Gate Three: Survey of the Different Sources in Maimonides’ Writings

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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Survey of the Different Sources in Maimonides’ Writings

In the second root, Maimonides states that halakhot (rules of Jewish law) learned through the hermeneutical principles of midrash (rabbinic scriptural interpretation) are rabbinic laws. In this section we will examine Maimonides’ view on this issue on several levels. First, we will try to see, from the various sources in his writings, what precisely he claims about midrashic halakhot. We will then survey several approaches that arose over the course of history in interpreting these statements. Next, we will examine the various interpretations of his words from several perspectives: in light of the Talmudic sources, by conceptual reasoning, and in light of considerations that emerge from Maimonides’ own writings.

This section deals with many details, and is therefore more intricate and more heavily documented. Reading these parts is not essential for understanding the overall argument, and we will indicate places where the reader may skip ahead without losing the thread of the discussion. This applies mainly to Chapter 2 of the present section.

Chapter 1: Maimonides’ Basic Claim

Introduction

In this chapter we will briefly try to clarify the main points of Maimonides’ position, in light of his opening paragraphs in the second root.

The Title: Maimonides’ Formulation of the Principle in the Root

Already in the very title of the root, when Maimonides formulates the principle with which it deals, he leads us directly into a problematic point. He defines the subject of discussion there as follows: “everything learned through one of the thirteen principles by which the Torah is expounded, or through inclusion.” The formulation here is not a general one, such as: “the laws that emerge from interpretations.” Maimonides refers only to laws derived through several specific interpretive methods, fourteen in all:[^141] the thirteen principles and inclusion.

This, of course, immediately raises the question: what about laws that arise from other interpretive methods? Beyond that: does Maimonides specifically mean the thirteen principles of Rabbi Ishmael? If so, why does he add the principle of inclusion, which is characteristic of the school of Rabbi Akiva? And if not, it is difficult to understand why he mentions only inclusion, when, as we noted above, there are many additional interpretive methods beyond Rabbi Ishmael’s thirteen principles.

Three basic possibilities may be suggested for understanding Maimonides’ words in the title of the root:

1. Only the thirteen principles, and inclusion, are true interpretive methods. On this reading, it requires explanation why inclusion alone was added to the thirteen principles, while the other methods were not. According to this approach, the other methods are apparently straightforward textual explanations, and are therefore not under discussion here.

We should already note that this interpretation is quite plausible if we recall the explanation of Rabbi Samson of Kinon, author of Keritut, for the absence of the other agreed-upon halakhic principles from Rabbi Ishmael’s list. We saw that he argues that these principles are regarded as explicitly written in Scripture, and therefore were not counted among the interpretive methods in Rabbi Ishmael’s baraita of principles. If so, it is certainly possible that Maimonides too does not deal with them for a similar reason. What is explicitly written in Scripture is considered Torah law, and is therefore also counted among the mitzvot (commandments). The second root states that midrashic laws are not to be counted among the mitzvot because they are from the Sages. It follows that this root deals only with laws derived from interpretations counted among the thirteen principles, that is, only with those not considered explicitly written in the verses. See below for a fuller discussion.

2. Maimonides means all interpretive methods. On this reading, his expression may be understood in two ways:
   a. He is listing only examples. But then one must still explain why he chose specifically these examples, and why he did not formulate the point more generally, or at least add a word such as “and the like.”
   b. The word “inclusion” is a collective term for all other interpretations, since all such interpretations include various laws in one way or another.

3. It is possible that the term “inclusion” in Maimonides refers to the interpretive methods of Rabbi Akiva, who expounded through “inclusions and exclusions,” in addition to the thirteen principles that characterized Rabbi Ishmael’s method. It is clear and well known that interpretations based on inclusion are generally attributed to the school of Rabbi Akiva, and so it would not be surprising if this is the expression Maimonides uses to denote the whole range of interpretive methods associated with that school.¹

As we saw above, in Maimonides’ rulings, following the Amoraim in the Talmuds themselves, there is an attempt to unify the two schools of study and to create from them a single comprehensive interpretive system. We noted above that this may also be the assumption underlying Maimonides’ rulings in various places. If so, here he is simply continuing that tendency, listing the full range of methods from both of those schools as expressing the entire interpretive system.

According to this approach, Maimonides here really mentions only the canonical methods: Rabbi Ishmael’s thirteen principles and the parallel methods of Rabbi Akiva. It is entirely possible that, in his view, there are no other interpretive methods beyond these two groups.

It may be that the examples Maimonides later brings will teach us something about the interpretive methods he has in mind at the outset. In our later discussion of Maimonides’ basic meta-halakhic definitions, including his conception of the term “Torah law,” we will also return to possible interpretations of the title of this root.

The Opening Paragraphs of the Root: The Main Lines of Maimonides’ Method

Maimonides opens the root by referring to the classifications he himself presents in the introduction to the Commentary on the Mishnah, discussed above. We will quote his language in the first three paragraphs, because there he lays down his doctrine in this difficult subject, one that has wearied many interpreters. This is his wording:

We have already explained in the introduction to our work, the Commentary on the Mishnah, that most of the laws of the Torah are derived through the thirteen principles by which the Torah is expounded; and that a law derived through one of those principles will sometimes be subject to dispute. There are also laws that are accepted interpretations from Moses, about which there is no dispute, but proofs are brought for them through one of the thirteen principles. For it is among the wisdom of Scripture that there may be found in it a hint pointing to that accepted interpretation, or an analogy indicating it. We have already explained this matter there.

This paragraph briefly explains two of the three categories of halakhot detailed in the introduction to the Commentary on the Mishnah. See the previous chapter. One is laws transmitted by tradition and anchored in Scripture: supporting interpretations, category A in that earlier classification. The second is laws that have a scriptural anchor but were not actually transmitted from Moses our teacher: creative interpretations, in which disputes arise, category C there. Category B, laws transmitted by tradition but lacking a scriptural anchor, namely laws given to Moses at Sinai, is not explicitly mentioned here, because this root is not concerned with them. It deals here with interpretive derivations, and we will return to that category below.

We should recall that in his introduction to the Commentary on the Mishnah, Maimonides does not discuss at all the legal status of the various kinds of halakhot; he merely classifies them according to their sources. Here, in this root, he is apparently classifying them according to legal status, whether Torah law or rabbinic law, and according to the implication of that classification for whether such laws are included in the enumeration of the commandments.

To be sure, as we have already noted several times, the principle laid down by Maimonides in this root can be understood in two different ways: as a legal principle or as a methodological one. In our context, one can explain why laws derived through interpretive methods are not counted by saying that their legal status is rabbinic. But one could also understand the point as a matter of methodological classification, even if their legal status is that of Torah law. We have already mentioned, and will further see below, that interpreters of Maimonides divided sharply between these two understandings.

In the next paragraph Maimonides continues and draws a conclusion:

Since this is so, not everything that we find the Sages deriving by analogy from the thirteen principles should be said to have been stated to Moses at Sinai. Nor, on the other hand, should we say of everything we find in the Talmud supported by one of the thirteen principles that it is rabbinic, for sometimes it is an accepted interpretation.

At the beginning of this paragraph, Maimonides seems, at least initially, to be dealing with a historical question: whether certain laws were stated to Moses at Sinai. At first glance, this is still not a direct discussion of the legal status of these categories of law. But in the second half of the paragraph he contrasts the concept “stated to Moses at Sinai” with the concept “rabbinic.” In its usual usage, the latter is not a purely historical concept, but one with clear legal significance. Maimonides thus seems to be saying here, albeit somewhat opaquely, that some laws derived through interpretation are rabbinic laws. Their exclusion from the enumeration is a consequence of their legal status. This suggests that in this root Maimonides seeks to establish a substantive principle, not merely a methodological one.

On the other hand, in light of what we have said, the term “given at Sinai” is not purely historical either, but serves as the basis for determining legal force: a law given at Sinai is Torah law.

It is important to note that in this paragraph Maimonides connects this distinction to the distinction between the two kinds of law set out at the beginning of his remarks, in the first paragraph. He states that laws transmitted by tradition and anchored in Scripture through interpretation are Torah laws, whereas laws generated through interpretation but not transmitted by tradition are rabbinic laws. What remains for us to clarify is how we can distinguish between these two kinds of law. That is the purpose of Maimonides’ third paragraph:

Therefore, the proper approach in this matter is that anything you do not find written in the Torah, but you do find in the Talmud that they learned it through one of the thirteen principles, if they themselves explained and said that this is the very body of the Torah, or that it is by Torah law, then it is proper to count it, for the transmitters said that it is by Torah law. But if they did not explain this, and did not speak about it, then it is rabbinic, for there is no written text indicating it.

Maimonides thus states that a law derived from interpretation is a rabbinic law unless we find an explicit statement in the Talmud that it is Torah law.

At first glance, when we have no clear evidence regarding the status of a certain law, we should not be able to decide with certainty that it is rabbinic. In such a case we ought to remain in doubt, and perhaps even rule stringently because of the doubt. Ramban already made this observation in his glosses on this root, at the beginning of page 53.²

Yet Maimonides’ wording here plainly implies that he means a categorical ruling. This is not a law arising from doubt, but a definite determination: whenever we do not have a source in the Talmuds stating that a law learned through the hermeneutical principles is Torah law, we must conclude with certainty that it is rabbinic. This also emerges from his well-known responsum on the laws of marriage,³ where he writes:

In those chapters [that is, in the roots, and specifically in our root] I explained that not everything learned by analogy, or by an a fortiori inference, or by verbal analogy, or by one of the thirteen principles by which the Torah is expounded, is a Torah law, unless the Sages explicitly say that it is from the Torah.

So here too it seems clear that Maimonides intends a categorical rule of classification. The question is why he does not treat such a case as one of doubt.

It is possible that Maimonides is guided here by the consideration that if the Sages had wanted to tell us that the law in question was Torah law, they would have done so rather than leave the matter ambiguous. Therefore, where nothing is said, the Sages apparently preferred to leave us with the straightforward understanding that this is a rabbinic law.

Something like this is found in Birkat Shmuel, Bava Kamma, end of section 2, in the name of Rabbi Hayyim Soloveitchik, who says that when there is doubt about the interpretation of a verse we rule stringently, and compares this to the principle that when pure reason could cut either way, leniently or stringently, we compare it to a stringent case. That is, the very fact that the Torah leaves the matter ambiguous indicates that it did not intend to depart from the straightforward interpretation. Since, in a case of doubt, we would have to be stringent in Torah matters, and the Torah did not say otherwise here, that itself shows with certainty, not merely out of doubt, that this is its intention.⁴

In the present context, however, this is harder to say. To sustain such an argument we would have to assume that the entire Talmud underwent meticulous editing, and that its final redactor, Rav Ashi, checked and verified, for every law generated through interpretation and also transmitted by tradition, that somewhere in the Talmud there would be evidence showing that the law was Torah law. As we shall see below, some of Maimonides’ proofs depend on understanding an initial assumption in a Talmudic passage, or on very indirect indications from the Gemara. It is therefore very hard to assume that Rav Ashi ensured the existence of such a hint, even if only in the initial assumption of some passage, for every law derived through interpretation.

At first glance, then, we should have supposed that when the Sages did not define the status of the law, the matter really remains a Torah-level doubt, and we must rule stringently. But we must remember that Maimonides holds that the rule of being stringent in a doubt involving Torah law is itself only rabbinic. It is therefore entirely possible that Maimonides’ determination here is itself based only on doubt: wherever the Sages did not disclose the matter to us, we are in doubt, and therefore we should treat the rule as a doubtful Torah law, that is, as a rabbinic law. Of course this too is forced, because there is a major difference between a doubtful Torah law and a rabbinic law,⁵ and Maimonides should have stated his meaning precisely.

Therefore some concluded from this that Maimonides did not really mean to claim that laws not based on supporting interpretations are rabbinic laws. His claim here concerns terminology only, not actual legal status. Laws not transmitted from Sinai are called “laws of the Scribes,” because they were generated by the Scribes, that is, by the Sages, but their legal status is that of Torah law. We will now review the various possibilities for understanding Maimonides’ words in this root.

The Different Understandings of Maimonides’ View

As noted, interpreters of Maimonides, both medieval and later, disagreed about the meaning of his words in this root. Four main camps may be identified among them:[^147]

1. Those who understand Maimonides to mean only a methodological principle. According to this approach, Maimonides treats laws derived from interpretation as Torah law in every respect. What distinguishes them is only the label “words of the Scribes,” but this need not have any legal implications. Some have suggested a few legal consequences, but these appear only in minor points that do not reflect an essential characterization. Substantive consequences would move us into camp 3 below. At the head of this group stands the Tashbetz (part 1, sections 1 and 151), together with Rashba (part 2, responsum 230; see also part 1, section 185), Rabbi Daniel al-Babli, see his correspondence with Rabbi Abraham son of Maimonides in Ma’aseh Nissim, the Maggid Mishneh on Laws of Marriage 1:2, the author of Megillat Esther on this root, and later the author of Dorot HaRishonim (part 4, pp. 514-542),⁶ as well as Rabbi Akiva Eger, Responsa and Rulings, section 94, the Shakh, and the Noda BiYehudah, along with most later decisors and commentators on Maimonides. A large number of them, as Neubauer shows, interpret Maimonides this way in order to keep him from straying too far from the accepted assumptions of the halakhic world, rather than because of strictly interpretive considerations internal to his wording.

According to this approach, the expression “words of the Scribes,” or “rabbinic,” in Maimonides’ discussion of this root refers only to the source of the law, not necessarily to its force or legal status. We shall examine this in greater detail below.

2. Those who understand Maimonides literally: laws that arise from creative interpretations are rabbinic laws. At the head of this camp stands Ramban in his glosses on this root. Ramban writes, on page 55, in light of Maimonides’ responsum, where he repeats what is said in this root, that according to Maimonides it follows that if a man betroths a woman with money, which is only by the words of the Scribes, as stated in Laws of Marriage 1:2 and in that responsum, then he who has relations with her, and she herself, are not subject to stoning. This is also the view of Rivash, sections 14 and 163, Ra’avad at the end of chapter 3 of Laws of Marriage, Rashba part 2, responsum 23, apparently contradicting his responsum cited in the previous section, the Maggid Mishneh on Laws of Marriage 4:6, apparently contradicting what he wrote on Laws of Marriage, and Lev Sameach on this root, and Divrei Emet, eighth booklet, the “Booklet on the Words of the Scribes” at the end of the volume.⁷ See also the Shakh on Hoshen Mishpat 33:1.

