Gate One: The Nature of Rabbinic Commandments and the Source of Their Binding Force

From the book The Spirit of Law by Rabbi Michael Avraham. Translated from Hebrew using gpt-5.4 (reasoning_effort=high, batch API).

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The Nature of Rabbinic Commandments and the Source of Their Binding Force

In this gate we will discuss the halakhic (Jewish-legal) status of rabbinic laws, and we will see that it is derived from the question of the sages’ status as legislators. It follows that anyone who seeks to formulate a position on this issue must attend to two aspects: what is the source of the sages’ authority to legislate, and what is the source of our obligation to obey them? On the other hand, if such a source exists, what is the status of the laws that derive from it? For example, if the source lies in the Torah, or even in rational reasoning, then the status of rabbinic laws becomes that of Torah law.

The disputes between Nahmanides and Maimonides on this root principle revolve around these two aspects. We will see that they are far less polar than is usually assumed, since these two aspects create a kind of constraint into which any coherent theory on this subject must fit.

Chapter One: On the Halakhic Status of Rabbinic Commandments: An Initial Survey

Introduction

As noted, in this root principle Maimonides disagrees with Halakhot Gedolot (Bahag) regarding the need and the possibility of counting rabbinic commandments within the enumeration of the commandments. As we shall see, underlying this discussion are differing views about the halakhic status of rabbinic commandments, even though that is not the subject discussed directly in the root itself, but rather in Nahmanides’ glosses. More than that: we will see that on this issue there is actually agreement between Maimonides and Bahag. Both maintain that the obligation to observe rabbinic commandments is derived from the Torah verse, “you shall not turn aside.” It is specifically Nahmanides, who defends Bahag on the question disputed in the root itself—whether rabbinic commandments should be counted in the enumeration of the commandments—who disagrees with both of them on this point.

Examining the various positions on this issue is a necessary background for the discussion of Maimonides’ words in this root principle, and therefore we will address it here before entering the debates about the root itself. Later we will see, conversely, that a close study of the various positions expressed in the root itself sheds new light on the positions regarding the force and status of rabbinic commandments.

Torah Law and Rabbinic Law as Interpretation and Legislation: Classifying Laws by the Character of the Sages’ Activity

We must first define the subject of the discussion: what is a Torah law, and what is a rabbinic law? These definitions appear simple and agreed upon, yet later in the book we will see more than once that this is not so.

Halakha is divided into several categories according to its sources, and it is commonly assumed that the legal force of the various types of law derives from those sources. Laws whose source is in the Torah and its interpretation—whether through plain meaning or exegetical derivation—or in oral tradition, namely halakha le-Moshe mi-Sinai (a law given orally to Moses at Sinai), are generally considered Torah law. Laws derived from the later biblical books are laws based on scriptural tradition. Laws innovated by the sages are rabbinic laws. To be sure, the status of laws learned from exegetical derivations, halakha le-Moshe mi-Sinai, and laws based on scriptural tradition is probably disputed, and we will discuss that later in the book. In any event, this is the conventional classification among most commentators and decisors.

In light of this division, the role of the sages can also be divided into two principal types: interpretation and legislation.

1. Interpretation. The first role of the sages is interpretation. It is commonly assumed that this yields Torah-law rules.¹ Interpretation reveals that a given law is already present in the Torah, and that is the source of its binding force. In their role as interpreters, the sages merely reveal to us the will of the Torah and uncover what lies hidden between the folds of its verses. Hence the force of laws created in this way is obvious, deriving from the very acceptance of the Torah’s authority. Although these laws were uncovered by the sages, their force is that of Torah law, since after the sages’ discovery it becomes clear to us that the Torah itself commanded them.

Thus, in their function as interpreters, the sages only reveal what is written in the Torah, while the force of the law, as well as our obligation toward it, derives from its being the word of God as expressed in the Torah. Therefore it is commonly assumed that laws generated by interpretive tools are Torah laws.

2. Legislation. A second role of the sages is legislation. This is how rabbinic laws are created, and these themselves are divided into several subcategories: enactments, decrees, safeguards, and customs. See the opening of Maimonides’ Laws of Rebels. The difference among these various types is not entirely clear, and we will clarify it somewhat later, in chapter 5. These laws were not transmitted to us in tradition, nor are they found in the written Torah. Moreover, they cannot be extracted from the Torah by interpretive or exegetical means; the scriptural expositions cited with respect to them function only as asmakhta (scriptural support or allusion). Therefore these are laws of a different sort, and they obligate us only by virtue of the authority of the sages as legislators, not by virtue of the Torah itself. It follows that these laws have a weaker legal force, and the halakhic category that marks this is “rabbinic law.”

Thus, in their role as legislators the sages create new laws, rather than uncover laws already latent in the Torah, and therefore the force of these laws is not that of Torah law but derives from the authority of the sages as legislators.

The distinction between Torah laws and rabbinic laws thus rests on the distinction between two different functions of the sages: as interpreters they uncover Torah laws, and as legislators they create rabbinic laws.

We should add that halakha recognizes several consequences of the categorical difference between Torah law and rabbinic law, the most prominent being the rule of doubt: it is accepted that a doubt concerning Torah law is treated stringently, whereas a doubt concerning rabbinic law is treated leniently.² There are several other consequences as well, many of which are brought by Nahmanides in his glosses to this root principle, and some of them will be discussed below.

According to the classification described here, it is customary to think that the first root principle concerns legislation, whereas the second concerns interpretation—both according to plain meaning and according to derivation, and especially the relation between them. Below we will see that this is not precise.

The Problem of the Binding Force of Rabbinic Laws: Two Possible Directions

The basic problem regarding rabbinic laws is the source of their force. Why should I obey something that the sages established? Even if I accept the assumption that they are indeed wise, that can at most amount to a recommendation that this is the proper way to act, because wise people presumably know better what I should do. But how do we know that there is here a commanding element that brings the matter into the framework of formal and binding halakha?³

This problem arises in every context in which we seek a foundation for any value-system or normative system. In the fourth gate of the third volume we discussed in detail several basic lines in the issue of “value principles,” and a summary will be presented in the following note.

Note 1: The Problem of Normative Grounding: Torah, Halakha, and Law — Action “for Its Own Sake”

In this note I will summarize the issue of normative grounding. As noted, a similar question arises in many other contexts as well. Any system of laws, that is, norms, which demands obedience from a person—whether the laws of the state, the rules of a game, and perhaps also the norms of morality and aesthetics, among others—apparently requires a justification for why one should obey it at all. Here we will try to examine this question on a more general and abstract plane.

In any situation in which we seek a basis for a normative system, we may ask ourselves how such a justification is to be sought. It is clear that the principle that generates obligation toward the system under discussion cannot be one of the system’s own principles. For if it were one of the laws within that system, how would we know that there is an obligation to obey that very law? The reason must therefore lie outside the system of laws under discussion.

We may then continue to ask: why must we obey the principle that provides that justification? In the spirit of the saying, “your guarantor itself requires a guarantor.” Here too it is clear that the reason cannot belong to the system under discussion—which is now one step higher in the person’s normative hierarchy—and therefore it too must lie outside it.

Ultimately we arrive at our most basic principles. If we now ask why one should obey them, we will necessarily have no answer. Within any system there can be no reasons that ground the duty to obey it, and outside the most basic system there is nothing further. One cannot find a reason more basic than the principles that belong to one’s most fundamental system.

It therefore follows that the most basic system is always founded upon a first self-evident principle that recognizes the obligation to uphold it, and nothing beyond that. Reason determines that the commands of this system must obviously be fulfilled, and one neither needs nor is able to seek a more fundamental grounding for them. As we shall see immediately, this is the meaning of acting “for its own sake.”

Rabbi Shimon Shkop, at the beginning of Gate 5 of Sha’arei Yosher (p. 4), introduces his conception of the civil laws. He states that every Jew is obligated to observe them even though they do not appear as commandments in the Torah. He then asks: where does the obligation come from to observe something that is not written in the Torah? He answers: even the obligation to observe the Torah itself stems from a decision of our own reason and will. If so, “the same mouth that prohibited is the mouth that permitted”—that same foundation, namely reason and will, also obligates us to obey the civil laws even though they are not written in the Torah. One sees here the entire structure: there is no grounding within the system; a fundamental system has no grounding outside itself; therefore it must be upheld “for its own sake.”

To clarify the point, let us offer two examples.

1. People sometimes ask themselves why one should study Torah. Seeking an answer to that question assumes that there are principles more fundamental than Torah study that can ground the obligation or the benefit of Torah study. But if the value of Torah study is a person’s most basic value, then there is no way to find a more basic and simpler justification for its obligation and benefit.

This is the meaning of the Rosh on tractate Nedarim 62a, as cited by Nefesh Ha-Hayyim, Gate 4, chapter 3, when he wrote that studying Torah “for its own sake” means studying Torah for the sake of Torah.

2. The same applies to someone who asks why one should serve God. Here too one must know that if this is the most fundamental value, then there is no possibility of finding a more basic justification outside it. Therefore one must serve God “for its own sake.”⁴

This also appears to be the intent of the Babylonian Talmud, Shabbat 88a, where a Sadducee sees Rava studying so intently that he unwittingly wounds his own hand. The Sadducee then says to Rava:

“You rash people, who put your mouths before your ears—you still persist in your rashness. You should first have listened: if you were able to accept, then accept; and if not, then do not accept.”
He said to him: “We, who walk in integrity—of us it is written, ‘The integrity of the upright will guide them’; but of those people who walk in crookedness it is written, ‘The perversity of the treacherous will destroy them.’”

The discussion here is exactly about this point. The Sadducee thought that Israel should have examined the words of the Holy One, blessed be He, and the Torah, to see whether they fit their most fundamental principles. Rava replied that for us the Torah, as the word of God, is the most basic system, and it cannot be tested in any way on the basis of some more fundamental system. Therefore we follow the Holy One in simplicity—that is, wholeness. For that reason as well, one cannot delete something from the Torah or refuse to accept it, since that would indicate the existence of some other, more fundamental system by which we judge the Torah and decide what within it to accept. This is the essence of serving God “for its own sake.”

A sharp illustration of this point appears in Maimonides, Laws of Idolatry 3:6. There Maimonides rules that one who worships idolatry out of love or fear is exempt, unless he has accepted it as a deity. Commentators have already wondered: what form of worship would more clearly count as accepting it as a deity than worship out of love or fear?⁵

The answer is that there is a form of idolatry, just as there is a form of serving God, that is done “for its own sake.” That is, the worship is not performed for any external reason: not love, not fear, and no other reason either. The worship is performed out of the sense of obligation involved in that worship, and nothing more. That is what it means to “accept it as a deity.” A deity is one whom a person accepts upon himself and whose word he follows without more basic reasons. “Deity” means the highest and most fundamental authority.

When a person asks why he should obey halakha, or the Holy One, the answer is as in the previous example. It is difficult to understand how this obligation could be grounded in gratitude and the like. Presumably those who tried to do so did not intend to offer a true foundation, but rather to help a person, by various means, arrive at serving God “for its own sake,” in the sense described above.

So we have a most fundamental system, with respect to which the demand applies that it be upheld “for its own sake,” and that is the Torah we received at Sinai. We now face another, secondary system, which also makes demands of us: the system of rabbinic commandments with which we are dealing here. When we seek a normative basis for this system, it is clear that it cannot be part of the system itself. We must therefore decide whether that basis lies in a more fundamental system, or whether this too is among our most fundamental systems. In principle, there can be several most fundamental systems, so long as none of them stands at the basis of the others.

We will see that Maimonides chose the obvious mode of grounding, and tied the obligation to rabbinic commandments to a verse in the Torah: “you shall not turn aside.” This means that, in his view, the system of rabbinic commandments is not one of our fundamental systems, but a secondary system derived from and dependent upon the Torah-law system. We will also see that Maimonides must apparently pay a price for this: the secondary system receives the same force as the primary system. The distinction between them collapses from the very fact that the one depends on the other, and the existence of the one is the existence of the other. Nahmanides, by contrast, is unwilling to make the system of rabbinic commandments dependent on the Torah-law system—to find for this obligation a source in a Torah verse—precisely in order to preserve the boundary between them, and therefore he must seek another source.

One cannot say that the system of rabbinic commandments is, in itself, another fundamental system, because that raises two questions, which are really two sides of the same problem. First, this apparently creates a problem of dual authority. It would amount to a kind of syncretistic idolatry, for we saw in the third volume that every normative system presupposes a distinct source of authority. At the basis of Torah law stands the Holy One, whose voice must be obeyed; at the basis of rabbinic law stands someone else whose voice must be obeyed—if not some idol, then apparently the sages themselves. But that is a state of divided allegiance. Can obedience to the sages place us in a condition akin to associating others with God? Second, what is the connection between obedience to the sages and serving God? If God Himself is the basis for the obligation to obey the sages and observe rabbinic commandments, then these are Torah-law obligations, for we have no source other than the Torah that expresses God’s will for us—certainly in the domain of halakha. If He is not the binding source, then why are rabbinic commandments included within the service of God, and especially within halakha?

Let us now consider a few additional halakhic examples.

1. The Talmud states that a blind person is exempt from the commandments. Yet there are halakhic opinions according to which the sages obligated the blind person rabbinically in the commandments. The question then arises: what is the binding source for him?⁶ That is, why should he obey the sages’ command in this matter? By Torah law he is exempt from all the commandments. If so, how can he become obligated rabbinically in all the commandments? What obligates him to heed their voice? According to the opinions that a blind person is obligated by Torah law in negative commandments and exempt only from positive commandments, the problem does not arise. According to those approaches, the blind person is obligated in commandments as we are, only in fewer of them—much like a woman or a slave. As for the other commandments, the sages obligated him, and their force comes from the Torah negative commandment, “you shall not turn aside,” and with respect to negative commandments the blind person is also obligated.

This is a question of normative grounding. The blind person cannot find an anchor from which to begin the logical grounding of his obligation to obey the sages who required him to observe Torah law. So what is the actual source of the blind person’s obligation to obey the sages?

If there truly is some source outside the Torah and halakha that can ground such an obligation, then there is no problem. The problem assumes that the only possible grounding is the negative commandment, “you shall not turn aside.” Nor would grounding by some further ramification from “you shall not turn aside” solve the problem, since the blind person is not obligated even in that negative commandment itself.

2. A similar question arises with respect to minors.⁷ It is well known that the medieval authorities dispute whether the obligation of education rests only on the father, or whether the minor himself is also rabbinically obligated in the commandments.⁸ The question here is similar: how can there be power to obligate someone in rabbinic commandments, especially if he is not obligated by Torah law in commandments at all?

One might perhaps say that both the blind person and the minor are in fact subject to the Torah’s commandments. The Torah itself exempted them, and that is why they are exempt. It is obvious that if the Torah had obligated them, they would have been obligated like every Jew. If so, their entire exemption stems only from the fact that the Torah exempted them. On that basis, one could perhaps say that the Torah did not exempt them from the obligation to heed the sages, or from what branches from the negative commandment “you shall not turn aside,” or even from some other source, such as reason.

In other words, the sages’ ruling is an interpretation of the Torah’s exemption of the blind person. The sages determine that the exemption applies on the Torah level, but there is nevertheless a rabbinic obligation to perform the commandments, or at least an obligation to heed the sages who rabbinically require the performance of those commandments.

At this point distinctions enter between different kinds of exemption, distinctions that are also discussed by jurists.⁹ There is a substantive exemption: the person is exempt from obedience to the Torah altogether. Here everything depends on the principle that grounds the normative obligation toward the system in question. With respect to certain people, that principle does not apply, and therefore they are substantively exempt. There is also a technical exemption: the person is obligated to obey, but the Torah to which he is obedient exempts him from certain commandments, and therefore he is exempt from them. Here there is no connection to the principle of normative grounding, since in principle he is obligated in the commandments and in obedience to the Torah, but the Torah itself exempts him. The basis for this lies with the giver of the Torah and is unrelated to normative groundings and to the systems of principles internal to the person himself.

As described in the note above, and also in the third volume, any obligation to any normative system must rest on a binding principle external to that system, which we called a “value principle.” We saw there that in some contexts the value principle is sweeping—that is, one principle grounds obligation to the entire system of commands or norms—whereas in other situations the value principles are particular, meaning that each grounds only part of the norms within the system. We also saw there that the obligation to the Torah must rest on a sweeping value principle, for otherwise it cannot be our most fundamental system; if there is no sweeping value principle there, then there are more basic value principles that we use in order to ground our obligation to the Torah.

Here we are dealing with a secondary system, the system of rabbinic law. The force of such a subsystem can draw its power from the Torah, since it is secondary to it, and it is only natural that it do so. In such a case, the obligation to the system of rabbinic law may rest on a sweeping value principle, but there can also be conceptions of particular value principles; we will discuss that below. In Note 1 above we dealt with the problem of normative grounding in greater detail.

So how can the obligation to observe rabbinic enactments be grounded? There cannot be a rabbinic rule that one must obey the sages, because such a value principle would not stand outside the system that it grounds. If we have no independent basis that validates the system of rabbinic law as a whole, then that rule itself—namely, “obey the sages”—would also lack force.

It therefore appears that there are two principled ways of finding the source of this obligation, outside the system of rabbinic commandments itself:

1. To seek a source in the Torah, as the primary system, that grounds the authority of the sages and gives their enactments force.
2. To seek some other non-Torah source that does so.

As we shall now see, both of these paths are problematic on their face, and in fact neither can really answer the problem before us. This is the root of the difficulty in interpreting the first root principle.

Note 2: The Prohibition of “Do Not Add” in Rabbinic Enactments

One can ask an even sharper question: why is a rabbinic enactment, or any other rabbinic law, not included in the prohibition of “do not add”? Here we are asking not only whether and why one must obey the sages, but whether it is even permissible to do so, and whether it is permissible for them to institute enactments or decrees. The answer is certainly positive, if only on the empirical level of how halakha actually functions, but its theoretical basis requires explanation.

In the Babylonian Talmud, Rosh Hashanah 16b, we find a rabbinic enactment to sound thirty additional shofar blasts on Rosh Hashanah in order to confuse Satan. Tosafot there, s.v. “and they blow,” discusses why this does not violate the prohibition of “do not add.” The wording suggests that the reference is to those who blow, not to the sages who enacted it. Tosafot answers that performing a commandment twice, even without a rabbinic command, is not included in the prohibition of “do not add.” It follows from Tosafot that if the sages were to enact something whose performance would indeed violate “do not add,” such as adding a fifth fringe to tzitzit or an extra paragraph to tefillin,¹⁰ that would in fact be forbidden. If so, an enactment of a new commandment, such as the Hanukkah candle or sitting in the sukkah on the eighth day out of doubt, should apparently have been forbidden under “do not add.”

