds that even reasoning that creates a prohibition or commandment yields Torah law. It is entirely possible — and even likely — that he agrees with everything we have said so far, and yet still thinks that a command is not needed in order to constitute a Torah prohibition; substantive content is enough. On his view there are two kinds of Torah prohibitions: prohibitions grounded in reasoning, which have substantive content but no dimension of obedience to command, and prohibitions grounded in a verse, where both dimensions are present. Unlike the Tzelach, the Pnei Yehoshua holds that even commandments for which there is no command can be regarded as Torah commandments.

It seems that the foundation of these ideas may be found in Maimonides’ conception of the distinction between Torah law and rabbinic law, and in his understanding of the meaning of commands in the service of God. That will be the subject of the next chapter.

• C. The command in Maimonides’ teaching

Introduction

An ordinary factual statement is an indicative sentence. When I say that there is now light outside, I thereby communicate information. When Reuven tells Shimon that he likes to drink water, he communicates information about himself and his inclinations. Even when he asks him for water, one could say that he is only conveying information about his desires — that he wants water and wants Shimon to bring it to him. But what happens when he commands him to bring water? Is that too merely an indicative sentence that conveys information about his wish and nothing more?

In the previous chapter we began to see that a sentence of command is not merely an indicative sentence. When the Torah commands us to do something, it is not merely revealing information about what God wants. An indicative sentence is neutral; it conveys information and nothing more. But a sentence of command contains something beyond information about God’s will. A command imposes an obligation. Reasoning too can bring us information that this is what ought to be done, or that this is what God wants from us. But when there is a verse of command, something is added beyond that information: a halakhic obligation is added.

It is important to understand that this is also true in the legal context. When the Knesset legislates some law, it is not merely giving us information that this is what ought to be done, but imposing on us a legal obligation as citizens. If I merely knew that the legislators very much wanted me to pay taxes, that would not suffice to create a legal obligation. Thus, in the act of legislation there is something beyond the transmission of information — it imposes an obligation. The same is true, with all due distinctions, of the command of a verse.

Reasoning can serve only as a substitute for a verse as a source of information, because it can bring that information to our attention even without a verse. It renders the verse unnecessary in terms of the information it contains — namely, that the act is proper or improper (and therefore, presumably, that the Holy One, blessed be He, expects us to do it or not do it). But reasoning cannot create a full halakhic obligation. When there is reasoning without a verse, the Holy One, blessed be He, expects us to do it, but one cannot say that He commands us to do it. Command exists only in a verse. The verse is the halakhic legislation itself.

In this chapter we will examine this principle in Maimonides’ conception of the meaning of verses of command.

Maimonides’ distinction between two kinds of negation[9]

In the eighth root, Maimonides deals with the distinction between two kinds of negation:

The eighth root is that it is not proper to count the negation of obligation together with a prohibition. Know that a prohibition is one of the two parts of command. For you command the one commanded either to do something or not to do it. Thus you command him to eat, saying to him, ‘Eat,’ or you command him to refrain from eating, saying to him, ‘Do not eat.’ In Arabic there is no single term that includes both of these meanings together. The logicians have already noted this and said: ‘Command and prohibition have no one term in Arabic that gathers them together.’ We were therefore forced to call both of them by one of their names, namely ‘command’… The term that includes them both together in Hebrew is ‘decree.’ Thus too the Sages called every commandment, whether positive or negative, a royal decree. But negation of obligation is something else entirely: it is when you deny a predicate of a subject, and there is nothing of command in it at all. When you say, ‘So-and-so did not eat yesterday,’ or ‘So-and-so did not drink the wine,’ or ‘Reuven is not Shimon’s father,’ and the like — all of this is the negation of obligation; there is not even a scent of command in it… Now the Hebrews most often express negation with the word ‘lo,’ the very word by which they also prohibit. They also negate with ‘ein’ and the pronominal forms attached to it, such as ‘eino,’ ‘einam,’ ‘einkhem,’ and the like. Yet negation in Hebrew is also expressed with ‘lo,’ as in: ‘No prophet arose again in Israel like Moses’; ‘God is not a man, that He should lie’; ‘Trouble shall not arise a second time’; ‘No man stood’; ‘He did not arise and did not move from it’; and many such examples… Thus the difference between prohibition and negation has been made clear to you.

We cited this in order to point out the sharp distinction Maimonides draws between a factual sentence, which conveys information about reality, and a sentence of command, which imposes an obligation.

Maimonides goes on there to explain that only a verse of command can enter the enumeration of the commandments, not indicative verses. Facts — even facts relating to God’s will — cannot be included in the count of the commandments. This means that a verse counted as a commandment not only conveys information about God’s will but commands us and thereby imposes an obligation. It adds the dimension of command to what in the previous chapter we called the substantive dimension of the commandment. An ordinary verse of command does two things: it gives us information (that this is proper and that this is God’s will) and it imposes an obligation. Reasoning does only the first of these two.

Content and command in every Torah-level commandment[10]

The ninth root in the introduction to Sefer HaMitzvot is divided into two parts. In the first part, Maimonides determines that if a certain commandment appears several times in the Torah, it is counted only once. In the second, he determines that a comprehensive prohibition — that is, a verse from which several different prohibitions are learned — is also counted only once. Rabbi Yeruham Perlow, in his essay on the ninth root (at the beginning of the first volume of his edition of Rav Saadiah Gaon’s Sefer HaMitzvot), was puzzled by Maimonides’ approach, because it seems internally contradictory. From the first part of the root it emerges, at first glance, that what determines the counting of commandments is the content of the commandment, whereas from the second part it appears that what determines matters is the existence of a verse. He remains there without resolution.

But the explanation seems simple: both are required. Maimonides’ criterion for defining a Torah-level commandment is twofold: there must be a verse of command concerning it (and therefore one command covering several acts counts as one commandment), and the act must have specific content that is desirable or forbidden (and therefore when one act with specific content is stated in several commands, it is still one commandment). This is what unifies the two parts of the ninth root and sketches the overall picture. The explanation is presumably what we saw above: the content is the substantive dimension of the commandment, and the verse adds the dimension of command. Only when both are present are we dealing with a Torah-level commandment.

The need for a verse of command in order for something to count as a commandment may explain a longstanding puzzle regarding Maimonides’ second root. As is well known, Maimonides rules there that laws learned through the hermeneutic principles are in the category of divrei sofrim, that is, rabbinic laws. I will not enter here into the full range of interpretations proposed for this statement of Maimonides, since I discussed it at length in the second part of my book Ru’aḥ HaMishpat. Here I will only say that from several places in his writings it appears clearly that he really means these are genuinely rabbinic laws. There I showed from many places in Maimonides’ writings that in his view the definition of ‘Torah law’ is as literal as its name suggests: what appears in the Torah, or at least what emerges from it through plain-sense interpretation (and not midrash). Plain-sense interpretation exposes what is in the verse itself; therefore, what is interpreted in that way is considered to be present in the written text itself. That is a Torah law because it is found in the text itself.

But in the second root Maimonides writes that laws derived from derashot are ‘like branches coming forth from the roots’ — that is, the derashot emerge from the verses. I explained there that according to Maimonides these laws are an expansion of the verses, not an exposure of what lies hidden within them. For Maimonides, the role of midrash is to expand the idea of the verse, not to expose what is already contained within it. Since according to him a Torah law is only a law written in the Torah or revealed from within it, expansions of what is written in a verse are not Torah laws. That is why, according to Maimonides, laws learned from derashot are not Torah laws. This is also why, in several places, even a halakhah le-Moshe mi-Sinai is treated by him as divrei sofrim (and its doubtful cases are treated leniently)[11] — because it too is not written in the Torah.

From this we can also understand what Maimonides writes in the introduction to Sefer HaMitzvot (at the end of the fourteenth root), that one does not receive lashes for a law learned from a derashah, because punishment is imposed only where there is prior warning. That is how Maimonides there interprets the principle punishments are not imposed on the basis of derivation, even though, as Nachmanides notes in his objections there, for most medieval authorities derivation there refers only to an a fortiori inference. For Maimonides, derivation means everything learned via hermeneutic principles and not written explicitly in the Torah. One does not punish for such a law because it is punishment without warning. Only what is written explicitly in the Torah or interpreted by the plain sense is a warning that permits punishment. It is worth recalling that in the language of the Sages, ‘warning’ means a prohibition; according to Maimonides, then, one does not punish because a law learned from derashah is not a Torah prohibition.

This picture connects with what we saw in his eighth and ninth roots: a Torah commandment is only a commandment that has its own unique content and its own command. When there is no command, even if there is content, it is not a Torah commandment. Therefore, if the command is learned from a derashah, it is not really a command, because it is not found in the content of a verse. A warning is only that which is written in the Torah itself or present within it.

Several shades of laws of the Sages: the law of doubt

In several places one can see that, in Maimonides’ view, the category of rabbinic laws (or divrei sofrim) is not uniform. Regarding halakhah le-Moshe mi-Sinai, one sees in several places that doubtful cases are treated leniently (see, for example, his commentary to the Mishnah, Kelim 17), whereas laws learned from derashot appear to be treated stringently in doubtful cases. In the second part of my book Ru’aḥ HaMishpat I proposed that according to Maimonides there is an entire continuum of levels of force between Torah law and rabbinic law. Here I will mention four of them: pure rabbinic law consists of enactments and decrees; after that come halakhah le-Moshe mi-Sinai and derashot, which are not truly Torah law but are also not ordinary rabbinic law; and after that comes what appears explicitly in the Torah, which is full Torah law.

I showed there^[12] that the laws of doubt do not apply equally to all these categories. A doubt involving halakhah le-Moshe mi-Sinai is treated leniently, like a rabbinic doubt. But a doubt involving derashot is treated stringently, like a Torah doubt. The explanation follows the reasoning of Rabbi Shimon Shkop and Rabbi Shlomo Zalman Auerbach in his commentary to Shev Shema’ta, first section, who wrote that according to Maimonides — who grounds all rabbinic laws in ‘do not deviate’ (see the beginning of the laws of rebels and the first root) — nevertheless a doubtful rabbinic case is treated leniently, because the force of rabbinic law rests on the duty to obey the Sages, not to depart from their words.[13] But if I am in doubt, then a possible rebellion is not rebellion. Rebellion exists only where there is a clear command and I fail to obey it. Therefore, in a doubtful rabbinic case, which is pure command, one is lenient.

We can now understand why a Torah doubt is treated stringently. As we have seen, every Torah law includes command and substance. When I am in doubt, the dimension of command disappears, for as we saw a doubtful command is not really a command (and therefore a doubtful act of rebellion is not rebellion). Thus the obligation to be stringent in a Torah doubt exists only because there is also doubt concerning the substance. If what lies before me is possibly forbidden fat and possibly permitted fat, I must be stringent because there is concern that it may really be forbidden fat. The command not to eat forbidden fat is not meaningful in a doubtful case, as explained. But when the prohibition is pure command, without substantive content, there is no obligation to be stringent in a case of doubt.

In my book I argued that halakhah le-Moshe mi-Sinai was not written in the Torah because it has no independent substance of its own (or at least no substance sufficiently important to be forbidden at the Torah level), and therefore it is pure command. Hence a doubt in a halakhah le-Moshe mi-Sinai is treated leniently, like a rabbinic doubt. By contrast, we saw above that according to Maimonides a derashah is not a warning; that is, the rule that emerges from it is a prohibition without command (for there is no explicit verse prohibiting it). The conclusion is that a law learned from derashah is substance without command, and therefore its doubtful cases are treated stringently, like a Torah doubt. In that way all of Maimonides’ laws of doubt fit together very well.

The law of doubt regarding laws grounded in reasoning

We thus find that every Torah law contains command and substance. If there is no command but there is substance, its doubtful cases are treated stringently like Torah law; if there is command but no substance, its doubtful cases are treated leniently. What, then, of a law derived from reasoning? We saw above that whether according to the Pnei Yehoshua or the Tzelach, such a law is Torah-level with respect to substance, but there is no command regarding it. According to our approach, its doubtful cases should therefore be treated stringently, but it is not an ordinary Torah law (and one would not punish for its violation, because there is no warning for it). Maimonides would call even this divrei sofrim, just as he would halakhah le-Moshe mi-Sinai. That does not mean an enactment or a decree, of course, but only that such a law branches from the written text without actually being present in it — exactly like a law learned from derashah. It is Torah substance without command. It may indeed be called divrei sofrim, but the intention certainly is not an enactment or a decree. As we explained, according to Maimonides it is not a Torah law because it is not present in the written text.

