Lesson 2: Category 1 — The First Root

From the book Roots Outstretched by Rabbi Michael Avraham. Translated from Hebrew using gpt-5.4 (reasoning_effort=high, batch API).

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With God’s help

The First Root

That one should not count among this category commandments that are rabbinic

A look at the distinction between biblical and rabbinic law

This root is the first among the substantive roots (Group 1, described in the introductory essay), which contain rules of non-enumeration based on halakhic—that is, Jewish-legal—authority. In the next essay we will discuss the second root, which also belongs to this group.

In this root, Maimonides establishes, against the position of Halakhot Gedolot (BehaG), the principle that rabbinic commandments should not be included in the enumeration of the commandments. At first glance, this seems to be only a technical root (see the introductory essay), since on the face of it there appears to be no disagreement here about the legal status of these commandments. The dispute would seem to concern only the technical question whether they should be included in the count of 613 commandments in Rabbi Simlai’s statement.

Yet despite this, very important issues arise in the course of the discussion, for two reasons:

1. Some understood Maimonides to have held a different view not only about counting these commandments, but also about their legal status and force.
2. Underlying the discussion are different conceptions of the meaning of rabbinic commandments—or at least of some of them—their standing and their character, and this has direct legal implications as well.

In the end, as we shall see, it is not entirely clear whether this root is indeed substantive—that is, whether it reflects a disagreement about the nature of rabbinic law—or merely technical—that is, whether everyone agrees about the nature of rabbinic law and the dispute concerns only whether to include it in the enumeration. Most likely, this question itself is disputed among the commentators on Maimonides. We will address this below.

Before we arrive at Maimonides’s words in the first root, and at his dispute with Nahmanides and with BehaG, we must discuss several important aspects that stand in the background of the discussion. We will therefore devote a substantial part of this essay to preliminaries, because without them the dispute in this root cannot be fully understood.

A. Introduction to the First Root

The first two roots as a view of the halakhic whole

In his introduction to the Commentary on the Mishnah, Maimonides divides the various laws into five types:¹

1. Laws transmitted to us by tradition that also have a source in scriptural interpretation.
2. Laws derived from Scripture, where no independent tradition exists.
3. Laws transmitted to us by tradition, for which we have no scriptural derivation. These are called halakha le-Moshe mi-Sinai—a law given orally to Moses at Sinai.
4. Decrees.
5. Ordinances and customs.

Maimonides deals with the first three types, which are usually classified as laws of Torah authority, in the second root. He deals with the last two, which are usually classified as laws of rabbinic authority, in the first root. Thus, these two roots deal with the classification and examination of the foundations of all types of Torah law, and with the relations among them. Out of this discussion emerges a broad and comprehensive picture that includes many aspects of halakhic jurisprudence. Once again one can see how foundational and necessary these two roots are, and how significant the lack of discussion about them has been.

In the ordinary understanding, the classification presented above is arranged according to criteria of legal force—from Torah-level authority to rabbinic authority. But below we shall see that this axis of division and classification is not at all simple, and Maimonides apparently does not regard it as an axis expressing different levels of force, but rather as an interpretive hierarchy expressing the relation to the Written Torah. True, as we shall see, this division does have legal consequences; but they are not as sharp as we generally tend to think.

On the problem of the legal status of rabbinic commandments: an initial survey

As stated, in this root Maimonides disputes BehaG regarding the need and possibility of counting rabbinic commandments within the enumeration of the commandments. As we shall see, just beneath the surface of that discussion lie their positions regarding the legal status of rabbinic commandments, even though that is not the issue discussed directly in the root itself (but rather in Nahmanides’s glosses). More than that: we shall see that on this point there is actually agreement between Maimonides and BehaG. Both hold that the obligation to observe rabbinic commandments is derived from the Torah verse, “You shall not turn aside.” It is specifically Nahmanides, who defends BehaG on the issue explicitly debated in the root itself—whether rabbinic commandments should be counted in the enumeration of the commandments—who disagrees with both of them on this matter.

As stated, examining the different positions in this sugya is an indispensable background to the discussion of Maimonides’s words in the root. Later we will also see the opposite direction: careful analysis of the different positions expressed in the root itself sheds new light on the different positions regarding the force and status of rabbinic commandments.

Biblical and rabbinic law as interpretation and legislation: classifying laws by the character of the sages’ activity

First, we must define the subject of the discussion: what is a law of Torah authority, and what is a law of rabbinic authority? These definitions seem simple and agreed upon, but in the course of discussing the first two roots we will see more than once that this is not so.

Halakha is divided into several categories according to its sources. Laws whose source is the Torah and its interpretations, or oral tradition—such as a law given orally to Moses at Sinai—are laws of Torah authority. Laws based on the Prophets and Writings are laws of prophetic tradition, whose status is disputed and lies somewhere between rabbinic and Torah law. Laws newly instituted by the sages are laws of rabbinic authority. With respect to laws learned through interpretive derivation, laws given orally to Moses at Sinai, and laws of prophetic tradition, Maimonides holds an unusual position, and we will discuss this below.

In light of this division, the role of the sages can also be divided into two main types: interpretation and legislation. Let us spell this out a bit more:

1. Interpretation. The first role of the sages is interpretation. It is commonly assumed that this produces laws of Torah authority. Interpretation reveals to us the meaning of what is written in the Torah. After the interpretation, it becomes clear that the law we discovered was already present in the Torah, and therefore our obligation to observe that law exists because the Torah commands it. The Torah is thus the source of its force, and the sages merely reveal to us, by means of interpretive tools, the Torah’s command. The force of laws created in this way is of Torah authority, because it derives from the very acceptance of the Torah’s authority.

2. Legislation. The second role of the sages is legislation. This is how laws of rabbinic authority are created, and these themselves are divided into several subcategories: ordinances, decrees, and customs (see Maimonides, at the beginning of the Laws of Rebels). These laws were not transmitted to us by tradition, they do not appear in the Written Torah, and they cannot be extracted from it by interpretive or exegetical means. They are therefore laws of a different type, and they obligate us only by virtue of the authority of the sages who legislate them, not directly by virtue of the Torah. As is well known, these laws have weaker force, and the halakhic category that marks this is “laws of rabbinic authority,” as distinct from the previous category, “laws of Torah authority.”

Thus, the difference between the two types of activity of the sages—legislation and interpretation—finds expression in the legal status of the laws in question: legislation creates rabbinic law, while interpretation creates Torah law. Halakha contains a number of consequences that follow from the difference in authority between biblical and rabbinic law, and the most prominent of them is the law of doubt: doubt in Torah law is treated stringently, while doubt in rabbinic law is treated leniently.¹ There are many other practical differences as well, many of which are listed by Nahmanides in his comments on this root.

It is commonly assumed that the first root, which deals with ordinances and decrees of the sages, concerns legislation, while the second root concerns interpretation—plain meaning and exegesis, and the relation between them. Later we shall see that this is not entirely accurate.

The problem of the authority of rabbinic law: two possible directions

The basic problem with rabbinic law is the source of its force. Why should I obey something instituted by the sages? The fact that they are sages—assuming I even accept that description—may serve as a recommendation that this is the proper way to act. But from where does this acquire the dimension of command that brings it into the formal and binding framework of halakha?² Not everything that is proper to do is binding law.

In fact, this problem arises wherever one seeks a foundation for any value system or normative system.³ Underlying commitment to any normative system there must stand some obligating principle outside it—for if that principle were included within the system, we would again have to ground our commitment to that principle itself.⁴ Here, admittedly, we are dealing with a secondary system, since the system of rabbinic law can in principle draw its force from the Torah.⁵

The conclusion, then, is that there are two principal ways in which one may seek the source of this obligation outside the system of rabbinic commandments itself:

1. To seek a source in the Torah that grounds the authority of the sages and gives force to their enactments.
2. To seek a non-Torah source that does so.

As we are about to see, these are indeed the two paths found in the writings of the medieval authorities. But on the face of it both are problematic. In fact, neither seems capable of providing a fully satisfactory answer to the problem before us. This is the central difficulty in the sugya with which we are dealing here.

An initial presentation of the views of Maimonides and Nahmanides, and their implications

In the introductory essay we noted that Maimonides is characterized by an approach that moves from the general to the particular. We saw there that this is a necessary approach for anyone pursuing as comprehensive and complex a goal as Maimonides’s: the construction and presentation of a coherent and rational legal-logical structure for the entirety of halakha. We should therefore not be surprised that Maimonides chooses here the direction of the first path—that is, to ground the duty to obey the sages in a Torah verse. From a legal point of view, this is the systematic and rational route.

In general jurisprudence, it is customary to distinguish between primary legislation and secondary legislation. Primary legislation is enacted by the state’s or society’s lawmaking institution—the Knesset, in our case—and it is what gives force to subordinate legislation, enacted by governmental or other bodies empowered by the primary legislation to legislate within their domain. Maimonides sees rabbinic law as the Torah’s secondary legislation. This is the logical hierarchy of halakha as a legal system, and unsurprisingly Maimonides chooses this route.

We also mentioned in the introduction that Nahmanides represents the halakhic world as it actually is, which often rebels against the logical straitjacket Maimonides tries to impose upon it. So again we should not be surprised to find Nahmanides disagreeing with Maimonides here. He seems to reject the first path, despite its internal logic, because it does not fit various facts found in the literature of the sages and in the sources of halakha more generally.

We noted an analogy between halakha and legal systems. Let us now also recall the analogy, discussed in the introduction, between halakha and science. The dispute between Maimonides and Nahmanides may be understood as a dispute between rationalism and empiricism. The rationalist approach in the philosophy of science holds that nature can be understood through a priori intellectual analysis, and not only on the basis of empirical observation. The empiricists, by contrast, believe that understanding of nature is achieved only through observation of reality—that is, experience.

In those terms, Maimonides is a rationalist, because he builds the halakhic system through a priori logical-conceptual analysis. The results of that analysis, which seem necessary in his eyes, he imposes upon the talmudic material—that is, upon normative reality. Nahmanides, by contrast, is an empiricist. He builds the halakhic picture from the facts he finds in the sources—that is, halakhic reality. Reason and intellect, in his view, are subordinate to the data extracted from the talmudic material itself. Indeed, Nahmanides repeatedly argues against Maimonides that his words do not accord with what is found in the Talmud.

This is, to be sure, a schematic and not entirely cautious description, but it faithfully reflects the principled approaches of these two sages in a good many places, though this is not the place to elaborate.

The authority of the sages: Maimonides’s position

Maimonides’s approach to this issue appears in several places, but most clearly in the Laws of Rebels. This is his language there, at the beginning of chapter 1:

The Great Court in Jerusalem is the foundation of the Oral Torah. It is the pillar of legal instruction, and from it law and judgment go forth to all Israel. Concerning them the Torah gave its assurance, as it says: “According to the instruction that they teach you, and according to the judgment that they tell you, you shall do.” This is a positive commandment. Everyone who believes in Moses our teacher and in his Torah is obligated to base the practice of religion upon them and to rely on them.

Whoever does not act in accordance with their ruling violates a negative commandment, as it says: “You shall not turn aside from anything that they tell you.” One is not flogged for this prohibition, because it serves as the warning for a court-imposed death penalty: any sage who rules against their words is liable to death by strangulation, as it says: “And the man who acts presumptuously by not listening…”

This applies alike to matters they learned by received tradition, which are the Oral Torah; to matters they derived by their own judgment through one of the interpretive rules by which the Torah is expounded, when it appeared to them that the law on that matter was thus; and to matters they enacted as a fence for the Torah, according to what the times require—namely decrees, ordinances, and customs.

In each of these three areas there is a positive commandment to heed them, and one who transgresses any one of them violates a negative commandment. Thus Scripture says, “According to the instruction that they teach you”—these are the decrees, ordinances, and customs they instruct the public in, in order to strengthen religion and set the world aright. “And according to the judgment that they tell you, you shall do”—these are matters they derived through legal analysis by one of the interpretive rules by which the Torah is expounded. “From anything that they tell you”—this is the received tradition that they received one from another.

From Maimonides’s language it follows that anyone who violates the words of the sages—whether their interpretations, the traditions they testify were transmitted to them, or their legislation of rabbinic laws, divided into three types: decrees, ordinances, and customs—violates both a negative and a positive commandment.⁶ Nahmanides, at the beginning of his glosses on this root (pp. 18-19), notes that the same also emerges from what Maimonides wrote elsewhere.⁷

According to Maimonides, the Torah sources for this are the negative commandment “You shall not turn aside” and the positive commandment “According to the judgment that they tell you, you shall do.” Maimonides also counts both of these in his enumeration of the commandments (negative commandment 312, positive commandment 174). Hence, in his view, it is the Torah itself that gives force to rabbinic law, and the sages derive their authority from it.

As background for the discussion in the body of the root, we should note that on this point BehaG also takes a similar approach: he counts “You shall not turn aside” among his commandments, at the end of the negative commandments that incur lashes, and he also counts the prohibition concerning the rebellious elder. We do not find a corresponding positive commandment in BehaG’s count.⁸ Thus, the dispute between Maimonides and BehaG does not follow necessarily from differences in their approach to the question of the sages’ authority.

The source of this determination appears, at least on the face of it, explicitly in Babylonian Talmud, Shabbat 23a (see also Berakhot 19b below), which discusses the blessing over the lighting of Hanukkah lamps and says:

What blessing does one recite? He recites: “Who has sanctified us with His commandments and commanded us to light the Hanukkah lamp.” But where did He command us? Rav Avya said: from “You shall not turn aside.” Rav Nehemiah said: from “Ask your father and he will tell you, your elders and they will say to you.”