In addition, most of those who know and understand the Arabic original in which the roots were written support this reading. They argue that the term used by Maimonides is the ordinary legal term for rabbinic laws. On this basis they also reject the proposed special term “words of the Scribes” for this category of law. Most academic scholars likewise hold this view.⁸ Above all, Rabbi Dr. Yekutiel Yaakov Neubauer, in his book Maimonides on the Words of the Scribes, Mossad Harav Kook, Jerusalem 1957, labels those in camp 1 as followers of a “forced reading.”

3. Some divide the laws into two classes: some have the status of rabbinic law and some the status of Torah law. See, for example, Lehem Mishneh, Laws of Marriage 4:6, and some explain in this way the apparent contradiction noted above in the Maggid Mishneh. So too in the responsa of Rabbi Bezalel Ashkenazi, section 18, who distinguishes between laws derived through verbal analogy, which are Torah law, and laws derived through the other principles, which are rabbinic. In Neubauer’s terminology this is the “limited forced reading.”⁹

One possible way to ground such an approach in Maimonides is what we saw in the previous chapter: the possibility that all of Maimonides’ words in this root concern only laws derived through the thirteen principles, and perhaps inclusion, rather than all interpretive derivations whatsoever.¹⁰

Such a claim would have to be examined systematically throughout the Mishneh Torah. In fact, there is no hint of such a direction in Maimonides’ own words, and therefore it is rather forced. That applies to the proposal of Rabbi Bezalel Ashkenazi. By contrast, the distinction between the thirteen principles and everything else does have some basis in the title of the root, where Maimonides speaks of the thirteen principles and inclusion. Even so, it is hard to see this as a solution to all the difficulties arising throughout the Mishneh Torah and this root itself.

4. Those who understand Maimonides here as defining a third legal category, which some call “words of the Scribes.” See Rabbi Tam Ibn Yahya in his Ohalei Tam, section 83, cited in Lev Sameach here.¹¹ This category stands in between Torah law and rabbinic law. Its status is reflected in legal consequences, some like those of Torah law and some not. Here too various proposals exist regarding the legal implications of such a status. An example may be seen in the Kesef Mishneh on Laws of Marriage 1:2, who, unlike the Maggid Mishneh there, proposes concrete legal consequences for the category “words of the Scribes.” See also Kesef Mishneh on Laws of the Defilement of the Dead 5:5. Rabbi Rabinovitch also adopts this approach in the article mentioned above. One may perhaps include here the practical difference noted by the author of Dorot HaRishonim: there would be no law of the rebellious elder with respect to laws generated by the independent reasoning of the Sages, since any court in any generation could disagree with them.¹² The law of rebellion applies only to laws regarding which the court declared that they are the very body of the Torah. As noted, in his view there are only supporting interpretations.¹³ But these are only technical and not substantive considerations, so these positions may also be placed under camp 1 above.

Some understood Maimonides to mean that these are Torah laws but of lesser force. See Lev Sameach here, and Divrei Emet, in the “Booklet on the Words of the Scribes,” eighth booklet at the end of the volume.¹⁴ These too speak of some intermediate position between rabbinic and Torah law. We will elaborate on this direction below when presenting our own proposal for understanding Maimonides.

The Types of Difficulties in Maimonides’ View and the Various Responses to Them

Each of these approaches must be tested on three levels: by conceptual reasoning, with respect to Maimonides’ own wording and statements, and with respect to the facts reflected in the Talmuds and the rabbinic sources. These tests give rise to three corresponding kinds of difficulty:

1. Testing against Maimonides’ language here and elsewhere raises interpretive difficulties, namely internal contradictions or lack of fit with his own words in other places. For example, there are places suggesting that laws learned through interpretation have the status of Torah law.

2. Testing by reason raises substantive difficulties. For example, Ramban asks how it can be that the use of a tool given at Sinai, namely the hermeneutical principles, yields laws that are only rabbinic.

3. Testing against the Talmud raises empirical difficulties, that is, contradictions between Maimonides’ view and various Talmudic sources.

In the following chapters we will try to identify the different considerations involved in testing Maimonides’ view, and the various responses offered by commentators. From all this we will try to extract a consistent approach to these difficult statements of Maimonides, one that resolves all of these kinds of difficulty.

Chapter 2: The Difficulties in Maimonides’ View: A Survey of the Sources in His Writings

Introduction

The sources in Maimonides’ writings that bear directly on our issue are five:
1. His responsum on the laws of marriage.
2. The Mishneh Torah.
3. The introduction to the Commentary on the Mishnah.
4. Sefer HaMitzvot.
5. His discussion in the present root.

We will begin specifically with Maimonides’ legal code, while taking account of secondary sources related to it, such as Maimonides’ responsum concerning the opening of the Laws of Marriage. From there we may be able to settle the question of what he means with regard to the legal force of laws produced by creative interpretation.

The discussion in this chapter concerns the details of the sources, and therefore a reader interested only in the general argument, and not in the proofs for our proposal regarding Maimonides, may skip it.¹⁵

The Mishneh Torah

We will discuss here two sources that seem unambiguous for our purposes: the opening of the Laws of Marriage, and chapter 5 of the Laws of the Defilement of the Dead.

A.

At the beginning of this root, and also in the introduction to the Commentary on the Mishnah, Maimonides states that “most of the laws of the Torah are derived through the thirteen principles by which the Torah is expounded.” Later in the root too, in one of his objections to Halakhot Gedolot, he writes that if one were to count all the laws derived through the thirteen principles, “the number of commandments would rise to many thousands.”

In addition, in his well-known responsum on betrothal by money in the Laws of Marriage, he writes:

There is nothing called “from the Torah” except something explicitly written in the Torah, such as sha’atnez, mixtures in the vineyard, Sabbath, and forbidden sexual relations, or something about which the Sages said that it is from the Torah; and these are only some three or four things.

If so, there are hundreds and perhaps thousands of laws derived through the various interpretive tools, and all of them, apart from a few isolated cases, “some three or four things only,”¹⁶ would, according to Maimonides, have to be classified as “words of the Scribes,” whereas other decisors regard them as Torah laws. This should find expression both in the enumeration of the commandments, though there further counting considerations enter that stem from classification and not from substance, such as when a certain law is already included within another counted commandment, and so on, and in the legal rulings of the Mishneh Torah. If so, all these thousands of places ought to appear in the Mishneh Torah as rabbinic laws rather than Torah laws. We would expect to be surprised in almost every chapter of the code, but in fact we do not really find this.

It should be noted that there are indeed quite a few such places throughout the Mishneh Torah, where Maimonides unexpectedly states that a particular law is “by the words of the Scribes” and not Torah law.¹⁷ But with respect to each of these sources there are disputes among the commentators, and in any case their total number is far from approximating the picture just described.

Because of this, several interpreters, who read Maimonides like Ramban and his camp, camp 2, understood that in the second root Maimonides indeed meant to say that the legal force of laws generated by interpretation is rabbinic, but that he later retracted this in his code, from what he had written in the roots, which were composed about ten years before the Mishneh Torah, and it is known that there are a number of contradictions between them and the code. On this, see the remarks of Ramakh and of Rabbi Abraham, Maimonides’ son, cited in the Kesef Mishneh on Laws of Marriage 1:2.¹⁸

However, this claim is contradicted by Maimonides’ responsum on the Laws of Marriage cited above, see also below, where he refers directly to what was written at the beginning of the Laws of Marriage and explains it in light of the principle discussed in the second root.¹⁹ That responsum postdates the composition of the Mishneh Torah, which proves that he did not retract, and that the code too was written in light of the assumptions laid down in the second root. The laws in the places where the Mishneh Torah does explicitly present rulings as “by the words of the Scribes” point in the same direction.

If so, the division among the different sources is, at first glance, best explained specifically by the approach of camp 3, what Neubauer calls the “limited forced reading.” According to this approach, Maimonides divides laws derived from interpretation into two main types, only one of which is classified as Torah law, while the other is classified as law of the Scribes. Of course, to suggest such a direction seriously, one would have to examine systematically the criterion by which these laws are divided into the two types and see whether it fits Maimonides’ rulings throughout the Mishneh Torah.

At first glance it is very hard to identify such a consistent criterion. For example, in the responsa of Rabbi Bezalel Ashkenazi, section 18, he distinguishes verbal analogy, which is treated as though written explicitly in the Torah, see Encyclopedia Talmudit, entry “Verbal Analogy,” from the other interpretive methods. But there is no basis for this at all in Maimonides’ own words. On the contrary, he explicitly writes in the second root that he is speaking about laws learned through the thirteen principles and inclusion, which certainly includes verbal analogy. We have seen that Lehem Mishneh, on Laws of Marriage 4:6, proposes a distinction between the thirteen principles, apparently including inclusion, since that is what Maimonides explicitly discusses in the second root. We will address that below.

In any event, there is here also some support for the view we saw above, that of the Tashbetz and his camp, camp 1, namely that Maimonides too agrees that the force of these laws is that of Torah law and not merely the words of the Scribes. The phrase “most of the laws of the Torah are derived through the thirteen principles by which the Torah is expounded” indicates that these are laws derived from the Torah, that is, Torah laws. Camp 4 also fits what is said here, for in order to explain the laws in which Maimonides does take account of the principle of this root, as opposed to those in which he does not, one could distinguish between consequences in regard to which such laws are treated as Torah law and other consequences in regard to which they are treated as rabbinic. But all this requires sharper definition, and we will return to it below.

If we want to examine what is actually ruled in the code itself, we would have to survey a considerable number of laws that might be relevant to our issue. In practice, however, it seems difficult to resolve our question from those laws, for two main reasons. First, in no such law is it clear whether Maimonides classifies it as rabbinic because of this root, or for other reasons connected to the plain sense of the Talmudic passage. The second reason, naturally related to the first, is that among the commentators of the various camps there are disputes about the interpretation of each such law in Maimonides. Each camp reads the law in a way nearest to its own position, and therefore it is hard to find a decisive and unambiguous source.

Precisely for these reasons, special importance attaches to examining Maimonides’ words at the beginning of the Laws of Marriage, which, together with his words concerning witnesses disqualified because of maternal kinship, form the two focal points of the discussion. The concentration on the opening of the Laws of Marriage is due to the fact that Maimonides himself, in the responsum mentioned above, states that this law derives from the principle of this root. It is the only law with respect to which one cannot argue that it was drawn from the principle discussed in this root. Maimonides himself, in his responsum that directly addresses this law and that was written, of course, after the completion of the Mishneh Torah, explicitly says so.²⁰ Even so, we shall now see that even there the matter is not entirely clear.

B.

In Laws of Marriage 1:2 Maimonides writes:

2. These acts of taking are a positive commandment of the Torah. A woman is acquired in one of three ways: by money, by document, or by sexual relations. By sexual relations and by document this is from the Torah, but by money it is by the words of the Scribes. These acts of taking are what are called kiddushin or erusin everywhere; and a woman acquired in one of these three ways is called mekudeshet or me’oreset.

Ra’avad’s gloss: By sexual relations and by document this is from the Torah, but by money it is by the words of the Scribes. This is a mistake, and a mistaken explanation misled him.

In this law Maimonides explicitly writes that betrothal by money is “by the words of the Scribes.” The same is true in Maimonides’ responsum to Rabbi Pinhas the Judge of Alexandria, cited by the Kesef Mishneh there, by Ramban and the commentators on the second root, and by others, where he explains that the basis of this law is the principle presented in the second root. This is his wording:

I have a work in Arabic on the enumeration of the commandments, and it is in the possession of our student Rabbi Saadiah the prayer leader. At its beginning there are fourteen chapters setting forth the great general principles of the enumeration of the commandments, which a person must know, and then the error of everyone who has enumerated the commandments other than myself, from the author of Halakhot Gedolot until now, will become clear to him. In those chapters I explained that not everything learned by analogy, or by an a fortiori inference, or by verbal analogy, or by one of the thirteen principles by which the Torah is expounded, is a Torah law, unless the Sages explicitly say that it is from the Torah. I brought proofs for this. There too I explained that even something that is a law given to Moses at Sinai is called by us “words of the Scribes,” and that nothing is “from the Torah” except something explicitly written in the Torah, such as sha’atnez, mixtures in the vineyard, Sabbath, and forbidden relations, or something that the Sages said is from the Torah, and these are only some three or four things. In that book I explained everything, and when you read it, it will become clear to you, even though it is in Arabic, because most of those chapters are in the language of the Sages, namely Hebrew.

One might certainly ask me: sexual relations are surely from the Torah, because they were not learned through one of the thirteen principles, but from the verse “and has relations with her,” which teaches that she is acquired through intercourse. But money and document were learned by analogy; so why did you say that document is from the Torah and money is by the words of the Scribes? The answer is that indeed I would have said that both money and document are by the words of the Scribes, since they come by legal derivation, were it not for the fact that it is stated explicitly in Babylonian Talmud, Kiddushin 9b, concerning a betrothed maiden, where it says: A betrothed maiden, of whom the Merciful One says that she is punished by stoning, how can that occur? That is, since the verse says “a maiden, a virgin, betrothed,” it follows with certainty that there is betrothal by Torah law without intercourse. By what means? The Gemara discusses the matter and in the end says: Rav Nahman son of Isaac said: for example, where he betrothed her by document; since what completes and removes also completes and brings in. It follows that according to everyone, document completes and brings in, and on this I relied and ruled that document is from the Torah.

Thus, at least regarding this law, it appears quite clearly that its basis lies in Maimonides’ words in this root. We also see that Maimonides remained with his original position, held already when he wrote the Mishneh Torah, that betrothal by money is law of the Scribes.

However, even here there are disputes about the text, as Rabbi Abraham son of Maimonides reports in Birkat Avraham, section 44, also cited in the Kesef Mishneh on this law, as well as by Ramban and the commentators on the second root. He writes:

Your copies did not arrive in good condition, and it seems to us that before my revered father of blessed memory corrected this law, it was copied from him in the form in which he had originally held that betrothal by money is rabbinic, and not because money comes from interpretation, but and so forth. In any event, the corrected wording in his own handwriting reads: by money, or by document, or by sexual relations, and all three are Torah law.

