The Nature of Rabbinic Laws: B. Implications (Column 583)

In the previous column I presented the distinction between Torah laws (de’oraita) and rabbinic laws (de’rabbanan). We saw there that the Torah—that is, de’oraita laws—reflects a direct divine will. This means that fulfilling these laws effects spiritual rectification, and transgressing them causes spiritual damage. Therefore the Torah commands us to do or refrain from the actions in question, and thus studying it is the uncovering of divine will (religious values) and cleaving to it.

By contrast, rabbinic laws—at least safeguards and decrees (and some enactments)—do not represent a direct religious value (spiritual rectification) and therefore not a direct divine will. There is a general divine will that we obey them, and therefore they are certainly all part of Halakhah, but they are not part of the Torah. Hence, studying them is not the uncovering of divine will, any more than studying civil law—also the study of binding rules (since in monetary law and civil law the statute is determinative halakhically as well)—which is not Torah. One must learn it as a “means to a mitzvah,” in order to know what to do, but it does not possess the inherent value of Torah study (which is the study of His will, i.e., understanding the spiritual values and what leads to them—and through that, cleaving to Him).

From here follows a first fundamental difference between studying rabbinic laws and studying Torah laws. Learning the latter is a mitzvah (an end in itself), whereas learning the former is only a means to a mitzvah (merely a means to know what to do, but having no value in and of itself). In this column I will try to set out a few additional implications of this distinction.

Before getting into the weeds, I must preface a clarification. In my article on the mitzvah of Torah study (and also in Column 479) I explained that there is a difference between the mitzvah of Torah study and Torah study itself. The mitzvah of Torah study is a formal halakhic matter, and strictly speaking one can fulfill it with the recitation of Shema morning and evening. But Torah study itself is a fundamental value, far beyond the formal mitzvah in scope and in its place on the Torah value scale (and I explained there that therefore women are also obligated in it). It includes learning all the time and on all topics (at least halakhic ones—Torah as object). Here I am not entering that distinction. When I speak in this column about the “mitzvah of Torah study,” I generally mean Torah study, and not specifically what is included in the formal halakhic mitzvah.

The Goal and Character of Study: Platonic Study[1]

We are accustomed to Talmudic sugyot that deal with topics lacking practical application: beginning with biblical passages such as the wayward and rebellious son, the leprous house, and the idolatrous city (see Sanhedrin 71a; see also there 51a: “a halakhah for the messianic era”), or sugyot that consider far-fetched cases that are utterly impractical, like wheat that descended in the clouds (Menachot 69b), a forewarning issued by a demon (Makkot 6b), a “flying camel” (Makkot 5a and Yevamot 116a), and the like. In my article on okimtot I explained that the purpose of such sugyot is the conceptual-theoretical clarification of a halakhic principle. We construct a laboratory case in which the halakhic principle appears in its pure form, and although such a case cannot occur in practice, it still helps us clarify the meaning of the halakhic principle. I compared this to conducting a scientific experiment in a laboratory. The lab is a setup that doesn’t occur in real life (we eliminate various external factors that enter into a practical case and obstruct examination of the theory), and precisely for that reason it allows us to examine the theory better.

I explained that such study reflects a view that the aim of halakhic analysis is not to know what to do, but quite the opposite: the ruling (pesak) is an indication of the correct meta-halakhic theory, and the various cases enable us to understand that meta-halakhic theory. By analogy, one can see a similar distinction regarding science: in the eyes of the scientist, empirical results are not the goal of science but a means to arrive at the correct theory (predictions are merely ramifications of scientific theories). Science strives for theories, not for practical applications; those are the domain of technology. In our terms, this is the difference between Torah study and halakhic ruling.