As stated, the positions of Maimonides and BehaG are, from a logical standpoint, almost perfect. There is a Torah source of authority obligating us to heed the sages. Everything is closed, coherent, and elegant. Yet, as Nahmanides repeatedly remarks, from the standpoint of the actual halakhic facts—that is, halakha as it exists—this approach is highly problematic.⁹

Nahmanides’s objections

Nahmanides, at the beginning of his glosses on Maimonides’s view here (from p. 18 onward), understands Maimonides—as did most of his commentators—to mean that anyone who violates a rabbinic commandment or prohibition violates a Torah-level positive and negative commandment. Beyond the explicit words of Maimonides cited above, Nahmanides brings what he sees as decisive evidence from Maimonides’s language in Laws of Rebels 1:2. Maimonides writes there that, in principle, anyone who violates the words of the sages should be flogged like anyone who violates a Torah prohibition, except that this is a prohibition that serves as the warning for a court-imposed death penalty, since the rebellious elder who violates this very prohibition is executed. It follows clearly from this that, according to the view that one is flogged for such a prohibition, anyone who violates a rabbinic commandment would also be flogged. This proves, on Nahmanides’s reading, that every rabbinic transgression is literally like an ordinary Torah prohibition, such that in principle the offender should be lashed. Below we will reexamine this conclusion and argue that this is not Maimonides’s intent.

Nahmanides then raises several objections to Maimonides’s view. We will cite two of them here:

• The main problem Nahmanides finds in this view is the existence of legal differences between rabbinic and Torah law. He says that according to Maimonides and BehaG we should really have to treat rabbinic prohibitions as stringently as Torah prohibitions, since they are in effect ordinary Torah-level positive and negative commandments. For example, Nahmanides asks (p. 20): how will Maimonides explain the rule that doubt in rabbinic law is treated leniently, if every rabbinic commandment is binding by virtue of “You shall not turn aside”? According to Maimonides, every such doubt should apparently be a Torah doubt—perhaps one will violate “You shall not turn aside”—and therefore should be treated stringently. The same applies to the other leniencies in rabbinic prohibitions as compared to Torah prohibitions (see there, pp. 20-22, for a full list of such leniencies).

Nahmanides himself suggests one possible explanation: the sages themselves stipulated, when enacting the law, that in cases of doubt we should rule leniently. If they had the authority not to legislate at all, then surely they also have the authority to legislate with the condition that in a case of doubt the obligation does not apply at all.¹⁰ Although a number of later authorities did in fact adopt this line in explaining Maimonides, Nahmanides himself rejects it as forced, though he does not explain explicitly why. Some have explained that if this were indeed the sages’ own stipulation, then in a doubt created by disagreement among the sages over a rabbinic law we would not be able to rule leniently, because each side agrees that there is no genuine doubt in its own view, and therefore neither side would allow leniency. This argument too can be challenged, but this is not the place to pursue it.¹¹

• Later, Nahmanides brings several direct proofs that the prohibition “You shall not turn aside” is not the source of the legal obligation to observe rabbinic law. His primary proof comes from Babylonian Talmud, Berakhot 19b, which states that human dignity overrides rabbinic prohibitions. Yet those prohibitions are not truly derived from “You shall not turn aside”; they are only supported by it. For if they really were derived from it, they would be Torah law. Nahmanides proves from this two things, which are really two sides of the same coin:
  1. The prohibition “You shall not turn aside” is like any other Torah prohibition, with no difference in the intensity of the obligation it creates. Therefore, where an act truly involves violation of “You shall not turn aside,” human dignity does not override it.
  2. “You shall not turn aside” is not a real source for rabbinic law, and therefore rabbinic prohibitions are less severe. That is why they are overridden by human dignity. See there for additional proofs.

The authority of the sages: Nahmanides’s position

In the end, Nahmanides concludes on the basis of these arguments, and others, that one cannot say that the prohibition “You shall not turn aside” is the source of force for rabbinic law. In his view, the verse is the source of the obligation to heed the sages in their interpretation of the Torah, or in their derivations—that is, in Torah law; see p. 24—but not in their ordinances, decrees, and customs. Put differently: “You shall not turn aside” gives the sages authority to interpret, but not to legislate. The source brought in Shabbat 23a, which on its face proves Maimonides’s view, he interprets as a mere scriptural support.

But if so, Nahmanides himself must now explain: what is the alternative foundation, in place of “You shall not turn aside,” that obligates us to observe the commandments of the sages?

At this point we meet the other side of the problem. Once one reflects on it, one quickly sees that a priori such a source cannot really be found—certainly not within Nahmanides’s own framework. This is explained sharply in Kovetz Shiurim, part 2, Kuntras Divrei Sofrim, sec. 1, subsection 15. There the author formulates the difficulty against Nahmanides more forcefully: if there is indeed some other verse in the Torah that serves as the source—even if not “You shall not turn aside”—then Nahmanides is exposed to the very objections he himself raised against Maimonides. Why, then, are doubts in rabbinic law not treated stringently? But, as the author of Kuntras Divrei Sofrim adds, even if the desired basis is some external reasoning, that too would amount to Torah-level force, because reason itself is a source of force equivalent to a verse, as the Talmud sometimes says: “Why do I need a verse? It is a matter of reason.” If so, once again we are dealing with Torah law, and in cases of doubt we should have to be stringent. It thus seems that there is no possible source for the sages’ authority according to Nahmanides. On the other hand, Maimonides’s view is also highly problematic, if only because of the ordinary distinction in halakha between laws of Torah authority and laws of rabbinic authority.

Summary: the two horns of the dilemma

As we have seen, the problem of the sages’ authority gives rise to a dilemma that seems to have no escape. On the one hand, the source of their authority must lie outside the system of rabbinic law itself, presumably in the Torah—as Maimonides apparently held—or in reason. On the other hand, if there really is such a source in the Torah or in reason, then the legal status of rabbinic commandments ought to be the same as that of Torah commandments, and that does not fit the literature of the sages, which clearly distinguishes between these two categories. This leads us to Nahmanides’s position, according to which there is no Torah source for the authority of the sages to legislate. But that position too is problematic, because then the sages would have no authority to legislate at all, and that likewise does not fit the literature of the sages. These are the two horns of the dilemma that underlies the discussion of the sages’ authority.

After a brief survey of several possibilities for explaining the views of Nahmanides and Maimonides, we will argue here that this dilemma leads us, almost necessarily, to one explanation. Our conclusion will be that both Maimonides and Nahmanides most likely must accept it, and that in the end the dispute between them is rather minor—if there is one at all. The constraints we have presented here—the two horns of the dilemma—apparently do not allow any other explanation of this problem.

B. Explaining Nahmanides’s Position on the Authority of the Sages

Introduction

The main difficulty in Nahmanides’s position is the source of force behind the sages’ authority. A number of explanations have been offered by commentators. We will present several of the main directions here. Each requires discussion, but in my opinion most do not withstand logical scrutiny, and I will not extend the discussion here.

1. The intention of the Torah

A first direction, perhaps already suggested in Nahmanides’s own words (p. 26), grounds the obligation to obey the sages in the Torah’s intention. Nahmanides writes regarding the duty to obey the sages’ interpretations—not their legislation—that the Torah was given on the understanding that Torah scholars would determine its meaning, for otherwise there would always be disputes and halakha would never be defined. Nahmanides wrote something similar in his commentary on the Torah regarding the law of conspiring witnesses, in the portion Ki Tetze. There he is speaking about Torah law—laws that arise from the sages’ interpretation, not from their legislation—but perhaps this can be expanded: everything was given subject to their authority. The Torah itself was given to us on that basis; therefore, even if they decide to add ordinances by legislation, there is an obligation to heed them.

One might perhaps put this differently. Yeshayahu Leibowitz wrote in several places that the sanctity of the Written Torah was determined by the sages of the Oral Torah. They decided what entered the canon of sacred books and what did not. This can be seen in Babylonian Talmud, Megillah 7a, where Esther is said to have sent to the sages and requested, “Write me for generations,” and likewise in the same sugya in the discussion whether Ecclesiastes should be hidden away, whether Song of Songs renders the hands impure, and so forth. If so, not only is there no source in the Written Torah for the authority of the sages; rather, the source of force of the Written Torah itself is through the sages. The meaning of this is that the Torah was given to us on their authority, and therefore everything they say is given force by the Holy One, blessed be He. Not through the Written Torah, but through the very force that leads us to obey the Torah itself—that is, commitment to the will of God. There is here a more basic principle from which both systems of law are generated: both biblical and rabbinic law.

2. Acceptance by the whole of Israel

Rabbi Abraham Isaac Kook, in Mishpat Kohen sec. 144 and elsewhere, writes that the authority of the sages derives from the acceptance of the entire Jewish people, who took them upon themselves. From his words it appears that this is not a regular halakhic obligation but the result of a self-imposed commitment. The force of this obligation is not based on the Torah, because if it were, doubts would have to be treated stringently. The reasoning is that each individual, as part of the collective, is obligated to enact the decisions of the collective to which he belongs as though they were his own decisions.¹² The obligation is to do what I have obligated myself to do as part of the public, and that is a matter of reason. In a case of doubt, it is not known whether the person undertook that commitment, and so, as it were, “the burden of proof lies on the claimant”; therefore doubt in rabbinic law is treated leniently.

It should be noted that this is a legal fiction. As far as we know, there was never any formal event in which Israel collectively accepted the sages’ authority. Even Maimonides himself grounds that authority in a Torah commandment; he does not see himself as bound by their words by virtue of a voluntary undertaking. So how can Maimonides be bound on the basis of a commitment that he himself does not acknowledge? And if Maimonides does not experience himself as obligated in this way, why should the ordinary Jew feel obligated? It therefore seems that a mechanism of legal fiction is operating here. Since it is fitting for us to accept the sages’ authority, we treat them as if we had in fact accepted it. No historical act of acceptance ever occurred, but we relate to matters as though there had been an assembly of all Israel in which the the public accepted the authority of the sages. There are several examples of this in halakha and in other legal systems as well, but this is not the place to elaborate.

Yet this still does not explain the other leniencies in rabbinic law according to Nahmanides himself. For if we want to say that those leniencies result from the content of the commitment, and that we committed ourselves only on that basis—that all these leniencies would apply in rabbinic law—it is not clear why Nahmanides himself refuses to accept a similar explanation in his discussion of Maimonides, namely that the sages enacted their laws on the understanding that doubts would be treated leniently. It therefore seems unlikely that this is his intent.

3. Indirect proof

Rabbi Elhanan Wasserman, in Kuntras Divrei Sofrim sec. 1, subsections 16-23, explains that the duty to heed the sages is based on the fact that we find that the Holy One, blessed be He, agreed with them. See there for his proofs.

On the face of it, his intent is unclear. Either way, the difficulty remains: if this is a matter of reason, why does his own objection not return—that cases of doubt should then be treated stringently, since reasoning has the standing of Torah law? And if it is not reason, nor a verse, then what is this third mechanism he is offering?

His language makes clear that this is the will of God, though not written in Scripture. If it becomes clear to us that this is God’s will, yet we have no independent reasoning either in the act itself or in the duty of obedience as such, then it is not literally a Torah obligation. Yet there is obviously still an obligation to do it, since after all it is God’s will. On the other hand, it is clear that there cannot be a reasoning that independently obligates the act as such, for if there were, then on Rabbi Elhanan’s own premises this would be a Torah prohibition and doubt would have to be treated stringently.¹³

Still, the claim of the author of Kuntras Divrei Sofrim remains difficult, because it is not clear why the reasoning that we must obey God’s will does not itself create a Torah-level obligation. More than that: if the sages enacted something, there is obviously some reasoning behind it, for otherwise they would not have enacted it. If so, they merely revealed to us the existence of that reasoning. Why, then, should the matter not now become prohibited by Torah law?

In any case, this direction is very close to the one suggested above in subsection 1.

4. And yet, reasoning: there is no general duty to obey the sages

Most later authorities explain Nahmanides in terms of some reasoning by virtue of which the duty to heed the sages is generated. That reasoning may be administrative or technical—for example, a rationale that requires some mechanism to preserve social order and character. Something like this seems implied by the explanation of the author of Sefer Ha-Hinukh in commandment 496, though he presents it only as the rationale of the verse “You shall not turn aside.” Alternatively, it may be more substantive—for example, a rationale based on the wisdom of the sages, concluding that their commands express acts that are proper to perform, and so on.

Support for this may perhaps be found in Nahmanides’s own language, when he concludes and writes concerning the rebellious elder (pp. 26-28):

All the more so, one who rebels against them—that is, against rabbinic prohibitions—and violates one of them on the assumption that by doing so he does not transgress this prohibition, is not included in the law of this passage at all. For the whole passage deals with punishment for rebels, not for sinners.

This paragraph can be interpreted in several directions.¹⁴ Here we suggest that Nahmanides means that one who violates Torah law is a rebel, while one who violates rabbinic law is a sinner without rebellion. What is the difference? On this reading, Nahmanides means that a sinner is one who does something wrong. But a rebel is one who, beyond doing something improper, also rebels and disobeys a command. Since, according to Nahmanides, there is no Torah command concerning rabbinic law, one who violates it is not considered a rebel but only a sinner.

These approaches, of course, cannot explain the binding dimension in obedience to the sages—that is, the fact that rabbinic laws are part of the set of halakhic obligations. It would seem that they yield only the conclusion that there is value in acting as the sages command, because it is the correct thing to do; but they do not allow us to see these as binding commandments in the strict sense.

If so, this explanation of Nahmanides yields a very great novelty: the duty to heed the sages is not grounded in command at all, but in the substantive issue itself. If we asked above what is the source of force that obligates us to obey the sages, Nahmanides’s answer according to this proposal would be: there is no such command, because there is no verse in the Torah commanding it. One who violates a rabbinic prohibition damages something, or performs an act that is improper or unworthy, but there is no command involved, and therefore he is not a rebel. According to this approach, it is obvious why one who violates rabbinic prohibitions is not punished by a court.¹⁵

To sharpen the novelty of this, we may recall the well-known and controversial words of the author of Netivot Ha-Mishpat (Hoshen Mishpat, sec. 234), who states that one who violates a rabbinic prohibition unintentionally has not committed any transgression at all, and therefore needs no atonement. The explanation is that Torah prohibitions have two distinct dimensions: an improper act, because it is harmful in some respect, and rebellion against God’s command. One who violates a Torah prohibition unintentionally is not rebelling against God’s command, because he is unaware that such a command exists. But he is still considered a transgressor, because the act itself is unworthy and harmful—and that is precisely why we were commanded to avoid it. Rabbinic prohibitions, by contrast, contain no harm in themselves; if they did, the act would have been prohibited by the Torah. The reason not to do such acts is only the duty to obey the sages, not the avoidance of harm or a flaw in reality. This is a law concerning the person, not the object. The result is that when one violates a rabbinic prohibition unintentionally, there is no rebellion, just as in an unintentional violation of Torah law; but here there is also no dimension of damage or defect, and therefore there is no transgression at all. In the case of an unintentional rabbinic violation, no wrong has occurred, and therefore no repentance is needed.