We can now understand that in the Berakhot passage the reasoning is the source of the law of blessings over benefit, and we explained that this means the rule is Torah in substance, not an enactment or decree. It has the substance of Torah law even though it lacks a command. We can now also see that the Pnei Yehoshua is correct in claiming that one should be stringent in a doubtful law grounded in reasoning, just as in an ordinary Torah doubt, for we have seen here that laws grounded in reasoning, like laws learned by derashah, are treated stringently in doubtful cases. On the other hand, the Tzelach is also correct in saying that this is not fully a Torah law, although his claim that in doubtful cases one need not be stringent is, according to our approach, incorrect. He assumes that the term ‘rabbinic’ is uniform, but as we have explained in Maimonides, that seems not to be so. That is also why above we had to explain that according to the Pnei Yehoshua, in a doubtful case of blessings one should indeed be stringent and bless again, but not with the formula established by the Sages (the Divine Name and kingship).

What remains to be explained is the view of the disciples of Rabbenu Yonah, who wrote that one who eats without a blessing is liable for a guilt-offering for misuse. We asked: where have we ever found that a prohibition of divrei sofrim (in essence, merely the neglect of a rabbinic positive obligation) requires an offering? Is that not unconsecrated slaughter in the Temple courtyard? These matters too are explained according to our approach. In my article mentioned above on the guilt-offering, I distinguished between a guilt-offering and a sin-offering. The sin-offering comes for defiance of command (when done inadvertently), whereas the guilt-offering comes for the sin itself, the substantive fault, even without any command at all. Therefore a guilt-offering comes both for intentional and unintentional wrongdoing, since the substantive damage occurred regardless of the question of guilt and defiance of command. The difference between inadvertent and intentional exists only in a sin-offering, because there the sin is tied to command and rebellion against it. Thus the guilt-offering of the betrothed maidservant comes even without a prohibition (there is no negative command regarding the one who has relations with her), and the guilt-offering for misuse also applies to misuse involving consecrated vows, though we do not find any command regarding that at all. Likewise, the disciples of Rabbenu Yonah obligate a guilt-offering for misuse for eating without a blessing, though there is no formal prohibition here. In that article I elaborated on this and showed it for all types of guilt-offerings. So this provides further support for our claim here: one who eats without a blessing has violated reasoning, and one who does so violates substance without command. Therefore he is liable for a guilt-offering, since a guilt-offering comes for substance without command. Such a guilt-offering is not unconsecrated slaughter in the Temple courtyard, even if no command has been transgressed. The guilt-offering is the sacrifice that completes the picture of prohibitions grounded in reasoning — that is, prohibitions for which there is no command.

Interim summary

We thus learn that an ordinary Torah law has substance (which can also be reached through reasoning or derashah) and command (which is introduced by a verse or by halakhah le-Moshe mi-Sinai). We saw that laws generated by reasoning where we have no verse concerning them divide into two kinds: reasonings that generate details within an existing commandment (such as the labor of bringing in on the Sabbath), which are Torah laws, because the general command covers the details within it; and reasonings that found novel laws (such as blessings over benefit), which occupy an intermediate position between Torah force and rabbinic force. Since there is no command prohibiting them, they differ from ordinary Torah laws. But the reasoning teaches that they have substantive content like ordinary Torah laws (unlike enactments and decrees, which are pure command, as the Netivot HaMishpat writes, and which rest on weak reasoning, in the language of the Shevut Yaakov). We have seen, however, that at least according to Maimonides no punishment is imposed on the basis of reasoning, because to punish we require a warning in the written text itself. A derashah or a reasoning, and even a halakhah le-Moshe mi-Sinai, are not enough for that. But we have seen that doubtful cases of such laws are treated stringently. I also noted that both the Pnei Yehoshua and the Tzelach could agree to all this, though they still dispute the law of doubtful cases in such laws. Analysis of Maimonides suggests that their doubtful cases are probably treated stringently, like the Pnei Yehoshua maintains.

We also saw that, at least according to Maimonides, punishment is not imposed for a transgression founded on reasoning. Even the Pnei Yehoshua does not necessarily say that reasoning is Torah-level in the full sense and that punishments may be imposed for it, for he speaks about the obligation to bless, not about punishable transgressions, and he discusses doubt rather than punishment. It is worth noting that this is precisely the approach of ordinary legal systems. Even if a person does something that should not be done, something that reasoning strongly rejects, one cannot punish him until there is a command — that is, a law — prohibiting it. That is the essence of a binding normative system. It demands obedience, not merely proper behavior. A legal system speaks only within a framework of enacted commands and prohibitions. Common sense and logic, which determine proper behavior, are left to each individual and do not by themselves bind on the legal or halakhic plane (though in heavenly law the situation is different, as we shall see below).

Rabbinic derashot are based on reasoning

When one examines the derashot of the Sages, one discovers that there cannot be a derashah with no reasoning at its base.[14] Take, for example, Rabbi Akiva’s expansive expositions of the word et. When we look at a verse such as ‘Honor your father and your mother,’ the rule is that something is included from the word et. How did the Sages decide (see Ketubot 103a and parallels) to include specifically one’s father’s wife, one’s mother’s husband, or one’s older brother (who is included from the conjunction ‘and’)? Why not one’s uncle, one’s neighbor, or the Throne of Glory? It is clear that the determination of what is included in each case rests on the expositor’s reasoning. That reasoning may be interpretive (what is most plausible to insert into the verse on textual grounds) or substantive (who is most fitting to honor). But in any case, the reasoning determines who is included by the verse.

What is the halakhic status of such a law? If the derashah includes the obligation to honor one’s father’s wife from the verse, then it can be seen as an interpretation of the verse. If so, it would be a Torah obligation, because the derashah reveals that this is what the verse meant. That is apparently how Nachmanides understood the matter in his objection to Maimonides’ second root. But according to Maimonides, who holds that laws learned from derashot are divrei sofrim because derash is an expansive tool and not a revelatory one, there is no interpretation here, and therefore it is not a Torah law.

This can be seen very clearly in Pesachim 22b (and parallels):

And the other one does not expound the particle et. As it was taught: Shimon HaAmsuni, and some say Neḥemiah HaAmsuni, used to expound every occurrence of the particle et in the Torah. When he reached ‘You shall fear the Lord your God,’ he withdrew. His students said to him: Rabbi, what will become of all the ets that you expounded? He said to them: just as I received reward for the exposition, so I receive reward for the withdrawal. Until Rabbi Akiva came and expounded: ‘You shall fear the Lord your God’ — to include Torah scholars.

Shimon HaAmsuni expounded all the occurrences of et in the Torah, but when he reached the verse ‘You shall fear the Lord your God,’ he could not find what to derive from it and therefore thought to abandon the entire rule of including from et, until Rabbi Akiva came and expounded it to include sages. Incidentally, the passage there makes it clear that Shimon HaAmsuni did not accept Rabbi Akiva’s proposal, for the Talmud there brings a tannaitic dispute whether one does expound et, and ties it to the dispute between Rabbi Akiva and Shimon HaAmsuni.

What troubled Shimon HaAmsuni specifically in this verse? Why, in the verse ‘Honor your father and your mother,’ was he willing to expound the ets so as to include one’s father’s wife and one’s mother’s husband? It is quite clear that here he could not find, by reasoning, anyone who could be compared to the Holy One, blessed be He. How could there possibly be anyone whom we are to fear as we fear God? As a result, he thought he would have to give up the entire rule of including from et. Rabbi Akiva told him that this rule obligates — perhaps by a halakhah le-Moshe mi-Sinai — and therefore in every case we must find what is closest, or least distant, and he proposes sages as that category. Once again we see that reasoning determines what is to be included, and according to Shimon HaAmsuni it even determines whether to include anything at all.

At the same time, we also see here the difference between pure reasoning and reasoning that guides a derashah. Pure reasoning on its own would not have brought us to an obligation to fear sages, for as Shimon HaAmsuni argued, fear is directed only toward the Holy One, blessed be He, and no one else can be compared to Him. But since there is a hermeneutic rule that requires us to include something from et, we are forced to identify what is included even though we have no substantive reasoning for such an obligation. We do not have reasoning that obligates fear of sages; what we do have is reasoning that says that if one must include someone, the least implausible candidate is sages. It is a combination of interpretive and substantive reasoning that ultimately yields the conclusion that the verse itself commands fear of sages. Therefore, for most medieval authorities, this would be a Torah law, despite the fact that its basis is seemingly reasoning. This is interpretive/derashah-guided reasoning that generates a detail within a commandment, not reasoning that founds a novel law. We saw, however, that according to Maimonides derashah is an expansive rather than revelatory tool, and therefore on his view the derashah in fact founds a new law. That is why, on his view, this is a law of divrei sofrim. But as I noted, that is not the view of most medieval authorities.

Needless to say, the very same pattern exists in other derashot as well, such as gezerah shavah or kelal u-perat. Gezerah shavah tells us that when we find two similar words in two halakhic contexts, we are to compare the two contexts. But in what respect are we to compare them? For example, where there is a gezerah shavah between a slave and a woman (see Ḥagigah 4a and parallels), should we say that one may enslave the woman as one does the slave? Or should we infer that one may have sexual relations with the slave as with a woman? The Sages do neither. Why not? We see that even where there is an instruction to compare slave and woman, the content of the comparison clearly depends on the reasoning of the expositor, and that reasoning determines what we infer from the comparison. This is certainly true when one expounds in the mode of ‘derive from it and from itself, and leave it in its own place’ and the like, and I will not elaborate further. The hermeneutic principles instruct us to perform a derashah and what kind of derashah to perform, but reasoning always determines its content and result.

Note: the role of command in the service of God[15]

To conclude this chapter, I would like to point out from another angle the centrality of command in the service of God and the fulfillment of His commandments. We have seen that reasoning points to the substantive benefit in a commandment (or the substantive harm in a transgression), but that alone does not fully obligate, and certainly does not amount to complete service of God. The service of God necessarily includes a dimension of responding to command; this is the ‘yoke of commandments.’ Command is the essential component in the service of God. A person can perform the acts of a commandment without any command, merely from reasoning, but then he is not serving God; he is simply doing the right thing.

• A gentile who observes the seven commandments on the basis of reasoning:

Here one is naturally led to cite Maimonides at the end of the eighth chapter of the laws of kings, where he writes:

Anyone who accepts the seven commandments and is careful to observe them is one of the pious among the nations of the world and has a share in the world to come — provided that he accepts them and does them because the Holy One, blessed be He, commanded them in the Torah and informed us through Moses our teacher that the Noahides had already been commanded in them. But if he does them because reason has decided in their favor, he is not a resident alien and is not one of the pious among the nations of the world, but rather one of their wise men.

Maimonides distinguishes here between a person who performs the commandments out of rational judgment and one who performs them because God commanded them. The former is wise, but not pious. Perhaps one can translate the distinction as follows: he certainly performs a correct act, because his actions have spiritual or social benefit, but he is not serving God — that is, his act lacks full religious value. Full religious value belongs only to one who acts out of obedience to command. That is the essence of why a verse is needed beyond reasoning.

• Even idolatry is incomplete without acceptance of authority

It is worth adding here the ruling of Maimonides in the laws of idolatry 3:6:[16]

One who worships idolatry out of love — for example, because he is attracted to this image because its workmanship is especially beautiful — or who worships it out of fear of it, lest it harm him, as its worshipers imagine that it benefits and harms: if he accepted it upon himself as a god, he is liable to stoning. But if he worshiped it in its normal mode of worship, or by one of the four modes of worship, out of love or fear, he is exempt.

Maimonides rules that idolatry is only worship that is done out of accepting the idol as a god. If a person acts out of love for the form or out of fear that it will harm him if he does not bow to it, that is not complete idolatry.

The source of these words is the passage in Sanhedrin 61, where Abaye and Rava disagree on this issue. Most medieval authorities are troubled by Rava, who exempts such a person, for love and fear are the most basic motivations of religious service. Why should idolatry done out of love and fear be exempt from punishment? What could be more cultic than an idolater who directs his most basic powers — love and fear — toward an idol rather than toward the Holy One, blessed be He? The common interpretation among the medieval authorities is therefore the Raavad’s explanation here: ‘And we explain it as done out of love of a person and fear of a person, not out of love of idolatry and fear of it.’ That is, Rava is speaking of idolatry done out of love or fear of a human being, not of the idol. According to him, and according to most medieval authorities, idolatry done out of love or fear of the idol is full-fledged idolatry.