In light of this picture, it would seem that when studying rabbinic laws there is no point in dealing with such sugyot. There, our goal should be simply to know what we are obligated to do or forbidden to do. This of course does not mean there is no place for conceptual analysis in rabbinic laws—there certainly is—but understanding the principle underlying the law has no independent importance other than insofar as it enables us to understand and apply the law. On the rabbinic plane, the laws are the goal and the analysis is the means.

But it is not only because of the goal of study. The mode of study also expresses a difference between the domains themselves, from which it follows that the very content of analysis ought to differ in de’rabbanan versus de’oraita. In de’oraita Halakhah it is commonly assumed that there exists an abstract, coherent metaphysical theory that underlies the laws. The religious values toward which the laws tend are part of it. By contrast, on the rabbinic plane there is no reason to assume such a theory exists. These laws do not reflect a metaphysical reality but rather practical concerns and considerations. There, theoretical coherence is not to be expected. Thus, for a rabbinic decree, in every situation one must examine whether there is a concern that we might come to a Torah prohibition or not. There is no reason to presume a tight theoretical structure underlying such a decree. Accordingly, the aim of analysis neither should nor can be to reach such a structure, but at most to arrive at a good practical definition of the prohibition. There is no room to speak of philosophical implications and a value-laden worldview (also because the Sages have no authority in the realm of values; their authority lies solely in issuing halakhic rulings).

Moreover, the Sages, as human beings, are not “suspected” of possessing lofty metaphysical insights far beyond ours. Even if they wished to, it is doubtful they could reach the metaphysical planes that we are tasked with uncovering. True, this can also be said about de’oraita laws, for there too the shaping and formulation is done through the Sages’ interpretation; but assuming the Sages were correct (or likely correct), their interpretation should reflect the metaphysical structure intended by the Torah itself. Perhaps that will not occur, for they might have erred, but at least there is a point in trying to uncover such structures. In rabbinic laws, they simply do not exist. There is nothing to strive for.

Between Analysis and Halakhic Ruling

There is a common yeshiva-world distinction between “analytical learning” (iyyun) and “practical halakhah” (psak). The notion is that iyyun opens everything up—one examines all the Rishonim and Acharonim, and all is in question and up for debate. Halakhah study is the study of the classic codes (Rambam, Tur, and Shulchan Aruch with their commentaries). I have written more than once that in my view this distinction is mistaken. There is no difference between the two types of study. We must analyze the halakhic sugya and the various approaches and arrive at a conclusion as to our own view—and that conclusion is the halakhic ruling. Of course, not everyone can cover all the sugyot analytically, and then there is room to go over the codes and rely on them for topics we did not cover—but that is only a bedi’avad path for one who did not manage to do more. In principle there is no difference between iyyun and psak.[2]

The reason is that we are obligated to “arrange the teaching in accordance with the halakhah” (la’asukei shma’ata aliba de-hilchata), i.e., to study in a conclusion-oriented way and to apply those conclusions in practice. This does not mean that application is the goal and study is the means. In the previous column I pointed out the error in that approach. The aim of this mode of study is to connect the conceptual-theoretical world with the practical world. My theoretical conclusion should also determine what I will in fact do (see, for example, Column 31 on halakhic rationalism).

We have seen that when we are dealing with rabbinic laws, our goal is merely to know what we must do. There are no metaphysical structures underlying these laws, and therefore there is no point seeking or constructing them. In such a case it indeed makes a great deal of sense not to enter the analytical sugyot at all, but rather to study the Mishnah Berurah and simply act according to its guidance. There is no loss here with respect to the parameters of the mitzvah of Torah study—which do not exist for rabbinic laws—nor with respect to error in the halakhah itself. Even if I personally would arrive at a conclusion different from his, that amounts to nothing. Clearly one who acts in accordance with its guidance is observing the halakhah (neither rebelling against the Sages’ command nor transgressing “lo tasur”—“do not deviate”), and for rabbinic laws that suffices. There is no “truth” one must try to hit upon.

