Gate Seven: The Philosophical Foundation — The Synthetic A Priori

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

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The Philosophical Foundation: The Synthetic A Priori

In this gate we will examine the parallels among several moves described in the earlier parts. We saw one move in jurisprudence, another in hermeneutics, another in the interpretation of halakha (Jewish law), and another in the interpretation of Maimonides’ understanding of halakha. As we shall see below, all of them are rooted in a general philosophical move, together with its social and ideological expressions, along the analytic-synthetic axis. All of them are built in a similar dialectical form, which begins from two opposed and incomplete poles—a situation of a “short blanket,” which, however one pulls it, can never cover the whole body—and continues, or perhaps ends, in a synthesis that explains the entire picture, a “fitting blanket.” This synthesis is a kind of middle way, a “third way” (see Appendix J at the end of the book).

After presenting these parallel moves, we will understand the problematic issues that accompanied the various discussions in halakha and in jurisprudence, as presented in the previous parts, and we will ground the “third way” that we proposed in all those places at the philosophical-principled level. We will see that the common move underlying all of them rests on a fundamental logical move that lies beneath all these processes: both the confusion and the dispute, and the unification and discovery of a middle way. From here the synthetic conception will re-emerge, touching every field: halakha, jurisprudence, hermeneutics—that is, the general theory of interpretation—and epistemology and philosophy in general.

The first three books are devoted to a fuller account of the philosophical foundations of these matters. This book completes them into a “quartet” by adding the halakhic, interpretive, and legal dimensions to the general analytic-synthetic move. Here, of course, we cannot lay out the entire philosophical move in detail, but only indicate its main lines and discuss its relevance to the full range of areas mentioned above. Because of the limitations of space, the philosophical discussions will be very abbreviated and at times insufficiently argued. Our purpose here is only to point out the connections and implications that the picture presented in the previous books has for everything said here. Readers interested in fuller detail and argument are referred to the first three books.

Chapter 1: Chapters in Dialectics

Introduction: What Is a Dialectical Process?¹

As noted in the opening, in this chapter we will describe several of the processes discussed in the earlier parts. We will find a similar dialectical structure in all of them, a fact that opens the possibility of finding for all of them a similar foundation and conceptual framework that will make sense of all these processes: the opposing views, the errors, and finally also the solution of the “third way” type.

For what follows, let us define schematically what a dialectical process is. At the beginning of such a process there is one dominant dogmatic position. After some time, an opposing position arises, apparently more rational, which presents the picture in dichotomous terms and forces the participants in the process to find themselves at a crossroads where they must choose between two presented alternatives. On the one hand, both paths have something to them, and neither can simply be abandoned. On the other hand, neither answers all the difficulties, and neither provides a full account of the entire picture. At a certain stage, therefore, the dilemma appears inescapable. The problem can be described as a “short blanket”: pulling it in either direction does not provide an answer that “covers” the whole body. What is needed is an inspired solution that points to some hidden assumption accepted by both sides and explains why it can be relinquished, thus yielding a satisfactory solution that covers the whole body. Such a solution always arises by discarding an assumption accepted by both extreme sides—usually the very assumption from which the sense of polarity itself emerges.

At this third stage, some of the contending sides sometimes adopt a solution that appears to be a “third way”—that is, an alternative to the two dichotomous paths over which they had disagreed at the beginning of the process. But if we look carefully, we will see that at least some of them are not really adopting a genuine “third way.” Often what we find is simply a continuation of the assumptions prevalent in the previous era, together with a change of direction: the problems are ignored and reformulated in a way that creates the illusion that they have been solved. A real solution must show us why the basic picture is not truly dichotomous, and that is what a “third way” solution is.

We will see these stages in all the areas with which we deal. We will identify each of these stages, and in the next chapter we will try to indicate the camps and positions that genuinely adopt a “third way” solution, as opposed to those that merely use the terminology of a “third way” while concealing the earlier system of assumptions—in other words, pseudo-solutions.

The Halakhic Dialectic: Maimonides’ Method

The situation with regard to the halakhic conceptual system appears fairly calm. There is a seemingly clear dichotomous distinction between Torah law and rabbinic law (see also Appendix Z at the end of the book). At a certain point Maimonides arrived and raised—albeit implicitly—a difficult question about this pastoral picture: why must one obey the Sages? If there is no source in the Torah commanding this, why should one heed their voice at all?

Given the assumptions prevailing at that stage, one could proceed in one of two ways: either find a source in a verse of the Torah and then become entangled in the question of how the hierarchy between Torah law and rabbinic law is generated; or fail to find such a source and remain with the basic difficulty—both empirical, since it was obvious to everyone that one is obligated to obey them, and essential: why must one obey the Sages? In the first section we elaborated at length on these two paths, and we saw that we are dealing with a short blanket: neither of them answers all the difficulties satisfactorily. The problem was that everyone remained captive to the conceptual framework that had prevailed before these difficulties emerged: legislation yields rabbinic laws, and specification yields Torah laws. What was needed was a “third way” solution that would challenge the very traditional, seemingly clear division between Torah law and rabbinic law.

At this point Maimonides presented his revolutionary proposal—at least, that is how we suggest understanding it here. He refused to distinguish between the question of source and the question of validity, and as a result the division between Torah laws and rabbinic laws lost much of its meaning, at least on the plane of validity. Maimonides argues that this distinction is not so sharp, and that the entire halakhic reality—which was of course fully accepted by him as well—can be explained within a new conceptual system, one that provides a “longer blanket” and can answer all the difficulties. He redefined the concepts of Torah law and rabbinic law in light of the source of the laws, and then established rules for deriving validity from source, by way of the meanings of command and essence. Such a dialectical move took place both in the first root—between specification and legislation—and in the second root—between interpretation and legislation.

Second-Order Dialectic: Interpreting Maimonides’ Method

The situation described in the previous section is what prevented commentators on Maimonides from recognizing the significance of the revolutionary step he had taken. They too remained captive to the accepted dichotomous conceptual framework, and therefore they divided among themselves along the same two polar directions—but this time with respect to interpreting Maimonides’ own words, rather than with respect to halakha itself. This was expressed both in interpretations of the first root and in interpretations of the second root.

With respect to the first root, the accepted interpretation of Maimonides’ view was that anyone who transgresses a rabbinic command has in fact committed a Torah transgression. The explanations offered for the hierarchy were merely local apologetics: “they themselves enacted it and they themselves limited it,” and the like. But, as we described above, this does not seem to have been Maimonides’ own intention. He did not mean that every violation of a rabbinic law is a violation of Torah law, for in the second section we saw that even one who violates midrashically derived laws has not committed a Torah transgression. We saw there that Maimonides intended an intermediate status: rabbinic laws do not possess Torah-level validity—unless the person rebels against the authority of the Sages—but they are derived from the Torah through a dynamic authorization relation, in Kelsen’s terminology. We saw how their normative standing can be proven from the prohibition against rebellion. The mechanism was branching out from the commandment “You shall not turn aside,” as an alternative to specification or to mere scriptural support—that is, legislation at varying levels.

Thus, the dialectical process with respect to the first root began with two distinct poles: either rabbinic laws are a specification of “You shall not turn aside,” in which case their status is that of Torah law; or they are new legislation, in which case their status is different, namely rabbinic law, and any linking of them to verses is at most a mere scriptural support. In the end, however, it becomes clear that Maimonides’ intention is to abandon the dichotomy underlying this division. In his view, rabbinic laws have an intermediate standing: they are neither specifications of the prohibition “You shall not turn aside” nor wholly unrelated to it; rather, they branch from it.

Neubauer describes a parallel historical dialectical process through which the interpretation of Maimonides’ words in the second root passed. At the beginning of the process, the tendency was to interpret Maimonides literally: midrashically derived laws are rabbinic laws. Thus Nahmanides understood him, and so too the Rashba and the Rivash understood him (see Neubauer, pp. 29-30). For this reason all of them were so strongly opposed to his words, since they saw in them a serious deviation from the halakhic picture that emerges from the Talmud. Later a new camp arose, one that continues in the traditional halakhic world to this day, whose principal leader was the Tashbetz. These thinkers interpreted Maimonides in the opposite direction: his intent was that midrashically derived laws are Torah laws, and that his entire discussion concerns only the source of the laws, not their validity.

In the course of the discussion, intermediate approaches also developed—”limited reinterpretation,” in Neubauer’s terminology: Maimonides meant some kind of intermediate level; or the term “words of the Scribes” reflects something different from both “Torah law” and “rabbinic law.” This is indeed a middle approach—though at the terminological level it is certainly incorrect, as we have already noted—but it still uses the same conceptual system. There were also ostensibly “intermediate” views that explained Maimonides to mean Torah law, but with some practical leniencies as compared to ordinary Torah law; some also distinguished among the different methods of drash (interpretive derivation).

According to our proposal, in the end Maimonides chooses a “third way” solution here as well. He changes the conceptual system itself and is not prepared to recognize the concepts “Torah law” and “rabbinic law,” at least not in their usual sense. In his view there is a continuum of levels, not merely two. Levels of validity depend on differing degrees of connection to the biblical text. Here Maimonides abolishes the dichotomy between Torah law and rabbinic law. According to him, none of these levels can be discussed sweeping and a priori. Each level is defined by its own characteristics, and its halakhic implications must be considered through local, substantive considerations. As we have seen, this is a very deep conceptual revolution, and therefore it is a full-fledged “third way” solution according to our definitions above.

Here too the confusion among the commentators arose from the fact that they were captive to a certain conceptual system that seemed to them binding and self-evident. But if one understands Maimonides as we do, it turns out that the conceptual system underlying the discussion must itself be changed. Let us note that in theoretical terms this is a deeper change than what Nahmanides saw in Maimonides’ method, even though its halakhic consequences are less revolutionary. The conceptual revolution is meant, among other things, to preserve most of the halakhic consequences as they appear in the Talmud itself. As we saw, this revolution does have some halakhic implications, but their number is minor compared to what Nahmanides thought he saw in Maimonides’ method.

The Dialectic in the Theory of General Interpretation: A Schematic Introduction to Hermeneutics²

The next dialectical process is the one that occurs in the general theory of interpretation. The subject is vast, and we will touch only on those aspects parallel to our discussion here.

The theory of interpretation, or hermeneutics, deals with the interpretation of various objects. It began with the interpretation of Scripture, and later of other sacred writings. It then moved on to interpretation in general, such as the interpretation of works of art of various kinds, and after that to the interpretation of many other kinds of things.

The interpretive act involves three main factors: the author or creator, the composition or work, and the interpreter. The interpretive act concerns the question of how meaning passes—if at all—from the author, through the work, to the interpreter. We will see that throughout history, hermeneutical approaches have disagreed chiefly over the question of where, among these factors, the focus of the interpretive act is located.

In the early period of hermeneutics, when it dealt mainly with the interpretation of sacred texts, the basic approach was the naive one: the meaning of the text is what the author intended to embed in it. This parallels natural law, which believes in our ability to know what morality commands. Later a rationalist critique arose, undermining our ability to descend into the depths of the author’s intentions, because of differences of language, expressive capacity, and broader cultural and contextual differences.

Some described this problem in terms of the “hermeneutic circle.” When an interpreter approaches a book—or indeed any other object, since contemporary hermeneutics no longer deals only with books—he can try to extract from it the meaning as he understands it. What indication does he have that the meaning he has found is indeed the author’s intention? He has only the book itself, and the author is generally no longer accessible to him. So the indications by which he judges whether he is right or mistaken are also found in the book itself. This is a circle from which there is no escape. The source of the interpretation is the book, and the supposedly “independent” indication of the correctness of the interpretation is also the book itself. This logical loop is called the “hermeneutic circle.”³ This is essentially the same critique we presented above against natural law, based on the relativity of values.

A different hermeneutical approach therefore developed, one that sees interpretation as a tool for investigating the intention of the text itself, not necessarily the intention of the author. This is the positivist approach. According to it, we have no access to the author and his intentions, but what we seek is the meaning of the text as such. This approach is of course not exposed to the attack of the hermeneutic circle, but it too pays a considerable price: what is the meaning of a text as such? In what sense is that an objective meaning? Does such a meaning exist at all? What are we even seeking here? Our simple intuition is that the meaning we find in a book is also, in one way or another, what the author intended us to find in it. This approach runs against intuition.

Within this approach several types of argument were developed, the most prominent of which is structuralism. According to this view, meaning is determined in the text through the spirit of the era and society in which the author lived and worked. The author himself was not aware of the meanings he embedded in his book, because he functioned as an unconscious conduit for ideas and conceptions that were products of the period in which he lived and acted. In this way it becomes possible to create a concept of the meaning of a text as such, detached from the author. It seems to me that the resemblance to Dworkin’s ideas is not accidental.

This interpretive positivism tends to use only deductive interpretive tools, since any other tool is speculative and does not expose what is present in the work itself. After Dworkin’s correction, one must add to the interpreted text the structures that accompany it, but the context remains positivist.

Yet this approach too pays a heavy price, since our intuitive feeling remains that what we seek is the author’s own intention, and that we sometimes succeed in finding it. Why seek the ideas of an era through a book written by an author of that era? Even if we assume that an era deposits ideas in the works produced within it, why assume that this is really the “meaning” of those works?

Because of these problems, a rebellion arose out of and against the second, structuralist approach, and its result was a third approach: deconstruction. According to this view, whose most prominent representative was Jacques Derrida, we give up all these elusive concepts of meaning. We do not seek the author’s intention, nor the meaning of the text, since we have no chance of attaining either, and it is not even clear that either truly constitutes the “meaning” of the work. What we seek is the meaning of the text as it is perceived by us. That is, the focus is not in the author, nor in the book, but in the reader—or the interpreter. More bluntly: what we find is what we were looking for. We have already noted that this direction closely resembles the picture drawn by Aharon Barak, according to which there are no norms before the interpreter extracts them from the statute book—that is, the text. The interpreter does not interpret norms but creates them. They do not exist in the law book but are generated in the interpretive act.⁴

This path too drew much criticism. Our simple intuition is that we are looking for something in the work itself. There are discussions about the meanings and qualities of various works, and people sometimes change their minds following such discussions. How can this be reconciled with a view according to which everything is subjective and nothing has any objective meaning? If the meaning of the text is nothing more than what I found in it, then I am always right.⁵

Thus, in hermeneutics too we find a process similar to the one we saw above. At first the naive approach is adopted: everything is located in the work, and one can extract from it even the creator’s intentions. Then a challenge arises, pointing to the difficulty of extracting from the work itself the meanings that were present in the author—the hermeneutic circle. From here two approaches develop:

1. Structuralism. This holds that meaning is in the work itself, and we are not seeking the author’s intentions at all. This is a highly rational approach, and it parallels positivism. We deal only with what is defined, clear, and sharply delineated; everything else is irrelevant to the discussion.
2. We seek not even the meaning in the work, but only what is generated in the interpreter’s consciousness. On the face of it, this is a conceptual revolution, since it denies the very concept of objective meaning. Yet, as we shall see, there is a hidden conservatism here that leads to all the problems this approach raises.

Is there a dialectical way to find a different hermeneutical direction, a “third way”? To do so, we must examine the last two approaches, which clearly assume the same conceptual world. Both agree that one cannot arrive at the author’s intentions from the work alone—that is, that only deductive tools are genuinely revelatory—and the only question is what the alternative is. Each proposes a different object of inquiry. In our terms: each pulls the “short blanket” in its own direction, but neither provides a satisfactory answer to the full range of hermeneutic problems. As noted, the blanket both are pulling is too short. Our intuition tells us that even if we are seeking the author’s intention, we do have a way of reaching it through the work.

To answer these problems, then, we must look for a solution that constitutes a conceptual revolution. We must in some way reject the conceptual framework within which the problem arose, without paying the corresponding prices.

One obvious possibility is to return once again to our intuition—the very source of most of the difficulties in the two approaches under discussion—and ask what it is really telling us.

What the two approaches we have seen share is the assumption that ampliative tools—that is, tools that go beyond what is contained in the interpreted text itself—cannot count as revealing its meanings. Only deductive interpretive tools are accepted as revealing the author’s intention, or the meaning of the book. But our intuition tells us otherwise. It seems entirely possible to reach meanings latent in a book even by means of synthetic tools, despite the uncertainty involved in them. How can this be done?

Apparently, through the interpreted book we succeed in creating an immediate connection with its creator. We have a way to “leap over” the barrier of cultural and linguistic difference and reconstruct the author’s original intention. In terms borrowed, as it were, from Husserl’s phenomenology, one might say that the book itself is “transparent.” Through it we glimpse the general ideas that underlie it. This is “eidetic intuition,” by which we discern general essences through concrete objects. According to this approach, interpretation is the formulation and conceptualization of those ideas that we “see” (see further below, in Chapter 4). Gadamer calls this a “fusion of horizons” between reader and author (see the above-mentioned article by Mautner).

This may sound mystical, but it accords very well with all our ordinary intuitions. On the face of it, it also raises no principled problem at the theoretical level—the “mysticism” involved will be discussed below in Chapter 4. The only question—the one from which the whole discussion set out—is how these general ideas can be seen at all. Does one of our senses perceive them? And if not, then apparently they are the product of an operation of our intellect, taking place entirely within us. If so, what guarantees that the result of this subjective activity actually corresponds to objective factual truth? This question belongs already to epistemology in general, which undergoes a very similar process. That process will be described below in Chapters 3-4, where we will try to answer this difficulty in a general way.

Before moving on, it is important to understand the connection between the process we have described in hermeneutics and the earlier processes described in the halakhic context.

In fact, both the halakhic picture and the picture described in jurisprudence are only concrete expressions of the general hermeneutic process we have just described. Halakha deals with the interpretation of Torah verses. Rabbinic laws branch out from “You shall not turn aside.” There the question arises how one can see a connection between them and that source, and how they can thereby receive a lower halakhic status. This too is a question about a branching relation between them and their Torah source.

In the context of midrashically derived laws, the point is even clearer. These laws are derived from verses through methods of drash that, as we saw, have an analogical-synthetic character. Here too we are dealing with a kind of hermeneutics. Hence a typical hermeneutical question arises: what is the status of the results of the process of interpretive derivation? What is their relation to what is found in the biblical text itself? Are they revealing interpretation, or renewed legislation? Have we reached the author’s intention, or created something of our own?

The view that these laws are a case of revealing interpretation is, ostensibly, the accepted naive approach. But this approach raises the question: how can expansive interpretation be revealing? If it goes beyond what we see in the work, then we have gone beyond what is in it. How can such a move be assumed to reveal? This is essentially the problem of the hermeneutic circle: how can we know that we have indeed hit upon the intention of the author—that is, of the Holy One, blessed be He? Hence the view that these laws are a case of renewed legislation rests on the difficulty of seeing how methods based on analogy can reveal meanings that are contained within the biblical text itself, or within the author’s intention. Here we arrive at the deconstructionist position, according to which we are not really revealing anything at all, but only seeking what the text says to us. Any connection between the interpretive derivation and the meaning of the text itself is accidental.

There is indeed such an approach in relation to halakha, and it even seems to fit what is common in the traditional yeshiva world of learning.⁶ But in truth, when one examines the yeshiva approach, this is not what it means. There too I proposed—in my above-mentioned article in Akdamot 9—a “third way” approach, based on intuition as a tool of eidetic perception.⁷

The Dialectic in Jurisprudence

As we have seen, a similar process takes place in law as well. Legal interpretation is another example of hermeneutics. There too we are dealing with interpretation, and therefore the same questions arise concerning the reliability of interpretation, or the relation between the “laws” that branch from it and the original statute—that is, the interpreted text.⁸

We saw that in the naive approach, the interpreter simply succeeds in reaching the legislator’s intention. After that, we saw a challenge arise to the possibility of doing so. The basis of the challenge lies in the subjectivity of synthetic—that is, non-deductive—methods of interpretation. Positivism, which parallels structuralism, holds that only deductive-analytic interpretive methods are legitimate. In its view, only what is in the text is law, and everything beyond that is arbitrary—although, according to some positivists, there is at times no avoiding such arbitrary judicial legislation. Therefore, any interpretation based on synthetic-analogical modes of inference is treated as suspicious and subjective. Analogy, which cannot in practice be avoided, is interpreted by positivists as an enthymematic deductive inference—a defective formulation of ordinary deduction.

Yet it is intuitively clear that no legal and judicial system actually operates this way. Beyond this, there are considerations of limiting the arbitrariness of the legislator. Hence from here one may proceed in one of two directions: either accept that one cannot attain the true meaning of the law except through deduction. Deduction is entirely clear as a disclosure of what is contained in the law itself, and therefore raises no problem. Everything else is understood as illegitimate, or as an expansion of the law on grounds of policy, broad discretion, or judicial legislation. None of these are interpretive methods; they are legitimate methods of expansion. Or else one gives up altogether on the aspiration to interpretive reliability—that is, on the desire to hit upon the meaning of the law.

It thus seems to be agreed by the holders of these positions that expansion cannot disclose what is latent in the law itself. Even more modern positions accept the positivist assumption that synthetic interpretation cannot count as a reliable disclosure of what is found in the law. Dworkin’s positions are exceptional, but as we saw above, even they do not give such expansive disclosure great weight. The main considerations are balancing, the expression of just values, and not merely legal technocracy. Discussion of interpretive reliability is almost absent.

It should be noted that we saw there are several good reasons for this. In the general legal world, the legislator is a rather amorphous figure. It is hard to see whose intentions we are supposed to uncover: the person who enacted the statute, the one who voted for it, the one who drafted it? Or perhaps a fictive virtual legislator who expresses the spirit of the nation or society?

This last formulation, which in Dworkin is called the “coherent political theory,” comes as close as civil legal thought can to the synthetic conception presented here. According to it, the law is not merely the set of principles written in the statute book. That is only enacted law. There are also principles, or policy considerations, that express the will and intention of society as a whole, the society that sent legislators to legislate. The interpretive act seeks the meaning of that legislation, not only of the enacted statute.

Thus, the only possible way to find syntheticity in legal thought is to define a different concept of law: not enacted law alone, but law in a broader sense, as the normative system expressing the desires and values of the society with which we are dealing.

In this sense, Dworkin can be treated as holding a synthetic position. Yet such a position is closer to what we called in the hermeneutic discussion “structuralism,” since Dworkin proposes to build his theory of meaning on the structures embedded in the virtual law. These structures are inserted into it by the spirit of the age, or by the society in which the law was formed. In this way he generates meaning out of nothing, just like the structuralists.

As we saw above, the possibility of defining law in this way exists only in a society with basic value cohesion. In fragmented and divided societies, such as Israeli society, it is far harder to treat such interpretation as reflecting the values of society as a whole. There the structures are not well-defined, and this creates a broad arena in which a judge can do as he pleases and attribute it to the spirit of the law and society. In such a condition, the sounder policy in legal interpretation is to adhere as closely as possible to positivism and legal formalism. Here one must adopt the critiques of the subjectivity of natural law and return, so far as possible, to a formalist framework that binds everyone.

That framework should contain as little subjective synthetic content as possible, content that is open to social dispute. When a court nevertheless tries to exercise Dworkinian discretion in such a setting, we should not be surprised to find severe criticism arising against it on precisely those grounds.

Summary: The General Structure—Dialectics as a Process of Maturation

The processes we have described in this chapter are very similar in character. In the first book—especially in Chapter 1 of the third gate there—this dialectical process is described as a kind of maturation undergone by many individuals, and indeed by Western civilization as a whole, in their personal spiritual and intellectual biographies.

Every child begins life in a naive state of trust in what he is told by parents or teachers. After some time he matures and becomes an adolescent, and then he begins to rebel. This is the “rebellion of youth.” At this stage the adolescent demands proofs for everything. He experiences himself as a rational being—or more precisely, a rationalistic one—who is no longer willing to do anything without proofs and reasons.

In time the adolescent matures further, and toward the end of adolescence he comes to see that he cannot prove anything. No important principle or value, whether ethical or aesthetic, has a rigorous—that is, analytic-deductive—proof. The reason is simple: every proof rests on premises, and premises by definition are not themselves provable. Thus the entire intellectual enterprise stands on the shaky legs of principles that cannot be proved and are therefore arbitrary.

At this crossroads, on the threshold of adulthood, two paths are open to the adolescent:

1. To continue holding the assumption that only proven things are valid, and therefore conclude that from his point of view there are no valid claims at all. This is the path of postmodern maturation. We discover that precisely from an excessive demand for proof and rationality, we arrive at nihilistic skepticism. Positivism, which is a stage of an essentially adolescent character, easily oscillates between these two opposites: arbitrary dogmatism and skepticism.
2. To ask what hidden assumption lies at the basis of both positions he has set in opposition to one another: childish dogmatism and rationalistic youth, and then try to throw that assumption away. After a bit of searching, one can see that the assumption is that an admissible claim is only a valid claim—that is, a claim for which we have a proof. This assumption divides the world into two dichotomous categories:
   a. The dogmatic category, which advocates claims that are not valid—that is, not provable.
   b. The rationalist category, which, after maturation, advocates nothing at all.
   But one can mature differently from the path described in section 1. One can abandon this assumption itself and find a “third way” solution. One can create a conceptual system in which “admissible” does not coincide with “provable.”⁹

When someone is in the state of adolescent rebellion and encounters an adult of the second type, it is unsurprising that he regards him as just another childlike dogmatist—someone still stuck in the first stage. Therefore he protests against his dogmatism and demands proofs. The reason is that the adolescent has not yet experienced the stage of maturation that comes after youth, and therefore he identifies the third stage, which he now encounters, with the first stage that he has already passed through. To the naked eye, the two really do look very similar. Both are dogmatic, and neither provides proofs for its claims or values. But there is a great difference between them: one is a child, and is indeed dogmatic. The other does not accept claims uncritically, but his criticism does not proceed by way of proofs alone; it also proceeds by synthetic means—through analogies and inductions, and through various rhetorical tools. See the next chapter.

The process of maturation described here is in fact the skeleton of the dialectical process we have described above in all the various fields. There, however, it is the maturation of an intellectual-cultural community. When a basic thesis stands against an antithesis, and both constitute a short blanket, one must seek an assumption shared by both and discard it.

With respect to legal systems, we saw that the process begins with natural law—Aquinas—which treats values and evaluative truths as given facts. Positivism in its various forms criticizes it on precisely this point, especially around the subjectivity of values: we have no proof or empirical observation that confirms or refutes them.¹⁰ This stage parallels the non-rationalistic religious beliefs and cults that characterized early humanity.

The adolescent rebellion yields crude positivism—Kelsen, Austin, and Hart—which expresses the stage of youth. At this stage there is a naive belief that the entire legal system can be put on a “scientific” basis, especially in Kelsen. After some time one matures further and sees that there are values that, though they cannot be proved or observed, are nevertheless not really disputed, and whoever departs from them acts wrongly. Values are the fundamental claims in ethics, just as axioms are in the factual sphere.

Thus there are truths here that cannot be proved. This is the arrival at the crossroads of maturity. Historically, this occurs in the middle of the twentieth century—this is how Perelman describes it in Chapter 3, after the Second World War. And this is how we described the parallel philosophical aspect in the first book, especially in the third gate.

At this point two options of “maturity” open before adolescent jurisprudence:

1. A maturation that shifts the subject of discussion from interpretive truth and disclosure to policy and extra-interpretive considerations. It grants legislative powers to courts, against all legal logic—as we saw, Dworkin himself notes this. This is postmodern maturity, parallel to the deconstructionist approach in hermeneutics. It is connected to the pragmatist approach in American philosophy,¹¹ and it is no surprise that it is dominant specifically in American law, and that it has generated, as we saw, pragmatist and deconstructionist approaches in jurisprudence.
2. A synthetic maturation, akin to certain nuances in Dworkin, from which a synthetic spirit emerges. That is, a maturity that means believing one can continue speaking about interpretation and fidelity to enacted law by disclosing contents through synthetic interpretive tools, not only analytic-deductive ones. This is the disclosive expansion that we saw in Maimonides and Nahmanides. This process parallels the eidetic approach in hermeneutics. Just as one can create contact with the author, so too one can create contact with the text and its author. This approach discards the assumption shared by the two earlier sides, namely that only deduction is a revelatory tool—that synthetic tools cannot reveal.

Yet this kind of maturity, the second kind, can appear in two different forms:

1. Nahmanides understands that there is here a process of disclosive expansion. The working tools are synthetic, but everything must still be found in the law itself. This is eidetic seeing in halakha.
2. Maimonides, by contrast, takes one further revolutionary step: a dialectic within a dialectic. Maimonides holds that the methods of drash contain an expansion that does not exactly reveal what is found in the biblical text, yet is also not renewed legislation. This expansion creates laws whose relation to enacted law—that is, the Torah—has an intermediate status: between specification and mere textual support and speculation, or what we have called “branching.” Maimonides sees the methods of drash as analogical tools whose operation creates laws that are not the disclosure of what is present in the verses, but the disclosure of layers related to the verses at varying levels of connection. In Kelsen’s terms, this is a static authorization relation, but its character is not necessary, that is, not deductive. The product is not contained within the law itself, but only related to it in some way. This differs from rabbinic legislation, whose contents are not related to the verses at all, and whose connection to them is an ordinary dynamic authorization relation.

This is the essence of Maimonides’ conceptual revolution in the language of jurisprudence: Maimonides innovates that there are static authorization relations of an analogical-synthetic kind, and not only deductive relations as Kelsen assumed. Of course, at that point it is no longer clear whether they should still be called static. They contain something of the interpreter’s personality and values, yet they grow out of the interpreted text, “like branches from roots,” unlike the legislation of decrees and ordinances. This is also why his commentators failed to grasp his view, since they all operated within the more naive dichotomous conceptual world. They all asked whether these are rabbinic laws—that is, dynamic authorization relations, a kind of legislation—or Torah laws—that is, static authorization relations, a kind of interpretation. The answer lies between those two possibilities: this is legislative interpretation.

Pseudo-“Third Way” Solutions

We have already noted that in the process of maturation there appear pseudo-“third way” solutions—solutions that preserve the assumptions that preceded them and use semantics to create the appearance of a solution.

The rhetorical techniques that Perelman treats as techniques for arriving at agreement, as discussed in the previous gate, are understood in this approach as the way to arrive at normative truth. Rhetoric, on his view, is supposedly an alternative to logic, since logic cannot handle values. But a deeper look shows that he did not give up the positivist assumption that only deduction can reveal truth. He merely proposes abandoning the disclosure of truth and adopting rhetorical techniques in order to create agreement. This is only the appearance of a “third way.”

In the synthetic approach, rhetoric is not merely a means of creating agreement but a way of persuading people of claims and values. This is intellectual persuasion, not manipulation. The claim is that logic is not the whole of the matter, and it is wrong to think that truth is disclosed only through logical means. As we have seen more than once, synthetic tools—that is, rhetorical rather than logical tools—can be revelatory. According to the synthetic approach, when agreement emerges, that is a sign that we have reached a domain that belongs to the objective, agreed-upon part of the normative framework. Thus, agreement is a reflection of truth, and in no sense a substitute for it.

In practical terms, the picture is not very different from Perelman’s. According to our approach, the judge will use the same rhetorical tools—that is, non-deductive inferential tools—of which Perelman speaks. He will also attempt to secure agreement among his listeners or readers. But the logical-philosophical meaning of the process is entirely different: it is a striving for normative truth, not for agreement as such.

Another alternative is proposed by legal thinkers such as Karl Llewellyn and Stanley Fish and others, who look for a way to define legal objectivity more “softly.” For this purpose they create phenomenological concepts such as an “interpretive community” or “objectivity within an interpretive community of jurists,” and the like—see Mautner’s above-mentioned article. Through these they try to express the distress felt between legislation and interpretation, and to propose a conceptual system in which there will at least be some sense of the objectivity of the interpretive act in law, and an appearance that interpretation discloses meanings. But to do this they redefine objectivity itself. This is a pseudo-“third way” solution, because in fact it merely supplies a more convenient conceptual system for absorbing the fact that this problem has no real solution.

Is there a genuine, and not illusory, “third way” in the context of values? How can one reach it? Are rhetorical techniques nothing more than tools for generating emotional bias, or are they rational tools that attain truth in some sense? Is there such a thing as a rational value judgment, or a reasonable value choice, or is value choice always arbitrary?

We dealt with these questions at length in the third book. There we saw that if we adopt the Husserlian solution, which posits the possibility of “eidetic intuition,” we can grasp norms and values as a certain kind of facts, exactly as in natural law theory. There is a human mode of perception that succeeds in discerning “normative facts.” These are not concrete facts, but they do have some objective existence. These facts involve inherent vagueness. At times there are disagreements about them, and it is very hard to prove or persuade regarding them. Yet there remains a sufficiently broad framework of agreement that indicates that some objective dimension is present here. This claim is presented at length in the third book, and this is not the place to return to it.