From these words of Netivot Ha-Mishpat emerges a conception according to which rabbinic prohibitions contain only the dimension of command, without any dimension of substantive defect. He is apparently relying on Maimonides’s view, which sees the duty to heed the sages in the prohibition “You shall not turn aside”—that is, as a prohibition against rebelling against them. It is a command all of whose content is the prohibition of rebellion against them, without reference to the content of the commandments themselves.

According to our explanation of Nahmanides here, however, the picture is exactly the opposite: rabbinic prohibitions contain only a substantive dimension, without any dimension of command. It is therefore clear that even an unintentional violation would still count as a transgression, in that sense. One who is unaware of the damage involved may perhaps not be punished, but there is certainly still wrongdoing. Netivot Ha-Mishpat thus fits Maimonides better than Nahmanides—but below we will see that even in Maimonides it is difficult to say this in full.¹⁶

The direction proposed here also implies that the sages’ explicit command—by the very fact that they enacted the ordinance or decree—is not essential to the definition of the offense. The act is bad in itself, and therefore in truth it was forbidden even before the sages formally enacted it, because it is forbidden by the very fact that it is harmful or bad. The sages’ explicit command only serves as a notice that brings the problem to our attention, thereby preventing the offender from claiming coercion or ignorance—that he simply had not attended to this reasoning.¹⁷

In any case, according to this proposal in Nahmanides’s view, there is in fact no general duty to obey the sages. There is only a duty to do what is right. One who fails to heed them will be called to account—by the heavenly court, or by disciplinary lashes in a human court—for having done the wrong thing, but certainly not for disobedience.

Why is this not a Torah-level mechanism?

At this point the problem raised by the author of Kuntras Divrei Sofrim returns: if reasoning itself creates Torah-level obligation, then all the rules that apply to Torah law—including stringency in cases of doubt—should apply here as well. How, then, can the proposal of obligation on the basis of reason work? Several possible explanations may be suggested:

1. It may indeed be that reason creates an obligating factor, but the normative dimension is still missing—there is no command. Therefore there will be no formal halakhic obligation to fulfill what follows from it, and certainly no court-imposed punishment, though heavenly punishment, or punishment outside the ordinary legal framework, would still be possible. As we explained, the obligation to be stringent in doubtful cases would also not apply in such a situation, because we are not certain that this is in fact an improper act. The duty to be stringent applies only where there is a command and a duty of obedience.¹⁸

It should be noted that the places where the sages treat reasoning as the equivalent of a verse—”Why do I need a verse? It is a matter of reason”—are interpretive situations. For example, when we need to define evidentiary law or legal procedure in the Torah, reasoning reveals to us that the rule “the mouth that prohibited is the mouth that permitted” is good evidence (see Babylonian Talmud, Bava Kamma 46b). In that kind of case, no verse is needed. In interpretive reasoning of this sort, which explains the meaning of some command in the Torah, reasoning is not the source of force of the obligation; it only reveals the meaning of the verse. The verse is the source of force. That is interpretive reasoning, not legislative reasoning. In such a case there is a command in the Torah verse, and the reasoning merely uncovers it; therefore all agree that this is Torah law.

But reasoning that creates new laws—legislative reasoning, not interpretive reasoning—will not itself be formally binding in halakhic terms, because it lacks the dimension of command. Only the substantive concern will obligate in such a case.¹⁹ In principle one might also explain this by saying that although the duty to obey the sages arises from reason, the reason itself also determines the lower force of that obligation. The very “mouth that prohibited” is also “the mouth that permitted.”

Perhaps the basic reasoning here is that the sages wanted to mark the difference between their enactments and Torah commandments. Thus the rule that doubt in rabbinic law is treated leniently stems from a general motivation of the sages to create a distinction between their enactments and Torah law—for otherwise, at least according to Maimonides at the beginning of the Laws of Rebels, they would violate the prohibition against adding to the Torah. It should be recalled that Nahmanides himself rejects a similar possibility when he raises it in explaining Maimonides, as noted above.

2. One might perhaps say that a prohibition derived from reason is lighter than an ordinary Torah prohibition, for even with regard to a law learned through the thirteen hermeneutical principles we find that it is lighter than explicit Torah law. The author of Kuntras Divrei Sofrim explains there (sec. 1, subsections 18-24) that the severity of a prohibition is determined by the degree of its manifestation in the Torah. The more clearly and fully a matter appears in the Torah, the more severe it is.²⁰ It follows that something that does not appear in the Torah at all is certainly lighter. An external rationale would therefore be lighter than an ordinary Torah prohibition.

3. Another possibility is that the obligation to observe these commandments is not from the Torah because the rationale underlying them is not itself intelligible to me directly. The reason I observe them is because the sages told me that this is the proper way to act, and I assume there is some rationale behind their words. Such an obligation is rabbinic, not Torah-based.

4. Another possibility is that some rationales are strong enough that the obligation to follow them is Torah-level, but other rationales are weaker and less decisive, and the obligation to follow them has a lower force. This is practically unavoidable: if the rationales were fully compelling, there would be no need for a rabbinic enactment, for we would already be obligated by them even without the enactment. We must therefore conclude that the sages’ enactments are based on rationales that are not fully decisive, and that is why legislation is needed. For example, the decree forbidding poultry with milk lest one come to eat meat with milk is indeed based on a rationale. But by similar reasoning one could also prohibit fish with milk, or meat with soy products, and so on. Conversely, one could permit poultry with milk because the chance that people would come from there to meat with milk seems too low. The question is where the line lies—beyond which it is proper to prohibit, and short of which it is proper to permit. Here the sages step in and draw the line. To a large extent this is an arbitrary determination, because it is difficult to define objectively the level of risk from which onward a prohibition should be decreed. Thus the threshold of prohibition does not follow straightforwardly from the rationale, and therefore such a determination has lower force than a fully compelling rationale, which would count as Torah-level law.

5. A substantive asmakhta

In his novellae to Rosh Hashanah 16a, the Ritva writes that an asmakhta—a rabbinic law anchored in a scriptural allusion—is not merely an arbitrary mnemonic in a verse, but that there is an essential connection between the law and the verse that serves as its support (see also Maharal, Be’er Ha-Golah, first well).²¹ The law is not derived decisively from the verse, but it is present there in some indirect sense. Since the connection is not full, the verse is called a support for the law, not its actual source.

Nahmanides explicitly writes, as we noted above, that rabbinic prohibitions are supported by the verse “You shall not turn aside”—as stated in Berakhot 19b, and in his view this is also the meaning of Shabbat 23a. In light of the Ritva’s position, perhaps the mechanism of asmakhta is precisely a branching-out of rabbinic prohibitions from the verse “You shall not turn aside.” On this explanation, not every violation of a rabbinic prohibition is a Torah violation. The source is indeed “You shall not turn aside,” yet the prohibition created is not Torah law. Something like this will appear below—and also in the second root—in Maimonides’s view, where we will explain more fully the meaning of this mechanism of branching.²² Nahmanides’s own view will then also become clearer.

Let me note that I found a similar direction in the work Pekudei Yesharim by Professor Avraham Pientuch, part 1, p. 28.

Nahmanides’s position regarding “You shall not turn aside” in the case of ideological rebellion

To conclude this chapter, we will briefly discuss Nahmanides’s position regarding one who ideologically rebels against the authority of the sages. In Kovetz He’arot on Yevamot, sec. 16, pars. 8-10, and in Kovetz Shiurim, Kuntras Divrei Sofrim sec. 1, subsections 31-32—and see there subsection 35 for his defense of this view against an objection of Minhat Hinukh—the author cites Rabbi Chaim Soloveitchik of Brisk, who explains that even according to Nahmanides, one who does not accept the authority of the sages to enact ordinances violates a Torah prohibition.²³ The difference between him and Maimonides would then be only at one point: Nahmanides does not accept Maimonides’s position that each particular rabbinic offense is itself a Torah violation of “You shall not turn aside.” But where there is a principled refusal to accept the authority of the sages, Nahmanides too agrees that there is a Torah violation of that prohibition.

Rabbi Chaim explains that the reason one may say “and commanded us” over the Hanukkah lamp by virtue of “You shall not turn aside” is that in principle one can indeed violate that prohibition here—if he denies the enactment itself. He adds that according to Maimonides, who disagrees with Nahmanides, every violator of rabbinic law transgresses each time he commits the forbidden act the Torah prohibition of “You shall not turn aside.”

As we shall see below, a picture like this is closer to what emerges from Maimonides, but in Nahmanides it is implausible, for several reasons.

First, Nahmanides himself holds that the phrase “and commanded us” with respect to the Hanukkah lamp, in Shabbat 23a, is only because of a scriptural support learned from “You shall not turn aside.” According to Rabbi Chaim’s explanation, the Talmud should have said that one who denies the authority of the sages thereby violates “You shall not turn aside.” But the sugya suggests that the command of “You shall not turn aside” has nothing to do with the Hanukkah lamp in any concrete way at all.

We noted above that Nahmanides challenges Maimonides’s words at the beginning of the Laws of Rebels, from which it appears that a layperson can in principle be flogged for violating “You shall not turn aside,” and that lashes are absent only because the prohibition serves as the warning for a court-imposed death penalty. But according to Rabbi Chaim and the author of Kovetz Shiurim, Nahmanides too would allow the possibility of lashes for a rabbinic offense, if it were committed as a matter of principled rebellion against the authority of the sages. If so, why are Maimonides’s words so difficult for Nahmanides? This too shows clearly that Nahmanides does not see any possibility of a layperson violating the Torah prohibition of “You shall not turn aside,” contrary to these later writers.

The same follows from what we mentioned above regarding Nahmanides’s own view: he writes that the prohibition “You shall not turn aside” applies only to laws derived through the interpretive rules by which the Torah is expounded, and not to rabbinic commandments. If Kovetz He’arot and Rabbi Chaim were correct in their understanding of Nahmanides, then Nahmanides should have said that there is a Torah prohibition even upon a layperson who does not observe rabbinic commandments if he does so in a spirit of rebellion.

Their approach would also imply that the law of the rebellious elder applies even to rabbinic ordinances. An elder who refuses on principle to accept a rabbinic ordinance would be a Torah-level rebellious elder. But this is not at all what Nahmanides suggests. He forcefully argues that the entire passage of the rebellious elder applies only to Torah offenses, and that with respect to rabbinic offenses there is no possible case in which anyone could become a rebellious elder.

All these considerations show clearly that Nahmanides’s view is not as Rabbi Chaim and Rabbi Elhanan suggested. In Nahmanides’s opinion there is no Torah prohibition at all in connection with rabbinic ordinances and laws. Below, at the end of the chapter on Maimonides, we will return to this and spell it out more fully.

C. Explaining Maimonides’s Position on the Authority of the Sages

Introduction

As we saw above, the main difficulty in Maimonides’s view is a factual one: why are there various leniencies in rabbinic law as compared to Torah law—above all, why are doubts treated leniently rather than stringently? Several directions have been proposed in explaining Maimonides, and we will briefly examine some of them here.

1. “They said it and they said it”: mechanism A

As is well known, Maimonides holds that the rule that doubt in Torah law is treated stringently is itself only rabbinic.²⁴ On such an approach, it is entirely plausible to say that in rabbinic law the sages themselves did not apply this stringency that doubtful cases must be treated strictly, and so we follow the basic the law and rule leniently. In rabbinic language: “They were the ones who said it, and they were the ones who limited it”—see Rashi to Ketubbot 10a, s.v. “The sages enacted,” and many other places.²⁵ Of course, this still requires explanation: why make such a distinction between Torah and rabbinic law? Some have explained—this direction is very close to what Nahmanides himself suggested as a possible explanation of Maimonides, and then rejected—that all this was done in order to distinguish rabbinic law from Torah law, and perhaps also to avoid violating the prohibition against adding to the Torah.

But on this account it will be difficult to explain cases of established prohibition—ikva issura or ithazzek issura—where the duty to be stringent in Torah law is, by all opinions, itself Torah law, since one brings a provisional guilt-offering in such cases, implying that they are forbidden by Torah law. So wrote Shev Shema’teta at the beginning of the first discourse, along with many later authorities. If so, in cases where established prohibition exists in a context of rabbinic doubt, we should apparently have to be stringent just as in the analogous Torah cases.²⁶

2. “They said it and they said it”: mechanism B

Nahmanides himself proposes a solution for explaining Maimonides, and a number of commentators adopted it—see, for example, Zohar Ha-Rakia, cited in Shev Shema’teta, first discourse, end of chapter 3; Lehem Mishneh at the beginning of the Laws of Rebels; the Mafteach in the Frenkel edition there; and also Kuntras Divrei Sofrim, end of sec. 1, subsection 43 and following. See there subsection 44 for a practical difference regarding fulfillment of obligations. The proposal is this: even if the rule that doubt in Torah law is treated stringently is itself from the Torah, the enactments themselves are still rabbinic. Therefore the sages themselves waived, or conditioned, the enactment in cases of doubt.

The previous direction held that the sages waived the rabbinic rule of stringency in doubtful cases. We now suggest something different: in doubtful cases the sages waived the very enactment itself. Here too one can say: “They were the ones who said it, and they were the ones who limited it.”

We should emphasize that according to this explanation, even if the rule that doubt in Torah law is treated stringently is itself Torah law, and even if what the sages enact thereby receives Torah-level force, still, since they are the ones who enacted it—and they could have refrained from enacting it altogether—they also have the authority to determine that these laws will have lighter parameters. For example, that doubt in them should be treated leniently. The previous explanation can be said only if one holds that the general law of doubtful cases is rabbinic.