In his novella to Rosh Hashanah there, and likewise the Ritva, Ra’avad, and other authorities—see the notes to the Rashba edition of Mossad Harav Kook—the Rashba disagrees with Tosafot precisely for this reason, and writes that when a person performs a commandment out of obedience to the sages, he does not violate “do not add.” The Rashba’s reasoning is that we were commanded to obey the sages in the verse “you shall not turn aside,” and by that very fact it was newly established that there is no violation here of “do not add,” or of any other prohibition.¹¹

From Maimonides, Laws of Rebels 2:9, it appears that the prohibition of “do not add” does apply even to rabbinic enactments, unless the sages explicitly stated, at the time of promulgating the enactment, that it is not a commandment from the Torah but an addition serving as a fence or decree and the like. The Ra’avad, in his glosses there, comments that none of this is necessary, since rabbinic enactments are never included in the prohibition of “do not add,” as the Rashba had argued. The Ra’avad continues and notes that the sages often offered scriptural support for their words by citing Torah verses, without explicitly stating that this was only a support. According to Maimonides, it would apparently follow that there is a violation of “do not add” in such cases. We will return below to the subject of scriptural supports and to this dispute. Let us note that the same was written by the author of the Kuzari; see part 3, section 39.¹²

Thus, according to Maimonides, as well as according to Tosafot, the prohibition of “do not add” does in principle apply even to rabbinic enactments. In practice, however, it appears from Maimonides’ wording that the sages themselves would be the ones to violate the prohibition, unlike Tosafot, from whose wording it seems clear that those who fulfill the enactment are the ones who violate “do not add.” Yet it can be bypassed when necessary by an announcement and clarification.¹³

In any event, the conclusion is that halakha certainly contains no prohibition against obeying the sages’ commandments, at least when they have been enacted properly. But the question that occupied us in the main discussion still stands: why heed them? We must examine whether such an obligation exists at all, and what its source is. We turn to that now.

An Initial Survey of the Positions of Maimonides and Nahmanides

In the introduction we noted that one of Maimonides’ most basic aims in his halakhic writings was to construct and present a coherent and rational legal-logical structure of halakha. It is therefore not surprising that here Maimonides chooses the first path just described: he grounds the obligation to heed the sages in a Torah verse, “you shall not turn aside.” From a legal standpoint, this is the systematic and logical route, since the Torah has clear authority, and it is only natural and reasonable to derive from it the authority for subordinate legislation.

Legal theory distinguishes between primary legislation and secondary legislation. Primary legislation gives force to subordinate legislation, that is, to legislation issued by bodies that derive their authority from primary legislation. So too here: the Torah, as the primary legal system, delegates authority to the sages to legislate in the secondary system. Thus anyone bound by the Torah finds himself bound also to obey the sages. This is the logical hierarchy of halakha as a legal system, and Maimonides unsurprisingly chooses this direction.

As we will see later as well, Maimonides has a rationalist tendency, meaning that he prefers the a priori rational consideration, and at times even imposes it on the halakhic material and sources. Nahmanides, by contrast, generally adheres to the halakhic world as it is, and bends reason to fit the halakhic data; in the third section of this work we will define this as empiricism. In his view, the structure proposed by Maimonides, though logical in itself, does not fit the halakhic facts that we find in the sources; see his arguments below. We should therefore not be surprised to find Nahmanides disagreeing with Maimonides on this point, and apparently opting for the second route.¹⁴

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

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

Whoever does not act according to their instruction violates a negative commandment, as it says: “You shall not turn aside from any matter they tell you.” No lashes are administered for this negative commandment, because it serves as the warning for an offense punishable by death at the hands of the court: any sage who rules against their words is liable to death by strangulation, as it says: “And the man who acts arrogantly, refusing to listen…”

This applies alike to matters they learned by received tradition, which are the Oral Torah; to matters they derived by their own reasoning through one of the interpretive principles by which the Torah is expounded, and it appeared to them that the law in that matter is so; and to matters they instituted as a fence for the Torah, according to what the time required—these are decrees, enactments, and customs.

With regard to each of these three categories, there is a positive commandment to heed them, and one who violates any of them violates a negative commandment. Thus it says: “According to the Torah that they shall teach you”—these are the decrees, enactments, and customs that they instruct the public to observe in order to strengthen religion and set the world aright. “And according to the judgment that they shall tell you, you shall do”—these are matters they derived by legal reasoning through one of the interpretive principles by which the Torah is expounded. “From any matter they tell you”—this is the received tradition transmitted from person to person.¹⁵

From Maimonides’ wording it follows that anyone who transgresses the words of the sages—whether in plain interpretation or exegetical interpretation of the Torah, whether in the tradition they testify was transmitted to them, or whether in rabbinic law, divided into the three categories of decrees, enactments, and customs—violates both a positive and a negative commandment.¹⁵ Nahmanides, at the beginning of his glosses to this root principle (pp. 18–19), notes that the same follows from what Maimonides wrote in positive commandment 174, and also at the end of the enumeration of the commandments appended to the introduction to the Mishneh Torah. One should add to this Maimonides’ words in Laws of Blessings 11:3.

The approach here is openly logical and hierarchical. The Torah, which is the agreed and basic source of authority, delegates to the sages all the authorities they possess. 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 shall tell you, you shall do.” Maimonides indeed counts both in his enumeration of the commandments, as negative commandment 312 and positive commandment 174. Let us note that Bahag too adopts this approach: he counts “you shall not turn aside” in his enumeration of the commandments at the end of the negative commandments that incur lashes, and in addition counts the negative commandment of the rebellious elder. I did not find a corresponding positive commandment in Bahag. We saw the same also in the Rashba’s novella to the discussion in Rosh Hashanah cited above.

Thus both Maimonides and Bahag place the obligation to rabbinic commandments on a sweeping value principle: the Torah command “you shall not turn aside.” As noted, the position of Maimonides and Bahag appears, from a logical standpoint, perfect. There is a source of authority in the Torah, the primary system, and it is this source that obligates one to heed the sages, the secondary system. Everything is closed, coherent, and logically complete. But, as Nahmanides repeatedly remarks, from the standpoint of halakhic facts themselves, or halakha as it actually is, this approach is highly problematic.

At the beginning of his glosses on Maimonides’ position in this matter, starting at p. 18, Nahmanides concludes from Maimonides’ words—and that is how most of his commentators understood him—that anyone who violates a rabbinic commandment or prohibition, such as one who eats poultry cooked in milk, thereby violates a Torah negative commandment and a Torah positive commandment.¹⁶ Beyond the explicit words of Maimonides cited above, Nahmanides brings, at p. 19, a clear proof from Maimonides’ wording in Laws of Rebels 1:2. Maimonides writes there that, in principle, anyone who violates the words of the sages should have been flogged like anyone who violates a Torah negative commandment, except that this is a negative commandment that serves as the warning for an offense punishable by death at the hands of the court, since the rebellious elder who violates this same commandment is executed, and therefore in practice he does not receive lashes. It follows that, if lashes were administered for a negative commandment that serves as a warning for a capital offense, then anyone who violates a rabbinic commandment would also be flogged. Thus every rabbinic violation is literally like an ordinary Torah negative prohibition, and in principle lashes would apply. This is, apparently, decisive proof for the understanding of those commentators that according to Maimonides anyone who violates rabbinic law thereby violates a Torah negative commandment.

On the basis of this conclusion, Nahmanides proceeds to raise several objections against Maimonides:

• The main problem Nahmanides finds in this view is the existence of halakhic differences between rabbinic laws and Torah laws. He says that in practice, according to Maimonides and Bahag, we should have to be stringent with rabbinic prohibitions just as with Torah prohibitions, for one who violates them is like one who violates a Torah negative and positive commandment. For example, Nahmanides asks, at p. 20, how Maimonides will explain the rule that a doubt regarding rabbinic law is treated leniently, if every rabbinic commandment is binding by virtue of “you shall not turn aside.” Apparently, according to Maimonides, every such doubt is a Torah-level doubt, and therefore we should have to be stringent there as well. The same applies to the other leniencies regarding rabbinic prohibitions as compared with Torah prohibitions; see there, pp. 20–22, for a full list of such examples.¹⁷

• Nahmanides then raises the possibility, at p. 22, of explaining Maimonides on the assumption that these leniencies are a special waiver by the sages. Since they established these laws, they also stipulated in advance that rabbinic laws would not apply in cases of doubt.¹⁸ The reason, he suggests, was in order to distinguish rabbinic laws from Torah laws; perhaps this was also done in order to avoid the prohibition of “do not add,” as discussed in Note 2 above.

Nahmanides later rules out this explanation, though without explaining why. Many of Maimonides’ commentators, however, adopted precisely this direction, and we will discuss it below.

• Nahmanides then brings several direct proofs that the negative commandment “you shall not turn aside” is not the source of the halakhic obligation to observe rabbinic law. His primary source is the Babylonian Talmud, Berakhot 19b, which rules that human dignity overrides rabbinic prohibitions, but not Torah prohibitions. The Talmud there explains that rabbinic prohibitions are not really derived from the verse “you shall not turn aside,” but are only supported by it; for if they really were, they would be Torah law and would not be overridden by human dignity.

Nahmanides proves from this two points, which are two sides of the same coin. First, the negative commandment “you shall not turn aside” is like all other Torah prohibitions, with no difference in force or obligatory power between it and any other prohibition. Therefore, when there truly is a violation of this commandment, it is not displaced by human dignity. Second, it is not a real source for rabbinic laws, but only an asmakhta, and that is why their severity is lighter and why they are overridden by human dignity. See there for additional proofs.

In the end, Nahmanides concludes that one cannot say that the negative commandment “you shall not turn aside” provides the source of authority for rabbinic laws, nor even for laws based on scriptural tradition. thereby he rejects the position of Maimonides and Bahag.

But now Nahmanides himself must answer two questions differently: first, the verses of “you shall not turn aside” do appear in the Torah. If so, to what do they refer according to his view? Second, what is the alternative basis—in place of “you shall not turn aside,” which he has rejected—that obligates us to observe the commandments of the sages? Included in this is a further question: if that basis is itself in the Torah, why is it not subject to the same objection that he raised against Maimonides—namely, why the force of rabbinic laws differs from that of Torah laws?

In his discussion here Nahmanides answers only the first question. The second he does not address directly at all; below we will see some indirect references. He rules, at p. 24, that the negative commandment “you shall not turn aside” gives the sages authority to interpret and expound the Torah, and gives their interpretation the standing of authoritative interpretation. According to him, then, this commandment concerns only the sages’ interpretation of the Torah, whether by derivation or by plain meaning, but not their enactments and decrees. In the terminology proposed above, Nahmanides understands the verse “you shall not turn aside” as grounding the authority of the sages to interpret the Torah, but not their authority to legislate new laws, namely rabbinic laws. According to Nahmanides, one who does not accept the sages’ interpretation, derivation, or transmitted tradition violates “you shall not turn aside.” If he meets certain criteria, he even becomes a rebellious elder and is punished by death. But one who violates enactments, customs, or decrees does not violate “you shall not turn aside.”

As noted, Nahmanides does not directly address the second question. That is, he does not explicitly offer an explanation or source for the obligation to heed the sages’ enactments. According to him, then, it remains unclear what the source of the sages’ authority to legislate is.

Nahmanides then rejects the proof Maimonides brought in this root principle from the Babylonian Talmud, Shabbat 23a, where it is stated that the blessing over the Hanukkah candle includes the phrase “and commanded us.” Maimonides inferred from there that “you shall not turn aside” is the source of the obligation to obey rabbinic enactments such as the Hanukkah candle. Nahmanides rejects this and explains that the Talmud’s meaning is that the Hanukkah candle too is only supported by “you shall not turn aside,” as we saw above in the discussion in Berakhot. In his view, “you shall not turn aside” is merely an asmakhta, not a fully authoritative source, and therefore rabbinic legislation has the lower halakhic status of rabbinic law.

In the final analysis, Nahmanides rejects the basis proposed by Maimonides for the obligation to obey the sages, namely the verse “you shall not turn aside,” and reduces it to an asmakhta. But his own answer to the question of what grounds the obligation to observe rabbinic laws remains vague. An asmakhta cannot itself serve as the source of any law. Only once the sages already have authority to enact ordinances can the enacted laws be attached to verses, or the authority to enact itself be linked to a verse. But the authority to enact must itself arise from a source with real force, and a scriptural allusion cannot be a sufficient basis for that.

Yet once one reflects on the problem, it quickly becomes clear that no such source can be found within Nahmanides’ framework. The reason is explained in Kovetz Shiurim, part 2, Kuntres Divrei Soferim, section 1, subsection 15. The objection to Nahmanides is put there even more sharply: if there is a source in another Torah verse—even if not in the negative commandment “you shall not turn aside”—then Nahmanides is himself vulnerable to the very criticisms he raised against Maimonides, since even on his own view it would remain unclear why a doubt concerning rabbinic law is not treated stringently. But even if the desired basis is some external rational consideration, that too would amount to Torah-level force, since rational reasoning is a source of authority equal to a verse, as the Talmud sometimes asks: “Why do I need a verse? It is a matter of reason.”¹⁹ If so, once again it would follow that rabbinic laws have Torah-level force, and in doubtful cases we should have to be stringent. We thus learn that, according to Nahmanides, there cannot be any effective source of authority, of any kind, for the sages’ power to legislate.

Interim Summary: The Problem of Normative Grounding

First, let us note that there is no dispute among the medieval authorities regarding the force of the sages’ interpretation, that is, that the power and authority of the sages to interpret and expound the Torah derive from “you shall not turn aside.” The dispute concerns only the source of their authority to legislate, that is, their power to create rabbinic laws by enactment or decree. According to Bahag and Maimonides, that too is derived from “you shall not turn aside,” while according to Nahmanides it apparently derives from another source.

As for the source of the obligation to observe the commandments enacted by the sages, Maimonides proposes a Torah source: the negative commandment “you shall not turn aside” and the positive commandment “you shall do,” based on the Babylonian Talmud, Shabbat 23a, concerning the phrase “and commanded us.” According to him, therefore, the prohibition “you shall not turn aside” is the source of the sages’ authority both in their role as interpreters and in their role as legislators. This is certainly a coherent and well-built theory, but its “price” is that all rabbinic laws apparently become Torah laws, a position that on its face does not withstand the test of halakhic facts and sources. For precisely this reason, Nahmanides argues that the obligation to obey rabbinic laws does not derive from “you shall not turn aside”; at most there is there an asmakhta for the obligation to obey them. In his view, the law of “you shall not turn aside” was said only with respect to the sages’ interpretation, not their legislation. This, of course, explains the halakhic facts—why in doubtful cases one is not stringent—but it revives the logical problem: according to Nahmanides, why are we obligated to obey the sages at all? This is precisely the problem of the “short blanket” that we noted in the introduction: the empiricist approach of Nahmanides damages normative logic, whereas the rationalist approach of Maimonides does not fit the facts.

It should be noted that this sort of problem touches on general questions about grounding the force of normative systems as such. In such contexts there is an inherent paradox; see the beginning of chapter 1 of Hayim Gans’s Obedience and Refusal.²⁰ The principle that grounds obligation cannot be found within the system under discussion, for if it itself is a normative rule included in that system, it remains unclear what obligates us to obey it. And if it lies outside the system, then we must ground our obligation toward it, or toward the more basic system to which it belongs, as a condition for grounding the secondary system. But then we can repeat the same move with respect to that more fundamental system, and so on indefinitely.

In our case, the system of rabbinic commandments is secondary, and therefore it can be anchored in the obligation to Torah commandments, which constitute the primary system with respect to rabbinic law. This is Maimonides’ view. But the lighter status of rabbinic laws, which poses a difficulty for Maimonides, leads Nahmanides to conclude that their grounding probably rests on another source.²¹ Yet Nahmanides too is left with the difficulty of identifying the source of the sages’ authority to legislate.

The conclusion is that neither of the two principal directions we raised fits the system of rabbinic law as it actually is. We must therefore look for other directions, intermediate models, that answer both questions: first, the normative question—what grounds the obligation to rabbinic law? Second, the factual question—why does that grounding not turn rabbinic laws into Torah laws, leaving a gap between their legal force and that of Torah law, as in the law of doubt? We seek solutions that will answer the logical difficulty without sacrificing empirical conformity to halakha as it actually is.

Before proposing our own model, we will survey the various possibilities suggested in explaining the positions of Maimonides and Nahmanides themselves, and see what picture emerges from both.

Chapter Two: Nahmanides’ Position

Introduction

As noted, Nahmanides’ position clearly explains why there is a difference between the legal force of Torah laws and that of rabbinic laws. It therefore also explains the existence of various leniencies in rabbinic law as opposed to Torah law. On the other hand, his position remains difficult with respect to the very source and grounding of the obligation to obey the sages.²² Commentators offer several explanations of Nahmanides’ words, and I will present the main directions here.

1. A Positive Commandment

From Nahmanides’ own wording, at p. 42, one might have understood that he was trying to ground the obligation to heed the sages in their enactments on the positive commandment, “you shall keep My charge.” It is there, rather than in “you shall not turn aside,” that he may be willing to see a mechanism by which rabbinic prohibitions arise from a Torah verse.

But Nahmanides’ own question—why doubts should not then be treated stringently—would apparently remain difficult even for him under this approach. Some later authorities wrote that the rule “a doubt regarding Torah law is treated stringently” does not apply to positive commandments.²³ Even so, Nahmanides’ plain wording indicates that this is not his intent, and his meaning there is not altogether clear.

2. The Torah’s Intention

Another direction, which may also arise from Nahmanides’ own words, at p. 26, ties the obligation to obey the sages to the intention of the Torah. Nahmanides writes, regarding the obligation to obey the sages’ interpretation—not their legislation—that the Torah was given subject to the understanding of the sages of the Torah, because otherwise there would always be disputes and halakha would never be defined. Nahmanides wrote something similar in his commentary on the Torah in connection with the law of conspiring witnesses, in the portion of Ki Tetze. There he speaks about Torah laws, that is, laws that emerge from the sages’ interpretation rather than their legislation. But it seems possible to broaden this and say that everything was given subject to their understanding. The Torah itself was given to us on that basis; therefore, even if they decide to add enactments through legislation, there is an obligation to obey them.²⁴

One might perhaps formulate this somewhat differently. Yeshayahu Leibowitz wrote in several places that the sanctity of the Written Torah was determined by the sages of the Oral Torah. They are the ones who determined what entered the sacred canon and what did not. One can see this in the Babylonian Talmud, Megillah 7a, where Esther is said to have sent to the sages, “Write me for generations,” and also in that same discussion concerning whether Ecclesiastes should be hidden away and whether Song of Songs renders the hands impure, and the like. If so, not only is there no source in the Written Torah for the authority of the sages; the force of the Written Torah itself comes through the sages. This means that the Torah was given to us subject to their authority, and therefore everything they say has force—not by virtue of the Torah, but by virtue of the very power that also leads us to obey the Torah itself.

Still, it is not clear what the source is for this principle itself. It would seem that what is in view here is an oral tradition accompanying the Torah, which instructs us regarding the role and authority of the sages.

3. The Acceptance of All Israel

Rabbi Abraham Isaac Kook, in Mishpat Kohen no. 144 and elsewhere, writes that the authority of the sages derives from the acceptance of all Israel, who accepted them upon themselves. From his words it appears that this is not a regular halakhic obligation, but the result of a commitment undertaken by the public. The force of this obligation is not grounded in halakha or in the Torah, because if it were, doubtful cases would be treated stringently.

This implies that the Torah does not impose upon us an obligation to accept the sages’ words; rather, we chose to do so of our own accord. Once we have undertaken that commitment, we are obligated to obey the sages in their enactments and decrees.

It should be noted that this is a legal fiction. There was never a formal event in which Israel accepted upon itself the authority of the sages. As we saw, Maimonides grounds the matter in a command of the Torah, which means that he himself does not see his obligation to their words as deriving from any human commitment. So how can Maimonides, and with him all of us, be bound by a commitment he himself does not even acknowledge? It is likely that what we have here is a mechanism of legal fiction. Since it is proper that we accept the authority of the sages, we treat the matter as though we had in fact accepted it. There are additional examples of this in halakha, as well as in other legal systems, but we will not elaborate here.