Moreover, the value of autonomy that underlies my view of study and independence in psak is grounded in the notion that I must arrive at my truth and act accordingly. This is a parameter of the mitzvah of Torah study. But in rabbinic laws there is no mitzvah of Torah study, and therefore the value of autonomy is meaningless. One must merely act in a manner that accords with the Sages’ directives and not violate “lo tasur.” There is no particular value in doing so on the basis of my own conclusions. In rabbinic laws there is no such “heaven-and-earth” connection described above, because there is no “heaven” there (no theoretical-spiritual dimension). In the articles mentioned above I explained that in de’oraita laws—even where I disagree with the great poskim, and in such a case it is quite likely that they are right and I am not—the value of autonomy outweighs the value of truth. But in rabbinic laws what matters is who hits the truth, and autonomy has little significance. Therefore there it makes a great deal of sense to choose a leading posek and follow his directives. Again, in my view this is not an obligation. Even in rabbinic laws there is at least permission to act autonomously (and perhaps value), but there it is not an obligation and carries no halakhic or scholarly advantage. So why do it?! Better to devote the time to Torah study.

The Blessing over Torah Study

The direct implication of defining a domain or activity as Torah study is with respect to Birkat HaTorah (the blessing over Torah study). The Talmud itself debates which things require a blessing and which do not—but before all that there is a basic condition: what is not Torah is certainly not subject to Birkat HaTorah.

In Berakhot 11b we find:

Rav Huna said: For Scripture (Mikra) one must recite a blessing, but for Midrash one need not recite a blessing. And R. Elazar said: For Scripture and Midrash one must recite a blessing, but for Mishnah one need not recite a blessing. And R. Yohanan said: Even for Mishnah one must recite a blessing [but for Talmud one need not recite a blessing]. And Rava said: Even for Talmud one must recite a blessing, for Rav Hiyya bar Ashi said: Many times I would stand before Rav to review our chapter in the Sifra of the school of Rav (Sifra de-bei Rav), and he would first rise early, wash his hands, recite the blessing, and teach us the chapter.

At first glance the order here is the reverse of my logic: the simplest case is that one blesses on Scripture, then Midrash, then Mishnah, and finally Talmud. I would have arranged the order exactly the opposite way (the closer something is to Halakhah and halakhic analysis, the more it is “Torah”). Admittedly, halakhah follows Rava (see Rambam, Laws of Prayer 7:10, and Shulchan Aruch, Orach Chaim 47:2), that one blesses over Scripture, Mishnah, and Talmud (and the Rema adds Midrash as well), yet the hierarchy still appears problematic.

Note, however, that the “Midrash” in question here is apparently Midrash Halakhah. The case cited in the sugya as proof is the study of the “Sifra of the school of Rav,” and Rashi writes there:

“Midrash”—it is close to Scripture, such as the Mekhilta, Sifra, and Sifrei, which are interpretations of verses.

This refers to study connected in some way to Scripture—but apparently to the halakhic part of Scripture, since all these are halakhic midrashim (see my comments in the previous column on Rashi’s first comment on the Torah). If so, it seems that the foundation is indeed Scripture, which is the word of God, together with the interpretations and midrashim that decode it. This is already closer to the picture I have sketched here. It is very likely that rabbinic laws are not included in this category, since they are not tied to Scripture and are not (in themselves) the word of God.

Beyond Scripture as well, it seems that the topics discussed here are all connected to Halakhah. It is not entirely clear what the priority of Mishnah over Gemara would be. Seemingly there is a preference for decisive rulings over dialectical give-and-take, but even the Mishnah is not truly a code of law (and not all opinions there are those adopted in practice). Perhaps the Sages saw in it a closer proximity to halakhic truth.

In any event, the conclusion is that we rule like Rava, that one blesses also over the Gemara. Rashi there explains:

“Even for Gemara one must bless”—for it is the essence of Torah, from which instruction issues. “Gemara” means the reasoning of the Mishnah’s rationales and the resolutions of contradictory mishnayot, and the “ḥasorei meḥasra” (emendations to complete the text).