At first glance, here too it is difficult to draw conclusions, since Maimonides himself changes the text of the law and rules that betrothal by money is from the Torah. His son Rabbi Abraham explicitly writes that he retracted. But many have already wondered how Rabbi Abraham failed to notice the text of the responsum cited above, written by his father himself. It could have been suggested that the responsum was written before the time at which Rabbi Abraham says his father changed his mind. Yet there are several proofs that this was not so.²¹ Rabbi Rabinovitch concludes that the change in wording does not indicate a change in legal conception, but only a desire to clarify his intention in this law, since many had misunderstood the earlier version.

In any event, the issue here concerns only the source of the law of betrothal by money, which derives from interpretation and is therefore classed as “by the words of the Scribes.” Ramban, in his glosses, assumes that according to Maimonides a woman betrothed by money is not subject to stoning, and that an engaged daughter of a priest should also not be permitted to eat terumah, although he does bring proofs that she does eat terumah. But on reflection, we see that this law says nothing at all about the legal force of betrothal by money as such. Ramban assumes, in line with his own reading, that the term “rabbinic” in Maimonides expresses legal force and status, not merely legal source, unlike the Tashbetz and his camp.

Yet several proofs may be brought showing beyond doubt that Maimonides too rules that the force of betrothal by money is Torah law, as the Tashbetz maintains. First, let us cite the very next law in Maimonides, 1:3 there:

3. Once the woman is acquired and becomes betrothed, even though she has not had relations and has not entered her husband’s house, she is a married woman; therefore anyone other than her husband who has relations with her is liable to death by court, and if he wishes to divorce her she requires a bill of divorce.

This law states clear and explicit things, even in the version before Rabbi Abraham’s correction: with betrothal by money she is a married woman in every respect, both regarding the death penalty for one who has relations with her and regarding the need for a bill of divorce.

Rabbi Rabinovitch, in the article mentioned above, brings another proof in favor of the Tashbetz, from Maimonides’ approach to doubtful cases. He rules stringently regarding betrothal by money, even though in doubtful rabbinic matters one rules leniently. See, for example, Laws of Marriage 3:10 and elsewhere. The author of Dorot HaRishonim himself brings proof from Laws of Marriage 3:20, where Maimonides writes: “The rule of money is a Torah rule, and its interpretation is by the words of the Scribes,” though see there in the Kesef Mishneh, who emends the text.

Rabbi Rabinovitch brings yet another proof for the Tashbetz from a different source in Maimonides.²² In the Laws of Rebels 4:2 Maimonides writes:

And how can there be a matter that leads to another matter for whose intentional violation one is liable to karet (spiritual excision) and for whose unintentional violation one must bring a sin-offering? … If they disagree about one of the laws of monetary matters … according to the one who says that this person owes the other, whatever he took he took lawfully and by authority of the court. According to the one who says that he is exempt … whatever he took is robbery in his hand, and if he betrothed a woman with it she is not betrothed. According to the one who says that he rightfully took what was his, one who has relations with her intentionally incurs karet, and if unintentionally he brings a sin-offering. Thus the matter leads to another matter for whose intentional violation one is liable to karet and for whose unintentional violation one must bring a sin-offering.

It is clear from Maimonides’ language that betrothal by money, even though he calls it “words of the Scribes” at the opening of the Laws of Marriage, takes effect by Torah law. Therefore one who has relations with her intentionally is liable to karet, and if unintentionally must bring a sin-offering. As Rabbi Rabinovitch notes, there are no textual variants in this law, and it was written before Maimonides decided to revise the wording in the Laws of Marriage. And, as noted, even that change does not seem to reflect a substantive change of view. This therefore seems to prove that the legal force of midrashic laws that Maimonides calls “laws by the words of the Scribes” is Torah law.²³ If so, the only source in Maimonides that is clearly connected to the second root seems to testify a thousandfold that Maimonides means what the Tashbetz says: these are laws whose force is from the Torah, while the phrase “words of the Scribes” indicates only their source, not their force.

Now in Sefer HaMitzvot we find a passage by Maimonides that reads as follows, positive commandment 213:

The two hundred and thirteenth commandment is that we were commanded to enter into marriage by kiddushin, giving something into the hand of the woman, or by document, or by sexual relations. This is the commandment of kiddushin. The scriptural allusion is the statement, “When a man takes a wife and has relations with her,” indicating that he acquires by intercourse, as explained in Babylonian Talmud, Kiddushin 4b. And it says there, “and she goes out and becomes another man’s wife”; just as the going out is by document, so the becoming is by document, as explained there, 5a. So too we learned there, 3b, that she is acquired by money from what is said about the Hebrew maidservant, “there is no money”; they said: there is no money for this master, but there is money for another master, namely the father. But kiddushin by Torah law is explicit only with respect to intercourse, as explained in places in Tractate Ketubbot 3a and in Tractates Kiddushin and Niddah, Mishnah 44b. The laws of this commandment have been fully explained in the tractate devoted to it, namely Tractate Kiddushin. And they said explicitly in Kiddushin 9b: kiddushin by intercourse is from the Torah. It has thus been made clear that the commandment of kiddushin is from the Torah.

At first glance, this too suggests that all forms of kiddushin are from the Torah. Some have explained this by saying that Maimonides later retracted, as Rabbi Abraham his son states in Birkat Avraham cited above.²⁴ On the other hand, later in the passage Maimonides specifies that only intercourse is explicit, while the others are learned from interpretations. At first glance this is a contradictory statement. Yet even if he means to invoke what he says in the second root, we saw there, as detailed in the responsum, that he distinguishes between money and document, a distinction that does not appear here at all. This would seem to suggest that only intercourse is Torah law.

From Maimonides’ wording, however, it seems that he means to say that there is a commandment to betroth a woman, regardless of how one does so, unlike those medieval authorities who hold that there is no commandment of kiddushin and that kiddushin is merely a preparatory act for the commandment of procreation. The proof is from betrothal by intercourse, regarding which it is said explicitly that it is from the Torah. This commandment is fulfilled in all three ways, though some of those ways are learned through interpretation. The difference between the ways concerns only the source of their force. One is written explicitly, while the other two are derived through interpretation.

Perhaps one might try to reject this and say that indeed the legal force of betrothal by money is only rabbinic, but the commandment to betroth a woman, not the legal effect of the kiddushin, but the commandment to perform kiddushin, is fulfilled by Torah law.²⁵ And indeed, at the beginning of his discussion of this commandment he speaks of a commandment, whereas later he discusses whether the woman is acquired through these methods, and there he draws the distinction.²⁶ Still, it seems that the distinction here is not about legal force, for if betrothal by money were only rabbinic, how could the Torah commandment be fulfilled through it? Moreover, why is there here no distinction between money and document?

It therefore appears that the straightforward conclusion is that Maimonides means to say that there is a Torah commandment of kiddushin, as is proven from intercourse, which is explicitly written in the Torah. Some of the methods of kiddushin, however, are learned through the words of the Scribes.

In short, at least regarding betrothal by money it seems very difficult to deny that Maimonides means to say that this is a rule whose legal force is Torah law.

As for the broader conclusion about what he means in the second root, many commentators, both earlier and later, drew from here the sweeping conclusion that the legal status of all laws derived from interpretation is Torah law. As we noted, this law in the Laws of Marriage is the only one about which there is no dispute that it is connected to the second root, because Maimonides himself says so in the responsum. It would therefore seem to prove that this is indeed his intention, as the Tashbetz understood.

Yet this proof seems open to challenge, following what we saw from Maimonides’ wording in Sefer HaMitzvot. It is entirely possible to say that Maimonides holds that kiddushin itself is a Torah law, while some of its details are learned by interpretation and are therefore called “words of the Scribes.” This is the sense of Maimonides’ own formulation in Laws of Marriage 3:20, though see the Kesef Mishneh there, where he writes:

If one betroths by sexual relations, this is kiddushin of the Torah; and so too by document she is betrothed from the Torah, just as what completes and dismisses, as it is said in Deuteronomy 24, “and he shall write for her a bill of severance,” also completes and brings in. But money is by the words of the Scribes, and the law of money is a Torah law while its interpretation is by the words of the Scribes, as it is said, “When a man takes a wife,” and the Sages said that this taking is by money, as it is said in Genesis 23, “I have given the money for the field; take it from me.”

Ra’avad’s gloss: And the Sages said that taking is by money. There is no greater breach than this, and it is a mistaken explanation that he heard from the expression “when one betroths with money” in Ketubbot 3a and elsewhere; but even so he should not have erred and should not have written it.

If we take account of the parenthetical addition, this suggests that the rule of money is a Torah rule, that is, as part of the general laws of kiddushin, while its interpretation is by the words of the Scribes. Thus betrothal by money is learned from the words of the Scribes, but its rule is the rule of Torah. Not because everything that comes from the Scribes is Torah law, for if that were so, why would Maimonides find it necessary to point this out specifically here, according to this version? It therefore seems more plausible that this is a specific statement about betrothal by money. Maimonides means that because kiddushin as such is from the Torah, as he writes in positive commandment 213, all the details learned by interpretation are sub-rules within the law of kiddushin, and therefore all of them are effective by Torah law. But that does not entail that every law learned by interpretation is a Torah law. Only midrashic laws that constitute details of an existing commandment receive the status of Torah law. When the result is a genuinely new law, one that is not a detail within an existing commandment, its force may indeed be only rabbinic.²⁷ This may also be Maimonides’ meaning in negative commandment 181, though the argument can be rejected. See below as well.²⁸

This claim removes the ground from under any attempt to prove anything from the law of betrothal by money, one way or the other. Moreover, it is very difficult to define what counts as a genuinely new law and what counts as a detail within an existing law. It will therefore be difficult to prove from anywhere in the Mishneh Torah what Maimonides’ view is on this point.

In any event, if our argument is correct, this would explain why so few laws generally accepted as Torah laws appear in the Mishneh Torah as rabbinic laws. The reason is that most of them are details within Torah laws, and therefore their force is that of Torah law. Even so, it remains difficult why in the Laws of Marriage Maimonides thought it necessary to note that this is a law derived from the words of the Scribes even though its force is Torah law, while in other places he did not do so.²⁹

To conclude the discussion of the Laws of Marriage, we should note something about Rabbi Bezalel Ashkenazi’s proposal to distinguish between verbal analogy, which would yield Torah law, and the other interpretive methods of which Maimonides speaks in this root. Maimonides’ words in this root explicitly contradict that proposal. It is true that Maimonides there does not derive betrothal by money from the verbal analogy “taking-taking,” but rather from “there is no money”: there is no money for this master, but there is money for another master. This is apparently inclusion, not verbal analogy. But document itself is learned by verbal analogy, equating kiddushin with divorce, from “and she goes out and becomes.” Despite this, Maimonides says there that we should have included betrothal by document as well in the category of “words of the Scribes,” were it not for its hint in the verse. We thus see from Maimonides that verbal analogy too belongs to the category of interpretations that, in his system, are called “words of the Scribes.”³⁰

C.

A similar situation appears in the Laws of the Defilement of the Dead 5:5, where Maimonides writes:

5. This applies only with regard to terumah and sacrificial foods. But to incur karet for entering the Temple, or for eating sacrificial foods, only the first two are liable: the first who touched the dead and the second who touched him, as required by Torah law, as it is said, “and whoever touches him who is impure shall become impure.” But one who touches utensils that touched a person, or one who touches a person who touched utensils that touched the dead, is exempt, as we explained in the Laws of Entry into the Sanctuary, for although these matters are received tradition, they are not Torah law. The Torah explicitly specified only this: one who became impure through a corpse, who is a primary source, and the second who touches him, whether person or utensils.

Ra’avad’s gloss: Although they are received tradition, they are not Torah law, and so forth. I have observed that whenever this man finds something difficult in the words of the Sages he says, “This is their own statement and not Torah law.” But this is not so. For all four degrees of impurity through the dead are derived from verses in the Sifra. Rather, this is a fixed law in their hands, received by oral tradition, that one is liable for entering the Sanctuary in impurity from the dead only for those impurities for which the Nazirite shaves, as explained above. And in the laws of the Nazirite we do not find that he shaves for contact with impurity conveyed through contact with the dead, not even for a sword. Therefore, even in the case of person to person, which is explicitly written in the Torah, one is not liable to bring an offering for entering the Sanctuary. That is the correct explanation.

From Maimonides’ words here it appears that only things explicitly written in the Torah count as Torah laws. The Kesef Mishneh there explains that these remarks too are grounded in Maimonides’ words in our root. Here again, however, one may ask whether he means these laws are rabbinic in force, or whether they are Torah laws of lesser strength. The straightforward meaning is that they are rabbinic laws, and it is clear here that this has actual legal consequences. In this respect, the source here is more pointed than what we saw in the Laws of Marriage.

In both of these places in the Mishneh Torah, Maimonides himself explicitly refers back to the second root. In neither case does the evidence yield an unequivocal conclusion. In the Laws of Marriage, these seem to be laws whose force is Torah law, but perhaps only because the interpretation merely explains an existing commandment. In the Laws of the Defilement of the Dead, the legal status seems rabbinic, but perhaps only as a weakened form of Torah law, and the term “words of the Scribes” describes only the source of the rule, not its legal force. We have already noted, however, that this reading is not very plausible in Maimonides’ language there. The conclusion that emerges thus far is that when Maimonides says “words of the Scribes” with respect to interpretive derivations, he does indeed mean that they have diminished legal force, and not merely that this is their source.

So far we have dealt briefly with Maimonides’ words in his legal code. Before continuing with his words in the second root and examining his objections to Halakhot Gedolot, we will survey some of what he says in those commandments in Sefer HaMitzvot where the second root is mentioned in one way or another.

Sefer HaMitzvot

We will begin specifically with the concluding passage of the second root, where Maimonides summarizes his criteria for distinguishing between rabbinic and Torah commandments. We will then examine the issue in greater detail by looking at how he applies those criteria within Sefer HaMitzvot itself.

A.

In summing up the root, Maimonides writes as follows:

But what is to be counted is that which is an accepted interpretation from Him, and this is when the transmitters explain and say that this thing is forbidden to do and that its prohibition is by Torah law, or they say that it is the very body of the Torah. Then we count it, because it is known through tradition and not through inference. The mention of the inference there, and the bringing of proof for it through one of the thirteen principles, is only to show the wisdom of Scripture, as we explained in the Commentary on the Mishnah.