Does this proposal explain the various leniencies we find in rabbinic law? Each such leniency must be examined separately. The law of doubt, which is the example discussed above, can certainly be explained in this way. In a case of doubt, it is unknown whether the person undertook the obligation, and then, as it were, the burden of proof lies on the claimant; therefore the doubt is treated leniently. The same is true with respect to obligation to Torah law; see the discussion of the oath to accept the Torah at Sinai in the first volume, Note 15.

Still, the special status of rabbinic law does not receive a full explanation here. If such a commitment has a basis in the Torah, then it ought to bind at the Torah level. And if it has no source in the Torah, why are we truly bound by it? Even if its basis is in reason—that a person is obligated to keep his word—that would still lead us to conclude that the obligation is at the Torah level, like any matter grounded in reason, as argued by the author of Kuntres Divrei Soferim cited above.

4. Or Perhaps There Is No Obligation to Obey the Sages at All?

Until this point we have seen explanations based on sweeping value principles. Rationales underlying specific rabbinic laws are particular value principles, but apparently the existence of such rationales would turn those laws into Torah laws. Therefore most later authorities explain Nahmanides through some general rationale that functions as a sweeping value principle and from which a general obligation to obey the sages is generated. That rationale may be administrative and technical—for example, the need for a mechanism that preserves order and social structure, as seems to emerge from the explanation offered by the author of Sefer Ha-Hinukh on commandment 496, though he offers it only as the rationale of the verse “you shall not turn aside.” Or, alternatively, it may be substantive—for example, a rationale based on the wisdom of the sages, concluding that their commands express actions that are fitting to perform, and the like.

This may perhaps also be supported by Nahmanides’ own language when he sums up and writes concerning the rebellious elder, at pp. 26–28:

All the more so, one who rebels against them—that is, against rabbinic prohibitions—and violates one of them while understanding that he is committing a prohibition, does not violate this negative commandment and is not included in the law of this section at all. For the entire section concerns the punishment of rebels, not sinners.²⁵

At first glance, this passage can be interpreted in several directions.²⁵ Even so, there is room to understand Nahmanides as saying here that one who violates Torah law is a rebel, while one who violates rabbinic law is a sinner without rebellion. What is the meaning of this distinction? According to this proposal, Nahmanides means that a sinner is one who performs a negative act, that is, an act that damages or harms in some sense. But a rebel is one who, beyond doing something improper, also revolts and fails to obey a command. Since, according to Nahmanides, there is no Torah command concerning rabbinic laws, one who violates them is not considered a rebel but a sinner. In light of the distinction we cited above from Rabbi Elhanan Wasserman’s essay “Repentance,” it seems that Nahmanides’ meaning in this passage is that only offenders who violate an actual command—that is, rebels—transgress the negative commandment “you shall not turn aside,” not those who merely damage the world or the soul without rebelling against any command—that is, sinners.²⁶

If that is indeed Nahmanides’ intention, a very great novelty emerges from his words: the obligation to heed the sages is not really grounded in a command, but in the substance of the matter itself—in the repair it brings about or the damage it prevents. If we asked above what is the source of the binding force that obligates us to heed the sages, Nahmanides’ answer, on this proposal, is: there is no such command, because there is no verse in the Torah commanding it. Anyone who violates a rabbinic prohibition causes some damage, and therefore performs an improper act, perhaps even a forbidden act, but there is no command about it, and so he may be an offender but he is not a rebel. He should understand that the matter is harmful, and therefore forbidden. But the prohibition is not because of a command; it is because of the logic inherent in the act itself. Perhaps for this reason halakha imposes no punishment on one who violates rabbinic prohibitions.²⁷

This proposal grounds the obligation of obedience to the sages on a particular value principle, not a sweeping one. Each commandment has its own independent reason obligating us to observe it, but there is no sweeping reason obligating us to obey the sages in whatever they enact.

To sharpen the novelty of this claim, let us recall the well-known and controversial words of the author of Netivot Ha-Mishpat, in Hoshen Mishpat no. 234, who rules that one who violates a rabbinic prohibition inadvertently has not committed any transgression at all, and therefore requires no atonement. His reasoning is that rabbinic violations contain only the dimension of command—namely, the rule of obeying the sages and the prohibition against rebellion against them, which applies to the person—and not the dimension of substance, such as a real ontological defect or a law attached to the object. According to that, when one violates a rabbinic prohibition inadvertently, there is obviously no dimension of rebellion, since he did not know of the command. And in a rabbinic prohibition, even when violated deliberately, there is no substantive dimension at all. Hence, when a rabbinic prohibition is violated inadvertently, no wrong has been done.

From the words of Netivot Ha-Mishpat it follows that rabbinic prohibitions contain only a dimension of command, without a dimension of defect. He apparently bases this on Maimonides’ position, which sees the obligation to obey the sages as rooted in the negative commandment “you shall not turn aside,” that is, in the prohibition against rebelling against the sages. This is a commandment whose entire content is the prohibition of rebellion against them, not an affirmation of the substance of what they say.

By contrast, according to our explanation here of Nahmanides, the picture is exactly the reverse: rabbinic prohibitions have only a substantive dimension, without any dimension of command. Later we will see that even in Maimonides’ position it is difficult to accept the words of Netivot Ha-Mishpat on this matter, and others have already noted this.

From the direction proposed here it also follows that the sages’ command—simply by virtue of their enacting the decree or ordinance—is not essential to the definition of the transgression. The act is bad in itself, and therefore was in fact forbidden even before the sages determined it as such. Their explicit command merely notifies us of the problem, thereby preventing the offender from claiming that he was coerced, in the sense that he had not turned his attention to this rationale.²⁸

In any event, according to this proposal in Nahmanides, there is in fact no obligation at all to obey the sages. There is only an obligation to do the right thing. The sages merely reveal to us that these acts are fitting and proper; they do not command us concerning them.

But here the objection raised by the author of Kuntres Divrei Soferim returns: rational reasoning too constitutes Torah-level obligation, and all the rules that apply to Torah law, such as stringency in doubt, should then apply here as well. If so, how can the proposal we have just presented—an obligation based on reason—avoid Nahmanides’ own objections? If the foundation of the obligation to observe rabbinic laws is that they are correct, that is, that they repair or benefit something in some way, then they should have the force of Torah obligation.

Several directions of explanation may be proposed:

1. The places where the sages treat reason as equivalent in weight to a verse—“Why do I need a verse? It is a matter of reason”—are interpretive situations. For example, when we need to define the laws of evidence and judicial procedure in the Torah, reason reveals to us that the rule “the same mouth that prohibited is the mouth that permitted” is good evidence; see the Babylonian Talmud, Bava Kamma 46b. In such a situation no verse is needed. In the context of interpretive reasoning, meaning reasoning that explains to us the meaning of some Torah command, the reasoning is not the source of the command’s force but only reveals the meaning of the verse. The verse is the source of the command’s force. This is interpretive reasoning, not legislative reasoning.²⁹ In such a case there is a command in a Torah verse, and the reasoning merely uncovers it; therefore, according to all views, the result is Torah law. But reasonings that create new laws, legislative rather than interpretive reasonings, would indeed not be halakhically binding, since they contain no dimension of command. Only the substance—that is, the reason why those laws were enacted—obligates us with respect to them.³⁰ This is, of course, contrary to the assumption of the author of Kuntres Divrei Soferim.

2. One might perhaps say that a prohibition based on reason is lighter than an ordinary Torah prohibition, since even with respect to a law learned through the thirteen hermeneutical principles we find that it is lighter than explicit Torah law. The author of Kuntres Divrei Soferim, section 1, subsections 18–24, explains that the severity of a prohibition is determined by the degree to which it appears in the Torah. The more clearly and explicitly a matter appears there, the more severe it is.³¹ 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 some rationales are strong enough that the obligation to follow them is from the Torah. But perhaps there are weaker, less decisive rationales, and the obligation to follow them has a lower force. This is in fact necessary, for if a rationale carries full force, there is no need for a rabbinic enactment, since we are already obligated by it even without the enactment. Necessarily, the sages’ enactments rest on rationales that are not unequivocal, and therefore require enactment. For example, the decree not to eat poultry with milk lest one come to eat meat with milk is indeed based on a rationale, but by similar reasoning one might also forbid fish with milk, or meat and soy products, and the like. Alternatively, one might permit poultry with milk, because in one’s judgment the chance of people coming to eat meat with milk is too small. The question is where the line lies, beyond which it is proper to prohibit and below which one permits. Here the sages enter and draw the line. To a large extent this is an arbitrary determination, because it is difficult to set objectively the level of risk beyond which a prohibition should be decreed. If so, the threshold of prohibition does not follow straightforwardly from the rationale itself, and therefore such a determination has lower force than a full rational conclusion, which would be Torah-level.

Even so, this explanation is difficult. The accepted halakhic view is that there is an obligation to obey the sages. This is not merely a recommendation, but a full obligation. It is hard to accept that Nahmanides disagrees with that.

5. Indirect Evidence

Rabbi Elhanan Wasserman, in Kuntres Divrei Soferim, section 1, subsections 16–23, explains that the obligation to heed the sages is based on the fact that we find that the Holy One agreed with them. See there for his proofs.³²

At first glance, his intention is unclear. True, there is no source here in the Torah, but what is the nature of this special source? If it is a matter of reason, then his own objection returns, namely that doubtful cases should then be treated stringently. And if it is neither reason nor verse, then what is this third mechanism being offered to us?

From his wording it clearly emerges that this is the will of God that is not written in Scripture. If it becomes clear to us that this is God’s will, but we have no rationale grounding the act itself or the obligation of obedience as such, then it would seem to be a full Torah obligation. The category of God’s will expresses a category different from reason. Here there is no rationale concerning the desired act itself, but we have an indication that the Holy One wants us to do it, and that alone obligates us to do it. It may be that the author of Kuntres Divrei Soferim views this as a distinct category, and therefore as a third type of grounding.³³

In the background stands Rabbi Elhanan Wasserman’s claim, in his essay “Repentance” in Kovetz Ma’amarim, that every act of commandment or transgression has two components: substantive content and command. The performance of a commandment has positive value because of the repair achieved by the act and also because of obedience to God’s command. Violation of a commandment has negative value on those same two planes: because of the distortion, corruption, or defect produced by the transgressive act, and also because it constitutes rebellion against God’s command.³⁴

It is important to note that the proposal here involves a third category, different from the two defined in Rabbi Elhanan Wasserman’s essay. In the case of violating the words of the sages, there is no substantive defect, because if there were, that would itself yield a rationale obligating the act. On the other hand, there is also no command to heed their voice. What rabbinic commandments contain is a prohibition for which there is no rationale in the act itself, but we know that this is God’s will. See on this Appendix D at the end of the book, chapter 2.

6. A Substantive Asmakhta

We already noted above that Nahmanides, in his glosses, treats “you shall not turn aside” as an asmakhta for the obligation to obey the sages’ legislation, both in the discussion in Berakhot and in the discussion in Shabbat. There is room to view the mechanism of asmakhta as a further explanation of the force of rabbinic laws in general.³⁵

The common understanding of asmakhta is that there is in truth no real connection between the law and the verse. The law is simply a creation of the sages, legislation in every respect. The hint in the verse is merely a rhetorical flourish or a mnemonic device, nothing more. But the Ritva, in his novella to Rosh Hashanah 16b, writes that asmakhta is not merely an arbitrary textual reminder; there is a substantive relation between the law and the source that serves as its support. See also Maharal, Be’er Ha-Golah, first discourse.³⁶ The law is not derived unequivocally from the verse, but it is present there in some indirect sense. The degree of connection between the law and the verse is not complete, and therefore it is called a support for the law rather than a source of the law.

In light of the Ritva’s words, it may be that according to Nahmanides the branching of rabbinic prohibitions from the verse “you shall not turn aside” works through the mechanism of asmakhta. Let us emphasize that according to this explanation, there is no Torah prohibition in every violation of rabbinic law. The verse “you shall not turn aside” is not truly the source of the sages’ authority, but only a support for it, and therefore the prohibition created from it is not Torah law. On the other hand, according to the Ritva there is no need to seek another source, because an asmakhta is not an arbitrary reminder but a kind of faint source.

We will encounter a similar phenomenon below when we discuss Maimonides’ position, and there we will explain more fully the meaning of this mechanism of weak branching. Nahmanides’ own position will also become clearer there.

Let us note that this direction can converge with the previous proposal, which viewed the obligation to obey the sages as an expression of God’s will. When we speak of God’s will that is not explicitly expressed as a command, while at the same time there is no rationale in the act itself, we need some indication that God indeed wills it, but not by way of a commanding verse. The most obvious route is that there is a hint in a verse—one that cannot count as a command, but certainly indicates what the Holy One expects from us. The asmakhta, then, is simply the hint that there is a divine will that we act in this way.

Summary Thus Far

After surveying the various directions suggested so far, it seems that there is indeed an obligation to obey the sages, and the direction emerging from Nahmanides for explaining it is that rabbinic prohibitions branch in some manner from a Torah verse that contains some command, but they are not really derived from that verse in a direct and unequivocal way, and therefore their degree of severity is lighter. This is an initial indication of the central phenomenon to which this book points: there is a third mechanism, which is neither legislation nor interpretation. Some laws are not the result of revealing interpretation, which uncovers what was already latent in the verses, nor are they the result of legislative activity independent of verses and their interpretation. According to the proposal advanced here, the sages’ legislative mechanism is based on an instruction that branches indirectly from verses. We will elaborate this mechanism later, when we offer a similar model in explaining Maimonides’ position.

If that is indeed the explanation of Nahmanides, however, then the picture that emerges is one in which there is apparently no disagreement at all between Maimonides and Nahmanides on this issue, and the dispute is merely the result of misunderstanding. Moreover, it is not clear why Nahmanides does not explain this explicitly. Is it really so obvious to him? Another difficult point is why, with respect to exegetical derivations, Nahmanides agrees that a source in the Torah is required in order to ground our obligation to heed them. Why are the mechanisms described thus far not sufficient to ground the force of exegetical derivations as well? We will therefore offer another explanation here, one that entirely changes the picture and answers all these difficulties. It therefore seems likely that this is indeed what Nahmanides intended.

Another Proposal Regarding Nahmanides’ Position

All the proposals raised so far are based on the view that we stand opposite the sages and are under an obligation to obey them. The question was what the source of that obligation is. But there is another way to explain obedience to the sages, by presenting the citizen’s position vis-à-vis the sages differently.

According to this proposal, I, as a Jewish citizen obligated in commandments, do not stand opposite the sages but on their side. The foundation of the matter lies in our commitment to the commandments, which was made collectively, when the whole of Israel undertook before the Holy One to observe the commandments. In Note 15 in the first volume we pointed out that without this legal definition the commitment to the commandments has no force, because a person cannot legally or halakhically obligate his descendants by any undertaking, certainly not by an oath. See also below in Note 8, where we will discuss the relation between the individual and the collective of which he is a member from another angle.

Thus, the one who stood opposite the Holy One was the public as a whole—its leaders, judges, and citizens—and the public as a collective undertook to observe the commandments. Let us now add the assumption that the sages are the representatives of the public as a whole, and therefore what they determine is considered as though the public itself had determined it regarding itself. It follows that the obligation to observe the matter is not by virtue of the sages’ authority over the citizen, but as though it were a vow or oath that the person—or the public, of which he is a part—undertook upon itself. In the relation between citizen and sages there is no commander and addressee. Rather, the collective body takes on an obligation and must now fulfill it. When the sages enact an ordinance or decree, our collective has undertaken to observe it. Fulfilling that collective undertaking means that every citizen who belongs to the collective fulfills what the collective has undertaken. According to this view, the sages are not the representatives of the Holy One, but our own representatives.

By way of analogy, a foot cannot ask why it must carry out what the head decided. The head decides for the whole body, and now the whole body is bound to fulfill that commitment. The sages are the heads of the community, that is, the organ within the collective that makes decisions and undertakings for all the citizens who belong to it. Therefore a rabbinic enactment is an obligation we take upon ourselves, not a command issuing from some external source of authority that commands us.

One may now ask why I, as an individual, am bound by that very undertaking. Why should I as a citizen be bound by commitments undertaken by the collective to which I belong? To understand this, one must notice that such a question could also be asked about any commitment I undertake as an individual. Why is a private person obligated to fulfill his commitments? Our assumption is that a person—or a body—who undertakes something is obligated to fulfill that undertaking. As an additional halakhic, or meta-halakhic, analogy, let us consider the obligation to fulfill an oath.

The later authorities discussed at length the question of a written oath. According to halakha, an oath takes effect when there has been explicit verbal articulation—that is, when it was uttered by the one taking the oath. An oath without words is not binding. The later authorities discussed the case of one who swears in writing, without uttering the words aloud. Is he obligated to fulfill it or not?

The author of Avnei Nezer, in Yoreh De’ah no. 306, cites in this regard the responsum of Ri Migash, who wrote:

15) In the responsa of Ri Migash, no. 126: if one wrote in his own hand an oath and gave that writing to the other party, he is obligated to fulfill what he swore, even if he did not utter the word “oath” aloud. If he does not fulfill it, his judgment is in the hands of Heaven. But one cannot compel him in human court, since he did not utter the oath with his mouth. These words require clarification.

16) It seems to me as follows. The Mishneh La-Melekh, in chapter 10 of the Laws of Kings, was troubled by the oaths before the giving of the Torah—those of Abraham and Isaac to Avimelekh, Esau to Jacob, and Eliezer to Abraham. The law of oaths, however, is not among the seven commandments commanded to the descendants of Noah. It seems to me that an even greater difficulty concerns the oath at Sinai, which is the basis of the acceptance of the Torah. For until they received the Torah, they were not commanded regarding oaths. And even if they had been commanded, the entire force of an oath comes from the commandment, “He shall not profane his word.” But how is that warning any different from the other warnings in the Torah? What additional force does an oath add to the Torah’s prohibitions, if the oath too is only a prohibition?

17) Therefore the matter appears clear. Certainly, when one swears to another person, reason itself determines that he is obligated to fulfill it, and no warning is needed for this. That is the case with the oaths of Abraham, Isaac, Eliezer, and the like, and the same is true of one who swears to the Holy One. But when one swears to himself that he will or will not do something, there is no such rationale. To whom has he become obligated? If you say, to the Holy One—how do we know that the Holy One desires this obligation or this prohibition? For that, the Torah had to command: “He shall not profane his word; according to all that proceeds from his mouth he shall do.” This also resolves the oath at Sinai, where they swore to the Holy One to observe His commandments. That obligation is grounded in reason. But for an obligation grounded in reason we do not find in the Torah any punishment enforceable by human courts. This now clarifies the words of Ri Migash: in oaths prior to the giving of the Torah, Scripture does not mention verbal expression or “his word,” and therefore there is no distinction between oral speech and writing. Accordingly, if one swore to another person in his own handwriting and delivered the document to him, he is obligated to fulfill it. Yet he is not punishable by human courts, since there is no negative commandment here and we do not find in this matter any punishment administered by human courts.

According to the explanation of Avnei Nezer, Ri Migash is saying that the obligation to fulfill oaths exists even without a command of the Torah. The command is a technical matter, needed in order to make punishment possible. But the obligation to fulfill oaths existed even before that, and he brings several proofs.

A further proof may be cited from Maimonides, Laws of Claimant and Defendant 5:10, where he writes:

He cannot transfer the oath to a minor, for a minor is never made to swear at all, and he does not even accept a general ban, because he does not understand the punishment for an oath.