In Maimonides’ view, religious service — whether directed to the Holy One, blessed be He, or, by contrast, to an idol — is service rooted in accepting something as a god. Service rooted in love or fear is not acceptance of divinity, because those are motivations that place the human being at the center: I do these things because of my feelings. Acceptance of a god, by contrast, is unconditional commitment. Whatever God says, I do, whether I love Him or fear Him or not. By virtue of being God, His commands bind me. Only such service is full religious service, whether toward the Holy One, blessed be He, or toward a foreign idol.

Once again we see the centrality of commitment in the service of God, and such commitment is created in relation to commands. What marks religious service as religious is unconditional response to command. Therefore the command is the essential element in the service of God, and as we have seen, at least according to Maimonides, without command the law is not of Torah status.

• D. Prohibitions grounded in reasoning for a minor, and their liability under heavenly law^[17]

Introduction

Up to this point we have seen that reasoning does not have full halakhic status. Therefore, even if one may treat it as a Torah transgression or commandment, it nevertheless seems that earthly punishment is not imposed for transgressions founded on reasoning. In heavenly law, however, the situation appears to be different. The Holy One, blessed be He, does expect us to fulfill obligations grounded in reasoning, and even punishes for such transgressions. I will now present several examples and proofs of this point.

The obligation of minors in commandments to which reason inclines

Several later authorities point to an apparent contradiction concerning a minor who commits a transgression. With regard to a minor who has relations with an animal, the Mishnah in Sanhedrin (54a) states:

One who has intercourse with a male or with an animal, and a woman who brings an animal to herself — they are punished by stoning. If a person sinned, what did the animal sin? Rather, because a person came to stumbling through it, therefore Scripture said: it shall be stoned. Another explanation: so that an animal should not pass through the marketplace and people say, ‘This is the one because of which so-and-so was stoned.’

And there, on Sanhedrin 55b:

Rav Yosef said: come and hear: a girl of three years and one day old… and if one of all the forbidden relations stated in the Torah has intercourse with her, they are executed because of her, while she is exempt. ‘One of all the forbidden relations’ — even an animal. But here, where disgrace exists but stumbling does not exist, and yet it teaches: they are executed because of her! — Since she acted deliberately, stumbling too exists, and it is only that the Merciful One had pity on her. On her He had pity; on the animal He did not have pity.

The rationale of takalah means that if a person stumbled into sin through the animal, the animal is put to death. Kelon is concern for the honor of the one who sinned with it. Now, the Talmud determines regarding an animal with which a boy or girl had relations that there is also stumbling here. This implies that when a minor transgresses, the act is defined as a transgression.

By contrast, in Yevamot 36a, discussing the rule that one prohibition cannot take effect where another already applies, we read: ‘An outsider who served on the Sabbath — for example, where he brought forth two pubic hairs on the Sabbath, so that outsider-service and Sabbath took effect together.’ The case is a minor who is not a priest and who entered the Temple and offered sacrifices on the Sabbath. He violates two prohibitions: service by a non-priest, and labor on the Sabbath. If he brought forth two pubic hairs in the middle of the Sabbath, then the prohibition of Sabbath and the prohibition of outsider service take effect simultaneously. Several later authorities infer from this that before he brought forth the signs of adulthood, while still a minor, there was no prohibition upon him, and they ask from the passage in Sanhedrin about takalah and kelon, where it seems that even a minor who transgresses is under prohibition.

Almost all of them offer the same style of resolution.[18] They distinguish between prohibitions that also bind Noahides and prohibitions that bind only Israel. In their view, all commandments that bind Noahides obviously bind even a Jewish minor; therefore in the Sanhedrin passage, where the discussion concerns bestiality, the assumption is that even a minor is obligated. But in the Yevamot passage the discussion concerns prohibitions that bind only Jews (Sabbath and Temple service by a non-priest), and therefore the assumption there is that a minor is not obligated in them.

This involves a major halakhic innovation: contrary to the general halakhic rule that all commandments bind only adults, it follows from here that laws binding Noahides also bind minors. The rationale offered rests on two premises:

• The words of the Ḥatam Sofer (Yoreh De’ah responsa 317 and 184), according to whom a gentile’s obligations begin from the age at which he understands his duty, and not from the formal halakhic age of adulthood.
• The Talmudic statement in Sanhedrin 59a, there is nothing permitted to Israel that is forbidden to a Noahide.

From these two premises follows the conclusion that if Noahides are obligated regarding bestiality from the moment they understand the prohibition and their duty in relation to it, then Israelites cannot be less than Noahides. Therefore even a Jewish minor, at least once he has reached the age of understanding, is forbidden to have relations with an animal.

From this consideration it follows that all Noahide commandments have a basis in reasoning, and therefore every commandment grounded in reasoning binds Noahides as well (see the words of Rabbi Nissim Gaon cited above). In such duties, Israel too is obligated from the age at which the child understands his duty, not from the age of legal adulthood — exactly as with Noahides. Only halakhic duties whose basis is a command in a verse are limited by the age boundaries set by the Torah (two pubic hairs, or the age of thirteen).

Extending this to minors’ obligations in all Noahide commandments

In our book on Analysis of Concepts we noted that beyond the formal proof based on the comparison between Israel and Noahides, there is also a substantive claim here: within every Israelite there is, as it were, also a Noahide. Therefore every Jew is also obligated in the obligations of a gentile. This is the meaning of the passage in Sanhedrin 59, ‘there is nothing permitted to Israel that is forbidden to a Noahide,’ cited above. It cannot be that a Noahide is obligated in something while an Israelite is not, for every Israelite contains within himself a Noahide, in the sense that ‘two hundred certainly includes one hundred.’

But in light of our discussion here, one can extend this to all Noahide commandments. Maimonides writes at the beginning of the ninth chapter of the laws of kings:

Adam was commanded concerning six matters: idolatry, blasphemy, murder, forbidden sexual relations, theft, and establishing laws. Although all of them are a received tradition from Moses our teacher, reason inclines toward them, and from the words of the Torah it appears that he was commanded regarding these…

Maimonides says that the Noahide commandments were commanded, but that reason inclines to them — that is, there is also reasoning at their basis. According to this, it is obvious why no threshold age was fixed for obligation among Noahides, for in commandments rooted in reasoning what matters is understanding. Hence, even when we consider a Jew, in commandments in which Noahides are obligated there is no threshold age, for in duties grounded in reasoning anyone who understands the reasoning that underlies the obligation is bound.

But there is no command upon minors even in these commandments, and therefore it is quite clear that the intention is not that minors be punished for them by a court. Rather, they commit a prohibition while still minors, and it is likely that they will also have punishment in heavenly law for such a prohibition. But in earthly courts we do not find punishments below the age of commandments. We thus learn that prohibitions grounded in reasoning do not generate punishment by a court, but they are indeed prohibited, and perhaps even punishable in heavenly law.

The binding force of an oath

Another clear example that can be brought for this principle is the obligation of an oath. Maimonides writes in the laws of claims and admissions 5:10:

My teachers ruled that one does not swear a Torah oath in response to the claim of a minor, but one does swear a rabbinic oath of inducement. Even if he is a minor who is not sharp in matters of business dealings, one swears the inducement oath on his claim, so that no one take his money while he is a minor and walk away with it for nothing. And this seems correct to me, and it is for the repair of the world. Thus you learn that when a minor makes a claim against an adult, whether the adult admits part, denies all, whether there is a witness there or not, he must swear the inducement oath. But he cannot reverse the oath onto the minor, for we never administer an oath to a minor at all; even a general ban he does not accept, because he does not know the punishment for an oath.

In principle a minor is not a legal entity, but the Sages ordained that one swears a rabbinic oath in response to his claim so that no one should take his money while he is a minor and walk away. The reason Maimonides gives at the end, ‘because he does not know the punishment of an oath,’ is apparently very puzzling, for a minor is not punishable at all. If anything, Maimonides should have said that with a clever minor one should be even more careful not to administer an oath, because he knows that there is no punishment for him, since minors are not punished.

It seems that Maimonides assumes that keeping an oath is a social-moral obligation grounded in reasoning, and therefore it obligates every human being — both a Noahide and a minor — even if he was not commanded about it. That is why Maimonides writes that there is indeed punishment for an oath (only in heavenly law, of course), but since he is a minor there is concern that he does not know or understand its severity, and therefore one should not administer it to him.

It seems that Maimonides’ view here has an ancestral source in the words of his father’s teacher, Rabbi Yosef ibn Migash. These words are written regarding the question whether an oath committed to writing is binding. As is well known, this was the subject of a major dispute among later authorities. In the responsum Avnei Nezer, Yoreh De’ah no. 306, sec. 15, he cites the language of Rabbi Yosef ibn Migash’s responsum on this matter:

If he wrote in his own handwriting an oath and gave him his written document, he is obligated to uphold what he swore, even though he did not utter the oath with his mouth. If he did not uphold it, his judgment is handed over to heaven. But no earthly court can obligate him in anything, since he did not utter the oath with his mouth.

Rabbi Yosef ibn Migash explains that a written oath is binding, but there is no punishment for it by a court, only punishment from heaven. Immediately thereafter the Avnei Nezer explains these words as follows (there, secs. 16–17):

16) It seems that the Mishneh LaMelekh was troubled in chapter 10, halakhah 7 of the laws of kings, regarding the oaths before the giving of the Torah — Abraham and Isaac to Abimelech, Esau to Jacob, Eliezer to Abraham. For an oath is not among the seven commandments commanded to the Noahides. And I have a further difficulty regarding the oath at Sinai, which is the foundation of acceptance of the Torah: before they accepted the Torah, they had not yet been commanded concerning oaths. Moreover, even if they had been commanded, the entire force of an oath is only because of the command ‘he shall not profane his word.’ But how is this warning any different from the other warnings of the Torah? And what extra force does an oath add to the Torah’s warnings, since the oath too is only a warning? 17) Therefore it seems clear that one who swears to another person — reasoning itself compels that he is obligated to fulfill it, and no warning is needed for this at all. That is the case with the oaths of Abraham and Isaac and Eliezer, and so too one who swears to the Holy One, blessed be He. But one who swears to himself that he will or will not do something — here there is no reasoning, for to whom has he obligated himself? If you say to the Holy One, blessed be He — from where do we know that the Holy One desires this obligation or this prohibition? For this the Torah had to command, ‘He shall not profane his word; according to whatever comes out of his mouth he shall do.’ This also explains the oath at Sinai, where they swore to the Holy One, blessed be He, to uphold His commandments — and this is on the basis of reasoning. But for the obligation that arises from reasoning we do not find anywhere in the Torah any punishment by an earthly court. This now explains the words of Rabbi Yosef ibn Migash: regarding oaths before the giving of the Torah, Scripture does not mention ‘utterance of the lips’ nor ‘his word.’ Therefore there is no difference between by mouth and in writing. Hence if one swears to his fellow in writing and gives him the written document, he is obligated to fulfill it. But an earthly court does not punish him, since there is no negative command and we do not find any punishment by an earthly court in such a case.

The Avnei Nezer proves that the obligation to keep an oath does not arise from the Torah’s command, because there were oaths before the giving of the Torah. Israel even swore, at Sinai, to uphold the Torah itself, and surely the obligation to keep that oath could not have emerged from the Torah that was only then being accepted. It is a human-moral obligation that existed before command. The command adds to it a religious layer, which pertains mainly to commitments that are not toward another person. Hence a written oath is binding, but not by virtue of halakhah. And therefore there is no punishment for a false oath made in writing by an earthly court.

Rabbi Yosef ibn Migash is thus a source from which Maimonides could have learned that an oath is a moral obligation grounded in reasoning. It certainly binds Noahides, minors, and anyone who understands that reasoning. Once again we see here that obligations based on prohibitions whose foundation is reasoning, without command, are matters of heavenly law only.

• E. Obligations whose source is the will of God

Introduction

We have seen that the Talmud treats reasoning as an alternative source to a verse. We explained that reasoning is the source of the substantive dimension of a commandment, while the verse adds the dimension of command. In this chapter I will describe another type of reasoning, one with a somewhat different status: duties that are God’s will, as distinct from duties learned from substantive reasoning.

The will of God

Elsewhere[19] I distinguished between two kinds of sources that operate through reasoning: substantive reasoning and the will of God. Substantive reasoning is the subject of this article. These are reasonings that clarify that certain acts have value and benefit and therefore it is important to do them, or that they contain damage and defect and therefore should not be done. Up to here we have dealt with the status of obligations that emerge from such reasonings. But there are also situations in which, although we do not understand what value the act has, it is clear to us by reasoning that this is God’s will. Here there is an obligation — not necessarily a halakhic one — to carry it out without command, and also without a reasoning that gives understanding, solely because this is God’s will.