By way of illustration, let us consider a case in which a person vows not to eat bread. In the laws of vows, the Torah gives us the power to add to ourselves a new prohibition beyond the Torah’s prohibitions. If that person then eats bread, he violates the Torah prohibition “He shall not profane his word,” and the positive commandment “According to whatever comes out of his mouth shall he do.” What happens in a case of doubt? Clearly, if there is doubt whether something is bread or not, the doubt is treated stringently, because it is a Torah doubt. But what if the person had added, at the time of the vow, a condition that the vow would not apply in cases of doubt? In that case, one who eats something of doubtful status would be exempt—and exempt with certainty, not by reason of uncertainty. Thus, when a person creates and renews the prohibition, he can also limit it to certain contexts, for “the mouth that prohibited is the mouth that permitted.” The same is true of the sages: when they establish an ordinance, nothing prevents them from limiting it to cases of certainty alone, even if we assume that the ordinance has Torah-level force. Here too the logic of “the mouth that prohibited is the mouth that permitted” applies.

Now, later authorities objected to this explanation—see Shev Shema’teta there, who raises the question against the above-cited Zohar Ha-Rakia: why are cases of disagreement among the authorities also treated leniently in rabbinic law? When decisors disagree over a rabbinic law, the rule is leniency, as in any rabbinic doubt. But here the explanation just proposed seems inapplicable. The authority who says the matter is permitted holds that it is permitted outright, with no prohibition at all. His colleague, who says it is prohibited, likewise holds this with certainty. Did either of them sit down and permit us the matter in a situation where we are uncertain which of them is right? The one who prohibits certainly prohibits; the one who permits certainly permits. We simply do not know who is correct. If so, who permitted us to be lenient in doubtful cases? Who waived the enactment?

It seems, however, that this objection too can be answered in several ways. I will mention two of them:

1. Rabbi Shlomo Zalman Auerbach, in his notes to Shev Shema’teta there, wrote that when there is disagreement among the sages, there is nothing here that can be treated as a binding ruling—for where there is disagreement, even the sage who prohibits would say that one is not obligated to follow his ruling, since another sage disagrees. Therefore one is not obligated to heed them, and if one does not heed them he is not considered someone who has deviated from their instruction.²⁷ More than that: Rabbi Shlomo Zalman writes there that Nahmanides would also agree to this, and that all Nahmanides’s objections requiring stringency in cases of doubt were only in relation to doubt about facts. As to that, the explanation of Zohar Ha-Rakia—and indeed Nahmanides’s own explanation of Maimonides—works well.²⁸

2. It is possible that there is here a general rabbinic enactment, accepted by all, that every rabbinic law and every opinion concerning it is stated only on this basis: that doubts in such matters are treated leniently. In other words, the leniency is not granted by the authority who enacted the law—or who held it exists—but by an earlier court that established the general law of doubt. That court determined that all enactments that would later be made, and all disputed rabbinic laws, would not be fully binding in doubtful cases. From this came the general rule that only doubt in actual Torah law is treated stringently, while doubt in rabbinic law is treated leniently.²⁹

3. Rabbinic prohibitions are obligations upon the person

Rabbi Shlomo Zalman writes there that if we understand rabbinic prohibitions not as prohibitions inhering in the object but as obligations upon the person—that is, prohibitions on defying the sages’ instructions, along the lines of Netivot Ha-Mishpat cited above—then where there is disagreement, and one follows the lenient view, there is no defiance at all. Therefore the permission is certain, much like Netivot Ha-Mishpat‘s view in the case of an unintentional rabbinic violation.³⁰ In that case there is no obligation at all to follow the ruling; it is not merely a doubtful permission.

This direction is not only another answer to the question raised by Shev Shema’teta. It is also an independent possible explanation of Maimonides himself: doubt in rabbinic law is treated leniently because in laws of obedience, even if they are ultimately Torah-based, where there is doubt there is no prohibition at all—just as in the case of unintentional violation according to Netivot Ha-Mishpat. Defiance where it is uncertain whether any instruction exists is not defiance.³¹

Below we will see that this direction, which is very close to Netivot Ha-Mishpat, is problematic in Maimonides himself in light of what he says in the course of this root. In fact, it seems that none of the medieval authorities fully adopts it.

4. Between rebellion and rabbinic offense

The author of Tzofnat Pa’aneach, and several other later authorities,³² wrote that Maimonides did not mean that every violator of rabbinic law violates a Torah-level positive and negative commandment. Rather, he meant that only one who refuses in principle to accept the enactment at all—like Elazar in Berakhot 19a, who cast doubt on the institution of hand-washing—that is, one who denies the authority of the sages in principle, violates the Torah prohibition “You shall not turn aside.”³³

According to this explanation, if a person violates a rabbinic prohibition—for example, eating poultry with milk—but does so out of desire rather than from principled denial of the sages’ authority, he does not violate the Torah prohibition “You shall not turn aside.” He violates only the rabbinic prohibition of poultry with milk. Only if the offense is committed from a principled refusal to accept the sages’ authority does he thereby violate a Torah prohibition.

It is important to stress that this is different from the approach of Netivot Ha-Mishpat mentioned above. According to Netivot Ha-Mishpat, an unintentional rabbinic offense is not an offense at all, and only an intentional offense counts as rebellion. Here the claim is different: it is possible to transgress unintentionally if one does not know that the sages have authority to legislate.³⁴ Conversely, even intentional violation is not always an act of rebellion, for one may in principle accept the authority of the sages, yet still be swayed by desire. Even where one violates in anger or defiance, this is not necessarily rebellion against the authority of the sages. The same is true regarding Torah prohibitions: there are cases in which people violate them in anger, or deliberately from desire, or simply for gratification, while still recognizing the fundamental authority of God and the Torah. A person who recognizes the sages’ authority but decides to violate a given law deliberately, for one reason or another, would not thereby violate this prohibition.

This proposal is strongly supported by the fact that the prohibition “You shall not turn aside” also applies to the rebellious elder, and there the offense is clearly one of rebellion, not of a specific substantive wrongdoing. It follows that the essence of the prohibition is rebellion against the authority of the sages, as is also suggested by the language of the verse itself. It is therefore quite reasonable to interpret the prohibition in the case of an ordinary person in the same way: its essence is rebellion against the sages’ authority, not violation of the content of their words. The forbidden act—such as eating poultry with milk—is only an expression of rebellion; the rebellion is the essence of the prohibition. As we saw, an ordinary person is not punished for such an offense, because this prohibition serves as the warning for a court-imposed death penalty, as Maimonides writes in Laws of Rebels 1:2, whereas an elder who rebels is liable to death.

But now a further question arises: what is the source of a person’s obligation when he violates the rabbinic prohibition without rebellious intent? As we have seen, in that situation the offender does not violate “You shall not turn aside”; he violates only a rabbinic prohibition. But why is there any prohibition here at all, if it does not come from “You shall not turn aside”? What is the source of the rabbinic prohibition itself? It would seem that the original problem simply returns: in other words, the words of Tzofnat Pa’aneach do not really address the question with which we are concerned, namely the authority of the sages. He does not explain the very notion of a “rabbinic commandment” or a “rabbinic transgression.” And even if we say that the rabbinic prohibition does somehow emerge from “You shall not turn aside,” it is still unclear how two distinct elements can be derived from the same verse.

There is here a strange mechanism: on the one hand, it grounds the obligation in rabbinic prohibitions in “You shall not turn aside”; on the other hand, when one violates rabbinic law in the ordinary case—where there is no rebellion—he does not thereby violate that Torah prohibition. This is a branching of a prohibition from a Torah source, but with a character different from what we usually encounter. Below we will define it more sharply.

It should be stressed that this mechanism offers a third alternative, or an intermediate direction, of a different character from the two dichotomous directions presented above. On the one hand, there is here a source in a Torah verse, “You shall not turn aside.” On the other hand, there is no direct violation of that verse itself, and yet there is still a halakhic offense. This mechanism is the only one that succeeds in slipping a foot between the two horns of the dilemma described above.

Such a mechanism requires explanation from two different angles:

1. What exactly is this mechanism?
2. What is its relation to the Torah prohibition of “You shall not turn aside,” which exists where one violates a rabbinic law from rebellion?

But first we must prove from Maimonides’s own words that some such solution is indeed necessary.

A proof that this is Maimonides’s view

We will now present evidence that the proposal of Tzofnat Pa’aneach, as explained above, is most likely a necessary reading of Maimonides himself.

Nahmanides proved that according to Maimonides there is a Torah prohibition of “You shall not turn aside” even for an ordinary person, not only for the rebellious elder. The proof was based on Maimonides’s language in Laws of Rebels 1:2, where he states that one is not flogged for this prohibition because it serves as the warning for a court-imposed death penalty, since the rebellious elder is executed when he violates it. It follows from his language that there is indeed a Torah prohibition here; otherwise, why would we need reasons why one is not flogged for it? This reading is also supported by Maimonides in several other places, as noted earlier, where he derives the duty to obey the sages from the verse “You shall not turn aside.”

On the other hand, it is quite clear that Maimonides does not hold, as Nahmanides and Netivot Ha-Mishpat and many others understood him to hold, that every violation of rabbinic law is itself a Torah violation of “You shall not turn aside.” The proof lies in Maimonides’s words in Laws of Rebels 2:9, cited above. There he rules that even the sages can violate the prohibition of adding to the Torah if they fail to state, in the very content of their proclamation of a new enactment, that it is an enactment and not a Torah commandment. It is clear from his language there that he means a Torah violation of adding to the Torah; see there carefully.

But if every such enactment were merely an additional circumstance under the prohibition “You shall not turn aside,” why would there be any need to say so? Why would there be any issue at all of adding to the Torah? The sages would simply be acting in accordance with the Torah’s own instructions in “You shall not turn aside”; they would merely be adding situations in which that prohibition applies. Is this really the addition of a new commandment to the Torah’s commandments? If Maimonides’s view were truly as Netivot Ha-Mishpat understood it—that the problem in rabbinic law is only obedience, not the content of the act itself, and that therefore an unintentional rabbinic violation is no violation at all—then all rabbinic enactments would be nothing more than different expressions of the duty to obey. We mentioned above the analogous case of vows under the Torah prohibition “He shall not profane his word.” If a person vows not to eat bread, must he announce that this is a vow and not a commandment, lest he violate the prohibition against adding to the Torah? Obviously not. There are simply different situations in which the Torah prohibition of violating one’s word applies. These are not additional prohibitions but applications of an existing prohibition. The same would then be true of “You shall not turn aside” with respect to rabbinic law. It follows that Maimonides apparently holds that there is a prohibition in the content itself—for example, in eating poultry with milk—and not merely a duty to obey the sages.

The conclusions that follow are therefore these: according to Maimonides, the duty to obey the sages is indeed derived from “You shall not turn aside.” Even so, rabbinic offenses have only rabbinic force, not Torah force, and they are not merely different implementations of “You shall not turn aside.” This is also indicated by the facts that doubts in them are treated leniently and by the other leniencies, as Nahmanides objected. Finally, despite all this, there is some Torah prohibition in “You shall not turn aside” even with respect to an ordinary person who violates an ordinance, safeguard, or decree of rabbinic law, as we inferred from the fact that according to Maimonides there would otherwise have been no reason to discuss lashes.

The required conclusion from all this is that there is an additional state, different from the ordinary one, in which even a layperson who violates a rabbinic ordinance violates a Torah prohibition. Most likely this is the state of rebellion of which the Rogatchover spoke. It also follows that rabbinic prohibitions are not literally included in the prohibition “You shall not turn aside,” but branch from it implicitly in some way. Otherwise they too would be Torah prohibitions.

To conclude this part of the discussion, it is worth noting that our final conclusion about Nahmanides’s view, at the end of the previous chapter, seems very similar. In his view too, rabbinic prohibitions appeared to branch in some way from “You shall not turn aside,” even though their status is rabbinic rather than Torah-based. He referred to this as asmakhta. Above we also considered whether Nahmanides would agree to the second layer we found in Maimonides—namely, that a layperson can violate the Torah prohibition if he commits the rabbinic offense as rebellion, that is, from principled denial of the sages’ authority.

Explanation: rabbinic offenses as an implicit interpretive decree

What remains is to explain what this unfolding, or branching, of rabbinic prohibitions from “You shall not turn aside” consists in, such that one who violates them nevertheless has not violated a Torah prohibition.

The following explanation may be suggested. The fact that the verse commands us not to deviate from the words of the sages, and that one who rebels against them thereby violates a Torah prohibition, teaches us implicitly that their words as such have halakhic standing. If there were no prohibition on deliberately eating poultry with milk—when this is done without rebellion—then it would not even be clear why eating it from refusal to acknowledge the sages’ authority should count as rebellion. If there is no prohibition on eating poultry with milk, why should eating it in denial of the sages’ authority have any rebellious significance? Put differently: if there is no prohibition in eating poultry with milk itself, then with respect to what was this authority granted? There is no meaning to an authority given to the sages if it binds to nothing beyond a prohibition on rebelling against it. It would be like a prohibition that says only, “Do not rebel,” without specifying what counts as rebellion or what authority defines it.³⁵

The children’s author A. A. Milne, in Winnie-the-Pooh, tells of Piglet’s house, above which there hung a proud sign reading: “Trespassers will be prosecuted.” But nowhere is there any definition of who counts as a trespasser or what act of trespass the sign refers to. There is an offender with no defined offense. The command “You shall not turn aside,” if defined only as a ban on rebellion, is exactly such a command: the offenders will be punished, but there is no definition of the offense or of the offender.

This very consideration, then, becomes a revelation from the verse “You shall not turn aside” that the words of the sages possess halakhic standing. From where do we derive this from the verse? Precisely from this consideration itself. If there is a prohibition against rebelling against the authority of the sages, then we can infer that they do indeed have authority to legislate and enact ordinances, and therefore it is clear that we have an obligation to obey them.