Here Maimonides is discussing the criterion for whether a given commandment is included in the enumeration of the commandments, which could be taken as a purely classificatory issue, not necessarily touching on the legal force or status of the law. Yet within his words he writes that one must count what the Sages said has a prohibition that is “by Torah law.” This implies that the criterion concerns the force of the prohibition. For otherwise, if the Tashbetz were correct, the relevant formulation should have been that its command is from the Torah, not that its prohibition is from the Torah. It follows clearly that the qualification Maimonides lays down for laws derived by interpretation that nevertheless count as Torah law depends on their legal status. In other words, there cannot be a prohibition that the Sages call Torah law and that still falls under the principle of the second root. The conclusion is that the second root makes a claim about the force of midrashic laws, not only about their source. This appears to support directly Ramban’s understanding of Maimonides, camp 2, and it is not contradicted by the conclusions we drew from the two sources in the Mishneh Torah discussed above.³¹

This proof can be strengthened by two further considerations. First, Maimonides surely agrees that the term “Torah law” in the Talmud denotes legal status, not a meta-halakhic description of source. In the Talmud, by all accounts, this is a term that concerns force as well as source. If so, how can Maimonides, who is known for precision of formulation, use the very same expression in a different sense without defining that sense anywhere?

More than that: Maimonides relies on the language of the Sages in the Talmud when making his determinations regarding the enumeration of the commandments. Where the Sages said that something is “Torah law,” in their sense, namely with regard to legal force, it should be treated as “Torah law,” in Maimonides’ sense. This would seem to show that he intends to use the term as the Sages do, that is, in the sense of legal force and not merely of source.

B.

In his introduction to the enumeration of the commandments, printed at the end of the fourteenth root, Maimonides writes:

When a prohibition is not made explicit in Scripture, they learn it by inference from one of the Torah’s inferential methods. As they mentioned in Babylonian Talmud, Sanhedrin 85a, regarding the prohibition against cursing one’s father or mother and striking one’s father or mother, negative commandments 318-319: the prohibition is not explicitly stated in Scripture at all, for it does not say “Do not curse your father” and it does not say “Do not strike your father,” yet the death penalty is imposed on one who strikes or curses. From this we know that these are negative commandments, and we derive for them, and for others like them, negative commandments 26 and elsewhere, 195-196, the prohibition from another place by way of inference. This does not contradict their statement, “We do not warn from legal inference,” nor their constant formulation, “Do we issue warnings from legal inference?” For we say “We do not warn from legal inference” only in order to prohibit something for which no specific prohibition was explained, by means of inferential derivation. But when the punishment is explicitly found in the Torah for one who commits this act, we know necessarily that it is an act that is prohibited and warned against, and we derive the prohibition by inference only in order to strengthen the principle of their statement that Scripture does not punish unless it has first warned. Once the warning concerning that act has been established, whoever violates and commits it becomes liable to karet or death. Know this introduction, and remember it together with the preceding roots wherever it is mentioned.

It follows from his words that if a punishment is explicit in the Torah and the warning is learned through interpretation, punishment may still be imposed for that prohibition, and this does not contradict the rule “we do not warn from legal inference.” That rule, he says, applies only where no punishment at all is stated in the Torah and we want to infer the prohibition through the hermeneutical principles. But when the punishment is explicit in the Torah, the prohibition can also be learned through interpretation.

Two propositions follow from this:
1. When the prohibition is based on a derivation through the hermeneutical principles, it is not considered a full prohibition, and therefore one may not punish for it, since the rule is “we do not warn from legal inference.”
2. If an explicit punishment appears in the Torah, then even a prohibition based on interpretation is sufficient.

This clearly proves that Maimonides is not speaking merely about the source of the halakhot, which would be a methodological and meta-halakhic issue, as the Tashbetz and his camp wished to argue. For from here, as Ramban already understood him in his glosses, page 72, see below when we discuss his remarks, it is evident that Maimonides sees actual legal consequences in his determination that the status of these laws is “words of the Scribes.” One cannot issue formal prohibitions on their basis, and therefore presumably one cannot punish on their basis either, since “we do not punish from legal inference.”³²

C.

In his glosses here, pages 64-68, Ramban pointed to a whole series of commandments that Maimonides counted in his Sefer HaMitzvot even though they are learned from inclusions. For example, negative commandments 287, 322, 145-149, 124, 135, 196, 76, 91-94, and 187. Rabbi Yeruham Perlow likewise noted this in his comments on the second root, briefly under the heading “But rather,” and especially under the heading “And from this.”

It should be emphasized that this difficulty remains difficult even according to the Tashbetz and the other camps among Maimonides’ interpreters. Even if there is no difference in legal force, they too agree that Maimonides intended to establish a criterion for the enumeration of the commandments. In other words, on their reading too Maimonides explicitly writes that what is learned through interpretation is not to be counted, while in all these commandments he nevertheless included such laws in his count.

We cannot go into the details of every such commandment here, so we will speak only in general terms. Such objections can be answered in two ways.
a. With respect to some of these negative commandments, Maimonides had a source showing that the Sages treated them as Torah prohibitions. We have already seen that, according to Maimonides, laws learned through interpretation count as Torah law if the Sages have told us that they are Torah law. Ramban claims at the end of his remarks, page 68, that we do not find such a source, but it is hard to see how such a categorical claim could be established.³³
b. It is possible that some of these are interpretations that explain already existing laws, and therefore yield Torah laws. We indeed find at least several examples that clearly fit this category. For example, negative commandment 322, which states that court-imposed execution does not override the Sabbath, may be understood as a prohibition that is a detail within the laws of Sabbath and within the laws governing the court. Likewise negative commandments 145-149 regarding eating sacrificial meat outside the designated enclosure can be understood as interpretive derivations within the laws of sacrifices.

This is similar to the direction we proposed in concluding the discussion above regarding the Laws of Marriage. There too we concluded that it is possible that the legal force of betrothal by money is Torah law, but only because it constitutes a detail within the laws of kiddushin. It would then still not follow that genuinely new midrashic laws do not have merely rabbinic force.

Still, this approach requires more detail. If these interpretations really are explanations of already counted commandments, then although it becomes clear why they are treated as Torah laws, they should have been included within the commandments they explain rather than counted as independent commandments. To be sure, we do find many commandments that are counted even though they are details of other commandments, and these are merely some of them. This is not the place to pursue that further. I later saw that the author of Lev Sameach takes this route on this root as well.

D.

We can now add further examples to the consideration we saw in the previous subsection from Maimonides’ own application of these criteria in Sefer HaMitzvot. Let us take as an example his remarks on positive commandment 175, the commandment cited by Ramban at the beginning of his glosses. There Maimonides discusses the commandment to follow the majority and brings proof that it should be counted from the fact that the Sages speak of it in the phrase: “the majority is by Torah law.” This expression in its original setting appears in legal contexts, meaning that the authority of following the majority is from the Torah. But beyond that, the expression “Torah law” in the Talmud certainly denotes legal force and not merely the question of legal source. Thus, as we saw above, this too shows that Maimonides grounds his determination on such formulations in the Talmud. As we argued there too, it is implausible that he would interpret the term “Torah law” everywhere contrary to its Talmudic meaning.

Likewise, in negative commandment 199 he brings from Babylonian Talmud, Pesahim 4b, the phrase: “Leaven from the sixth hour and onward is by Torah law,” or from the same tractate 2b, “so that one not come into contact with a Torah prohibition.” It is very hard to say that Maimonides thinks the Talmud itself means by the expression “Torah law” a methodological question rather than a legal one.

In negative commandment 135 as well, Maimonides brings proof not from wording but from a legal datum. He relies on the fact that the Sages enacted a decree around a law derived by interpretation, that one forbids a person whose foreskin was artificially stretched as a safeguard for the uncircumcised person with respect to terumah, in order to prove that the underlying law is Torah law. For one does not ordinarily enact a decree to protect another decree. Hence, if the underlying law were rabbinic, such an additional safeguard would not have been imposed. Here Maimonides’ proof rests on a legal consequence of the law’s being Torah law, not on the verbal formula “Torah law,” which does not appear there at all.

At first glance, all these sources indicate that, at least in the context of Sefer HaMitzvot, the evidence for Ramban grows even stronger than the proof we brought from the concluding words of the second root itself. Here it rests on an additional consideration leading to the same conclusion: the discussion in this root is also legal, not merely semantic. In other words, the commandments that are not counted in the enumeration because of the second root are commandments of lower legal status. At the end of the second root we saw a proof based on the meaning of the term “Torah law” everywhere, including in the Talmud. Here a similar proof is added: in the commandments just discussed, Maimonides’ proofs are based on Talmudic passages that deal with legal force, and if these are his proofs, then clearly his intent in this root is to make a legal claim.

E.

In Sefer HaMitzvot there are several commandments that Maimonides notes he counts despite the second root. The reason for this exception is that the Sages said they are Torah law, according to the criterion above. It is interesting that all of them are negative commandments: 135, 194, 199, and 336. In the first three, Maimonides justifies counting them by using expressions that concern their legal status, for example, that “their prohibition is by Torah law.”

This is most evident in negative commandment 194, concerning the drinking of wine used for idolatrous libations. There Maimonides proves that it should be counted among the commandments from the laws of nullification in a majority, which is unmistakably a legal plane. This is his wording there:

The one hundred and ninety-fourth commandment is that we are warned not to drink wine used for libations. This is not stated explicitly in Scripture, but they said in Tractate Avodah Zarah 29b: “They eat the fat of their sacrifices, they drink the wine of their libations” — just as the sacrifice is forbidden, so too the wine is forbidden. And you know that it is forbidden for benefit and that one is flogged for it, as is well known throughout the Talmud. The proof that wine used for libations is among the prohibitions of Torah law, and that it should be counted among the negative commandments, is their statement at the end of Tractate Avodah Zarah 73b: Rabbi Yohanan and Resh Lakish both said: all the prohibitions in the Torah, whether mixed with their own kind or with another kind, are nullified by taste, except untithed produce and wine used for libations; in their own kind, even the slightest amount, and with another kind, by taste. This is a clear proof that wine used for libations is among the Torah prohibitions.

Maimonides’ own wording here says that it is known throughout the Talmud that one is flogged for this prohibition, so again his concern is clearly legal force. True, immediately afterward he proves that it is a Torah prohibition from the formulation “all the prohibitions in the Torah … except untithed produce and wine used for libations,” which is a verbal proof. But this is no objection, for his meaning can perfectly well be that the Sages described this prohibition as Torah law, and we have already seen that this expression refers to force and not merely source.

F.

In negative commandment 181 Maimonides adds, regarding an animal or beast with a fatal defect that was properly slaughtered, that one who eats it “is flogged by rabbinic law.” Later authorities already noted³⁴ that in Maimonides’ ruling in the Laws of Forbidden Foods 4:6-9, he decides that one is forbidden and flogged by Torah law. For this reason they all wrote that Maimonides later retracted, and that in his code he therefore rules that flogging is by Torah law.

According to the Tashbetz, however, this can be explained more simply: the source of the prohibition is rabbinic, that is, interpretive, but its legal force is Torah law, and one is therefore flogged for it. Yet even according to our own approach one can explain that where a prohibition is learned through interpretation, even if the Sages said it is Torah law, its force is indeed Torah law, but the fact that it is learned through interpretation means that it is still “by the words of the Scribes.” In other words, the Tashbetz may be right that the phrase “words of the Scribes” refers to source rather than force, but only with respect to laws learned through interpretation about which the Sages have testified that they are Torah law. Where the Sages did not say this, both the source and the force are rabbinic. This is what we saw in the Laws of Marriage, where Maimonides says that betrothal by money is rabbinic even though we proved that, in his own view as well, its legal force is Torah law.

Interim Summary: Removing the Dichotomy Between the Question of Source and the Question of Force

The conclusion that emerges from almost all the sources we have surveyed is that Maimonides really does intend to make a claim about the legal force of these commandments, and that in his view such laws are rabbinic laws. Yet it is also quite clear from his language that the term “Torah law” denotes source as well and not force alone. We shall see below that Maimonides ties these two meanings together: legal force is derived from the source of the law. The basic discussion is always about the source, and from that the force is also derived. A law whose source is “rabbinic,” or “by the words of the Scribes,” also has rabbinic force; and conversely, a law whose source is “from the Torah” also has Torah legal force. The assumption that Maimonides must be interpreted as speaking only in one of these two opposed ways, either source or force, is incorrect. He speaks of source, and through it also of legal force. Such an approach explains all the sources we have seen thus far. Below we will continue and see, also from his words in the root itself, that this is probably indeed Maimonides’ approach.

Maimonides’ Words in the Introductions and in the Second Root

After dealing with Maimonides’ words in Sefer HaMitzvot, we can now turn to his own discussion in the second root itself.

A.

First, we must note that in his responsum to Rabbi Pinhas the Judge, in the introduction to the Commentary on the Mishnah, and throughout the second root, Maimonides does not directly address the legal status of the laws under discussion at all. He deals only with the semantic question: what is called “words of the Scribes” and what is called “Torah law” — that is, the question of the source of these laws, not the question of their force. At first glance, this supports the claim of the Tashbetz and his camp that Maimonides had no intention of addressing the legal status of such laws or of departing from what is accepted in the Talmud. In light of what we have said above, however, this proves nothing. The question of source is the basis for the question of force, and therefore it is natural that Maimonides focuses chiefly on it.

Moreover, it may be that Maimonides did not bring straightforward proofs because he had no such proofs. It is highly likely that, if Maimonides had possessed proofs that the status of midrashic laws is rabbinic, he would have produced them. This consideration suggests that whether his basic claim is substantive and legal, concerning the force of midrashic laws, or merely semantic, concerning only their source and not their force, in any event Maimonides apparently had no proofs for it. Had he had such proofs, he presumably would have cited them.

The conclusion is surprising: this revolutionary idea of Maimonides arises entirely from an a priori legal-theoretical understanding, not from Talmudic sources. See our introduction concerning such a general approach in Maimonides. Later, when we discuss Maimonides’ theory of interpretation, we will examine the origin and necessity of this view in his eyes, and why he was willing to maintain it so forcefully without explicit proofs.

B.

It should also be noted that in the sentence concluding the second root, cited above at the beginning of the section on Sefer HaMitzvot, Maimonides adds that the reason the Sages brought an inference from one of the thirteen principles as proof for a law also transmitted through tradition was “to show the wisdom of Scripture.” At first glance, he should have said that they brought such an inference in order to show us that the commandment is by Torah law and not merely by the words of the Scribes. This seems to suggest that Maimonides is not speaking here about legal force, and that even commandments not transmitted by tradition but derived through interpretation nevertheless have Torah force.