Rabbi Elchanan Wasserman, in his Kuntres Divrei Sofrim (no. 1, sec. 23), writes:

In this way one can perhaps explain the intent of the verse in Jeremiah 19:5: ‘And they built the high places of Baal, to burn their sons in fire as burnt offerings to Baal, which I did not command, nor did I speak, nor did it arise upon My heart.’ The Targum explains it as: ‘which I did not command in My Torah, which I did not send through My servant the prophets, and which was not My will.’ Thus this verse explicitly sets out three categories of Torah: (a) what is called command; (b) what is called speech; (c) that regarding which there is neither command nor speech, but only the will of God — and these are all the rabbinic commandments, as explained above.

In that article of mine I explained these words somewhat differently from him. According to our approach, there are here three categories in the service of God: commandments, unwritten duties (reasoning), and God’s will. I showed there that this is the case with the measure of separating terumah (one-sixtieth, one-fiftieth, one-fortieth). At least according to Maimonides, it emerges clearly that these measures are of Torah status, even though according to the core Torah law one grain of wheat discharges the entire pile. I explained there that it is God’s will that we separate more than one grain, and therefore there is an obligation grounded in reasoning — but the reasoning does not mean that we understand why it is proper to do so. This is a different kind of reasoning, because we have interpretive or other indications that this is what the Holy One, blessed be He, wants us to do. This is reasoning of the type called ‘the will of God.’

A source from Mesillat Yesharim

In that article I brought proofs and further explanation of the matter of God’s will; the reader may take them from there. Here I will only cite the source for this type of obligation from the Ramchal’s Mesillat Yesharim, in his explanation of the trait of piety (chapter 18), where he writes:

Behold, the root of piety is what our Sages said: happy is the person whose labor is in Torah and who gives satisfaction to his Creator. The matter is this: the commandments imposed on all Israel are already known, and their obligation is known as far as it extends. But one who truly loves the Creator, blessed be His Name, will not strive merely to exempt himself with what is already publicized as the obligation that rests on all Israel generally. Rather, it will happen to him as happens to a son who loves his father: if his father reveals even slightly that he wants something, that son will increase in that matter and in that deed as much as he can. Even if his father said it only once and only half-spoke it, that is enough for the son to understand where his father’s mind inclines, so as to do for him even what he did not say explicitly, once he can judge on his own that the matter would give his father pleasure; he will not wait for him to command more explicitly or say it again. We see this with our own eyes at all times and every hour, between every lover and friend, between husband and wife, between father and son. In sum: among all people whose love for each other is truly strong, none will say, ‘I was not commanded further; what I was explicitly commanded is enough for me.’ Rather, from what he was commanded he infers the mind of the commander and strives to do for him whatever he can judge will give him pleasure. So too will it happen to one who loves his Creator with faithful love. Since he too belongs to the category of lovers, the commandments with which we were openly and clearly commanded will serve him only as a disclosure of intent, so that he may know in what direction His blessed will and desire incline. Then he will not say, ‘What is explicitly stated is enough for me,’ or ‘I will exempt myself with what is in any case imposed upon me.’ On the contrary, he will say: since I have already seen that His blessed desire inclines in this direction, this will be to me like eyes to increase in this matter and broaden it in every direction that I can judge His blessed will desires. This is what is called giving satisfaction to one’s Creator…

It should be noted that the Ramchal is not speaking here about duties grounded in substantive reasoning, but about duties toward the Holy One, blessed be He, whose basis is not command but understanding that this is His will, and whose fulfillment is not because we understand that this is the correct form of conduct, but because we have understood that this is His will.

It is important to understand that this does not contradict what we said in the previous chapters. There we saw that without command the duty is not a full halakhic duty. In heavenly law one may perhaps be called to account for such duties, but there is no full halakhic prohibition here, and certainly no liability to punishment by a court. The same can be seen here: fulfilling such duties is part of the trait of piety, not part of binding halakhah. As we saw in the previous chapter, the question of piety is relevant mainly to heavenly law, not to Torah law in the sense adjudicated by a court.

• F. The reasons for omitting command in duties grounded in reasoning

Introduction

We have seen that every command in the Torah also has a rationale. We have also seen that reasoning never fully takes the place of the verse, since if there is reasoning without a verse, then the commandment learned from it has only a substantive dimension and lacks the dimension of command. Such a commandment cannot be regarded as a Torah commandment in the full sense. This raises the question why there are nevertheless duties that Scripture does not command and instead leaves to reasoning. We must also discuss the status of such duties. In this chapter we will see two possible explanations for the absence of command, and at the end I will comment on the halakhic status of duties of these two types.

Foundational duties and duties that must arise from initiative from below

The duties with which we will deal in this chapter are duties that emerge from reasoning and for which there is no verse that commands them. But in these cases the absence of a verse does not stem from the fact that they are insufficiently fundamental and compelling to enter the system of Torah commandments (‘weak reasoning’), but because they are too fundamental. Because of their fundamental nature, it is not appropriate to place such a duty among the 613 commands; were the Torah to command it, it would diminish it and turn it into just another ordinary commandment among the 613. The special status of such a duty would be harmed by introducing it into the system of commandments, and therefore in such cases the Torah chose not to command it in a verse but to leave it to reasoning. Another kind of duty must be done through initiative from below — that is, out of our own motivation and not as a response to command. In that type, the command would damage the fulfillment of the commandment, and therefore the Torah did not command it.

In this chapter I will discuss these two types through four examples. At the end I will comment on the halakhic status of both kinds of duty and through that return again to blessings over benefit.

1. Character refinement

Rabbi Ḥayyim Vital, at the beginning of his book Sha’arei Kedushah, asks why character refinement was not included among the 613 commandments.[21] He answers that the duty to refine one’s traits is even more fundamental than a commandment:

The matter of character traits is implanted in a person in the lower soul, called the ‘elemental’ soul, which is composed of four aspects: the inanimate, the vegetative, the animal, and the speaking. For these too are composed of good and evil. And in this soul the good and bad character traits are dependent, and they are the throne, foundation, and root of the higher rational soul, to which the 613 commandments of the Torah are attached, as mentioned above in the first gate. Therefore the traits are not included among the 613 commandments; rather, they are essential preparations for the 613 commandments, whether in fulfilling them or nullifying them, because the rational soul has no power to fulfill the commandments through the body’s 613 limbs except by means of the elemental soul, which is attached to the body itself, in the secret of the verse, ‘For the life of all flesh — its blood is in its life.’ Therefore bad character traits are far, far worse than the transgressions themselves.

In freer language, according to Rabbi Ḥayyim Vital, if a person does not understand this duty on his own, there is no point commanding him. Character refinement is the basis of one’s being a subject of command, and therefore it is not correct — indeed not possible — to command it. Commands are addressed to refined people, and one cannot command a person to become refined.

Rabbi Kook, in his letters, takes the matter one step further (Iggerot HaRe’iyah, vol. 1, p. 97):

Know further that the vision of the powers that develop toward goodness and light through the power of Torah proceeds on a spectrum: how much ought to flow from the force of law and judgment, and how much ought to flow specifically from goodness of heart and inner consent, without any pressure at all, even moral pressure. This is the basis of why we always connect the covenant of the fathers with all the most essential things, and why the covenant of the Land of Israel is joined with the strength of the fathers’ inheritance and the acceptance of the Torah. The fathers, however, fulfilled the Torah מתוך inner and free recognition, and this advantage ought not to be lacking from a large part of moral reality. This is the basis of those hidden areas that emerge specifically as traits of piety and beyond the letter of the law; for if they came as binding halakhah they would blur the established guidance that must continue to go and shine for all generations and to be a light to nations and many peoples according to their very different spiritual levels. For the moral element that must exist as generosity and love of kindness must always retain a known measure according to the overall positive moral value, like the value of free air in relation to the buildings and cultural deeds that fill it, which cannot fail to leave a very broad space for it. And what ought to attach itself through generosity of spirit and freedom of good will must be marked as piety. One cannot estimate how great the loss human culture would have suffered had these lofty traits been fixed as binding obligations; for only what is more necessary for material and moral life in the present, and whose weakening would affect the rooting of the future, enters the category of warning and of ‘greater is one who is commanded and does.’ But what reaches the depth of the good by standing and spreading like a dew of revival for the days to come, without harming its tenderness and absorbency toward the whole purpose of future elevation, merited to be fixed as generosity and love of kindness — that is the destiny of what is ‘beyond the letter of the law,’ which will greatly benefit the time when the heart of stone of human beings will be turned into a heart of flesh. Therefore that portion which remains beyond the letter of the law must remain in its measure, and as humanity rises, the traits of piety will emerge from the private domain into the public domain and become the possession of the whole people: ‘And all your children shall be taught of the Lord.’

We mentioned above the statement of the Sages that greater is one who is commanded and does, even though simple intuition suggests that greater is one who is not commanded. Rabbi Kook argues here that there are matters in which that simple intuition is still correct — that is, cases in which greater is one who is not commanded and does — such as moral refinement. Therefore the Torah deliberately left such matters outside the framework of halakhic command, so that we could do them as one who is not commanded and does. The Torah chose not to command them in order to allow us to do them out of an understanding of their importance — through initiative from below — and not out of obligation and obedience to command.[22]

The meaning of this is that, in character refinement, the Torah relinquished the dimension of obedience so that the substantive dimension would not be harmed. In truth, if there had been a command concerning character refinement, it would have destroyed that spiritual and psychological labor, and therefore the Torah does not command it. Here the Torah is satisfied with reasoning that reveals the substantive dimension and does not add the dimension of command — but not because command is unnecessary (‘why do I need a verse? It is reasoning’), but because command would have been damaging to the fulfillment of the matter.

Character refinement belongs to both types of duty that we listed at the start of the chapter. Command would damage it because initiative from below is important; but character refinement is also a foundational duty that serves as the basis for the service of God in general.

2. The commandment of repentance

Nachmanides, in his commentary to Deuteronomy (at the beginning of chapter 30), states that there is a commandment to repent.[23] This commandment is learned from the verse ‘and you shall return to the Lord your God.’ By contrast, Maimonides in the laws of repentance (7:5) writes that this verse is a promise from the Holy One, blessed be He, that Israel will eventually repent. Does Maimonides also hold that there is a commandment to repent?

The Minḥat Ḥinukh (commandment 364) and other later authorities point to an apparent contradiction in Maimonides on this issue.

In Sefer HaMitzvot (positive commandment 73), Maimonides writes: ‘that He commanded us to confess the sins and iniquities that we have committed before God, exalted be He, and to state them together with repentance.’ There is no command here to repent. Confession is presented as a conditional commandment: if a person repents, he must confess together with the repentance (and in the sacrificial context, together with bringing the offering). But repentance itself is not presented as a commandment. From this the Minḥat Ḥinukh concludes that if a person sins and does not repent, he is not punished for failing to repent; he is punished only for the original transgression.

In apparent contrast to all this, in the list of commandments before the laws of repentance, Maimonides writes as follows: ‘one positive commandment: that the sinner return from his sin before the Lord and confess.’ This seems to indicate that a person who has sinned is commanded to return from his evil ways, and in addition is commanded to confess. Here repentance is presented as a positive commandment, comprising two elements: to repent and to confess.

Various explanations have been offered for Maimonides’ view, but in my opinion they do not heal this contradiction. I would like to propose a different direction, based on an understanding of the purpose of Sefer HaMitzvot and of the nature of repentance. We saw above that Maimonides includes in his enumeration only commandments for which there is an explicit command in the Torah. But commandments learned from derashah, from reasoning, or from halakhah le-Moshe mi-Sinai are not counted by him. Thus there can be duties that are not mentioned in Sefer HaMitzvot because there is no command concerning them, but that does not mean that there is no obligation to do them.

Is there an explicit command in the Torah regarding repentance? We already saw above that according to Maimonides the verse ‘and you shall return to the Lord your God’ is a promise and not a command. Nevertheless, in the Mishneh Torah Maimonides presents the duty to repent as a full obligation. The solution, then, is that there is indeed an obligation, but its source is reasoning and not Scripture; therefore it does not appear in Sefer HaMitzvot, because in his view, without command it is not a Torah commandment. By contrast, in the Mishneh Torah, Maimonides presents all of our halakhic obligations — whether from the Torah, from derashah, from rabbinic law, from custom, or from reasoning — and therefore the duty to repent appears there as well.

We thus learn that, at least according to Maimonides, the duty to repent is grounded in reasoning. If the Holy One, blessed be He, indeed created for us a path by which we can return to Him and atone for our sins, then by simple reasoning it is obvious that we should use it (see the midrash brought at the beginning of Rabbi Yonah’s Sha’arei Teshuvah, about the tunnel dug out of the prison, through which every prisoner ought to escape).