The synthetic tools discussed here, then, are not tools of interpretation but tools of perceiving reality. Contrary to Perelman’s picture, the judge engaged in evaluative and normative inferences is “observing” normative reality, and after understanding it and what it demands of him, he then uses those same rhetorical techniques of persuasion and agreement. In the third book we explained that these techniques are meant to bring listeners to “see” the normative reality as he sees it, and agreement arises when the judge succeeds in doing so. When all of us agree about something, that is a sign that all of us “see” it in the same way. We elaborated on this point in the third book and will not return to it here.

Barak’s “solution” is also a pseudo-“third way” solution. The meaning that Aharon Barak and legal theorists give to the term “judicial legislation” is an expansion performed by the court under authority, based on dynamic authorization relations—that is, delegated power. In that sense they choose the alternative kind of maturation: they preserve the adolescent premises, according to which synthetic tools cannot reveal. But in Maimonides this is a kind of expansive interpretation that reveals additional dimensions within the law itself. That is why we called it legislative interpretation, not judicial legislation. This is the essence of the dialectical process in halakha that we have described in this book.

The Synthetic A Priori

We now move to the stage of the solution. We will see that the justification for the claim that the synthetic can be revelatory parallels the philosophical justification for the synthetic a priori, with which we dealt in the first and second books. Beginning in the third chapter we will attempt to ground the “third way” type of solution—halakhic, hermeneutic, and legal syntheticity—on the foundations of the approach described in the first book.

We will see below that all these matters converge on the problem of the synthetic a priori from the Kantian school. As we proceed, we will note that there are two principal ways—at the stage of full maturity—of relating to the synthetic a priori: the transcendental-Kantian path, chosen by Barak and Perelman in the discussions here, and the synthetic path, which we propose throughout the entire quartet.

Chapter 2: The Analytic and the Synthetic

Introduction

In this chapter we will present several basic concepts from Kantian philosophy. These will serve us in describing the universal process that underlies the processes we encountered above. The discussion will be brief, and we will deal only with the points needed for our subject. For more detail one may turn to the beginning of the first book.¹²

Hume’s Problems

The British philosopher David Hume raised several fundamental problems concerning the methodology of science. The main ones were the problem of induction and the problem of causality. Hume argued that a person, or a scientist, who observes some causal event—a cause producing an effect—can perceive with his senses only event A and event B, but cannot perceive through any of the senses the causal relation between them. For example, when someone sees a pot placed on a fire, and immediately afterward sees that the food cooks and changes, he indeed sees both events—the placing on the fire and the cooking—but he cannot in any way see the relation of causation between those two events. If so, how do we know that such a relation really exists between them?

As stated, the observation of the two events cannot lead to a conclusion about the existence of a causal relation. The temporal succession might be accidental and not due to any causation. Beyond that, it is not even clear whether there is any such thing as causation at all in any context, since we have never perceived such a relation with our senses. If so, the very concept of “causation” may itself be a fiction. This was indeed Hume’s conclusion. In his view, causal relation is a human fiction that, for whatever reason, it is convenient for us to use, but it does not reflect anything in the objective world. In the objective world there is only constant temporal succession between these events.

Hume repeats this argument with respect to scientific generalization, the problem of induction. In his view, the principle of induction has no basis: how do we know that what has happened up to now will continue to happen in the future? Causality is sometimes offered as a justification for induction, for if event A is the cause of event B, then whenever event A occurs, event B should occur as well. Thus causality could serve as a basis for induction. But, as noted, causality itself is also rejected by Hume as a kind of fictive principle, indeed a fictive concept. It therefore cannot serve as a basis or justification for induction.

More generally, Hume claims that induction and causality are products of our intellect, and therefore cannot serve as tools for making claims about the world itself. As an empiricist, he held that what is produced in our own mind cannot be a reasonable basis for attaining insight into the world. Such insights can be achieved only by direct observation of the world. Intellectual analysis, and the use of conceptual and logical structures, testifies only to the existence of certain structures in our thinking, and no more.

The problems Hume raised deeply troubled the philosophy of science, down to our own day. If there is no causality and no justification for induction, then a great deal of science’s content cannot be logically justified.

The Synthetic A Priori

Kant is regarded as the thinker who saved scientific method from the Humean threat. To analyze and solve the problems Hume raised, Kant divided judgments according to two distinct classifications, each of which distinguishes between two kinds of judgments:

1. Logical classification: Kant’s first distinction is between an analytic judgment and a synthetic judgment. An analytic judgment is one whose entire content consists in analyzing the subject of the judgment—for example: “This ball is round.” Roundness is a property derived from the very fact that it is a ball, that is, from the concepts involved in the judgment, and no additional information beyond the definition of the concept is needed in order to see that the judgment is true. By contrast, a synthetic judgment combines what arises from analysis of the subject with additional information, such as: “This ball is heavy.” Heaviness is not a property that follows from the mere fact that this is a ball, and therefore one must combine additional information, beyond the definition of the concept ball, in order to see that this judgment is true.
2. Epistemological classification: Kant’s second distinction is between an a priori judgment and an a posteriori judgment. An a priori judgment is one that can be known without recourse to experience, such as: “Between two points only one straight line passes.” It is therefore non-empirical. By contrast, an a posteriori judgment is one that can be known only by means of experience. An example would be: “The sun rises every morning.”

As can be seen from these definitions, analytic judgments do not make claims about the world. The analytic judgment is simply an analysis of its subject, and therefore contains no further information about the world beyond what is already included in the definition of the subject under discussion. Hence, any judgment that says something about the world is a synthetic judgment. Kant argued that all of Hume’s problems are merely different faces of one single general problem: are synthetic a priori judgments possible? We now explain this further.

The distinction between analytic and synthetic judgments lies on the axis of sentence structure. Is the judgment engaged in analyzing its subject, or in combining the subject’s properties with additional external information? In essence, this is a discussion in logic. It is a question about the way the intellect operates when it constructs and understands these two kinds of judgments. By contrast, the distinction between a priori and a posteriori judgments belongs to epistemology. Epistemology deals with the question of how, if at all, we know the reality outside us. An a priori judgment is one for whose knowledge no empirical observation is required. An a posteriori judgment is one that does require observation.

The two Kantian distinctions appear different from one another and independent: one belongs to logic and the other to epistemology. On that basis we would expect four independent categories of judgments to emerge: analytic a priori, analytic a posteriori, synthetic a priori, and synthetic a posteriori.

When we examine these categories more closely, it turns out that two of them seem very natural: the analytic a priori and the synthetic a posteriori. The reason is that an analytic judgment requires no addition of information beyond what is latent in the definition of its subject, and therefore it makes sense that it would not require experience. Thus, the analytic is a priori. By contrast, a synthetic judgment requires additional information beyond what is latent in the definition of the judgment’s subject. Where are we to get that additional information, if not from analysis of the subject itself? It is reasonable to think that it comes from experience.

For example, when we say that this ball is heavy, that is a synthetic judgment. It is not a mere analysis of the concept “ball.” Someone familiar with balls could not on that basis alone say that this particular ball is heavy. So how do we know that this ball is indeed heavy? Presumably by some sort of observation or measurement: we saw it, weighed it, and so on.

What of the other two categories, analytic a posteriori and synthetic a priori? The category of analytic a posteriori is implausible. If a judgment is analytic, why would we need experience in order to see that it is true?¹³

By contrast, the situation with synthetic a priori is somewhat less clear. On the one hand, if a claim is synthetic it requires the addition of information. But the assumption that information can be added only through observation does not seem absolutely necessary.

Kant himself argued that this question expresses, in a comprehensive form, all of Hume’s doubts. The problem of causality arises from the fact that one cannot know cause and causality empirically. Thus the claim that event A is the cause of event B is an a priori claim: it does not arise from observation. On the other hand, it is a synthetic claim, that is, it adds information about the world beyond what I saw in observing the two events. It speaks about the relation between them, and that is something beyond the information contained in the mere fact that they occurred one after the other. Causation is a concept that carries additional content beyond the determination of temporal succession between events.

Empiricism and Rationalism: The Synthetic A Priori

In certain respects, what we have here is simply another presentation of the rationalist-empiricist problem. There is an ancient philosophical dispute concerning the way we acquire information about the world. Is it done mainly through reason—rationalism—or through observation and the senses—empiricism?

The Humean problems concern scientific generalizations. For example, the law of gravitation, which states that all bodies possessing mass attract one another through gravitational force: do we learn this from experience? It may be that experience and empirical observation yield only particular facts, while the generalization cannot be obtained from those facts alone, since it contains information beyond them. It would seem, then, that the generalization is produced by the intellect, and the facts are merely some sort of catalyst for it.

We can now see that scientific generalizations are all synthetic a priori judgments. The generalization is a claim that contains information about the world beyond the collection of particular facts we know from experience, and therefore it is received through the intellect, not by observation alone. It is an a priori judgment. But at the same time it plainly makes a claim about reality, and is therefore synthetic. The problem of the synthetic a priori is this: how can we learn something about reality—that is, make a synthetic claim—through an operation of the intellect rather than through cognition, that is, a priori? Intellectual operations occur within us, whereas cognition is a relation with the world outside us. How can we know something about the world not by observing it through the senses?

As we noted, the a priori-a posteriori distinction belongs wholly to the domain of cognition, whereas the analytic-synthetic distinction belongs wholly to the domain of intellect. The former belongs to the empiricist sphere and the latter to the rationalist sphere. The problem is how an integration between these two functions can arise. How can there be judgments that are simultaneously intellectual and cognitive? In these terms, we can formulate the question as follows: can we know the world through the intellect? Why do conclusions produced in our intellect correspond to what actually happens in the world?

Kant argued that this possibility indeed exists. Were it not so, science and its laws would have no real meaning, nor would the acquisition of information about the world in general. But, as Hume himself had already asked, what exactly justifies the confidence we place in scientific generalizations? They do not arise from experience—they are not a posteriori—and they concern the world—they are synthetic—so it seems they cannot arise from intellect alone. If so, whence and how do we nevertheless learn these generalizations? This was Kant’s comprehensive formulation of Hume’s questions.

The Analytic and the Synthetic: Arguments and Positions

In the first book we divided forms of inference into two kinds:

1. Deductive inference, which has an analytic character.
2. Analogical and inductive inferences, which have a synthetic character.

In analytic inference we derive necessary conclusions from the data before us. The necessity of the inference follows from the fact that it tells us nothing beyond what was already latent in its premises. An analytic inference merely analyzes what is already latent in the premises and brings it out; therefore whoever knows the premises is compelled to accept the conclusions as well. But there is no analytic way to establish the validity of the premises themselves. Premises, by virtue of being premises, are unsupported claims.

By contrast, every innovation concerning the world is new knowledge, not previously known before the inference was made. Such knowledge is acquired through synthetic inference, that is, through analogy and induction. In analogy, we infer a property of object A from the existence of that property in object B. This is new information that was not already known to us from the data we had about object A. The same applies to induction, which gives us knowledge about an entire class from knowledge of a collection of particular facts known to us.

The terminology “analytic” and “synthetic” for these two kinds of inference is borrowed directly from Kant. An analytic argument contains nothing beyond analysis of its premises—that is, the given data. A synthetic argument adds further information beyond what is latent in the subject matter and the premises.

We also drew a corresponding distinction between two philosophical positions:

1. The analytic position is a philosophical stance that accepts as valid only those claims for which we possess an analytic proof.
2. The synthetic position is a philosophical stance willing to recognize the legitimacy of grounding claims through synthetic arguments as well.

The Synthetic A Priori in the Philosophy of Science

In the second book we saw that the main dispute between these two positions is fought out in the philosophy of science. “Actualism,” in Ze’ev Bechler’s terminology in his book Three Copernican Revolutions, is the position that only what is present before our eyes—what is actual—is valid and can be spoken of. The peak of this view is logical positivism, which dominated European thought in the first half of the twentieth century. According to the actualist, theoretical entities are not actual entities, and therefore they do not really exist. Only the observed facts constitute the real content of science. Such a position empties science of its essential content and sees it only as a sophisticated collection of facts. Theory and its entities have no genuine status.

Opposed to actualism stands a synthetic position, which Bechler calls “informativism.” This position is willing to accept even unproven claims as legitimate and valid, and theoretical entities—non-actual entities—as existing. According to it, theoretical entities for which we have strong empirical indications probably do exist in themselves.

The actualist holds that the theoretical entities that constitute scientific theories do not exist at all. They are fictions of our thought that help us organize the body of scientific facts in a more convenient and efficient manner. According to this view, the electron does not exist, nor does gravitational force or the various force fields. All these are theoretical creatures that cannot be directly observed, and therefore the actualist concludes that they are constructs created for and within scientific theory.

According to actualism, scientific theory does not constitute knowledge about the world, but only a convenient and efficient description of the totality of facts known before the theory. On this view, science does not progress in any essential way over time; it merely accumulates more and more facts and arranges them in structures suitable for organizing and handling such a large mass of facts. There is no progress in substantive knowledge.

This sounds almost like science fiction, or some mystical theory, yet it is a widespread approach in recent philosophy of science. As I show in the second book, even those who do not agree with it, such as Bechler, do not really offer an alternative explanation to the basic problems within the informativist approach—problems such as Hume’s and their analogues—which gave rise to these positions. At most they produce pseudo-“third way” solutions that do not genuinely solve the Humean difficulties. The assumption that only observation can yield information about the world remains untouched in all these positions. At times pragmatic considerations replace substantive ones. True, there may be no valid claims at all, but the pragmatic game can continue without real justification. In the sixth gate of the first book we pointed out that pragmatism is part of this postmodern analytic position.

But something disturbs this tranquil game. Our clear intuition is that science really does progress. We do have different ways of reaching broad truths about the world, and of confirming or refuting the existence of theoretical entities. There may be no clear justification for this, but there is no doubt that science does progress, and that its theories have empirical content of their own. It is not difficult to see that the claim that scientific theories themselves are empty of empirical content has no substance. See the second book.

The need to build a genuine “third way” therefore becomes ever sharper. Something in the conceptual system is evidently not properly constructed, and it is what leads us to the crossroads of the synthetic a priori and leaves us with no visible way out. We must propose a conceptual framework within which an alternative maturation can be defined, one that will solve the problems and provide a blanket long enough to cover them.

The Basic Dialectical Process

The two poles in the basic dialectical process we are describing here, then, are empiricism and rationalism. These are two positions that attempt to explain how we arrive at general scientific conclusions, or normative-evaluative conclusions, or conclusions in general. But neither succeeds in covering the whole body. It is unclear how we draw conclusions at all—in science, and certainly in the spheres of values and norms, what Perelman calls “reasonable choice”—whether within the rationalist picture or within the empiricist picture. This is a “short blanket.” So how can this vicious circle be broken? The only way is to discard the assumption shared by both conceptions: that there is a sharp distinction between thought and cognition.

Back to the Analogy Between Philosophy of Science and Jurisprudence

At the beginning of the book’s introduction we noted an analogy between the pair thought-cognition in philosophy of science and the pair legislation-interpretation in jurisprudence, both in halakha and in general law. Thought occurs inwardly in the mind, without interaction with the world. Therefore its conclusions cannot match what happens in the world as such. Cognition is observation of the world, and therefore its results can yield claims about the world itself.

Interpretation is the result of “observing” legal facts—that is, the law. Therefore its results can match what is found in the statute book. Legislation, by contrast, is done within the legislative body, “inside the mind,” and therefore has no inherent relation to legal reality—that is, to the existing statute book. Thus, the same problem of the synthetic a priori that exists in the philosophy of science also exists in jurisprudence. Can there be an expansive, synthetic act whose results somehow fit the facts—that is, the meaning of the law? The analytic position says no; the synthetic position says yes. The problem here maps onto the question of the synthetic a priori, only now within jurisprudence. Is expansive interpretation possible as disclosure—that is, cognition—and not creation—that is, thought?

To answer this, we must return to the philosophy of science and ask what is done there with the problem of the synthetic a priori. Afterward we can apply that answer to the relation between interpretation and legislation, or between expansive and analytic—that is, deductive—interpretation in jurisprudence.

As we saw, in the philosophy of science there is a clear intuitive sense that there is such a thing as cognizing thought—that is, a way to reach information about the world through the intellect. Likewise in jurisprudence there is a sense that expansive interpretation is not arbitrary, but rather reveals something. Yet the philosophical problems in both fields are severe, and we must examine how they can be solved. The third way is the justification of the synthetic a priori. We are looking for a middle path between the two dichotomous poles, one that will solve both problems. Such a solution must bind together the two worlds: cognition-thought in the philosophy of science, and legislation-interpretation in jurisprudence.

Chapter 3: Justifying the Dialectical Synthesis: Two Kinds of Synthetic A Priori

Introduction: The Fit Between the Human Mind and the World

In this chapter we will repeat points already made in the first and second books. After presenting Kant’s solution to the problem of the synthetic a priori, we will propose our own solution. In this way we will close the circle of this book and of the entire quartet, and show how the synthetic constitutes the only possible alternative in jurisprudence as well. It is the only path that preserves our intuitions without the problems that threatened them—a blanket long enough to cover the matter.

As we have already noted, the problem of the synthetic a priori can be presented as the problem of the fit between the human mind and the world in itself. How can concepts, principles, and methods drawn solely from our own thinking—such as causality and induction—lead us to know the world? The products of our thought are a function of the structure of our thinking, whereas the true laws are not dependent on the structure of our minds.

Kant’s Proposal: The Synthetic A Priori in Its First Sense

In the first book we presented Kant’s solution. In order to explain this fit, Kant created what he called his “Copernican revolution.” The naive approach, that of Hume, sees cognition and the human mind as standing opposite reality as such. It assumes that the object of scientific study is reality in itself. But Kant held that this is not correct. He argued that the reality with which science deals, and indeed with which human cognition in general deals, is reality as it is reflected in our cognition—the phenomena—whereas reality as it is in itself, the noumena, is utterly inaccessible to us.

Scientific cognition, then, deals with a world that is also built upon the foundations of our own thought and cognition. Every picture of an event, occurrence, or scientific phenomenon does not describe the world in itself, but the world as it is reflected in our cognition, after passing through processes of filtering and processing that result from the structures of our thought.

Thus, Kant argues, it is no wonder that we discover that our forms of thought do indeed fit what occurs in the world. What occurs in the “world” does not really occur in the world as such, but in our cognition, and therefore it is no surprise that these occurrences are subject to constraints that fit the structure of our intellect and thought.

Not by chance does this picture remind us of Aharon Barak’s description of the interpreter’s work. Barak explains that the interpreter creates norms out of the statute book, which is a kind of raw material. He holds that before interpretation there are no norms at all, just as Kant held that before thought there is no reality to be known. The facts with which science deals are reality as processed by the scientist’s thinking. And correspondingly, in jurisprudence the legal facts with which the judge deals are not the bare statute book, but the book after the interpretive treatment given it by the judge or interpreter.

The Critique of Kant

Kant’s move is a brilliant intellectual achievement. It is also clear that it contains much truth, for significant parts of the scientific picture in our cognition are indeed products of our thought and cognitive tools. Yet it is equally clear that it cannot be the whole truth. As we show in the first book, Kant’s proposal cannot explain the entire range of scientific cognition.

There are many critiques of Kant’s proposal, some of which were presented there, and therefore we will not repeat them here. We will add only one sharp criticism, found in Hillel Zeitlin’s On the Border of Two Worlds, in the chapter “Lev Shestov’s Search for God” (pp. 77-78). According to the Kantian picture, there are occurrences in the world itself, the noumena, that affect the formation of cognition in consciousness, that is, the form of the phenomena. What is the relation between these two planes? Apparently, the noumena are the cause of the phenomena. But if so, then we are using the concept of cause and the principle of causality in order to explain that very principle itself. Zeitlin there rejects the various attempts of Fichte, Hegel, Schelling, Schopenhauer, and Hartmann to rise above the Kantian pitfalls, and in the end the problems remain unresolved.

The Synthetic Resolution: Abolishing the Distinction Between Thought and Cognition

What Kant proposes is a postmodern maturation that does not give up the assumptions that led us into the dilemma. He too agrees that thought cannot provide us with information about the world, that thought and cognition are two dichotomous poles with no intermediate states. In this quartet, beginning with the first book, we propose an alternative process of maturation, a different basis for the synthetic a priori. We discard the assumption shared by both sides of the dilemma. Since we discussed this at length in the first book, we will sketch only the basic outline here.

Returning to Kant’s formulation and its roots, we immediately notice that the problem lies in the fact that the analytic-synthetic distinction belongs to the plane of intellect and thought, whereas the a priori-a posteriori distinction belongs to the plane of cognition. The focal question is how it is possible to expand the information in our possession through a combined factor, when neither of these two factors can do so by itself. The intellect by itself cannot reach general conclusions, and experience and empirical cognition cannot reasonably ground them either. If so, how does this happen at all?

The answer we proposed is that one must relinquish the distinction—so basic to our culture and thought—between thought and cognition. All of Western science is built on this distinction, which sees science as a field generated in the subject as it contemplates the object. This distance is required for understanding the very concept of science, and certainly for creating it. When the subject is not God, knower and known cannot be identical. Scientific cognition in its essence is the cognition of a knower of that which is separate from him.

But this distinction is the root of all the problems. If we review the formulation of several of the central problems that accompany the philosophy of science, and epistemology in general, we will see that their foundation is this distinction. The assumption is that the intellect does not know, it only thinks, and that the act of thinking occurs entirely within the human soul without interaction with the outside. Therefore the products of thought cannot fit the world as such, since the activity of thought has no contact with the external world in itself. Cognition, by contrast, which is responsible for our interaction with the external world—it supplies data to the intellect and to thought—sees particular facts as they are presented to it, not general laws. Thus the generalization that expands beyond the facts we observe is a product of thought, not of cognition, and as such it cannot reliably describe the world. From here arises the view of generalizations as a kind of fiction—in law, in science, in interpretation, and in halakha.

But if we adopt the opposite assumption, namely that the intellect also cognizes and does not merely think, then the problems disappear on their own. As we showed in the previous three books, there is an aspect of the intellect that deals with thought and also an aspect that deals with cognition—though it is not clear that these are distinct parts; perhaps it is better to speak of components than of parts. The assumption common to both horns of the dilemma is that thought and cognition are two activities with no relation between them and no intermediate states mixing them. From this follows the view that legislation and interpretation are two poles with no middle path, and from this come all the meta-halakhic and jurisprudential problems we described. The conclusion is that this is precisely the assumption that must be abandoned if the dilemma is to be solved.

The moment we accept the fact that there is cognizing thought, or legislative interpretation, the conclusion will be that synthetic a priori generalizations are the result of observation, not only of thought. This is observing thought, not thought detached from the facts. We “see,” as it were, the general laws that stand behind the particular facts or behind the interpreted laws. True, this “observation” takes place through the intellect rather than through the senses, but it is still an act of cognition. We “see” the general laws, not only the particular facts. This “seeing” is not done through the senses but through the “eyes of the intellect.”

In the first book we noted several thinkers who suggested such directions. Husserl argued for a kind of seeing he called “eidetic intuition,” that is, seeing ideas. One can “observe” ideas, not merely “think” them. Maimonides, at the beginning of Guide of the Perplexed, speaks of the “eyes of the intellect,” which is again an expression that combines a term from the sphere of thought—intellect—with a term from the sphere of cognition—eyes. This strongly hints that the distinction between the two spheres is not sharp. There is a shared zone in the activity of the intellect, one that cannot be defined as cognition alone or thought alone. It is cognizing thought, much as one might speak of “judicial legislation.” Rabbi David Cohen, the Nazir, in his Kol HaNevuah, also defines a similar concept: “auditory logic.” Again, a term from the sphere of thought—logic—is combined with a term from the sphere of cognition—hearing. Here too there is more than a hint that we must give up the sharpness of the distinction between thought and cognition.

We can now understand that we simply “see” synthetic a priori judgments. One may say that they are not really a priori, since they are the result of observation, but this is not ordinary sensory observation. For that reason it is more vague and less certain, and many tend to overlook the cognitive dimension that exists within it.

This description may sound mystical and fanciful, but one should notice that it corresponds to everyone’s simplest intuition. Each of us assumes that science really does progress, and that it correctly describes reality—or at least draws ever closer to a correct description. Implicitly, then, we assume the existence of just such a mechanism of observation. It is specifically analytic positivism that fails the test of simple intuition, and fails all along the way to account for even the most basic phenomena. We will not elaborate further here, since these matters are described and argued in the first book and those that follow it.

In the second book we bring what we take to be a decisive proof for this claim.¹⁴ Therefore, even if it sounds “mystical,” we have no choice but to adopt it. In fact, this is the only possible basis for the synthetic a priori, and therefore it must be applied both in the domains of scientific cognition and in the domains of halakhic and general jurisprudence. The reliability of expansive inferences in all these domains is based on the fact that such inferences are not products of thought alone, but arise out of some interaction with the facts. When we are engaged in interpretation, this is not an act of thought detached from the facts. When we generalize or make an analogy, we “see” the relation to the facts—the laws in law, the halakhot in halakha, the facts in science—and on that basis create the generalization or analogy. Interpretation is the product of an “observation” performed with the “eyes of the intellect,” not of mere thought.

At this point the question no longer arises why the judge is authorized to do this, for he is the one authorized to interpret the law—that is, to observe it. Nor does the question arise why he can do it—that is, why his interpretation is reliable—for he simply “sees” the interpretive product. Incidentally, this also yields the conclusion that the relation to the interpreted text can exist at several levels. We “observe” the spirit of the text and draw our generalizations from that observation, thereby creating laws. The relation to the text is itself an object of our observation, and it can appear at several degrees of intensity. Each degree of relation to the text creates a different level in the halakhic standing of the laws under discussion.

This is also the answer to Hume’s naturalistic fallacy argument against natural law, which is entirely parallel to his argument presented above against the concepts of causality. Hume claims that values or norms cannot be derived from facts—see Appendix H at the end of the book. Therefore he sees no possibility that the principles of natural law are objective and binding facts.¹⁵ But on our approach, this can be explained by saying that our synthetic tools enable us to “observe” these values and norms.

In the hermeneutic context too, we can say that our interpretation of a text is derived from “observing” it with the eyes of the intellect. We “see” what the correct interpretation is. Wittgenstein, in his Philosophical Investigations,¹⁶ describes the problem involved in following rules. The problem there is equivalent to the one with which we are dealing here: how can synthetic inferential methods reveal the meaning of the rule? As Wittgenstein shows there, there is never a situation in which the rule can be interpreted by deductive means alone. In the end he concludes that we simply read the lips of the rule and act accordingly. This is a description, in different language, of something like an “interpretive observation.”

In the legal context, one may cite here one of the thinkers of natural law, Finnis, who explains that:[^371]

The division between feelings and truths of reason is not clear. Logic, for example, is not a truth of reason that can be proved by empirical experiments, and it is certainly not a feeling. It is another category of human cognition. Therefore there are universal natural principles that bind reason and cognition no less than empirical facts do.

Our conclusion that we must relinquish the distinction between thought and cognition is already implicit in the Kantian formulation of the problem of the synthetic a priori. The problem is how cognitive results—synthetic results—can be produced by means of thought, that is, by a priori means. The necessary answer is that the distinction between thought and cognition is not dichotomous. There is an overlapping domain, or a middle path, between them. The thought-cognition axis is not binary. There is a human faculty located between thought and cognition, in varying proportions of each, and those proportions determine the degree of relation to the facts. This faculty is the faculty of interpretation, analogy, and generalization.

The positivist, captive to his dichotomous conceptual system, assumes that there is either deduction or speculation—a conclusion without a basis in the text. Maimonides’ commentators assumed the same: either the interpreter and exegete is disclosing what is actually found in the Torah itself, or he is inventing new laws. All the confusion in understanding his words followed from this. Our answer is to adopt the middle path: the interpreter is engaged in legislative interpretation, or interpretive legislation.

All these compound expressions are verbal descriptions of a term from another conceptual system, by combining two concepts from the old system—such as auditory logic, eyes of the intellect, and so forth. This is the linguistic expression of the difficulty of containing the new conception within the old conceptual system.

If someone now comes and asks whether, according to Maimonides, midrashically derived laws are legislation or interpretation; whether they disclose what is in the text or expand beyond it; whether rabbinic laws have Torah-level standing or a lower halakhic standing—the correct answer to all these questions will be that the questions themselves are framed within an incorrect conceptual system, and therefore it will be hard to find answers to them in that terminology. A conceptual change is required, one that will open the door to the “third way”—between empiricism and rationalism, between legislation and interpretation, between the synthetic and the a priori, between legislation and adjudication, and so on, among many such dialectical pairs, all of which are confused by perplexities and problems rooted in the conceptual system shared by both sides. For this reason Maimonides changes the conceptual system he uses, and refuses the dichotomous picture of Torah law versus rabbinic law, or of legislation versus interpretation.

The conclusions concerning a synthetic approach to halakha and law will be presented in the next chapter, which will summarize the movement of the entire book.

Summary and Conclusions

“The Third Way” as an Expression of the Synthetic A Priori

Introduction

This is the concluding chapter of the book. Here we will try to gather the implications that arise from the synthetic proposal developed in the final gate, and see what they mean for everything we have covered so far.

As noted above, the philosophical process described earlier is what lies at the root of all the other processes. The movement from rationalistic dogmatism—which believes that everything follows from thought and intellect—to the empiricist approach that ends in a vacuum characterizes our civilization as a whole. We saw its implications in hermeneutics, in jurisprudence, and in the interpretation of halakha and meta-halakha. One begins with a naive dogmatic approach, continues with a positivist anchor, and ends in postmodernity. Against postmodernity we set a different way of dealing with the results of the empiricist challenge: synthetic maturity, grounded in relinquishing the sharp distinction between cognition and thought.

The Synthetic A Priori in Halakha

The two roots with which we dealt concern the question of the logical, or meta-halakhic, anchor for rabbinic laws and for interpretive derivations. With respect to rabbinic laws, there is a naive approach that does not seek such an anchor at all. One must obey rabbinic laws, and that is all. Later one begins to search for an anchor—this is the “rebellion” of youth—and finds two principal options, the dichotomous picture: either everything is anchored in the Torah, and this is halakhic positivism. According to this approach, there is nothing besides the Torah, and everything one is obligated to do is derived from what is written in it. This is the conception of law as all-encompassing, leaving no room for additional legal-halakhic sources beyond written law and its deductive interpretation.

It follows quite naturally that, according to this approach, there will be no halakhic standing for laws grounded in innovative reasoning, as distinct from interpretive reasoning—see Appendix D at the end of the book. Likewise there will be no standing for laws grounded in natural morality. Everything must be found within the Torah’s text, or transmitted to us in tradition from Sinai, in the sense of “its details and particulars were given at Sinai.” If there are lacunae in halakha, this would seem to indicate a “gap” in the Torah. According to most views, such a thing is impossible, which fits well with the positivist approach to halakha. True, the Torah authorized the Sages to enact ordinances, but that is not filling gaps left by the Torah. As we saw, Maimonides in Mishneh Torah, Laws of Rebels insists that when the Sages enact an ordinance they must declare that it is not Torah law; according to Torah law the matter is permitted, and only rabbinically is it prohibited. That is, this is not the filling of a “gap” by judicial legislation. Judicial legislation in halakha does not have the standing of primary legislation.

When there is some uncertainty, however, one uses plain-sense and midrashic modes of inference to fill it in—as we saw also in standard approaches to jurisprudence, where analogy precedes judicial legislation. The result, according to most views—Nahmanides and his camp—is part of Torah law.

Here the positivist raises his objection: how can it be that we use an inference of a synthetic character—analogy and induction—and believe that the result is something found in the Torah itself? In fact, this is Hume’s challenge in the halakhic context. How do we know that the obligation to revere Torah scholars is included within the commandment to fear God? This is a generalization, and we have no proof for it, yet the product is a Torah law, as though the command were explicitly written in the Torah.

The assumption behind this critique is that synthetic methods cannot lead to correct interpretation, that is, to interpretation that discloses what is present in the interpreted text, because we have no proof of that. This is precisely the problem of the hermeneutic circle as applied to halakha. Seemingly, we have no indication that the interpretation of the Sages is correct. As noted, at the root of this critique lies a positivist-analytic approach, which accepts only deductive inference as reliable. It is therefore no surprise that the solution found by proponents of this critique is the formalist approach, which sees the words of the Sages as laws grounded in formal authority rather than in reliable interpretation of the Torah. Again, we encounter the same positivism that underlay the critique in the first place.