It follows that the problem with a minor’s oath is only technical, namely that he does not understand the punishment for an oath. But in principle there is an oath-penalty for him; Maimonides does not say that there is no oath-penalty for a minor at all. If that were the case, it would have nothing to do with the minor’s knowledge of the punishment. We therefore see that even one who is not obligated by Torah law in commandments may be punished for a false oath; that is, the obligation to keep one’s word applies to him.

From these two sources it clearly follows that a person has a basic obligation to fulfill his commitments even without a command of the Torah. This is a legal-moral obligation that precedes halakha. In the same way, any collective body, such as a public, has an obligation to fulfill its commitments. Therefore, when such a body decides something, it must fulfill it. This may be the basis for every citizen’s obligation to observe the sages’ enactments and decrees. It is simply the implementation of commitments that he himself undertook, through the sages, who count as his representatives.

Interestingly, Avnei Nezer suggests an even sharper reversal of the picture. Not only is the obligation to fulfill commitments not grounded in command but prior to it, as in the cases of Eliezer and Abraham; the obligation to obey commands is itself grounded in the obligation to fulfill commitments, since, in his view, that is the basis of the Sinai oath.

As an aside, a similar mechanism may explain the obligation to obey laws enacted by a parliament. Jurists generally seek various mechanisms to explain the obligation to obey the law. Nearly all of those explanations assume a posture in which the citizen stands opposite the government or legislator. But if we change the point of departure and assume that the citizen is part of a public, and that the legislative body is the “head” of that public, then he is obligated to fulfill what the public to which he belongs has decided. On this picture, there is no need at all to seek additional explanations for the civic duty to obey the law. It seems to me that this is what lies behind the powerful intuition of the citizen that he must obey the law simply because he is part of the society that enacted it. In democratic states, of course, this explanation is even stronger, since the government is chosen by the citizens and therefore clearly acts as their representative and by their power. The novelty in halakha is that the sages, or the Great Court, though not elected by the public, are nonetheless regarded as its representatives, and their decisions therefore bind it.

At least in Nahmanides’ eyes, this is probably a simple intuitive picture, which is why he does not bother to propose some other mechanism to explain our obligation to observe the sages’ enactments and decrees. He contents himself with rejecting Maimonides’ seemingly simple explanation and does not find it necessary to spell out his own alternative. It is clear from his words that he does not see a problem here that requires further justification. Presumably, this is because he sees the picture as we have described it here, unlike the picture presupposed by all the earlier proposals.

It should be noted that one can find similar conceptions in the responsa literature with respect to communal ordinances and the authority of the town’s seven appointed leaders. There too some decisors understand the obligation to obey the ordinances not as deriving from authority, but from our being members of the town. See, for example, Responsa Rivash no. 397 and others.

To summarize: the claim that the public is obligated to observe rabbinic laws is now interpreted differently from the earlier directions. The obligation is not an obligation to obey the sages; rather, the legislation itself is the obligation. The enactment of the sages constitutes an undertaking of the public, through its representatives, and therefore the public must fulfill it, just as anyone who undertakes an obligation must fulfill it.

We saw above three difficulties in the earlier approaches to Nahmanides’ position. Here we have explained the first—why Nahmanides felt no need to justify the obligation to obey the sages. But what of the second difficulty, that in the final analysis Nahmanides would then not really disagree with Maimonides at all? We can now see that there is indeed a disagreement between them. According to Nahmanides, the obligation to obey the sages is a natural consequence of being a member of the Jewish collective, not a normative-halakhic principle. A private person who undertakes something must fulfill his undertaking, and the same is true of a collective. One may say that this is natural law, not a command of the Torah. Maimonides, by contrast, apparently sees the picture differently. He views the sages’ authority as coming from the Holy One—that is, they are His agents, empowered to close gaps in halakha by enacting ordinances and decrees—and the obligation to obey them derives from delegated authority from the Holy One to them. The root disagreement is therefore whether the sages are “agents of Heaven” or “our agents.” From this follows the dispute over whether the obligation to obey them is a matter of natural law or the result of enacted law, namely “you shall not turn aside.” We will return to these questions in the third section of the book. This is the fundamental disagreement between Maimonides and Nahmanides with respect to the sages’ enactments and decrees and the verse “you shall not turn aside.”

We will conclude with two further remarks. Nahmanides writes that the obligation to obey the sages has an asmakhta in “you shall not turn aside,” and from this we inferred above that he too sees some kind of branching mechanism here. It can now be explained that the asmakhta is not meant to express branching, but is meant literally. This is an asmakhta, that is, a verse that is not truly the source of the obligation learned from it. That obligation is grounded in the mechanism described here, namely the duty to fulfill commitments, and therefore the verse “you shall not turn aside” is an asmakhta in the simple sense.

What about exegetical derivations? We saw that Nahmanides explains the verse “you shall not turn aside” as commanding us to obey the sages when they interpret and expound, though not when they legislate. We asked above, regarding the earlier explanations of Nahmanides, why according to him the obligation to obey them in their derivations and interpretations cannot be grounded in the mechanism proposed here.

According to our proposal, the answer is very simple, and it seems to provide further support for it. Once the sages derive an exposition—for example, from the verse “The Lord your God you shall fear,” to include Torah scholars—a law comes into being that one must fear Torah scholars. This is not an enactment legislated by the sages; it is the result of the exposition they performed, that is, something that was already latent in the Torah itself. The exposition extracted it from the verse, and in that sense it is a kind of interpretation, not legislation. In the second section of this book we will see that Maimonides and Nahmanides themselves dispute this point: whether exegetical derivations uncover or expand. If so, the source of authority for the obligation to fear Torah scholars is not a commitment we undertook through the sages as our representatives, as in the case of enactments and decrees, but the command of the Torah. The sages’ exposition merely revealed what the Torah commands us in that verse, and the obligation to observe it exists because the Torah commanded it.

It is therefore obvious that the obligation to obey the sages in their derivations cannot be grounded in the duty to fulfill commitments, through the mechanism presented above. Here what is required of us is obedience to the Holy One, not to the sages. The question whether the sages’ exposition truly uncovered God’s will is a factual question, and therefore it does not depend on any undertaking of ours. For that reason the Torah must give us a source of authority in the verse “you shall not turn aside,” which tells us that the sages’ derivations are authoritative disclosures of Scripture, and that this is indeed God’s will, so that we are obligated to obey what emerges from those derivations. Unlike enactments and decrees, this is not an obligation to fulfill commitments but an obligation to obey the Torah’s commands, and therefore a Torah-level source of authority is required here.

Thus, the very fact that Nahmanides too requires the verse “you shall not turn aside” in order to ground the sages’ authority to derive and interpret is itself strong evidence for the proposal presented here. The duty to fulfill commitments cannot serve as the basis for the force of derivations, and therefore a basis is needed that the Torah itself supplies. According to the other explanations we presented above, it is indeed not understood why those same mechanisms could not also ground the authority to interpret and derive, just as they ground the authority to legislate.

There is room to discuss why the force of these enactments differs from that of Torah obligations. There is certainly no reason to identify it with Torah force, since we have no verse that obligates it. But as we saw in Kuntres Divrei Soferim, even a source based on reason should apparently yield Torah law.

To explain this we must distinguish here between two kinds of rationales: substantive and external. We already raised a similar possibility above, in sections 3 and 5. The rationale at issue here is not substantive. That is, the obligation not to eat poultry with milk is not grounded in a rationale explaining why this is a bad act or one with harmful consequences. Such a rationale would create a Torah prohibition. Here the rationale is external: it is proper to fulfill commitments we have undertaken. What is the status of such an obligation? The Torah tells us, or the sages determined, that its force is lower, and that is what is called “rabbinic law.”

Chapter Three: Maimonides’ Position

Introduction

As we saw above, the main difficulty in Maimonides’ position is factual: why do we find various leniencies in rabbinic law as compared with Torah law—for example, why doubts in rabbinic law are treated leniently rather than stringently? In explaining Maimonides’ position, several directions have been proposed, all based on sweeping value principles, and we will now survey some of them one by one.

1. “They Enacted It, and They Themselves Limited It”: Mechanism A

It is well known that Maimonides’ view is that the rule “a doubt regarding Torah law is treated stringently” is itself only rabbinic.³⁷ On such an approach it is quite reasonable to say that in rabbinic laws the sages themselves did not apply this stringency that in cases of doubt one must be stringent, and therefore in rabbinic law we remain with the basic the law, which is leniency. In the language of the sages: they enacted it, and they themselves limited it.³⁸ Of course, this still requires explanation: why should such a distinction be made between Torah laws and rabbinic laws? Some have explained here—this direction is very close to what Nahmanides himself proposed as a possible explanation of Maimonides and then rejected as implausible; more on that below—that all of this was done in order to distinguish Torah law from rabbinic law, and perhaps also as a way of distancing rabbinic enactments from the prohibition of “do not add.”

According to this, however, it would be difficult to explain cases of an established prohibition, where Maimonides too agrees that the obligation to be stringent in doubtful cases is itself from the Torah, since one brings a provisional guilt-offering for such doubtful violations, which implies that they are prohibited by Torah law. So too wrote Shev Shema’teta at the beginning of Gate 1, and many later authorities.³⁹ If so, in situations where there is an established prohibition in the context of doubt regarding rabbinic law, we should apparently have to be stringent in doubtful cases just as in parallel Torah-law situations.

2. “They Enacted It, and They Themselves Limited It”: Mechanism B

Nahmanides himself proposes a solution for explaining Maimonides, and several commentators adopted it:[^60] even if the rule “a doubt regarding Torah law is treated stringently” were itself a Torah rule, the enactments themselves are still rabbinic. If so, the sages themselves waived, or stipulated—commentators use different formulations—the enactment whenever we are in a situation of doubt. Let us sharpen the point. The previous direction said that the sages waived the rule that they themselves established, namely that in doubt one must be stringent. But that can be said only if we understand that the rule itself is rabbinic. What is now being proposed is that in situations of doubt the sages waived the enactments themselves. This direction remains possible even if we hold that the rule “a doubt regarding Torah law is treated stringently” is itself from the Torah, and even if what the sages enact does indeed receive Torah force by virtue of “you shall not turn aside.” Since the sages could have refrained from enacting the ordinance altogether, they surely also have the power to limit it and stipulate that it will have lighter boundaries—for example, that in cases of doubt it will be treated leniently.

As an illustration, let us consider a case in which a person vows not to eat bread. In the law of vows, the Torah gave us the power to add a new prohibition beyond the Torah’s prohibitions, and in that sense there is a mechanism here similar to rabbinic prohibitions. When that person eats bread, he violates the Torah negative commandment, “he shall not profane his word,” and the Torah positive commandment, “according to all that proceeds from his mouth he shall do.” What happens in a case of doubt? Clearly, if there is doubt whether something is bread or not, the doubt is treated stringently, since it is a Torah-level doubt. But what if, when making the vow, the person had added a condition that the vow would not apply in cases of doubt? In that case, one who eats doubtful bread would be exempt, and the exemption would be certain, not merely doubtful. Thus, when a person creates a prohibition, he can certainly also limit it to specific contexts, since the same source that prohibited can also release. The same applies to the sages: when they establish an ordinance, there is nothing to prevent them from limiting it to cases of certainty alone, even if we assume that the force of the enactment is at the Torah level. Here too the reasoning is that the same source that prohibited can also release.

As noted, Nahmanides himself raises this possibility and rejects it, but gives no reason. Some later authorities—for example, Shev Shema’teta there, who raises this objection against Zohar Ha-Rakia—explained his view as follows: according to this explanation, it remains unclear why we are lenient in rabbinic law even where there is a dispute among authorities, that is, where the doubt lies between two halakhic opinions.⁴⁰ When there is a dispute among decisors concerning a rabbinic law, the rule is that the doubt is treated leniently, just as in any factual or legal doubt regarding rabbinic law. But in such a case the explanation proposed here does not seem to work. Authority A says the act is permitted and authority B says it is forbidden. The authority who permits holds that it is fully permitted from the outset and there is no prohibition at all. The one who forbids is equally certain that the matter is prohibited. The one who is in doubt is I, the ordinary citizen. Did either of these authorities sit down and explicitly permit us the matter in a case where we do not know which of them is right? The forbidding authority certainly forbids, and the permitting authority certainly permits. It is only we who do not know which of them is correct. So here it is clear that neither of them actually permitted us to be lenient in cases of doubt, nor waived the ordinance.

In fact, even in Nahmanides’ own wording there is some indication that he distinguishes between a legal doubt and a factual doubt. At the end of p. 20 he raises a separate question from legal doubt, which suggests that this does not follow from the ordinary laws of doubt. It may be that this very question is what led him to reject the explanation that he himself had proposed as a possible account of Maimonides.

Even so, it seems that this objection can also be answered in several ways. I will mention two:

From Maimonides’ language it appears that “you shall not turn aside” applies only to the rulings of the Great Court, not to the ruling of every sage in every generation.⁴¹ If so, when there is an unresolved dispute, that itself proves that no ruling of the Great Court exists here, because in the Great Court they would vote and decide. If so, the negative commandment “you shall not turn aside” does not apply here.

It is also possible that there is a general rabbinic ordinance, accepted by all, that every rabbinic law and every rabbinic opinion is stated only on the condition that doubtful cases are treated leniently. That is, the one who allows leniency in a disputed case is not the sage who originally enacted the ordinance, or held that it existed, but an earlier court that established the rule governing doubt. That earlier court determined that all future ordinances about which disputes would arise would not be binding. This is similar to the rule that a decree or ordinance not accepted throughout Israel is not binding. From that also emerged the law of doubt, according to which only a genuine Torah-law doubt is treated stringently, while a rabbinic doubt is treated leniently.⁴²

3. Rabbinic Prohibitions Are Obligations of the Person

Rabbi Shlomo Zalman, in his commentary there on Shev Shema’teta, writes that if we understand rabbinic prohibitions not as prohibitions attached to the object but as obligations on the person—that is, prohibitions that apply only to rebellion against the sages’ instructions, in line with Netivot Ha-Mishpat no. 234 cited above—then when there is a dispute and someone follows the lenient opinion, there is no rebellion at all. In such a case there is no obligation to follow the stricter ruling from the outset; it is not merely a permission born of doubt.⁴³

As we will see below, this direction, which is very similar to the view of Netivot Ha-Mishpat, is problematic within Maimonides’ own position, in light of his words in the course of this root principle. In fact, it seems that none of the medieval authorities adopts it in full.

4. Between Rebellion and an Ordinary Rabbinic Violation

The author of Tzafnat Pane’ah and other later authorities⁴⁴ wrote that Maimonides does not mean to say that anyone who violates a rabbinic prohibition thereby violates a Torah negative and positive commandment. His intention is that if a person refuses in principle to accept the ordinance at all—as in the case of Elazar in the Babylonian Talmud, Berakhot 19b, who cast doubt on hand-washing—then he violates the Torah command “you shall not turn aside.”⁴⁵

According to this explanation of Maimonides, if a person violates a rabbinic prohibition, such as eating poultry with milk, but does so because of desire rather than because of a principled denial of the sages’ authority, then he does not violate the Torah prohibition “you shall not turn aside,” but only the rabbinic prohibition of poultry with milk. Only if the violation stems from a principled refusal to accept the authority of the sages does he violate the Torah prohibition of “you shall not turn aside.”

It is important to stress that this is different from the position of Netivot Ha-Mishpat mentioned above. According to Netivot Ha-Mishpat, an inadvertent rabbinic transgression is no transgression at all, and only deliberate violation counts as rebellion. Here the claim is different: it is possible that one violates even inadvertently if one does not know that the sages have authority to enact laws.⁴⁶ Conversely, there is also a difference in the other direction: sometimes even a deliberate act is not an act of rebellion, if the background assumption of the offender is a principled acceptance of the sages’ authority, but his impulse nevertheless inclines him toward the violation. Even when a person violates out of spite, this is not necessarily rebellion against the sages’ authority, just as even with Torah prohibitions there are cases where people violate out of spite, or deliberately out of desire, or simply for appetite, while still acknowledging in principle the authority of the Holy One and of the Torah. According to Tzafnat Pane’ah, a person who accepts the sages’ authority but decides to violate the prohibition deliberately, for whatever reason, does not violate the verse “you shall not turn aside.”

This proposal is strongly reinforced by the fact that the negative commandment “you shall not turn aside” also applies to the rebellious elder, and there the offense is clearly rebellion against the sages, not violation of a specific substantive rule. An elder who disputes the court concerning Sabbath law is not regarded as an offender in the laws of Sabbath, but as a rebel against the authority of the Great Court. This indicates that the essence of the negative commandment is rebellion against the authority of the sages, as indeed follows from the wording of the verse itself. It is therefore only reasonable to interpret the commandment likewise with respect to an ordinary person: its essence is rebellion against the sages’ authority, not violation of the content of their words. The act of transgression, such as eating poultry with milk, is merely an expression of that rebellion; the substance of the negative commandment is the rebellion itself, meaning the refusal to accept authority.

Another proof for this proposal in Maimonides may be brought from the law of an oath concerning communal ordinances. In Shulhan Arukh, Yoreh De’ah 228:33, it is written:

One who swears not to submit to the town’s ordinance utters a vain oath, and the town’s ordinance applies to him regardless. If he does not conduct himself like them, he falls under the ban attached to their ordinance.

The meaning is that if someone swears not to observe the community’s ordinance, the oath does not take effect at all. The Vilna Gaon asks there, in subsection 94, how an oath concerning communal ordinances can be more problematic than an oath to violate a rabbinic prohibition, which does take effect. According to our approach, the matter is entirely clear. The Shulhan Arukh speaks about someone who swears not to enter under the authority of the communal ordinance, that is, he denies their very authority to enact ordinances. An oath of this kind does not take effect even with respect to rabbinic law, because in such a case the oath is an oath to rebel against the words of the sages, which is an oath to violate a Torah prohibition, and therefore it does not take effect. By contrast, if a person swears to eat poultry with milk—not to rebel against the sages’ basic authority—the oath does take effect. According to our proposal, the same would hold with regard to communal ordinances: if someone swore to do something prohibited by the ordinance, the oath would take effect.⁴⁷

Our conclusion is that one who violates a rabbinic prohibition because he does not recognize the sages’ authority violates a Torah prohibition, but if he simply violates a rabbinic prohibition, then even according to Maimonides he violates only a rabbinic prohibition. But this raises a further question: what is the source of the person’s obligation when he violates a rabbinic prohibition without rebellious intent? As we have seen, in that case the offender does not violate “you shall not turn aside,” but only a rabbinic prohibition. But why is there any prohibition here at all if it is not derived from the verse “you shall not turn aside”? What is the source of that rabbinic prohibition? And conversely, if it is derived from the verse, why is it not prohibited by Torah law? It would seem that our basic question has simply returned in a new form. Put differently, it seems that the words of Tzafnat Pane’ah do not really address the question that concerns us, and therefore do not solve it. More than that: even if the specific rabbinic prohibition does somehow emerge from the verse “you shall not turn aside,” it remains unclear how two distinct elements can be derived from the same negative commandment and the same verse: both the specific prohibition, such as eating poultry with milk, and the general obligation to heed the sages.

Such a mechanism requires explanation from two different standpoints: first, what exactly is this mechanism? Second, what is its relation to the Torah prohibition of “you shall not turn aside” when the person violates the rabbinic prohibition in a rebellious manner? But before entering those questions, we will bring proofs that this is indeed Maimonides’ view.