Yet this proof too may be rejected. One could explain that Maimonides means to account for why the Torah did not write these commandments explicitly in Scripture, but instead left them to oral transmission accompanied by an interpretive scriptural anchor. About that he says that this was in order to display the wisdom of Scripture. But once that is the form in which the law was given, it is clear that the existence of an inference is not only for showing the wisdom of Scripture, but also for teaching us that this is a Torah law. Without the inference we would have had merely a law transmitted by tradition without scriptural anchor, namely a law given to Moses at Sinai in Maimonides’ terminology, and it would then have been a rabbinic law.

Perhaps another possibility may be suggested for the phrase “the wisdom of Scripture” in Maimonides, in the sense of “the content of Scripture.” That is, the need for the interpretive derivation that anchors a law already known from tradition is to show that it is present in the scriptural text itself. On this reading there is no contradiction between this sentence and understanding Maimonides’ words as making a substantive legal claim. We shall later see the significance of such a claim within Maimonides’ broader meta-halakhic system.

C.

I have seen that Rabbi Shmuel Ariel brought several proofs from Maimonides’ own language in this root that Maimonides means what the Tashbetz says, namely that such laws have Torah force even though their source is rabbinic. On this view, the terms “rabbinic” and “Torah law” concern only source and not force. According to our conclusion so far, however, Maimonides does not distinguish at all between these two questions, or rather, one is derived from the other.

1. At the opening of the root, Maimonides refers to what he said in the introduction to the Commentary on the Mishnah concerning the classification of midrashic laws: some are generated through interpretation, creative interpretation, and some were received by tradition and merely supported through interpretation, supporting interpretation. Immediately afterward he adds that we must find a criterion by which to know which law is rabbinic and which is Torah law.

But anyone who looks at the introductions will immediately see that there is not the slightest hint there about the legal status of the various laws. What one finds there is only a classification by source, with no reference at all to legal force. It would therefore seem that here too, when Maimonides speaks of “rabbinic,” he means the source of the rule and not its force.

According to our approach, however, the more precise conclusion is that Maimonides simply sees no difference between the two questions. He quite naturally points us back to the introductions even though he does not discuss legal force there, because for him the connection between source and force is self-evident. As noted, he understood the language of the Sages in the Talmud in the same way.

2. Throughout the root, Maimonides does not distinguish between the question of source and the question of force. At the beginning of his remarks he speaks of laws generated by the Sages, and immediately proceeds to state, without any explanation, as we noted above, that these are rabbinic laws. It seems very likely that by the term “rabbinic” he means the source of these laws rather than their force. The term “rabbinic” and the phrase “not said to Moses at Sinai,” or not scripturally anchored even if they were said at Sinai, appear to overlap.

3. It is very hard to assume that such a radically new idea, namely that all midrashic laws have only rabbinic force, an idea with which all the commentators struggled and over which they disagreed with Maimonides, would not even be mentioned by him, let alone supported by proofs.

On the other hand, it should be noted, as we already said above, that among most commentators the term “rabbinic” ordinarily denotes the force of the law, not its source, unlike perhaps the phrase “words of the Scribes.” We would therefore expect Maimonides, if he intended an unusual meaning, to define that unusual usage of such a standard term. This is all the more so since he himself sometimes uses it in the ordinary sense.

4. The very contrast between “rabbinic” and “said to Moses at Sinai” indicates that the term “rabbinic” is meant in the sense of source and not force.

Here too the argument may be rejected. Maimonides is not simply contrasting “rabbinic” with “said to Moses at Sinai,” but rather with “said to Moses at Sinai and lacking any scriptural anchor.” It is very hard to interpret such a contrast as a discussion of source alone. Why should the existence of an anchor matter? What matters, if all we are discussing is source, is whether the law was transmitted to Moses at Sinai. It is hard to think that Maimonides is laboring to draw such a subtle conceptual distinction, all without legal consequence, merely in order to differentiate between two “sources” of this kind, tradition with interpretation and tradition alone.

5. Maimonides’ language suggests that the criterion he offers is not substantive but verbal. The determination that a law is Torah law depends on whether the Sages “said” that it is Torah law, and not on whether they establish consequences showing that its force is Torah law. If he had meant the force of the law, it would suffice to see that doubts regarding it are treated stringently, or that one incurs karet or must bring an offering for it, in order to decide that it is Torah law. This too would seem to prove that he is speaking of source and not force. We addressed this above.

Rabbi Ariel further notes that Maimonides’ language consistently sounds as if he is asking whether the Sages said that something is Torah law, not whether that can be inferred from their discussion. He also adds that if they did not say so, then it is rabbinic. At first glance one might have expected Maimonides to examine such matters on the basis of their legal consequences.

But this too may be rejected. That in fact may be precisely his point. We should also note that Maimonides’ responsum cited above implies that regarding betrothal by document we have no proof from the words of the Sages, and it therefore should have been included in the category “words of the Scribes.” The reason Maimonides nevertheless treats it as Torah law is a logical consideration internal to the Torah itself: Scripture speaks of a betrothed virgin, which proves that betrothal can take place without intercourse. This is a consideration that does not rest on the explicit words of the Sages nor on any commandment as such. It is an interpretive consideration, not the interpretation of a command-verse. This is a legal proof, not a merely verbal one.

6. The expressions “the very body of the Torah” and “Torah law” appear as such in Maimonides’ Arabic wording in the root. This suggests that he intends an explicit verbal disclosure by the Sages and not a legal indication.

Beyond that, the phrase “the very body of the Torah” is rare in the Talmud, and it is hard to see why it would serve as a general criterion. It seems more likely that Maimonides brings it because it appears with respect to the prohibition of one’s daughter, which is not explicitly stated in the Torah, where only the prohibition of one’s wife’s daughter appears, with practical difference in the case of a daughter not born from marriage. Maimonides counts this prohibition in negative commandment 336, and rules there that it is Torah law because the Sages said of it that it is “the very body of the Torah.” In other words, his focus there is indeed on the verbal statement and not on legal consequence.

This consideration might seemingly be strengthened by examining Maimonides’ own words in negative commandment 336. He proves the point from the wording that the Sages called it “the very body of the Torah,” and not from the fact that, in practice, the prohibition incurs burning, karet, or a sin-offering. Those punishments are mentioned only at the end of the discussion of the commandment, as in other commandments. Something similar was noted above regarding negative commandment 194.

Rabbi Ariel adds that this also seems to follow from positive commandment 213, where Maimonides bases the statement that betrothal by intercourse is Torah law on a saying of the Sages, not on its legal force, for which Maimonides himself has explicit proofs from the Gemara, as he says there at the beginning of the commandment.

Yet this proof too can be rejected, because Maimonides says only that with intercourse there is explicit disclosure that kiddushin as such is Torah law. Document and money are learned through interpretations that compare them to intercourse. But in the conclusion, everything is Torah law, as is explicit at the beginning of the commandment there: “that we were commanded to enter into marriage by giving something into the hand of the woman, or by document, or by sexual relations.”³⁵

Our conclusion thus far is that according to Maimonides there is no distinction at all between the question of the legal force of midrashic laws and the question of their source. This approach, which cancels the distinction between the source of a law and its legal force, uproots the whole question we have been discussing from its foundations. There is no sense in asking whether Maimonides is dealing with force or source, because for him the two are one and the same. We will expand on this point below.

In Appendix B we will examine in greater detail Maimonides’ glosses against Halakhot Gedolot later in the root, and through them we will continue to test what he means: whether he intends also legal force or only the source of laws derived through interpretation.

Summary and First Conclusions: Maimonides’ Copernican Revolution — Source and Force

Up to this point we have surveyed the various relevant sources in Maimonides’ own writings. One conclusion we have already reached, and we should sharpen it now at the end of the chapter. Maimonides does not distinguish at all between the question of force and the question of source, and therefore in all these places he does not mention the topic of legal force at all. For him, once he defines and classifies the source, he has thereby also expressed his view on the question of force.

We should note that this yields an even more far-reaching conclusion: not only does Maimonides fail to distinguish between source and force, he does not even recognize the existence of the question of force as such. Up to this point we assumed that the question of force is well defined, and that Maimonides is simply introducing here a new topic for discussion, namely the source of laws. The terminology he innovates, “rabbinic” or “Torah law,” would then stand in contrast to the meaning these terms usually bear among the Sages, which concerns legal force. But we shall see that Maimonides denies the existence of a criterion of force for classifying laws. The only classificatory question he recognizes is the question of source: is the source of the law the Torah or the words of the Scribes? Below we will define this more sharply. As for force, according to Maimonides there are no sweeping principles that apply uniformly to all Torah laws or to all rabbinic laws. The rule that doubt in Torah law is treated stringently does not follow from the force of the law but from its nature. It therefore does not characterize only those laws whose source is from the Torah, in Maimonides’ own terms.

What follows from our analysis is that midrashic laws, which, as we have seen, are classified by Maimonides as rabbinic in terms of source, may nonetheless have some legal consequences that are usually called “Torah-level” — for example, that doubtful cases concerning them are treated stringently, as we saw regarding betrothal by money — while also having other legal consequences usually associated in common language with rabbinic laws. For Maimonides, the criterion distinguishing “rabbinic” from “Torah law” is not a single overarching legal criterion; everything depends on the question of source. The consequences may be mixed. We will elaborate on this point as well later on.

This is a true Copernican revolution. Maimonides turns the whole conventional legal terminology and classification on its head. He simply does not recognize the extremely common distinction between “Torah laws” and “rabbinic laws” in the conventional sense. For him, it is only a question of source. It appears from his words that he understood the intention of the Sages in the Talmuds the same way, since he brings their legal statements, which deal with law and legal force, as evidence for his own discussion of the enumeration of commandments. Later we will show in more detail that the legal consequences of this classification are indirect, not uniform and all-embracing. It should be noted that this presentation of Maimonides’ view is close in spirit to what we saw above in camp 4, which holds that these laws occupy an intermediate status between rabbinic and Torah law.³⁶

Another point that emerged here, and even more so in Maimonides’ glosses on Halakhot Gedolot, discussed in Appendix B, is that the mechanism of branching, as opposed to specification and asmakhta, also appears in Maimonides’ words in this root. In the third unit we will bring together the conclusions of these two units and examine the logical-philosophical significance of this mechanism.

In the next two chapters we will move on to examine the two additional aspects mentioned above: the conceptual considerations and the aspects that emerge from the actual legal data in the Talmuds.

Chapter 3: The Difficulties in Maimonides’ View — Conceptual Aspects

Introduction

In this chapter we will examine Maimonides’ view on the plane of conceptual reasoning. This discussion is shorter. Some of the aspects are raised by Ramban, and others by additional commentators. We will review them one by one.

A. The Lack of a Basis for Maimonides’ Revolutionary Claims

There is one important question, perhaps the main question, and it arises even before all the direct objections to Maimonides’ innovation. As we have seen, Maimonides has no real proofs for his claims, except for one indirect and inconclusive proof from Babylonian Talmud, Temurah 16a, and even that concerns only the semantic level and not the substantive legal level. At the legal level, namely the claim that laws learned through interpretation have a lower legal status than Torah laws, Maimonides seems to have no proof at all. More than that: as we have seen, and will see further, the accepted terminology and the standard legal and Talmudic treatment all stand against this innovation.

The first question we must therefore ask is: whence and why innovate such a far-reaching doctrine — “one that uproots and overturns many roots in the Talmud,” in Ramban’s phrase at the beginning of his glosses here? It should be noted that if Maimonides had meant only a methodological classification of laws, and not a substantive statement about their legal status, then this question would not arise at all. But according to the explanation we have proposed above, namely that Maimonides changes the entire accepted meaning of the terms “Torah law” and “rabbinic,” the question becomes even more pointed: why do this at all, and without any proof?

For this reason, most of the medieval authorities who interpret him according to camp 2 strongly opposed Maimonides’ words in this root. Ramban was most forceful of all. He closes his remarks on this root in unusually sharp language:

I know that there are still many other passages in the Gemara that contradict his position. For this book of the rabbi, may his memory be blessed, is full of delights and altogether desirable, except for this principle, which uproots great mountains in the Talmud and topples fortified walls in the Gemara. For students of the Gemara this matter is evil and bitter. Let the matter sink and not be said.

If so, why did Maimonides see fit to introduce such a puzzling principle without any halakhic or Talmudic basis?

The whole issue apparently lies in an a priori understanding of the concepts of interpretation. As emerges from Maimonides’ language in this root, he holds that beyond the plain sense there can be no other interpretation of the verses. We shall see that according to his assumption any text has only one interpretation. It follows that no additional content can be hidden in the verses beyond the plain meaning. In particular, the interpretive derivation is not latent within them. This emerges from Maimonides’ remarks in the root on the relation between plain meaning and interpretive derivation, and from Ramban’s responses on this point, which we too will discuss below. As we shall see, Ramban also understands that this is the principal point of disagreement between him and Maimonides.

From this one can see the centrality and importance of the discussion of the theory of interpretation, and of the relation between plain meaning and interpretive derivation, for they stand at the center of Maimonides’ innovative position in this root. For their sake he is willing to shake the very foundations of Talmudic study and its sages. We will deal with this at length later on.

B. The Paradox: How the Combination of Tradition and Interpretation Accomplishes More Than Either One Alone

As noted, Ramban understands Maimonides to mean that laws generated through interpretation have only rabbinic legal force. On that assumption, at the beginning of his glosses, page 52, he raises a series of objections. The first is presented as a dilemma. If the hermeneutical principles are not genuine, and the truth lies only in the plain-sense interpretation of the verses, as Maimonides himself cited from the saying of the Sages, “A verse never departs from its plain meaning,” then we have stripped the thirteen principles of all significance. They simply are not true tools for interpreting Scripture. But Maimonides himself admits that these are genuine tools, and that they were given to Moses at Sinai, so that for us they are in the category of laws given to Moses at Sinai. If so, what difference is there between laws transmitted to us by tradition from Sinai and anchored in Scripture through interpretation, supporting interpretations, which Maimonides says have Torah force, and laws anchored in scriptural interpretation but lacking an independent tradition regarding the laws themselves, creative interpretations?