Thus, those who hold this view explain the authority of the Sages through a dynamic authorization relation: the Torah authorized the Sages to interpret it, and therefore their interpretation counts as Torah law by virtue of “You shall not turn aside.” According to this approach, that standing is not based on their actually disclosing what is found in the Torah; it is merely a formal authorization rule that grants their expansive interpretation, by means of the hermeneutical rules, the halakhic standing of Torah law. This is a continuation of the positivist approach to halakha, according to which it contains only dynamic authorization relations.

So far we have dealt with the interpretive derivations of the Sages, that is, with the subject of the second root. But even with respect to the first root there is room to discuss the Sages’ authority to enact ordinances. According to the positivist approach, it is clear that the source of rabbinic laws must be the authority given by some Torah verse to the Sages. There is no room for any other source of validity beyond written law. Here the option of interpreting the Torah also does not exist, since no one would claim that an ordinance is an interpretation of the prohibition “You shall not turn aside.” We have already elaborated on this above.

Thus, according to the positivist approach to halakha, the interpretive derivations of the Sages are a kind of legislation, just like rabbinic enactments. Their differing halakhic standing derives only from a scriptural decree that defines the hermeneutical rules as expansions with Torah-level validity—according to most commentators. For Maimonides’ view, see below. That is, according to halakhic positivism there are two kinds of legislation: one of rabbinic validity, namely enactments, and another of Torah validity, namely interpretive derivations. Both are legislation not found in the text and not emerging from it in any way. Of course, this gives no answer to the basic problem: what is the source of authority and validity for these laws?

In this book, however, we propose with respect to both roots a synthetic alternative, not a positivist one. With respect to the second root, we say that while the Torah does authorize the Sages to interpret it, this authority is not merely a formal matter. The authority reflects something substantive, namely a static authorization relation. The fact that the Sages have authority to interpret, and that their interpretations have the standing of Torah law, indicates that this interpretation possesses considerable reliability despite its synthetic character. As noted, this authorization relation is analogical in nature, and therefore not exactly static, as we have remarked several times above. The assumption is that in their interpretive derivations the Sages do indeed hit upon what is latent in the Torah, and therefore their halakhic conclusions are interpretive truth, not merely authorized expansions. Thus the Sages’ expansive inferential tools disclose what is contained in the Torah itself. This is a revealing extension.

Here the subject of the synthetic a priori enters halakha. According to our proposal, the Sages “observe” with the eyes of the intellect—or with auditory logic—the Torah, and see within it the expanded idea, in our example the obligation to revere Torah scholars. There is no other way to ground the reliability of the Sages’ interpretive derivations unless we follow the positivist route that makes them depend on mere formal authority. This is not a mystical claim, but a description of the ordinary intuitions we possess regarding every interpretive process or process of scientific inquiry, as we saw above. Positivism tends to portray such theses as mystical hallucinations, but as we have shown throughout the quartet, positivism itself is nothing but a collection of mystical hallucinations.

We concluded, with respect to the first root as well, that there can be a situation in which authority is not rooted in an explicit Torah command but in indirect learning from the Torah, or in reasoning. This is another example of a non-positivist approach to halakha. In Nahmanides’ method we explained that the obligation to obey the Sages may be a result of legislation, but the relation between legislator and citizen is not an oppositional one. Both stand on the same side, facing the Holy One, blessed be He. According to Nahmanides, the obligation to obey the enactments of the Sages is a consequence of the obligation to honor commitments.

The Synthetic A Priori in Maimonides and Nahmanides: Is Maimonides a Positivist?

At first glance, the question of positivism stands at the center of the two disputes between Maimonides and Nahmanides. Maimonides’ approach in both roots appears to be pure and even extreme positivism. In the second root, he argues that whatever is not found in the Torah does not have the standing of Torah law—that is, it does not obligate at the same level as Torah laws. In the first root, Maimonides states that rabbinic laws must be rooted in the text, since there is no other halakhic source possessing validity and authority. Here too, seemingly, we find a sharp and clear positivism. The validity of these laws—ordinances and decrees—derives from the very fact that they passed through a legislative process. That is the basis of our obligation to obey them. This is plainly a positivist view.

Nahmanides, by contrast, in his glosses to the first root sees alternative sources that can obligate us in commandments, beyond what is found in the Torah itself. He understands the standing of the Sages as derived from a source not explicit in the Torah, and perhaps from the duty to honor commitments, as we discussed in the first section. We already noted that this is a conception close in character to natural law, since this duty is not generated by legislation but by a natural norm: an individual or collective that has committed itself to something is obligated to stand by that commitment. A person’s obligation to obey the Sages derives from the very fact that he is part of the collective over which they preside. We also saw that this obligation precedes halakhic command and does not depend on it, and we even demonstrated this from the obligation to keep a written oath accepted without a formal verbal act.

Likewise with respect to Nahmanides’ words in the second root, it is clear that he is not based on positivism. He sees the midrashic methods of inference, despite their synthetic—analogical—character, as interpretive tools that disclose the Torah’s intention. He does not ground the validity of midrashically derived laws in dynamic authorization relations, that is, formal powers, but in trust in the reliability of synthetic interpretive and inferential tools—or in the eidetic capacity of the Sages to observe. As we explained in the second section, the foundation of Nahmanides’ view is that there are disclosive expansions. He states explicitly that the trust is based on their being reliable interpretive tools; this is why he argues so forcefully against Maimonides, claiming that several interpretive possibilities may coexist for the same text.

Thus, it appears that Nahmanides’ approach is the one based on the synthetic a priori. He is the one who thinks that expansive inferences, whose conclusions are not contained in their premises—that is, they are synthetic, because they make innovative claims about halakha—can be accepted a priori, since he agrees with Maimonides that they do not emerge from simple observation of halakha and deductive analysis of what is there. But what of the middle positions found by Maimonides? Do they have nothing to do with the synthetic a priori? Does he deny the possibility of making synthetic claims a priori?

First, at the factual level, even before any explanation, there is no doubt that Maimonides is not a pure positivist. As we saw in several contexts, Maimonides does not adopt the obvious positivist solutions to these problems. In the second root he does not make the validity of midrashically derived laws depend on the formal authority of the Sages—that is, on a dynamic authorization relation—but sees them as “branches from the roots.” We explained this to mean that midrashically derived laws are not something exposed or quarried out of the Torah, but they certainly do grow from it. They are an expansion of it, but not legislation like decrees and ordinances. Thus Maimonides does not see midrashically derived laws as another type of legislation, but as a kind of legislative interpretation—by analogy to the modern expression “judicial legislation”—and therefore it is clear that he is not a positivist.

In fact, as we saw, even in the first root Maimonides does not express the positivist position that some try to attribute to him. We saw that it is incorrect to understand his view as meaning that anyone who violates a rabbinic law thereby violates the Torah prohibition of “You shall not turn aside.” We saw that Nahmanides too rejects the possibility of understanding him through the formula “they themselves enacted it and they themselves limited it,” which is also a kind of positivist argument. As we concluded, Maimonides holds that the validity of rabbinic laws is learned through an expansive inference from the prohibition “You shall not turn aside,” or from the duty to honor commitments. In any event, even if Nahmanides sees “You shall not turn aside” as the source of this obligation, he treats that verse as a mere textual support—contrary to our conclusion there—and the validity is certainly not derived deductively from the verse, but through a kind of expansive reasoning, based on understanding the concept of rebellion. The conclusion is that even in the first root Maimonides does not appear to adopt a positivist position.

What, then, is the difference between him and Nahmanides? At first glance, the positivist questions arise against Maimonides as well, questions that challenge the very possibility of expanding the Torah. According to positivism, the law is only what is explicitly written. Yet in Maimonides we see that this is not so.

Here the sorites paradox enters the picture. As we explained, Maimonides sees halakha as a complex of different kinds of laws, connected to the written text through static authorization relations of varying strengths—and therefore their static character is also not univocal. According to Maimonides, there are laws explicitly written in the text, and there are laws entirely unrelated to it. Between these two poles there is a whole range of laws whose connection to the text is partial: very strong, strong, medium, and weak. There are rabbinic laws for which we have textual supports; this is a weak relation. There are laws that are Torah matters, and this is a medium relation. There are laws derived by interpretive exposition, and their relation to the text is already fairly strong. And there are laws learned through plain-sense interpretation—or interpretive derivations for which we also have a tradition—which Maimonides counts as Torah laws.

Thus Maimonides does not see midrashically derived laws as legislation of a different validity. In Maimonides’ view, midrash is an inferential process located between interpretation and legislation. Its result is a law that has a relation to the written text and is not a product of the Sages’ judgment alone, as an ordinance is. The Sages have no discretion regarding whether it is appropriate to legislate it; their only discretion is interpretive—whether this is indeed what should be derived from the verse.

Maimonides’ Extreme Non-Positivism: Logic and Ontology

Maimonides, then, sees a whole range of kinds and intensities of relations between laws and verses. How can this be understood? In a positivist world everything is divided dichotomously: either it is found in the Torah, in which case it must be extracted by deductive means, or it is legislation, that is, the creation of a new law.

Nahmanides disputes the assumption that deduction alone, and not analogy or the synthetic methods of interpretive exposition, is the way to extract what is in the Torah. Nahmanides thinks that synthetic inferences can also disclose the content found in the Torah. Even so, Nahmanides still seems unwilling to accept a diversity of relations between laws and verses. In that sense he remains a positivist: either the law is in the written text, or it is not.

Maimonides, however, takes a much larger step beyond Nahmanides: he rejects even the dichotomous picture concerning the actual relations between laws and verses. Not only does he diversify and specify the ways in which these relations can be disclosed, as Nahmanides did. According to Maimonides, there are intermediate possibilities also regarding the relation between the derived law and the verse. That is, the third way is not found only between legislation and interpretation. It concerns not only the mode of deriving halakhic conclusions, but also the relations between the conclusions and the text itself.

Maimonides turns analogy into a kind of relation between the facts in the verse and the products of midrash, and does not see it merely as a form of inference that reveals relations between facts. This is an extreme synthetic a priori conception. Let us illustrate with the derivation concerning reverence for Torah scholars.

According to halakhic positivism, there is no doubt that the law of reverence for Torah scholars must be the product of a deductive inference—perhaps an enthymeme—from the verse dealing with fear of God.¹⁷ Otherwise it would be legislation, and this law should have had the validity of rabbinic law. Nahmanides, by contrast, agrees to the basic dichotomous division according to which either reverence for Torah scholars is included in the commandment to fear the Holy One, blessed be He, or it is legislation. But he holds that even non-deductive methods of inference, such as amplification, are reliable tools for disclosing what is in the Torah. Once we have disclosed this, the deeper content of the commandment written in the Torah itself becomes manifest. Maimonides, however, as noted, takes a further step in rejecting positivism. He thinks the dichotomous division itself is mistaken: there is a whole range of relations between law and verse, not only full relation or no relation. According to Maimonides, reverence for Torah scholars is included through an interpretive derivation using synthetic inferential tools, and therefore the relation of this law to the commandment to fear God is a relation of medium strength. It is not literally in the verse, but it is related to it. The way in which we inferred the law is an indication of the degree of relation between it and the verse from which it is derived.

For Maimonides, the kinds of inferential methods reflect reality itself. To derive proposition A from proposition B by deduction means that proposition A is really contained within proposition B. Therefore fact A is really contained within fact B. Analogical derivation points to an intermediate level of relation between the propositions, and therefore also to an intermediate relation between the facts those propositions describe—in our case, between midrashically derived laws and verses. In this way, the question of source becomes an indication of the question of validity. The strength of the connection to the source determines the strength of the halakhic validity of the law derived from it.

Maimonides turns logic into ontology. It is not only that we can observe facts with the eyes of the intellect, seeing the general fact through the particular fact. We can also “see” vaguer kinds of connection among facts—relations of kinds that positivism does not even recognize as existing, since in its view whatever cannot be seen does not exist. The differences among analogy, induction, and deduction, according to Maimonides, are not located only on the logical plane, that is, in our thought. These differences are located in observed reality itself—halakha, in our case.¹⁸

And Again, Legislation and Interpretation

The dilemma accompanying us from the beginning of the book is the relation between legislation and interpretation. In both the first and second roots, the confrontation revolves around the relation between these two. Maimonides’ main innovation is that there is a middle path, something between legislation and interpretation.

Here lies the difference between Maimonides and Nahmanides. Nahmanides’ approach does constitute a middle path—a “third way”—between the positivist pole and the natural-law pole, but he does not offer a middle path between legislation and interpretation. For Nahmanides, legislation and interpretation remain two dichotomous poles, with no middle way between them. His only innovation is that there can be valid interpretation performed in a non-deductive manner. Still, every halakhic result is either truly contained in the written text or is legislation. In his view there are no intermediate states. The only alternative is decrees and ordinances, which are the result of legislation and bind us by virtue of the obligation to honor commitments.

We have already mentioned the comparison between interpretation and empiricism—or cognition—and between legislation and rationalism—or thought. Interpretation deals with clarifying and defining the facts before it. In that sense it operates like cognition, which also turns to the facts and tries to understand and know them. The result of interpretation is cognition of the halakhic facts in the interpreted text, and therefore the source of the validity of these laws is not the interpreter’s authority but the interpreted text itself. Midrashically derived laws obligate because of the verse from which they are derived, not because of “You shall not turn aside”—unlike the view of the author of Minchat Chinukh that we cited in the fifth gate above. Legislation, by contrast, is a product of thought. It is detached from the halakhic facts in the Torah, just as thought is detached from facts as such.

The problems raised by Hume arose from an overly sharp distinction between cognition and thought, and the solution we proposed was to give up that sharpness. The Kantian solution did not relinquish this distinction, and therefore did not provide a genuine solution to the Humean problems.

A parallel process occurs in halakha. Positivism hangs everything on interpretation. Binding law is what is found in the Torah or extracted from it by analytic-deductive means. Natural law, by contrast, does not rest on relation to enacted law, and therefore it parallels thought—which, as we have seen, parallels legislation—rather than cognition. The synthetic a priori middle path finds an intermediate way between thought and cognition, and in the halakhic and legal context, between interpretation and legislation. Here Maimonides stands alone. As we saw, at the level of discussion concerning the conception of the halakhic facts themselves, Nahmanides still remains at the positivist pole.

An Important Concluding Note: The Importance and Meaning of the Religious Source of Halakhic Law

We have seen that there is an important and substantive difference between halakhic approaches, which advocate the reliability of synthetic methods of inference and interpretation, and legal approaches—even non-positivist ones—which do not see such inferences as interpretation but as authorized expansion. The reason for this difference lies in the point we discussed in the sixth gate of this section.

Trust in the synthetic a priori as reflecting something true in reality—not merely phenomenology, in Kant’s sense—must be based on belief in God; see the first book, especially notes 21 and 25. As we saw there, without an objective factor coordinating thought and cognition with reality, such trust has no real philosophical basis.¹⁹

As we saw in the previous gate, positivism places the human being at center stage, whereas natural law places God there. Here we see this once more, and its sharpest expression is halakha’s trust, in its various approaches and schools, in synthetic forms of inference as disclosive expansions.

In the sixth gate of the third section we proposed a synthetic alternative to general jurisprudence, one that places the reliability of interpretation at center stage rather than pragmatic considerations, which ground the judge’s authority to expand the law in a complex of needs and constraints. This alternative assumes at its basis the existence of an objective normative system, in the spirit of natural law. As we see here, one reason such an alternative is not popular in legal thought is its secularization. In a world without an objective entity that grants meaning and unity to different viewpoints, there is no rational possibility of adopting such an approach.

As we described in the first book, the absence of belief in God creates an analytic vacuum. In such a condition there is no choice but to create formal substitutes of an empty analytic character—devoid of content—in order to preserve the possibility of communication and shared life. In the legal dimension with which we dealt in this section of the present book as well, we saw that agreement takes the place of truth, and free creation takes the place of interpretation. We can only conclude with one of the necessary conclusions of the entire quartet: it is impossible to be rational without belief in God. Not only because that belief itself is rationally required, but also because it is the guarantor of rationality in other domains. Without it, one cannot trust anything, including our senses and our intellect. Here we have seen that even a coherent and reasonable legal system cannot be sustained without it.

Appendices

• Appendix A: A study of Nahmanides’ glosses to the first root, and the views of the other medieval authorities
• Appendix B: A study of Maimonides’ critique of Halakhot Gedolot in the second root
• Appendix C: The views of the other medieval authorities on the issues raised in the third gate
• Appendix D: Laws derived from reasoning
• Appendix E: What is a command?
• Appendix F: The interpretive theories of Maimonides and Nahmanides—the relation between plain sense and interpretive exposition
• Appendix G: The historical development of the concepts “Torah law” and “rabbinic law”
• Appendix H: The nature of the guilt-offering
• Appendix I: Two kinds of primary categories and derivatives: the relation between the general category and the particular that branches from it
• Appendix J: “The Third Way”

Appendix A

A Study of Nahmanides’ Glosses to the First Root, and the Views of the Other Medieval Authorities

Preliminary Note

This appendix deals with Nahmanides’ glosses to the first root. The discussion is lengthy and branches into many topics, but it contains a number of points that may shed additional light on the dispute over the standing of rabbinic commandments. Because of the detail and complexity of the discussion, and because it is not necessary for understanding the main flow of the argument, we have defined it as an appendix.

Introduction

In the first section we saw that Maimonides and Halakhot Gedolot locate the basis for the obligation to obey the Sages and for their authority to enact ordinances and issue decrees in the verse “You shall not turn aside.” Maimonides concludes from this that rabbinic commandments should not be included in the enumeration of the commandments, whereas Halakhot Gedolot does include some of them in its count. It is not clear whether this disagreement is substantive—that is, whether they conceive of rabbinic commandments differently—or whether it is merely technical and concerns only the enumeration of the commandments. Nahmanides himself, however, disagrees with both of them on the central point: in his view, “You shall not turn aside” is a basis for the authority of the Sages to interpret and expound the Torah, but not for legislation, namely the enactment of ordinances and decrees.

In his glosses to this root, Nahmanides operates on two planes simultaneously, and it is very important to distinguish between them:

1. He defends Halakhot Gedolot against Maimonides’ attacks, and therefore the chief importance of his remarks here is for clarifying the view of Halakhot Gedolot.
2. He presents his own position, which, as noted, disagrees with both of them. These remarks express a third stance, different from both Maimonides and Halakhot Gedolot, in our issue.

In this appendix we will address both planes, and at the end we will summarize the views of the medieval authorities who dispute Maimonides.

Nahmanides begins his remarks on this root by expressing doubt concerning the very enumeration of the 613 commandments—see our discussion of this in the introduction to the book. After that, on p. 16, Nahmanides divides Maimonides’ attacks on Halakhot Gedolot into four distinct arguments, as we saw in Chapter 3, and addresses them one by one. In the course of this, he also addresses the critique of the very method of Maimonides and Halakhot Gedolot regarding the standing of rabbinic commandments, which has occupied us until now. We will now present the main points of his remarks concerning Maimonides’ difficulties with Halakhot Gedolot, and from them attempt to understand his assumptions and claims, both regarding the view of Halakhot Gedolot and regarding his own view. The order of discussion will follow the four objections of Maimonides as Nahmanides described and addressed them—see Chapter 3—but for the sake of continuity we will not discuss them in the order in which they appear.

Resolution of Maimonides’ First Objection

As noted, Maimonides argued against Halakhot Gedolot that the wording of Rabbi Simlai’s dictum proves that rabbinic commandments are not counted, since Rabbi Simlai speaks as follows:

“Six hundred and thirteen commandments were stated to Moses at Sinai.”

Nahmanides offers four considerations that may rescue the position of Halakhot Gedolot from Maimonides’ first objection.

1.1

On p. 17, Nahmanides suggests that the version of Rabbi Simlai’s dictum in Halakhot Gedolot was not the one cited by Maimonides—”613 commandments were transmitted to Moses at Sinai”—but rather: “613 commandments were commanded to Israel.” This wording would include rabbinic commandments as well, since over them too we recite the blessing “who has commanded us,” meaning that we are commanded regarding them by the divine word through “You shall not turn aside.”

Rabbi Azriel Hildesheimer already noted in his commentary on Halakhot Gedolot—and Rabbi Yerucham Fishel Perla also discussed this at length at the beginning of volume 1 of his Sefer HaMitzvot on Saadia Gaon, on this root—that at the end of the list of commandments in its introduction, Halakhot Gedolot itself explicitly states that all these commandments were received at Sinai. It therefore seems that this line of defense does not fit the view of Halakhot Gedolot itself.²⁰

Afterward, on p. 17, Nahmanides adds that even if the correct text in Halakhot Gedolot is indeed the one appearing in Maimonides—”were transmitted to Moses at Sinai”—Maimonides’ objection can still be rejected. For this purpose he offers three further directions.

1.2

On p. 17, he writes that the Sages often present their words in the language of the Torah and support them with verses, or refer to them with the formula “the Merciful One said,” in order to strengthen them. He cites several proofs from rabbinic literature. His intention apparently is to say that Rabbi Simlai’s statement that the commandments “were given at Sinai” is only a rhetorical strengthening of rabbinic commandments, not a substantive assertion.²¹

At this point one should again recall Maimonides’ statement in Mishneh Torah, Laws of Rebels 2:9, mentioned in note 2. There Maimonides rules that a court that has enacted an ordinance or issued a decree must state, in the wording of the ordinance itself, that this is not a Torah commandment; according to Torah law the matter is permitted, and only rabbinically is it prohibited. Maimonides writes that if they fail to do so, they violate the prohibitions against adding to the Torah or subtracting from it. It seems from there that Maimonides holds that one may not mix the language of the Torah into the ordinances and decrees of the Sages, and perhaps here too he is consistent with that position. Therefore, when Rabbi Simlai used the wording “were transmitted to Moses at Sinai,” it was clear to Maimonides that he meant only Torah prohibitions and not rabbinic ones.²²

It is possible that Nahmanides disagrees here, and follows the position of the Ra’avad in his glosses there, which were also cited in the above note. The Ra’avad supports his objection to Maimonides precisely by pointing to the fact that the Sages sometimes strengthen their words as though they were Torah law. As we saw there, the Rashba and the Ritva, in Babylonian Talmud, Rosh Hashanah 16a, in their dispute with Tosafot there, apparently also hold that there is no prohibition in doing so.²³

According to Maimonides, however, one must ask whether he really rejects the interpretive principle Nahmanides sets forth here. Does his view imply that no expression sounding like Torah law can ever be understood as referring to rabbinic law? If so, what would Maimonides say to Nahmanides’ proofs from the Talmud, where the Sages refer to rabbinic prohibitions in the language of Torah law? Are we to assume that in all those places Maimonides had a different textual version? That is not likely.

1.3

On p. 17, Nahmanides argues that the Sages—and so too the Torah itself—did not always formulate their enumerations with precision, and he brings several examples. Moreover, he gives a number of examples of Torah commandments that were not given at Mount Sinai, such as the punishment of the wood-gatherer, the law of the daughters of Zelophehad, and others, yet Rabbi Simlai did not omit them from the tally of the 613 that “were given to Moses at Sinai.” Rabbi Perla brought further examples in his discussion of this root.

Maimonides himself apparently holds that all Torah commandments were in fact given to Moses at Sinai, unlike commandments from prophetic books or rabbinic enactments. The fact that some of them are presented in the Torah as though they were stated historically at a later time is an interpretive problem. But according to Maimonides, in substance the entire Torah was given to us at Sinai.²⁴ This depends on one’s conception of the Torah itself—a subject discussed in the second section—on one’s conception of the revelation at Sinai and its theological and interpretive standing, and on the relation of these conceptions to events and commandments as presented historically, that is, the way the Torah presents them as though they occurred or were spoken earlier or later. This is not the place to elaborate further.

1.4

On p. 18, Nahmanides further argues, in explaining the view of Halakhot Gedolot, that since we bless over these commandments “who has commanded us”—that is, we were commanded concerning them through “You shall not turn aside”—they count as commandments that were commanded at Sinai. Therefore Halakhot Gedolot included them in the 613, and Rabbi Simlai in his words included them too in the phrase “were transmitted to Moses at Sinai.” This argument is very important for clarifying the dispute with which we are dealing, and we will discuss it a bit more.

At first glance, what is established here is an interpretive principle regarding the words “were transmitted to Moses at Sinai,” and not necessarily a substantive principle—namely, that the validity of rabbinic commandments is the same as Torah law. After all, according to Nahmanides’ understanding of Maimonides’ view, Maimonides agrees with Halakhot Gedolot on that substantive point. Yet Nahmanides’ wording suggests that he meant here to introduce the substantive principle as well: the blessing “who has commanded us” shows that, according to Halakhot Gedolot, the obligation to fulfill rabbinic commandments is by virtue of “You shall not turn aside,” that is, that their validity is of Torah origin. Only consequently does he infer the interpretive principle, according to which every such commandment was in fact said to Moses at Sinai and can therefore be included in the enumeration.²⁵

It therefore seems from Nahmanides’ formulation here that he understands Halakhot Gedolot as containing two elements:

1. The interpretive element: Since rabbinic commandments are included in “You shall not turn aside,” the phrase “were stated to Moses at Sinai” can be used about them.
2. The substantive element: The validity of rabbinic commandments is like that of Torah commandments, by virtue of “You shall not turn aside,” and therefore they can be counted. For this reason Rabbi Simlai could say of them too that they were given at Sinai.

From Nahmanides’ own wording it appears that he does not distinguish between these two claims. In the midst of his remarks he says: “There is no difference between them in saying Sinai, except that this one is in particular and that one in general.” This implies that he understands rabbinic commandments as a specification of “You shall not turn aside”—even in the sense given to that term in the first section, along the lines of the example of vows we brought there—and therefore they were indeed “stated to Moses at Sinai.” This becomes even clearer from the fact that Nahmanides immediately finds himself compelled to note that both Halakhot Gedolot and Maimonides erred at this point, and here begins his long discussion of “You shall not turn aside.” It is therefore clear that he is making a halakhic claim here: according to Halakhot Gedolot, every rabbinic transgression is a Torah transgression of the prohibition “You shall not turn aside,” and not merely advancing an interpretive reading of Rabbi Simlai’s dictum.

Interim Discussion: Conclusions Regarding the Dispute Between Maimonides and Halakhot Gedolot

But the connection between these two claims is not necessary, and this in two opposite directions, corresponding to the two interpretive directions we proposed regarding Maimonides:

1. According to Nahmanides’ own understanding of Maimonides—that rabbinic laws are a specification of “You shall not turn aside”—Maimonides holds that the standing of rabbinic laws is like that of Torah laws, yet Maimonides himself is not willing to interpret Rabbi Simlai as referring to them. We will see below why. According to this suggestion, Halakhot Gedolot disagrees with him only on the interpretive plane, holding that Rabbi Simlai’s words can indeed include them. On this reading, the disagreement between Maimonides and Halakhot Gedolot is only interpretive.
2. Even according to our explanation of Maimonides’ own view—that rabbinic laws branch from “You shall not turn aside”—one could still interpret Halakhot Gedolot as agreeing with Maimonides himself: rabbinic laws were indeed transmitted at Sinai, since they branch, rather than merely specify, from the commandment “You shall not turn aside,” and yet their halakhic standing is that of rabbinic law, lighter than Torah law, precisely because they only branch from “You shall not turn aside” and are not specified from it.²⁶ Here too the disagreement would concern only whether Rabbi Simlai could refer to such commandments—in other words, once again the conclusion would be that the disagreement is interpretive alone.

According to both of these possibilities, one may understand the dispute between Maimonides and Halakhot Gedolot as merely interpretive. If so, why does Nahmanides himself connect the disagreement also to the substantive plane? Why does he bind these two claims together? He could have contented himself with pointing to the interpretive dimension of the disagreement, yet he feels compelled to add the claim concerning halakhic validity, which would seem to be a matter on which they agree. Moreover, why is Nahmanides unwilling to accept the second possibility we proposed, according to which even if the validity is only rabbinic, Rabbi Simlai could still be understood as referring to rabbinic commandments as well?

Apparently Nahmanides refuses to accept the second possibility because, in his own view, he rejects a priori the possibility of branching. In his opinion, anyone who grounds rabbinic enactments in “You shall not turn aside” is relying on a mechanism of specification. That is precisely why he rejects the second possibility we suggested, and likewise refuses to accept such a reading even in Maimonides itself. He himself explains the mechanism as branching, though in his language that is what he calls a mere textual support. In Maimonides’ language he understood it differently, as noted.

To summarize, three possibilities emerge for understanding the dispute between Maimonides and Halakhot Gedolot:

1. Maimonides is to be interpreted as we suggested, that is, as a case of branching out, whereas Halakhot Gedolot disagrees precisely on this point, meaning that in its view this is specification. Therefore, according to Maimonides, this cannot be included in Rabbi Simlai’s words, whereas according to Halakhot Gedolot it can.

2. Maimonides is to be interpreted as we suggested, and Halakhot Gedolot agrees with that. The dispute concerns only the question whether branching can be included in Rabbi Simlai’s expression, “were given to Moses at Sinai,” or not.

3. Maimonides is to be interpreted as Nahmanides suggested, that is, as specification, and Halakhot Gedolot agrees with this as well. The dispute is only an interpretive one about Rabbi Simlai’s words, as above. This, apparently, is how Nahmanides understood the dispute.

The Relation to the Seventh Root: Three More Understandings of the Dispute Between Maimonides and Halakhot Gedolot

In the first section, when we dealt with Maimonides’ attacks on Halakhot Gedolot, we explained why Maimonides does not attack Halakhot Gedolot on the basis of the principle stated in the seventh root, namely that one should not count separately different applications of a single commandment. We explained that this follows from the fact that Maimonides understands rabbinic commandments as having independent content, and not as a mere specification of the commandment “do not deviate.”

But Nahmanides’ position is that both Maimonides and Halakhot Gedolot see rabbinic commandments as specification and not as branching. And indeed, when Nahmanides defends Halakhot Gedolot, he writes:

Moreover, since it was said to Moses at Sinai that Israel would undertake to accept the commandments of the great court, and they later came and enacted these, all of them were already said to Moses at Sinai. There is no difference between them in calling it “Sinai,” except that one speaks in particulars and the other in generalities.

It appears from this that Nahmanides is arguing here against the possibility of branching, which we proposed in Maimonides’ view. If all rabbinic commandments are included in “do not deviate,” then there is no difference between them and “do not deviate,” except that the latter is general and the former particular. This is merely a specification of “do not deviate,” and therefore the authority of rabbinic commandments is of Torah status. Everything was given, at least de facto, at Sinai.

As noted, according to our proposal Maimonides would respond that the obligation to observe rabbinic commandments is indeed connected to “do not deviate,” but not as particulars unfold from a general rule. Rather, it operates through a mechanism of branching, in his language in the second root, “like branches issuing from roots.” See the second section on this point.

If so, according to Nahmanides’ understanding of Halakhot Gedolot, and apparently of Maimonides as well, one would expect the relevant root for this discussion to be the seventh root. If rabbinic commandments are nothing more than applications of “do not deviate,” then they should not be included in the enumeration of commandments, because they are already included in “do not deviate,” which has itself already been counted. The problem arises precisely in the position of Halakhot Gedolot, whom Nahmanides defends: if it too agrees that this is specification and not branching, then the authority of these commandments is indeed of Torah force, but they should still not be counted because of a problem of classification, namely the principle of the seventh root. If so, Nahmanides should have concluded that Maimonides is right and rejected the view of Halakhot Gedolot—not for the interpretive reasons advanced by Maimonides himself, but for the classificatory reason, that is, by force of the seventh root.²⁷

At first glance, the conclusion demanded by this argument is that we must reverse the picture: Halakhot Gedolot too holds that the interpretive mechanism is branching and not specification, for otherwise there would be no room to count rabbinic commandments because of the seventh root. Maimonides, by contrast, could theoretically have held like Nahmanides and refrained from counting them because of the seventh root, except that, as we have seen, he too holds that this is branching, and his reason for not counting rabbinic commandments lies in their authority.

The conclusion is highly surprising: the agreement between Maimonides and Halakhot Gedolot is not only about the relation between all rabbinic commandments and “do not deviate,” but also about the mechanism itself, namely branching and not specification, contrary to Nahmanides’ understanding of both. Nahmanides apparently understands their dispute as concerning only the question whether laws that branch from a Torah commandment possess Torah authority or not. According to Maimonides, their authority is rabbinic, when one does not violate them in open defiance; according to Halakhot Gedolot, their authority is of Torah force, as in the mechanism of specification.