Thus repentance is not a commandment in the full halakhic sense, because we have no command about it. On the other hand, we are certainly expected to do it on the basis of reasoning. This also seems to explain why, in the laws of repentance, Maimonides does not suffice with detailing the laws, but also describes the process of repentance, waxes eloquent on the greatness of the penitent (see there 7:4–6 and elsewhere), and even discusses free choice (chapters 5–6), which underlies the possibility and duty of repentance. In Maimonides’ other halakhic compilations we do not find this sort of writing. Presumably all this is intended to persuade us that one should repent, and that it is important and possible to do so. The reason that in his halakhic code Maimonides tries to persuade us to repent — something he does not ordinarily do with other commandments — is that repentance has no command in the Torah. It is founded on reasoning, and even so we are expected to do it. Therefore he must persuade us and provide reasons why repentance should be done.

Usually, the absence of command regarding halakhic duties stems from the fact that they are not sufficiently important to be included in Torah law. But in this chapter we are dealing with commandments whose lack of command stems precisely from their great importance and fundamental character. It turns out that there are commandments that are foundations in the service of God, and precisely because of that the Torah is careful not to command us concerning them, so that we will do them out of our own understanding and not merely as a response to command. Repentance too is a duty that should be done through initiative from below, and command would damage that; therefore it belongs to the second type of duty that we listed at the beginning of the chapter.[24]

3. The commandment of Torah study

We learned in tractate Menachot (99b):

Rabbi Ami said: from the words of Rabbi Yosei (regarding the showbread) we may learn that even if a person studied only one chapter in the morning and one chapter in the evening, he has fulfilled the commandment of ‘this book of the Torah shall not depart from your mouth.’ Rabbi Yoḥanan said משום Rabbi Shimon bar Yoḥai: even if a person recited only Shema morning and evening, he has fulfilled ‘it shall not depart,’ and this matter may not be said in the presence of the ignorant. But Rava said: it is a commandment to say it in the presence of the ignorant. Ben Dama, the son of Rabbi Ishmael’s sister, asked Rabbi Ishmael: such as I, who have learned the entire Torah — what is the law regarding learning Greek wisdom? He recited concerning him this verse: ‘This book of the Torah shall not depart from your mouth, and you shall meditate on it day and night’; go and find an hour that is neither day nor night, and learn Greek wisdom then. And this disagrees with Rabbi Shmuel bar Naḥmani, for Rabbi Shmuel bar Naḥmani said in the name of Rabbi Yonatan: this verse is neither an obligation nor a commandment, but a blessing. The Holy One, blessed be He, saw Joshua, that words of Torah were especially beloved to him, as it is said: ‘And his servant Joshua son of Nun, a youth, would not depart from the tent.’ The Holy One, blessed be He, said to him: Joshua, are words of Torah so beloved to you? ‘This book of the Torah shall not depart from your mouth.’ It was taught in the school of Rabbi Ishmael: words of Torah should not be an obligation upon you, but you are not permitted to exempt yourself from them.

• Rabbi Shimon bar Yohai’s view was translated into Jewish law in the laws of oaths, in the passage in Nedarim 8a:

And Rav Giddel said in the name of Rav: one who says, ‘I will rise early and study this chapter, I will study this tractate’ — he has vowed a great vow to the God of Israel. But is he not already sworn and standing? … This teaches us that since, if he wished, he could exempt himself by reciting Shema morning and evening, therefore the oath takes effect upon him.

It is clear from here that in order to discharge the obligation of the commandment of Torah study, the recitation of Shema morning and evening suffices, and anything beyond that is optional, so that an oath can take effect upon it. That is also how the commentator there understood the matter, writing: ‘Since, if he wished, he could exempt himself by reciting Shema morning and evening — for once he recited Shema morning and evening, he has fulfilled “it shall not depart,” as Rabbi Shimon bar Yoḥai said in tractate Menachot (99b): whoever recites Shema morning and evening has thereby fulfilled the commandment of “it shall not depart.”’ The Ran there innovated that an oath can take effect upon obligations learned from derashah (‘and you shall teach them diligently’ — that the words of Torah should be sharp in your mouth),[25] but he too agrees that to discharge the Torah commandment, Shema morning and evening is enough.

This is very puzzling. Torah study is accepted as one of the most important commandments of all, and the Mishnah at the beginning of Pe’ah states, ‘Torah study is equivalent to all of them.’ It is also difficult to understand how the verse ‘and you shall meditate on it day and night’ can be interpreted as referring only to Shema morning and evening. Plainly, it means studying all day and all night. More broadly, according to this it is unclear what the concept of bitul Torah means. If there is really no obligation to study, then for what are we held accountable when people speak of neglect of Torah study?[26] According to the Ran, that concept belongs at least to obligations learned by derashah (‘and you shall teach them diligently’), but according to the commentator and the plain sense of the Talmud, this is very difficult.

If we return to the beginning of the passage in Menachot 99b, we see that Rabbi Shimon bar Yohai is careful to empty the commandment of content almost entirely. If Rabbi Ami infers from Rabbi Yosei that one chapter in the morning and one in the evening suffices, Rabbi Yoḥanan in the name of Rabbi Shimon bar Yohai says that even this is unnecessary: the recitation of Shema, which in any case one is commanded to recite, is enough. Let us now examine the course of the passage in Menachot, which as a whole revolves around the principle that views Torah study as a commandment grounded in reasoning.

• Torah study and the commandment of Torah study are distinct

According to our proposal, Rabbi Shimon bar Yohai means to say that Torah study is not identical with the formal commandment of Torah study. As far as the formal commandment of Torah study is concerned, it is enough to discharge one’s duty through Shema morning and evening. But Torah study itself should be done not because of command, but because of an understanding of the importance and foundational nature of Torah. That is why he insists on emptying the commandment of practical content, so that we may fulfill it as one who is not commanded and does, and not by force of command, as we saw above regarding character refinement and repentance.

This resolves the three difficulties we raised above regarding the passage in Nedarim. Indeed, Torah study is equivalent to them all — but that refers to Torah study itself, not to the formal commandment of Torah study. This also clarifies the verse ‘and you shall meditate on it day and night,’ which in fact tells us two things: (1) the formal law, which instructs us to study in the morning and the evening, is satisfied by Shema morning and evening; (2) beyond that, there is an obligation to study literally day and night, but not by virtue of command. The first law is the content of the command in the verse, whereas the second part is informative: it teaches us the fact that this is God’s will and that this is what reason says one ought to do. Now the meaning of the concept bitul Torah, which was unclear above, is also plain. In terms of formal obligation, there is no neglect of Torah study, for Shema morning and evening suffice. But in terms of the obligation grounded in reasoning, one must study to the fullest extent of one’s ability, and one who does not do so is guilty of neglect of Torah study. The punishment for neglect of Torah study is, of course, in heavenly law; as we saw in chapter D above, obligations grounded in reasoning without command can entail punishment in heavenly law.

• The continuation of the passage fits perfectly

Now the continuation of the Talmud there also becomes clear. One version says, ‘and this matter may not be said in the presence of the ignorant.’ At first glance that is hard to understand, for if this is indeed the truth, why be concerned if the ignorant act accordingly? We must conclude that the Talmud assumes that Shema morning and evening define the formal obligation of the Torah commandment, but it is also obvious to the Talmud that there is an additional obligation grounded in reasoning to study beyond that, and the concern is that the ignorant will fail to do so. Rava, by contrast, says, ‘It is a commandment to say this in the presence of the ignorant.’ He apparently thinks that this very point is what should be explained to them. Anyone who studies only what he is obligated in by the command in the Torah will remain an ignoramus. Study must proceed from understanding and recognition of the importance of Torah. According to our proposal, the disagreement between the two versions concerns only the proper tactic toward the ignorant, while both agree about the parameters of Torah study and its obligation.

This also clarifies Ben Dama’s question to Rabbi Ishmael. Years ago a student asked me about a contradiction within this very story: if Ben Dama had indeed learned the entire Torah, how could he not know the answer to this very question? From the question itself it would seem to follow that he did not know the whole Torah. I answered him that Ben Dama had learned everything he was obligated to learn in terms of the formal commandment of Torah study. What he was asking was whether there exists such a thing as neglect of Torah study.

As we saw, neglect of Torah study exists only with respect to the obligation beyond the formal obligation of the commandment of Torah study. If there were no obligation beyond the command, then there would be no neglect of Torah study and therefore no problem in studying Greek wisdom. To that Rabbi Ishmael answered that there is an obligation to study day and night beyond the formal command, and therefore one cannot suspend Torah study even though he has already learned and knows the entire Torah. There is an obligation to study day and night. At first glance, Rabbi Ishmael seems to disagree with Rabbi Shimon bar Yohai, for Rabbi Shimon bar Yohai is satisfied with Shema morning and evening, whereas Rabbi Ishmael requires literal day-and-night study. But according to our approach there is no disagreement between them at all. Rabbi Shimon bar Yohai speaks of the first part of the verse, the command, whereas Rabbi Ishmael speaks of the second part (for that was precisely what Ben Dama, his nephew, asked him about). If so, Rabbi Ishmael too joins the conception presented at the opening of the passage.

This also wonderfully clarifies the continuation of the Talmud there, which notes quite calmly: ‘and this disagrees with Rabbi Shmuel bar Naḥmani’ — that is, the words of Rabbi Ishmael differ from the statement of Rabbi Shmuel bar Naḥmani. This is rather puzzling, since Rabbi Shmuel bar Naḥmani is an amora; why does the Talmud not object that he is contradicting tannaim? Beyond that, Rabbi Ishmael seems to disagree with Rabbi Shimon bar Yohai, who appears immediately before him in the passage, so why does the Talmud ignore that tannaitic dispute and note only a disagreement between Rabbi Ishmael and some amora?

But according to our approach, the matter is not difficult. We have seen that Rabbi Ishmael does not disagree with Rabbi Shimon bar Yohai. Rabbi Shmuel bar Naḥmani, however, disagrees with both of them, and therefore the Talmud notes only that disagreement. As we shall immediately see, however, he disagrees with them only in interpretation, not in practical law, and that is why the Talmud sees no difficulty in an amora differing from tannaim here.[27]

Let us now examine Rabbi Shmuel bar Naḥmani’s words: ‘This verse is neither an obligation nor a commandment, but a blessing,’ etc. These are unusual expressions in the Talmud. What is the difference between ‘obligation’ and ‘commandment’? What is Rabbi Shmuel bar Naḥmani adding? We saw above that Rabbi Shimon bar Yohai and Rabbi Ishmael hold that Torah study is not a formal obligation (ḥovah) but a commandment grounded in reasoning (mitzvah). Now Rabbi Shmuel bar Naḥmani comes and disagrees. He argues that Torah study is neither an obligation nor a commandment, but merely a blessing with which Joshua was blessed by the Holy One, blessed be He. From this the Talmud concludes that Rabbi Shmuel bar Naḥmani really disagrees with the tannaim before him, who held that this is a commandment, for he denies not only the category of obligation but also the category of commandment.

At first glance, Rabbi Shmuel bar Naḥmani is the first figure in the passage to disagree with the view shared by all his predecessors — Rabbi Ami, Rabbi Yoḥanan and Rabbi Shimon bar Yohai, both versions, and Rabbi Ishmael. But now we can see that this is not so. To begin with, we must attend closely to his wording: he does not say that there is no such obligation; he says only that the verse ‘it shall not depart’ is neither obligation nor commandment but blessing. It seems, therefore, that he differs from his predecessors only in the interpretation of the verse, not in the law itself. As to the law, he too joins all the previous figures in the passage and agrees that Torah study has two parts: (1) the obligation learned from the command, for which Shema morning and evening suffices; (2) the commandment — to study day and night. What he claims is only that one does not learn this from the verse ‘it shall not depart,’ because that verse is a blessing to Joshua. If so, from where do those obligations emerge? According to Rabbi Shmuel bar Naḥmani, presumably from reasoning without a verse (or perhaps from the very fact that the verse blesses Joshua we learn the importance of Torah). It is now clear why the Talmud does not challenge him from tannaim who appear to disagree with him: there is no practical halakhic dispute here, only a dispute over interpretation.

The passage concludes with a dictum from the school of Rabbi Ishmael: ‘Words of Torah should not be an obligation upon you, but you are not permitted to exempt yourself from them.’ Rashi explains this as saying that one should study with affection and not treat Torah as a burden. But according to our approach one may read it as a direct continuation of the entire movement of the passage: Rabbi Ishmael says that Torah study is not an obligation but a commandment, and one might therefore think it is a matter of pure volunteerism; he explains that nevertheless one may not exempt oneself from it, because there is an obligation grounded in reasoning to study day and night. This is exactly what should be taught to the ignorant, so that they understand the immense importance of Torah study.