Ramban sharpens the difficulty further. He points out that Maimonides himself agrees that the hermeneutical tools were given to us at Sinai together with the biblical text. If so, he asks, how can tools given to us at Sinai, when applied to a text also given to us at Sinai, produce laws whose legal status is regarded as though they were not given to us from there? At least de facto, these laws too were given at Sinai.

Ramban’s second objection moves in the opposite direction. First he notes that, according to Maimonides, even laws given to Moses at Sinai have the legal status of rabbinic law. This claim does not appear in the introduction to the Commentary on the Mishnah, because, as we have seen, Maimonides is not discussing legal status there, only meta-halakhic classification. Nor is it mentioned explicitly in our root. But Maimonides nevertheless says so in several places, which we will discuss in the next chapter, where we shall see that this principle also applies to the Mishneh Torah.

Ramban continues: if even laws given to Moses at Sinai are classed as “words of the Scribes,” then what is accomplished by the fact that a law supported by interpretation, a supporting interpretation, was also received by tradition from Sinai, such that it is thereby transformed into a Torah law?

In another formulation, Ramban’s objections may be stated thus: according to Maimonides, a law received by tradition from Sinai but lacking any interpretive anchor in Scripture, that is, a law given to Moses at Sinai, has the force of the words of the Scribes. Likewise, a law that does have an interpretive anchor in Scripture but is not independently known by tradition, namely a creative interpretation, also has the force of the words of the Scribes. If so, how does the combination of these two mechanisms, tradition and interpretation, each of which on its own yields laws that are classed as the words of the Scribes, produce laws whose force is Torah law? This seems to be the main conceptual difficulty in the matter, and it casts a heavy shadow over Maimonides’ entire view on this subject.

It should be noted that the first objection is solved by the proposal of the Tashbetz, because on his view Maimonides indeed holds that the legal force of these laws is Torah law. But it is important to understand that the second objection remains difficult even on the Tashbetz‘s interpretation. Even a meta-halakhic terminology must conform to the rules of logic. Why should a law be called “Torah law” rather than “words of the Scribes” when it results from combining two mechanisms, neither of which by itself produces laws worthy of the title “Torah law”?

Behind the entire discussion lies a basic question: why distinguish at all between laws received by tradition from Moses at Sinai without a scriptural anchor, that is, laws given to Moses at Sinai, and laws written explicitly in the Torah? Both equally express the divine will. What logic can there be in saying that the conjunction of two criteria yields a different legal status?

C. Is There a Third Category Between Interpretation and Legislation?

Ramban also objects there, on page 52, to Maimonides’ statement in this root that midrashic laws are like branches emerging from the roots, that is, from the 613 counted commandments, and are therefore not counted.

Ramban objects as follows: if these midrashic laws, these “branches,” are part of the content of the primary roots, then even if they were Torah laws explicitly written in the verses they should not be counted, since they are already included in the counted commandments, according to the principle discussed in the seventh root. In that case, however, these are laws or commandments that are Torah law in every respect, and their non-enumeration is only technical, not substantive. Clearly, then, this cannot be what Maimonides means in this root, because his reason is that midrashic laws are not counted because they are the words of the Scribes. But if these midrashic laws are not part of the content of one of the counted commandments, such as the prohibition of an uncircumcised person partaking of terumah, then they are genuinely new commandments and cannot at all be regarded as branches emerging from the roots. In that case they certainly ought to be counted.

In any event, Ramban says that Maimonides here inadvertently mixed two different reasons. On the one hand, he writes that such laws are not counted because they are by the words of the Scribes. On the other hand, he ties their non-enumeration to the fact that they are like branches included within the roots and therefore should not be counted, even if they are Torah laws, because they are already included within one of the counted commandments. This is the same tension that has accompanied us since the first unit, between understanding the principle in the root as substantive and understanding it as classificatory.

Ramban assumes in this objection that by the expression “branches from the roots” Maimonides means the principle of the seventh root, namely that such laws should not be counted because they are already included in the roots. It seems, however, that Maimonides meant no such thing. He means that midrashic laws are not part of the Torah itself; rather, they branch out and ramify from it, while remaining outside it. Therefore they are not counted, because for Maimonides branched-out laws have the status of words of the Scribes, exactly as we explained in the first unit concerning his words in the first root.

It should be noted that Ramban himself tentatively raises such a possibility in explaining Maimonides’ intention. He writes:

Perhaps he holds that a law derived through one of the principles, although true, has no hint in the verse, and the verse was written only for its plain meaning and not in order to derive from it that law. It is therefore called rabbinic. But when we hear them say that it is by Torah law, or that it is the very body of the Torah, we count it, because it is known by tradition, namely that the inclusion or the verbal analogy in that verse was written in order to derive from it that law.

Ramban is here suggesting that according to Maimonides, midrashic laws do not constitute interpretations of the scriptural text itself, and are therefore not Torah law. He does not explain what connection such laws, which are “true,” in his words, nevertheless have to the text. If what he means here is the mechanism of branching, as in the first root, then it appears that he has correctly identified the foundation of Maimonides’ view.

The conclusion from this point is that in the present root too Maimonides returns to his innovation that there is a third kind of relation between a new law and the biblical text: branching. This emerged from our analysis of Maimonides’ remarks in the previous chapter, where he raises against Halakhot Gedolot two objections of different kinds: why count rabbinic commandments, and why count commandments already included in a counted commandment? We explained there that he means these two objections together form a single whole: branching. Midrashic laws branch from the interpreted verse, and therefore one may ask why count them, since they are not really Torah law; and one may also ask, even if such branched-out laws are Torah law, why count them separately rather than include them in the commandment from which they branch.

If so, this too shows that Maimonides’ principle in the present root, like the one discussed in the previous root, is based on laws that branch out from the scriptural text. Later, in the third unit dealing with the relation between the two roots, we will try to clarify the relation between these two kinds of “words of the Scribes,” both of which include laws that branch out from Torah verses, and yet are clearly distinct legal types: one legislation and the other interpretation.

It should be noted here that from Maimonides’ language describing midrashic laws as “branches from the roots,” the picture does not fit the Tashbetz, and for exactly the reason given by Ramban. If Maimonides meant what the Tashbetz claims, then the whole matter would be merely terminological and not substantive or legal. In practice, the reason that laws generated through interpretation are not counted would simply be that they are already included in counted commandments, not that they are the words of the Scribes. As we have seen, this is not what Maimonides’ language suggests throughout the root. The branches seem to possess not only inclusion within their roots as details, but also lower legal status than those roots.

Moreover, as Ramban also notes here, laws like the prohibition of an uncircumcised person partaking of terumah, though learned through interpretation, cannot be included within a counted commandment. According to the Tashbetz‘s proposal, Maimonides should have counted them. This again proves, as we have argued, that the non-enumeration of midrashic laws depends also on their legal force and not only on issues of classification. As stated, the two aspects underlying these two questions are the result of a single mechanism: branching.

D. What Is the Law in a Case Where We Doubt Whether a Midrashic Law Also Has a Tradition Behind It?

Ramban’s next objection, page 53, is that with respect to laws anchored in interpretation, where we do not find the Talmud referring to them as Torah laws, we should have to classify them as doubtful — in doubt whether the law is Torah law or rabbinic. Ramban there challenges Maimonides from the Talmud, whose treatment suggests otherwise. That is the subject of the next section, the objections from the Talmud. But, as we already noted above, this is also difficult from Maimonides’ own language, because his wording suggests that such laws are classified with certainty as rabbinic laws.

From Ramban’s objection it appears that he understood Maimonides to mean that where we lack explicit Talmudic classification, we are left in doubt, not that the law is certainly rabbinic. That is why Ramban does not object from Maimonides’ own words, but only from the Talmud. Of course, according to the Tashbetz, this objection does not arise at all.

It should be noted that in light of our proposal above, namely that Maimonides does not distinguish between the question of force and the question of source, and indeed does not even recognize the question of force as a general, independently defined issue, some of these difficulties disappear. We will return to this point later.

So far we have presented the conceptual problems in Maimonides’ view, along with questions of consistency between his statements and his own system. In the next chapter we will turn to the most acute issue: testing Maimonides’ view against the actual legal facts and the different treatments found in the Talmud.

Chapter 4: The Difficulties in Maimonides’ View — Aspects Arising from What Is Found in the Talmuds

Introduction

Almost all the difficulties stemming from conflicts with what is said in the Talmuds are raised by Ramban in his glosses on this root. We will now summarize them and present them by type, skipping details that have no principled significance. This classification will help us see how the proposal to be presented below can solve all these different kinds of difficulty. Instead of telling the reader to skim, I have chosen to present the material in a somewhat telegraphic fashion. Most of the points are familiar to any reader with even modest acquaintance with Talmud and halakha, and my purpose here is only to focus and sharpen their significance.

A. Why the Talmud Does Not Treat Midrashic Laws as Doubtful

The first question has already been mentioned. Ramban objects that according to Maimonides, laws derived through interpretation for which the Talmud nowhere states that they are Torah law should have the status of doubt, whether they are Torah or rabbinic. Yet we do not find such treatment in the Talmud.

It is not clear why Ramban begins specifically with this secondary objection, rather than raising the more difficult one directly: why do we not find the Talmud treating laws derived through interpretation as rabbinic laws? After all, according to Maimonides, this should be true of most midrashic laws, apart from “some three or four.”

This proof may, however, be rejected by saying that most laws derived through interpretation form part of, or a detail within, a counted commandment, and are therefore not counted separately, as we saw above regarding betrothal by money. In legal terms, such laws would then have the status of Torah law.

B. The Talmud Treats Midrashic Laws Like Matters Explicitly Written in the Torah

Ramban continues, page 53, arguing that throughout the Talmud the hermeneutical principles are treated as tools the Sages employ just like what is explicitly written in the Torah. He bases this on the fact that with respect to all the principles, a person may reason them out on his own, except for verbal analogy, where an explicit tradition was required because otherwise anyone could derive whatever he wished. Ramban cites many Talmudic sources to this effect.³⁷

Yet even here his argument needs examination. It may well be that a person can derive an interpretation on his own, but that it would still be only a supporting interpretation. If so, then the law supported by it is Torah law even according to Maimonides. Why does Ramban regard the fact that anyone can derive an interpretation on his own as a refutation of Maimonides? Quite the contrary: precisely for that reason, the laws produced by interpretation have the status of words of the Scribes, because they are a human creation rather than a direct instruction of the Torah.

Perhaps Ramban means to argue from the fact that such interpretations can be creative. If so, it becomes clear that they are definite and reliable, and it would follow that they were received from Sinai as a unified and binding interpretive tool. If that is the point, then the result of interpretation should obviously be Torah law. On that reading, we are back to the conceptual objections we saw in the previous chapter.

Or perhaps his point is that if every sage can derive an interpretation independently, then most of the laws in our possession are generated by creative interpretation, and we should therefore expect the Talmud to treat most midrashic laws as words of the Scribes. But we do not find such treatment. If this is his point, then it is really a continuation of the previous objection. Perhaps this is indeed the continuation; Ramban’s wording and paragraphing there are not entirely clear on this matter.

Ramban proceeds to bring a number of stylistic proofs from Talmudic language that a law derived through interpretation is treated as equivalent to a Torah law explicitly written in the verse. For example, in several places the Gemara says: “Let Scripture have remained silent about this and let it be derived by an a fortiori inference,” as in Babylonian Talmud, Zevahim 10a and parallels. Or: “A matter that could have been derived by an a fortiori inference, Scripture nevertheless took the trouble to write,” as in Babylonian Talmud, Pesahim 18b and parallels.³⁸ Or: “Let Scripture have remained silent about this and let it come by analogy from a paradigm case,” Zevahim 48b. And likewise with respect to juxtaposition, verbal analogy, and other methods.

C. The Talmud’s Legal Treatment

In many places the Talmud asks, “From where do we know this?” and then brings a source from interpretation. Such a derivation is treated as Torah law unless there is pressure to say that it is a mere asmakhta, a scriptural allusion or support. See, for example, Mo’ed Katan 3a and elsewhere.

This shows that an interpretation is automatically treated as yielding Torah law, and only occasionally is the possibility raised that it is merely asmakhta. It also shows that asmakhta is the opposite of ordinary interpretation. Yet according to Maimonides the two are really the same sort of thing, since both mechanisms express a situation in which there is no essential relation between the law and the verses, but only an associative hint in the verses toward the law.³⁹

Ramban adds, page 54, that in many places the Talmud asks, “For what purpose did this verse come?” and answers with an interpretation. Or, when one interpretation has already been offered, it asks what the dissenting view will do with the extra word that remains available according to that view. See the examples we gave in the previous chapter in discussing creative and supporting interpretations. All this proves that the Talmud assumes that an interpretation is on a par with an explicit scriptural source.

Ramban’s conclusion there is:

According to this, we should say the opposite: every matter derived in the Talmud through one of the thirteen principles is by Torah law, unless we hear them say that it is asmakhta.

In other words, in his opinion the truth is exactly the opposite of what Maimonides writes. Every interpretation is Torah law unless the Sages explicitly say it is not.

D. Additional Legal Consequences

After citing Maimonides’ responsum on the Laws of Marriage, pages 54-55, Ramban continues, page 55 and onward, to attack Maimonides on the basis of various legal consequences. For example, he argues that with betrothal by money, which according to Maimonides, Laws of Marriage 1:2 and the responsum there, is by the words of the Scribes, if another man has relations with her she is liable to stoning, page 55, and that betrothal by money entitles her to eat terumah, page 56. We have already answered these points above.

E. The Severity of Midrashic Laws

Ramban then, page 57, cites the Talmudic statement: “Do not regard verbal analogy as insignificant, for piggul is one of the central bodies of Torah law and Scripture taught it only through verbal analogy.” The same is said regarding notar and those liable to stoning, in Babylonian Talmud, Keritot 5a.

One may ask what exactly Ramban intends in this objection. Perhaps he means only a linguistic point: that the Gemara’s wording implies that the result of interpretation is equivalent to Torah law and is even regarded as severe Torah law. But perhaps he means that all of these have consequences such as liability to bring an offering or to be executed by stoning, which cannot be imposed on the basis of a rabbinic rule. Indeed, regarding the stubborn and rebellious son Ramban later says that he is flogged on the basis of verbal analogy, which suggests that this is his point here. So too from his words on pages 57-58 and 70 concerning the punishments for other prohibitions.