This is a fourth way of understanding the dispute between Maimonides and Halakhot Gedolot, very close to way 2 above:

• Both agree that the mechanism is branching, and therefore the branched law is not included in the source law, that is, in the root. But their dispute is not merely interpretive. Its basis is a dispute about the authority of a law that branches from a Torah commandment: Halakhot Gedolot holds that its authority is of Torah status, whereas Maimonides holds that it is rabbinic. In the second section we will point out that the deeper foundation of Maimonides’ position lies in the question whether branching uncovers what is written in the Torah or expands it. We will see that this follows from a renewed understanding in Maimonides of the meaning of the term de’oraita, and apparently Halakhot Gedolot disagrees with that very point.

This is our conclusion regarding the basis of the dispute between Maimonides and Halakhot Gedolot. We have seen that Nahmanides apparently does not understand matters this way, and in his view the dispute is like way 3 above. But in light of the difficulty we raised—how Nahmanides’ explanation of Halakhot Gedolot can be reconciled with the seventh root—we may suggest a fifth way, the reverse of way 1, and perhaps this is how Nahmanides understood the dispute:

• Halakhot Gedolot understands the mechanism as branching, and therefore treats every rabbinic commandment as an independent commandment not included in “do not deviate.” It regards the branched law as having Torah authority, as in explanation 4. Maimonides alone, according to Nahmanides, understands the mechanism as specification, and therefore refuses to count these commandments separately. According to this possibility, specification does not affect the halakhic force of the branched law—it remains a Torah commandment, as in specification—but it does affect the substantive relation between root and branch. A branch that branches from a root is not conceptually included in it, unlike a specified detail, and therefore the seventh root does not prevent us from counting the branch alongside the root. Perhaps for this reason Maimonides too does not attack Halakhot Gedolot on the basis of the seventh root.

Yet Nahmanides’ language does not suggest this, for throughout he seems not to raise the option of branching at all. See, for example, the quotation brought at the opening of the present subsection. Therefore a sixth possibility suggests itself for understanding the dispute according to Nahmanides:

• Different rabbinic commandments differ in their content from the perspective of the nature of the obligation imposed on a person. The obligation to read the Megillah is not like the obligation to wash one’s hands, or to make an eruv. Therefore, even though their normative-juridical content is merely obedience—and from that perspective there is no difference between them and “do not deviate,” except that the latter is general and they are particular, as the Netivot Ha-Mishpat held—nevertheless, according to Halakhot Gedolot, there is room to count them separately. The reason is their practical content, which differs from commandment to commandment. In its view one should not include, under a single counted commandment, the duty to wash one’s hands together with the duty to light Hanukkah candles or the prohibition on eating poultry with milk. In terms of their content, these are completely different commandments. On exactly this point Maimonides disagrees, of course, following the theoretical-juridical definition of these commandments.²⁸

This appears to be the understanding of the dispute that emerges from the plain sense of Nahmanides’ language.

Resolution of Maimonides’ Fourth Objection

In this objection, Maimonides argues that the enumeration of Halakhot Gedolot does not accord with Rabbi Simlai’s statement that the commandments “were given at Sinai,” since rabbinic enactments were instituted later than the giving of the Torah. In the course of his remarks he also refers to the specification of rabbinic commandments from Torah commandments, such as clothing the naked from the commandment “sufficient for his need.”

Now Nahmanides himself, when discussing the objection from “sufficient for his need” with respect to clothing the naked, writes that Maimonides is correct in this matter, and that he has no solution for the position of Halakhot Gedolot. Why, here, regarding clothing the naked itself, is he unwilling to make the same claims that we saw above with respect to section 1? Does clothing the naked not emerge from “do not deviate”? Is its authority not of Torah status?

To understand this, we must recall what we saw above: there are different mechanisms by which something passes from the de’oraita plane to the derabbanan plane. There are transitions by way of specification, and then the specified law is of Torah status. And there are transitions by way of branching, as with rabbinic commandments from “do not deviate” according to Maimonides, and then the branched commandments are rabbinic.

Now we should note two interrelated points:

1. Only at this point does Maimonides attack Halakhot Gedolot by force of the seventh root, namely that clothing the naked is included in “sufficient for his need.”
2. It is difficult to say that the mechanism connecting clothing the naked to “sufficient for his need” is branching rather than specification, because the content of the commandment to clothe the naked is virtually identical to the content of “sufficient for his need.” It is nothing but an application of that verse.

As we saw above in chapter 3, precisely for this reason Maimonides argues that clothing the naked should not be counted separately, because it is included in “sufficient for his need.” This claim is unlike Maimonides’ arguments regarding all the other rabbinic commandments, which have only a root in “do not deviate” from which they branch. Regarding clothing the naked, we saw that there are two roots in the Torah: “sufficient for his need,” which implies specification, and “do not deviate,” which implies branching.

This is why Nahmanides finds no answer to this attack of Maimonides on Halakhot Gedolot. As for the attack based on “do not deviate,” he already answered it, as explained above. We saw that the practical content of the commandments is different, and therefore they should not all be included under the commandment “do not deviate.” But here Maimonides attacks by force of the seventh root: the commandment of clothing the naked should be included in “sufficient for his need.” Here the relation to the Torah commandment is one of specification, for the content of both is identical; this is merely a specific application of “sufficient for his need.” In such a case, Nahmanides too agrees that the seventh root compels us not to count these commandments separately.

We should note that this picture fits well both explanation 5 and explanation 6 of Nahmanides’ understanding of the dispute between Maimonides and Halakhot Gedolot.

Observation 6: The Difference Between “Sufficient for His Need” and Clothing the Naked

Why, then, does Halakhot Gedolot count clothing the naked as a separate commandment? The matter becomes even more difficult in light of what we shall see below: Halakhot Gedolot counts only innovative rabbinic commandments, such as Hanukkah and Purim, which are not additions to already counted Torah commandments. Clothing the naked certainly cannot be regarded as an innovative commandment, since it is included in “sufficient for his need.”

It seems that the only plausible way to explain its view is to assume that there is a halakhic distinction between the two commands—clothing the naked, learned from verses in Isaiah, and the Torah commandment of “sufficient for his need”—and that therefore this is a case analogous to branching. As we saw in explanation 4 above, Halakhot Gedolot also understands the relation between rabbinic commandments and “do not deviate” as branching, but disagrees with Maimonides as to whether they should be counted. That is, Halakhot Gedolot holds that when a branch emerges from a root, both should be counted separately in the enumeration of commandments. If so, the commandment of clothing the naked can also branch from “sufficient for his need,” and therefore Halakhot Gedolot counts it, whereas Maimonides does not, just as with all rabbinic commandments.

The practical halakhic difference could be, for example, that the commandment “sufficient for his need” requires one level of support, whereas the commandment of clothing the naked, learned from Isaiah, requires a different standard. In such a case, perhaps one could view them as two distinct commandments, rather than as a case where one is specified from the other, and therefore count both. But this is not likely in light of Babylonian Talmud, Ketubot 67b, where it is proved that the commandment “sufficient for his need” requires us to provide even a formerly wealthy man with a horse to ride. That already reflects a maximalist conception of the commandment of charity, leaving no room for adding to it on the basis of prophetic writings.

It might have been possible to understand the idea of the commandment differently. The Gemara in Babylonian Talmud, Bava Batra 9b, learns from the verses in Isaiah obligations of a different character—for example, that one must soothe the poor person with words. If so, the basis of the obligation there seems to be an inward attitude of kindness toward the poor. By contrast, from “sufficient for his need” one may perhaps learn only the duty of charity, namely to fill his lack. If so, these are two commandments of different character, and perhaps there is not even a relation of branching between them. That could explain why Halakhot Gedolot counts them separately.²⁹

In any event, the direction of this explanation is very similar to the relation we saw between “love your neighbor as yourself” and the rabbinic commandments that appear in chapter 14 of Maimonides’ Laws of Mourning, just as we also explained the relation between rabbinic commandments and “do not deviate.” In both cases, the Torah commandment concerns the heart and character traits—to love one’s fellow and to obey the sages—whereas the rabbinic ramifications are obligations of concrete action.

And indeed, it turns out, as is evident from Maimonides’ words here as well, that Halakhot Gedolot also counts these obligations, such as bringing a bride into the wedding procession, in its enumeration. This may indicate that it treats branched laws as separate commandments.

Summary and Transition to Maimonides’ Objections 2-3

In this root, Maimonides attacks Halakhot Gedolot with a logical pincer movement, that is, with two arms. On the one hand, he sees no justification for including rabbinic commandments in the enumeration of commandments at all, for Rabbi Simlai’s formulation explicitly speaks only of commandments that were given to Moses at Sinai. On the other hand, if one has decided for some reason to count them, then one must count all of them—which, of course, is impossible, since their number would run into the thousands.

Now all of Nahmanides’ remarks up to this point, in explaining the position of Halakhot Gedolot, provide reasons why it is justified to count rabbinic commandments as well. But in any case, according to all four explanations, we immediately run into the second horn of Maimonides’ attack on Halakhot Gedolot, namely objections 2-3: if Halakhot Gedolot counts rabbinic commandments, for whatever reason, why does it not count all rabbinic commandments, that is, all the other rabbinic positive and negative commandments? The technical reason is clear: the total would exceed 613 by a wide margin. But that is still not a substantive explanation. Why did Rabbi Simlai himself not count all rabbinic commandments and arrive at a higher total? Alternatively, if rabbinic commandments are not counted because of the total number, why does Halakhot Gedolot count the ones that it does count? More generally, what criterion governed the selection of those rabbinic commandments that entered the enumeration of Halakhot Gedolot from among all rabbinic commandments?

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

1. It is not clear why Maimonides and Nahmanides treat these as two separate objections and separate the discussion of them. In Maimonides there is an entire passage, dealing with commandments derived from prophetic writings, that intervenes between them. As we shall see immediately, Nahmanides too divides the discussion—in fact, he is the one who classified them as two distinct objections—and even offers them different answers.
2. It is not clear why the most decisive point in the attack—that if Halakhot Gedolot counted all rabbinic commandments, the number would rise to thousands rather than remain 613—appears only in the concluding summary at the end of the root, and not within each of the objections, 2 or 3. One would have expected this to form the primary and decisive basis of the attack, and therefore to appear right at the outset.
3. Maimonides’ language in these objections suggests that he is dealing only with the very specific examples he brought—secondary forbidden relations, with respect to prohibitions, and eruv and washing of the hands, with respect to positive commandments—and not with the whole body of rabbinic commandments. Do we really need examples to establish that there are additional rabbinic positive and negative commandments? Why precisely these examples?
4. Within his discussion in objection 3, Maimonides makes two distinct arguments against Halakhot Gedolot: first, why did it not count the secondary forbidden relations, which are rabbinically prohibited, as a commandment? This is an objection from the first root, and perhaps also from the seventh. Second, why did it not count each of the secondary relations as a separate commandment? This is an objection only from the seventh root.

At first glance, it is not clear why the second objection belongs here. Both above and in the root itself we already wondered why, elsewhere in this root, Maimonides did not object from the seventh root, apart from the discussion of “sufficient for his need.”

We will now examine the discussion of Maimonides’ objections 2 and 3, each on its own, and afterward we will return and try to explain the four difficulties presented here.

Resolution of Maimonides’ Second Objection

Even before searching for criteria and substantive explanations for the rabbinic commandments that Halakhot Gedolot chose to include in its enumeration, one may perhaps discern here the fingerprints of the principled reason for enumerating commandments at all. In the introduction we discussed several different purposes that can be found among the various enumerators of the commandments. Maimonides’ purpose in his enumeration was to create a skeleton for the halakhic edifice he constructs in his Mishneh Torah. For him, the commandments are chapter-headings of the entire halakhic structure. It is worth noting that in Halakhot Gedolot, too, the enumeration of commandments appears as an introduction to the book, and perhaps it too sees the enumeration as a skeleton for the halakhic structure built in the work.³⁰

If so, there is good reason not to count rabbinic commandments in such a framework, because the enumeration contains only the principal headings from which the whole halakhic structure is later unfolded. Rabbinic commandments are included within broader circles surrounding Torah commandments, and therefore it makes sense to choose as the headings included in the skeleton only Torah commandments. For example, there is no point in separately counting the prohibition of selecting food from refuse on the Sabbath, which is prohibited only rabbinically. The laws relevant to that case will be included under the prohibition of selecting refuse from food on the Sabbath, which is of Torah status—though the laws of sorting themselves, together with all the other labors, are included under the general commandment to rest and do no labor on the Sabbath.³¹

However, there are rabbinic commandments that are not included within any such circle around a Torah commandment. For example, the commandment of the Hanukkah lamp or the reading of the Megillah cannot be included under any Torah law. How is Maimonides to ensure that the laws pertaining to these rabbinic commandments will not be forgotten? Under what heading would they be included in his book? Apparently he would have to construct a special category for them and include them in his enumeration. This is, admittedly, a technical consideration, and it does not concern the essence or halakhic authority of these commandments, but we saw in the introduction that such considerations are indeed involved in the arrangement of Maimonides’ halakhic structure.³²

Thus, even at first glance, one would expect innovative rabbinic commandments—those that cannot be placed within any circle around some Torah commandment—to appear as separate headings, that is, to be included separately in the enumeration of commandments.

Maimonides himself, however, includes no rabbinic commandments at all in his enumeration. It seems that the reason is that Maimonides’ enumeration is built not only on organizational considerations but also on substantive considerations about the status of commandments.³³ In the introduction we noted that the first two roots have a different character from the others, because they set forth principles of non-enumeration based on authority and status; these are substantive principles and not merely classificatory ones.

Yet an examination of the list of rabbinic commandments that Halakhot Gedolot includes in its enumeration suggests that they are probably only innovative commandments. When Nahmanides discusses objection 2, which deals with rabbinic positive commandments, he writes explicitly that Halakhot Gedolot counted only rabbinic positive commandments that are innovative, meaning commandments not included in Torah commandments as extensions of them. The same seems true from his treatment of objection 3, to which we shall return below. This makes sense in light of the fact that Halakhot Gedolot lists the commandments at the beginning of its book, apparently for a reason similar to Maimonides’ own—so that they will serve as the skeleton of the work. For it, the commandments are the subheadings of its halakhic book. Therefore it includes rabbinic commandments as well, but only when they function as independent headings. For this reason it does not include other rabbinic commandments, namely those that fall under already counted Torah commandments. It would seem that Maimonides, too, understood this basis of Halakhot Gedolot, as we shall now see.

The examples Maimonides brought in objection 2 as rabbinic positive commandments that Halakhot Gedolot ought to have included are washing the hands and eruv. These two as well are innovative rabbinic commandments and cannot be subsumed under the heading of any Torah commandment. From this it appears that Maimonides had already grasped the criterion of Halakhot Gedolot, according to which it counts only innovative rabbinic commandments. That is why he objects specifically from these two and not from all rabbinic commandments. This explains the second difficulty noted above. Other rabbinic commandments, the non-innovative ones, are not counted because of the seventh root, and not only because of their lower halakhic standing.

We can now also understand why Maimonides does not present, at the outset, the consideration that the enumeration according to Halakhot Gedolot should have contained thousands of commandments. If we are speaking only about innovative commandments, their number is relatively small. It is true that at the end of his remarks he adds this difficulty as well, but that is only a secondary supplement. Perhaps it is added from Maimonides’ own perspective, which sees all rabbinic commandments as branches with independent content stemming from “do not deviate,” and therefore does not distinguish them from innovative commandments. This explains the third difficulty noted above.

Observation 7: On the Nature of Washing the Hands and Eruv

What, then, would Halakhot Gedolot actually answer to this difficulty? We are clear that it included only innovative commandments in its enumeration, but at least these two it should have added. The natural explanation is that, in its view, these two are not really innovative commandments, like Hanukkah and Purim, but rather details within Torah commandments, and that is why Halakhot Gedolot did not count them.

Nahmanides discusses this matter at length and proposes an explanation in that direction. At the outset he explains that these two are not “commandments” in the full sense, but only “permits.” According to his proposal, the commandment of eruv is not a rabbinic positive commandment. Rather, the sages determined that one who carries without an eruv violates, by rabbinic law, the prohibition “you shall do no labor.” Thus eruv is not a positive commandment but a prohibition, and making the eruv is merely a means of carrying permissibly and thereby avoiding the prohibition, that is, a permit. The same is true of washing the hands: according to Nahmanides it is not a positive commandment, but a permit vis-à-vis the rabbinic prohibition on eating ordinary food without washing the hands. According to Halakhot Gedolot, these are not commandments at all, because they command us to do nothing, and therefore they are not counted. As Nahmanides notes, Halakhot Gedolot also did not include ritual slaughter in its enumeration, even though it is certainly a Torah commandment.³⁴

Yet Nahmanides adds another layer to the explanation. His claim is that the prohibition of eating ordinary food without washing the hands is a detail within the prohibition of eating terumah in impurity, and that the prohibition of carrying without eruv is a detail within the prohibition of carrying. Therefore these are not innovative commandments, and they should not be counted separately. They are to be included under the already counted Torah parent commandments. This is a different explanation from the previous one, because according to it these injunctions may indeed be seen as commands, and still there is no reason to count them—by virtue of the seventh root.

The question then arises: why does Nahmanides not suffice with this second foundation, and instead enter into a detailed discussion of whether these positive commandments are merely permits or actual commandments? At first glance, even if they were genuine commandments and not permits, there would still be no reason to count them, because they would be included under Torah commandments.

It seems that the reason Nahmanides elaborates in presenting washing the hands and eruv as permits is that there are no Torah positive commandments under which they can be naturally subsumed. Which Torah commandment could include the rabbinic obligation of washing the hands? And which could include making an eruv?

Let us emphasize: if these two were indeed real commandments and not merely permits, then the commandment of Sabbath-rest could not include the commandment of making an eruv, and the commandment of eating terumah in purity could not include washing the hands for ordinary food. What connection is there between them? Can making an eruv, as a positive act, really be regarded as a subsection of the prohibition of carrying? Here the fit is especially strained, because one is a prohibition and the other a positive act. Only if we understand eruv as a permit, that is, as an act that enables carrying and prevents one from violating the prohibition of carrying, is there any justification for viewing it as a subsection of that prohibition. If so, had these been rabbinic commandments and not permits, we would have had to regard them as independent commandments and include them in the enumeration. Therefore Nahmanides explains that these are permits, and therefore they should not be counted. In reality, the injunction that underlies them is a rabbinic prohibition. And those prohibitions are extensions of Torah prohibitions, and therefore they too are not counted.

The conclusion, then, is that these two are not omitted from the count because they lack any imperative dimension. To say that they are permits means that they express prohibitions and not positive commandments. There is no obligation to wash the hands. Rather, there is a prohibition on eating ordinary food in impurity, and washing the hands is the permit that allows the eating. But once we are dealing with a prohibition, it can be included as a detail within the prohibition on eating impure terumah. According to our proposal, these two arguments are not two different answers within the position of Halakhot Gedolot, but one two-stage move.

Resolution of Maimonides’ Third Objection

Nahmanides then turns to objection 3, asking why Halakhot Gedolot does not count rabbinic prohibitions as well. It should be noted that Halakhot Gedolot does not count even a single rabbinic prohibition in its enumeration, and perhaps this is because it sees all rabbinic prohibitions as details within Torah commandments and not as innovative commandments. If so, that fact fits well with our claim above that Halakhot Gedolot counted only innovative rabbinic commandments.

The main example brought by Maimonides in his attack is the prohibitions known as the secondary degrees of forbidden sexual relations. And indeed Nahmanides explains here, in Halakhot Gedolot‘s favor, that it did not count them because these rabbinic prohibitions are fences and safeguards, decreed lest one come to violate a Torah prohibition, and therefore they are included under the already counted Torah commandments. This is exactly what we wrote above in explaining the position of Halakhot Gedolot.

The main sugya dealing with the secondary forbidden relations is in Babylonian Talmud, Yevamot 21a, where they are presented as an ordinance of King Solomon together with eruvin and washing the hands—precisely the three examples that Maimonides brought in his attack on Halakhot Gedolot. And Tosafot Yeshanim, printed there on the page under “until Solomon came,” ask why in the parallel sugya in Babylonian Talmud, Eruvin 21b, the secondary forbidden relations are not mentioned, and only washing the hands and eruv are. They answer:

It mentions only matters that depend on wisdom and the reasoning of the heart. Here, however, the matter does not depend on wisdom, but on stringency and making a fence for the Torah.

It seems that Tosafot Yeshanim states exactly the principle we have established here: rabbinic prohibitions are not innovations of the sages, but the addition of safeguards to existing commandments. Therefore they do not require special wisdom or reasoning. By contrast, innovative rabbinic positive commandments are an expression of the sages’ wisdom and reasoning, since there the enactment is based on a new rationale and not merely on a fence around an existing law. In substantive terms, the rabbinic positive commandments that are counted are only innovative ones, those grounded in a new rationale. But prohibitions are always fences and extensions of Torah commandments, and therefore rabbinic prohibitions are not counted in the enumeration, even according to Halakhot Gedolot.³⁵

Explanation of the Two Remaining Difficulties

We can now understand the two remaining difficulties regarding Maimonides’ objections 2-3. We asked why Maimonides splits the discussion into two parts. The answer is that objection 2 deals with positive commandments, and there Maimonides attacks Halakhot Gedolot on its own terms: even if it counts only innovative commandments, and positive commandments are by nature innovative commandments and not mere extensions or safeguards around existing commandments, it should still have added washing the hands and eruv, since they too are innovative commandments.

Objection 3 deals with prohibitions, and there Halakhot Gedolot counts nothing, because it does not count commandments that are details within already existing commandments. But Maimonides continues here the previous attack. If there is in fact no explanation why Halakhot Gedolot failed to count washing the hands and eruv, then apparently its criterion is not the counting of innovative commandments. If so, asks Maimonides, what then is the criterion after all? Why does Halakhot Gedolot not count all rabbinic commandments? He brings the secondary forbidden relations as an example, since they appear in the same sugya with eruv and washing the hands, but in truth his intention is to attack the whole category of rabbinic commandments. Therefore only after objection 3 does he raise the basic argument that if all rabbinic commandments were counted, the total could reach the thousands. This resolves the second difficulty we raised above, namely why Maimonides postpones the most basic attack—the one based on the total number, which would rise to thousands—to the end of his remarks.

Nahmanides divides the discussion for exactly the same reason. He shows that Halakhot Gedolot remains consistent with its own approach, counting only innovative rabbinic commandments. He explains that washing the hands and eruv, as well as the secondary forbidden relations, are not innovative commandments, each for its own reason, and therefore Halakhot Gedolot does not include them in its enumeration.

Two Types of Non-Innovative Rabbinic Prohibitions

At the end of his remarks Nahmanides adds the following:

These secondary relations too are not attached to the prohibition “do not deviate,” for they have no place in the semantic scope of the Torah, and the sages cannot include them within a Torah prohibition. Rather, they and others like them are attached to the positive command, “You shall keep My charge.” And they expounded there in tractate Yevamot 21a: “Make a safeguard for My charge.” They asked there: But is that not de’oraita? It is de’oraita? The sages explained: the entire Torah too was explained by the sages, as rabbinic law, and the verse is only a mere asmakhta, just as when they attached other matters to the prohibition “do not deviate,” that too is only a mere asmakhta.

These remarks are presented by Nahmanides as a continuation of his explanation of the position of Halakhot Gedolot, but from their content it is clear that here he is stating his own position, for according to Halakhot Gedolot the reliance on “do not deviate” is not an asmakhta but full Torah law.

Nahmanides’ wording here itself requires explanation. What does he mean when he says that these prohibitions “have no place in the semantic scope of the Torah, and the sages cannot include them within a Torah prohibition”? What exactly is the meaning and definition of this distinction, and what is the reasoning that separates these two kinds of prohibitions?

At first glance, Nahmanides means that the secondary forbidden relations are not included in the linguistic meaning of the Torah, and therefore they are not based on “do not deviate” but on “My charge.” But why should the reasoning that they are not included in the language of the Torah lead to an asmakhta in “My charge” rather than in “do not deviate”? And another difficulty: has not Nahmanides himself just now established that the secondary relations are indeed included in the commandments of forbidden relations, and therefore should not be counted separately?

To explain this, let us define two different kinds of rabbinic extensions of Torah commandments, and illustrate them by the laws of the Sabbath. The later authorities have shown that there are two kinds of rabbinic prohibitions in the laws of the Sabbath:[^391]

1. There are labors that are rabbinic extensions of Torah labors. For example, selecting food from refuse. This is rabbinic sorting, because the form of the act is exactly like sorting, except that one side-condition is missing—that the refuse be separated from the food—in order for it to count as the Torah labor of sorting.³⁶

2. There are rabbinic fence-prohibitions, such as riding a horse on the Sabbath. Riding was prohibited lest one pluck a twig and violate the prohibition of reaping. But riding itself cannot be regarded as rabbinic reaping, for riding a horse is not an act of the kind called reaping at all. It is a newly prohibited act whose purpose is to prevent violation of a Torah labor on the Sabbath.

These two kinds of prohibition are two different kinds of extension of Torah prohibitions. The first kind is extension in the simple sense: an extension of the legal definition of a prohibited labor on the rabbinic level. One who selects food from refuse is also considered to be sorting, that is, performing a prohibited labor on the Sabbath, though only rabbinically. The second kind, by contrast, is not an extension of any labor, because riding is not a kind of reaping, not even on the rabbinic level. Yet it can still be seen as something peripheral to the Torah commandment for which it serves as a fence. It is a detail relating to the labor of reaping, but not a rabbinic extension of that labor. Of course, beyond these two there is a third kind of rabbinic commandment, namely innovative commandments. These do not extend and are not included in any Torah commandment, and as we have seen, only commandments of that kind are included in the enumeration of Halakhot Gedolot.

We may now return to the quotation from Nahmanides. When he refers there to commandments that “are not within the meaning of the language of the Torah,” he does not mean innovative commandments such as the Hanukkah lamp. He is dealing here with commandments that are extensions, since the subject is the secondary forbidden relations. It seems, therefore, that he means rabbinic commandments of type 2. These do not constitute a rabbinic labor, since they are not within the meaning of the Torah category of reaping, that is, they are not similar in legal character to the Torah labor. These are new prohibitions that do not belong to the category of a rabbinic labor at all, but rather to the category of a fence.

If so, the conclusion is that Nahmanides holds that the secondary forbidden relations are not type-1 extensions but type-2 extensions. One who has relations with a secondary forbidden relative—for example, his great-grandfather’s wife—is not performing an act prohibited by the Torah. Rather, this is a distancing measure from the prohibition of his father’s wife, which is written explicitly in the Torah. See Rashi in the sugya in Yevamot there, under “and his great-grandfather’s wife,” and many similar examples in that passage.

Nahmanides goes on to argue that prohibitions of type 2 are based specifically on “My charge,” and not on “do not deviate.” By contrast, type-1 extensions, such as a rabbinic Sabbath labor, are based on “do not deviate.” Therefore the secondary forbidden relations, which according to Nahmanides belong to type 2, are based not on “do not deviate” but on “My charge.”

The logic of this distinction is simple. Fence-prohibitions are exactly a safeguard for the Torah’s own safeguard. Around a Torah prohibition, one places an additional safeguard. By contrast, a prohibition that is a rabbinic extension of a labor is not a safeguard at all, but an additional substantive prohibition whose basis is rabbinic.³⁷ In that sense it is more similar to innovative commandments, since it emerges from the sages’ own wisdom and reasoning. Such a prohibition cannot be based on “My charge,” but only on “do not deviate,” that is, on the duty to obey the sages’ innovations. The second type and the innovative commandments are both, at root, a process of legislation from nothing. By contrast, the first type, extension, is a kind of interpretation. True, it is an interpretation that does not merely uncover what is in the text but expands it by analogy. Its halakhic status is lighter than that of an ordinary Torah commandment or its ordinary interpretation, yet there is here a significant interpretive component and not merely a legislative one. We shall return to this point in greater detail in the second section.

This fits very well with the explanation we proposed above for Nahmanides. He sees “do not deviate” as a source, by way of asmakhta, for rabbinic commandments. But what is the core meaning of “do not deviate”? The duty to obey the sages’ interpretation of the Torah. If so, even the asmakhta learned from “do not deviate” resembles the original law itself. Laws that can be regarded as a kind of rabbinic expansive interpretation may be grounded in “do not deviate,” because there is here something akin to interpretation. But laws that are fundamentally fences are learned from “make a safeguard for My charge,” as above.

This distinction appears explicitly in Nahmanides’ words, cited earlier in chapter 1 of the first section, regarding Babylonian Talmud, Shabbat 23a. There the Amoraim disagree about why we say “and commanded us” in the blessing over lighting Hanukkah candles, even though that is a rabbinic commandment. According to Rabbi Avya, the phrase “and commanded us” is based on “do not deviate,” and according to Rav Nahman bar Yitzhak it is based on “Ask your father and he will tell you.” Nahmanides explains that Rav Nahman bar Yitzhak holds that the asmakhta from “do not deviate” was said only about rabbinic commandments that are included within some Torah commandment, which is our type 1. In that case, they have a status like that of an expansive interpretation of that commandment. As we saw, although these are rabbinic laws, there is also an interpretive component here and not merely legislation.³⁸ By contrast, when we are speaking of innovative commandments, like the Hanukkah lamp, there is no interpretive basis at all; this is pure legislation. Therefore, according to Rav Nahman bar Yitzhak, an altogether different source is required, namely the verse “Ask your father and he will tell you.”

In his remarks here Nahmanides adds another distinction, internal to the category of expanding commandments, that is, the non-innovative ones. He distinguishes between commandments that are expansions of de’oraita and therefore rest on “do not deviate,” and safeguards that rest on “My charge.” Indeed, if we examine the examples he gives there, even though this further distinction is not explicitly mentioned there, it seems that he brings only examples that truly fit, in light of his present remarks, as being grounded in “do not deviate,” namely expansions of de’oraita. This is his language there:

Rav Nahman bar Yitzhak said that there is support in that prohibition, “do not deviate,” only for their rulings that have some root in the Torah. But the innovative commandments instituted by them have no support except in the verse “Ask your father and he will tell you; your elders, and they will say to you.” The reason is clear: the matters they add within the Torah’s own commandments are something like the interpretation of the Torah. For they, of blessed memory, say: every mixture of wool and linen is a forbidden mixture, and every activity forbidden as part of Sabbath-rest is labor, and the like. Had that truly been their view of the Torah itself, we would certainly be obligated to believe them on the basis of this prohibition, because it obligates us to believe the interpretation of the Torah according to the interpretation they give.

The rationale given there at the end also points to the distinction Nahmanides makes here. He explains that expansions of de’oraita are included in “do not deviate” because they could also have been interpretation. But safeguards, such as riding a horse on the Sabbath, clearly cannot be interpretation of the Torah’s commandments, since they bear no resemblance at all to the labor of reaping. In that sense they are like innovative commandments. Therefore it is obvious that one must find for them a different source, and that is the law of “make a safeguard for My charge,” as explained in his remarks here.

So far we have dealt with prohibitions. What about rabbinic expansions of Torah positive commandments? At least in principle, the same distinction should appear there as well. For example, the obligation to separate terumah or tithes from produce not biblically liable for them is a rabbinic positive commandment that is a type-1 extension of the Torah commandment of separating terumot and tithes. By contrast, the prohibition on eating before performing a commandment is a safeguard intended to ensure fulfillment of the commandment, and therefore it should not be seen as an extension of the commandment itself. The prohibition on eating before recounting the Exodus from Egypt cannot be regarded as an extension of the commandment to recount the Exodus, especially since one is a prohibition and the other is a positive command. If so, these are safeguard-extensions, that is, type-2 extensions.

This also enables us to understand Nahmanides’ explanation of objection 2. We saw that he found it necessary to explain that washing the hands, and likewise eruv, is a permit, and he adds that it could not otherwise be included within the prohibition of eating terumah in impurity. The need for the claim that these are permits is that if they were not permits, but actual commandments, they could not be included in already counted Torah commandments, for the obligation to wash the hands cannot be regarded as the prohibition on eating terumah in impurity. One is a positive obligation and the other a prohibition, and these are two entirely different acts. Only because washing the hands is a permit, and its underlying logic is a prohibition on eating in impurity, can one say that eating ordinary food in impurity is rabbinically akin to eating impure terumah, that is, a standard extension of a Torah commandment.³⁹

From all this it follows that innovative commandments are not based on “do not deviate,” because they are not interpretation but legislation. On the other hand, these commandments are also unlike safeguards, which are learned from “My charge,” because they do not serve as a safeguard for any already counted commandment. This is why Rav Nahman bar Yitzhak finds for them a source in “Ask your father and he will tell you.” Rabbi Avya, to be sure, who disagrees there in the sugya, sees even these as deriving from “do not deviate.” For Halakhot Gedolot and Maimonides, that is a real source; for Nahmanides, it is only an asmakhta.