• Resolving the contradiction in Rabbi Shimon bar Yohai’s words

Berakhot 35b:

The Rabbis taught: ‘And you shall gather in your grain’ — what is this coming to teach? Since it is said: ‘This book of the Torah shall not depart from your mouth,’ one might think that these words are to be taken literally. Therefore Scripture says: ‘And you shall gather in your grain’ — conduct yourself in them according to the way of the world; this is the view of Rabbi Ishmael. Rabbi Shimon bar Yohai says: is it possible that a person should plow in the season of plowing, sow in the season of sowing, reap in the season of reaping, thresh in the season of threshing, winnow in the season of wind — what will become of Torah? Rather, when Israel do the will of the Omnipresent, their labor is done by others…

In the passage in Menachot we saw that according to Rabbi Shimon bar Yohai, Shema morning and evening suffices; that is, he is the lenient one regarding the formal commandment of Torah study, whereas Rabbi Ishmael is the stringent one requiring study day and night. By contrast, in our passage they seem to switch sides: Rabbi Shimon bar Yohai is the stringent one, requiring constant study and even no going out to work, whereas Rabbi Ishmael is the lenient one. Later authorities have offered many explanations of this.[28]

But according to our approach there is no difficulty at all. We saw that in the Menachot passage Rabbi Ishmael and Rabbi Shimon bar Yohai do not disagree at all: the formal obligation of Torah study is Shema morning and evening, and beyond that there is a commandment grounded in reasoning. In the Berakhot passage the discussion concerns the parameters of bitul Torah, that is, only the commandment grounded in reasoning and not the formal obligation. And here the views are indeed ‘reversed’: according to Rabbi Ishmael one may suspend Torah study in order to earn a livelihood (at least after the fact), whereas according to Rabbi Shimon bar Yohai there is never permission to suspend Torah study at all. But all of this concerns only the commandment, not the obligation; regarding the obligation everyone agrees that Shema morning and evening suffice. Let me recall what I explained above: Rabbi Shimon bar Yohai is careful at the beginning of the Menachot passage to empty the commandment of Torah study of practical content only in order to say that the obligation grounded in reasoning is the essential and truly important one. If so, it is hardly surprising that here he is very stringent about it.

We thus learn that the entire Menachot passage is threaded throughout by the idea that Torah study is not merely one commandment among the 613. The duty to study day and night rests on an understanding, grounded in reasoning, of what Torah is, not on a command. The Torah was careful not to place this within a formal halakhic framework, so as not to reduce Torah study to just one more commandment among the 613. We learn, therefore, that Torah study is a foundational duty that does not enter into an explicit command because of its importance and foundational character.

[By way of parenthesis I note that this understanding has practical implications. For example, we saw above that duties grounded in reasoning bind anyone who understands the reasoning. If so, women — and probably also minors, once they understand — are certainly obligated in Torah study, even though they are exempt from the formal commandment of Torah study. This explains the question raised by many commentators on the ruling of the Shulḥan Arukh, Oraḥ Ḥayyim 47:14, that women recite the blessing over Torah. The commentators there (see Magen Avraham, Mishnah Berurah, Minḥat Ḥinukh, commandment 419 sec. 5, and others) were puzzled: women are exempt from the commandment of Torah study, so why should they bless over it?[29] They assume that the blessing over Torah is a blessing over a commandment. But several decisors have already written that the blessing over Torah is a blessing of praise.[30] According to our approach, however, the difficulty does not arise in the first place, since the primary Torah study obligation is not a duty by force of command at all, but rather a commandment grounded in reasoning. (This also explains well why the blessing over Torah is of Torah status, unlike other blessings over commandments, which are rabbinic enactments.) The blessing over Torah was instituted over the understanding of Torah’s importance that we have received — the blessing probably comes to teach that importance — and not over the formal commandment of Torah study itself. And we have already noted that women too, like everyone who understands the importance of Torah study, certainly belong to and are obligated in Torah study by virtue of that understanding. It is therefore obvious why they must recite the blessing over Torah.[31]]

A note on the commandment to settle the Land of Israel according to Maimonides

Many have already asked why Maimonides did not include the commandment to settle the Land of Israel in his count. They proved that even according to his own halakhic rulings there is such a commandment,[32] and the matter is well known. Several commentators wrote that the omission of this commandment is based on the fourth root, where Maimonides rules that commandments that encompass the whole Torah are not counted among the commandments.[33] They explain that according to him the commandments of settling and conquering the Land of Israel are commandments that encompass the whole Torah, and therefore he does not count them.

Taken at face value, however, this cannot be said. First, in the fourth root Maimonides is not speaking at all about foundational commandments, but about verses that command us to observe all the commandments, such as ‘You shall keep all My commandments’ or ‘You shall be holy’ (which according to Maimonides is nothing more than a command to keep the commandments), and the like. The commandment of settling the Land certainly contains something beyond the bare duty to observe all the commandments.[34]

Even so, according to our approach here, one may say something similar: the commandment to settle the Land of Israel is a foundational duty and therefore is not included in the count of the commandments. True, this is not related to the fourth root, but as we have seen here, this principle really does exist in Maimonides’ thought and in his rules for counting the commandments. Why, then, did Maimonides not devote a separate root to this principle itself? Perhaps because we are dealing here with duties for which there is no verse commanding them, and for Maimonides it is obvious that such duties are not counted in the enumeration of the commandments. We saw above that he ruled in several roots that only duties for which there is a commanding verse are included in the count. What we have explained here is why the Torah itself did not insert these foundational duties into the system of commandments. But in his roots Maimonides is occupied with the question of how to classify and count that which the Torah did command, or at least seems to have commanded.

All this assumes that the commandment to settle the Land of Israel is indeed so foundational in Maimonides’ view. I am not sure that this is actually so. There is no clear expression of it in Maimonides’ writings (or in his conduct in life, but that is not the place to discuss it). Therefore it seems more plausible that Maimonides does not count the commandment of settling the land because, in his view, it is merely a preparatory means for a commandment and not a commandment in its own right. One must dwell in the land in order to fulfill the commandments dependent on it, but that is not itself a distinct commandment. In the tenth root Maimonides explicitly rules that preparatory means to commandments are not counted as commandments.[35]

A note on the commandments considered equivalent to all the rest

Rabbi Wolbe, in his book HaMitzvot HaShekulot, collected seven commandments about which the Sages said that they are equivalent to the entire Torah. On the face of it, this is puzzling even mathematically. If one such commandment is equivalent to all the others, and among the others there are six more commandments that are also equivalent to all the rest, how can such an equivalence be possible?

It seems likely that, at least for some of these commandments, the intention is not equivalence in the literal sense — for that could not be so, as noted — but rather that they are foundational duties. Such a commandment is foundational and serves as a condition for fulfilling the commandments, and therefore it cannot be included in the count as one of the regular commandments. It stands at the basis of all the commandments, but is not necessarily equivalent to all of them in the simple sense.

Conclusion, and a note on the halakhic status of foundational duties and of reasonings in general

An interesting question is what the halakhic status of foundational duties is. In the chapters thus far, we have seen that duties without command do not have full halakhic status. They are more relevant to heavenly law or to the trait of piety. But in duties of the type presented in this chapter, perhaps one might say that since in principle they ought to have been brought into the regular commandment system were it not for the damage that would cause, the fact that there is no formal verse commanding them is only a technical matter. In such a case, one might perhaps regard these duties as fully halakhic, as though there really were a command concerning them, for they are certainly no less weighty than duties for which there are explicit commands.

On the other hand, as we noted at the beginning of the chapter, when the Torah leaves some obligation to reasoning alone without command, that itself calls for explanation. Every law requires command in order to make it a full Torah commandment. It therefore follows that every law that establishes a new obligation solely by reasoning, without command, presumably has an explanation of the type we have seen here.

For example, blessings over benefit are a novel obligation grounded in reasoning, without any command. We explained that according to the Pnei Yehoshua there is here Torah-level substance (and therefore its doubtful cases are treated stringently), but we also explained that even so this is not a full Torah commandment because command is lacking. But now the difficulty arises: why did the Torah really not add a command concerning blessings over benefit? After all, greater is one who is commanded and does. It is plausible that the reason is that the Torah thought that if there were a command here it would ruin the blessing. The Torah expects us to bless not because of command but because of our understanding that we owe gratitude to the Holy One, blessed be He, for the food and the various enjoyments given to us — through initiative from below.

What emerges from our discussion is that all the novel duties grounded in reasoning for which there is no command belong to the type discussed in this chapter. At the beginning of the chapter we presented two kinds of such commandments:

1. Foundational duties, such as character refinement and Torah study, which are the basis for the service of God. In these there is no command because the Torah did not wish to diminish them and turn them into just another ordinary commandment among the 613.
2. Duties that are not necessarily foundational, but that need to be done through initiative from below, and for which a command could have harmed their fulfillment; therefore they are not commanded (such as repentance).[36]

In the first type, the explanation why the Torah did not command them lies in their foundational nature. Therefore perhaps there is room to say that we should regard them as though there had been a command (the absence of command is only technical). These may perhaps be full Torah duties. But with the second type it is difficult to treat those duties as though there were a command, for that would undermine exactly what the Torah wished to achieve, namely that we fulfill those duties as one who is not commanded and does. Therefore it seems likely that type 2 does not have the status of binding laws in the same way as laws that have explicit commands in the Torah. The matter still requires further analysis.

• G. Contemporary discussions

Introduction

There are quite a number of issues that come up for halakhic discussion chiefly against the background of new scientific developments, and naturally the decision in them is entrusted to reasoning. New techniques such as surrogacy, in vitro fertilization, cloning, the use of stem cells, organ donation, determining the moment of death, and more, raise no small number of halakhic questions, most of which have no good sources in the Talmud and the halakhic decisors. Moreover, even when such sources exist, many of them suffer from anachronism — that is, interpretation of the sources in light of modern knowledge that certainly was not available to the Sages. It is reasonable to assume that, as science and technology advance, such questions will only multiply.

A common assumption is that the solution to these questions must be found in the halakhic literature of the generations, whereas I, for my part, am inclined to deny this. In my view, because of the gap in knowledge and in reality, many of those sources are simply irrelevant to the discussion, and the decisors of our day ought to decide these matters as the Sages of the Talmud and the medieval authorities did in their own times. Some of the decisors who deal with these questions agree with this conception, and some have noted it explicitly.

For example, in Rabbi Tzvi Ryzman’s book Ratz KaTzvi, introductory chapters (Adar II 5776), p. 40, he writes:

I heard in the name of Rabbi Shlomo Zalman Auerbach and Rabbi Yosef Shalom Elyashiv that it is impossible to issue a ruling on this subject (surrogacy), since in this novel matter there are no sources and the decision rests on reasoning alone.

There too, in the name of Rabbi Sternbuch:

For surrogacy is a new matter, and there are no sources from the Talmud or the early decisors regarding it; therefore we are forced to rule on such grave issues by reasoning and by bringing proofs that are not decisive, by analogizing one matter to another.

And the clearest statement on this subject is from Rabbi Asher Weiss (there, p. 95):

For years decisors of Jewish law have discussed the question of egg donation… and there are three disputes in the matter… Yet both sides have brought proofs for their words, but in my humble opinion there is no proof at all, not even anything resembling a proof, neither one way nor the other… In sum, there is no source by which to decide this great question, and against our will we must decide it by reasoning…. To our great sorrow, we are doubly orphaned, and like a finger in the wall when it comes to reasoning.

The distinction between interpretive reasonings and substantive reasonings

In all these contexts it is important to distinguish between interpretive reasonings and substantive reasonings. For example, when discussing whether organs may be ‘harvested’ from a person after brain death and before cardiac death, one must determine whether in such a state he is considered alive or dead. This requires establishing the moment of death: is it brain death or cardiac death?[37] To do so, one must clarify what death means in halakhic terms — for example, whether it is the cessation of breathing or something else. Various sources from the Sages are cited by decisors in this connection. What matters for us here is that determining the moment of death is an interpretive question. Once we reach a conclusion — by reasoning or by some source — that conclusion will be determinative for questions of murder and rescue. Murder is a prohibition stated explicitly in Scripture, and so too is the duty of rescue. Therefore clarifying the moment of death is merely clarifying one detail within those commandments. As we saw in the previous chapters, what such clarification yields is full Torah law in every respect, because the detail that is clarified falls under the general command (the prohibition of murder, and the like).