We can now also see why the force of this second element is not Torah-level but only rabbinic. One who eats poultry with milk out of desire, and not from principled denial of the sages’ authority, violates a rabbinic prohibition but does not violate “You shall not turn aside.” The reason is that from the verse we have only indirect proof of the existence of these prohibitions; the verse does not directly command against them. One who eats poultry with milk in this way has not violated “You shall not turn aside,” but rather a rabbinic prohibition whose enactment the verse reveals the sages to have authority to create. This is a mechanism that may be called branching, and this is likely what the Rogatchover meant. The nature and implications of this mechanism are explained in detail in the fourth book of the quartet, Shtei Agalot Ve-kadur Pore’ah, where its parallel to Maimonides’s view in the second root is also discussed. We cannot expand on it further here.

From this it also becomes clear that there are not two separate principles derived from the verse “You shall not turn aside.” The Torah-level element—the prohibition against rebellion—plainly, though implicitly, points to the second element, whose force is rabbinic. In fact, this very line of reasoning teaches us that the category “rabbinic prohibition” exists at all. The foundation of rabbinic prohibition, then, also lies in the verse “You shall not turn aside,” but not as a command; rather, as a revelation only. This is the mechanism of delegated legislation mentioned above, but understood substantively and not merely through the kind of formal mechanism later writers proposed, one that also parallels the standard legal explanation of subordinate legislation.

The main novelty of this proposal

Nahmanides understood Maimonides to mean that when he says that the prohibition of eating poultry with milk is specified out of “You shall not turn aside,” he means that one who eats poultry with milk literally violates “You shall not turn aside.” On that conception, the sages’ command merely creates the circumstances that make observance necessary in order not to violate that Torah prohibition. In other words, the sages’ words have no dimension of command of their own; they merely create and shape the various circumstances in which a person might violate “You shall not turn aside.” This is exactly parallel to the example of vows we mentioned earlier.

Nahmanides also reads Maimonides this way. In a vow, a person creates factual circumstances to which the Torah applies a prohibition. Therefore, all vows are one prohibition only: not to profane one’s word. According to Nahmanides’s reading of Maimonides, rabbinic prohibitions are similar: the sages create only factual circumstances—rabbinic commandments—while the normative force is created by the Torah. As already noted, this approach leads to the conclusion of Netivot Ha-Mishpat: that rabbinic prohibitions contain nothing but obedience and disobedience. The only prohibited dimension is failure to obey, not eating poultry with milk itself. Hence all rabbinic prohibitions are fundamentally the same prohibition.

But as we have seen, this cannot be the correct understanding of Maimonides’s own words. We therefore propose a different reading of Maimonides: branching rather than specification. The words of the sages are not merely a particular application of the prohibition “You shall not turn aside,” or a change in the factual circumstances to which it applies, as in vows. Rather, the sages create distinct commands, each with its own content and standing, and each branches from, rather than is specified by, “You shall not turn aside.” We will sharpen this further below in Maimonides’s own words in the root.

According to Maimonides, the Torah only reveals to us that it is forbidden to rebel against these commands; it does not command us regarding their content. The Torah is not the normative source from which these prohibitions draw; the authority of the sages is that source. The Torah’s revelation enables the sages to create independent prohibitions of lower force: rabbinic prohibitions.

It should be noted that the author of Kovetz Shiurim—see Kuntras Divrei Sofrim, sec. 1, subsection 25 and following—holds that according to Maimonides every rabbinic prohibition contains two prohibitions: “You shall not turn aside,” and the rabbinic prohibition itself. According to our view, the picture is very similar, since in this verse too there are two dimensions: “You shall not turn aside”—though this is only a grant of power, not a command in the ordinary sense—and by virtue of that power, new rabbinic prohibitions are created. In addition, as we saw, direct rebellion against that power is itself a Torah transgression.³⁶

Returning to Nahmanides’s position

Above we saw that Nahmanides probably would not agree that there is any Torah-level layer of “You shall not turn aside” with respect to the ordinances of the sages, contrary to Rabbi Chaim Soloveitchik and Rabbi Elhanan Wasserman. That is, he cannot adopt the direction suggested in Tzofnat Pa’aneach as they proposed. Yet our conclusion in the discussion of Nahmanides there was that he too does adopt some intermediate model of branching. As we saw, this is a necessary conclusion imposed by the structure of the problem—the two horns of the dilemma within which the issue is defined—regardless of whose view we examine. It therefore seems that the description in this chapter must fit Nahmanides as well. On his view too, the duty to obey the sages must somehow be derived from the Torah—apparently from “You shall not turn aside”—but it is not a simple implementation of that prohibition. Put differently: in order to avoid the two problems raised by the two horns of the dilemma concerning the authority of the sages—on the one hand, what Torah source grounds that authority, and on the other, if there is such a source, what difference remains between rabbinic and Torah law—even Nahmanides must accept the mechanism of branching described here.

If so, what difference remains between Nahmanides and Maimonides? We saw that Maimonides derives two dimensions from “You shall not turn aside”: where there is rebellion, one violates a Torah prohibition; where there is no rebellion, one violates a rabbinic prohibition. We also saw that Nahmanides does not allow any Torah dimension to “You shall not turn aside” in the case of an ordinary person, and therefore he probably rejects Maimonides’s second rule—that rebellion involves a Torah violation of “You shall not turn aside,” as we argued above. But with respect to the first rule—that without rebellion there is a rabbinic prohibition somehow learned from “You shall not turn aside”—he can certainly agree.

We saw above that Nahmanides explicitly states that the duty to obey the sages in their enactments is connected to “You shall not turn aside” by way of asmakhta. We explained his view there by adopting the Ritva’s understanding of asmakhta as substantive. It stands to reason that the foundation of the matter is as follows: from the obligation to heed the sages’ interpretations—which all decisors agree is learned from “You shall not turn aside”—we learn that there is also an obligation to heed their enactments. How does that asmakhta operate? Presumably exactly as we saw in Maimonides. The Torah’s revelation that the sages possess authority means that we are obligated to obey their commandments. As noted, there is no logical escape from adopting some such direction, unless one wishes to become trapped on one of the two horns of the dilemma described above.

From another angle we may put it this way: unlike Maimonides’s conception, according to Nahmanides the verse “You shall not turn aside” is not a command-verse but a declarative verse. It merely reveals to us the authority of the sages; it does not command us concerning it. From that revelation the specific prohibitions branch out, exactly as we explained in Maimonides. What Nahmanides rejects is the claim that principled rebellion against the sages’ authority is itself a Torah prohibition. In his view, the verse “You shall not turn aside” contains no commanding dimension at all.

This conclusion, of course, stands in opposition to the view of Rabbi Chaim Soloveitchik and Rabbi Elhanan Wasserman cited above, according to whom even Nahmanides agrees that principled rebellion against the authority of the sages is a Torah prohibition.

D. The Course of Maimonides’s Discussion in the First Root

Introduction: Maimonides’s attack on BehaG

In the previous chapters we examined the dispute between Maimonides and BehaG, on the one hand, and Nahmanides, on the other, regarding the authority of the sages. We can now read Maimonides’s words in this root and understand the foundations of his dispute with Nahmanides and with BehaG. In the introductory essay we noted that in his roots Maimonides primarily confronts BehaG, and that is true here as well. It turns out that although BehaG agrees in principle with Maimonides regarding the authority of the sages—namely, that it is learned from “You shall not turn aside”—there is nevertheless a dispute between them about whether rabbinic commandments should be included in the enumeration of the commandments.

Maimonides attacks him for this. Such an attack could proceed along two parallel channels: an interpretive channel and a substantive one. To attack BehaG on the interpretive level, Maimonides would have to show from the wording of Rabbi Simlai’s statement—this being the main source for the count of 613 commandments—that it necessarily does not refer to rabbinic commandments. To attack on the substantive level, Maimonides would have to advance principled arguments excluding rabbinic commandments from the enumeration. Arguments of the substantive sort could come from two directions:

1. Rabbinic commandments should not be included in the enumeration because their force—and perhaps also their character—is different.
2. They should not be included because they are already contained within the Torah commandment “You shall not turn aside.”

This second type of attack rests on Maimonides’s seventh root, according to which one does not count different applications of the same commandment.³⁷ In that sense, the principle of the present root would merely be a particular application of the more general principle described in the seventh root.³⁸

Now if Maimonides really understood rabbinic commandments to be nothing more than different applications—that is, specifications—of “You shall not turn aside,” as Nahmanides and Netivot Ha-Mishpat understood him, and as in the example of vows cited above, we would expect his main attack to proceed along this second line: they should not be counted because they are already included in “You shall not turn aside.” But strangely, Maimonides hardly addresses this at all, and the seventh root is not mentioned in the course of his argument here. This is the most striking fact about Maimonides’s discussion in the first root.

In light of what we argued in the previous chapters, this phenomenon can be explained very well. Maimonides’s course of argument clearly shows that he did not see rabbinic commandments as included in the prohibition “You shall not turn aside.” But this should not surprise us. Above we argued that, for Maimonides, rabbinic law branches out from “You shall not turn aside,” but is not literally included in it or specified by it. Our conclusion was that Maimonides regards rabbinic commandments as having independent standing, not as implementations of “You shall not turn aside.” The rabbinic commandments are only hinted at indirectly through that verse; it is not correct to say that they are different applications of it. As we concluded, one who violates one of them has not violated the Torah prohibition “You shall not turn aside.” For this reason, according to Maimonides there is no way to subsume those commandments under that prohibition. This explains thoroughly why Maimonides never raises such an argument anywhere in his discussion of the present root.

The scheme of the discussion

At the beginning of his remarks, Maimonides refers to the view of BehaG and those following him, who counted rabbinic commandments such as the Hanukkah lamp, the reading of the Scroll of Esther, one hundred blessings each day, the eighteen days on which one completes Hallel, and the like, as part of the 613 commandments. Maimonides argues that what led BehaG to count these commandments was the fact that we also recite over them the formula “who sanctified us with His commandments and commanded us”—language that expresses the fact that we are commanded regarding them by the Holy One, blessed be He, that is, by the Torah. The source is the talmudic passage in Shabbat 23a, which discusses the possibility of using the phrase “and commanded us” over the lighting of Hanukkah lamps and asks, “Where did He command us?” The answer given is: from “You shall not turn aside.” According to Maimonides, then, BehaG counts rabbinic commandments because we are commanded to observe them by the Torah. In Maimonides’s view, BehaG’s method follows from his principled position regarding the authority of the sages. If every rabbinic commandment has Torah-level force because it is learned from “You shall not turn aside,” then there is reason to include it in the enumeration.

Maimonides, who accepts this position of BehaG with regard to the authority of the sages, raises against him several arguments, some interpretive and some substantive—though none of them is connected to the seventh root, as noted above. We will follow Nahmanides, who divides Maimonides’s objections to BehaG into four:

1. (Nahmanides, p. 16) In Rabbi Simlai’s statement in Babylonian Talmud, Makkot 23b, near the end—and see also our introduction to the book—it is stated explicitly that the 613 commandments under discussion were “given to Moses at Sinai.” It is therefore clear that this count does not include rabbinic commandments, for these were not given there to Moses but were introduced later in the course of history. This is an interpretive objection to BehaG based on Rabbi Simlai’s language.

2. (Nahmanides, p. 38) According to BehaG, who holds that rabbinic commandments should also be counted, he should have counted all rabbinic commandments, such as the laws of eruv and hand-washing. Maimonides sharpens the objection and says that especially if BehaG’s source is the sugya in Shabbat concerning “You shall not turn aside,” then all rabbinic commandments ought to be included in that command.

On the other hand, Maimonides adds at the end of the root that if BehaG really counted all the rabbinic commandments included in “You shall not turn aside,” their number would run into the thousands and certainly not stop at 613. According to Maimonides, this is proof that rabbinic commandments are not included in the enumeration at all. In any event, BehaG himself did not count all of them. Here Maimonides argues that BehaG’s position is not only against the plain sense of Rabbi Simlai’s words; it also contains an internal contradiction, because it is forced to remain within the overall number of 613. He does not count all the rabbinic commandments.

This argument too implies that, in principle, there would have been room to count all rabbinic commandments in the enumeration, and not to subsume them under “You shall not turn aside.” Maimonides merely proves that this cannot be correct because it would not fit the total number. Here too it seems that Maimonides is willing, in principle, to entertain the idea that rabbinic commandments could be counted—even each one separately. As noted, he never raises the problem of their being already included in “You shall not turn aside.”

3. (Nahmanides, p. 42) Why, on BehaG’s own view, does he not count rabbinic prohibitions as well—for example, the secondary relations forbidden in addition to incest—rather than only part of the rabbinic positive commandments? This looks like a continuation of the previous difficulty. earlier Maimonides argued that BehaG should have counted all the positive rabbinic commandments; here he adds the rabbinic negative commandments as well.³⁹

Again, this is an interpretive objection from Rabbi Simlai’s statement, continuing objection 2 and nothing more. Indeed, the fact that both Maimonides and Nahmanides treat these as two separate objections requires explanation.

4. (Nahmanides, p. 42) After discussing rabbinic positive commandments, Maimonides adds that all ordinances of prophets after Moses our teacher⁴⁰ also have only rabbinic force, and he brings proofs for this from talmudic sugyot. Hence there is no basis to count them either, for they were not given at Sinai but were enacted later.⁴¹

On the basis of this, Maimonides argues that one cannot defend BehaG by saying that laws of prophetic tradition—such as Purim—may indeed be counted, since they too are rabbinic commandments. Clearly Maimonides is not trying to offer a full explanation of BehaG’s view, for BehaG counts also straightforward rabbinic commandments that are certainly not laws of prophetic tradition, such as the Hanukkah lamp and one hundred blessings.⁴² More than that, BehaG does not count other laws that are in fact of prophetic tradition, such as eruv and hand-washing. Moreover, as we saw above, Maimonides understands BehaG’s method as based on “You shall not turn aside,” independently of the question of the status of prophetic tradition. So Maimonides is simply broadening the question and showing that even the commandments of prophetic tradition counted by BehaG do not escape the same difficulty.