Here there is already a statement that the Gemara is not last in the hierarchy; it is “the essence of Torah.” It is the halakhic-talmudic analysis in which we spend most of our time. In a certain sense there is a reversal here of the hierarchy I outlined above. Be that as it may, it follows that rabbinic laws do not fall into this category, since they do not involve understanding the reasons of the laws in Scripture. Thus, even in Mishnah and Talmud, the portions that deal with rabbinic laws (and needless to say aggadot as well) are not included in this category. They do not clarify the word of God in Scripture. In the previous column I explained that their relation to “lo tasur” (a Torah-level command) is one of application (like legal studies, which are an application of dina de-malkhuta—the law of the land). If so, it would seem that, as a matter of law, one does not recite Birkat HaTorah over the study and analysis of rabbinic laws.

One might have been tempted to hang this on the question whether Birkat HaTorah is a blessing over a mitzvah (birkat ha-mitzvot) or a blessing of praise (birkat ha-shevaḥ). Seemingly, if it is a birkat ha-mitzvot, then we bless only over what is included in the mitzvah of Torah study; but if it is a birkat ha-shevaḥ, there is no necessity to say that we do not bless over what is not included in the mitzvah. But logically it would seem that even if it is a birkat ha-shevaḥ (and to my mind that is obvious; see for example here), it is still reasonable that we praise the Holy One for the Torah He gave us—not for practical directives we ourselves invented for ourselves. In passing I will note that the entire Talmudic discussion here seems strange if one views this as a birkat ha-mitzvot: is there a dispute about what falls under the mitzvah of Torah study? Are there those who hold that Midrash is not included, or that Gemara is not included? Perhaps the hierarchy pertains to the concept of “learning” rather than the concept of “Torah.” This itself is a good indication, in support of my view, that it is a blessing of praise and not a blessing over a mitzvah.

As an aside I will add that practically speaking it is difficult to draw a sharp line between studying rabbinic laws and studying de’oraita laws, since almost any such inquiry is interwoven with the distinction between de’rabbanan and de’oraita and with clarifying the parameters of the de’oraita—and as we know, “whatever the Sages enacted, they enacted in the manner of the Torah.” There are laws about which the poskim disagree whether they are de’rabbanan or de’oraita, and thus analyzing them is in effect also clarifying a de’oraita rule. Practically, then, almost every study has an element of Torah study—but that is merely the practical “gross.” The distinction I have made here still stands on the principled plane.

The Status of Means to a Mitzvah

There is room here for another remark that can somewhat adjust the picture. Until now I have assumed that the “means to a mitzvah” involved in halakhic ruling are not Torah study. What about means to the mitzvah of Torah study? For example, investigating the realia of ancient utensils in order to understand mishnayot in Tractate Kelim; a scientific inquiry to understand various halakhic principles; scientific or mathematical analysis in order to rule on a particular law or issue; the investigation of facts in a court in order to decide the case?

It seems to me that the last two cases are certainly not “Torah as object.” If I require some calculation in order to rule on a law or case, that is in the category of means to the mitzvah of ruling (psak). The halakhic analysis required for psak is certainly Torah study, for it is learning like any other learning—but not because it serves as a tool for psak, rather because there is halakhic analysis here in its own right. But if I am clarifying facts in order to know how to apply the halakhah to the case before me, so long as I am not engaging in halakhic analysis, that is psak and not Torah study. Such clarification is at most a means to the mitzvah of psak and cannot be considered Torah study. Since psak is necessary, and it is reasonable to ascribe halakhic value to it (perhaps as part of observing the law—it is important also to clarify what we are to observe), nothing I have said implies there is no value in that activity. There certainly is, like any other mitzvah—but it is not included under the rubric of Torah study.