By contrast, there are discussions of other topics in which the questions that arise belong to a different category. For example, in the area of cloning,[38] the question arises whether it is permissible to carry out various kinds of genetic manipulation (cloning in humans or animals is only one example). This is a discussion about establishing a new prohibition, and therefore it is not an interpretive discussion.

I would note that additional questions also arise, such as whether a clone is considered a human being at all, or what his family relationships are. Here, of course, we are dealing with interpretation, for the prohibitions governing a person with respect to relatives are explicit in the text, and once such a creature stands before us we must decide whether he falls under the category ‘human’ and who his relatives are, if any.

Example: a prohibition on genetic manipulations

When people discuss genetic manipulation itself, they often cite the Talmud in Sanhedrin 38a:

The Rabbis taught: to proclaim the greatness of the King of kings of kings, the Holy One, blessed be He. For a human being stamps many coins with one seal, and they all resemble one another; but the Holy One, blessed be He, stamps every person with the seal of the first man, and not one of them resembles another. And why are their faces not alike? So that a person should not see a pleasant dwelling and a beautiful woman and say, ‘They are mine’… It was taught that Rabbi Meir would say: in three things one person differs from another: in voice, in appearance, and in mind. In voice and appearance — because of sexual transgression; and in mind — because of thieves and robbers.

This is, of course, an aggadic statement, and it is very difficult to derive a halakhic instruction from it. But it does teach a reasoning that it is not appropriate to produce human beings by cloned mass production. Since in our day the practical possibility of doing this has arisen, the question now arises on the halakhic plane as well. But it is obvious that we are speaking here of founding a new prohibition, not of interpretation or of adding a detail to an existing prohibition. Therefore, even if we decide that such conduct should indeed be forbidden, it will be hard to view such a prohibition as an ordinary Torah prohibition, and certainly not as a negative commandment punishable by lashes.

Accordingly, the options available to us — if we become convinced that there really is a problem here and that it should be forbidden (not everyone agrees about this, and I myself am not certain of it) — are two: either to forbid it as a new prohibition grounded in reasoning, or to institute a rabbinic enactment forbidding it, if there were an authorized halakhic institution empowered to do so.

Genetic manipulations as an extension of the prohibition of mixed species

Regarding manipulation in animal or plant life, many people cite in these discussions Nachmanides’ words about the conceptual plane of the prohibition of mixed species (Leviticus 19:19):

For one who grafts two species changes and contradicts the work of creation, as if he thought that the Holy One, blessed be He, did not complete His world with all that it needed, and he wishes to help in the world’s creation by adding creatures and species among living beings.

And on the practical plane as well, people cite here the words of the Sefer HaḤinukh (commandment 62), who fears that such acts will lead to harmful consequences — something reminiscent of the concerns raised in these discussions today:

For the blessed God placed at the beginning of creation in each and every thing in the world a nature to produce a good and upright action for the benefit of the people of the world whom He created. And He commanded each one to act according to its kind, as it is written in the section of Creation (Genesis 1:12), ‘Grass yielding seed according to its kind, and a tree producing fruit… according to its kind’… But in acts of mixture there are aspects that human beings were not permitted to use, because God knows that the final result that will come to human beings from those aspects will be bad for them. Therefore He forbade them…

Of course, these too are not genuinely halakhic sources. Jewish law prohibits mixed species, and that prohibition is well defined in the halakhic literature. The expansion proposed here is mainly conceptual. It would indeed have been possible to make a legal expansion and derive from the prohibition of mixed species a prohibition on genetic manipulations, but in simple terms this would be a case of deriving law from the rationale of the verse, and in practical halakhah we rule like Rabbi Judah, that we do not ordinarily derive law from the rationale of the verse.[39] It therefore once again seems that only the two paths mentioned above are open to us: either to forbid on the basis of reasoning, or to enact a rabbinic prohibition.

The halakhic difference between the two possibilities

What is the difference between a new prohibition grounded in reasoning and a new rabbinic enactment? At first glance, in both cases we need an authorized halakhic institution (a Sanhedrin) that can determine a binding prohibition. But as we shall now see, that is not so, and beyond that, even when there is a Sanhedrin there is still a difference between these two mechanisms.

We saw that a prohibition grounded in reasoning has a Torah dimension, but that is only its substance. There is no warning here, and therefore there is also no punishment. Even if a Sanhedrin were to establish such a prohibition, it would still not entail punishment by a court, because there is no negative command without command and warning in the Torah. On the other hand, it seems that its doubtful cases should be treated stringently, for as we saw, a Torah doubt is treated stringently because of the substantive dimension and not because of the warning, and prohibitions grounded in reasoning do possess a substantive dimension. Several times above we saw that doubtful cases involving a prohibition grounded in reasoning are treated stringently, like ordinary Torah prohibitions.[40]

Moreover, a rabbinic enactment requires determination by an authorized court, but a prohibition grounded in reasoning exists and stands even without anyone establishing it. As we saw, from the very fact that a person understands the reasoning, he is already bound by the prohibition. We saw that even minors and gentiles are bound by prohibitions grounded in reasoning (though only in heavenly law). Of course, all this depends on whether the person understands or accepts that the reasoning really prohibits the matter. A person who does not accept or understand the substantive reasoning will not be forbidden in it unless it was determined by an authorized court (a Sanhedrin), in which case he is obligated by the rule of ‘do not deviate’ — at least according to Maimonides.[41]

Therefore, precisely the prohibition grounded in reasoning, which is the more severe of the two, does not require formal halakhic authority. More than that: even when there is a Sanhedrin, the thing was forbidden even before they established it. By contrast, a rabbinic enactment requires an authorized court to enact it, and without that there is no prohibition at all.

An interesting example of the relation between decree and reasoning

At the end of the chapter Ḥezkat HaBatim, Bava Batra 60b:

It was taught: Rabbi Ishmael ben Elisha said: from the day the Temple was destroyed, it would be proper that we decree upon ourselves not to eat meat and not to drink wine. But one does not decree a decree upon the community unless the majority of the community can abide by it. And from the day the wicked kingdom spread, which imposes evil and harsh decrees upon us, and nullifies Torah and commandments from us, and does not allow us to enter the week of the son — and some say, the salvation of the son — it would be proper that we decree upon ourselves not to marry women and not to have children, and thus the seed of Abraham our father would come to an end by itself. But leave Israel alone: better that they remain inadvertent rather than become deliberate sinners.

In the first case, the Talmud says that it would have been proper to decree upon ourselves not to eat meat and not to drink wine because of the destruction, and the reason given for not doing so is that one does not decree a decree upon the community unless the majority of the community can abide by it. In the second case, that of the annulment of commandments, it says that it would have been proper to decree upon ourselves not to marry and have children — which would amount to the passive neglect of the Torah-level positive commandment of procreation — and there the argument that the majority cannot abide by it is no longer enough to halt the matter; one must add the argument that ‘it is better that they remain inadvertent.’

But the expression ‘better that they remain inadvertent’ is appropriate where a prohibition already exists and the public is simply unaware of it. Such a rationale cannot explain why one does not institute a prohibition in the first place. If no enactment was made, then there is no prohibition, and whoever does the act is not inadvertent. It would seem, then, that the Talmud here implies that the prohibition on procreation already exists even without a decree of a court. The Talmud determines that in such a case there is already a prohibition, and the court merely should have informed the public that it is now forbidden to engage in procreation, rather than enacting the prohibition itself. And about that the Talmud says that the court decided not to inform the public because of ‘better that they remain inadvertent.’[42]

The only way to explain why there is indeed already a prohibition on procreation in such a situation is to say that there is a reasoning here: in a situation where it is impossible to observe the commandments of the Torah, the commandment of procreation is nullified, and the Talmud assumes that in such a case there is even a prohibition. Now, anyone who understands this should already have ceased engaging in procreation even without a court establishing a prohibition and suspending the commandment. There were, however, those who did not act that way, and nevertheless the court did not publicize the matter; and that is what the Talmud explains through ‘better that they remain inadvertent.’[43] We thus learn that the suspension of a positive commandment, and a prohibition grounded in reasoning, exist even without a court’s determination. Anyone who understands and accepts the reasoning should refrain from procreation in such a situation.

[1] Jerusalem, 5736. The book is devoted to describing the doctrine of Rabbi Yosef Rozin, the Rogatchover, and is divided into twenty chapters with analyses and examples of the kinds of reasoning that appear in his writings. In the introduction there are eight introductory chapters, and the sixth of them is the chapter called ‘Reasoning of Torah Origin.’ Anyone wishing to classify reasonings by type would do well to make use of this book of Rabbi Kasher.

[2] See also Beit HaOtzar, rule 131, which discusses this at length, and likewise Sdei Ḥemed, system Samekh sec. 63 and system Dalet secs. 26 and 78, and the addenda there.

[3] His words apparently depend on the question whether a doubtful positive commandment of blessing (which is learned from reasoning and is therefore a Torah-level positive commandment) overrides a prohibition (‘do not bear a false report’), and see Sdei Ḥemed, system Ayin, where he discusses this at length. Of course, this also assumes that an unnecessary blessing is a Torah prohibition, but as is well known this assumption is disputed among the medieval authorities, and this is not the place to elaborate.

[4] One might perhaps relate this to the dispute between Tosafot s.v. ‘who said,’ Sukkah 3a, and the Ran on Sukkah 35a in his pagination, who disagree whether, when a person fulfills the commandment not in the precise form defined by the Sages (for example, he eats in the sukkah while his table remains inside the house), he nonetheless fulfills the Torah requirement or not. See also Minḥat Ḥinukh, commandment 10, end of sec. 2; this is an old discussion.

[5] Although just above that passage (24b in the Rif pagination, s.v. ‘Talmud: sacred praises’) they write that everything is rabbinic, and that requires investigation.

[6] In any event, later there the Tzelach concludes that blessings over benefit are, according to all decisors, a rabbinic obligation: ‘and the view of the decisors is clearly stated in their words, that none of the blessings over benefit are מן התורה except Grace after Meals,’ etc. But as we saw, the disciples of Rabbenu Yonah there apparently held like the Pnei Yehoshua that the blessing before benefit is of Torah status. If so, not all decisors agree, contrary to what the Tzelach claims here. As we explained, one should distinguish between the formula of the blessing and the obligation itself. It should also be noted against the Tzelach from the flow of the Talmud in Berakhot, for as we saw, the Talmud itself apparently assumes that we are dealing with a Torah rule, both in its search for a source and in the way the rule is presented. See there in the Tzelach, who explains the whole course of the passage according to his own view, but this is not the place to elaborate.

[7] Michael Abraham, ‘What Is a Scriptural Decree? (An Analysis of the Law of False Witnesses),’ in Even Shlemah VeTzedek — A Centennial Jubilee for Shlomo Marcus, Yeruḥam 5771, p. 137.

[8] Of course, this still requires discussion, because most of these laws really have no clear source, and it seems that they do emerge from reasoning. Presumably these are reasonings stated with regard to the halakhic obligation, whereas in the moral obligation there is no room at all for such distinctions. Without a halakhic command, there would be no place for those reasonings. On that distinction, see further below.

[9] This topic is discussed at length in the Midah Tovah essay on the eighth root. That essay is due to appear in a forthcoming book on the roots, currently in preparation. Most of the issues in this chapter are discussed in my essays on the roots, all of which are also to appear in that book (forthcoming from Tem and Midah Tovah Press).

[10] See at length in my book Ru’aḥ HaMishpat, part 2, as well as in my essay in the jubilee volume for Rabbi Naḥum Eliezer Rabinovitch, Ma’aleh Adumim 5773, and likewise in the Midah Tovah essays on the ninth and second roots. Here I only repeat briefly the main points relevant to our subject; anyone interested in the proofs, arguments, and examples should consult those places.

[11] Although there are contradictions in his writings on this point, and there in my book I proposed resolutions.

[12] And likewise in my article ‘The Nature of the Guilt-Offering,’ MaGaL 15, The Advanced Institute for Torah at Bar-Ilan University, 5767, p. 1.

[13] This is akin to the well-known view of the Netivot HaMishpat on 234, who wrote that one who transgresses a rabbinic prohibition inadvertently does not require atonement. An inadvertent act is also not rebellion, since the person had no idea that there was a command prohibiting it.

[14] I was first alerted to this point by Rabbi Binyamin Kalmanzon (head of Yeshivat Otniel) in two essays of his: ‘The Hermeneutic Principles by Which the Torah Is Expounded,’ Galut 1, 5753, in the volume on methods of study. See also the critique — with which I do not agree — in Yaakov Eitam’s essay, ‘On Reasoning in the Hermeneutic Principles by Which the Torah Is Expounded,’ Galut 5, 5757, pp. 142–159.