Maimonides’s arguments at this point divide into two:
1. Laws of prophetic tradition are rabbinic laws, and therefore should not be counted. He proves this from the Talmud’s statement that the laws of eruv instituted by King Solomon—that is, a law of prophetic tradition—are regarded as rabbinic law. This continues Maimonides’s argument in objection 2, that rabbinic positive commandments should not be counted.
2. Some of the rabbinic commandments counted by BehaG are actually specified out of a Torah commandment, and therefore should not be counted. The reason is that these commandments, even if Torah-level, are not independent commandments. For example, BehaG counts clothing the naked, learned from verses in Isaiah 58—”when you see the naked, clothe him”—whereas it should not be counted because it, together with several other particulars, emerges from the Torah positive commandment “sufficient for his need, that which he lacks” (see p. 16).

This point sharply highlights the phenomenon noted above. Here Maimonides attacks BehaG by means of the principle of the seventh root: the rabbinic commandment he counts is already included in a counted Torah commandment. But precisely this strange resort to the seventh root only intensifies the question accompanying us all along: Maimonides does not raise, with respect to BehaG’s general view, the difficulty that rabbinic commandments are included in “You shall not turn aside.” Even regarding “when you see the naked,” he raises only its duplication with “sufficient for his need.” But what about its inclusion in “You shall not turn aside”? Maimonides himself defines it as a rabbinic commandment.

Thus, the first three arguments were technical and interpretive. Only here, and only in a very specific context, does the second type of argument mentioned above appear: the substantive-classificatory argument based on the seventh root.

To this we may add Maimonides’s own language, “This is what escaped the notice of others,” at the beginning of his words here, immediately before he brings the substantive objection of duplication. It seems that he links these two directions of attack. This remark gives us an initial clue for understanding Maimonides’s position in this root, and about rabbinic commandments in general, and we will expand on it below.

The picture emerging from Maimonides’s discussion of this root

As stated, we might have expected Maimonides here to raise principled objections—for example: how can rabbinic commandments be counted within the enumeration, given their different force and standing? But he raises no such question anywhere in his discussion of this root. At first glance, he does not seem to assume that the count of 613 must include only commandments of Torah authority. This observation might seem to push us toward Nahmanides’s interpretation of Maimonides: that every rabbinic offense involves violation of the prohibition “You shall not turn aside,” and that rabbinic law therefore has Torah force.

On the other hand, Maimonides also does not raise against BehaG the classificatory objection that would naturally follow from such a view: why does BehaG count rabbinic commandments separately, rather than content himself with counting “You shall not turn aside,” which includes all rabbinic law?

As we noted in the introduction to this chapter, if Nahmanides’s understanding of Maimonides were correct—that every violation of a rabbinic enactment is a violation of “You shall not turn aside”—we would expect Maimonides’s main objections to BehaG to take precisely that form. If there is nothing in a rabbinic offense beyond violating “You shall not turn aside,” then the main objection to BehaG should have been based on the seventh root. The necessary conclusion is that Maimonides does not view rabbinic commandments as Nahmanides and Netivot Ha-Mishpat understood him to. The picture emerging from Maimonides’s discussion here is exactly the one we described above: Maimonides holds that rabbinic enactments do indeed draw their force from the prohibition “You shall not turn aside,” but they have independent content and only rabbinic standing. They branch out from “You shall not turn aside,” but are not specified by it. It is therefore incorrect to say that, according to Maimonides, anyone who violates one of them has violated the Torah prohibition “You shall not turn aside.”

A note from Maimonides on the commandment of Hallel

Within his remarks, Maimonides himself raises a possible way of explaining BehaG. He suggests that perhaps BehaG thought the Torah commanded a general kind of case, and certain historical events are merely circumstances in which we become obligated to implement that command. For example: the Holy One commanded us at Sinai that when we would one day fight the Greeks and defeat them, we should kindle Hanukkah lights. Maimonides dismisses this out of hand, saying that no one would entertain such a strange possibility.⁴³

Yet one might have suggested a different, simpler possibility: that we were given at Sinai a general commandment, and the Hanukkah lamp is only a particular implementation of it. For example, the Torah commands that when we are victorious in some war, we should establish a commemorative observance with special laws of publicizing the miracle. Specific obligations could then be derived from this general command as the sages determine appropriate in each historical context. In such a description, it becomes more plausible to classify Hanukkah and Purim as Torah commandments, and harder to dismiss the possibility out of hand. It is worth noting that we do find several examples of this among the medieval authorities, such as the obligation to recite Hallel and thanksgiving after deliverance. On Hanukkah there is indeed an obligation of Hallel. Such a conception also appears in various contexts where, according to some medieval authorities, the Torah “handed the matter over to the sages.”⁴⁴ If so, why does Maimonides not even raise this as a possible explanation of BehaG? Why does he propose specifically the forced and bizarre possibility mentioned above? On the face of it, the simpler possibility could indeed have explained BehaG.⁴⁵

If we do not wish to ascribe demagoguery and intellectual dishonesty to Maimonides, we must conclude that he does not raise that possibility in explaining BehaG because, on that model, there would be no logic in counting Hanukkah and Purim as independent commandments. In that case we should count the Torah commandment from which they derive—for example, a commandment to establish a memorial for every victory—and treat those two commandments only as applications of that already-counted commandment. That is precisely the principle Maimonides establishes in the seventh root: one does not count different applications of a single commandment, even if they are explicit in the Torah, all the more so in the case of Hanukkah and Purim. So Maimonides’s objection here really does seem decisive.

Once again we see that Maimonides does not attack BehaG by means of the seventh root; his arguments here are purely interpretive. This is yet another indication that he does not understand the duty to obey the sages in the way Netivot Ha-Mishpat explains it. More than that: from his remarks about Hallel it appears that he is unwilling to understand matters this way even in BehaG.

Summary

Throughout, we have seen that Maimonides consistently refuses to attack BehaG from the angle of the seventh root, despite the fact that in several places such an attack would have been expected. Indeed, in side contexts that type of attack does appear—for example, with regard to “sufficient for his need.” This picture strongly reinforces our proposal for explaining Maimonides: he sees rabbinic commandments as branching out of the prohibition “You shall not turn aside,” not as its specifications, and therefore he is unwilling to subsume them under it.

D. A Study of Nahmanides’s Glosses

Introduction

This chapter deals with Nahmanides’s comments in his glosses on this root. His discussion is long, complex, and ramifies into many issues—sometimes seeming to contain not a few internal tensions—and it will be difficult to do it justice within our present framework. We will therefore describe Nahmanides’s words briefly, dwelling mainly on points relevant to the discussion we have conducted thus far.

Resolving Maimonides’s first objection

As stated, Maimonides argued against BehaG that Rabbi Simlai’s wording proves that rabbinic commandments are not counted, since he says: “Six hundred and thirteen commandments were said to Moses at Sinai.” Nahmanides brings four considerations that might rescue BehaG from Maimonides’s first objection:

1-1.

According to Nahmanides (p. 17), BehaG’s version of Rabbi Simlai’s statement was not the one cited by Maimonides—”613 commandments were transmitted to Moses at Sinai”—but rather: “613 commandments were commanded to Israel.” That wording can include rabbinic commandments as well, because over them too we recite “and commanded us”—that is, we were commanded regarding them by the Almighty through “You shall not turn aside.”

However, Rabbi Azriel Hildesheimer already noted in his commentary to BehaG—and Rabbi Yerucham Perlow expanded on this at the beginning of part 1 of his commentary to Saadia Gaon’s Sefer Ha-Mitzvot on this root—that at the end of the list of commandments in his introduction, BehaG himself explicitly writes that all these commandments were received at Sinai. It therefore seems that this line of defense does not fit BehaG’s own view.⁴⁶

After this (p. 17), Nahmanides adds that even if the correct wording in BehaG is indeed the one appearing in Maimonides—”were transmitted to Moses at Sinai”—Maimonides’s objection can still be rejected. He offers three further directions, to which we now turn.

1-2.

The sages are accustomed to couch their words in Torah language, and to support them with verses, or to refer to them in the form “the Merciful One said,” in order to strengthen them; see his proofs there. Presumably he means that Rabbi Simlai’s statement that the commandments were “given at Sinai” is merely a way of reinforcing rabbinic commandments, not a substantive claim.⁴⁷

At this point one should note Maimonides’s words in Laws of Rebels 2:9. There he rules that a court instituting an ordinance or decree must state, in the wording of the enactment itself, that this is not a Torah commandment, that by the Torah the matter is permitted and only by rabbinic law is it forbidden. Maimonides writes that if they do not do so, they violate the prohibition against adding to or subtracting from the Torah. It thus seems that Maimonides holds it improper to use Torah language in the framework of rabbinic ordinances and decrees, and perhaps here too he remains consistent with that position. Therefore, when Rabbi Simlai said “were transmitted to Moses at Sinai,” it was clear to Maimonides that he meant only Torah prohibitions, not rabbinic ones.⁴⁸

It is possible that Nahmanides here disagrees with this and sides with the Raavad in his glosses there. The Raavad supports his objection to Maimonides precisely by the fact that the sages sometimes reinforce their words with Torah-like language. The Rashba and the Ritva as well, in Rosh Hashanah 16a, in their disagreement with Tosafot s.v. “And they blow,” apparently hold that there is no prohibition in this.⁴⁹

1-3.

Nahmanides further argues (p. 17) that the sages—and indeed the Torah itself—are not always exact in matters of enumeration, and he cites examples. He notes that there are also Torah commandments not actually given at Sinai, such as the law of the wood-gatherer and the daughters of Zelophehad, yet Rabbi Simlai did not omit them from the count of 613 “given to Moses at Sinai.” Rabbi Yerucham Perlow, on this root, cites additional examples.

Presumably Maimonides holds that all Torah commandments were in essence given to Moses at Sinai, unlike laws of prophetic tradition or rabbinic law. The fact that some of them are presented in the Torah as though they were actually said, historically rather than in principle, at a later point is an interpretive problem; but for Maimonides, in substance all of the Torah was given at Sinai.⁵⁰ This depends on one’s conception of the Torah itself—a matter to be discussed in the essay on the second root—of revelation at Sinai and its theological and interpretive status, and on the relation of those conceptions to the historical presentation of events and commands in the Torah, which at times presents them as if they occurred or were said earlier or later. This is not the place to enter that complex interpretive issue.

1-4.

Nahmanides still further argues (p. 18), in explaining BehaG, that since we bless over these commandments using the formula “and commanded us”—that is, since we were commanded regarding them through “You shall not turn aside”—they count as commandments commanded to us at Sinai. That is why BehaG counted them among the 613, and Rabbi Simlai could include them in the phrase “were transmitted to Moses at Sinai.”

This fourth argument is very important for clarifying the dispute before us, so we will dwell on it a little more.

At first glance, what is stated here is an interpretive principle about the words “were transmitted to Moses at Sinai,” and not necessarily a substantive principle that the force of rabbinic commandments is equal to that of Torah commandments—for according to Nahmanides, that conception is attributed by him even to Maimonides. Yet Nahmanides’s language suggests that he intends to say the substantive principle as well: the blessing formula “and commanded us” shows that the obligation to observe rabbinic commandments derives from “You shall not turn aside.” Only then does he infer the interpretive principle that every such commandment was, de facto, said to Moses at Sinai, and can therefore be included in the enumeration.⁵¹

It therefore appears from Nahmanides’s proposal here that, in his understanding of BehaG, two elements are at work:

1. The interpretive element: because rabbinic commandments are included in “You shall not turn aside,” one may refer to them as having been “said to Moses at Sinai.”
2. The substantive element: the force of rabbinic commandments is equal to that of Torah commandments, and that is why they may be counted; for that very reason Rabbi Simlai could say of them too that they were given at Sinai.

From Nahmanides’s own language here, it seems that he does not distinguish between these two claims. He writes: “There is no difference between them with respect to being called ‘Sinai,’ except that one is in the particular and the other in the general.” This implies that, according to BehaG, rabbinic commandments are a specification—also in the technical sense we have been using—of “You shall not turn aside,” and are therefore indeed “said to Moses at Sinai.”

Interim discussion: conclusions about the dispute between Maimonides and BehaG

But the connection between these two claims is not necessary, and this in two opposite directions, according to the interpretations of Maimonides we discussed above:

1. According to Nahmanides’s own reading of Maimonides—that rabbinic commandments are specified out of “You shall not turn aside”—Maimonides would hold that the status of rabbinic law is equivalent to Torah law, and yet he still refuses to interpret Rabbi Simlai as referring to them. Below we will see why. It is therefore possible that BehaG disagrees with him only on the interpretive plane, holding that Rabbi Simlai’s words can still include them. On this proposal, the dispute between Maimonides and BehaG would be interpretive only.

2. Even according to our own explanation of Maimonides—that rabbinic laws branch from “You shall not turn aside”—one could still interpret BehaG as agreeing with Maimonides, namely, that rabbinic laws were indeed transmitted at Sinai, since they branch from the commandment “You shall not turn aside,” while nevertheless their legal status remains rabbinic and therefore lighter, because they branch from that verse rather than being specified out of it.⁵² On this understanding, the dispute between them would be only over whether Rabbi Simlai’s phrase can include such laws—in other words, an interpretive dispute only.

Why then does Nahmanides himself tie these two claims together? Why does he not content himself with pointing to the interpretive dimension of the disagreement, and feel compelled to add the claim about their legal force, which could just as well be common ground between the two sides?

It may be that Nahmanides rejects the second possibility because his own view does not accept the model of branching. In his view, anyone who grounds rabbinic enactments in “You shall not turn aside” must be using a model of specification. For that reason he rejects the second possibility we proposed, and for the same reason he refuses to accept such a reading of Maimonides as well.

But we still must explain why he does not suffice with indicating the interpretive dispute, and finds it necessary to add the substantive claim—that the force of rabbinic commandments is Torah-level. It seems that this too is intended to rule out the second possibility. In his view, if their force were not Torah-level, then Maimonides’s attack would be justified, since one could not include rabbinic commandments within Rabbi Simlai’s statement.