By contrast, investigating, say, the realia of ancient utensils, or a mathematical analysis in order to understand a halakhic sugya in the Gemara, can indeed be considered means to Torah study. This is still not Torah study in itself, but it is a means to the mitzvah of Torah study. Again, the line is not always clear, but our concern here is the principled distinction. It is worth bringing here the Rambam’s view in several places, according to which it appears that the means are part of the mitzvah itself (I discussed this at length in an article on the Tenth Root, in the book Yishlach Shoreshav).

In my article on ḥametz on Passover and “historical prohibitions” (see also Column 468) I noted that according to the Rambam, sourdough (se’or) is ḥametz because it leavens doughs (see Laws of Ḥametz and Matzah 1:6–7). I brought there additional examples of this conception in the Rambam, such as preparing a dye vat (Laws of Shabbat 9:14, and there 9:11 regarding laundering and stirring). In my article on the Tenth Root I showed that this is a principled view of his—that the means to the mitzvah are part of the mitzvah itself. According to this, there may be room to view the last category I described—i.e., scientific or mathematical analysis for the sake of Torah study (but not for the sake of psak)—as a means that is part of the mitzvah of Torah study itself.

Torah Study de’rabbanan

I wish to conclude the column with an interesting logical remark. If Torah study is only engagement with the word of God, and rabbinic laws are not His will and not His command, then there is no value of Torah study in studying them (only a “means to a mitzvah”). Is there room to define some study as a mitzvah of Torah study de’rabbanan? Seemingly not: if we are dealing with de’oraita laws, that is a de’oraita mitzvah; and if we are dealing with rabbinic laws, there is no mitzvah at all (as noted, it is not even “Torah as subject”). If so, from what I have written in these columns it would seem to follow that there is no meaning to a mitzvah of Torah study de’rabbanan (and in this the questioner erred here).

However, in the previous column I noted that there are components in rabbinic law that perhaps can be considered Torah study. These are those enactments that have behind them a specific and direct “essence” (as opposed to decrees and safeguards intended merely to prevent sliding into a de’oraita prohibition). These essences are not weighty enough to be included in Torah law, yet there is still some essence here. We saw that this is also true regarding some of the shvutim on Shabbat—those considered “half a de’oraita melakhah” (as opposed to mere gezeirot lest one come to a de’oraita melakhah).

How should we relate to the study of such laws? Simply, there is here a kind of Torah, for there is an essence behind them that is connected to the divine will. There is, however, no command about them, and thus there is a will without a command. This may be similar to the moral imperatives I discussed in the previous column, which are “Torah as subject” (and in my view one does not recite Birkat HaTorah over them). Here, though, there is another dimension beyond what exists in morality, for such a law has an element of de’oraita, only to a weaker degree. It is an interpretive extension of a command that appears in the Torah, and in that sense there is here also an element of Torah study “as object” proper (albeit faint). Take, for example, the rabbinic prohibition of selecting food from refuse (borer ochel mi-psolet). It is an extension of selecting refuse from food, and it contains the problem present in the melakhah of borer, but to a lesser degree. Therefore there is an essence behind it, and there is here an elucidation of the will of God—not merely a clarification of what I am obligated to do (as in ordinary rabbinic laws).

It is very reasonable to define the study of such laws as the mitzvah of Torah study de’rabbanan. There is Torah study “as object” here (unlike morality, which is only “Torah as subject”), but there is no Torah-level command, and therefore it is hard to see this as de’oraita Torah study. The natural solution is to define this as a rabbinic obligation in the mitzvah of Torah study. This part of Halakhah is “Torah de’rabbanan,” and therefore studying it is Torah study de’rabbanan. That was my answer to Aryeh here.

[1] This is the topic of the eleventh volume in the Talmudic Logic series, The Platonic Character of the Talmud.

[2] My comments here apply to one who is “bar aki”—i.e., trained in study and in psak. See, for example, my article on authority and autonomy in halakhic ruling.