[15] See my essay ‘On Causing a Secular Jew to Sin,’ Tzohar 25, Spring 5766, p. 9. For a different angle on the matter, see my essay ‘The Third Way, or: On “Religious Zionism” without the Hyphen,’ Tzohar 22, Tammuz 5765, p. 131. A somewhat revised version of that essay appears in the book Ha-Agalah HaShlishit, ed. Rabbi Tzvi Shinovar, Mofet Institute, Neḥalim 5769, p. 39.

[16] See on this Nadav Shnerb’s article, ‘Reflections on Idolatry,’ Akdamot 19, 5767, pp. 47–64.

[17] See on this the ninth chapter of the book Analysis of Concepts and Situations in Talmudic Thought, by Michael Abraham, Israel Belfer, Dov Gabay, and Uri Schild, College Publications, London 2014. This is the ninth book in the Talmudic Logic series.

[18] See Or Same’aḥ, laws of forbidden relations 3:2; Naḥal Yitzḥak, part 2, no. 89, sec. 2; and Kovetz He’arot on Yevamot, no. 304 in the old edition, who writes somewhat differently. By contrast, the author of Ḥelkat Yo’av, no. 1, raises this possibility and rejects it.

[19] See my essay ‘Commandment, Reasoning, and the Will of God,’ Tzohar 30, Elul 5767, p. 15.

[20] Compare Jeremiah 7:31 and 32:35. In those two places the middle category (‘I spoke’) does not appear.

[21] It should be noted that Rabbi Ḥayyim Vital’s question is itself very puzzling. After all, there is an enumerated commandment of cleaving to God’s traits. Maimonides writes in positive commandment 8: The eighth commandment is that He commanded us to imitate Him, exalted be He, according to our ability, as He said: ‘And you shall walk in His ways.’ He repeated this command and said: ‘to walk in all His ways.’ And the explanation of this is: just as the Holy One, blessed be He, is called merciful, so you too should be merciful; just as the Holy One, blessed be He, is called gracious, so you too should be gracious; just as the Holy One, blessed be He, is called righteous, so you too should be righteous; just as the Holy One, blessed be He, is called pious, so you too should be pious. This is the language of the Sifrei (end of Eikev). This command was repeated in another expression as well: ‘After the Lord your God shall you walk,’ and it too was explained (Sotah 14a) to mean that one should imitate the good deeds and noble traits attributed to God, exalted above all with great exaltation, by way of metaphor. Seemingly there is here a positive commandment concerning character refinement, so it is not clear why Rabbi Ḥayyim Vital (and the other commentators who address this question) assume that there is no formal halakhic obligation of this sort. Perhaps they understand this commandment as cleaving to God’s ways, that is, as obligations concerning practical conduct: one must show mercy and kindness to other people. As Maimonides concludes, one must imitate the Holy One ‘in the good actions.’ But character refinement concerns the traits of the soul and not behavioral obligation (see Guide of the Perplexed I, end of ch. 54 and III, ch. 54; and Maharal, Netivot Yisrael, vol. 2, p. 104 and elsewhere; see also Maimonides in Sefer HaMitzvot, negative commandment 317). With regard to that, there is no formal halakhic command, and perhaps only regarding that do Rabbi Ḥayyim Vital and the other commentators raise their question. Even so, the matter still requires investigation.

[22] There is a well-known yeshiva joke about a young man who began meeting women in search of a spouse and rejected them all. The spiritual supervisor of the yeshiva sent him to work on his character and study ethics for a year, saying that afterward he should resume dating. The young man did so with great enthusiasm and refined his traits. But when he returned to dating, he once again rejected every candidate one after another. When the supervisor asked what had become of all his character work, the young man replied in amazement: a year ago, when I was proud, none of them was suitable for me; now that I am so very humble, all the more so none of them is suitable for me. It seems to me that this is what someone would look like if he worked on his character only because there is a commandment, or a clause in the Shulḥan Arukh, requiring it.

[23] The same appears in Ḥayei Adam, and in Rabbi Yonah’s Sha’arei Teshuvah in several places (there he writes that in advance of Yom Kippur there is an additional commandment from the verse ‘Before the Lord you shall be purified’).

[24] Perhaps there is also room to regard repentance as belonging to the first type, that of foundational duties.

[25] He states there explicitly, however, that laws learned from derashah are of Torah status, unlike Maimonides, as we saw above.

[26] See Berakhot 5a and 22a, Shabbat 32b and 33b, Ta’anit 7b and Ḥagigah 5b, Bava Metzia 84b and Avodah Zarah 18b, Jerusalem Talmud Avodah Zarah 1:7, and Avot DeRabbi Natan, version B, chapters 5 and 41, and many more.

[27] We do indeed find several times that amoraim disagree with tannaim regarding the meaning of scriptural exposition. For example, Samuel disagrees with all the tannaim in the passage in Yoma 85a–b regarding the source for the rule that saving life overrides the Sabbath. There too it is stated calmly, and the Talmud there even concludes in accordance with him.

[28] See, for example, Even HaEzel on the laws of kings 3:5, Or Same’aḥ on the laws of Torah study 1:2, Minḥat Asher on Exodus 24:2, and others.

[29] The Magen Avraham and the Mishnah Berurah answer that women bless because they are included in the study of the laws that pertain to them. But that is puzzling, because we rule that women are exempt from the commandment of Torah study, and therefore the fact that they study laws relevant to them is not itself within the commandment of Torah study (otherwise women would in fact be obligated in Torah study). If so, it remains difficult: why should they recite a blessing over the commandment of Torah study?

[30] See, for example, Responsa From Heaven no. 10, Sha’agat Aryeh nos. 24–25, Minḥat Ḥinukh commandment 419 sec. 5, Keli Ḥemdah at the beginning of Ha’azinu, the Brisker Rav on the laws of blessings s.v. ‘And behold,’ and his student in Emek Berakhah no. 1, and in Devar Avraham, part 1, no. 16 sec. 1, and the words of Rabbi Avraham Wasserman, who asks there, and others. See also a detailed discussion in my Midah Tovah essay on Ha’azinu, 5767.

[31] This also explains why the Sages instituted the blessings over Torah in addition to Ahavah Rabbah, which is explained in the Talmud (Berakhot 11b and Jerusalem Talmud Berakhot 1:5) and by the decisors as itself being in the category of a blessing over Torah. According to our approach, one may say that Ahavah Rabbah is the blessing over the commandment of Torah study, since it is said before Shema, which fulfills the command regarding the formal commandment of Torah study. But the three morning blessings over Torah were instituted for the second part of the obligation — the part grounded in reasoning. That is why it is clear why we need those three blessings in addition to Ahavah Rabbah.

[32] See Maimonides, laws of Sabbatical and Jubilee 4:27; laws of kings 5:9; laws of marriage 13:20; and laws of slaves 8:6 and 9.

[33] Thus in the book Em HaBanim Semeḥah, p. 154: With this he explained the view of Maimonides, who did not count the positive commandment of settling the Land of Israel among the 613 commandments, although even according to him it is of Torah origin. This is based on the rule he established in the fourth root of Sefer HaMitzvot, that one should not count commands that encompass the whole Torah. If so, since settling the Land of Israel is such a precious commandment, for it includes all the commandments and encompasses the whole Torah, and all the fixing of festivals and new months and all their commandments depend on it… and likewise the whole life of the nation depends on it — it is therefore a comprehensive commandment and not a פרט one; and therefore it does not enter the count of the commandments, which comes to count only particular commandments. And similarly in Yehaveh Da’at, part 5, no. 57: Rabbi Ḥayyim Palaggi explained in Responsa Nishmat Kol Ḥai (Yoreh De’ah, no. 48, p. 75b) that the Mabit holds that even Maimonides agrees in practice with Nachmanides, and the reason he did not count living in the Land of Israel as a positive commandment is that it is a comprehensive commandment for several commandments dependent on the land. Maimonides already wrote in Sefer HaMitzvot, root 4, that one does not count a comprehensive commandment in the number of the commandments. And so too is the view of the Radbaz, part 3, no. 410. See there.

[34] I later saw that this point had already been noted in Benei Banim, part 2, no. 42.

[35] See also Tzitz Eliezer, part 7, no. 48, pamphlet Orḥot HaMishpatim, chapter 12, who explained something like our suggestion: I will mention in this connection only what I saw in Responsa Toledot Yaakov (by the author of Sha’arei Yaakov), Ḥoshen Mishpat no. 8, who investigated why Maimonides omitted from his count of commandments the commandment of settling the Land of Israel, about which the decisors have spoken at length. He explains — and something like this was also said in the name of Rabbi Abraham Isaac Kook — that Maimonides already gave us the principle in his roots, roots 4–5, that one does not count commands that encompass the whole Torah or many commandments, as if saying: do all that I commanded you. Therefore he likewise did not count the commandment of settling the Land of Israel among the positive commandments, because it is a commandment that includes many commandments together, as they said: in any case, the Torah commanded us to dwell in the land in order to fulfill its commandments. Thus this commandment of dwelling in the Land of Israel is a commandment by means of which many commandments are done, and for that reason it is called a comprehensive commandment; and such a commandment Maimonides did not count in his enumeration of the commandments. He, however, ties this to the fourth root and explains that the commandment of settling the Land includes many other commandments. On his approach, this is not because the commandment is foundational, but because it includes several other commandments and therefore is not counted. This is not precise, for the fourth root deals with commandments that encompass the whole Torah, not with duplication (which is the subject of the ninth root). In our essay on the fourth root we explained that it is not at all a root about duplication. Beyond that, settling the land is not duplicative of the land-dependent commandments, since it is a commandment to dwell in the land, whereas those are specific commandments that require one who dwells there to do certain things. It seems more accurate to say that settling the land is a preparatory means for the land-dependent commandments, as we suggested above.

[36] In character refinement we saw both reasons: according to Rabbi Ḥayyim Vital, command is unnecessary because the matter is foundational, whereas according to Rabbi Kook command would be damaging.

[37] For the sake of discussion I am assuming here the view of the decisors that the issue depends on fixing the moment of death. I note only that in my article ‘Organ Donation,’ Teḥumin 29, 5769, p. 329, I argued against the view of all the decisors that the moment of death is not actually relevant to that decision, but this is not the place to elaborate. I also note that in another article of mine, ‘The Expertise of a Halakhic Decisor as an Evaluator of Reality,’ Tzohar 7, 5761, p. 21, I explained that, contrary to the common assumption in our society, this determination is not given over to technical experts such as physicians, but rather to what I called there a ‘value-decider,’ that is, halakhic decisors or legislators.

[38] See, for example, Rabbi Yigal Shafran’s article, which appears in the collection Genetic Cloning — A Halakhic Perspective (ed. Yoni Raziel). The article also appears online: http://98.131.138.124/articles/GC/cloning04.asp .

[39] Rabbi Shafran, in the article just mentioned, notes that perhaps this is the reason why, according to Maimonides (laws of kings 10:6), breeding animals or grafting one species of tree onto another is such a basic prohibition that it even applies to Noahides. The Ritva on Kiddushin 39a, however, disagrees, and so do many decisors. See also Ḥazon Ish, Kilayim 1:1.

[40] I would recall what I explained above regarding the view of the Pnei Yehoshua and the disciples of Rabbenu Yonah concerning doubtful blessings over benefit, that the doubt is treated stringently with respect to its Torah dimension.

[41] It still requires analysis whether, according to Nachmanides, a novel reasoning of the Great Court (that is, a reasoning that founds a new prohibition) obligates by force of ‘do not deviate,’ or whether it is like a rabbinic enactment whose source of force, according to Nachmanides, is different. On this see at length in my book Ru’aḥ HaMishpat.

[42] It seems that Rashbam sensed this difficulty, and therefore wrote: ‘and not be deliberate sinners — for because they will not be able to stand by it, they will nullify it and thus be found deliberate sinners; therefore we do not decree it.’ But this is strained.

[43] A rather grim conclusion follows from this, namely that all of us today are descended from the ignoramuses of that generation. After all, the scholars who understood the prohibition on the basis of reasoning did not have children and did not fulfill procreation. Those who did engage in it were the ignorant public, who were inadvertent, and the court did not correct their error. If so, the children of the next generation were all descendants of those ignoramuses. Perhaps, however, all these statements are not halakhic rulings but aggadic statements about destruction and exile, and they are not really meant to say that one should give up procreation in such a situation and cause the seed of Abraham our father to perish for generations — for then they would never fulfill commandments, even when relief would come. Even so, our evidence from the Talmud, even if only incidental, remains in place.