Evidence That This Is Maimonides’ View

We noted above that Nahmanides proved that, according to Maimonides, there is a Torah prohibition in “you shall not turn aside” even with respect to rabbinic prohibitions committed by an ordinary person and not only by a rebellious elder. The proof was based on Maimonides’ wording in Laws of Rebels 1:2, where he states that no lashes are administered for this negative commandment because it serves as the warning for a court-imposed capital punishment, since a rebellious elder is executed when he violates it. This proves that “you shall not turn aside” contains a Torah prohibition even for an ordinary person; otherwise, why would we need reasons why lashes are not administered for this commandment? This direction is supported by several passages in Maimonides, noted above, according to which the obligation to heed the sages is derived from the verse “you shall not turn aside.” The plain meaning of that is that even an ordinary person can violate this Torah prohibition.

On the other hand, it is quite clear that Maimonides does not hold, as Nahmanides, Netivot Ha-Mishpat, and many of his commentators understood him, that everyone who violates a rabbinic prohibition thereby violates the Torah negative commandment “you shall not turn aside.” The proof of this lies in Maimonides’ words cited above from Laws of Rebels 2:9. As noted, Maimonides rules there that even the sages can violate the prohibition of “do not add” if, in announcing a new enactment, they do not state that it is an enactment and not a commandment from the Torah. It is clear from his wording there that he means a Torah-level violation of “do not add”; one should examine the passage carefully.

If every rabbinic enactment were merely another case included under the negative commandment “you shall not turn aside,” what sense would there be in requiring such an announcement? Why would “do not add” be implicated at all? The sages would simply be acting in accordance with the Torah’s own instructions in “you shall not turn aside,” in effect merely adding situations in which that existing prohibition applies. Is that considered adding a new commandment to the Torah’s commandments? More than that: if Maimonides really meant, like Netivot Ha-Mishpat, that the problem in rabbinic prohibitions lies only in disobedience to the sages and not in the substantive content itself—so that an inadvertent rabbinic violation is no violation at all—then all rabbinic enactments are merely different expressions of the duty of obedience. Above we cited a parallel example from the prohibition of violating one’s vow: “he shall not profane his word.” Suppose a person vowed not to eat bread, or prohibited his bread to others. Must he announce to the world that this is a vow and not a commandment, in order to avoid violating “do not add”? Surely not. These are simply various situations in which the Torah prohibition of “he shall not profane his word” applies, nothing more. It is obvious to everyone that these are not additional negative commandments but applications of an existing one. The same should then be true of “you shall not turn aside” in the context of rabbinic prohibitions. When the sages enact that one should not eat poultry with milk, this would merely be an additional way of violating an existing prohibition, not a new prohibition that might implicate “do not add.” It therefore appears from this that Maimonides holds that the content of rabbinic prohibitions is itself prohibited, and not merely the refusal to obey the sages.

Further Evidence from the Structure of Maimonides’ Discussion in This Root Principle

We have seen that Maimonides views rabbinic laws as branching from the negative commandment “you shall not turn aside,” yet as possessing independent content. In an act that constitutes a rabbinic transgression there is also a substantive defect, not only an aspect of rebellion or disobedience to the sages’ commands.

As explained in the introduction, in his root principles Maimonides is primarily contending with Bahag’s approach, and so too here. It turns out that Bahag includes several rabbinic commandments in his enumeration, and Maimonides attacks him for this. A priori, such an attack could have proceeded along two channels: an interpretive one and a substantive one. In the interpretive channel, Maimonides should have tried to prove that Rabbi Simlai’s statement, based on the verse “Moses commanded us the Torah,” from which he derived that 613 commandments were given to Moses at Sinai, does not refer to rabbinic commandments. In the substantive channel, Maimonides could have raised two kinds of argument: first, that rabbinic commandments should not be included in the enumeration because of their different force and perhaps also their different nature; second, that they should not be included because they are already included within a Torah commandment, whether within “you shall not turn aside” or within some other Torah commandment. The second type of argument rests on the principle Maimonides states in the seventh root principle, according to which one does not count different applications of the same commandment, or detailed specifications of a commandment, as separate commandments.

Now it must be noted that throughout this root principle Maimonides raises only interpretive arguments, which we will enumerate below. He makes almost no use at all of the difference in force, or of the possibility that rabbinic commandments are already included in “you shall not turn aside.”

But if Maimonides had really understood rabbinic commandments to be nothing more than various applications of the prohibition “you shall not turn aside,” that is, if everyone who eats poultry with milk thereby violates “you shall not turn aside,” then one would expect his attack to proceed mainly on the substantive plane. He should have argued that rabbinic commandments are not to be counted because they are nothing more than details of “you shall not turn aside,” which is already counted. Beyond that, it would make more sense to focus the main effort on the essence of the matter. Yet Maimonides, strikingly, hardly addresses this line at all. More than that: if he really understood rabbinic commandments as included within some Torah commandment, there would have been no place at all for the first root principle, since it would have been only a specific application of the principle already presented in the seventh root.

Thus, the structure of Maimonides’ discussion again indicates that he did not see rabbinic commandments as straightforwardly included in the negative commandment “you shall not turn aside,” or in any other Torah commandment.

We must, however, understand why Maimonides does not advance the obvious first claim, namely that rabbinic commandments have a different force and therefore should not be included together with Torah commandments. This would seem to support Nahmanides’ interpretation of his words, namely that rabbinic commandments too possess Torah-level force. But it may also simply be that the difference in force was obvious to him—as our conclusion above regarding his view suggests, namely that one who eats poultry with milk does not violate “you shall not turn aside”—and his dispute with Bahag is not about force, because Bahag too agrees on that point. Maimonides therefore did not think such an argument would be useful.

The Scheme of the Discussion

To strengthen our claim regarding Maimonides’ position, let us now examine the course of his argument in this root principle in greater detail. At the beginning of his discussion, Maimonides addresses the position of Bahag and those who follow him, who counted rabbinic commandments such as Hanukkah lights, reading the Megillah, one hundred blessings each day, the eighteen days on which Hallel is recited in full, and the like, among the 613 commandments. As we saw above, Maimonides agrees with Bahag that the source of obligation for rabbinic commandments is “you shall not turn aside,” and Nahmanides disagrees with both of them on this. But Maimonides disagrees with Bahag as to whether this requires counting those commandments themselves within the enumeration of the commandments. In Maimonides’ view, only the two general commands should be counted—the negative commandment “you shall not turn aside,” and the positive commandment “you shall do”—not the individual rabbinic commandments themselves.

Maimonides argues that what led Bahag to count these commandments was the fact that we recite over them too the blessing formula, “Who has sanctified us by His commandments and commanded us.” This is especially so in light of the Talmud’s question in the Babylonian Talmud, Shabbat 23a, “Where did He command us?” and the answer: from “you shall not turn aside.” In other words, Maimonides thinks that Bahag counts rabbinic commandments because he understands us to have been commanded in the Torah to observe them.

Maimonides raises several objections to Bahag’s position. Here we will follow Nahmanides, who divides Maimonides’ objections into four, and we will present them one by one.

1. Nahmanides, p. 16: Rabbi Simlai’s statement in tractate Makkot 23b, and see also our introduction to the book, explicitly says that the 613 commandments he discusses “were transmitted to Moses at Sinai.” It is therefore clear that this enumeration does not include rabbinic commandments, since those were not transmitted there but innovated later in the course of history. This is an interpretive objection to Bahag, based on Rabbi Simlai’s own words.

2. Nahmanides, p. 38: according to Bahag, who holds that rabbinic commandments should also be counted, it is not clear why he counted only a very small number of them. He should have counted all rabbinic commandments, including such commandments as eruv and ritual hand-washing. Maimonides sharpens the objection and says that, especially if Bahag’s source is the Talmudic passage in Shabbat just mentioned concerning “you shall not turn aside,” then all rabbinic commandments should be included in this command.

On the other hand, Maimonides adds at the end of the root principle that it is obvious that if Bahag had indeed counted all rabbinic commandments included in “you shall not turn aside,” their number would rise into the thousands and certainly not stop at 613. In Maimonides’ view, this is further proof that rabbinic commandments are not included in the enumeration at all. In any event, Bahag himself certainly did not count all of them. Maimonides therefore adds there that although there would have been a certain logic to counting all of them on the basis of “you shall not turn aside,” Bahag certainly did not do so. So Maimonides’ claim here is that Bahag’s position not only runs against the plain meaning of Rabbi Simlai’s statement, but also contains an internal contradiction.

It should also be noted that from Maimonides’ own words here it appears that, in principle, there would have been room to count all rabbinic commandments in the enumeration of commandments, rather than subsuming them under “you shall not turn aside.” This is not what would emerge from an argument based on the seventh root principle. He only proves that it cannot be so because of the number. His main objection to Bahag is that Bahag contradicts his own view, since he himself did not count them all, and if he had done so the number would have risen into the many thousands. Again, it seems that Maimonides himself is willing in principle to accept that rabbinic commandments could be counted, and even that each could be counted separately. This is further evidence that Maimonides does not regard rabbinic commandments as simply included in the prohibition “you shall not turn aside,” as we noted above.

3. Nahmanides, p. 42: why, according to Bahag’s own view, did he not also count rabbinic negative prohibitions, such as the secondary incest prohibitions, but only some of the rabbinic positive commandments? This seems to continue the previous objection. There Maimonides argued that Bahag should have counted all rabbinic positive commandments, and here he adds the rabbinic negative prohibitions as well.

As noted, with respect to the negative prohibitions too one must apply the point Maimonides adds in summing up his discussion of the root: if Bahag were to count all rabbinic negative prohibitions, they too would rise into the thousands.

Again, we have here an interpretive objection based on Rabbi Simlai’s statement, an extension of objection 2, and nothing more. Indeed, the separation between these two objections, both in Maimonides and in Nahmanides’ discussion, itself requires explanation. It is not clear why they address rabbinic positive and negative commandments separately.

4. Nahmanides, p. 42: after discussing rabbinic positive commandments, Maimonides adds that all enactments of prophets after Moses our teacher⁴⁸ also have rabbinic force, and he brings proofs for this from Talmudic discussions. If so, there is no room to count them, since they too were not given at Sinai but enacted later.⁴⁹

In light of this, Maimonides argues that one cannot defend Bahag by saying that commandments based on scriptural tradition, such as Purim, should be counted, because these too are rabbinic commandments. It does not appear that Maimonides means to offer a comprehensive explanation of Bahag’s position, for Bahag also counts plainly rabbinic commandments that are certainly not based on scriptural tradition, such as Hanukkah lights and one hundred blessings.⁵⁰ More than that: Bahag does not count other commandments that certainly do come from later Scripture, such as eruvin and hand-washing. Furthermore, Maimonides understands Bahag’s position as based on “you shall not turn aside,” and therefore does not even attempt to explain him as counting only commandments based on scriptural tradition. It is therefore clear that Maimonides’ intention here is only to add a further difficulty: why does Bahag count commandments based on scriptural tradition, such as Purim or clothing the naked, as independent commandments?

It is worth noticing that Maimonides’ arguments on this point divide into two. First, commandments based on scriptural tradition are rabbinic laws and therefore should not be counted. He proves this from the Talmud’s classification of the law of eruvin, enacted by King Solomon—that is, a command rooted in later Scripture—as a rabbinic commandment. This continues Maimonides’ argument in objection 2 above that rabbinic positive commandments should not be counted. Second, some of the rabbinic commandments counted by Bahag emerge and branch from a Torah commandment, and therefore should not be counted. The reason is that these commandments, though Torah-level in force, are not independent commandments. For example, Bahag counts clothing the naked, learned from verses in Isaiah 58, “When you see the naked, cover him,” and Maimonides argues that he should not have counted it because it, together with several other details, emerges from the Torah positive commandment, “sufficient for his need, that which he lacks”; see p. 16.

Up to this point the arguments had all been technical and interpretive. Here, for the first time, the second argumentative direction mentioned in the introduction to this chapter appears as well, the substantive classificatory direction, following the seventh root principle: one does not count rabbinic commandments because they are already included in other counted commandments. In light of this, Maimonides’ words here appear problematic. On the one hand, he seems to classify these commandments as rabbinic laws, and Bahag also seems to agree to that, so that in Maimonides’ view they should not be counted. This discussion concerns the force of those commandments. On the other hand, Maimonides asks why Bahag specified and counted each of them as an independent commandment when they are all details within one Torah positive commandment. According to this, they would appear to be commandments with Torah-level force, which indeed ought to have been counted, and the only reason they are not counted is a matter of classification—whether they have an independent place in the enumeration or are included within other counted commandments—not a matter of force. If that is indeed Maimonides’ intent, then his dispute with Bahag here concerns a question that belongs more properly to the seventh root principle than to this one, and it is not clear why he includes it in this discussion at all. Alternatively, it is not clear why it was not already included in the discussion of the first three objections.

We must also examine why Maimonides addresses only the commandment of clothing the naked, and does not object to Bahag concerning all rabbinic commandments on the ground that they are all included in “you shall not turn aside,” which would be an objection related to the seventh root principle. Furthermore, why does he object to Bahag’s counting of clothing the naked only because it should have been included under “sufficient for his need”? Seemingly, he should have argued that it is included under “you shall not turn aside,” like all rabbinic commandments.

We should add Maimonides’ wording at the opening of this discussion, where he says, “This is what has escaped others,” and immediately afterward brings the objection of the second type. It appears from this that he connects these two lines of attack. This remark gives us a first hint toward understanding Maimonides’ position in this root principle and in the law of rabbinic commandments generally, and we will expand on it in the next chapter.

Interim Summary

The picture that emerges according to Maimonides is as follows. The obligation to obey the sages is derived from “you shall not turn aside.” Despite this, rabbinic transgressions have rabbinic and not Torah force, and they are not simple implementations of the negative commandment “you shall not turn aside,” unlike the example of a vow. This is also what the halakhic facts indicate: doubts concerning them are treated leniently, along with the other leniencies that apply to them, as Nahmanides objected. Finally, despite all that, there is nevertheless some Torah prohibition in “you shall not turn aside” even with respect to an ordinary person who violates a rabbinic enactment, safeguard, or decree, as we showed above from the fact that, according to Maimonides, lashes might have been appropriate in such a case.

The necessary conclusion from all these data is that there is some additional condition under which even an ordinary person who violates a rabbinic enactment also violates a Torah prohibition. Presumably this is the state of rebellion described by Tzafnat Pane’ah. We also see from this that rabbinic prohibitions are not literally included in the negative commandment “you shall not turn aside,” but only branch from it in some way. Apparently they are learned from it by implication. We will explain this in greater detail in the coming chapters.

At the close of the discussion, it is worth noticing that our final conclusion regarding Nahmanides’ position, at the end of the previous chapter, appears very similar. There too it seemed that rabbinic prohibitions branch in some way from the negative commandment “you shall not turn aside,” although their status is rabbinic rather than Torah-level; he referred to this as an asmakhta. This is very similar to our proposal regarding Maimonides. The question now naturally arises whether Nahmanides agrees also to the second layer that we found in Maimonides: that even an ordinary person can violate the Torah prohibition if he commits the rabbinic violation in a rebellious mode, that is, from a principled denial of the sages’ authority. This question will be the subject of the next section.

Nahmanides’ Position Regarding the Prohibition of “You Shall Not Turn Aside” in the Case of a Rebel

This section concludes the chapter dealing with explanations of Maimonides’ position, but it focuses specifically on Nahmanides. We will try here to clarify whether the element of rebellion exists or does not exist in the prohibition “you shall not turn aside” according to Nahmanides.

In Kovetz He’arot on Yevamot, no. 16, letters 8–10, and in Kuntres Divrei Soferim, section 1, subsections 31–32—and see there subsection 35, where he says this against the objection of the Minhat Hinukh—it is brought in the name of Rabbi Hayyim Soloveitchik that even according to Nahmanides, one who does not accept the authority of the sages to enact ordinances violates “you shall not turn aside” at the Torah level. The difference between him and Maimonides is that Nahmanides does not think that every individual rabbinic violation, in and of itself, contains a Torah prohibition of “you shall not turn aside.”

Rabbi Hayyim explains that when, with respect to the Hanukkah candle, the sages said that one blesses “and commanded us” on the basis of “you shall not turn aside,” this is because it is indeed possible to violate here, even though the Hanukkah candle is a rabbinic commandment, the negative commandment “you shall not turn aside,” if and when one denies the very obligation to obey the enactment. He adds, however, that according to Maimonides, who disagrees with Nahmanides, every violator of rabbinic law violates each time the Torah prohibition of “you shall not turn aside.”

In fact, Rabbi Hayyim explains Nahmanides in the way that Tzafnat Pane’ah, cited above, explained Maimonides; this is also our own conclusion regarding Maimonides. At first glance this does indeed seem to follow from Nahmanides’ own wording that we cited above, where he writes, at pp. 26–28:

All the more so, one who rebels against them—that is, against rabbinic prohibitions—and violates one of them while believing that he is committing a prohibition, does not violate this negative commandment and is not included in the law of this section at all.

At first glance it would seem to follow from this that one who violates a rabbinic prohibition in a way that does not recognize that there is any prohibition here, because he denies the sages’ authority in principle, does indeed violate “you shall not turn aside” even according to Nahmanides. This seems exactly to support Rabbi Hayyim’s reading. Above we inferred from this wording the element of rebellion in Nahmanides’ position.

These claims, however, require careful scrutiny, for several reasons. First, we saw above that Nahmanides himself says that “and commanded us” with respect to the Hanukkah candle is because that commandment only has an asmakhta in “you shall not turn aside.” But according to the explanation just given, he could have explained this more simply: because there is indeed a violation of “you shall not turn aside” when a person denies the very ordinance to light the candle. That would mean there really is a command to obey the sages’ ordinance concerning the Hanukkah light. Why, then, invoke asmakhta? It would seem from this that the commandment “you shall not turn aside” has no connection at all to the Hanukkah candle, in any direct sense.

Another proof that this is not Nahmanides’ intention comes from his objection to Maimonides at the beginning of Laws of Rebels. Nahmanides objects to Maimonides from the very fact that Maimonides’ wording implies that it is possible for an ordinary person to receive lashes for the negative commandment “you shall not turn aside.” But according to Rabbi Hayyim and the author of Kuntres Divrei Soferim, that same possibility exists even according to Nahmanides, if the person rebels in principle against the sages’ authority. More than that: we ourselves explained, following Tzafnat Pane’ah, that this is probably Maimonides’ intention as well. If so, why did Nahmanides not understand that this was also Maimonides’ intention, exactly as he himself says? It seems from this that Nahmanides sees no possibility whatsoever that an ordinary person can violate the Torah negative commandment “you shall not turn aside.”

This also follows from what we mentioned above regarding Nahmanides’ view: he wrote that the prohibition “you shall not turn aside” applies only to laws derived from the interpretive principles of the Torah, and does not apply to rabbinic commandments. If the explanation of Kovetz He’arot and Rabbi Hayyim were correct, Nahmanides should have said that there is a Torah prohibition even upon an ordinary person who does not observe rabbinic commandments in a rebellious manner. It would also follow that Nahmanides agrees that the law of the rebellious elder would apply to rabbinic enactments in this very respect: an elder who refuses in principle to accept a rabbinic ordinance would be a rebellious elder at the Torah level. But this is not at all what Nahmanides implies. On the contrary, he argues forcefully against Maimonides that the whole passage of the rebellious elder applies only to Torah violations, and that with respect to rabbinic violations there is no situation in which someone can become a rebellious elder.