F. Midrashim That Innovate New Laws

After that, on page 57, Ramban notes that derivations through the hermeneutical principles do not merely explain scriptural verses, but sometimes generate genuinely new laws not written in the Torah. For example, the prohibition of one’s daughter born out of rape, and other forbidden relations.⁴⁰ His point here seems to be that surely even Maimonides would agree that an interpretation that merely explains a law in the verses yields a Torah law.⁴¹ But an interpretation that creates an entirely new law should, according to Maimonides, count as words of the Scribes, and yet we do not find such treatment in the Talmuds. Ramban similarly cites, on page 58, the derivation by an a fortiori inference that one must bless before food, which is treated there as Torah law.

This too can be answered by saying that in these laws there was also a tradition, and they therefore count as Torah law. The proof is that the Sages in those very passages classify the laws as Torah law; this is exactly the criterion Maimonides himself proposes. Ramban objects from those passages for precisely that reason. Still, his objection here is not entirely clear.

G. Laws Learned Through Inclusion

Further on, page 57, Ramban brings examples showing that laws generated by inclusion, such as the inclusion from the particle “et,” which Maimonides himself discusses in this root in objection 1, are also treated as Torah laws. His example is the inclusion in Babylonian Talmud, Sukkah 6a, where the laws of interposition are included from the word “et,” and the Gemara explains that there is a law given to Moses at Sinai that explains the rule of interposition derived there.

Here too Ramban’s objection is not entirely clear, because Maimonides himself agrees that a law given to Moses at Sinai that has a scriptural anchor is a Torah law. It is just that Maimonides would not call such a law “a law given to Moses at Sinai,” because for him that term is reserved for a law with no scriptural anchor. Perhaps that is Ramban’s very point.

Still, the matter requires attention. Here we are speaking of the law of interposition, which is learned by inclusion from the word “et,” while the specific content of the rule is only explained by the law given to Moses at Sinai. In light of the consideration we saw regarding betrothal by money in the Laws of Marriage, and see also our note above on the Commentary on the Mishnah to Kelim 17, it would seem that here Ramban is indeed correct, and such a law ought to count as rabbinic according to Maimonides, since its foundation is in an inclusion, which is rabbinic, while its detailed meaning comes from a law given to Moses at Sinai. One could answer, however, that here the Sages said it is Torah law, and the law given to Moses at Sinai merely explains it. That particular law given to Moses at Sinai indeed has no scriptural anchor of its own and is therefore rightly called such.

H. Considerations of Override

Thereafter, from page 68 onward, Ramban presents a whole series of laws learned by interpretation whose legal strength and force are as great as those of Torah laws, and perhaps even greater. For example, the burial of a neglected corpse, which overrides many prohibitions even though it is learned through inclusion, or perhaps this should count as exclusion, the exemption from levirate marriage learned by interpretation, page 70, and the days of ritual purity in women learned by interpretation, there as well.

In all these cases one could explain, in the same two ways we saw at the end of the chapter examining the difficulties in Maimonides’ own writings:
1. There is disclosure that the Sages transmitted a tradition, and therefore these are Torah laws.
2. These laws are part of already counted commandments, and the interpretation merely explains them; therefore all of them count as Torah laws, along the lines of Lev Sameach.

I. A Warning Derived Through Interpretation

After this, on page 72, Ramban cites the passage from Maimonides’ introduction to Sefer HaMitzvot, which we quoted above. There Maimonides states that where a prohibition is learned through interpretation, but the punishment is explicit in the Torah, punishment may still be imposed for that prohibition. He says this does not contradict the rule “we do not warn from legal inference.”

Ramban argues that these words are a mistake and a confused compromise. He explains that Maimonides here follows his general view that the hermeneutical principles do not generate Torah laws, and therefore a warning based on them does not count as a warning of a Torah prohibition. But Ramban proves that the phrase “we do not warn from legal inference” applies only to an a fortiori inference and not to all the principles.⁴²

J. The Relation Between Plain Meaning and Interpretation

After that, pages 74-78, Ramban turns to a highly central point in the disagreement: the relation between plain meaning and interpretation. We already explained above, at the beginning of the previous chapter, that this is the focal point of the dispute. As we saw there, Maimonides has no proof at all for his principle, and therefore it is not immediately clear what led him to innovate it against all the accepted views and despite all the difficulties. Our claim was that the deepest issue for Maimonides was his theory of interpretation: he held that only the plain sense can count as a true interpretation of the verses, and therefore only a plain-sense interpretation can count as Torah law. Interpretation of the other kind is something else entirely; it is certainly not an interpretation of the verses, and therefore it yields laws whose status is rabbinic. Maimonides writes here:

Their ignorance reached something even more difficult than this: when they find an interpretation in a verse from which it follows that one must perform a certain act or avoid a certain matter, and all these are without doubt rabbinic, they count them among the commandments even though the plain sense of the verse does not indicate any of those matters, despite the principle taught us by the Sages, may peace be upon them, when they said: “A verse never departs from its plain meaning.” The Talmud itself asks everywhere: “What does the verse itself speak about?” when they find a verse from which many things are learned by way of explanation and proof.

Maimonides therefore understands the expression “A verse never departs from its plain meaning” to mean that only the plain meaning is the interpretation of the verse. Interpretation in the derivative sense is not a legitimate interpretation of Scripture.

Ramban clearly understands that this is the heart of the matter, and writes:

The rabbi suspended this collapsing mountain upon a hair: he said, “The principle taught us by the Sages, may peace be upon them, is their statement: ‘A verse never departs from its plain meaning.'”

That is, Ramban understands that Maimonides’ whole “mountain” depends on this. Everything begins and ends here. Ramban argues that this is only a hair, and therefore Maimonides should not hang so great a mountain upon it.

To explain why this is only a hair and therefore Maimonides’ mountain is “a collapsing mountain,” Ramban directly attacks Maimonides’ basic conception of interpretation, from which everything follows. He says that Maimonides’ fundamental assumption is that any text can have only one interpretation. Ramban himself thinks this is false; in reality a text may bear several different interpretations simultaneously. Ramban writes, page 78:

So too everywhere that they interpreted it in the manner of parable and figure, they believed that both are true: the inner and the outer.

And he writes further at the end of his remarks on this subject, also page 78:

This is the meaning of their statement: “A verse never departs from its plain meaning.” They did not say: “A verse has only its plain meaning.” Rather, we have its interpretation along with its plain meaning, and it does not depart from either of them. The verse can bear all of them, and both are true.

It should be emphasized that Ramban does not mean merely that there can be disputes over the correct interpretation, with each side proposing its own reading of the same verses. He means that several interpretations can be true simultaneously, according to the very same view. In other words, he claims that the plain meaning and the interpretive derivation are not competing interpretations, but different layers of interpretation of the text, and both together constitute correct interpretations of it, “inner and outer,” as he says, in the sense of “the judgments of the Lord are true, righteous together.”

We thus have here an important focus, perhaps the main one, of the dispute between Maimonides and Ramban. According to Maimonides, every text has only one correct interpretation, and anything else cannot count as an interpretation of the text. According to Ramban, by contrast, there may be several different interpretations of the same text, and all may be true simultaneously.

Maimonides brought proof of this from Talmudic expressions in several places: “A verse never departs from its plain meaning,” and “What does the plain sense of the verse refer to?” Ramban therefore immediately goes on to explain these two types of Talmudic expression. Here the basic approaches of Maimonides and Ramban to the theory of interpretation, at least biblical interpretation, come clearly into view. We will discuss this topic in Appendix V at the end of the book.

From this account a difficult question immediately arises: according to Maimonides, are the laws learned through interpretation simply not true? Do they not correctly describe the intention of the verses? If so, why do we accept them at all? Maimonides himself senses this and raises the question immediately after setting out his view of the relation between plain meaning and interpretation. He answers with the expression that midrashic laws are “branches from the roots.” In the next section we will explain his intention in greater detail.

K. The Status of a Law Given to Moses at Sinai

Thereafter, page 78, Ramban objects to Maimonides’ view, stated in the responsum he himself cited above on page 54 and elsewhere, that even a law given to Moses at Sinai is counted as “words of the Scribes.” He brings several proofs from the Talmud that laws transmitted to Moses at Sinai have the status of Torah law. This is not the subject of the root, and therefore we will not expand on it here, though later we will explain this too within Maimonides’ general system of classifying laws.

Summary of the Discussion of the Talmudic Aspects

In this section we have seen several main lines of Ramban’s attack on Maimonides. There are laws learned through interpretation that the Talmud clearly treats as Torah law in force: they override prohibitions, one is punished for them, they permit otherwise forbidden situations such as menstrual impurity and the eating of terumah, and so on. There are also stylistic proofs that the Talmud treats interpretive derivations as sources equivalent to Torah law. A warning derived through the hermeneutical principles counts as a full warning. We have already addressed responses to some of these objections in the course of our discussion. The theory of interpretation held by Maimonides and Ramban, which probably lies at the foundation of the entire issue, will be discussed in Appendix V at the end of the book. The objections concerning the status of laws given to Moses at Sinai are not our direct concern here.

In the next chapter we will present two prominent examples of attempts to give a full account of Maimonides’ view in these matters. In the following section we will present our own proposal, and most of the objections we have raised will thereby be resolved.

Chapter 5: Proposed Solutions Offered by the Commentators

Introduction

We will conclude the present section by presenting several directions of solution proposed in explaining Maimonides’ view. Beyond the disagreements among medieval and later authorities already discussed, as Rabbi Rabinovitch notes at the beginning of the introduction to his book cited above, and Neubauer in his own book, see for example page 75, almost none of Maimonides’ commentators offer an interpretation that takes account of the full range of aspects of the problem. As we have already seen, there are several distinct aspects that must be examined when we seek to determine Maimonides’ intention: the conceptual aspect, the aspect of agreement with the Talmudic sources, and the aspect of consistency with what is said throughout Maimonides’ writings, in both content and language.

If we approach the problem in this way, we must examine all these aspects together from a comprehensive perspective, and not merely find a local answer to each difficulty arising in one place or another in Maimonides’ writings, as most commentators do. This way of approaching the matter is characteristic of modern interpreters of Maimonides.⁴³ Accordingly, in this section we will briefly present three of the proposals formulated in this broader way, each arriving at a different overall conclusion. We will then try to offer our own path for explaining Maimonides’ view in this difficult subject.

Neubauer

Neubauer concludes from his study that Maimonides’ view is unquestionably that the force of laws derived through interpretation is rabbinic. His main basis is Maimonides’ language in the second root, where he does not coin a separate term for such laws, but simply uses the term “rabbinic,” or “words of the Scribes.” As noted, this is also how Ramban understood him.

Yet we have already mentioned that Neubauer explains that Maimonides relies here on his position in the first root, where, according to Neubauer, though our conclusion there was different, he holds that rabbinic commandments and prohibitions have Torah force because of the prohibition “do not deviate.” Neubauer therefore explains that there is no conceptual problem in saying that laws derived through interpretation have rabbinic status, since rabbinic laws too are ultimately Torah-based. He himself acknowledges that the Talmud reflects a different position, but leaves that as a contradiction between Maimonides and the Talmud.

This approach is problematic from several directions. First, the contradiction with the Talmud cannot simply be left standing without explanation, especially when Maimonides himself employs criteria based on the Talmud in order to determine what is rabbinic and what is Torah law. Second, our conclusion in the first unit was that according to Maimonides rabbinic prohibitions are indeed rabbinic, and only when one defies the authority of the Sages does one violate the Torah prohibition of “do not deviate.”

It should be noted that Ramban himself, who understood Maimonides on the first root the way Neubauer does, nevertheless protests vigorously against Maimonides’ words in the present root. Ramban simply ignores the connection between the two roots, and it is not entirely clear why.

The greatest difficulty is that according to Neubauer’s proposal, laws derived through interpretation do not preserve their original character. For example, the commandment “The Lord your God shall you fear” — which is interpreted to include reverence for Torah scholars — would, on Neubauer’s reading of Maimonides, have to become a Torah prohibition rather than a positive commandment of revering Torah scholars. One who violates it violates the prohibition of “do not deviate.” More than that: when one fears Torah scholars, one does not thereby fulfill any positive commandment at all, but merely avoids violating a prohibition. In other words, all such laws would cease to be positive commandments and would involve no positive fulfillment of any kind. Maimonides never even hints at this, and as noted, Ramban too ignores the point. It certainly stands in direct conflict with what emerges from the Talmud.

Even if we say that there is also a positive commandment to obey the Sages, still all commandments derived through interpretation would have a single uniform force, either as a prohibition, or as a prohibition plus a positive commandment. In any case they would not retain their substantive character.

In principle, one might perhaps suggest that the prohibition of “do not deviate” teaches that the Sages have authority to interpret the Torah, and therefore when they include reverence for Torah scholars within reverence for Heaven, the commandment derived through that inclusion remains a positive commandment of revering Torah scholars. But that fits reasonably well with our proposal in the first unit, not with Neubauer’s own explanation. He understands that one who transgresses a rabbinic commandment literally violates “do not deviate,” not that “do not deviate” merely reveals a power vested in the Sages.

It should be noted, however, that we already pointed out at the beginning of the previous unit that both Maimonides and Ramban agree that the verse “do not deviate” does indeed ground the authority of the Sages to interpret the Torah and derive laws. Their dispute is only about rabbinic enactments and decrees. If so, it would seem unavoidable to conclude that one who violates a prohibition or positive commandment derived through interpretation also violates a Torah prohibition. This point will be discussed in the third unit, where we will examine the claim of the Minhat Hinukh that there is a double prohibition in laws derived through interpretation: both “do not deviate” and the law itself.

Neubauer himself concludes by restating the conceptual problem raised by Ramban, discussed in the third chapter:

Such is Maimonides’ method. But we must admit that whether we explain it in one direction or another, we cannot escape the impression that his system does not sit so well, for it is difficult to accept his construction that the halakhic interpretations based on the thirteen principles are for the most part words of the Scribes, even though the principles themselves were transmitted for use by our Sages from God.

Another problem in Neubauer’s account is that he cites the view of the Tashbetz and the Maggid Mishneh and calls them forced interpretations. He argues against them that they shift all of Maimonides’ words onto a theological and meta-halakhic plane, rather than the legal plane of force and status of midrashic laws. But his own account ends up doing something very similar. In practice the whole issue becomes merely theological and meta-halakhic, since it concerns something with no real legal consequence. According to Neubauer, after all, the force of these laws is Torah law in any case. He thus falls into the very thing of which he accused his predecessors.