The Source of the Obligation to Obey the Sages According to Nahmanides

As we saw above, Nahmanides is unwilling to accept the understanding of Maimonides, and of Halakhot Gedolot, that rabbinic commandments branch from “do not deviate.” He assumes that if there is a connection to “do not deviate,” then it must be specification and not branching. But such a connection would lead to Torah status for all rabbinic commandments, and therefore Nahmanides finds himself compelled to conclude that there is no such connection between rabbinic commandments and “do not deviate,” except perhaps by way of asmakhta. Above we suggested that Nahmanides’ intention is this: from the authority the Torah gave the sages to interpret it, one learns by a distant analogy, and therefore by way of asmakhta and not full interpretation, that they also possess authority to legislate.

Now we can see this more precisely. We have seen that Nahmanides finds a source for expansions in “do not deviate,” while the other laws are learned from other sources: safeguards from “make a safeguard for My charge,” and innovative commandments from “Ask your father and he will tell you.” In the words of Nahmanides quoted in the previous subsection, one may detect a hint to his reasoning why one must obey the sages even with respect to expansions on the basis of “do not deviate,” although they are not derived from “My charge.” He writes:

The reason is clear: the matters they add within the Torah’s own commandments are something like the interpretation of the Torah. For they, of blessed memory, say: every mixture of wool and linen is a forbidden mixture, and every activity forbidden as part of Sabbath-rest is labor, and the like. Had that truly been their view, we would certainly be obligated to believe them on the basis of this prohibition, for it obligates us to believe the interpretation of the Torah according to the interpretation they give.

Nahmanides explains that the duty to obey the sages in the expansions they make—as distinct from safeguards and innovative commandments—follows from their authority to interpret. What exactly is the link between the two?

It would seem that this is connected to what we saw above when distinguishing the two kinds of rabbinic law. We saw that expansions, unlike safeguards, contain an interpretive component. The sages expand the law written in the Torah and define a rabbinic labor. If so, a rabbinic expansion contains an interpretive element in addition to the legislative element present in every rabbinic law. Since, according to Nahmanides, “do not deviate” is the basis for the authority of the sages to interpret and expound, but not a source for the authority to legislate, it may be learned from there by analogy that they also have authority to extend Torah law to a broader circle. True, these expansions are remote analogies that do not merit the status of ordinary interpretation or ordinary midrash, that is, the status of Torah law. But earlier we suggested that Nahmanides follows the Ritva in holding that an asmakhta is a kind of inference and not merely a mnemonic device. Here again we see that, according to Nahmanides, the asmakhta from “do not deviate” is the source of the obligation to obey enactments of this kind. We can now understand why he ties this specifically to that verse.

It is worth noting that Nahmanides writes in several places that the Torah was given to us under the authority of the sages. What they say is itself the Torah’s will. See, for example, his comments on the passage of conspiring witnesses, Deuteronomy 19:19, and above in chapter 2, possibility 2. This is another facet of the same conception: he holds that the interpretations and expansions of the sages are part of the Torah itself. If so, this is a continuation of proposal 2 in our understanding of Nahmanides’ position.

However, the plain sense of his wording here suggests an additional explanation, perhaps another angle on the same explanation. His language implies a kind of argument from greater power, a “since they could have” argument.⁴⁰ Nahmanides writes that since the sages could have obligated us in these laws—for if they had claimed that these laws were an interpretation of the Torah, we would have been Torah-bound to observe them by force of “do not deviate” regarding interpretation, a point Nahmanides himself accepts—it follows that they also have the power to legislate these laws as extensions of de’oraita.

As for safeguards, we saw that they could not be regarded as interpretation of the Torah’s commandments, and therefore the sages lack this “since they could have” leverage with respect to them. For that reason the Torah commands this separately in the law of “make a safeguard for My charge.” That is a different Torah source for these commandments.

This is probably the explanation for the distinction between different kinds of rabbinic commandments, as we also saw in Maimonides’ language at the beginning of the Laws of Rebels, cited above: enactments, safeguards, and decrees. According to our explanation of Nahmanides, enactments are generally expansions of existing commandments, and the source of their force is this “greater power,” to which “do not deviate” serves as an asmakhta. Safeguards are rabbinic distancing measures, whose source is “make a safeguard for My charge.” And perhaps decrees are innovative commandments, newly legislated by the sages.⁴¹

The Distinction Between the Source of “Do Not Deviate” and the Source of “Make a Safeguard for My Charge”

The wording of the verse says, “Do not deviate from the thing that they tell you.” The verse addresses the ordinary Jew and instructs him to heed the sages. By contrast, the command “make a safeguard for My charge” is a positive commandment, and its wording proves that it addresses the sages and not the ordinary Jew. It instructs them to make a fence and safeguard for the Torah in order to preserve its charge. We may now ask: what obligates ordinary citizens to observe those safeguards? Unlike “do not deviate,” and also unlike the positive imperative “you shall do,” this command addresses only the sages and not the ordinary citizen.

At first glance, this is an implied inference, similar to what we saw above in the view of the Tzafnat Paneah on Maimonides. If the Torah commands the sages to make a safeguard for its charge, then clearly every Jew must be obligated to obey the safeguards they make; otherwise the whole notion of a safeguard would be meaningless. A commandment of this kind addresses the public, with each part of the public filling its own role: the sages, whose task is to enact and decree, and the individuals who observe halakha, whose task is to obey the enactments and decrees. Thus, from the command laid upon the sages to make a safeguard, we learn indirectly that there is also an obligation on the ordinary citizen to obey them.

Yet it is clear that Nahmanides cannot regard this consideration as a full de’oraita source, because if it were such a source, then laws of this type would have to be Torah laws, and all the objections that Nahmanides raised against Maimonides would apply equally to him—for example, that in cases of doubt one would have to be stringent, and so forth. Therefore, it is clear that what he has in mind here is a branching that creates laws whose force is rabbinic. In that sense, this is a mechanism entirely parallel to the one we proposed for Maimonides.

Observation 8: Individual and Collective⁴²

In our discussion we raised an interpretive consideration that derives the obligation of individuals from the obligation of the collective, or of the governing authority. If the high court has a duty to enact ordinances, it is obvious that the public also has a duty to obey those ordinances. Our claim was that no separate source is needed. This is similar to what we proposed in explaining the branching from “do not deviate” according to Maimonides: if there is authority, then there is also a duty to obey it.

To some extent, the mechanism we proposed can explain the relation between individual and collective in halakha in general. We know of many commandments that are imposed on the collective and not on individuals. For example, the commandment to build the Temple, to appoint a king, to wipe out the seed of Amalek, and so on. The category called the “sections” in the writings of the early enumerators of the commandments constitutes a separate and distinct category which, according to some interpretations, contains the commandments imposed on the collective. The question that arises here is: what is the obligation of the individual in such matters? If each individual is exempt from this commandment, and no responsibility for its neglect rests on him, then the commandment will never be fulfilled except by the voluntary initiative of some person who organizes the collective fulfillment. And if no such person arises, who is guilty of neglecting the positive commandment? Do individuals have no share in the duty to fulfill the collective commandment?

Take as an example commandments imposed on the court. May a person sentenced to death flee the court in order to save his life? Perhaps he would even be permitted to kill the court’s agent under the law of self-defense against a pursuer.⁴³ Might a litigant or witness also be permitted to lie in order to save the life of a person condemned to death? Clearly, commandments imposed on the court are in practice imposed on the whole public as well, and each of its individuals is expected to do his part so that the public commandment be fulfilled. Once a commandment is imposed on the public, various obligations are thereby generated for individuals. What is the nature of that obligation? Has each individual violated a positive commandment? It is hard to assume that, for not every individual is to blame for the commandment’s neglect. If the public as a whole is unwilling to perform the commandment, how can we place the blame for neglect of the positive commandment upon the individual who wanted it to be fulfilled?

Against this background, it is interesting to note that in halakhic terminology the term “court” sometimes means the entire public, and sometimes even every individual within the public. For example, in the halakhic statement—one that was not accepted as normative law; see Babylonian Talmud, Yevamot 114a and elsewhere—”If a minor is eating forbidden foods, the court is commanded to stop him,” all the commentators agree that the term “court” here means every Jew, and not necessarily a formal court. Perhaps this hints that the obligation to fulfill the collective commandment is cast upon every individual.

A very interesting example of this relation appears in the context of the commandment of Hakhel.⁴⁴ The Gemara in Babylonian Talmud, Kiddushin 34a states that women too are obligated in Hakhel, even though it is a positive time-bound commandment. No explanation is given there, except that the Torah itself states explicitly, in Deuteronomy 31:12, “Assemble the people, the men and the women and the little ones.” This is also how the halakha is ruled, and it is likewise recorded by the enumerators of the commandments; see Maimonides’ Sefer Ha-Mitzvot, positive commandment 16, and Sefer Ha-Hinukh, commandment 612. That same verse makes clear that the little ones, too, are included in this commandment, and so too this is stated in the Talmud and in the legal decisors.

In Sefer Ha-Hinukh, this law is presented in an unusual way. In all commandments, Sefer Ha-Hinukh concludes by listing all those who are obligated in the commandment, in the standard formula, “This commandment applies in every place and at every time, to males and females.” Here, however, that is not stated at all. It seems that Sefer Ha-Hinukh relies on the opening passage:

We were commanded that all Israel—men and women and little ones—be assembled at the conclusion of the sabbatical year, on the festival of Sukkot, on the second day of the festival, and that some of the book of Deuteronomy, namely “These are the words,” be read into their ears. Of this it is said, “Assemble the people, the men and the women and the little ones,” and so forth. This is the commandment of Hakhel mentioned in the Talmud, as they said at the beginning of Kiddushin 34a: “But Hakhel is a positive time-bound commandment, and women are obligated.” And they explained at the end of the matter: “We do not derive law from general rules,” meaning that in truth women are indeed obligated in this commandment.

At the end, however, the obligation of women is hinted after all, when he concludes, in his usual style, with the law of one who transgressed and did not fulfill the commandment:

One who transgresses this, whether man or woman, and does not come at this appointed time to hear the words of Torah, and likewise the king if he does not wish to read, has neglected this positive commandment. Their punishment is very great, for this commandment is a mighty pillar and a great glory in the religion.

That is, the conclusion refers only to the punishment of the one who transgresses, and not to the question who is obligated in the commandment. Below we will explain the obligation of women, and through that also the structure of Sefer Ha-Hinukh‘s language here.

One should also note that although the plain sense of the Torah suggests that the little ones too are obligated in this commandment, these decisors do not discuss the little ones. That can be understood in light of Babylonian Talmud, Hagigah 3a-b, which states that the little ones come only in order to grant reward to those who bring them. It seems, then, that the little ones themselves are not obligated, and that there is only an obligation on the parents to bring them.

Indeed, Minhat Hinukh, commandment 612, section 4, under the words “and the little ones,” writes that the explanation is that the obligation is not on the little ones themselves but on those who bring them. Therefore he concludes that even a deaf minor is included in Hakhel, because a deaf person is exempt from obligations that rest on himself, whereas the little one is not obligated in his own right at all; rather, the parent is obligated to bring him. Therefore the exemption of a deaf person is not stated here.⁴⁵

However, from the words of the Turei Even on that sugya in Hagigah it emerges clearly that the obligation is on the little ones themselves, against the position of Minhat Hinukh. He discusses whether the obligation to bring the children rests on the father or on the court. In the course of that discussion he cites a proof that assumes a minor cannot be obligated in Hakhel if he owns no land. But according to Minhat Hinukh, there is no proof here at all, because the exemptions stated regarding an adult do not apply to the minor.⁴⁶

How can obligations be imposed on a minor at all? After all, a minor is exempt from all commandments. On this matter we find a dispute among the Rishonim concerning the commandment of education; see Tosafot to Babylonian Talmud, Berakhot 48a, under “until he eats,” and also Kehillot Yaakov on Sukkah, section 2. Tosafot hold that the obligation is on the child himself, that is, the nature of the commandment of education is that the minor himself is rabbinically obligated in commandments. Rashi, by contrast, holds that the obligation is on the father to educate his son.

And what about slaves? From Maimonides, at the beginning of chapter 3 of the Laws of Festival Pilgrimage, it appears that they are exempt from Hakhel, because there is an analogy between appearing in the Temple and Hakhel. The author of Lehem Mishneh there wonders why slaves should be exempt, for anything in which a woman is obligated, a slave is also obligated, since there is an analogy between slave and woman. He cites a source from the verse “when all Israel comes to appear,” implying Israel and not slaves, though there is no clear source for this in the rabbinic literature.

The main principle in this commandment, which explains all the difficulties above, is that the obligation of Hakhel is on the collective and not on the individual citizen. This is explicit in the verse that opens the passage: “Assemble the people, the men and the women and the little ones.” So too Sefer Ha-Hinukh opens its discussion: “We were commanded that all Israel, men and women and little ones, be assembled at the conclusion of the sabbatical year on the festival of Sukkot.” And in Maimonides, positive commandment 16: “He commanded us to assemble the whole people on the second day of Sukkot.” Likewise, at the beginning of chapter 3 of the Laws of Festival Pilgrimage, Maimonides writes: “It is a positive commandment to assemble all Israel, men and women and little ones.” For this reason, Halakhot Gedolot counts the commandment of Hakhel among its category of “sections,” that is, commandments imposed on the collective.

If so, the fact that women are obligated in this commandment is because they are part of the collective. If this were a commandment upon individuals, they would be exempt, since it is a positive time-bound commandment. But if the collective is obligated in this commandment as a collective, then all the constituent individuals are included in it automatically.

We can now also understand the unusual structure of Sefer Ha-Hinukh here. The addressee of this commandment is the collective, and therefore there is no point in specifying who is obligated in it, as one does with commandments imposed on the individual. As we saw, he already defines the commandment at the outset as one imposed upon the collective, and therefore there is no point in returning to the obligation of individuals.

This also explains the remarks of Lehem Mishneh quoted above. The analogy between a slave and a woman concerns commandments in which women are obligated as individuals. In such commandments, a slave too is obligated because he is likened to a woman. But in Hakhel, a woman is not obligated as an individual. The party obligated is the collective, and therefore there is no basis for drawing an analogy from her to the slave. What, then, is the slave’s status with respect to Hakhel? Lehem Mishneh answers that a slave is not included in the Israelite collective, and therefore he is exempt from Hakhel, for with regard to Hakhel the verse says, “when all Israel comes.”

We can now understand why the Turei Even holds that the commandment rests on the little ones themselves, even though minors are exempt from commandments. Here they are not obligated as individuals, but as part of the collective. Perhaps Minhat Hinukh holds that they still are not part of the collective, and therefore he argues that the obligation is on the parent and not on the child himself.

We now come to the main point. Sefer Ha-Hinukh concludes by saying that one who transgresses and does not come to Hakhel, whether man or woman, has neglected this positive commandment and his punishment is great. This is the determination of the obligation on the individual, derived from the commandment imposed on the whole. We saw that the commandment itself rests on the collective, and that the one who fulfills it is the collective as a whole. But it will never be fulfilled if there is no obligation on the individuals with respect to it. Therefore the definition proposed by Sefer Ha-Hinukh is that if there is an individual who did not come, then each such individual is guilty of neglecting this commandment. Even though the commandment is not fulfilled by the individual but by the collective, still an individual who did not come bears neglect of a positive commandment. Fulfillment belongs to the collective; neglect belongs to the individuals.

Such a definition is required because of the anomaly of collective commandments. Usually there are two mutually exclusive situations: either a positive commandment is fulfilled, or there is neglect of a positive commandment. But with Hakhel there can be a situation in which the commandment was fulfilled—if the public as a whole appeared in Jerusalem and was present at the ceremony—and yet there are still Jews, namely those who did not come, to whom neglect of the positive commandment of Hakhel is attributed. Those who came helped the collective fulfill the commandment; those who did not come neglected it. In collective commandments, then, fulfillment of the commandment and neglect of it can appear together.

It is noteworthy that even the Turei Even, who held that the commandment rests on the little ones themselves, still discusses upon whom the obligation lies to bring them—the father or the court. The reason is that although the commandment rests on them, there is an obligation on the parents, or on the court, to ensure that it is carried out, because one cannot rely on minors. Here we encounter another principle: sometimes the one who fulfills the commandment is not the one upon whom the Torah places responsibility for its execution. The little ones fulfill the commandment, but responsibility for ensuring that the commandment is carried out rests on the parents. This is similar to what we saw in the relation between the collective and individuals. The commandment rests on the collective, but the ones who must ensure that it is carried out are the individuals. Thus, if the child does not come to Hakhel, the child has indeed failed to fulfill the commandment, but the neglect is charged to the father—just as we saw that responsibility for the neglect of Hakhel rests on the individual even though the party obligated is the collective.

The above-mentioned Kehillot Yaakov on Sukkah cites the position of Tosafot in Berakhot 48a that the obligation of education rests on the child himself, and challenges them from Babylonian Talmud, Nazir 29a, where Reish Lakish and Rabbi Yohanan dispute whether the obligation of education rests on the mother as well or only on the father. At first glance, that sugya proves that the obligation is on the parents and not on the child. Kehillot Yaakov explains Tosafot as positing two laws in education: an obligation on the father and an obligation on the son. This is merely a technical formulation, but what he apparently means is exactly what we have seen here: the obligation to perform the commandment is on the child; the responsibility to ensure that it is in fact performed, that the child fulfills his obligations, rests on the parents.

From where do these two laws arise? Were there two separate enactments regarding education? Clearly his intention is what we wrote above: the child is indeed obligated, but one cannot demand of him the responsibility to fulfill the obligation, because he is a child. That responsibility rests on the parents. This is exactly what we saw regarding Hakhel: imposing the obligation on the collective teaches us that the responsibility rests on the individuals who make up the collective. And this is the same reasoning we saw in the main discussion above: imposing an obligation on the sages teaches us that the public has an obligation to obey them, and no special source is needed for that. The Torah demands from everyone involved in the matter that he contribute to the fulfillment of the obligation imposed upon us. Without the public, the sages too cannot fulfill their obligation, and therefore responsibility for fulfilling the commandment rests on all the citizens of the public.

Another example of this issue may be found in the laws of public Torah reading. There are several indications that the commandment of Torah reading is a reenactment of the giving of the Torah, and therefore it is a commandment imposed on the collective. But there are two types of public commandments that require an assembly of ten people. The Mishnah in Babylonian Talmud, Megillah 23b, does not list the reading of the Megillah among the matters that require ten, but it does list Torah reading. Nahmanides, in Milhamot, there, explains that reading the Megillah is a commandment imposed on the individual, but it must be performed in the presence of ten. Torah reading, by contrast, is a commandment imposed on the public itself, that is, on the quorum of ten. The practical difference is that for the Megillah one may take nine people who have already heard it, and then the one individual who has not yet heard it will still be considered to have read it in public. With Torah reading, however, that is impossible, because if there are not ten who have not yet read, there is no public that is obligated in the commandment and fulfills it.⁴⁷

Usually people point to the following practical difference between these two conceptions: if the commandment is communal, the individual may leave in the middle, as it were. The public that remains there will fulfill the obligation, and as to him, the obligation is not personal. One might even go further and say that such an individual may leave even if he is one of the ten and without him no quorum will remain. In the case of the Megillah, where the obligation rests on him personally, he obviously cannot leave if he has not yet read.

But in light of all we have said, it seems that even in Torah reading the individual may not get up and leave. The individual is responsible for ensuring that the public fulfills its obligation, exactly as we saw above with respect to Hakhel. This is especially true when the individual is needed to complete the quorum, though it may also be true even if there are ten without him. He still has an obligation to hear the Torah reading, an obligation learned from the fact that the public was commanded, since it is clear that there must also be an obligation upon each individual, for otherwise the public commandment too would never be fulfilled. The party obligated in the commandment, and the one that fulfills it, is the public—but responsibility for its fulfillment rests on each individual.

And indeed one can see this in the Mishnah Berurah. In section 135, subsections 46-47, and likewise in the Bi’ur Halakha there under “one does not bring,” he discusses whether a Torah scroll should be brought to someone who has none, for example a prisoner. He explains there that the obligation of Torah reading does not arise for the individual at all when there are not ten present, and therefore a Torah scroll need not be brought to him. On the other hand, in Shulhan Arukh, Orah Hayyim 146:2, there are opinions that an individual may study quietly while ten others are listening to the Torah reading. And the Bi’ur Halakha there, under “and there are those who permit,” asks: how does that individual discharge his own obligation of reading? Here, then, he appears to assume that there is an obligation to read upon every individual—even when ten others are fulfilling the commandment without him, and he is not needed for the purpose. How does this accord with what he himself wrote above?

According to our approach, the answer is that the obligation indeed rests on the public, but responsibility to ensure that it is fulfilled rests on every individual within that public. Thus, where an individual is alone and wishes to gather nine others in order to read, there is no obligation at all. But an individual who is part of a public bears a full obligation to hear the reading, as responsibility for the fulfillment of the communal commandment, even where the rest of the public fulfills it without him and he is not needed at all.

We should note that the commandment of Hakhel is like the commandment of public Torah reading. Its obligation, too, is on the many—not on ten, but on all Israel. Here too it is a reenactment of the giving of the Torah, as with public Torah reading, and therefore the obligation is communal. At the same time, both in Hakhel and in Torah reading there is responsibility on every individual for the fulfillment of the communal commandment. That responsibility imposes the commandment itself upon the individual as though it had been addressed to him personally.

According to what we said in the body of this appendix, one may understand the obligation on the individual as branching from the obligation imposed on the collective. The mechanism that defines the unfolding of the obligation is what we have called here “branching.” From the obligation imposed on the public, we learn indirectly that there is also an obligation on the individual—for otherwise the obligation on the public would have neither meaning nor force, exactly as we argued in Maimonides with respect to “do not deviate.”

We should further note that according to Maimonides, the branched obligation, that is, the branch, is an obligation of lesser force—rabbinic, in the example we were discussing—and not of the same strength as the original obligation from which it branches, that is, the root. By contrast, according to Halakhot Gedolot it appears that both obligations—the root and the branch—have equal halakhic status. This may perhaps have implications also for Hakhel, education, and public Torah reading, which were discussed in this observation. But this is not necessary, and this is not the place to pursue it.

The prohibition of “do not deviate” is a prohibition directed to the ordinary Jew and to the rebellious elder, telling them to obey the sages’ interpretations; but it does not address the duty of obedience to rabbinic enactments and decrees. If so, the interpretive move we proposed above in Maimonides—the branching that establishes the duty of obedience—does not exist according to Nahmanides, since its basis is a prohibition on rebellion, from which we learn that the injunctions themselves also have force. But according to Nahmanides, we cannot learn from “do not deviate” the obligation to obey rabbinic enactments, except by way of asmakhta, for his position is that this verse does not command against rebellion toward rabbinic enactments. Therefore he concludes that it is only a mere asmakhta. By contrast, Nahmanides too apparently agrees that the verse “make a safeguard for My charge” instructs the sages to establish safeguards. And from that, by implication, we learn that the ordinary citizen is also obligated to obey them, just as we learned from “do not deviate” according to Maimonides. The conclusion, therefore, is that Nahmanides derives safeguards by way of branching from “make a safeguard for My charge.” He disputes only the role of “do not deviate,” but with respect to “make a safeguard for My charge” he accepts the mechanism of branching.

True, his language is that “My charge” serves as an asmakhta for the duty to observe the safeguards, but it is difficult to interpret this literally, because that verse has no other content apart from the duty laid upon the sages. It cannot be that the sages have a Torah obligation to establish safeguards while the public has no Torah obligation to obey them, for in that case the safeguards would have no value. It therefore seems that here the term asmakhta means branching. In any case, one should remember that here too the result is commandments whose obligatory force is lighter than that of ordinary Torah commandments—these are rabbinic commandments—exactly as in the branching of rabbinic commandments from “do not deviate” according to Maimonides.

Nahmanides, in his commentary to Va-Ethanan, Deuteronomy 4:2, writes almost explicitly what we have suggested. His words there are:

“You shall not add”—for example, five passages in the tefillin, five species in the lulav, five fringes in the tassels; and similarly “you shall not diminish”—this is the language of Rashi. And so they said in Sifrei: how do we know that one may not add to the lulav or to the tassels? Scripture says, “You shall not add.”

In my opinion, even one who invents a commandment on his own, such as establishing a festival in a month devised from his own heart, like Jeroboam, violates this prohibition. And thus they said, regarding the reading of the Megillah, that one hundred and eighty prophets arose for Israel and did not subtract from or add to what is written in the Torah even a single letter, except for the reading of the Megillah; what did they expound, and so on.

But that which the sages enacted as a fence, such as the secondary degrees of forbidden relations and the like, is a commandment from the Torah, provided one knows that they are by way of such a fence and are not from the mouth of the Holy One, blessed be He, in the Torah.

Nahmanides is discussing the parameters of the prohibition of adding to the Torah. He notes that adding details to a commandment is certainly included within the prohibition of adding. As for adding an innovative commandment, he decides, on the strength of his own reasoning, that this too is included under adding. Tosafot and Rashba dispute this in Babylonian Talmud, Rosh Hashanah 16b; see Observation 1 above. He then points out that when the sages enact something as a fence, such as the secondary forbidden relations—and above we saw that his own position is that these are not expansions of the prohibited relations but safeguards around them—this does not violate the prohibition of adding, because such a fence is itself a commandment from the Torah. Which commandment does he have in mind here? It is quite clear that he does not mean “do not deviate,” for that is a prohibition and not a positive commandment. Beyond that, that prohibition addresses the citizen and not the sages. It is therefore quite clear that what he means is the positive commandment of “make a safeguard for My charge.” And indeed he is speaking here about an enactment that is specifically a safeguard, and as we saw, that is exactly what is learned from “make a safeguard for My charge.”

Here, however, he refers to the addition of such a safeguard as a Torah commandment, whereas in our discussion he described this as an asmakhta. We are therefore forced to conclude that what he means is branching from “My charge.” There is a Torah commandment upon the sages to establish safeguards, and that is the commandment to which he refers here. From that, it becomes clear that there is also an obligation upon us to obey, though that obligation is rabbinic.

Nahmanides also finds it necessary here to remark that the sages must indicate explicitly, in the wording of the enactment, that it is not a Torah commandment, for otherwise they would violate the prohibition of adding—exactly as Maimonides held, as cited above in Observation 1. Here too we see, as we saw above in Maimonides, that commandments generated by branching require explicit differentiation and definition, so that they not be subsumed under the prohibition of adding. This is unlike specification, whose results truly are Torah laws, and therefore the prohibition of adding is not relevant to them. The result of specification is simply an application of the Torah commandment itself.

Summary of the Positions

Let us now summarize the positions of the three Rishonim we have discussed:

Maimonides: According to Maimonides, we concluded that the prohibition of “do not deviate” defines a prohibition directed against one who does not obey the sages out of principled refusal to recognize their authority. From this we inferred, by an implicit interpretive move, that rabbinic commandments in general possess halakhic force—for without such force, rebellion against authority would be meaningless. This is the mechanism of branching adopted by Maimonides. According to his view, the force of branched laws is rabbinic. The reason is that the Torah does not command them to us explicitly, and therefore one who violates them has not rebelled against the Torah itself. The Torah merely revealed to us indirectly the existence of a secondary normative plane of rabbinic law, which is also binding upon us. In this sense, “do not deviate” is an indicative verse and not a directly prescriptive one.

There are rabbinic commandments that are either specified from or branched from other Torah commandments, such as clothing the naked from “sufficient for his need.” If the mechanism is specification, then their authority is that of Torah commandments, but they are of course not counted because they are included within the commandment from which they are specified. If the mechanism is branching, then their authority is rabbinic, and they are not counted for that reason.

Halakhot Gedolot: Our conclusion was that the position of Halakhot Gedolot is very similar to that of Maimonides, but the dispute between them is not merely interpretive. It too agrees that the source of the obligation to obey the sages is “do not deviate.” From that prohibition there branches the obligation to obey all rabbinic commandments, in a manner similar to Maimonides. However, Halakhot Gedolot holds that the branched commandments possess the force of Torah law. The reason is that we have a Torah source for them, through that same interpretive mechanism of branching, and it regards that source as prescriptive and not merely indicative. The reason they are counted separately in the enumeration is apparently their different practical content, which does not allow us to see them all as specifications of the commandment “do not deviate.”

From this it emerges clearly, and apparently Maimonides too understood Halakhot Gedolot this way, that the rabbinic commandments counted by Halakhot Gedolot are only the innovative ones, such as Hanukkah and Purim. The rest of the rabbinic commandments are included under their Torah parent commandments, which are themselves already counted.

Nahmanides: Nahmanides too cannot escape the fact that there must be some mechanism of branching from the de’oraita to the derabbanan plane, that is, a mechanism situated between legislation and interpretation. Our conclusion was that one must distinguish among several categories of rabbinic law. Maimonides too distinguishes among them at the beginning of the Laws of Rebels, though not with respect to the source of the obligation to obey them and fulfill them.

1. Enactments. There are laws that are rabbinic expansions of Torah commandments. The mechanism of expansion contains an interpretive element, since it expands a Torah commandment, but the analogy at its base is not strong enough for the law produced by it to be regarded as a Torah law. Therefore it is clear that there is also a legislative element here, namely the institution of a new rabbinic prohibition. The obligation to obey these commandments is derived from “do not deviate” by way of asmakhta. From the authority given to the sages to interpret the Torah, they also derive authority to expand it. We suggested two explanations for this: a “greater power” argument and interpretive branching. We noted that the term asmakhta in this context must be understood in the sense of the Ritva on Rosh Hashanah, namely as a distant analogical relation and not a mere mnemonic device. This is the mechanism of branching according to Nahmanides. It is clear that the force of these laws is rabbinic, because they cannot be regarded as ordinary interpretation of Torah commandments.

2. Safeguards. There are rabbinic laws that create a fence to prevent failure with respect to Torah commandments. These are not at all similar, not even by distant analogy, to the legal definition of the Torah commandment, and therefore they are learned through a mechanism that is wholly legislative and not interpretive. Hence the basis of the obligation to obey and fulfill them cannot be learned from “do not deviate,” which deals with interpretation. Nahmanides learns this from the verse “You shall keep My charge,” on which the sages expounded: “Make a safeguard for My charge.” We pointed out that it is highly plausible that the relation of these rabbinic laws to that verse is one of branching, for otherwise all Nahmanides’ objections would turn back upon himself—that one would have to be stringent in cases of doubt, and so forth. We also saw that, with regard to a verse formulated in this manner—one directed straight to the sages, and not to every Jew as in “do not deviate”—it is easier to explain the relation as branching and not specification, by a similar interpretive consideration to the one we used in Maimonides regarding “do not deviate”: from imposing the obligation on the sages there follows indirectly responsibility on the individuals.

3. Decrees.⁴⁸ These are innovative rabbinic laws that cannot be associated with any Torah commandment. According to Rav Nahman bar Yitzhak, the obligation to obey and fulfill them is based on the verse “Ask your father and he will tell you,” while according to Rabbi Avya it is based on “do not deviate.” We explained the difficulty involved here: this is not a safeguard, but neither is it interpretation.

It may be that here we can use the possibility we raised with regard to section 2, the safeguards: that Nahmanides bases the obligation to obey the sages on the principle that the Torah was given under the authority of the sages, and with reference to everything they will say. That was possibility 2 among the possibilities we raised in chapter 2 of the book in explaining Nahmanides’ position. If one adopts that line, perhaps the obligation concerning decrees can be grounded on it as well.

And indeed we found that Nahmanides, in his glosses here, writes directly about this issue as follows:

But we, according to our view that there is no mention of them in this prohibition, that is, “do not deviate,” nevertheless, it is the custom of the sages to use this language, namely “who sanctified us with His commandments and commanded us.” For they were authorized by Him, blessed be He, by received tradition, to enact and to arrange, and they derive in this many hints and numerical interpretations. And the surprise at which the Master was astonished—that the verse “The Torah that Moses commanded us” should allude by numerical value to the Megillah and to the Hanukkah lamp—is not so great. For they already expounded: “Write this as a memorial in the book”—”write this,” what is written here and in Deuteronomy; “as a memorial,” what is written in the Prophets; “in the book,” what is written in the Megillah. For the Torah explains, commands, informs, and hints, and so on.