All this indicates that Nahmanides’ position is not as proposed by Rabbi Hayyim and Rabbi Elhanan, but rather that in his view there is no Torah prohibition at all in connection with rabbinic enactments and laws. As for the proof from the discussion in Yevamot cited above, Nahmanides would probably explain that the prohibition against flouting the sages’ words is an asmakhta to the Torah law of “you shall not turn aside,” and therefore it is more severe than the prohibition of the secondary incest prohibitions, which is an ordinary rabbinic prohibition.

Summary

In Maimonides’ position we have seen an unfamiliar mechanism, one that on the one hand ties the force of rabbinic prohibitions to “you shall not turn aside,” and on the other hand holds that when one ordinarily violates a rabbinic prohibition one does not thereby violate “you shall not turn aside” at the Torah level. This is a branching of a prohibition from a Torah source, but with a character different from what is usually assumed, and in the next chapter we will define it more precisely. Let us recall that in Nahmanides’ position too we ultimately arrived at a similar mechanism, since he himself writes that the sages’ authority is supported by the verse “you shall not turn aside,” as an asmakhta and not as a full source. If so, it is related to the verse in some way, but does not constitute a simple implementation of it.

The conclusion emerging from the discussion thus far is that Maimonides and Nahmanides probably agree on the same underlying principle, and that the dispute concerns mainly questions of definition. This should not surprise us, since the two simpler polar approaches presented above as our point of departure—the rationalist approach, deriving rabbinic laws from “you shall not turn aside” with full Torah force, and the empiricist approach, deriving them from a source external to the Torah with merely rabbinic force—were both difficult, one factually and the other logically. There is therefore no choice but to find a mechanism that expresses a middle way between the two horns of this dilemma: rabbinic laws branch from “you shall not turn aside,” and yet one who violates them has not violated “you shall not turn aside” at the Torah level—according to Maimonides, so long as he did not do so in a rebellious mode; according to Nahmanides, never.

We must now explain the main point that follows from our proposal regarding the positions of Maimonides and Nahmanides: the complex relation of branching between rabbinic prohibitions and commandments and the verse and negative commandment of “you shall not turn aside.” This is the beginning of our treatment of the basic logical point that stands at the heart of this book.

Chapter Four: Specification, Branching, and Asmakhta

The Problem Itself

We saw that the author of Tzafnat Pane’ah proposed an explanation of Maimonides according to which one who violates the words of the sages out of principled refusal to recognize their authority violates the Torah negative commandment “you shall not turn aside.” But Maimonides also agrees that when a person merely performs an act constituting a rabbinic transgression, there is no Torah-level prohibition involved. The basic question raised by this proposal is: from where do we learn that one who violates the words of the sages without rebellious intent violates a rabbinic prohibition? What is the source of that prohibition, if it does not itself emerge from the verse “you shall not turn aside”? And if it does emerge from the verse, why is it not a Torah prohibition? More than that, we asked: how can two different laws be derived from the same verse—the source of the specific rabbinic prohibitions and the source of the sages’ general authority?

This picture indicates that, apparently, the author of Tzafnat Pane’ah does not really answer the question he set out to explain. He was looking for the source of the sages’ authority, and found only the source of their general authority, not the source of the obligation to obey their specific enactments. In this chapter we will identify the seemingly missing element in the words of Tzafnat Pane’ah, and from it derive a definition of a mechanism of branching that will serve as the basis for the continuation of the book.

Explanation: Rabbinic Violations as an Implicit Interpretive Decree

Our assumption is that the basic principle learned from the verse is that one who rebels against the words of the sages—that is, one who in principle does not recognize their authority—violates the Torah negative commandment “you shall not turn aside.” But that principle itself teaches us indirectly, by implication, that their words as such have halakhic standing. If eating poultry with milk intentionally, but without rebellion, were not forbidden, then eating it from principled refusal to recognize the sages’ authority would also not count as rebellion. If there were no prohibition on eating poultry with milk, then to what does this authority apply? Against what is rebellion forbidden? The notion of rebellion has no meaning if every act that was practically prohibited to us is, in fact, not prohibited so long as it is done without rebellious intent.

The assumption underlying this argument is that there is no meaning to authority given to someone if that authority obligates nothing beyond a prohibition against rebelling against it. This would be like a prohibition saying, “Do not rebel,” without any specification of what counts as rebellion and against what the prohibited rebellion is directed. Logically, there cannot be a command that imposes no obligation to comply with it, but only a prohibition against failing to comply out of rebelliousness.⁵¹

The children’s author A. A. Milne, in Winnie-the-Pooh, tells of Piglet’s house, on which there proudly hung a sign reading: “Offenders will be punished.” The sign contains no definition of who the offender is or what offense it refers to. We have an offender without a defined offense. The command “you shall not turn aside,” if understood as prohibiting only rebellion, is exactly such a command: it says that offenders will be punished, without offering any concrete content to the offense in question.

We are therefore forced to conclude that the verse “you shall not turn aside” presupposes that there is also a prohibition in the act itself. Only if there is a prohibition on eating poultry with milk can one define, on top of that, the prohibition against rebelling against the authority of the sages who commanded us not to eat poultry with milk. Once we assume that there is a prohibition on eating poultry with milk, even without rebellious intent, we can then say that one who eats poultry with milk with rebellious intent has performed an act of prohibition accompanied by rebellion, and therefore has violated the offense of rebellion, namely “you shall not turn aside.”

This consideration itself therefore constitutes an indirect disclosure from the verse “you shall not turn aside” that the words of the sages possess halakhic standing, meaning that there is a prohibition on eating poultry with milk. Where in the verse does that disclosure come from? Precisely from this consideration itself. If the verse teaches us that there is a prohibition against rebelling against the authority of the sages, then by implication we can learn from that that they have authority to legislate and enact ordinances, and therefore we must obey them. Hence even one who eats poultry with milk without rebelling against the sages’ general authority violates a prohibition, except that this is a rabbinic prohibition, not a Torah prohibition.

Yet if this prohibition is indeed learned from the verse “you shall not turn aside,” it would seemingly have to be a Torah prohibition. Someone who ate poultry with milk should have to violate “you shall not turn aside,” which is a Torah negative commandment. The question therefore returns: how is this intermediate status of a rabbinic prohibition generated? Why does one who eats poultry with milk not violate the Torah negative commandment “you shall not turn aside,” even though the act is still forbidden? Put differently: what is the meaning of the claim that this is a “rabbinic prohibition”?

The reason is that the verse itself commands only that one not rebel, and one who eats poultry with milk, even if he does so deliberately but without principled rebellion, has not violated what the verse directly commands. On the other hand, the command in the verse that prohibits principled rebellion entails, as we explained, that the acts themselves, even without rebellion, must be prohibited. This is the mechanism that explains how the intermediate halakhic status of rabbinic prohibitions is created. These are prohibitions whose force is not that of Torah prohibitions, because one who violates them has not acted against the direct command of the verse, since he did not rebel. Yet what he did is contrary to what is learned indirectly from the verse, that is, to what the verse merely implies exists. Therefore there is a prohibition here at some level. That is what we call a “rabbinic prohibition.”

This also makes clear that two different elements are not being derived from the same verse. The Torah-level element, the prohibition against rebellion, is the one and only direct content of the verse. But it teaches us by implication about the second element, the rabbinic prohibition. Thus the source of the rabbinic prohibition too is rooted in the verse “you shall not turn aside,” but there is no duplication here. This is precisely why one is a Torah prohibition and the other a rabbinic prohibition.

As we have seen, the force of the second element—the prohibition against the act even without rebellion—is not Torah-level, but only rabbinic. The reason is that we have only an indirect proof from the verse for the existence of this prohibition, even though there is no command directly prohibiting it. This is a mechanism that we will call below “branching,” and it is what lies behind the proposal of Tzafnat Pane’ah.

Indicative Verses and Commanding Verses

There is still room to wonder why something learned by indirect interpretation from the Torah does not receive the status of Torah law. After all, by means of inference and interpretation we have learned that buried within the verse “you shall not turn aside” is also the assumption that the sages have authority to legislate. If so, we have a Torah source for their authority, and therefore anyone who violates any of their enactments should have to violate a Torah prohibition.

It seems that the explanation lies in the distinction between an imperative statement and an indicative statement. We mentioned above (see also Appendix E at the end of the book) Rabbi Elchanan Wasserman’s distinction, in his essay on repentance in Kovetz Ma’amarim, according to which every act of commandment or transgression has two aspects: the repair or damage that results from it, and the obedience or rebellion expressed by the act. An act of commandment or transgression is a full Torah commandment only when both of these components are present. If there is no command, then at most we have a worthy or unworthy act, but not a transgression or commandment in the full sense.

We can illustrate the meaning of this claim through Maimonides’ discussion in the ninth root. There Maimonides lays down two principles. In the first part, he determines that when the Torah repeats the same prohibition several times, we count it as only one prohibition. For example, the Torah commands Sabbath observance twelve times, and yet we count only one commandment to observe the Sabbath. In the second part, he determines that a general prohibition—that is, a verse from which several different prohibitions are derived—is likewise counted as only one commandment. Rabbi Yerucham Fishel Perlow, in the introduction to his commentary on Saadia Gaon’s Sefer HaMitzvot, in his remarks on the ninth root, raises a contradiction in Maimonides’ words: in the first part, it seems that content is what matters, regardless of the number of commands, whereas in the second part the opposite seems true—that what matters is the number of commands, regardless of how many contents are involved. He offers no solution there to this difficulty.

In our essay on the ninth root, we proposed the following solution. According to Maimonides, every counted commandment requires two conditions: that there be an independent command, and that this command have independent and unique content, meaning content not included in another command. We explained there that these two aspects correspond to the two aspects identified by Rabbi Elchanan Wasserman in the essay mentioned above. The unique content is the repair or corruption in the world or in the person, and the need for a separate command is in order to establish here also the dimension of rebellion that exists in every transgression.

It may be said that these two aspects of every commandment or transgression also have a grammatical expression (see our essay on the eighth root). When the Torah commands us not to eat meat cooked in milk, it tells us two things:

1. Eating meat cooked in milk is bad; it involves some kind of corruption. This is an indicative verse, because it reveals a fact, whether spiritual or physical.
2. Eating meat cooked in milk is forbidden; there is a command not to eat meat cooked in milk. This is, of course, an imperative verse, not an indicative one. It does not reveal a fact, but orders and commands us.

If there were only a verse that revealed some fact, it would not create a transgression in its full sense, because it would not be clear from it whether there is a command not to violate it. The fact that something is bad or harmful is not enough to teach us that it is a transgression. For that, a command is also required. By way of analogy: if driving at excessive speed were known to be harmful, but no law prohibited it, there would be no legal offense here. At most there would be an immoral act. In order to apply to this act the status of a legal offense, legislation is required.⁵²

We can now understand the words of the Tzafnat Pane’ach cited above. With regard to a layperson, as distinct from the rebellious elder, the verse “Do not turn aside” teaches two things:

1. A principled prohibition against rebelling against the authority of the sages.
2. A prohibition against violating their rulings, even without rebellion.

The first prohibition is a genuine command in every respect. One who rebels against the authority of the sages violates the command and damages the value of rabbinic authority. Therefore this is an ordinary Torah prohibition. But the second prohibition is not, at its core, a command but a factual disclosure. From this perspective, it is only an indicative statement. The ramification learned implicitly from the verse merely reveals a fact; it commands us nothing. The fact we learn from it is that the sages have the power to add prohibitions beyond the 613 Torah commandments, and that their enactments possess legal standing.⁵³ Here there is no command, and therefore one who eats poultry with milk or violates any other rabbinic prohibition has not violated a command that appears in the Torah, and so this is not a Torah prohibition. On the other hand, he has violated legislation enacted by the sages, since this is the source of their authority to legislate. This is what we call a rabbinic prohibition.

We thus learn that the authority of the sages to legislate is not derived directly from the verse “Do not turn aside,” but only emerges from it indirectly. The verse reveals to us a normative fact, without directly commanding it.

The Main Novelty of Our Proposal

Nahmanides understands Maimonides to mean that when he states that the prohibition against eating poultry with milk branches from “Do not turn aside,” his intention is that one who eats poultry with milk literally violates “Do not turn aside.” According to this conception, the sages’ command serves only as the circumstances that require obedience so as not to violate “Do not turn aside.” In other words, the words of the sages do not possess an imperative dimension of their own; they create and shape the different circumstances in which the prohibition of “Do not turn aside” applies. Consequently, this is exactly like “he shall not break his word” with respect to vows. There too, when a person forbids something specific to himself, such as bread, he merely changes the factual circumstances, that is, he creates a legal prohibition-status on the bread. The normative, prohibitory dimension is only one: the Torah prohibition alone. Every forbidden act of eating under the laws of vows constitutes exactly that same prohibition, and has no separate independent content of its own. The vow a given person makes does not create a new prohibition; it creates factual circumstances, determining what is forbidden by the vow, that is, to what the prohibition “he shall not break his word” will apply. Once those factual circumstances have been created, the Torah itself imposes upon them the prohibition of “he shall not break his word.”

Something like this was written by Hiddushei Rabbi Shimon Yehuda HaKohen on Nedarim, sec. 9, in distinguishing between vows and consecrations. According to him, and see there for his proofs, as well as sec. 1 there, vows are not imposed by the person. The person performs the act of vowing, but does not create any legal status on the object. The legal effect—the konam, which is also the prohibition, see sec. 1 there—is imposed on the object, for vows are object-prohibitions; see Babylonian Talmud, Nedarim 2b, by the Torah itself automatically. By contrast, with consecrations, the Torah reveals to us that the person himself can impose a status of holiness on the object. The person himself creates a new holiness-status in the world. The prohibition imposed by the Torah then falls automatically upon the holiness-status created by the person.

Similarly, Nahmanides understands Maimonides’ approach. In a vow, the person creates factual circumstances to which the Torah attaches a prohibition. Therefore the prohibition in all vows is only one: not to profane one’s word. According to Nahmanides’ reading of Maimonides, rabbinic prohibitions are likewise similar to vows: the sages create only factual circumstances, namely rabbinic commandments. Their normative force is created by the Torah, by virtue of “Do not turn aside.” We have already mentioned that this approach leads to the conclusion of Netivot HaMishpat cited above: there is nothing in rabbinic prohibitions other than obedience and disobedience, and nothing more. The only prohibitory dimension is the prohibition against disobedience, not the eating of poultry with milk itself. Therefore all rabbinic prohibitions are one and the same prohibition.

However, as we have seen, this cannot be the correct understanding of Maimonides himself. For if this were the case, rabbinic prohibitions should not need to be excluded from the count because they are included as particulars within the Torah prohibition of “Do not turn aside,” that is, by the logic of the seventh root, and not because they are prohibitions whose force is rabbinic. Even if we were to count them, at most there would be room for only one prohibition. Maimonides’ language does not imply this. He argues against the very counting of rabbinic prohibitions, not against the multiplicity of counted commandments.

We therefore proposed here a different understanding of Maimonides. The words of the sages do not merely alter factual circumstances; they create distinct commands, each with its own independent content and status, as in consecrations and unlike vows. The sages legislate genuinely new laws here; they do not merely spell out the prohibition imposed by the Torah in “Do not turn aside.” Rabbinic prohibitions are not different applications of “Do not turn aside,” but prohibitions with independent standing. Therefore, from the standpoint of the seventh root, there is in principle no barrier to including them in the count of the commandments. According to our approach, the rabbinic prohibition against eating poultry with milk is different from the rabbinic prohibition against going beyond the Sabbath boundary. These are two distinct prohibitions, except that the authority to legislate them is learned indirectly from “Do not turn aside.” According to Nahmanides’ understanding of Maimonides, these two are one and the same prohibition, namely “Do not turn aside,” just as in the case of vows.

Moreover, we have seen that the Torah merely reveals to us the fact that it is forbidden to defy these commands; it does not command us directly not to defy them. If so, the Torah is not the normative source from which these prohibitions draw their force. Their source is the legislation of the sages. The Torah’s disclosure enables the sages to create independent prohibitions, but of lower force: rabbinic prohibitions.

We mentioned above what Kovetz Shiurim wrote, see Kuntres Divrei Sofrim, sec. 1, no. 25 and onward, concerning Maimonides’ view: that every rabbinic prohibition contains two prohibitions, “Do not turn aside” and the rabbinic prohibition itself. According to our explanation, the situation is superficially similar, since in this verse too there are two dimensions: “Do not turn aside” grants authority; it is not a command. By virtue of that authority, new rabbinic prohibitions come into being. In addition, as we have seen, direct rebellion against that authority is itself a Torah prohibition, and here it is indeed a command.⁵⁴ Still, it is not correct to say that every rabbinic prohibition involves two simultaneous prohibitions. If a person eats poultry with milk, he violates only a rabbinic prohibition, nothing more. But if he does so out of principled rebellion against the authority of the sages, then in addition there is also a Torah prohibition of “Do not turn aside.”⁵⁵

Nahmanides’ Approach

We saw above that Nahmanides apparently does not agree that there is any Torah-level layer of “Do not turn aside” within the sages’ enactments as they apply to a layperson, contrary to Rabbi Chaim Soloveitchik and Rabbi Elchanan Wasserman. That means he cannot adopt the direction that emerged from the Tzafnat Pane’ach, as those two suggested. Yet in our discussion of Nahmanides there, we saw two possible ways to interpret his words.

The first was that he does, in fact, adopt some intermediate model of branching. Indeed, we saw that this is a necessary conclusion from the set of constraints within which the problem we are discussing is defined. It therefore seems that the description in this chapter should fit Nahmanides’ approach as well. According to his view too, we must explain that the obligation to obey the sages is derived in some way from the Torah, apparently from “Do not turn aside,” but it is not a simple implementation of that prohibition.

We saw that Nahmanides’ language explicitly states that the duty to obey the sages in their enactments is connected to “Do not turn aside” by way of an asmakhta, that is, a rabbinic law loosely anchored to a verse. Above we explained his approach in such a way that the mechanism of asmakhta is essential, in accordance with the Ritva on Babylonian Talmud, Rosh Hashanah 16a. It seems that the basis of the matter is that from the duty to obey the sages’ interpretations, which is accepted by all the early authorities and which everyone agrees is learned from “Do not turn aside,” we learn that there is also a duty to obey their enactments.

If so, Nahmanides too accepts that the duty to obey rabbinic commandments is learned from “Do not turn aside,” but violating such commandments does not constitute a Torah transgression of “Do not turn aside.” Thus, at least on the interpretive-logical plane, his view is exactly like the explanation we proposed for Maimonides’ view. As we have seen, there is no avoiding some such approach. We will now generalize the conclusion we have reached and define three types of interpretive consequence.

The second way, which in our view is more plausible, was that the duty to observe rabbinic law is a result of the duty to keep one’s commitments. The sages enacted ordinances and thereby obligated everyone who belongs to the collective to stand by his word. According to this proposal, there is no need to assume that Nahmanides also accepts the intermediate path, “the third way,” of Maimonides, which lies between legislation and interpretation. The mechanism we proposed would merely serve as a basis for the duty to obey legislation. According to this proposal, Nahmanides sees rabbinic enactments as ordinary legislation. We have already noted that such a mechanism can also be proposed as the basis for the duty to obey general civil law.

The main subject of this book is the synthetic a priori, and therefore this interpretation of Nahmanides is only background for the discussion. We therefore continue now with Maimonides’ approach, which is perhaps also a remote possibility in Nahmanides.

Three Mechanisms of Interpretation

At first glance, there are two mechanisms for producing an interpretive-inferential extension:

1. Implementation or application. This is a deductive derivation of laws from verses.⁵⁶
2. Distant analogy by way of association, that is, asmakhta.