Three possibilities thus emerge for understanding the dispute between Maimonides and BehaG:

1. Maimonides is to be understood as we have proposed—branching—whereas BehaG disagrees precisely on this point and holds that the mechanism is specification. Therefore, according to Maimonides, rabbinic commandments cannot be included in Rabbi Simlai’s words, whereas according to BehaG they can.
2. Maimonides is to be understood as we have proposed, and BehaG agrees with him. Their dispute concerns only whether branching can be included within the phrase “transmitted to Moses at Sinai.”
3. Maimonides is to be understood as Nahmanides reads him—specification—and BehaG agrees with that too. The dispute then concerns only the rules governing the enumeration of the commandments, perhaps in relation to the seventh root. This, most likely, is how Nahmanides understands the dispute.

The relation to the seventh root: three more ways of understanding the dispute between Maimonides and BehaG

Above, when discussing Maimonides’s objections to BehaG, we explained why Maimonides does not attack him on the basis of the seventh root, namely that one does not count separately different applications of a single commandment. That followed from Maimonides’s understanding of rabbinic commandments as possessing independent content rather than being specifications of “You shall not turn aside.”

Nahmanides’s position, however, is that both Maimonides and BehaG view rabbinic commandments as specifications rather than branchings. Indeed, in defending BehaG, Nahmanides writes:

Moreover, since it was said to Moses at Sinai that Israel should accept upon themselves the commandments of the Great Court, and they then came and enacted these matters, all of them were already said to Moses at Sinai. There is no difference between them with respect to calling them “Sinai,” except that one is in the particular and the other in the general.

It appears from this that Nahmanides is making an argument that ignores the concept of branching we saw in Maimonides. If all rabbinic commandments are included in “You shall not turn aside,” then there is no difference between them and that verse except that it is the general and they are the particulars. They are therefore simple specifications of “You shall not turn aside,” and the force of rabbinic commandments is Torah-level. Everything was, de facto, given at Sinai.

According to our proposal, Maimonides would reply that although the obligation to observe rabbinic commandments does indeed branch from “You shall not turn aside,” it does not do so as particulars from a general rule, but rather “as branches emerging from roots,” as he himself says in the second root; we will discuss that in the next essay.

If so, then according to Nahmanides’s understanding of BehaG—and probably also of Maimonides—the relevant root for the discussion should have been the seventh root. If rabbinic commandments are only applications of “You shall not turn aside,” then they should not be included in the enumeration because they are already contained in that counted commandment. The difficulty then arises specifically for BehaG, whom Nahmanides is defending. If he too agrees that we are dealing with specification rather than branching, then the force of those commandments may indeed be Torah-level, but they still should not be counted because of a classificatory problem, namely the principle of the seventh root. If so, Nahmanides should have concluded that Maimonides is right and rejected BehaG’s view—not for the interpretive reasons Maimonides himself raises, but for the classificatory reason.⁵³

The apparently necessary conclusion from this argument would be to reverse the picture: BehaG must on pain of inconsistency understand the mechanism as branching rather than specification; otherwise there would be no room to count rabbinic commandments. Maimonides, by contrast, could in theory have agreed with Nahmanides and refused to count them because of the seventh root. But, as we saw, he too understands the mechanism as branching, and his reason for not counting rabbinic commandments lies instead in their force.

The conclusion is highly surprising: Maimonides and BehaG agree that the mechanism is branching rather than specification, contrary to Nahmanides’s understanding of both. Yet they disagree over whether laws that branch from a Torah commandment have Torah force or not. According to Maimonides the force is rabbinic, where there is no rebellion; according to BehaG it is Torah-level.

It seems that the foundation of the matter is the interpretive move we proposed above in Maimonides. We argued that if there is a Torah prohibition against rebelling against the sages’ authority—learned from the verse “You shall not turn aside”—then it follows that their words have force and may not be violated. According to BehaG, this very consideration supplies a Torah source for the force of those laws, and he therefore holds that their force is Torah-level. Only Maimonides maintains that such branching creates rabbinic law, because the verse merely reveals the existence of those commandments but does not directly command them.

This is a fourth way of understanding the dispute between Maimonides and BehaG, quite close to the second possibility above:

1. Both agree that the mechanism is branching, so that the law that branches off is not included in the source law, the root. But the dispute between them is not merely interpretive. It is based on disagreement about the force of a law that branches out of a Torah commandment: BehaG holds that its force is Torah-level, while Maimonides holds that it is rabbinic.

This is our own conclusion regarding the foundation of the dispute between Maimonides and BehaG. Nahmanides apparently does not see the matter this way, and in his view the dispute follows the third possibility above. But in light of the difficulty we raised—how Nahmanides’s explanation of BehaG accords with the seventh root—we may propose a fifth possibility, the reverse of the first, and perhaps this is how Nahmanides understood the dispute:

1. BehaG understands the mechanism as branching, and therefore regards each rabbinic commandment as independent and not included in “You shall not turn aside.” He sees a branched law as Torah-level, as in the explanation under possibility 4. By contrast, Maimonides, according to Nahmanides, understands the mechanism as specification, and therefore refuses to count these commandments separately.

However, Nahmanides’s own language does not really suggest this, since all along he seems not even to entertain the possibility of branching. A sixth possibility therefore suggests itself for understanding the dispute according to Nahmanides:

1. Since rabbinic commandments differ in their content as obligations upon the person—the obligation to read the Scroll of Esther is not the same as the obligation to wash the hands or make an eruv—then according to BehaG there is still room to count them separately, even if their normative-legal content is only obedience, and there is no difference between them and “You shall not turn aside” except that it is the general and they are the particulars, as Netivot Ha-Mishpat understands. Maimonides, of course, disagrees with precisely that point.⁵⁴

This indeed seems to be the understanding of the dispute that emerges from Nahmanides’s own language.

Resolving Maimonides’s fourth objection

In this objection Maimonides argues that BehaG’s count does not fit Rabbi Simlai’s statement that the commandments “were transmitted at Sinai,” since rabbinic enactments were instituted after the giving of the Torah. Within this discussion he also includes reference to rabbinic laws specified out of Torah commandments, such as clothing the naked from “sufficient for his need.”

Now Nahmanides himself, when addressing the objection from “sufficient for his need” to the commandment of clothing the naked, writes that Maimonides is correct on this point and that he has no answer to defend BehaG. Why does he not make the same sort of claims here that we saw above regarding objection 1? Is clothing the naked not also derived from “You shall not turn aside”? Does it not also have Torah force?

To understand this, we must remember that there are different mechanisms by which something moves from the plane of Torah law to the plane of rabbinic law. Sometimes we are dealing with specification, and then the specified law remains Torah law. At other times there is branching, as with rabbinic commandments branching from “You shall not turn aside” according to Maimonides, and then the resulting laws are rabbinic.

We should now note two related points:

1. As already observed, only at this point does Maimonides attack BehaG on the basis of the seventh root, namely that clothing the naked is included in “sufficient for his need.”
2. It is difficult to say that the mechanism connecting clothing the naked to “sufficient for his need” is branching rather than specification, because the content of the commandment of clothing the naked is literally identical to the content of “sufficient for his need.” This is not an indirect revelation, as we saw regarding “You shall not turn aside,” but a direct application of “sufficient for his need.” For exactly this reason Maimonides raises the objection that clothing the naked should not be counted separately, since it is included in “sufficient for his need.” This is unlike his arguments about all other rabbinic commandments, regarding which there is only one root in “You shall not turn aside,” from which they branch. In the case of clothing the naked, we saw that there are two Torah roots: “sufficient for his need”—which is specification—and “You shall not turn aside”—which is branching.

This is why Nahmanides finds no answer to this particular attack of Maimonides on BehaG. To the attack based on “You shall not turn aside” he has already responded, as explained above. But here Maimonides attacks on the basis of the seventh root, namely that the commandment of clothing the naked should be included in “sufficient for his need.” Since the relation to that root is one of specification rather than branching, this is indeed a decisive objection.

This of course fits well with both explanations 5 and 6 of Nahmanides’s understanding of the dispute, as presented above.

Summary and transition to Maimonides’s objections 2-3

In this root, Maimonides attacks BehaG with a logical pincer movement. On the one hand, he sees no justification for including rabbinic commandments in the enumeration, because Rabbi Simlai’s words explicitly include only commandments transmitted to Moses at Sinai. On the other hand, if one has nevertheless decided to count them for some reason, then one should count all of them—and that too cannot be right, because their number would rise into the thousands.

Now everything Nahmanides has said thus far provides several reasons for counting rabbinic commandments as well. But according to all four explanations, one immediately falls into the second jaw of Maimonides’s attack on BehaG, namely objections 2-3: if rabbinic commandments are to be counted for whatever reason, why does BehaG not count all of them—both the other positive and the negative rabbinic commandments? Admittedly, the reason may be that then the number would be much greater than 613, but that is still not a substantive explanation. Put differently: why did Rabbi Simlai himself not count all rabbinic commandments? Or: what criterion determines which rabbinic commandments are included in the enumeration out of the many that exist in halakha?

As already noted, in objection 2 Maimonides deals with positive rabbinic commandments, and in objection 3 with negative rabbinic commandments. We already remarked above that the words of Maimonides and Nahmanides on these two objections seem difficult for four main reasons:

1. It is not clear why Maimonides and Nahmanides treat objections 2 and 3 as distinct and separate the discussion between them. In Maimonides there is an entire passage—dealing with laws of prophetic tradition—that separates them. Nahmanides too divides the discussion and even gives different answers to the two questions.
2. It is not clear why the most decisive point in the attack—namely, that if BehaG counted all rabbinic commandments the number would reach thousands rather than 613—appears only in Maimonides’s concluding summary at the end of the root, rather than as the basis of objection 2 or 3 themselves.
3. From Maimonides’s language in these objections, it seems he is dealing only with the very specific examples he gives: the secondary incest prohibitions in the case of negative commandments, and eruv and hand-washing in the case of positive ones, rather than with the totality of rabbinic commandments. Do we really need examples to prove that there are other rabbinic positive or negative commandments? Why these examples in particular?
4. In objection 3, Maimonides raises two different questions against BehaG:
5. Why did he not count the secondary incest prohibitions as a commandment? This is an objection based on the first root, and perhaps also on the seventh.
6. Why did he not count each of them separately? This is an objection based only on the seventh root.

It is not clear why the second question belongs here at all. That is not an objection to counting rabbinic commandments as such, but to a point not directly related to this root. Moreover, here an objection of the seventh-root type suddenly appears, just as in the case of “sufficient for his need.” Elsewhere in the root Maimonides does not raise such an objection, precisely because he understands rabbinic commandments as branching out of “You shall not turn aside,” as explained above.

We will now examine the discussion of objections 2 and 3, each separately, and then return to explain the four difficulties just listed.

Resolving Maimonides’s second objection

Even before seeking criteria and substantive explanations for which rabbinic commandments BehaG chose to include in his count, it may be possible to detect here traces of the principled purpose of counting commandments in the first place. In the introduction we discussed several different aims one may find among the various enumerators of commandments. Maimonides’s goal in his enumeration was to create a skeletal framework for the halakhic edifice he constructs in his Mishneh Torah. The commandments are the chapter-heads, the organizing categories, of the entire halakhic structure. We should note that in BehaG too, the enumeration of the commandments serves as the framework that precedes the halakhic structure built in his own work.⁵⁵ If so, it is very plausible that there is no place to count rabbinic commandments in such a framework, since the count contains only the major headings out of which the whole halakhic structure will be elaborated. Rabbinic commandments are usually included in a broader circle around some Torah commandment, so it is reasonable to choose only Torah commandments as the headings included in the skeleton. For example, there is no point in counting the rabbinic prohibition of separating food from waste on the Sabbath; we include the laws relating to that case within the Torah prohibition of selecting on the Sabbath.

But there are rabbinic commandments that are not included in any circle around some Torah commandment. For example, the commandment of the Hanukkah lamp cannot be subsumed under any Torah law. How would Maimonides ensure that the laws concerning such rabbinic commandments are not forgotten? Under what heading would they appear in his halakhic work? It would seem that he should create a special category for them and include them in his enumeration. This is admittedly a technical consideration, not one touching their essence or legal force. But we saw in the introduction that such considerations do play a role in the organization of Maimonides’s legal structure.

At first glance, then, we might expect newly created rabbinic commandments—those that cannot be subsumed under any circle surrounding a Torah commandment—to appear as separate headings, and therefore to be included separately in Maimonides’s enumeration.

Yet Maimonides himself includes no rabbinic commandment at all in his list. The conclusion is that Maimonides’s enumeration is constructed not only on the basis of organizational considerations, but also on substantive considerations of legal status. In the introductory essay we already noted that the first two roots are of a different character from the others, because they introduce rules of non-enumeration based on legal force. These are substantive principles, not merely classificatory ones.

However, examination of the list of rabbinic commandments included in BehaG’s enumeration shows that he includes only newly instituted commandments. When Nahmanides discusses objection 2, which concerns rabbinic positive commandments (p. 38), he writes explicitly that BehaG counted only rabbinic positive commandments that are genuinely new, that is, those not included in Torah commandments as extensions of them. This also seems to follow from his discussion of objection 3 (p. 42), to which we now turn.

The examples Maimonides gives in objection 2 as rabbinic positive commandments that BehaG should also have included are hand-washing and eruv. These two are also newly instituted rabbinic commandments. From this it seems that Maimonides did understand BehaG’s criterion, namely: only newly created rabbinic commandments are counted. That is why he objects specifically from these two commandments, and not from every rabbinic commandment. This explains the third difficulty mentioned above.

We can also now understand why Maimonides does not put at the center of his attack the consideration that BehaG’s count should have included thousands of rabbinic commandments. If only newly created commandments are at issue, their number is actually relatively small. True, at the end of his discussion Maimonides adds that difficulty too, but that may be only a secondary addition—perhaps an addition from Maimonides’s own perspective, since he sees all rabbinic commandments as branchings with independent content from “You shall not turn aside,” and therefore does not distinguish them from newly created commandments. This explains the second difficulty listed above.