It seems from Nahmanides’ language that he grounds the obligation of rabbinic commandments, at least the innovative ones such as the Hanukkah lamp, in a hint transmitted to us by received tradition. This resembles the Ritva’s approach to asmakhta, which we grounded on Nahmanides’ own position in several places—and here too in his glosses on this root—that the Torah was given with reference to the authority of the sages. Apparently that is precisely the “tradition” Nahmanides mentions in the passage cited here.

This direction is very close to the mechanism of branching that we described, except that it is apparently somewhat weaker—only an asmakhta to “do not deviate,” and therefore a received tradition is needed in order to ground it. In branching, the conclusion can be derived by logical inference; here, received tradition is required. See more on this in the third section.

For the sake of completeness, we should note that in Maimonides’ introduction to the Mishnah there appears a somewhat different definition of the distinction between enactments and customs, on the one hand, and decrees and safeguards, on the other. Maimonides says there that enactments and customs are beneficial practices that are proper for people and do not concern existing commandments. By contrast, decrees and safeguards are rabbinic laws intended to make a fence for the Torah. He notes there that the source of the obligation to institute them—apparently both the obligation to enact them and the obligation to observe them—is the command “You shall keep My charge,” that is, “Make a safeguard for My charge.”

It seems that Maimonides’ intention in that distinction is very close to the definitions we have given here in explaining Nahmanides. It still remains to clarify the status of the source he brings from “make a safeguard for My charge”: whether this is branching or not. It is highly plausible that, according to Maimonides, here too we are dealing with branching. Otherwise, observing decrees would be a de’oraita obligation, and we do not find that Maimonides distinguishes between the halakhic status of these two kinds of law, enactments and decrees. Or perhaps Maimonides holds that “My charge” is the source of the sages’ duty to enact, while “do not deviate” is the source of our duty to obey; in that case all his statements fit quite neatly.

Other Rishonim

To conclude, let us add only a brief discussion of the positions of other Rishonim regarding this root. Apparently it is generally accepted that no one disputes Maimonides on the principal point of this root, namely that rabbinic commandments are not to be counted in the enumeration of commandments. Rabbi Yeruham Fischel Perla wrote that even Saadia Gaon agrees with this. See his introduction to the first root and his comments on positive commandments 55 and 59-60. And in Yere’im, several commandments derived from prophetic writings are counted, but he explains that these are laws given to Moses at Sinai, and that the prophet merely attached them to a verse.⁴⁹ He removes from the count of Halakhot Gedolot only the Hanukkah lamp, see his commandment 429, and says that Halakhot Gedolot mentioned it only incidentally and did not intend to count it as a commandment, since it is not from the Torah.

It seems that the tendency to reject outright the possibility of counting rabbinic commandments stems from an a priori assumption that there is a substantive problem here. See, for example, Rabbi Yeruham Fischel Perla on positive commandments 59-60, who says this quite simply and rejects the proof that Saadia Gaon also follows Halakhot Gedolot on this point, even though Saadia counts the Hanukkah lamp and the reading of the Megillah. That is, not only does he say this without proof; he says it despite what appear to be contrary proofs in Saadia’s own view. Nevertheless, he decides that Saadia agrees with Maimonides and prefers to force Saadia’s position concerning the Hanukkah lamp and the Megillah. It is highly likely that what compelled him to do so was the a priori assumption that there is a principled difficulty in including rabbinic commandments in the enumeration.⁵⁰

However, as we have seen, the matter is not so simple. In Maimonides it emerges all along that the problem is not substantive. In principle, one could have counted rabbinic commandments as well; the problem is mainly interpretive, arising from the meaning of Rabbi Simlai’s statement. It is therefore not surprising that the plain sense of Halakhot Gedolot, as understood both by Maimonides and by Nahmanides themselves, indicates that in its view one should indeed count innovative rabbinic commandments.⁵¹ If so, it, and those who follow it, really do dispute the fundamental principle of this root, namely that rabbinic commandments are not to be counted. Although it may be that, according to those views, the force of such commandments is in principle like that of Torah commandments.

We should note that several Rishonim also counted the commandment of reading the Megillah: Halakhot Gedolot, Saadia Gaon, positive commandment 59, and Yere’im. It is worth noticing that Yere’im counts it even though he explicitly rejects the possibility of counting rabbinic commandments. Saadia Gaon brought an allusion to it from the verse “Write this as a memorial in the book,” Exodus 17:14. That suggests that it is included within the remembrance of the eradication of Amalek; compare Nahmanides’ commentary there. Yet Saadia Gaon also counts the Hanukkah lamp, positive commandment 60, and for that there is no source in the Torah at all.⁵²

At the margins, let us mention that Hatam Sofer, in his responsa, part 1, Orah Hayyim sections 161, 208, and 233, explains the position of Halakhot Gedolot by saying that the reading of the Megillah is learned by an a fortiori inference from the Exodus from Egypt, see Babylonian Talmud, Megillah 14a, and therefore is a Torah commandment. This connects to the topic of the second section: whether what is learned through the thirteen hermeneutical principles has the status of de’oraita or not.

Appendix B

A Study of Maimonides’ Objections to Halakhot Gedolot in the Second Root

Introduction

In the second section we saw the opening three paragraphs of this root, in which Maimonides presents the main points of his position. Immediately afterward, Maimonides raises several objections against the position of Halakhot Gedolot, which disagrees with him here and counts commandments learned through homiletical derivation. In this appendix we will survey these arguments one by one. This discussion touches our argument in the book only marginally, mainly at those points where it bears on the question of branching, and therefore we moved it to an appendix.

A

The first argument Maimonides raises against Halakhot Gedolot is this: why does it count the commandment to fear Torah scholars, learned from an inclusive derivation in Babylonian Talmud, Pesahim 22b:

“The Lord your God you shall fear”—to include Torah scholars.

Within his discussion, Maimonides writes that according to Halakhot Gedolot, apparently everything that comes by means of an inclusive particle is “part of the aforementioned general category.” It is not entirely clear what Maimonides means by these words.

Does he mean that Halakhot Gedolot thought the command to fear Torah scholars is included in the command to fear the Holy One, blessed be He—specified from it, in the terminology of the first section? But that would itself be a reason not to count this command separately, in light of the principle laid down by Maimonides in the seventh root. See our discussion there.

If so, it would seem that Maimonides’ intention is to claim that Halakhot Gedolot regarded this as a de’oraita law, and therefore counted it. This is exactly parallel to what Maimonides argued in the first root in explaining the view of Halakhot Gedolot: that all rabbinic prohibitions are included in “do not deviate,” and therefore they are prohibited by Torah law and ought to be included in the enumeration of commandments.

In any case, this proposal for explaining Maimonides’ objection is somewhat strained, because it focuses specifically on the halakhic status of the commandment. But as we already noted, when it comes to inclusion in the enumeration of commandments, the fact that something is included in the command to fear God is actually an argument against the position of Halakhot Gedolot, not an argument meant to explain it. For if this command is included in another commandment, there is no place to count it, even if its status is de’oraita.

We therefore propose two other directions. If Halakhot Gedolot holds that even laws branching from Torah commandments should be counted separately, then it should indeed have counted the command to fear Torah scholars. Here it is clear why, according to Halakhot Gedolot, it ought to have been counted separately—for according to its position, just as in the first root, branched injunctions are also counted. This is unlike Maimonides’ own view.

There is also another way to understand Maimonides’ objection. Perhaps he means to argue that this command is found within the very words “The Lord your God you shall fear,” and does not merely branch from them. If so, this is a commandment actually written in the Torah, and therefore Halakhot Gedolot thinks it should be counted. According to this proposal, Maimonides, in explaining Halakhot Gedolot, is not making a claim about the content of the commands, that fear of Torah scholars is included in fear of God. Rather, he is making a verbal-interpretive claim: a commandment learned by an inclusive particle is considered present in the Torah’s own words. In essence, however, it remains a separate commandment, and therefore should be counted.

Maimonides goes on to argue that, according to this logic, Halakhot Gedolot should also have counted the honoring of one’s elder brother, one’s mother’s husband, and one’s father’s wife—each “a commandment in itself connected to honoring father and mother.” All these are learned by inclusion from the direct-object marker; see Babylonian Talmud, Ketubot 103a.

According to the first understanding we suggested above, Maimonides means that since all these are learned by inclusion, Halakhot Gedolot should have inferred that they count as Torah laws, and therefore should have included them in its enumeration. In other words, since they branch from a verse, it should have included them. According to the second proposal we raised above, Maimonides means that all these are regarded as written in the verse itself, even though they are not included in the substantive command, and therefore are called de’oraita and should be counted.

Maimonides’ language here leans somewhat toward the first explanation, for he says that Halakhot Gedolot should have counted them as “a commandment in itself, connected to honoring father and mother.” That is, on the one hand he sees a substantive connection between the commandments, and therefore they might have been included within one another. On the other hand, despite that connection, Maimonides notes that Halakhot Gedolot should still have counted them separately.

We are forced to say that Maimonides understands that, according to Halakhot Gedolot, these commandments branch from the commandment of honoring father and mother, and are not specified by it, in the terminology of the previous section. But according to Halakhot Gedolot, unlike Maimonides himself, branched commandments too are counted, and therefore it ought to have counted them.

In light of our discussion, Maimonides’ phrase in describing the view of Halakhot Gedolot, that “everything that comes by inclusion is part of the aforementioned general category,” means that it is literally included in what is said in the verse—in the terminology of the previous section, it is truly specified by the verse and not merely branched from it. That, then, is the criterion for laws that are called de’oraita and are to be counted in the enumeration of commandments. By contrast, according to Maimonides himself, such laws “are not part of the aforementioned general category,” meaning that they are not specified by what is written and therefore are not counted.

The question is whether Maimonides means that they branch from the verses, or that they are only a mere asmakhta. For comparison, let us recall his language in the introduction to the Mishnah when he speaks of prescribed measures that are a law given to Moses at Sinai, that is, they were given to Moses at Sinai but have no anchor in the written text. He writes:

The prescribed measures have no principal source from which to derive them by reasoning, and they have no hint anywhere in the Torah. Rather, this commandment has been attached to this verse as a sign, so that it should be known and remembered, and it is not part of the subject matter of the verse.

Clearly, in the introduction he means a mere asmakhta, for according to Maimonides’ understanding, a law given to Moses at Sinai, by definition, has no anchor at all in the written text. The question is what relation exists between laws that “are not part of the aforementioned general category,” as he puts it here, and that which “is not part of the subject matter of the verse,” as he puts it there. In light of our discussion above, it seems that Maimonides means these laws branch from the written text, and that Halakhot Gedolot apparently agrees with this, except that in its view branched laws are to be counted separately, as we saw in the first section.⁵³

B

The second argument Maimonides raises against Halakhot Gedolot is presented by him as harder and more unequivocal than the first: “Their ignorance has gone even further than this…”

He refers to the fact that Halakhot Gedolot counts positive and negative injunctions that are not included in the plain sense of the verse, but only “by way of explanation and proof,” and are therefore rabbinic. Maimonides’ objection here appears to consist of two different claims:

1. Counting these laws even though they are rabbinic.
2. Counting each of these injunctions separately, instead of including them in the explicit command stated in the plain sense of the verse, despite the accepted rule that “a verse never departs from its plain sense.”

We must understand what Maimonides means in each of these two claims. This point is connected to the understanding of Maimonides’ theory of interpretation: what is plain sense, and what is not included in it? What does a conclusion reached “by way of explanation and proof” mean, as distinct from branching and specification? We must also understand why he couples these two objections together, and why in his eyes this is a harder objection than the previous one, and what the relationship and difference are between them.

As for why this objection is harder, one may seek an answer in two different, indeed opposite, ways, as we saw in the first section:

1. Either the derived commandment is closer to the commandment from which it is derived. In that case, there is more room to include it within the commandment from which it is derived, and the main problem is claim 2 above.
2. Or the derived commandment is farther away from it. In that case, the main question is how Halakhot Gedolot counts it in its enumeration at all, since it is a rabbinic commandment, which is claim 1 above.

From Maimonides’ formulation here it seems that whereas the previous argument dealt with the counting of de’oraita laws, except that their source was a homiletical derivation and not plain interpretation, here he is making a claim about counting laws that are “all, without doubt, rabbinic.” It seems that for this reason Maimonides regards this as a more severe and difficult objection against Halakhot Gedolot. Let us examine the matter in light of the examples he brings.

B1

The first example Maimonides brings here is the counting of commandments such as visiting the sick, comforting mourners, and burying the dead. Maimonides explains that Halakhot Gedolot counted these three commandments because they are learned from the exposition of the verse, “And you shall make known to them the path by which they shall go and the deed that they shall do.” Those expositions establish, in Babylonian Talmud, Bava Kamma 100a and Bava Metzia 30b:

“The path”—this is acts of kindness. “They shall go”—this is visiting the sick. “By it”—this is burying the dead. “And the deed”—these are the judgments. “That they shall do”—this is acting beyond the letter of the law.

Maimonides explains that Halakhot Gedolot thought each of these acts was a commandment in its own right, and did not understand that all of them are included in the positive commandment “love your neighbor as yourself.” Regarding this example, Maimonides mentions only the second claim, namely: why did Halakhot Gedolot count each of these commandments separately instead of including them under an already counted commandment? The claim that they are rabbinic commandments does not explicitly arise here.

It seems that Maimonides understands that these directives do not emerge from the very language of the verse, but are derived from it in some other way. The plain sense of the verse deals with the way of God in general, and not with any specific directive, and therefore it falls under the principle discussed in the fourth root. Hence there is no reason to count them as independent commandments.

At first glance, it would seem from Maimonides’ language—precisely because he omits here the first claim—that these laws are de’oraita. That need not refer to their halakhic status; perhaps it refers only to their source. This depends on the various interpretations of Maimonides’ words in this root. But this requires explanation: why, according to Maimonides, should these laws be de’oraita? In the beginning of chapter 14 of the Laws of Mourning, as we mentioned in the first section, Maimonides defines all of these as rabbinic commandments included within the positive commandment “love your neighbor as yourself.” If so, they seem to be rabbinic laws and not de’oraita. Apparently Maimonides’ intention is to make the first claim here as well. This strengthens our earlier remark that the two claims of Maimonides form one combined objection. Still, the matter requires clarification.

We are thus left with the question: why does this objection appear to Maimonides harder than the previous one, concerning fear of Torah scholars? It may be that the root of the issue is this: since these commandments arise from a homiletical exposition, they fall into the category of rabbinic law, and therefore should not be counted, just as with fear of Torah scholars. But here there is also a verse that truly includes all these directives within its content: “love your neighbor as yourself.” This seems to be the focal difference between the objections. It is even less plausible, in Maimonides’ eyes, to count these commandments, because they are genuinely included in the commandment of love, and all are aspects of one commandment. By contrast, in the objection concerning fear of Torah scholars, Maimonides argues only that it should not be counted because it is rabbinic. He does not regard it as literally included in the commandment to fear God, because the substantive connection between them is weak. There the problem is only the very act of counting, not the failure to subsume it under another commandment. By contrast, the three commandments in this objection—burying the dead and the like—are genuinely derived in content from the commandment “love your neighbor,” yet they have no clear connection to the verse from which they are homiletically derived.

This explanation immediately raises a difficulty: how does Maimonides understand the relation between this group of directives and their homiletical source in the verse “And you shall make known to them,” on the one hand, and their substantive source in the verse “love your neighbor as yourself,” on the other? Why, in other words, do we need two different sources? What is the relation between them? And why does this create a stronger objection against Halakhot Gedolot?

The explanation seems to be as follows. As we saw in the first section, Maimonides holds that these three laws branch from the verse “love your neighbor as yourself.” They are derived from it, but are not included in its content. In our language there: they branch from it, but are not specified by it. We explained this by saying that the original commandment belongs, in essence, to the duties of the heart—namely, the command to love one’s fellow. The sages wished to cast that commandment into more practical content, and therefore established practical obligations derived from that duty of love: to bury the dead, comfort mourners, and visit the sick. These are rabbinic practical expressions of the Torah’s duty of the heart. By performing them, one usually also fulfills the Torah commandment, but not necessarily. One can perform these acts from motives other than love in the heart.

Therefore the sages derived these practical obligations from another exposition and not from the verse dealing with duties of the heart. The verse from which these obligations were derived speaks about the importance of giving concrete, practical form to duties—to walking and doing: “the path by which they shall go,” and “the deed that they shall do.” Therefore they attached these obligations to that verse. But that verse itself is not counted as a commandment, because in its plain sense it commands a general walking in the ways of God, and such verses are not counted because of the fourth root. It serves as a source, by way of explanation and proof, for the branching of practical obligations from the commandment “love your neighbor as yourself.”

For comparison, the command to fear Torah scholars branches from the command to fear God. The substantive link between these two is far looser, because fear of God is not literally included in fear of scholars; the basic idea is only similar, or connected in some looser fashion. By contrast, visiting the sick is a concrete realization of the commandment to love one’s fellow, and the connection between them is clear and unambiguous.

From this we can also understand the term “by way of explanation and proof,” which Maimonides uses to describe the relation between rabbinic commandments and their sources. This is different from both branching and specification. On the one hand, there is here a fulfillment of the Torah commandment of “love,” and in that sense there is genuine specification. But the performance of these practical obligations is not necessarily a fulfillment of the Torah commandment “love.” Rather, we learn that they branch from it through the verse “And you shall make known to them,” by way of explanation and proof. This is not true of the command to fear Torah scholars, which is not learned by way of explanation and proof from the command to fear God. There, the derivation is a branching by homily without a full substantive connection, only a looser conceptual one.

It is interesting to note that in positive commandment 209 Maimonides defines the commandment to fear Torah scholars only in the language of “proof,” without the language of “explanation.” His wording there is:

All of this—the fear of one’s teacher, as distinct from the obligation to honor him, which is itself a counted commandment there—is taken only as proof from the fact that Scripture commands honoring sages and parents, as is explained in many passages of the Talmud, and not because it is a commandment in its own right. Understand this.

This also helps us understand why, according to Maimonides, this objection is harder than the previous one. Here there is no room to count the commandment, because it is truly included in—or at least directly branches from—the Torah commandment “love,” much more than fear of scholars can be said to be included in the commandment to fear God.

This is also why Maimonides understands that his two claims here together form one unified objection. The claim that these are rabbinic laws and the claim that they should be included in the counted commandment both reflect a structure of branching, in the sense we used in discussing the first root: something intermediate between specification and mere asmakhta. There is a relation to a counted commandment, and therefore if one counts such a law at all, it should be included within the counted commandment from which it branches. But in truth, such commandments should not be counted, because they are not genuine specifications of the counted commandments. The connection is looser.

The difference between the first objection, concerning fear of Torah scholars, and the second one, concerning rabbinic commandments related to love of one’s fellow, is that these are two different degrees of branching from a Torah commandment. The first is a branching from a verse where there is no full substantive connection between branch and root. In such a case, even if one decides to count it, it is not included in the counted commandment, and therefore should be counted separately. By contrast, the second branching expresses a case in which there is a full substantive connection, but one that requires additional support—”by way of explanation and proof”—from the verse “And you shall make known to them,” in order to justify the casting of a commandment that belongs to the duties of the heart into practical patterns of physical obligation. Therefore, if one were to count it, one would certainly have to include it as a detail within the counted commandment “love your neighbor.”

This is also why Maimonides’ formulation at the beginning of chapter 14 of the Laws of Mourning—where, in one breath, he speaks of these commandments as rabbinic commandments, and also says that they are included in a Torah positive commandment—is so unusual. There is no other example in Maimonides’ language of such an apparently paradoxical formulation. The reason is that only here can he say that, in a certain sense, rabbinic commandments are truly included in a commandment counted as de’oraita. In the other cases, such as fear of Torah scholars, there is no room for speaking about such literal inclusion.

A final note regarding this example. One may ask what hermeneutic methods the sages used in deriving these practical obligations from the verse “And you shall make known to them.” If this is an inclusive derivation, then we have another example showing that this method belongs to the kinds of derivation discussed by this root. Compare objection 1 above. But apparently this is not an inclusive derivation, for there is no inclusion here of an additional obligation of the same type as the original obligation appearing in the plain sense of the verse—as in the obligation to fear Torah scholars, which is included from the obligation to fear God. This is a different sort of homiletical derivation.

If so, we seemingly have proof that in the title of this root, Maimonides uses the term “inclusive derivation” only as an example, or as a general label, while intending additional methods of derivation, perhaps all of them.

Still, it seems difficult to derive proof from here, because we must remember that in this context there is also the substantive source in the verse “love your neighbor as yourself.” It may be only because of that substantive source that such a derivation is possible. The formal source is only “by way of explanation and proof” for expanding the substantive source, as we explained above. What would happen in a case where we had only a derivation of this kind, with no substantive source behind it? There Maimonides might not treat the matter in the same way. In fact, such a case may not exist at all, for “explanation and proof” always support some other existing principle; if there is nothing else there, one cannot simply offer explanation or proof. If we were to encounter such a derivation without a substantive source, it might be defined as a mere asmakhta. See the second section on the relation and difference between derivations and asmakhtot.

B2

The second example Maimonides brings for objection B against Halakhot Gedolot is its counting of the commandment to calculate astronomical cycles. Maimonides explains that Halakhot Gedolot counted this commandment because of the exposition of the verse, “For this is your wisdom and understanding in the sight of the nations,” concerning which the sages said in Babylonian Talmud, Shabbat 75a:

What is the wisdom and understanding that is in the sight of the nations? You must say: this is the calculation of astronomical cycles and constellations.

Here Maimonides is extremely brief, and for that very reason we should note that he opens the discussion by saying that Halakhot Gedolot acted here “in this same way.” That is, Maimonides understands the same kind of dispute to be at stake here as in the earlier examples.

It seems that here too Maimonides argues that the instruction to calculate astronomical cycles and constellations is not included in the plain sense of the verse. In its plain meaning, the verse concerns the Torah and its commandments, and states that they are our wisdom and understanding in the eyes of the nations. The sages derived from this, in one way or another, an obligation to calculate the cycles, but that is not the plain sense of the verse. And since it is not included in the plain sense of the verse, it is merely a rabbinic law and should not be counted.⁵⁴

It should be noted that the situation here stands in exact contrast to the previous example. There Maimonides raised only the second claim, namely that the commandment should be included within another counted commandment, and not the first claim, namely that it is a rabbinic commandment and therefore should not be counted.⁵⁵ Here, by contrast, it seems that Maimonides raises only the first claim—that this is a rabbinic commandment—and not the second claim, that it should be included within some other commandment.

In truth, it is very hard to see how the commandment to calculate astronomical cycles and constellations could be included in some other commandment at all. One might perhaps suggest the sanctification of the new moon and the intercalation of the year, but Maimonides himself does not mention that here. The main reason is that the original verse, in its plain sense, is not a commandment-verse at all. It commands nothing; rather, it gives a reason and rationale for the demand to keep the commandments. The demand to observe the commandments and keep the Torah cannot itself be counted because of the fourth root, as we saw above with respect to the verse “And you shall make known to them.” But here we are dealing not even with that general demand itself, but with its rationale. According to the third root, rationales are not counted as commandments. Thus there is a double reason why one cannot count the original verse as a commandment and then include within it the derived commandment, namely the calculation of astronomical cycles: the original verse is a rationale and not a commandment, and the result is not included within the commandment for which that rationale is given.

We should note that the primary reason a verse of rationale is not included in the enumeration of commandments is that it is not a “commandment” in the full sense.⁵⁶ Let us recall the principle we have already mentioned several times in this book, discussed at length in Appendix E: every commandment has two components—first, the command itself; second, its substantive content. Accordingly, every fulfillment of a commandment has two dimensions: first, obedience to the command of the Holy One, blessed be He; second, the rectification or good brought about by performing the commandment. Likewise, every violation of a prohibition has two dimensions: first, rebellion against the command; second, the corruption that the prohibition seeks to prevent, or the failure to achieve the good that the positive commandment seeks to bring about. As Rabbi Elhanan Wasserman explains in his essay “Repentance,” when only one of these two components is present, there is not yet a commandment in the full sense. Even something that accords with the divine will, but was never actually commanded, is a proper and important act—but it is not a full act of commandment-fulfillment. The same is true, in parallel, with transgression.

Verses of rationale are not formulated as commands, and therefore Maimonides rules in the third root that they should not be counted as commandments. If so, the verse “For this is your wisdom and understanding in the sight of the nations” indeed teaches us that actions which reveal our wisdom and understanding before the nations are desirable and fitting actions. But clearly there is no commandment here in the full sense.

What, then, of the calculation of astronomical cycles and constellations? It is clear that such an injunction can be derived from a verse of rationale, because such calculation indeed reveals our wisdom and understanding before the nations, and it is therefore obviously a proper and desirable act. But it cannot be a Torah commandment, because the verse indicating it is a rationale-verse and not a command-verse.

At this point, the sages come and determine that there is a commandment to calculate astronomical cycles and constellations. What is the status of such an injunction? It is quite clear that this is not an ordinary de’oraita commandment, because there is no verse commanding it. Yet it does truly express the divine will. When the sages cast a verse of rationale into the mold of a concrete command, they require us to give practical expression to the divine will in the form of a commandment. This is exactly how they create a rabbinic commandment, on the basis of a disclosure of the divine will found in the Torah. This process is similar to what we saw above with respect to the commandment “love your neighbor as yourself,” except that there the divine will is expressed in an imperative verse.

Maimonides therefore treats such a mechanism as producing a rabbinic commandment and not a de’oraita one. That is why here he raises only the claim that this commandment should not be counted, because it is a rabbinic commandment—whether at the level of source or of halakhic status depends on the different understandings of his words in this root—and does not raise the claim that it should be included in some other commandment. From the standpoint of Torah law, the calculation of astronomical cycles and constellations is not a commandment at all.

For comparison, let us imagine a case in which we begin from a commandment-verse, one that states a counted commandment, and the sages derive from the rationale underlying that commandment, rather than from the commandment itself, an additional law. There too the result emerges from the rationale and not from the counted injunction itself. But there one would indeed have room to include it within the counted commandment. In such a case, both claims might be relevant: the first, that the derived law is only rabbinic; and perhaps the second as well, that it should be included in the counted commandment.⁵⁷

As an illustration, let us return to the earlier examples. In the first objection Maimonides challenged Halakhot Gedolot for counting fear of Torah scholars, yet not counting the honoring of one’s elder brother and one’s father’s wife, and so on. There we are dealing with an inclusive derivation that yields a new law, one perhaps related to the rationale of the original law—the duty to honor whatever is sacred and close to God—but certainly not to its legal definition, namely to fear God. Therefore it is harder there to see how the derived injunction could be included in the original command.

In the second example of the previous objection, Maimonides challenged Halakhot Gedolot for counting visiting the sick and comforting mourners, which derive from the commandment “love your neighbor as yourself.” There there is a connection to a Torah commandment in terms of rationale—creating a bond and obligation toward the other—and perhaps also in legal character, insofar as it belongs to the duties of the heart. In addition, there is support by way of reasoning and explanation for giving that duty practical form. And beyond all this, the original commandment is itself a counted commandment, not a verse of rationale. If so, there the main objection is that the derived duties should be included within the original duty, and only less so that they are rabbinic. This is exactly the reverse of the example of calculating astronomical cycles.

If so, it is now not entirely clear why, before the second example—calculating astronomical cycles—Maimonides writes the words “and in this same way they counted the calculation of cycles.” We noted above that his wording suggests that this is the very same mistake. We must conclude that his intention is only to the general treatment of a commandment derived from a rationale as a commandment that should be counted separately. There is no full parallel between the two examples.

A final note that arises here again concerns the hermeneutic method involved in the law of calculating astronomical cycles and constellations. Here it seems quite clear that this is not a case of inclusive derivation. It is not tied to any particular word in the verse, nor is there here an inclusion of a Torah obligation into an additional context, as in the case of the duty to fear Torah scholars, which is included by the direct-object marker from the duty to fear God. Again, this is a distant homily that does not employ a concrete hermeneutic rule. If so, the conclusion would be that Maimonides’ discussion in this root includes also forms of derivation that do not make use of the thirteen hermeneutical principles.⁵⁸

Yet even this proof can be rejected, because from Maimonides’ language here it seems that the derivation cited is really only an asmakhta, and not even a full-fledged homiletical derivation. See our remarks at the beginning of the next objection, C. If so, we do not need the principle discussed in this root in order to classify it as rabbinic. According to that, the question we raised—what kinds of derivation Maimonides intends in the title of this root—still remains with respect to full derivations carried out by other methods, neither the thirteen principles nor inclusive derivation: would those be de’oraita, or would Maimonides classify them too as laws of the sages?⁵⁹

C

The third objection that Maimonides raises against Halakhot Gedolot appears as a direct continuation of the objection from calculating astronomical cycles, and in Maimonides himself it reads as though it is the continuation of the discussion of that same example. But substantively, it seems to be an independent objection, even if Maimonides himself does not present it that way:

Had he counted what is even clearer than this, and counted what is more worthy of being counted—namely everything learned by one of the thirteen principles through which the Torah is interpreted—the number of commandments would have risen to many thousands.

As stated, Maimonides is continuing here directly from the end of the previous objection. In his view, the homily concerning the calculation of astronomical cycles and constellations is weaker than homilies based on the thirteen principles, and apparently weaker than inclusive derivations as well. It is not clear whether this is a mere asmakhta, or whether there is an internal hierarchy among different methods of derivation. Perhaps the problem with calculating astronomical cycles is only that it is a derivation based on a rationale-verse and not on a commandment-verse. In Maimonides himself, however, it is fairly clear that this is not his point, since he contrasts the homily about calculating astronomical cycles with derivations from the thirteen principles, and not with derivations drawn from commandment-verses.

In any case, the hierarchy between the derivation of astronomical cycles and the stronger derivations, those “more worthy to be counted,” serves only to sharpen the substantive objection: if one counts in the enumeration of commandments all laws that emerge from derivations—even if only those that emerge from the better derivations, namely from the thirteen principles—the number of commandments would rise to many thousands. A similar objection arose in the first root.⁶⁰

Even if the position of Halakhot Gedolot is that laws derived by homiletical exposition are de’oraita, one could still distinguish between laws that are included within already counted commandments—whether these are their parent commandments or other commandments, as in the example above of “love your neighbor as yourself”—and laws that create a wholly new obligation. Laws included within a counted commandment would not themselves be included in the enumeration, even if they are de’oraita. If so, Maimonides’ claim here concerns only the second type of law. Therefore his point is much more far-reaching: the laws that emerge from derivation and constitute unique commandments—that is, laws that cannot be subsumed under already counted commandments and are not details within already counted commandments—already rise into the thousands.

This is a very strong claim, and the number seems implausibly large. Therefore it may be that Maimonides means here, much as we proposed in the first root, that he reaches this argument only after concluding that Halakhot Gedolot makes no distinction whatsoever between laws that are independent commandments and laws that can be subsumed within already counted commandments. Only now does Maimonides say that if Halakhot Gedolot counts all laws generated by derivations—both those that should be included under already counted commandments and those that should not—the number of commandments would climb into the thousands.

Indeed, we saw that in his previous objection Maimonides mixes together two levels of discussion: the possibility of including laws that emerge from derivations within already counted commandments, and the halakhic status of those laws, which in his view is rabbinic. It may be that the reason is that Maimonides discerns that Halakhot Gedolot does not distinguish between these two kinds, and appears to count all laws generated by derivation. Once he has arrived at that conclusion regarding Halakhot Gedolot, he attacks with the objection that on such an approach the number of commandments would have to rise into the thousands.

D

The fourth objection raised by Maimonides is not directed against Halakhot Gedolot at all. In fact, it is evidence that he brings in support of his own position. He cites Babylonian Talmud, Temurah 16a, which relates that during the days of mourning for Moses, one thousand seven hundred a fortiori arguments, verbal analogies,⁶¹ and scribal refinements⁶² were forgotten, and that Othniel son of Kenaz restored them by means of his dialectic. Maimonides goes on to infer that if 1,700 such laws were forgotten, it is obvious that the total body of homiletically derived laws that already existed in the days of Moses must have amounted to many thousands. Thus, already in the days of Moses there were thousands of “scribal refinements,” and clearly the reference cannot be to enactments made by Moses. Maimonides therefore concludes that everything Moses derived from the thirteen principles—namely, what “was not heard at Sinai in explicit form”—belongs to the category of the sages and is therefore not to be counted. How much more so laws learned through the thirteen principles after the time of Moses.