We will explain these two accepted mechanisms, and then define more precisely a third mechanism, branching, which lies between them.

An implementation-type extension is the subject of the seventh root. For example, when a married woman commits adultery, she is liable to the death penalty. If she is a priest’s daughter, her punishment is burning; if she is an Israelite daughter, her punishment is strangulation; and in the case of a betrothed maiden, stoning. Maimonides states there that we do not count these three as separate commandments, since they are all different applications of the same commandment: to execute a married woman who committed adultery. The applications differ because the circumstances differ, but the principle is one. In other words, the circumstances differ factually, and therefore the same commandment is carried out differently in each case. But it is still the very same commandment, and it is therefore counted as one commandment in the enumeration.

Let us take another example, which we already discussed above. The Torah gave a person the power to add further prohibitions upon himself beyond the 613 commandments, by means of a vow or an oath. If a person vows not to eat bread, then by Torah law it is forbidden for him to eat bread. If he vows not to eat meat, then by Torah law it is forbidden for him to eat meat. If he violates his vow and eats bread, or meat, he violates the Torah prohibition “he shall not break his word.” Clearly, the prohibition against eating bread and the prohibition against eating meat are not to be counted as separate prohibitions. These are merely different situations of application of the transgression of “he shall not break his word.” We have here two different definitions whose difference lies only in factual circumstances. The person violates “he shall not break his word” in different ways depending on the situation. Put differently: he does not violate a prohibition of eating bread or meat, but “he shall not break his word.”

These are examples of interpretation that is really specification or implementation. In this mechanism, what emerges is nothing more than a realization or specification of its source in specific circumstances. Punishing a priest’s daughter with burning is itself the execution of the commandment to impose the death penalty on an adulterous woman, under the specific circumstance that she is a priest’s daughter.

We saw that according to Nahmanides’ understanding of Maimonides’ position, and likewise according to Netivot HaMishpat cited above, rabbinic commandments are related to the prohibition of “Do not turn aside” in just this way: they constitute an implementation, or specification, of the Torah prohibition. Therefore anyone who violates a rabbinic prohibition has in fact violated the Torah prohibition of “Do not turn aside,” and not a rabbinic prohibition against eating poultry with milk. Exactly as anyone who ate bread after vowing not to do so violated “he shall not break his word,” and not a prohibition against eating bread. Above we rejected this possibility.

The second mechanism of interpretive extension is asmakhta. This is the creation of an independent prohibition, that is, a mechanism of legislation, which seemingly is not connected at all to the biblical source adduced for it. Let us recall that one of our proposals for understanding Nahmanides’ view regarding rabbinic commandments depended on this mechanism. Nahmanides explicitly writes that the obligation to observe rabbinic commandments rests on “Do not turn aside” as an asmakhta. The obligation to observe rabbinic commandments is not learned from “Do not turn aside”; rather, that verse merely serves as an asmakhta for it. Perhaps it has another source, but there exists some distant connection between it and the verse “Do not turn aside.” According to other understandings of the concept asmakhta, there may be no connection at all—for example, among those who see an asmakhta as merely a mnemonic device. See Encyclopedia Talmudit, entry “Asmakhta.”

These two mechanisms parallel the two principal directions we have proposed so far in explaining the source of the force of rabbinic law. One depends on a source found in the Torah itself, because of the logical problem, and this seems to be Maimonides’ view. The other seeks an external source and rejects a Torah source, because of the factual problem, and sees in “Do not turn aside” at most an asmakhta for this obligation.

However, as we have seen, neither of these directions solves both problems together, neither the logical one nor the factual one. Our conclusion, therefore, both in Maimonides’ view and in Nahmanides’ view, was that there must be an intermediate model that solves both the logical problem and the factual problem. Because of the logical problem, such a mechanism must point to a connection with a verse in the Torah, for example “Do not turn aside.” But the rabbinic commandments that branch from that verse cannot constitute its implementation or specification, because of the factual problem: their force is lower than that of a Torah prohibition. They are connected to the verse, but not everyone who violates one of them has thereby violated the Torah prohibition found in that verse. We will call this kind of mechanism “branching,” distinguishing it from specification or implementation, and also from asmakhta, since it lies between them. A possible example of such a connection is the consideration presented at the beginning of the chapter: how the verse “Do not turn aside” tells us indirectly that there is a prohibition involved in rabbinic transgressions.

A First Look at the Analytic-Synthetic Context of the Problem

In fact, this problem is nothing other than a reflection of the problem of the emptiness of the analytic, as described in Gate One of the first book. Analytic, that is deductive, techniques cannot teach us anything new. Their conclusion was already hidden in their premises; otherwise the derivation of the conclusion from the premises would not be valid. On the other hand, the analytic thinker sees no other technique for producing something new that would not be arbitrary, subjective, and wholly dubious, that is, asmakhta, and therefore insists that only a proven conclusion is acceptable. Hence only a law that has a deductive foundation in the Torah, that is, in our system of premises, is valid. If it has no such foundation, then it is asmakhta, and therefore a rabbinic law. There is no intermediate state between these two poles: either a proven claim or speculation. In the analytic picture, everything that is not proven is arbitrary speculation.

By contrast, those who hold a synthetic position believe that there are mechanisms of inference that stand between these two poles: between the deductive pole, specification or application, and outright speculation, that is, asmakhta. In the scientific-factual context these inferences are synthetic a priori; we will expand on this point in Gate Three. In the terminology of the quartet, we may call this branching a “synthetic inference,” and it constitutes the synthetic alternative to the emptiness of the analytic, “the full wagon.”

Above we presented two synthetic directions that see rabbinic laws as branching from “Do not turn aside,” one in Nahmanides’ view and the other in Maimonides’ view. In Nahmanides’ view, we explained that from the fact that the Torah commands in “Do not turn aside” obedience to the sages’ interpretations, and this is agreed upon by all the early authorities, we can infer that in its eyes it is also proper that we obey their legislation. In such a case, the independent obligation to obey their legislation is not by virtue of “Do not turn aside,” and fulfilling it is not itself a fulfillment of “Do not turn aside.” One who violates it has not violated the Torah prohibition of “Do not turn aside,” but an independent prohibition. Still, we learned of this independent prohibition through an analogy to the law of “Do not turn aside.” We proposed that this very mechanism is what the Ritva, on Babylonian Talmud, Rosh Hashanah 16a, calls “asmakhta.” There is a verse on which the law may be hung, but one who violates the derivative prohibition has not violated the original prohibition; he has violated a new and independent prohibition. The analogy expands the law found in the Torah itself and creates a rabbinic law. See the second division for a fuller discussion.

We saw a parallel direction, also synthetic in character and involving branching, in Maimonides’ approach. In the terminology presented here, this direction is not asmakhta, but it is also not a simple application or implementation of “Do not turn aside.” Rabbinic laws are connected to the instruction of “Do not turn aside” by a third type of extension: neither asmakhta nor implementation, but branching. According to Maimonides, we derive them by an indirect interpretive process that teaches us, though it does not directly command us, that the sages have authority to legislate.

In the second division we will see a very similar structure in Maimonides’ view, where Nahmanides sharply disputes him, with respect to the derashot of the sages. In the second root, Maimonides tries to describe a similar logical-juridical-interpretive phenomenon, according to which the laws that emerge from derashot do not constitute an implementation of the commandments in the Torah, but a synthetic branching that preserves some connection with the source verses, yet does not amount to their simple, that is, analytic, implementation. In Maimonides’ language there, such a branching of laws derived by derash from the verses of Scripture is described in the words “branches from the roots.” The derivative is not literally the root itself, but neither is it detached from it and something else entirely. It is like a branch that grows out of and extends the root. It emerges from the root, but it is not an implementation of the root itself.

In the next section we will discuss an additional mechanism of branching from a Torah commandment to a rabbinic commandment. The connections between the principles presented in roots one and two, both their similarities and their differences, will be discussed mainly in the third division.

An Example from the Positive Commandment “Love Your Fellow as Yourself”

Maimonides writes as follows in Hilkhot Avel, chapter 14:

It is a positive rabbinic commandment to visit the sick, comfort mourners, escort the dead to burial, escort the bride, accompany guests, attend to all the needs of burial, carry on the shoulder, walk before the bier, eulogize, dig, and bury; likewise to gladden bride and groom and support them in all their needs. These are acts of lovingkindness performed with one’s person, and they have no fixed measure. Although all these commandments are of rabbinic origin, they are included in “Love your fellow as yourself”: all the things you would want others to do for you, do for your brother in Torah and commandments.

Commentators have already elaborated at length on the difficulty in Maimonides, namely that he seems to contradict himself from beginning to end. At the start of the law he writes that all of these are rabbinic commandments, and then he adds that nonetheless they are included within the positive commandment “Love your fellow as yourself,” which is a Torah commandment. But this is not just a contradiction. Maimonides writes it as the continuation of a single sentence: although this is of rabbinic origin, it is included in the commandment “Love your fellow as yourself.” It is therefore perfectly clear that this is not a casual slip of the pen or an imprecision of formulation. The formulation is deliberate and exact, which only sharpens the question of what these words mean.

Even before explaining Maimonides’ words, and regardless of the content of the explanation itself, we can already see here proof of what we argued above. According to Maimonides, there is a legal situation in which a derivative emerges from a verse in the Torah and yet still constitutes a rabbinic commandment. It is clear from his words that this is not asmakhta, for then there would be no place to include it in “Love your fellow as yourself.” But neither is it implementation, that is, specification, because in that case these laws would be Torah laws. We will argue here that this is branching, and that it reflects an intermediate mechanism, synthetic a priori, between deductive derivation and speculation, similar to the mechanism defined above.

The explanation is as follows. The commandment to love one’s fellow as oneself is fulfilled as a duty of the heart. When there is love in our heart, we have fulfilled that commandment; when there is no love in the heart, we have failed to fulfill that positive commandment. The sages then came and fixed this abstract commandment into practical patterns. They obligated us to express love in action, through deeds such as escorting the dead, rejoicing with bride and groom, burial, and the like. We now have rabbinic commandments, all of them practical commandments. On the rabbinic plane, acts are imposed upon us, not only a mental attitude toward the other. In the language of the author of Duties of the Heart, these are “duties of the limbs” rather than “duties of the heart.” It is highly plausible that this is not accidental. The sages’ purpose was to anchor the abstract commandment, the duty of the heart, in obligations that are concrete practical commandments.

What legal situation is now created? It appears from Maimonides’ language that the rabbinic commandments are not contingent upon fulfillment of the Torah commandment; rather, they have the status of an independent obligation. When someone accompanies the dead or gladdens bride and groom, he thereby fulfills, in the finest possible way, the Torah commandment, which is the duty of the heart to love one’s fellow, and in addition he also fulfills the practical rabbinic commandment to gladden bride and groom. By contrast, if someone performs these acts without any loving feeling toward the other person, he certainly does fulfill the practical rabbinic commandment, for that is not conditioned on the inner emotional state; but he nullifies, or at least fails to fulfill, the Torah positive commandment of loving one’s fellow. Conversely, if a person loves the other but does not perform the practical commandments, then he fulfills the Torah commandment but neglects the rabbinic obligations.⁵⁷

Thus, in Maimonides himself, we find a mechanism of branching, in which the commandments that emerge from it constitute a branch of the root from which they emerge, namely the commandment “Love your fellow as yourself,” but fulfilling them is not necessarily fulfillment of the Torah commandment, and vice versa. If we ask: what is the source of these obligations? The answer is: the verse “Love your fellow as yourself.” But if we ask: is this an ordinary implementation, that is, a specification, of the commandment “Love your fellow,” so that whoever fulfills one of these also thereby fulfills the Torah commandment? The answer will be: not necessarily. If the action is accompanied by a feeling of love, then perhaps yes; but if the person does it without such a feeling, then no. Escorting a bride without any feeling of love in one’s heart is a rabbinic commandment, but it bears a substantive connection to the command to love our fellows as ourselves. The rabbinic commandment branches from the Torah commandment, and this is how the sages learned it, but it is not a simple implementation of it, since one who fulfills it has not necessarily fulfilled a Torah positive commandment.

Two Types of Branching Between Rabbinic and Torah Law: Returning to the Commandment of “Sufficient for His Need”

We must note that in Hilkhot Avel Maimonides is dealing with rabbinic laws, and as such they branch not only from the positive commandment “Love your fellow as yourself,” but also from the prohibition “Do not turn aside.” What is the relation between these commandments and that prohibition? Prima facie, the relation between accompanying the dead and “Do not turn aside” is very similar to the relation between accompanying the dead and “Love your fellow as yourself.” Above we saw that with respect to “Love your fellow,” there are two distinct elements in accompanying the dead: implementation of the Torah commandment “Love your fellow,” and also a practical rabbinic commandment. If one fulfills this commandment, then he performs the rabbinic commandment of accompanying the dead, and this is also the rabbinic dimension of “Do not turn aside.” However, if he does not do so out of rebellion against the authority of the sages, but nevertheless he loves his fellow in his heart, then he fulfills the Torah law of “Love your fellow,” but does not fulfill the Torah law of “Do not turn aside.” And similarly, if he does it without love, but from awareness of the obligation to fulfill the words of the sages, which is itself a positive duty to obey.

What is the relation between these two parallel branchings? There is no doubt that the substantive content of the commandment to accompany the dead relates only to the Torah commandment “Love your fellow.” But in terms of the legal force of the commandment to accompany the dead, it also branches from “Do not turn aside.” The relation to these two Torah verses, “Do not turn aside” and “Love your fellow,” is different. The logical structure is indeed similar, namely a mechanism of branching that lies between specification or implementation and asmakhta, but the essence is different. The content of the commandment to accompany the dead is not mere obedience, as Netivot HaMishpat understood rabbinic commandments in Maimonides, but substantive content that expresses love of one’s fellow. Its legal force, however, also branches from the duty of obedience that depends on the verse “Do not turn aside,” which reveals to us that the legislation of the sages has legal force. Here the connection has no substantive dimension, only a formal one. This connection concerns only the force and authority of the command, not the content of the act itself.

We can now also understand Maimonides’ words concerning the relation between clothing the naked and the verse “sufficient for his need.” In this case Maimonides holds that clothing the naked is derived from “sufficient for his need,” but inasmuch as it is also a law grounded in received scriptural tradition, it also branches from “Do not turn aside.” Here, however, unlike the commandment “Love your fellow as yourself,” we are not dealing with two branchings, but with specification and branching together. Its relation to “sufficient for his need” is one of specification, or implementation, because giving the poor person what he needs is precisely the fulfillment of the commandment “sufficient for his need.” Therefore this is simple implementation, not expansive branching. Its relation to “Do not turn aside,” by contrast, is one of branching, as a branch to a root, as in all other rabbinic laws.

Therefore, as we saw, with respect to counting clothing the naked, Maimonides challenges Halakhot Gedolot that there is no reason to discuss the commandment of clothing the naked separately from “sufficient for his need,” since it is actually included within it, as its specification or implementation and not merely as something branching from it, and this by force of the principle stated in the seventh root. We noted that he mentions the seventh root only in this challenge, although one might have expected such an objection throughout his remarks in the first root, with respect to the inclusion of rabbinic commandments within the prohibition of “Do not turn aside.” We explained that with respect to other rabbinic commandments he does not raise an objection by force of the seventh root, because their relation is not to a Torah commandment that contains them substantively, but to the prohibition of “Do not turn aside,” and with regard to that prohibition we are dealing with branching, not specification.

Thus, Maimonides does not object by force of branching with regard to the relation to “Do not turn aside,” and he raises no such objection either with regard to “sufficient for his need” or with regard to rabbinic commandments in general. This follows from the fact that Maimonides agrees there is no principled difficulty in independently counting derivative prohibitions, because they are not included in the root verse but are an expansion of it. The reason is that the seventh root is relevant only to specification, not to branching. The reason they are not counted is interpretive only, because they were not given at Sinai, and therefore are not included in the statement of Rabbi Simlai.

By contrast, with regard to love of one’s fellow, there is no room to object as in the case of “sufficient for his need,” because there too the substantive connection to the verse “Love your fellow as yourself” is one of branching, not specification.⁵⁸ This case is not similar to the relation between clothing the naked and “sufficient for his need,” and therefore there is no basis for an objection by force of the seventh root, neither with respect to the content, “sufficient for his need,” nor with respect to the source of force, “Do not turn aside.”

To summarize: the concretization of a Torah commandment through concrete directives can describe both the relation between the commandment “Love your fellow as yourself” and the practical commandments that branch from it, and the relation between “sufficient for his need” and clothing the naked. But the relation between “Do not turn aside” and concrete rabbinic commandments is of a different character. Here there is no specification of an idea that becomes realized, but a logical branching, or a kind of analogy between contents. From the command to obey the sages we learn, by way of inference, that their commands have force. But the conclusion is not that the entire content of these commands is merely obedience, rather than their substantive content. For example, the prohibition against eating poultry with milk cannot be described as simply an appearance of the idea of obeying the sages. This is a logical-deductive inference, not a substantive expansion. In that sense, there is no specification here, as there was in the other two cases.

The Dispute Between Maimonides and Nahmanides: The Mechanism and Its Logical Character

It is important to understand the relation between the two axes we have defined here. On the one hand, there is the mechanistic question: is this a substantive expansion of a commandment into its own concrete manifestations? We saw that according to Maimonides, in “sufficient for his need” and “Love your fellow as yourself” there is indeed such a logic, whereas in “Do not turn aside” there is not. On the other hand, there is also a logical question here: is this expansion expansive, or is it a simple implementation? Here the division is different. In “sufficient for his need” the logic is that of simple application, whereas in “Love your fellow” and “Do not turn aside” the relation is not analytic. There is an expansion of the root and the creation of a branch that grows from it.

When we speak of “branching” as opposed to “specification,” or implementation, we mean that the relation between root and branch is not analytic-deductive, as it is in implementation. There is here expansion in the logical sense. As we have seen, this expansion may be based on an indirect interpretive inference, or on analogical learning from root to branch.

We may illustrate this by means of Table 1, which presents the view of Maimonides that emerges from our discussion.

Table 1: Our Proposal Regarding Maimonides

	“Sufficient for his need”	“Love your fellow as yourself”	“Do not turn aside”
Logical character	Specification, implementation	Branching	Branching
Mechanism	Concrete manifestation of a commandment	Concrete manifestation of a commandment	Indirect interpretive inference

By contrast, Netivot HaMishpat and Nahmanides understand Maimonides differently, and in our view incorrectly. In their opinion, rabbinic commandments are connected to the command of “Do not turn aside” by way of simple implementation, as in the case of vows. This is represented in Table 2.

Table 2: Nahmanides’ and Netivot HaMishpat’s Understanding of Maimonides

	“Sufficient for his need”	“Love your fellow as yourself”	“Do not turn aside”
Logical character	Specification, implementation	Branching	Specification
Mechanism	Concrete manifestation of a commandment	Concrete manifestation of a commandment	Concrete manifestation of a commandment

It is interesting to note that according to their understanding of Maimonides, every rabbinic prohibition constitutes a concrete manifestation of the commandment of obedience, and not of some substantive content, as in “Love your fellow” and “sufficient for his need.” Yet logically speaking, this is still simple implementation. By contrast, in Nahmanides’ own view, the obligation to obey the sages’ enactments is apparently based on “Do not turn aside” as an asmakhta. As we explained, it is learned by analogy from the obligation to obey their interpretations. If so, in Table 3, which presents Nahmanides’ own view, only the bottom-right cell changes.