Resolving Maimonides’s third objection

Nahmanides then turns (p. 42) to discuss objection 3: why BehaG does not count rabbinic negative commandments as well. We should note that BehaG does not count any rabbinic negative commandment in his list. It may be that he views all rabbinic negative commandments as particulars within Torah commandments rather than as newly created commandments. If so, that fits well with our claim above that BehaG counts only newly instituted rabbinic commandments.

The main example Maimonides brings in his attack is the secondary incest prohibitions. Nahmanides indeed explains BehaG here by saying that he did not count them because these rabbinic prohibitions are fences, safeguards, and decrees intended to prevent violation of a Torah prohibition, and therefore they are included in the already-counted Torah commandments. This is exactly what we suggested above in explaining BehaG.

The main sugya dealing with the secondary incest prohibitions is in Babylonian Talmud, Yevamot 21a, where they are mentioned as an enactment of King Solomon together with eruv and hand-washing. It is interesting that these are exactly the three examples Maimonides brought in his attack on BehaG. Tosafot Yeshanim there, printed on the page, s.v. “Until Solomon came,” ask why in the parallel sugya in Eruvin 21b the secondary incest prohibitions are not mentioned, only hand-washing and eruv. They answer:

It may be answered that it counts only matters that depend on wisdom and judgment of the heart. But here the matter does not depend on wisdom; it is only to be stringent and make a fence for the Torah.

It seems that Tosafot Yeshanim state exactly the principle we established here: negative commandments are not genuine innovations of the sages, but added safeguards to existing commandments. Therefore they do not require special wisdom or independent reasoning. Positive rabbinic commandments, by contrast, are expressions of the sages’ wisdom and judgment, because there is a novel reason for the enactment, not merely a safeguard around an existing law. In substantive terms, positive rabbinic commandments are newly created commandments, while negative rabbinic commandments are safeguards and extensions of Torah commandments.

Explaining the two remaining difficulties

We can now understand the two remaining difficulties—numbers 1 and 4—with respect to Maimonides’s objections 2-3. We asked why Maimonides divides the discussion into two parts. The answer is that objection 2 concerns positive commandments, and there Maimonides attacks BehaG on his own terms: even if he counts only newly created commandments—and positive rabbinic commandments are by nature newly created rather than extensions or safeguards of existing commandments—he should still have added hand-washing and eruv, which are also newly created commandments.⁵⁶

Objection 3 deals with negative commandments, and there BehaG counts nothing because he does not count commandments that are particulars within existing ones. But Maimonides continues his previous attack: if there is indeed no explanation why BehaG omitted hand-washing and eruv, then evidently BehaG’s criterion is not that he counts only newly created commandments. If so, what is his criterion? Why does he not count all rabbinic commandments? For that he brings as an example the secondary incest prohibitions, because they appear in the same sugya as eruv and hand-washing, but in fact his intention is to challenge BehaG regarding all rabbinic commandments. That is why only after objection 3 does he raise the basic argument that counting all rabbinic commandments would take us into the thousands.

Nahmanides divides the discussion for the same reason. He shows that BehaG remains consistent with himself: he counts only newly created rabbinic commandments. Hand-washing and eruv, like the secondary incest prohibitions, are not newly created commandments—each for its own reason—and BehaG therefore does not include them in his list.

The source of the duty to obey the sages according to Nahmanides

Nahmanides’s comments contain several hints to his view of the authority of the sages, but that would require entry into the finer details of the discussion, including distinctions among different rabbinic prohibitions and different sources—such as “a safeguard for My safeguard” and “You shall not turn aside.” This is not the place to pursue it.⁵⁷

E. Summary: The Views of the Medieval Authorities on This Root and Its Ramifications

Two types of activity by the sages, two types of law, two basic questions

We opened this essay with a discussion of the status and force of rabbinic law. There we assumed the standard distinction between interpretation of the Torah, which yields Torah law, and legislation, which yields rabbinic law. The authority to interpret the Torah is entrusted to the sages by virtue of “You shall not turn aside.” In this essay we dealt with the status of the sages as legislators, and the standing of the laws they enact and decree.

On this matter Maimonides and Nahmanides disagree. We saw that beneath the discussion of the status of rabbinic law—that is, of the authority to legislate—there lie two basic questions:

1. Why should one observe rabbinic commandments?
2. If there is some source for that obligation in the Torah, why is the status of rabbinic law lighter than that of Torah law?

We noted that there are two ways to ground commitment to rabbinic commandments:

1. Finding a verse in the Torah.
2. Finding another source, external to the Torah.

We saw that both possibilities are problematic. Maimonides and BehaG both hold that the obligation to observe rabbinic commandments is derived from the verse “You shall not turn aside”; that is, they seem to choose the first option. Nahmanides, by contrast, holds that this obligation derives from another source; that is, he chooses the second option. According to Nahmanides, the verse “You shall not turn aside” establishes only the interpretive authority of the sages—that is, it concerns only Torah law—and not their legislative authority with respect to rabbinic law.

We saw that the first option solves the first question well, but is attacked by the second. The second option solves the second question well, but is attacked by the first. We seem to be dealing with a blanket that is too short to cover both questions. Any adequate solution must therefore propose an intermediate model between these two.

A third possibility: type of activity, type of law, and the mechanism of branching

After presenting several possibilities for understanding Maimonides and Nahmanides, most of them drawn from the commentators, we reached the conclusion that Maimonides’s view is that rabbinic laws branch out of the prohibition “You shall not turn aside.” In the background we defined three mechanisms by which something passes from a Torah commandment into the plane of rabbinic law: specification, asmakhta, and branching.

Specification of a Torah law into rabbinic laws that emerge from it does not really represent a move to a different legal plane. Specification is a kind of interpretation, or deduction, and therefore its result remains full Torah law, as in the example of vows. According to the model of specification, rabbinic commandments are applications of a Torah commandment. By contrast, asmakhta reflects legislation, where Torah verses provide only inspiration, if that; there is no direct relation between the rabbinic laws and the Torah verses.

According to the usual interpretation, Maimonides describes the relation between rabbinic commandments and “You shall not turn aside” by means of specification, and then the second problem arises; Nahmanides sees the relation as asmakhta, and then the first problem arises.

Since both possibilities are problematic, we are forced—whatever medieval authority we examine—to adopt some version of the mechanism of branching, which is an intermediate mechanism between asmakhta and specification. Branching creates a relation in which the rabbinic law—the branch—is indeed connected to the source verse in the Torah—the root—and is not a mere asmakhta. But at the same time it is not a specification of that verse, meaning that fulfilling or violating the rabbinic law is not identical with fulfilling or violating the Torah commandment. This is in fact an intermediate condition between legislation and interpretation. It should be noted that such an intermediate condition will recur, and even more sharply, in the next essay, which will deal with the dispute between Maimonides and Nahmanides in the second root.

The positions of the medieval authorities

Maimonides’s position: According to Maimonides, we concluded that the prohibition “You shall not turn aside” defines a negative commandment applying to one who refuses to obey the sages from principled denial of their authority. From this we infer, in an interpretive move, that rabbinic commandments generally possess halakhic force—for without such force there is no meaning to rebellion against authority. This is the mechanism of branching that Maimonides adopts, and in his view the force of the branched laws is rabbinic. The reason is that the Torah does not command these laws directly, and therefore one who violates them has not defied the Torah. The Torah only reveals to us the existence of a secondary normative plane of rabbinic law. In that sense, “You shall not turn aside” is a declarative verse, though one that still obligates us.

There are rabbinic commandments that are specified or branched from other Torah commandments as well, such as clothing the naked from “sufficient for his need.” If the mechanism is specification, then their force is Torah-level, though of course they are not counted because they are included in the source commandment. If the mechanism is branching, then their force is rabbinic, and again they are not counted.

BehaG’s position: BehaG’s position is very close to Maimonides’s, but the disagreement between them is not merely interpretive. He too agrees that the source of the obligation to obey the sages is “You shall not turn aside.” From this prohibition branches the obligation to obey all rabbinic commandments, in a way similar to Maimonides. But BehaG holds that the commandments that branch from it have the same force as Torah law. The reason is that they do have a source in the Torah, through that same interpretive move of branching, and he sees that source as command rather than mere declaration. The reason they are counted separately in the enumeration is most likely their different practical content, which does not allow us to regard them all as simple specifications of “You shall not turn aside.”

From this it clearly follows—and Maimonides understood BehaG this way as well—that the rabbinic commandments counted by BehaG are only the genuinely new ones, such as Hanukkah and Purim. The other rabbinic commandments are included within their parent Torah commandments, which are already in the list.

Nahmanides’s position: It is commonly understood that Nahmanides disputes Maimonides and BehaG at the very root of the matter. The sages’ authority does not come from the verse “You shall not turn aside,” but from reason—or perhaps they have no authority at all. But as we have seen, it is very plausible that he too accepts the mechanism of branching, and in that sense joins the other two. He does not, however, accept a Torah-level layer within “You shall not turn aside” when the act is one of rebellion. For a fuller discussion of what emerges from Nahmanides’s glosses on the sugya of the sages’ authority, see the fourth volume of the quartet, Shtei Agalot Ve-kadur Pore’ah.

It should be noted that Nahmanides apparently understood both Maimonides and BehaG differently. He thought that both of them saw rabbinic commandments as specifications, or simple applications, of “You shall not turn aside”—as is stated explicitly by the author of Netivot Ha-Mishpat in sec. 234. The dispute would then perhaps be only whether these commandments should nevertheless be counted separately. According to BehaG they should, because each has different practical content, even though all are applications of “You shall not turn aside.” Maimonides, by contrast, sees them as specifications of that commandment and therefore already included in it. We saw that this approach is very difficult, both in Maimonides and in BehaG. Nahmanides himself attacks it sharply, since on that basis every violator of rabbinic law would violate the prohibition “You shall not turn aside,” and the distinction between Torah law and rabbinic law would thereby be erased in practice.

Other medieval authorities

To conclude, let us briefly discuss the views of other medieval authorities with respect to this root. It is commonly assumed that no one disputes Maimonides in the core principle of the root itself, namely that rabbinic commandments should not be counted among the commandments. Rabbi Yerucham Perlow wrote that Saadia Gaon also agrees with this—see his introduction to the first root, and his remarks on positive commandments 55 and 59-60. In the Yere’im, however, laws of prophetic tradition are counted in several places, though he explains that these are laws given orally to Moses at Sinai that the prophet merely anchored to a verse.⁵⁸ He removes from BehaG’s count only the Hanukkah lamp—see his commandment 429—and says that even BehaG mentioned it only incidentally and did not intend to count it as a commandment, since it is not from the Torah.

It seems that the tendency simply to reject the possibility of counting rabbinic commandments stems from an a priori sense that there is a substantive problem here. See, for example, Rabbi Yerucham Perlow on positive commandments 59-60, who states this as self-evident and rejects the proof that Saadia Gaon follows BehaG here, namely the fact that he counts the Hanukkah lamp and the reading of the Scroll of Esther. In other words, not only does he say so without proof; he says so despite apparently contrary evidence in Saadia’s own view. Nevertheless he decides that Saadia agrees with Maimonides and prefers to reinterpret Saadia regarding the Hanukkah lamp and the reading of Esther. Most likely what compelled him was the a priori assumption that there is some fundamental problem in including rabbinic commandments in the enumeration.⁵⁹

But, as we have seen, the matter is not so simple. In Maimonides it emerges throughout that the problem is not substantive. In principle one could count rabbinic commandments as well; the problem is mainly interpretive, arising from the meaning of Rabbi Simlai’s words. It is therefore no wonder that the plain sense of BehaG—and this is how both Maimonides and Nahmanides understood him—is that in his view rabbinic commandments should indeed be counted, at least the newly created ones. If so, he, and others who follow him, really do dispute the basic principle of this root that rabbinic commandments should not be counted. It may be, however, that according to these views the force of such commandments would in principle be equivalent to that of Torah commandments.

It should also be noted that several medieval authorities counted the commandment of reading the Scroll of Esther: BehaG, Saadia Gaon in positive commandment 59, and the Yere’im. One should notice that the Yere’im counts it even though he explicitly rejects the possibility of counting rabbinic commandments. Saadia Gaon hints at it from the verse “Write this as a memorial in a book” (Exodus 17:14), which suggests that it is included in remembering the obliteration of Amalek. Compare Nahmanides on that verse. Saadia also counts the Hanukkah lamp, in positive commandment 60, and for that there is no Torah source at all.⁶⁰ We mentioned that the Hatam Sofer, in a responsum, explains BehaG by saying that the reading of the Scroll of Esther follows from an a fortiori argument and therefore has the status of Torah law, though he then qualifies that possibility.

Is this root technical or substantive?

At the outset we noted that at first glance this root seems merely technical. Everyone would agree about the legal status of rabbinic commandments, and the disagreement would concern only the rules for enumerating commandments.

We have now seen that even this is not exact. First, there are opinions that see here a genuine dispute among the medieval authorities about the legal force of rabbinic commandments. Second, even according to our proposal, Maimonides does not regard these commandments as Torah prohibitions or as direct specifications of the Torah prohibition “You shall not turn aside.” In fact, for that very reason he would in principle have been willing to count them, were it not for the precision of Rabbi Simlai’s language. In BehaG we saw several different ways to understand exactly how he disagrees with Maimonides. The various possibilities differ over whether the dispute here is substantive or merely technical.

Footnotes

(A): Sentence (A) is false.

The paradox arises because if the sentence is true, then it is false; and if it is false, then it is true, and so on endlessly. But notice that the sentence has no independent content beyond its own truth-value. That is part of what generates the paradox.

To sharpen this, take the following sentence:

(B): Sentence (B) is true.

This sentence is not paradoxical. If it is true, then indeed it is true; and if it is false, then it is false. Everything seems consistent. Yet there is a problem here too, but of the opposite sort. Ask: is this sentence true or false? In fact, it is both, and no contradiction follows. The previous sentence was paradoxical because neither truth-value can be stably assigned to it. This sentence can receive either one without contradiction. The reason is that it lacks any independent content beyond its own truth-value. Therefore there is nowhere for a contradiction between truth and falsehood to take hold. Whether it is true or false, it tells us nothing about the world. It is empty, and therefore can “contain” contradiction without any upheaval.