It should be noted that this seems to constitute evidence against the position of Rabbi Bezalel Ashkenazi, discussed above, because Maimonides here does not distinguish between laws derived by verbal analogy and laws derived by a fortiori reasoning. Concerning all of them, he proves from the fact that they already existed in the days of Moses and were called “scribal refinements” that they share the same halakhic status. If so, according to Maimonides, even laws derived by verbal analogy are rabbinic.

One may add that perhaps here lies the source for Maimonides’ adding inclusive derivation to the thirteen principles in the title of this root. If Maimonides understood the phrase “scribal refinements” as referring to inclusive derivations, then the passage in Temurah includes all methods of derivation and inclusion: “a fortiori arguments and verbal analogies” is a common formula for the full body of hermeneutic principles—see the Midah Tovah page on the portion Lekh Lekha—and “scribal refinements” are the inclusive derivations.⁶³ We should note, however, that if this is so, the proof against Rabbi Bezalel Ashkenazi again falls away, because it is possible that the phrase “verbal analogies” is not exact, but appears as part of a formula characterizing the totality of hermeneutic methods.

It is worth noting that Rashi, in the sugya in Temurah, explains that “scribal refinements” means numbered lists of various halakhot, and he refers to examples in Mishnah Shekalim, chapters 5 and 6. As we have seen, Maimonides apparently does not interpret the phrase in that way. It may be that each follows his own consistent approach: Maimonides holds that all laws emerging from derivations belong to the category of “laws of the sages,” and therefore interprets the term “scribal refinements” accordingly. Rashi, however, does not hold this view—compare also his dispute with his teachers in Babylonian Talmud, Ketubot 3a, and below at the beginning of the next appendix—and therefore must explain the term “scribal refinements” differently.

In any case, this proof of Maimonides from the sugya in Temurah does not appear especially strong. It is entirely possible that there were other kinds of “scribal refinements,” or alternatively that these really are “scribal refinements,” without that necessarily implying that their legal status is rabbinic. Moreover, these may simply be de’oraita details within the framework of already counted commandments. This difficulty also applies to Maimonides’ own objections against Halakhot Gedolot concerning the honoring of the elder brother and the like.⁶⁴ True, even in Maimonides’ own view it is not clear that these are laws whose status is rabbinic. We saw several approaches on this matter; see also the second section.

Appendix C

Other Rishonim on the Issues Raised in the Second Section

Introduction

In this appendix we will deal briefly with the positions of other Rishonim regarding the issues discussed in the second root. Maimonides’ main claim in this root is that laws created by homiletical derivation are to be regarded as laws of the sages. At first glance, it is fairly clear and widely accepted that this is a lone opinion—unless we understand him as the Tashbetz does, namely that this is only a claim about source and not about authority. For most Rishonim, the terms de’oraita and derabbanan describe legal force and not merely source, and de’oraita laws are not only laws actually written in the Torah, but all laws that constitute the divine will, including laws given to Moses at Sinai and homiletically derived laws.

Beyond this, Maimonides established another principle: that laws emerging from derivations are not present in the written text. From this he inferred, in light of his definition above, that these are rabbinic laws. He is certainly alone in the conclusion, but it may be that some other Rishonim share this second premise. In principle, there may be views that regard the methods of derivation as expansive rather than merely uncovering what is already there; but since for them the term de’oraita is not interpreted as “that which is present in the written text,” as it is for Maimonides, they do not accept his conclusion that the halakhic status of such laws is derabbanan.

This appendix is divided into three chapters. The first examines whether there are positions among the Rishonim who preceded Maimonides that resemble his in regard to the halakhic status of homiletical laws. The second will examine how other Rishonim relate to Maimonides’ second premise, namely that homiletical laws are not latent in the text but constitute an expansion of it, even if their status is de’oraita, as we noted above. There we will also examine his general assumption concerning interpretation: whether Scripture can bear only one interpretation. The third chapter will examine Maimonides’ disputes with Halakhot Gedolot concerning inclusive derivations, as presented in his words on the second root, and Nahmanides’ responses to them in his glosses there.

Chapter 1: The Halakhic Status of Homiletical Laws

Introduction

As we have already noted, it is not clear where Maimonides derives the conceptual revolution he introduces, especially in light of what we saw—that it is not based on any proof at all, aside from the interpretive assumption, which is one of his own foundational premises, that Scripture can have only one interpretation. All this runs against what is conventionally accepted among us, and apparently against what was conventionally accepted in his own time as well. Clarifying earlier sources for such an approach is therefore of special importance, in light of our understanding of what exactly is involved in the conceptual revolution Maimonides carried out in this second root.

There are claims that recur throughout the generations—for example in Lev Sameah and Marganita Tava, in their commentaries on the second root—that sages before Maimonides already held this view. If so, then Maimonides had such a tradition, and did not invent the matter from nothing. Most of these claims are based on the words of Rashi’s teachers in the sugya in Babylonian Talmud, Ketubot 3a, and therefore we will devote the beginning of this appendix to discussing those views. It would be appropriate to investigate this difficult sugya in depth, but we will not do so here. Our purpose in this appendix is only to see whether there are additional positions among the Rishonim that move in Maimonides’ direction. After that we will deal with the disputes that Maimonides himself carried on with Halakhot Gedolot in the course of this root, and we will ask whether they rest on a principled foundation relevant to our subject, or whether they are merely local technical disputes.

The Ketubot Sugya

The Gemara in several places states the rule, “Whoever contracts betrothal does so subject to the sages’ authority”; see Babylonian Talmud, Ketubot 3a and the parallel passages. This rule explains how rabbinic laws can uproot betrothal that is valid by Torah law, and thereby permit a married woman to marry others. Sometimes the case involves cancelling an agent not in his presence, in a way that automatically nullifies the betrothal. Sometimes it involves other rabbinic enactments that validate an otherwise invalid bill of divorce, and so on.

In the sugya in Ketubot, the discussion concerns a condition attached to a divorce. The Gemara discusses a man who gave his wife a bill of divorce on condition—”on condition that,” see Rashi under “and with regard to divorce” there on 2b—that he not come for twelve months, and in the end he was prevented by circumstances beyond his control and therefore did not come. The halakha, according to Rava there on 2b, is that the divorce takes effect, and he cannot claim that he was prevented by circumstances beyond his control. The Gemara explains that Rava’s reasoning was that this was a rabbinic enactment “because of the modest women and the licentious women”; see there for the explanation. The Gemara immediately asks how a rabbinic enactment can validate a divorce that is invalid by Torah law, and thereby permit a married woman to marry others. To this they answer: “Whoever contracts betrothal does so subject to the sages’ authority, and the sages uprooted his betrothal.” Immediately afterward, as in all the parallel sugyot, the Gemara raises the question that serves as the basis for the distinction between the various modes of betrothal, there on 3a:

If she was betrothed by money, that is holy; but if she was betrothed by intercourse, what can be said? The Sages rendered his intercourse mere licentious intercourse.

The Gemara assumes that with respect to betrothal by money, the rabbinic annulment is understandable by virtue of the principle that “whoever betroths does so subject to the will of the Sages,” and therefore the problem exists only with respect to betrothal by intercourse.⁶⁵

Usually the medieval commentators explain the Gemara’s assumption in its question on the basis of the principle that “property declared ownerless by the court is ownerless,” which establishes that a court has the power to confiscate monetary ownership, and this has consequences by Torah law. This is derived from a verse in Ezra, but this is not the place to elaborate. However, Rashi there, on the words “they rendered,” 3a, cites the opinion of his teachers, who explained the Gemara here literally:

The Sages rendered his intercourse… I heard all my teachers explain that betrothal by money is rabbinic betrothal. But it is impossible to say so. First, because it is a gezerah shavah (verbal analogy): “taking” “taking” from the field of Ephron (Babylonian Talmud, Kiddushin 2a), and anything learned from a gezerah shavah is, in every respect, as though written explicitly. Second, if they are rabbinic, how do we stone on their basis, and how do people bring unconsecrated animals into the Temple courtyard for their error? And in the end, when we answer that the Sages rendered his intercourse licentious intercourse, you are forced to explain, as I explained, that the betrothal is uprooted retroactively, and not only from this point onward. And one who explains that the Sages rendered all those who betroth by intercourse to have engaged in licentious intercourse is in total error, and comes thereby to permit a married woman who was betrothed by intercourse to leave without a bill of divorce for this reason—and we have never found such a thing in the Talmud.

Rashi reports in the name of his teachers that betrothal by money is rabbinic. Already here we have a clear source for Maimonides, at least on the halakhic plane, namely that betrothal by money is only rabbinic. But from Rashi’s rejection of their view, it appears that the basis of their position also converges with what we have thus far seen in Maimonides. Rashi’s teachers held that these are rabbinic betrothals because every law learned from an exegetical derivation—and in this case, a gezerah shavah—is itself a rabbinic law. It is precisely on this point that Rashi disagrees.

The first point that deserves notice is that Rashi attributes this to “all my teachers.” These views are also known in the names of Rav Ahai, Rav Shmuel ben Hofni, and some of the Geonim of Babylonia; see below. That is, there seems to have been a solid Geonic tradition that advocated Maimonides’ approach. He did not invent these ideas; on the contrary, it was Rashi who departed from the tradition familiar to him. Apparently Rashi regarded the view as a clear and unequivocal error, if he allowed himself to disagree with all of his teachers.

Precisely against this background, however, it is very important to note the major novelty found here. We encounter here a halakhic consequence of classifying exegetical laws as rabbinic laws. In Maimonides it was not clear whether this determination had practical halakhic implications, apart from the fact that an exegetical derivation does not count as a formal warning for purposes of punishment, in the introduction to Sefer HaMitzvot. From the words of Rashi’s teachers, it is clear that they understood an exegetical law as rabbinic in the ordinary sense, that is, as a law of lesser force, which the Sages themselves can revoke.

It is important to understand that, according to our explanation of Maimonides himself, this cannot be said. When the Sages created a law through exegesis, that is a law that cannot be nullified by some rabbinic enactment. Even if its force is not necessarily identical to that of explicit Torah law—depending on the context—it is not legislation but an extension of the Torah, and therefore it too expresses the will of God. If so, a rabbinic enactment cannot override such a law, even according to Maimonides. From the words of Rashi’s teachers it appears that this is a rabbinic law in the ordinary sense, without the conceptual shift introduced by Maimonides, and therefore it can be annulled by the Sages. If so, it is not clear how they understood exegetical derivations at all, and what, in their view, distinguishes them from legislative enactments and decrees.

From this there emerges another consequence of our explanation of Maimonides. Exegetical laws are indeed rabbinic laws, but their essence is such that they cannot be uprooted by the force of a rabbinic enactment. Here too, the issue is not one of force, but of understanding the relevant essence for questions of override and annulment.

In any event, the position of Rashi’s teachers in explaining Rava’s opinion in the passage in Ketubot cannot apparently serve as a reliable source for Maimonides’ position. Neubauer already noted this as well, page 8: Maimonides himself, both in the Principle and in the responsum, did not cite this Gemara as the source of his view.

As noted, Rashi himself rejects the view of his teachers by saying that betrothal by money is derived from the gezerah shavah “taking” “taking,” and is therefore as though written explicitly in Scripture. It follows from his words that his position is that the derivation reveals rather than expands—unlike Maimonides. Yet this is not necessary, for he may simply be making a claim about the halakhic force of these laws and not about their source. That is, Rashi may agree with Maimonides that exegetical derivations are not considered something literally written in Scripture, yet their halakhic status is that of the will of God, and therefore rabbinic enactments cannot uproot them. Above we noted that even Maimonides himself would probably be unable to accept the view of Rashi’s teachers. Still, Rashi’s wording somewhat suggests that he truly understands the derivations as revelatory.

Neubauer, page 5, cites from Responsa of the Sages of France and Lotharingia at the end of section 63 a responsum by Rabbi Eliezer ben Yitzhak the Elder of Mainz, who lived in the generation before Rashi and was apparently one of the teachers mentioned in the Ketubot passage, and also from the commentary attributed to Rabbenu Gershom ben Yehudah, Babylonian Talmud, Bava Batra 48b, evidence that betrothal by money is rabbinic.

But from their words it emerges that they understood the Gemara to mean that betrothal by money is rabbinic because the gezerah shavah is a mere asmachta (scriptural support) and not a full derivation. If so, there is indeed a halakhic source here for Maimonides’ opinion, but not for his reasons. Had this been a full derivation, those same sages too would have agreed that it is Torah law. Presumably Rashi’s teachers would agree to this as well; see his words there.

Neubauer’s proof of this, see page 6, is that Rabbi Eliezer ben Yitzhak the Elder rules in the responsum just mentioned that only witnesses disqualified by rabbinic law are valid to testify in a woman’s testimony, contrary to the law as accepted by us, according to which even those disqualified by Torah law were validated. Therefore he disqualifies a relative from testimony concerning a woman, since such a person is disqualified by Torah law. Yet this is difficult, since in practice a woman, who is disqualified from testimony by Torah law, is valid for testimony concerning a woman. Rabbi Eliezer ben Yitzhak the Elder answers that the disqualification of a woman is learned from a gezerah shavah, see Babylonian Talmud, Shevuot 30a, and this is an asmachta rather than a full derivation. He brings proof for this from the law of betrothal by money, and apparently there too he understands the gezerah shavah as a mere asmachta.⁶⁶

Neubauer explains this by saying that in both cases there is a contradiction between Talmudic passages. Regarding betrothal by money, the passage in Kiddushin 2a establishes that it is a gezerah shavah, that is, a Torah law, whereas the passage in Ketubot 3a teaches us that it is a rabbinic law. The conclusion is therefore that the gezerah shavah there is only an asmachta. The same applies to testimony concerning a woman: the gezerah shavah in Shevuot 30a disqualifies her from testimony by Torah law, whereas in Yevamot 122a it is proven that this is a rabbinic disqualification. From this Rabbi Eliezer ben Yitzhak the Elder concludes that the gezerah shavah is only an asmachta.⁶⁷

Yet his wording makes this difficult to accept, for he writes there:

And even so, it [that is, the gezerah shavah] is not like Torah law itself, for it is the exegesis of the Sages.

This seems to mean that he says this about gezerah shavah in general: it does not reveal what is latent in the Torah, but is rather the exegesis of the Sages, and not only about this particular gezerah shavah. If so, Rabbi Eliezer ben Yitzhak does not mean that this is an asmachta, but that all derivations are “the exegesis of the Sages.”

The words of Rashi above also suggest that his dispute with his teachers did not revolve around whether this was a gezerah shavah or an asmachta, but rather around the question whether a gezerah shavah is a rabbinic law or is considered as though written in the Torah. Neubauer correctly notes, page 7, that Rashi knew the opinion of his teachers, and if this had been a general position he should have mentioned it in many additional places, and in particular should have explained his reasons in the dispute in greater detail.

Witness Disqualifications Derived from Exegesis

Another source cited as a possible basis for the tradition from which Maimonides drew his view is the opinion of several Geonim regarding witness disqualifications that arise through exegesis. The Geonim and the medieval commentators disagreed concerning betrothal performed in the presence of witnesses who are disqualified by rabbinic law: are the betrothals valid, requiring a bill of divorce, or are they void by virtue of the rabbinic power to annul betrothal?⁶⁸

Rav Ahai Gaon, whose view is cited in Responsa of the Rif, section 14, also cited in Responsa of the Rashba, part 1, section 1185, and in the responsa attributed to Nahmanides, section 125, holds that one does not annul betrothals performed before witnesses whose disqualification is rabbinic. He then compares the case to the law of a slave and to the law of a woman. Regarding a slave, the accepted law is that if the master struck him in the tooth or the eye, he goes free without a bill of manumission; but if he struck him in the extremities, a law learned from exegesis, he must release him with a bill, and until he gives that bill the slave is held up for manumission. Rav Ahai argues that the same is true regarding a woman: when the betrothal was performed before witnesses disqualified by rabbinic law, the betrothal exists and requires a bill of divorce. In the course of his discussion he writes that in the case of a slave we see that when he is struck with a blow that nullifies slavery only by virtue of exegesis, this is weaker; all the more so if there were merely a factor whose force is rabbinic, we would require a bill. He says nothing at all about witnesses whose disqualification itself comes from exegesis; rather, he reasons by an a fortiori argument from the force of exegesis to the force of a rabbinic law.

Some understood Rav Ahai to mean that the status of laws that emerge from exegesis is like that of rabbinic laws. But Neubauer argues that there is not the slightest hint in Rav Ahai’s words of a position similar to that of Maimonides. All that one sees is that a law derived through exegesis is lighter than a law that comes directly from the Torah itself,⁶⁹ and for that reason he makes his a fortiori argument. But one does not see in his words that the halakhic status of such laws is that of rabbinic law.

Yet from the Rif’s response to Rav Ahai it appears that he did understand him that way. The Rif argues against Rav Ahai that, according to his reasoning, we should have to require a bill of divorce in every case of witness disqualification due to kinship, since all such disqualifications arise from the exegesis of the Sages.

In fact, it seems clear that this inference is correct already from Rav Ahai’s own words. For from Rav Ahai’s words, comparing the requirement of a bill of divorce in betrothal involving disqualified witnesses to the requirement of a bill of manumission when a slave is injured, it follows that had there been witnesses to betrothal whose disqualification arose from the exegesis of the Sages, even then we would have required a bill and would not have regarded the betrothal as automatically void, for from that case he derives an a fortiori argument to betrothal witnesses whose disqualification is rabbinic. That is, Rav Ahai’s reasoning does indirectly imply that a disqualification arising from exegesis is not a Torah-law disqualification.⁷⁰

Beyond that, Rav Ahai’s very comparison of one derivation to another is unclear. If we wish to say that a particular derivation is an asmachta, do we need to bring proof that there are other asmachtot? Why do we need all this pilpul in order to say something so banal, namely that some derivation is an asmachta? Therefore it seems clear that, in Rav Ahai’s view, this is a full derivation, but even a full derivation has the status of a rabbinic law.

This understanding of Rav Ahai is strengthened by what is found in Halakhot Pesukot, which writes as follows, Sassoon edition, page 108:[^427]

One who betroths in the presence of related witnesses, who are so by rabbinic exegesis, such as his brother… the betrothals are doubtful, and she requires a bill of divorce, from what our Rabbis taught… One who decides will tell you: even though the other limbs are compared to tooth and eye, since they come through exegesis, a bill of manumission is required.

Even from this somewhat corrupted text, one can clearly see that, unlike Rav Ahai’s wording in the Rif’s responsum, here the subject is witness disqualifications derived from exegesis, and not merely rabbinic disqualifications. The ruling is that even in betrothal with such witnesses, the betrothal is not void; he must give her a bill of divorce in order to release her.⁷¹

The conclusion is that Rav Ahai’s opinion, and also that of the author of Halakhot Pesukot, is probably like the position of Maimonides. That is, there is indeed a Geonic tradition that serves as a source for this view. What we have seen here, however, concerns only the status of exegetical derivations, and not the full extent of Maimonides’ position, such as his definition of the concept “de’oraita,” and so forth. In any event, Maimonides’ view is certainly an interpretive proposal and conceptual framework that fits this tradition.⁷²

It should be noted that Maimonides himself, Laws of Slaves 5:4, does not make Rav Ahai’s distinction, namely between betrothal witnesses disqualified by Torah law and witnesses disqualified by exegesis. To be sure, there is such a tannaitic opinion in that passage, that of Rabbi Shimon. Thus Maimonides’ source is not necessarily the passage there, but this still does not amount to a refutation of the explanation that, regarding derivations in general, Maimonides follows Rav Ahai Gaon’s approach.

Relatives from the Maternal Family

Another source in which an earlier tradition is discussed is Maimonides’ ruling regarding witness disqualification based on the maternal family. The Mishnah in Babylonian Talmud, Sanhedrin 27b, establishes that all relatives, whether from the mother or the father, are disqualified from testimony. In the Gemara there, 28a, derivations are brought for this. But Maimonides, Laws of Testimony 13:1, distinguishes between these two kinds of relatives: paternal relatives are disqualified by Torah law, whereas maternal relatives are disqualified by rabbinic law. Maimonides repeats this elsewhere, where he treats marriage as a form of kinship derived rabbinically, based on the derivation from “his kin”—that is, his wife—which is applied to inheritance, mourning, and a priest’s impurity for his deceased wife. Many understood this ruling as a consequence of the principle established in the Second Principle, and many writers have discussed this at length; this is not the place. Here we are dealing only with the question whether there is a tradition prior to Maimonides that anticipates his distinctive position.

Now, with respect to disqualification by kinship and the impurity of a priest for his wife, the Halakhot Gedolot and Rav Ahai in the Sheiltot join the opinion of most medieval authorities that the obligation of a priest to become impure for his wife is by Torah law. As for the disqualification of her family from testimony, this is not clear to me from their words.

In the Rif’s responsum mentioned above, the Rif writes that some Geonim who preceded him, such as Rav Ahai, Rav Shmuel bar Hofni, the author of the Halakhot Gedolot, and Rav Hai Gaon, all held that one who betroths in the presence of witnesses disqualified by rabbinic law requires a bill of divorce. The Rashba, in the responsum cited above, explains that they intended to distinguish between paternal and maternal relatives, and between a Torah-law disqualification and a disqualification arising from exegesis. According to the Rashba, the opinion of those Geonim is that one who betroths in the presence of witnesses disqualified by exegesis must give a bill of divorce. Neubauer, however, argues that the Rashba is not correct about their position, and he brings proofs regarding Rav Hai and Rav Shmuel bar Hofni; see there, as well as contradictions in the Rashba himself.

Neubauer adds a further claim: even if the Rashba is correct in explaining their position, this still would not serve as a source for Maimonides’ view, because their distinction between paternal relatives and maternal relatives is based on the understanding that the maternal-family disqualification is an asmachta and not a full derivation, exactly as he claimed earlier regarding Rav Ahai’s view. But according to everyone except Maimonides, a full derivation is in every respect like Torah law. The basis for this claim is Neubauer’s explanation of the opinions of the author of Halakhot Pesukot and Rav Ahai. But in both cases we have seen that he is mistaken, and therefore there is no basis to assume this regarding the other Geonim either, especially since the Rashba apparently understood them otherwise. If so, those Geonim too join the same tradition that serves as a source for Maimonides’ position.

Summary of the Chapter

In this chapter we dealt with the question whether there is an earlier tradition that serves as a source for Maimonides’ view that exegetical laws are laws “from the words of the Sages.” It should be noted that even after Maimonides stated his position, such a view still scarcely appears explicitly in almost any decisor, medieval or later, though at times it is joined as an auxiliary consideration to support lenient rulings in various circumstances.

In the next chapter we shall address a different question: whether Maimonides’ hermeneutic position, according to which the biblical text has only one interpretation, and his conception of midrash, according to which midrash does not reveal but rather expands, are also found among other medieval authorities.

Chapter 2: Maimonides’ Conception of Midrash and His Theory of Interpretation

Introduction

As stated, this chapter deals with the question whether there are medieval authorities who agree with Maimonides’ position regarding his theory of interpretation and his conception of the nature of midrash. Do we find among other medieval thinkers the view that the biblical text can have only one interpretation? And do we find other views that understand midrash as an expansion of Scripture rather than its interpretation?

As we already noted in the introduction to this appendix, one can adopt Maimonides’ position on both of these points and nevertheless not agree with the conclusion that the halakhic status of exegetical laws is that of rabbinic laws. The analysis in the body of the book shows that if one does not define the concept “de’oraita” as Maimonides does—that is, as what is found in the Torah—but rather understands it in the usual sense, namely as the will of God, then one can hold that the biblical text has only one interpretation, and also maintain that exegetical derivations are expansions of Scripture, and yet still hold that an exegetical law expresses the will of God, for He knew that we would derive it from Scripture, as Nahmanides wrote in his glosses. Therefore, according to such approaches, an exegetical law would have the status of Torah law. In this, they would differ from Maimonides himself.

For this reason, even though we found no ally for Maimonides on the halakhic plane among those who came after him, there is still reason to look for allies on the plane of hermeneutics and the understanding of the nature of exegetical derivations.

There is, however, a principled difficulty in seeking such views within halakhic literature, because to do so we need to find halakhic consequences that indicate such positions. As stated, with respect to most consequences, the halakhic status of exegetical laws is like that of Torah laws, and therefore such a consequence will probably not be found. One must seek different halakhic consequences of hermeneutics and of the nature of midrash.⁷³ One can also proceed in the opposite direction, by looking for halakhic differences between ordinary Torah laws and exegetical laws, and examining the theoretical basis that underlies these distinctions.

We shall now review some of the differences we found between Torah laws and exegetical laws, most of them already discussed in the second part, and examine them in the context of hermeneutics and the meaning of derash.

1. Warning

A first and obvious example is formal warning, because this is the halakhic consequence that Maimonides himself adduces for his position. Beyond that, it is highly plausible that this consequence does not depend directly on the question whether the exegetical law is a Torah law or a rabbinic law. Even if it is a Torah law, it may still fail to satisfy the standards of explicitness required for a formal warning, because in the end the warning is not actually written in the Torah. Therefore, if we can find someone who holds that a warning learned from exegesis cannot serve as the basis for punishment, that will indicate the view that derash expands rather than reveals. As stated, such a position may hold that an exegetical law is Torah law, but since it is not written in Scripture, it does not satisfy the requirements of warning necessary for punishment.

At first glance, the Talmudic rule is that a warning requires the use of highly specific formulations—“beware,” “lest,” and “do not,” and generally also “not”; see the Talmudic Encyclopedia, entry “warning.” If so, even an explicit verse that does not use one of these formulations would seemingly not suffice to create a formal warning. If so, laws derived through the hermeneutical rules certainly would not suffice for this purpose.

Yet regarding warning “from logic,” we have already seen that Maimonides understands the phrase “from logic” to mean from all the hermeneutical rules. Maimonides is therefore consistent and in accord with the Talmudic passages: he holds that exegetical laws do not meet the criteria for a halakhic warning. Nahmanides, by contrast, argues that the phrase “from logic” refers specifically to an a fortiori inference, and he proves this from several passages in the Talmud. Hence Nahmanides is consistent with his view that laws learned through the interpretive rules are exactly like laws written explicitly in Scripture. At times an exegetical law will provide a better warning than an explicit verse, for example if the verse uses non-canonical formulations. What is the view of the other medieval commentators?

As stated, with respect to laws derived by a fortiori reasoning, all agree that one does not derive warnings from them. regarding the other interpretive rules, the picture is more complicated. We noted above that with respect to juxtaposition and gezerah shavah, there are explicit Talmudic passages according to which a warning derived from them does entail punishment; see the Talmudic Encyclopedia, entry “one does not derive warnings from logic,” notes 52–53. With respect to a “what do we find” analogy, one does not derive a warning from it; see there, note 54, citing the Jerusalem Talmud, Avodah Zarah 5:12, the Rashba on Hullin 99b, and the Ran on Nedarim 4b. Regarding the broader forms of analogical reasoning known as “what do we find” and “common factor,” later authorities disagreed whether warnings may be derived from them; see there, notes 55–56.

It is difficult to formulate from this a general conception of exegetical derivations, but we must ask what distinction divides the hermeneutical rules into these two groups for this purpose. One possible division is between logical rules and textual rules. The logical rules, such as a fortiori reasoning, “what do we find,” general paradigm, and common factor—which is a kind of general paradigm⁷⁴—have at least some opinions that deny warnings may be derived from them. By contrast, regarding textual rules, such as juxtaposition and gezerah shavah, it is agreed that warnings may be derived from them, except in Maimonides’ view. If we try to reconstruct the full picture from these data, it seems plausible that the difference is this: the logical rules are our own analogical expansions of what is written, and therefore they are not included in it. They are products of our reasoning, and therefore are not considered part of what is written in the Torah itself. The textual rules, by contrast, are regarded by most medieval commentators, except Maimonides, as part of the text itself.

What emerges here are intermediate positions between that of Maimonides and that of Nahmanides. According to Maimonides, all the rules are expansions of what is written, and therefore no warning may be derived from them. The textual rules too are apparently understood by Maimonides as textual hints to substantive analogies. For example, in his view the identical words in a gezerah shavah are only hints meant to draw our attention to a substantive connection between the passages under discussion. From that point onward, according to Maimonides, ordinary analogy does the work. Therefore, even textual rules are for him an expansion of the text, not a revelation of what lies within it. According to Nahmanides, all the rules seem to be revelations of what is latent in the text. As we explained in the body of the book, for Nahmanides even logical analogy functions as revelation and interpretation; hence, in his view all exegetical laws are present in the text and constitute a valid warning. According to the intermediate positions presented here, the picture is divided. In general, the logical rules are viewed more as expansions of the text, for the same reason we saw in Maimonides regarding all the rules. The textual rules, by contrast, reveal what is latent in the text, for the same reason we saw in Nahmanides. It is possible that different decisors and commentators disagree regarding one or another rule as to whether it reveals or expands, and therefore also regarding whether a warning derived from it is a valid warning.

2. Oath

At the end of the second part we saw the Ran’s comments on Babylonian Talmud, Nedarim 8a. There the Talmud states that an oath to study Torah takes effect, even though ordinarily an oath to fulfill a commandment does not take effect. As is well known, the Gemara explains that an oath does not take effect concerning a commandment because one is already sworn from Mount Sinai, and one oath cannot take effect upon another.

We saw that the Ran there writes that because the obligation to study Torah beyond reciting the Shema morning and evening is learned from exegesis, from the word “and you shall teach them diligently,” see Babylonian Talmud, Kiddushin 30a, an oath can take effect upon it. The Rosh disagrees, holding that an oath can take effect on Torah study because there is no obligation at all to study beyond the Shema morning and evening—in other words, it is not a commanded matter. It is unclear whether the Rosh rejects the Ran’s underlying premise itself, or disagrees with him only regarding the scope of the commandment of Torah study, while agreeing with him concerning oaths on exegetical laws.

We saw that in explaining the Ran one can proceed in two directions. Some understood the Ran to mean that exegetical laws are rabbinic, like Maimonides, and assumed that this is what Maimonides himself meant, as Nahmanides understood him, unlike the Tashbetz. But this is forced, since the Ran does not hint at this, nor does he cite Maimonides in support.

Some wrote that the Ran means that exegetical laws are Torah laws, but lighter, and therefore an oath can take effect upon them. This is what is written in the Kuntres, section 1, subsections 19–20, and this also seems the plain sense of the Ran’s language. This would be similar to the Tashbetz’s understanding of Maimonides: exegetical laws are by Torah law, but the Ran holds that they are lighter in severity.

However, the simpler reading of the Ran is the one we suggested: these laws do not have rabbinic force, and in that sense he does not agree with Maimonides. But the Ran can still agree that such laws have no source in the Torah itself. The reason an oath does not take effect on commandments is not their severity, but the fact that there is already an oath upon them from Sinai, and the rule is that one oath cannot take effect upon another. According to this, one may say that with exegetical laws that are not present in the text, the Sinai oath did not take effect upon them—not necessarily because they are lighter—and therefore an ordinary oath can take effect upon them.⁷⁵ This is exactly the kind of practical difference we were seeking above. Even though the Ran does not necessarily agree with Maimonides that the force of exegetical laws is rabbinic, he may still agree with Maimonides’ understanding of the meaning of exegetical derivations, namely that these laws are not present in the Torah itself. Derash is an expansion of the text, except that in the Ran’s view the expansion is still of Torah force. The halakhic consequence of hermeneutics as such, independently of whether exegetical laws are by Torah law or by rabbinic law, concerns the applicability of an oath to them. If indeed the fact that an oath does not take effect does not depend on severity, but on whether there is already an oath from Sinai concerning that act, then one may say that according to a hermeneutic that sees midrash as a branching out—not a revelation of what was stated at Sinai but an expansion of it—the Sinai oath does not apply to exegetical laws, but only to what is found in the text. Hence an oath can take effect upon them.

We saw that it is plausible that the Ran shares Maimonides’ conception of exegetical derivations as expansions. Does he necessarily also share Maimonides’ hermeneutic theory? In other words, does the Ran necessarily hold that the biblical text has only one correct interpretation?

In the body of the book it was explained that Maimonides’ hermeneutic theory is consistent with his general position. Since he seeks what is in the text, rather than the intention of the author, he concludes that there is only one correct interpretation. But if we assume that the interpreter, at least the halakhic and biblical interpreter, is meant to seek the intention of the author, it is hard to see why there cannot be several correct interpretations of the same text. Is anything impossible for God? In the second part we saw that Nahmanides understood the matter precisely in that way.