Table 3: Our Proposal Regarding Nahmanides

	“Sufficient for his need”	“Love your fellow as yourself”	“Do not turn aside”
Logical character	Specification, implementation	Branching	Branching
Mechanism	Concrete manifestation of a commandment	Concrete manifestation of a commandment	Analogical interpretive inference

We thus see that the mechanisms appearing here reflect different modes of activity on the part of the sages, as interpreters or legislators. A relation of asmakhta to a verse expresses legislation, because the law does not emerge from the text. A relation of specification expresses interpretation. But a relation of branching, or substantive asmakhta, expresses the fact that this activity lies between interpretation and legislation. The sages do not merely derive conclusions from the command in the verse, as in specification or simple implementation. They expand what is present in the root, yet still do not sever themselves from it, unlike asmakhta, where the relation is detached. In this sense, we have here interpretive legislation, or legislative interpretation.

We may add that a similar picture will also emerge from the discussion in the second division regarding the sages’ derashot. In the third division we will address the logical foundations of the jurisprudence underlying these phenomena, and the significance of breaking down the dichotomy between legislation and interpretation, as reflected in our discussion here. There we will see, in a broader perspective, the connection to the analytic-synthetic problem that accompanies us throughout the quartet.

The General Picture: Types of Possible Relations Between Torah Law and Rabbinic Law

From Maimonides’ approach the following picture emerges:

• There are three types of relation between a source and a branch connected to it: asmakhta, specification, that is, implementation or application, and branching, or substantive asmakhta.
• All rabbinic laws branch from “Do not turn aside” by means of the intermediate mechanism. The reason is that their content is independent, beyond mere obedience, unlike the view of Netivot HaMishpat, sec. 234. Eating poultry with milk is problematic not only because of the disobedience involved, but also in substantive terms, and therefore it has its own independent prohibitory identity. These commandments are not counted among the commandments because of the interpretive consideration in the statement of Rabbi Simlai, even though Maimonides agrees that in principle there would have been room to count them.
• There are certain rabbinic laws that are included within, or derived by a mechanism of specification, that is, implementation, from Torah prohibitions. For example, the laws specified from “sufficient for his need,” such as clothing the naked. This occurs when there is no substantive difference between the Torah commandment and the rabbinic definitions. For example, clothing a naked person is simply the provision of the poor person’s need. These commandments, despite their source in received scriptural tradition, are in every respect Torah law, and therefore the reason they are not counted is only the principle of the seventh root, unrelated to the present discussion.⁵⁹
• There are other rabbinic laws that branch from other verses in the Torah in terms of their concrete content. For example, the commandments of gladdening bride and groom or accompanying the dead branch from the positive commandment “Love your fellow as yourself.” There the mechanism is not specification but branching. The situation here differs from what we saw regarding “sufficient for his need,” because there is a substantive difference between fulfilling duties of the limbs and fulfilling duties of the heart. Therefore this is not implementation or specification but branching. The root is “Love your fellow as yourself,” which is a duty of the heart, but fulfilling the rabbinic law does not necessarily amount to fulfilling the Torah commandment. These laws are rabbinic laws, unlike clothing the naked. It should be noted that these laws also branch from the verse “Do not turn aside,” like all rabbinic laws, alongside their parent verse.

The Implications for the Distinction Between Legislation and Interpretation

At the beginning of chapter 1 we divided laws into two kinds: Torah laws and rabbinic laws. As a consequence, we also divided the functions of the sages into two kinds: interpretation and legislation. Interpretation yields Torah laws, and legislation yields rabbinic laws. But here we encounter a third possibility, both with respect to the force of laws and, accordingly, with respect to the role of the sages: laws that branch from verses as a branch from a root. The branching law has a character that lies between Torah law and “rabbinic law” in the usual sense. On the one hand, it is not completely detached from its root, but on the other hand it is not wholly identical with it. In the next division we will see the implications for the force and legal status of all these kinds of laws.

In these contexts, then, we are dealing with a third kind of law, and correspondingly there is here a different kind of activity on the part of the sages: an intermediate state between legislation and interpretation. The sages approach a Torah law, such as “Love your fellow as yourself,” and interpret it expansively. That is, they fix practical obligations that express it. This is not legislation in the simple sense, but neither is it ordinary interpretation, for otherwise these would be Torah laws. It is “interpretive legislation,” or “legislative interpretation.” Accordingly, the sages here act as interpreter-legislators.

As we have seen, a relation of implementation and specification creates Torah law, because it expresses a process of pure interpretation, which reveals what is already present in the text. After the interpretation, the law produced by it draws its force from the fact that it is precisely the intention of the Torah command, and therefore it is Torah law. By contrast, a relation of asmakhta expresses legislation, because it does not express an essential connection between the law and the verse on which it is anchored. In essence, this is not interpretation, that is, the derivation of a law from a verse, but legislation. The anchoring in the verse is done after the fact and for ancillary purposes. The third mechanism is branching. As defined here, it is not quite interpretation and not quite legislation. When we accompany the dead or escort the bride, there is in that act a dimension of love of one’s fellow, and therefore the source of its force is, in a certain sense, the Torah and not the sages. In some respects this resembles the mechanism of “Scripture handed it over to the sages,” mentioned above. But as we have seen, it is not necessarily the fulfillment of the Torah positive commandment “Love your fellow as yourself,” since that depends primarily on the heart.

Summary Emerging from Gate One: The Authority of Rabbinic Legislation

We opened this gate with a chapter dealing with the standing and legal force of rabbinic laws. This is not the direct subject of the root under discussion, but everything depends upon it and eventually returns to it.

At the outset, we assumed the conventional division between interpretation of the Torah, which yields Torah laws, and legislation, which yields rabbinic laws. According to all views, the authority to interpret the Torah is entrusted to the sages by virtue of “Do not turn aside.” In the present gate we dealt with the standing of the sages as legislators and with the standing of the laws that they enact and decree.

On this issue Maimonides and Nahmanides disagree. We saw that at the basis of the discussion of the standing of rabbinic laws, that is, of the authority to legislate, stand two fundamental questions:

1. Why should one observe rabbinic commandments?
2. If there is such a source in the Torah, why is the standing of rabbinic laws lighter than that of Torah laws?

We noted that, a priori, there seem to be only two possibilities for grounding the obligation to observe rabbinic commandments:

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

At first glance, it seems that both Maimonides and Halakhot Gedolot hold that the obligation to observe rabbinic commandments is derived from the verse “Do not turn aside.” That is, they apparently choose the first option. Nahmanides, by contrast, holds that this duty is derived from another source, and thus apparently chooses the second option.

We saw that both of these possibilities are problematic. The first indeed solves question 1 well, but is challenged by question 2. The second, by contrast, solves question 2 well, but is challenged by question 1. We thus have what might be called a “blanket that is too short,” one that cannot cover both questions. Any solution that seeks to answer both questions must therefore propose an intermediate model that stands between these two models.

After presenting several possibilities in understanding the views of Maimonides and Nahmanides, we arrived at the possibility that both Maimonides and Nahmanides hold that rabbinic laws branch in a different way from verses in the Torah. In order to understand this, we defined a third mechanism of extension from Torah law to rabbinic law, beyond specification and asmakhta: branching.

We saw that the problematic dichotomy described here rests on the assumption that there is only one possible way to connect a verse in the Torah to a law that is derived from it and related to it. We called that possibility “specification.” A specification of a Torah law into laws that emerge from it does not involve a transition to another plane of force, namely rabbinic law. Specification is a kind of interpretation, and therefore its result is laws that are already present in the Torah commandment itself. The specified commandments are an application of the Torah commandment from which they are derived, as in the example of vows that we brought above, where every vow a person makes is not another commandment, but an application of the prohibition “he shall not break his word.” According to this dichotomous assumption, everything that does not emerge from a verse by way of specification is unrelated to it, and the verse is at most an asmakhta in relation to it.

Asmakhta is usually understood as the absence of any real connection to the verse. The commandments of the Torah may perhaps provide some inspiration for this legislation, but it is legislation in every respect. According to this conception, the force of the law anchored to the verse is rabbinic, and therefore that law is a product of legislation.

Since both of these possibilities are problematic, each from a different angle, we find ourselves compelled, according to all the medieval authorities, to adopt branching, which is an intermediate mechanism between asmakhta and specification. This is the only escape from the dilemma concerning the source of authority for the legislation of the sages. Branching creates a relation in which the rabbinic law, that is, the derivative law, the branch, is indeed connected to the source verses in the Torah, the root, and is not merely an asmakhta. Yet on the other hand it is not their specification, meaning that fulfillment or violation of the rabbinic law is not fulfillment or violation of the Torah law. We saw that according to the Ritva, there is room to understand the very concept of asmakhta in this way as well.

This third possibility lies between legislation and interpretation. In contemporary language, one might call it “interpretive legislation.”

In the second division we will encounter a parallel structure with respect to the sages’ derashot. We will note that according to Maimonides, derash is something between legislation and interpretation, and therefore it too reflects, on the logical plane, a mechanism of branching, though of a somewhat different character from most of those we met here.

We may note here that our conclusion in the second chapter regarding Nahmanides’ view is that there remains a disagreement between him and Maimonides, because he conceives the overall picture differently. He does not see the sages as representatives of the Holy One, blessed be He, before whom the citizen stands, so that the question of their authority and his duty toward it would arise. Rather, he sees the sages as our agents, and our obligation to obey their enactments as a natural result of the commitment we have undertaken upon ourselves, together with them, to fulfill the Torah.

In the third division we will see the general significance of the overall map as it emerges from the two roots. There we will connect the mechanism of specification to deductive inferences and to the analytic idea, as presented in the first books of the quartet.

Division Two

The Second Root

That it is not proper to count everything learned through one of the thirteen hermeneutical principles by which the Torah is expounded, or through an inclusive derivation

In this root Maimonides deals with the status of laws derived by methods of derash, that is, rabbinic exegesis. He determines here that such laws should not be included in the count of the commandments. As we shall see, it is not clear whether this is a claim about the count of the commandments or a claim about the midrashic laws themselves. In other words, are they not counted because of one or another counting rule, or because their legal status is not that of ordinary Torah laws?

The source of the perplexity aroused by Maimonides’ words lies in his novel determination that these laws are rabbinic laws. This determination has aroused, and still arouses, fierce debates among his commentators and scholars, and is regarded as one of the hardest puzzles in his teaching, a puzzle that is now some eight hundred years old. Prima facie, this statement of Maimonides proves that these laws are not counted because of their legal status, and not merely because of technical rules of counting. Rabbinic laws should not be included in the count of the 613 commandments. But this statement is highly problematic in light of what we know from rabbinic sources, which clearly indicate that laws learned by derashot have the status of Torah laws in every respect. Therefore most commentators on Maimonides incline specifically to the other side. They explain that the issue here is only a technical question about the count of the commandments, and not a substantive determination concerning the status of such laws. According to them, the term “rabbinic laws,” which Maimonides uses here, does not address the legal status of these laws but their origin. Since they were created by the sages through derashot, they are called “rabbinic laws,” even though their force is that of Torah laws.

Below we will prove that Maimonides intends the first side, namely, that these really are a kind of rabbinic law. In that respect this root joins the preceding one, and the two together constitute rules for non-enumeration based on legal force. See the introduction to the book.

Within the course of the discussion, questions arise that touch the very foundations of Jewish law. We have already addressed the question of what is meant by the concepts “Torah law” and “rabbinic law.” We will also return to the question of the meaning of legal tradition. We will examine what a “law given to Moses at Sinai” is. We will consider the relation between plain meaning and derash, the nature of derashot in general, and the significance and role of the thirteen hermeneutical principles and other interpretive methods. Logical issues will also arise here, such as the relation between analogy, induction, and deduction, as well as interpretive issues, such as revealing versus expanding interpretation.

Within the mass of details and branching discussions in this division, the reader should know that the central point of the discussion here is the mechanism of “branching,” which we already encountered in the previous division. It will appear here only intermittently, but it is important to know in advance that this is the focus of the argument, and that this is what one should concentrate on while reading. The philosophical center of gravity of the book, and its place as the last volume in our quartet, comes to expression mainly in the third division, which deals with the relation between Maimonides’ first two roots. There we will discuss the general meta-legal and philosophical implications of what emerges from our discussion of these two roots, and above all the logical and philosophical significance of the mechanism of branching as an expression of the appearance of the synthetic a priori in legal theory. The relatively complex and rather detailed framework that will be presented here is only the context for the idea of branching, which is the heart of this book, and therefore I again recommend that the reader focus attention mainly on this aspect.

The Wording of Maimonides in the Second Root

That it is not proper to count everything learned through one of the thirteen hermeneutical principles by which the Torah is expounded, or through an inclusive derivation:

We have already explained at the opening of our work, in the Commentary on the Mishnah at the beginning of the Introduction, that most of the laws of the Torah are derived through the thirteen hermeneutical principles by which the Torah is expounded, and that a law derived by one of those principles is sometimes disputed. There are also laws that are accepted interpretations received from Moses, regarding which there is no dispute, but proof is brought for them through one of the thirteen principles, for it is part of the wisdom of Scripture that one may find in it a hint pointing to that received interpretation, or an inference indicating it. We have already explained this matter there.

Since this is so, not everything that we find the sages deriving by inference from the thirteen principles may be said to have been stated to Moses at Sinai. Nor, on the other hand, may we say that everything we find in the Talmud supported by one of the thirteen principles is rabbinic, for sometimes it is a received interpretation. Therefore the proper rule in this matter is that whatever you do not find written in the Torah, but do find in the Talmud as having been learned through one of the thirteen principles—if they themselves explained and said that “this is the Torah itself,” or that “this is Torah law,” then it is proper to count it, because the transmitters said that it is Torah law. But if they did not make this explicit and did not speak of it in this way, then it is rabbinic, since there is no written verse pointing to it.

This too is a root in which others have gone astray, and therefore one of them counted reverence for sages among the positive commandments. What led him to this, in my view, was Rabbi Akiva’s statement, Babylonian Talmud, Pesahim 22b and parallels: “The Lord your God you shall fear”—this comes to include Torah scholars. He thought that everything derived by inclusive extension belongs to the general category mentioned. But if the matter were as they thought, why did they not count honoring one’s mother’s husband and one’s father’s wife as separate commandments attached to the commandment of honoring father and mother, and likewise honoring one’s elder brother? For these persons too we learned by way of inclusive extension that we are obligated to honor them. They said, Babylonian Talmud, Ketubot 103a: “‘Your father’—this comes to include your elder brother.” They also said: “‘Your father’—this comes to include your mother’s husband; ‘your mother’—this comes to include your father’s wife,” just as they said: “‘The Lord your God you shall fear’—this comes to include Torah scholars.” If so, why did they count these and not count those?

Their confusion went even further than this. Whenever they found a derash on a verse from which some act must be performed or some matter avoided—and all of these are, beyond doubt, rabbinic—they counted them among the commandments, even though the plain meaning of the verse does not point to any of those matters, despite the principle our sages of blessed memory taught us, Babylonian Talmud, Yevamot 11b, 24a; Shabbat 63a: “A verse never departs from its plain meaning,” and despite the fact that the Talmud asks everywhere, “What is the verse itself speaking about?” when they found a verse from which many things are learned by way of explanation and proof.

Relying on this line of thought, they counted among the positive commandments visiting the sick, comforting mourners, and burying the dead, because of the derash on the verse: “And make known to them the way in which they shall walk and the deed that they shall do.” And the sages said concerning it, Babylonian Talmud, Bava Kamma 100a; Bava Metzia 30b: “‘The way’—this is acts of lovingkindness; ‘they shall walk’—this is visiting the sick; ‘in it’—this is burying the dead; ‘the deed’—these are the laws; ‘they shall do’—this is going beyond the letter of the law.” They thought that each and every one of these actions is a commandment in its own right, and they did not know that all of these actions, and others like them, fall under one commandment, positive commandment 206, among the commandments explicitly written in the Torah, namely the verse in Leviticus 19: “Love your fellow as yourself.”

In this very same way they counted the calculation of the seasons as a commandment, because of the derash on “for this is your wisdom and your understanding in the sight of the peoples,” at the opening of Va’ethannan; and the sages said, Babylonian Talmud, Shabbat 75a: “What wisdom and understanding is visible to the peoples? You must say: the calculation of the seasons and the constellations.”

Had one counted what is even clearer than this, and counted what would be more appropriate to count—namely, everything learned through one of the thirteen hermeneutical principles by which the Torah is expounded—the number of commandments would rise to many thousands. Perhaps you will think that I refrain from counting them because they are not true. But whether a law derived by such a principle is true or not true is not the reason. Rather, the reason is that whatever one derives in this way is a branch from the roots that were explicitly told to Moses at Sinai, and those roots are the 613 commandments. Even if Moses himself had derived them, it would not be proper to count them.

The proof for all this is what they said at the end of Temurah, Babylonian Talmud, Temurah 16a: “One thousand seven hundred a fortiori inferences, verbal analogies, and rabbinic refinements were forgotten during the days of mourning for Moses, yet Otniel ben Kenaz restored them through his dialectic, as it is said: ‘And Caleb said: whoever strikes Kiriath-Sefer and captures it’… ‘And Otniel ben Kenaz captured it.’” If so much was forgotten, how much greater must have been the total body from which this number was lost? For it would also be false to say that everything that had been known was forgotten. Without doubt, the laws derived by a fortiori reasoning and by the other principles were many thousands. And all of these were known in the days of our master Moses, for they were forgotten during the days of his mourning. It is thus clear to you that even in the days of Moses they were called rabbinic refinements. For whatever was not heard explicitly at Sinai is from the sages.

It has therefore already been made clear that among the 613 commandments that were spoken to Moses at Sinai one does not count everything learned through the thirteen principles, even in his own time, all the more so not what was derived at a later time. One counts only what was a received interpretation from him, namely where the transmitters explicitly explain and say that this thing is forbidden to do and that its prohibition is by Torah law, negative commandments 135, 194, 199, or where they say that it is “the Torah itself,” negative commandment 336. Then we count it, because it is known by tradition and not by inference. The mention of the inference and the bringing of proof for it through one of the thirteen principles is only to display the wisdom of Scripture, as we explained in the Commentary on the Mishnah, cited at the beginning of this root.

The Contents of the Second Division

Gate Two: The Hermeneutical Principles, Their Source and Their Meaning

• Chapter 1: Systems of the Principles and Their Source
• Chapter 2: Creative and Supportive Derashot

Gate Three: A Survey of the Various Sources in Maimonides’ Writings

• Chapter 1: Maimonides’ Basic Claim
• Chapter 2: The Difficulties in Maimonides’ Approach: A Survey of the Sources in His Writings
• Chapter 3: The Difficulties in Maimonides’ Approach: Rational Considerations
• Chapter 4: The Difficulties in Maimonides’ Approach: Aspects Emerging from What Is Found in the Talmuds
• Chapter 5: Directions of Solution Proposed by the Commentators

Gate Four: Our Proposal for Explaining Maimonides’ Approach

• Chapter 1: The Concepts “Torah Law” and “Rabbinic Law” on the Conceptual Plane
• Chapter 2: Applications to Various Legal Categories
• Chapter 3: The Concepts “Torah Law” and “Rabbinic Law” on the Plane of Legal Force
• Chapter 4: How Maimonides Explains the Legal Differences Between Torah Laws and Rabbinic Laws
• Chapter 5: Three Types of Operation of the Tools of Derash

Footnotes