Rabbi Rabinovitch

Rabbi Rabinovitch reaches the opposite conclusion. He argues, in line with most traditional decisors and commentators, that Maimonides is speaking only about the question of source and not about the question of force.

The law at the opening of the Laws of Marriage concerning betrothal by money is the only case for which we possess explicit testimony from Maimonides himself that its basis lies in the second root, and that its classification as “words of the Scribes” is due to the fact that its source lies in a verbal analogy. This therefore serves as the most important touchstone by which to test Maimonides’ intention. Ramban in his glosses indeed assumes that according to Maimonides a woman betrothed with money is not liable to stoning and does not eat terumah.

Yet Maimonides himself rules stringently in doubtful cases involving betrothal by money, even though in doubtful rabbinic matters one rules leniently. See, for example, Laws of Marriage 3:10 and elsewhere. This conclusion fits the approach of the Tashbetz and the author of Dorot HaRishonim, followed by most commentators on Maimonides and by later decisors. The main proof of Dorot HaRishonim is from Laws of Marriage 3:20, where Maimonides writes: “The rule of money is a Torah rule, and its interpretation is by the words of the Scribes,” though see the Kesef Mishneh there, who emends the wording.

The author of Dorot HaRishonim argues that even so there remains a difference between Torah laws and laws derived through interpretation, and not only regarding the enumeration of the commandments. In his view, with respect to laws derived through interpretation, the supreme court in any generation may interpret and derive differently, because this is not the body of Torah received from Sinai.⁴⁴ Yet a rebellious elder who rules and acts against the decision of the great court in his generation is executed with respect to both types of law. But, as already noted, the author of Dorot HaRishonim assumes that all interpretations are only supporting interpretations, so his remarks certainly cannot explain Maimonides’ view.

Rabbi Rabinovitch brings another proof for the Tashbetz from a different source. In the Laws of Rebels 4:2 Maimonides writes:

And how can there be a matter that leads to another matter for whose intentional violation one is liable to karet and for whose unintentional violation one must bring a sin-offering? … If they disagree in a matter of monetary law … according to one view, since this man owes that man, whatever he took he took lawfully and by authority of the court. According to the other view, which says he is exempt … whatever he took is robbery in his hand, and if he betrothed a woman with it she is not betrothed. According to the one who says that he rightfully took what was his, one who has relations with her intentionally incurs karet, and if unintentionally must bring a sin-offering. Thus the matter leads to another matter for whose intentional violation one is liable to karet and for whose unintentional violation one must bring a sin-offering.

It is clear from Maimonides’ wording that betrothal by money, even though at the opening of the Laws of Marriage he calls it “words of the Scribes,” takes effect by Torah law. Therefore one who has relations with her intentionally is liable to karet, and if unintentionally must bring a sin-offering.

As Rabbi Rabinovitch notes, there are no textual variants in this law, and it was written even before Maimonides decided to alter the wording in the Laws of Marriage, and even that change does not seem to express a substantive shift of position. It therefore proves that the legal force of midrashic laws that Maimonides calls “laws by the words of the Scribes” is Torah law.

On the basis of a discussion of the laws of meat and milk, Rabbi Rabinovitch concludes that for Maimonides “words of the Scribes” means a law that is the result of the decision of a court, and not of a received tradition, whether by means of the thirteen principles or by independent reasoning, in a case where the plain meaning of Scripture can bear another interpretation as well. Where the plain meaning of Scripture does not bear such an interpretation and there is no tradition, no court has authority to say that this is the Torah’s intention; if it does so, it violates the prohibition against adding to or subtracting from the Torah.

Rabbi Rabinovitch concludes that there are three differences between a law whose interpretation is by the words of the Scribes and a law received from Sinai:

1. With respect to the enumeration of the commandments: a law received from Sinai, if not already included in another commandment, is counted among the commandments. He brings examples from negative commandments 135 and 194.
2. What is learned through the thirteen principles may be interpreted differently by a later court than by an earlier one, unlike a law received from Sinai.
3. One who disputes a law learned through the thirteen principles does not violate the prohibition against adding to or subtracting from the Torah.

Rabbi Rabinovitch concludes his article with a discussion of a linguistic question: why did Maimonides not coin a special term for laws of the Scribes whose force is Torah law, in order to distinguish them from ordinary rabbinic laws, that is, enactments and decrees? The issue becomes sharper in light of Maimonides’ wording in the Commentary on the Mishnah to Kelim 17:12, which we will cite below, where he explicitly notes this double meaning:

When they say “by the words of the Scribes,” the meaning may be either a received explanation of the Scribes, like all interpretations and laws received from Moses, or an enactment of the Scribes, like all enactments and decrees.

Rabbi Rabinovitch answers that this is due to the uncertainty we have with respect to every law learned through interpretation: is it a full interpretation, or merely asmakhta? Therefore Maimonides does not distinguish between these two types of law and does not assign a separate term to each.

Rabbi Rabinovitch’s interpretation is also problematic in several respects.

1. First, he does not adequately address Maimonides’ own distinction. Maimonides distinguishes between laws transmitted from Sinai and having a scriptural anchor, which are Torah law, and laws lacking one of these two conditions, either tradition or an interpretive scriptural anchor, which are rabbinic, or words of the Scribes. In fact, Maimonides does not distinguish normatively between laws transmitted by tradition and those not transmitted by tradition, except for the empirical point that in laws transmitted by tradition, whether they have a scriptural anchor and are Torah law or lack one and are rabbinic, there was never any dispute. This is not a normative distinction, meaning that it is forbidden to disagree, but an empirical one. The only normative distinctions are those between Torah laws and rabbinic laws. The question is therefore: what are the distinctions between these two categories? At first glance, they seem to differ only with respect to the enumeration of the commandments. The last two distinctions proposed by Rabbi Rabinovitch are not distinctions between Torah laws and rabbinic laws, but between laws backed by tradition and laws lacking such tradition.

If so, we are back once again at the claim that the discussion in the second root is purely semantic and not substantive, and the difficulties we raised with respect to the Tashbetz remain in force. In his conclusion Rabbi Rabinovitch distinguishes between laws transmitted by tradition and laws derived through interpretation, but this does not seem to be the distinction Maimonides himself is making in this root.

1. Rabbi Rabinovitch does not address the second type of laws that Maimonides classifies as “from the Sages”: a halakha (Jewish law) given to Moses at Sinai. As we have already noted, these are laws regarding which we possess a tradition, but which have no anchor in Scripture. Why was no unique term assigned to them? Can they too be confused with other laws? More than that: why are they not ordinary biblical laws, even for purposes of the enumeration of the commandments?

2. The main conflation is between derivations regarding which we have a tradition and derivations regarding which we have no tradition. If so, all the laws learned through interpretation should have been included under a single heading. But that cannot be correct here, since some of them are biblical laws and some are rabbinic laws.

3. Rabbi Rabinovitch does not explain why the conjunction of tradition and an exegetical anchor in Scripture changes the status of the law, when either the anchor or the tradition, each on its own, yields laws whose force is only rabbinic.

In the final analysis, this proposal too does not resolve most of the central problems involved in explaining Maimonides’ view.

Henshke

David Henshke, in his series of articles in Sinai, offers his own interpretation of Maimonides’ words. We shall describe it here briefly and point out its shortcomings as well.

At the beginning of his first article, “On Legal Reality” (Sinai 92), Henshke rejects the Tashbetz’s interpretation of Maimonides and explains that Maimonides means exactly what he says: laws derived by exegesis are rabbinic laws. He then addresses two difficulties raised by this claim. First, it is entirely clear from several places in Maimonides’ writings that a woman betrothed through money is betrothed by biblical law, and one who has intercourse with her is liable to death. The second difficulty concerns the laws of impurity, where there is a contradiction between Maimonides’ rulings:[^187] in Mishneh Torah, Laws of Naziriteship 5:15, Maimonides rules that a Nazirite receives lashes even for impurities for which he is not required to shave, whereas in Mishneh Torah, Laws of Corpse-Impurity 3:3, he rules that these impurities are not biblical. From both contexts it emerges that these rabbinic laws have the same practical consequences as biblical laws. This requires explanation: how can one receive lashes or other punishments for rabbinic laws?

To explain these two difficulties, Henshke proposes the following argument. One must distinguish between reality and legal status. Some rabbinic determinations amount to determinations of reality, while others are essentially determinations of legal status. The ruling that a certain mode of acquisition is effective on the rabbinic level is a legal determination; therefore, a rabbinically recognized acquisition can also be effective on the biblical plane. By contrast, classifying a given labor on Shabbat as a rabbinic prohibition does not “carry over” to the biblical plane, because this is a matter of defining some concrete act as labor. When the Torah prohibited labor on Shabbat, it intended to prohibit a defined set of actions, which are a physical reality. Any labor newly introduced by the Sages will not enter that category.

By contrast, when the Torah requires that the four species be “yours,” that is, legally owned by you, it is not stipulating a reality but a halakhic requirement: the Torah requires that each person have ownership of the four species with which he fulfills his obligation. Here, if the Sages enact an additional mode of creating ownership, there is no reason it cannot be effective on the biblical plane. The Torah did not establish a reality-based requirement, which is inherently rigid, but a requirement of legal status. Legal status is not tied to any independently fixed reality, and therefore it is not absolutely fixed. Hence, if the Sages decide that another act of acquisition also creates the required legal status, this is simply another way of producing the same legal status. In such a case one can fulfill the biblical obligation through it. Once the Sages enact that this act acquires the object, the legal relationship between me and it exists, and the Torah’s law applies accordingly. The concept of ownership has no factual content beyond the status of ownership itself, and therefore it can be determined by the Sages as well.⁴⁵

Henshke goes on to argue that, according to Maimonides, impurity too is a halakhic status, though not necessarily a legal one, and not a state of reality. Therefore a rabbinic enactment, or a rabbinic derivation concerning impurity, can likewise count on the biblical plane. In his third article, “Second-Degree Impurities,” he continues the same line with respect to impurity and states there (p. 62):

“Rabbinic impurity is effective on the biblical plane.”

Henshke concludes his first article with an analysis of what this approach implies for the philosophy of halakha. His claim is that Maimonides understands halakha as a nominalist rather than a realist system,⁴⁶ that is, as a tool for regulating human life that operates upon a given reality, but does not itself reflect any physical or metaphysical reality. By contrast, his critics understood halakha itself as reflecting reality, and therefore they also drew a categorical distinction between biblical and rabbinic laws.

This approach of Henshke raises several problems and leaves many difficulties unresolved. We will not review here all the difficulties we have raised, some of which he does not address at all, but we will briefly note a few prominent points.⁴⁷

First, it should be noted that in explaining Maimonides’ intent he does not depart from the path of Nahmanides and his school, namely, that Maimonides is speaking of laws that are rabbinic both in source and in force. His entire discussion is devoted to resolving the difficulties raised by two passages—betrothal by money and impurity—in which Maimonides, on this reading, appears to hold that these laws enjoy a status equivalent to that of biblical laws. Yet Nahmanides’ approach is problematic not only because of the contradictions in Maimonides’ own formulations and references, but also on conceptual grounds, especially in light of the Talmudic sources discussed above. Moreover, on Henshke’s reading Maimonides introduces no innovation at all in scriptural interpretation; his main innovation concerns the question of the nominalism or realism of halakha. He likewise locates the disagreement with Maimonides at this point, even though it is quite clear that this was not the only issue on which his critics disagreed with him. We have already seen that both Maimonides and Nahmanides understood the disagreement between them as rooted in a hermeneutical question of interpretation.

Beyond all this, it is unclear how Henshke would explain the fact that when Scripture explicitly states a punishment, the associated prohibition inferred from it thereby becomes a biblical law. It is also unclear how the conjunction of tradition and exegesis changes the legal status of the law in question and turns it into a biblical law. As we have seen, and will continue to see, Maimonides constantly links the question of source to the question of legal force, whereas on Henshke’s reading there is no connection between them.

In addition, it is not clear what, in this respect, the real difference is between interpretive derivations and enactments. Henshke states quite clearly that even enactments that create a legal status rather than a reality will have the status of biblical laws. But this is not what we find in Maimonides’ words here, even if Henshke’s specific proof regarding impurity has some merit. After all, these laws are discussed in Root One, and even if one understands Maimonides there as referring to biblical laws, that would be for a different reason—not because of nominalism, but because of the commandment “do not turn aside.” Yet that commandment applies to derivations as well, so why should it not transform derivations too into biblical laws?⁴⁸ As we shall see below, these considerations and others necessarily lead to a conceptual revision in Maimonides’ understanding of halakha, whereas Henshke operates within the existing and accepted conceptual framework.

Beyond all this, there is no hint in Maimonides’ words of the entire move Henshke proposes. Nominalism as such may indeed be inferred from some of Maimonides’ formulations—and even here some of Henshke’s proofs can be questioned, though this is not the place—but the application of this conception to the principle of the second root has no basis at all in Maimonides’ wording. Where do we see here that his entire innovation lies in the nominalism of halakha?

Moreover, the underlying logic of the distinction between legal status and reality is itself far from self-evident, which only sharpens the difficulty: despite the problematic nature of this distinction, Maimonides himself makes no effort whatsoever to explain it or connect it to the present discussion. When the Sages introduce a labor as rabbinically prohibited on Shabbat, why should we not say that once they have determined that this too counts as labor, the Torah’s prohibition “you shall not do any labor” applies to it? On the contrary, it is precisely in matters of reality that there is greater room to understand the Sages as affecting the biblical plane. For example, it is well known that according to some decisors, one who causes another person to transgress a rabbinic prohibition violates the biblical prohibition of “placing a stumbling block before the blind.”⁴⁹ This is a legal determination by the Sages, yet its effect on the law is not at the level of legal status but precisely at the level of factual reality. The enactment has created a new “stumbling block,” and its characterization as a rabbinic law has no bearing on its factual characterization as a stumbling block. It is no less real than a physical pit or bad advice, and therefore it is precisely on the level of reality that it enters most easily into the biblical plane.⁵⁰

Summary

Thus, the three proposals we have presented here do not provide an adequate account of Maimonides’ words, and it is difficult to see in them an exhaustive, systematic, and comprehensive explanation of his position. In the next chapter we shall propose our own interpretation of Maimonides’ words, which, it seems, resolves all the difficulties we have raised both from within his position and against it.

Footnotes