If the Ran does not accept Maimonides’ assumption that the concept “de’oraita” means only what is found in the text, then he ought to seek the will of God, and not necessarily what is present in the Torah. If so, it is unlikely that he would say the biblical text has only one true interpretation. Nevertheless, he can still understand exegetical derivations as expansions of the text rather than as its deciphering. The reason would not be a hermeneutic theory like Maimonides’, but an understanding of the nature of exegesis as analogy rather than deduction, or some similar consideration.

It follows from our discussion that if the Ran does not share Maimonides’ definitions of the concepts “de’oraita” and “de’rabbanan,” he probably also does not agree with his hermeneutic theory. Nevertheless, he may still agree with Maimonides’ understanding of the methods of exegesis as expanding Scripture rather than revealing what lies within it.

3. Additional Leniencies in Exegetical Laws

Immediately after that example we briefly mentioned several additional examples cited in the Kuntres, in which we find leniencies regarding exegetical laws.

For example, Tosafot on Yevamot 7b prefers to permit partial entry into the Temple courtyard, since that prohibition is learned through exegesis, rather than permit complete entry, which appears explicitly in a verse. At first glance, this seems to indicate that the former prohibition is lighter, though we already pointed there to other possibilities. It is difficult to derive from this an unequivocal indication of one or another hermeneutic theory. In any event, it is quite clear that if exegetical laws are lighter in some sense, then derash is not revelation in the same sense as the plain interpretation of Scripture. From the additional examples cited by the Kuntres, it is hard to decide what hermeneutic theory is reflected in them.⁷⁶

One may add the words of the Kesef Mishneh on Laws of Impurity of the Dead 5:5, where he explains Maimonides’ position that one impure through corpse-impurity whose impurity is learned through exegesis is not liable to karet for impurity of the Temple and its holy things, unlike one impure through corpse-impurity explicitly written in the verse, who is liable to karet for that. This law may also depend on the severity of the prohibition, in which case what was said regarding partial entry would be relevant here as well. But it may parallel what we saw above in section 1 regarding warning. The reason he is not liable to karet is that there is no warning for it, since it is learned through exegesis. From here it follows that the Kesef Mishneh understands impurities derived through exegesis not to be present in the Torah, and therefore there is no warning concerning them; hence they do not entail punishment. To be sure, this interpretation was stated regarding Maimonides himself, so one would indeed expect it. According to Maimonides, for whom a law learned through exegesis is not a warning for purposes of punishment, it stands to reason that there would be no karet for it.

At first glance, however, this depends on the question whether punishments from Heaven require a warning or not. The view of almost all the medieval commentators is that, as a matter of law, karet does not require a warning; see the Talmudic Encyclopedia, entry “warning,” from note 50 onward. But it is well known that Maimonides disagreed with all the other medieval authorities on this point, holding that even karet requires a warning.⁷⁷ If so, according to Maimonides it is clear that a law derived through exegesis is insufficient for imposing karet, which supports the Kesef Mishneh’s view.

4. Things Moses Did “on His Own Initiative”

In the second part we cited Rabbi Pintzuk’s article, which discusses Babylonian Talmud, Shabbat 87a, concerning three things Moses did on his own initiative and the Omnipresent agreed with him. The Gemara immediately asks what Moses derived when he decided to do them, and brings various derivations for each decision. This immediately raises the question why a decision based on derivations is considered something Moses did “on his own initiative.” Ostensibly, exegetical derivations are tools given to us together with the Bible itself, and therefore using them is part of the ordinary procedure of halakhic decision-making.

Tosafot answers that Moses employed defective derivations, insufficient to serve as a proper basis for his decision. In other words, according to Tosafot, ordinary derivations cannot be considered something Moses does “on his own initiative.” Apparently the reason is that Tosafot disagree with Maimonides, and in their view derivations are present in the text itself. If so, this is not from Moses’ own initiative but from the initiative of the Torah itself—that is, of the Holy One, blessed be He. By contrast, according to Maimonides it seems possible to explain that Moses made ordinary derivations, and yet the matter is still considered something he did “on his own initiative.” For Maimonides, derivations are the result of the interpreter’s judgment in expanding Scripture, not the revelation of what is present in Scripture itself. If so, this is a direct consequence of his hermeneutic approach, even if the force of the law is only rabbinic. The question here is not what force the law has, but whether the law is latent in Scripture itself or whether it is an expansion of what is written in Scripture.

Yet one might try to reject this argument and say that even according to Tosafot it is entirely possible that derivations are expansive, and nevertheless not considered something Moses did on his own initiative that requires divine approval. After all, Maimonides too agrees that the tools of expansion were given to us at Sinai; he only claims that they are tools of expansion rather than revelation and deciphering. If so, even according to Maimonides it is not clear why we need divine approval for a conclusion that follows from ordinary use of them. Even if they are expansive tools, they are still clearly part of the ordinary halakhic procedure given to us at Sinai, and not a matter of Moses’ own initiative.⁷⁸

5. Emancipation Through Injuries to Extremities

In the previous chapter we saw the discussion of the Geonim concerning betrothal in the presence of witnesses disqualified by exegesis. Rav Ahai there brought proof that in such a case no bill of divorce is needed from the distinction between freeing a slave by striking the tooth or eye, which are written explicitly in Scripture, and freeing him by striking the other extremities, which are learned by exegesis. The discussion there concerned the halakhic status of laws learned through exegesis. Here we are asking whether there are other positions that accept Maimonides’ hermeneutic theory, even if not his halakhic conclusion.

In this context the primary source is Responsa of the Rashba, part 1, section 1185, where he cites Rav Ahai’s proof, and where he himself also discusses the case of one who divorced in the presence of disqualified witnesses. The Rashba explicitly mentions there a practical halakhic difference between a law written explicitly in Scripture and one not written explicitly there. According to him, as a result of injury to the tooth or eye the slave goes free immediately without a bill, whereas for injury to the other extremities the slave requires a bill. The explanation is that they were concerned lest the master encounter him in the marketplace and say, “You are my slave”—in simple terms, this is a rabbinic concern. But this concern exists only where the injury is to the other extremities and not when it is to the tooth or eye, because those two are written in the Torah.

At first glance, this is only a technical practical difference, yet it implies that what is written in the Torah is known to everyone—what halakhic literature calls “a matter the Sadducees admit”—and just as it counts as a warning for purposes of punishment, so too it can be regarded as an injury that grants immediate emancipation. In such a situation, there is no concern that he will say in the marketplace, “You are my slave,” because presumably onlookers will know that the slave left his authority because of the injury.

At first glance, this technical practical difference reflects the fact that such a law is not considered written in the Torah—that is, it derives from a hermeneutic like Maimonides’.⁷⁹ One might reject this and say that everything depends on what people think, and not on the essential question whether the law is indeed present in the Torah.

Chapter 3: The Positions of Maimonides, the Meiri, and the Halakhot Gedolot Regarding Inclusions

Introduction

We shall conclude this appendix by clarifying the positions of other medieval commentators regarding the Second Principle. We have already seen that almost all of them do not agree with Maimonides’ definitions, according to which commandments derived through exegesis are “from the words of the Sages.” We saw that perhaps some of them would accept his hermeneutic theory. But there is still room to examine whether other medieval positions exist regarding Maimonides’ principle of enumeration, and what, if any, halakhic significance those positions have.

Maimonides’ Objections to the Halakhot Gedolot from Honoring One’s Mother’s Husband, One’s Father’s Wife, and One’s Elder Brother, and Nahmanides’ Answer⁸⁰

We shall begin with the objection Maimonides raises against the Halakhot Gedolot in the course of his discussion of the Principle. As stated, the Halakhot Gedolot counts commandments learned through inclusion and through the thirteen hermeneutical rules, such as reverence for Torah scholars, learned from the inclusion in the verse “The Lord your God shall you fear”—to include Torah scholars. Maimonides objects: why does the author not count the other commandments learned from the inclusion of the word “et,” such as honoring one’s father’s wife, one’s mother’s husband, and one’s elder brother, which are learned from the inclusion of the words “honor” and “your mother” and from the extra vav in the verse “Honor your father and your mother”?

Nahmanides, in his glosses, explains the view of the Halakhot Gedolot by saying that these commandments are included within the commandment from which they are derived, and therefore are not counted separately; see the Seventh Principle. For example, honoring one’s father’s wife is included in honoring one’s father. Honoring one’s mother’s husband is included in honoring one’s mother. Honoring one’s elder brother is included in honoring one’s parents. This really requires explanation even regarding Maimonides himself: why does he think that if these commandments were by Torah law we would have to count them, when it seems plausible that they are included within the commandments from which they are learned?

There are two possibilities here:

1. Maimonides himself holds that exegetical commandments—either all of them, or at least those from which he raises his objection—are not part of the source commandments from which they are learned.
2. It is possible that he raises this objection only according to the view of the Halakhot Gedolot itself, because in his understanding the author ignores the question whether the law is merely a detail within an existing commandment. The proof is that he counts the commandment of revering Torah scholars and does not include it within the commandment of fearing God. Therefore Maimonides argues against him on his own terms: even if you count parts of a commandment as independent commandments, how can you include in the enumeration commandments learned from derivations?

In any event, with respect to the Halakhot Gedolot itself, the question is not simple: are commandments included by means of the word “et” part of the original commandment dealt with by the verse, or not? Why does he count reverence for Torah scholars separately from reverence for God, while not counting separately the honor due to one’s father’s wife and one’s mother’s husband?

At least regarding the Halakhot Gedolot, it seems fairly clear that one must distinguish among different kinds of inclusions. Some are not included in the commandment from which they are included, and some are. What is the criterion? Presumably a local substantive criterion that depends on each commandment individually. In any case, as we already noted, Maimonides’ own opinion on this matter is unclear. It is possible that he disagrees with the Halakhot Gedolot in understanding these commandments themselves and their relation to the source commandments, that is, the generating commandments. It is also possible that he disagrees on a more fundamental point concerning inclusions: in his opinion none of them is included in the source commandment from which it is derived, and had they not had the status of rabbinic laws we would have had to count them.

Nahmanides, in his glosses, page 51, defends the position of the Halakhot Gedolot. First he objects: the Gemara in Ketubot 103a brings this derivation as part of a question, and it follows from there that these laws are by Torah law. This is the language of the Gemara there:

Be careful with the honor of your mother. But that is by Torah law, for it is written: “Honor your father and your mother”! It means the father’s wife. But the father’s wife too is by Torah law, for it was taught: “Honor your father and your mother”—“your father,” this includes your father’s wife; “your mother,” this includes your mother’s husband; and the extra vav includes your elder brother. This applies during their lifetime, but not after death.

If so, the Gemara explicitly states that honoring one’s father’s wife and one’s mother’s husband is by Torah law. In fact, Maimonides himself rules this way in his code, Laws of Rebels 6:15:

A person is obligated to honor his father’s wife, even though she is not his mother, so long as his father is alive, for this is included in honoring his father. Likewise he honors his mother’s husband so long as his mother is alive. But after her death he is not obligated. And by rabbinic law, a person is obligated to honor his elder brother as he honors his father.

We see that Maimonides himself distinguishes between honoring one’s father’s wife and one’s mother’s husband, which are by Torah law, and honoring one’s elder brother, which is by rabbinic law. One might have explained that all three commandments derived in that baraita are included in the Gemara’s opening statement, and all are by Torah law. But apparently Maimonides distinguishes between them according to their character: honoring one’s father and mother certainly includes, in content, honoring one’s mother’s husband and one’s father’s wife. Honoring one’s elder brother, however, is not included in them so clearly, and therefore one may ask whether the statement that it is by Torah law applies to him as well. Maimonides decides that it does not.⁸¹

It should also be noted that once the Sages revealed to us that the commandments to honor one’s mother’s husband and one’s father’s wife are by Torah law, then it is clear that the derivation is deciphering—that is, revealing what is written. But where is it written in the Torah? Presumably it is included in the commandment to honor father and mother. In the verse “Honor your father and your mother,” the honor of one’s father’s wife and one’s mother’s husband is also implicitly written. If so, since the Sages revealed that it is by Torah law, they thereby also revealed that these commandments are included in the source commandment. The conclusion is that they do not apply after the death of the father and mother, as is explicit both in Maimonides’ own words and in the Gemara itself. In fact, it is possible that the source in the Sages that reveals to Maimonides that these laws are by Torah law is not the Gemara’s statement that they are by Torah law, but rather the practical consequence that they apply only until the death of the father and mother. By contrast, regarding the elder brother, Maimonides does not write that the commandment applies only until the death of the parents. Apparently, then, it is an independent commandment. The reason is what we wrote above: it has its own distinct content, and therefore it is not included in the commandment of honoring parents, and its parameters are accordingly different.

Later authorities, see for example the Hafla’ah on the Ketubot passage, objected to Maimonides that the commandment to honor father and mother itself applies even after their death. It is therefore unclear why the commandment to honor one’s father’s wife and one’s mother’s husband ceases after the death of the biological parents. According to our explanation, there is a difference between the two planes. Direct honor toward one’s biological parents applies even after their death. But indirect honor done to them through their spouses does not apply after their death: either because the relation between them no longer exists, and therefore the obligation lapses; or because that type of honor no longer counts as honor to the deceased parent, unlike his burial, his memory, and so forth. By contrast, the honor due to the elder brother applies even after death, because that relationship continues even after the death of the parents.⁸²

It should be noted that this itself is one of the laws in which the Second Principle is rather clearly expressed, since Maimonides already associates it with that principle in the Principle itself, in the objection to the Halakhot Gedolot that we are discussing here.

In any event, Nahmanides would seem justified in his objection to Maimonides’ challenge. If Maimonides does not regard these commandments as included in the commandment to honor father and mother, why does he himself not count them, since the Sages explicitly say that they are commandments by Torah law? And if he does regard them as included in the source commandment, then it is unclear what his complaint against the Halakhot Gedolot is.

We are therefore forced to conclude that Maimonides intended his objection only according to the view of the Halakhot Gedolot, while he himself agrees with him, though not for the same reasons. Maimonides infers from the Halakhot Gedolot that the author holds the inclusion to be part of the commandment from which it emerges. Indeed, Maimonides’ language in the objection is: “And he considered that everything that comes through inclusion is part of the stated generality.” Yet the Halakhot Gedolot apparently does not accept the principle that such commandments are not counted—hence it counted reverence for Torah scholars. If so, Maimonides argues against him: why then does he not also count the commandments to honor one’s father’s wife and one’s mother’s husband? This is so even though Maimonides himself holds that they are included in the commandment to honor parents and are binding by Torah law. As we have already noted, these objections in fact rest on the Seventh Principle, not on the Second. With respect to the elder brother, however, Maimonides apparently does object also on the basis of the Second Principle, since in his view this is a commandment “from the words of the Sages,” as we saw in his explanation of the Gemara and in his wording in the legal code.

What emerges from all this is that, according to Maimonides, inclusions are not part of the source commandments unless the Sages reveal that they are. When the Sages said in Ketubot that honoring father and mother is by Torah law, they revealed two things at once: that its force is by Torah law, and that it is included in the commandment to honor father and mother. Therefore the obligation lasts only until the death of the father and mother. For this reason, even though they are by Torah law, Maimonides does not count them, because they are already included in the commandment to honor parents. Regarding the elder brother, Maimonides holds that he is derived by inclusion, and that the Gemara did not mean to say that he too is by Torah law. Therefore his force is rabbinic, and he is apparently not an expression of honoring parents at all, but an independent commandment in content as well.

The Halakhot Gedolot itself, unlike the way Maimonides understood it, probably agrees that inclusions are not part of the source commandments and therefore should be counted. Yet there are cases in which they are included, and in such cases they are not counted. That is, contrary to Maimonides’ understanding of it, the Halakhot Gedolot does accept the principle of the Seventh Principle, namely that one does not count details of a commandment as independent commandments. The decision when to understand matters one way and when the other depends on the content of the commandment, not on an explicit revelation by the Sages, as appears from Maimonides, and it is learned from the language of the Sages in the Talmud. Regarding honoring one’s father’s wife and one’s mother’s husband, the Sages determined that these obligations apply only until the death of one’s parents, and therefore it was clear to the Halakhot Gedolot that they are included in the commandment to honor parents, and for that reason it did not count them separately. By contrast, the Halakhot Gedolot refuses to see reverence for Torah scholars as part of the commandment to fear God, and therefore counts it separately.

The reason is that reverence for Torah scholars is not itself an act of reverence for God, but rather an ideological extension of reverence for God. Therefore it is a separate commandment. By comparison, honoring one’s father’s wife or one’s mother’s husband consists of acts that are themselves acts of honoring one’s parents, and therefore they are included in the commandment to honor parents. The elder brother is apparently not counted either because he is indeed only rabbinic—in the Halakhot Gedolot’s view the derivation from the vav is probably an asmachta—or because he too is included in the commandment to honor parents, meaning that the acts that honor him themselves also honor the parents in practice, as with one’s father’s wife and mother’s husband, unlike reverence for Torah scholars. Both possibilities appear at the end of Nahmanides’ remarks, page 51.⁸³

It follows that Maimonides and the Halakhot Gedolot do not disagree on the fundamental point of whether inclusions are part of the source commandments. According to Maimonides, they are included only if the Sages reveal to us that they reveal rather than expand, and then it follows that they are also included in the source commandments, because they are revealed as part of its very content. Therefore they are not counted even though they are by Torah law, because of the Seventh Principle. According to the Halakhot Gedolot, they are included in the source commandments if their substantive content indicates this, and in that case too they are not counted.

This explains the mixture Maimonides makes in his objections to the Halakhot Gedolot, some based on the Seventh Principle and some on the Second. For Maimonides the two are intertwined: if the inclusion is not by Torah law, then it is also not included in the source commandment from which it is derived. Still, it is not counted because it is a rabbinic commandment, that is, by force of the principle of the Second Principle. And if the inclusion is by Torah law, then it is included in the source commandment, and again it is not counted—this time because of the Seventh Principle.

Thus far we have dealt with inclusion. What is the rule regarding the other forms of exegesis? Do these positions hold with regard to the other exegetical laws not learned through inclusion? As we have seen, according to Maimonides the answer is clearly yes. He seems to understand all exegetical laws as expansions of the text, that is, not as revealing something already within it. What of the Halakhot Gedolot and the other medieval commentators? In the next section we will examine this in light of another passage in Maimonides’ Second Principle.

The Relation Between Inclusion and Juxtaposition: A Note from the Positions of the Perishah and the Taz Regarding the Honor of One’s Teacher and One’s Father⁸⁴

The Tur, Yoreh De’ah section 242, wrote:

A person is commanded regarding the honor of his teacher and fear of him just as he is commanded regarding honoring his father and fearing him. And his teacher is greater than his father, and fear of your teacher is like fear of Heaven.

The author of the Perishah asks there: why, according to this reasoning, is the honor of one’s teacher greater than that of one’s father? after all the honor of one’s father too is compared to the honor of God; see the Tur on Yoreh De’ah section 240 and Babylonian Talmud, Kiddushin 32a. The Perishah answers that what is learned by juxtaposition is not entirely equal to the source from which it is learned, whereas what is learned through inclusion is entirely equal to its source. Therefore the honor of one’s teacher, learned by inclusion from “The Lord your God shall you fear,” is more stringent than the honor of one’s father, which is only compared to the honor of God.

At first glance, however, one could distinguish between them by noting that regarding the honor of one’s teacher, the source of the obligation to honor him is the verse concerning the honor of God. By contrast, the honor of one’s father is learned from an explicit verse, and the comparison to the honor of Heaven is only a secondary comparison. Indeed, it seems to be a comparison belonging to homiletics rather than legal exegesis.

We should also note that this would seem to imply that what is learned through inclusion is more stringent than what is written explicitly in Scripture, since the honor of one’s father is explicit in the text, whereas the honor of one’s teacher emerges only from inclusion. This is directly contrary to Maimonides, and contrary to all the proofs brought in the above-mentioned Kuntres from medieval authorities who were more lenient regarding exegetical laws than regarding laws explicit in Scripture.

Apparently, according to this position there is no difference between a law learned through the methods of exegesis and a law derived from an explicit verse, and the degree of stringency is measured only by the contents and essence, just as we find among ordinary Torah laws that one can be more stringent than another because of the substantive considerations involved. According to this, the Perishah does not mean to say that a law learned through inclusion is more stringent than a law learned through juxtaposition. He means that what is learned through inclusion is more closely connected to its source than what is learned through juxtaposition, which can differ from its source. In the present case this yields a more stringent result, but the basic statement concerns a qualitative difference in the nature of the relation, not a difference in the severity of the laws as such. As Rabbi Yonah Merzbach argues in his article, there is no difference in the severity of the laws, only in their substantive content.⁸⁵ See there for the examples he cites, which concern the essence and character of the laws rather than their severity. In fact, the differences he discusses are not halakhic differences at all.

According to our explanation, the Perishah understands inclusion as Nahmanides does, not as Maimonides does; see the previous section. According to Nahmanides, the law of reverence for Torah scholars is included within the law of reverence for God, and is its mirror image. That is indeed how the Perishah understands it, except that he innovates that this is a special property of inclusion, whereas with juxtaposition this is not so.

The Taz, section 242 subsection 1, wonders at the Perishah: how can he distinguish between the source and the derived law, seeing that we compare them to one another? Ostensibly, the purpose of juxtaposition is precisely to equate the source and the law learned from it.

According to our approach to Maimonides, this can be understood as follows: learning through the methods of exegesis does not reveal what is already present in the text. It is not correct to say that reverence for Torah scholars contains reverence for God Himself; rather, it is an expansion of the commandment to fear God. But according to this, the statement would apply only to juxtaposition and not to inclusion, whereas Maimonides makes his claim with respect to inclusion as well. We have already seen that the Perishah apparently understood inclusion in line with Nahmanides.

However, according to what we said above, this is unnecessary. The Perishah does not intend to compare the severity of these laws, but their character. The severity of the laws is unrelated to the question whether they are learned through exegesis, or through which kind of exegesis. On that issue he agrees with Nahmanides, as we saw above. The Perishah only argues that the character of the relation between the law and its source differs in juxtaposition and inclusion. In juxtaposition, the derived law is merely similar to the source in its rules, but not in its essence; whereas in inclusion there is substantive similarity in character—there is something of the source itself in what is learned. The difference in stringency is only a secondary result, as we explained above.

Rabbi Yonah Merzbach, in the article mentioned above, further objects to the Perishah on the basis of what Rabbi Samson of Chinon wrote in Sefer HaKeritut, that juxtaposition is not counted among the thirteen hermeneutical rules because it is considered as explicit in Scripture—we mentioned this at the beginning of the second part. If so, juxtaposition should specifically be more stringent. It should be noted, however, that inclusion too is not mentioned among the thirteen rules, so what room is there for this objection? Yet according to Maimonides, who at the opening of the Second Principle counts inclusion together with the thirteen hermeneutical rules, and whose position we explained in the second part on the basis that inclusion is not like something explicit in the text, there is indeed room for this objection.

Still, if what we said is correct—that with respect to the severity of exegetical laws the Perishah follows Nahmanides and not Maimonides—then there is no room to be lenient regarding exegetical laws simply because they are learned from exegesis. Consequently, there should also be no difference between inclusion and juxtaposition except for substantive reasons. Maimonides really would say that a law learned through inclusion is not considered as written explicitly in Scripture, and therefore it is a rabbinic law, though for most consequences its halakhic force is as severe as Torah law. By contrast, a law learned through juxtaposition is considered de’oraita; we saw in the second part that Maimonides probably agrees with the author of Sefer HaKeritut on this point. Yet in practical force it is not necessarily different.

The Objection of Rabbi Yeruham Fischel Perlow and Rabbi Daniel the Babylonian: The Hermeneutic Theory of the Halakhot Gedolot

Maimonides brings proof for his view from the passage in Temurah concerning the thousands of laws forgotten during the mourning for Moses, which Otniel ben Kenaz restored through his dialectic. From this there is proof that already in the time of Moses our teacher there were thousands of laws learned through exegesis, and all of these were called “the fine points of the Scribes.” Clearly, all of these could not have been included in the 613 commandments, since there were thousands of such laws. From this Maimonides inferred that everything not appearing explicitly in the Torah is called “from the words of the Sages” and is not to be counted among the 613 commandments.

Rabbi Yeruham Fischel Perlow, in his comments on the Second Principle, under the sections beginning “and what he wrote” and “and already,” cites Rabbi Daniel the Babylonian’s objection to this proof—and Nahmanides too had already raised it indirectly. How does Maimonides know that all these details should have been counted as independent commandments? It is quite obvious that what was forgotten there was not the basic roots of the laws, but certain details within them. If so, clearly all of these are not candidates to be independent commandments, because of the Seventh Principle and not because of the Second. In other words, even if one did count exegetical commandments, there would still be no room to count the thousands of forgotten laws, since most of them were details within already enumerated commandments. Thus, what proof is there from there that exegetical laws are not counted? Only an exegetical law that creates a new root, and not a branch extending from an existing root, can be counted among the 613. Rabbi Perlow concludes with the remark that even Rabbi Abraham, Maimonides’ son, did not address Rabbi Daniel’s objection, because it is “a tremendous difficulty against Maimonides of blessed memory, to which there is no answer.”

According to what we said above, here too we may say that Maimonides’ proof was brought only in order to reject the position of the Halakhot Gedolot, not as support for Maimonides’ own view as such. That is, according to the Halakhot Gedolot, which holds that every inclusion, even if included in the source commandment, should be counted, one would indeed have had to count all the thousands of exegetical laws. But as we saw above, the Halakhot Gedolot did not really hold that way, and therefore the difficulty from that source does not truly apply to it.

In any event, it emerges from here that the attitude toward exegetical laws in general is no different from the attitude toward inclusion. According to Maimonides, as expected, all these laws are not included in the source commandments from which they are derived, unless the Sages reveal that these are deciphering and revelatory derivations, not expansive ones. Presumably the Halakhot Gedolot would agree with this as well, unless the content of the derivation shows that it is a detail within a Torah-law commandment. Its defenders, Rabbi Daniel the Babylonian and Nahmanides, both assume that there is no difference between inclusion and the other methods of exegesis. If so, according to the Halakhot Gedolot, all derivations are not included in the text unless from their content it appears that they reveal some content already present in it, or some detail belonging to the source commandment. This is also how we explained above the distinction between reverence for Torah scholars, which the Halakhot Gedolot counts, and honoring one’s father’s wife, one’s mother’s husband, and one’s elder brother, which it does not count.

If so, in the Halakhot Gedolot too there are the same two categories we found in Maimonides: revelatory midrashim and expansive midrashim. Only the criterion for distinguishing between them differs. According to Maimonides, an explicit statement of the Sages is required, reflecting the existence of a tradition from Sinai; according to the Halakhot Gedolot, this is an interpretive question that the interpreter decides on his own.

It follows that the Halakhot Gedolot too, in some sense, accepts Maimonides’ hermeneutic theory, according to which derivations do not reveal what is in the text but expand it. Yet for the Halakhot Gedolot this may concern only the question of enumeration in the list of commandments and not any halakhic consequences. But, as Rabbi Perlow notes, this is implausible: if there is no halakhic difference, why not count them?

Saadia Gaon’s Position

Rabbi Perlow, in his discussion of the Second Principle, from the subsection beginning “rather” until the end, presents Saadia Gaon’s position on this issue. In his view, this is a different position from anything we have seen thus far, and it can also sharpen several points in the disputes we presented between Maimonides and the Halakhot Gedolot.

Rabbi Perlow argues that according to Saadia Gaon there is a principle that enumeration is determined by the place of the commandment in the Torah. That is, if there is an exegetical law learned from a particular verse, then within the enumeration of the commandments it is included in the source commandment and is not counted independently. The reason is that it too was given at Sinai together with the commandment from which it is derived; and the enumeration of the 613 commandments stems from Rabbi Simlai’s statement, “613 commandments were said to Moses at Sinai,” meaning that what is counted is what was said to Moses at Sinai. What was given at Sinai was the interpretive rule by which it is derived, but the commandment itself was given and stated there within the verse of the source commandment.

Rabbi Perlow adds that if there were an exegetical law for which there is a verse of its own—that is, it is not included in a verse containing another commandment, but in a verse that does not command anything else—then it would be counted in the enumeration as an independent commandment. He gives as an example the prohibition barring an uncircumcised person from eating terumah, which is learned through a gezerah shavah from the Passover offering. Maimonides counts this commandment in his enumeration, because the Sages reveal that it is by Torah law; see negative commandment 135 and our discussion in the body of the book. Saadia Gaon, however, does not count it. According to Rabbi Perlow, the reason is that this prohibition is included within the prohibition regarding the uncircumcised person and the Passover offering, from which it is learned.

Rabbi Perlow then simply lists additional prohibitions that Saadia Gaon did not count for the same reason. The example he brings in the opposite direction—that is, of a commandment learned through exegesis but not appended to another enumerated commandment and therefore counted independently—is the prohibition against carrying out court-imposed capital punishment on Shabbat. See Yevamot 6b and Sanhedrin 35b. This is learned from the verse “You shall kindle no fire throughout your dwellings on the Sabbath day,” by the gezerah shavah “dwellings” “dwellings.” The reason is that the plain sense of the verse does not deal with this law at all, and therefore it clearly cannot be attached to the prohibition of labor on Shabbat.

Several comments should be made about Rabbi Perlow’s presentation of Saadia Gaon. First, contrary to the way he speaks at the beginning—as though Saadia Gaon partly agrees with Maimonides and disagrees with the Halakhot Gedolot—his conclusion appears to be that for Saadia Gaon there is no difference at all between an exegetical law and a law written explicitly. He even states this explicitly at the end of his remarks:

Everything learned through one of the hermeneutical rules by which the Torah is expounded is considered in every respect as though explicit in the Torah, whether the Sages explicitly said that it is by Torah law or said so only implicitly.

If so, the discussion does not in fact concern the status of exegetical laws. On that point Saadia Gaon agrees with all the other medieval authorities against Maimonides. He holds that exegesis is an interpretive tool, not an expansive one. Saadia Gaon’s novelty concerns only the rules for enumerating the commandments: in his view, one counts only what is found in the verse, whether in its plain meaning or through exegesis, and everything that emerges from a verse is included in the count together with that verse.

At first glance, Saadia Gaon seemingly does not count several commandments from one verse, but he can certainly still interpret one verse in several ways. It follows from this that his hermeneutic theory also seems to disagree with Maimonides.

Yet here we must examine his words more closely. When, according to him, is an exegetical law counted as an independent commandment? From what he says above, such a law would be counted only if the verse from which it emerges is not a legal verse, so that the exegetical law is the only halakhic element that can be counted from that verse. If that is the correct reading of his words, then indeed there is no novelty here regarding the conception of exegetical derivations.

However, the only example he brings of an exegetical law counted separately is the law regarding putting to death those liable to court-imposed capital punishment on Shabbat. But there the verse in the Torah is a legal verse: “You shall kindle no fire throughout your dwellings on the Sabbath day,” from which we learn the prohibition of kindling on Shabbat—tannaim dispute whether it was singled out to divide the labors or as a simple prohibition; see Shabbat 70a and parallels. If so, one might have expected to include the prohibition against executing capital offenders on Shabbat within the prohibition of kindling fire, or within the general prohibition of labor on Shabbat.

Apparently, then, the criterion is not whether the source verse is a legal verse or another kind of verse, but the relation between the derived law and the source law. Since the prohibition of executing capital offenders on Shabbat is not substantively related to the prohibitions of labor, it is counted as an independent prohibition.

According to this, Saadia Gaon actually seems closely related to the dispute between Maimonides and the Halakhot Gedolot that we saw above. Here Saadia Gaon holds that the exegetical law is not an expansion of the source law unless its content shows that it is. This is precisely the position of the Halakhot Gedolot as we explained it above. According to this approach, Saadia Gaon’s novelty is indeed connected to the conception of exegetical derivations, even if not to their halakhic status. He understands derivations as details that are either an expansion of or a revelation of part of the source commandment, depending on the interpreter’s understanding.

According to Saadia Gaon, exactly as in the Halakhot Gedolot regarding reverence for Torah scholars, even if the derived law is not related to the original law, it is not an expansion of Scripture but an additional interpretive layer that yields another law from the same verse. Here, therefore, there is a direct rejection of Maimonides’ hermeneutic theory, according to which one verse cannot bear two interpretations. Saadia Gaon’s hermeneutic theory on this point is thus exactly like that of Nahmanides and the Halakhot Gedolot.

But if so, we must return to the case of the uncircumcised person and terumah. As stated, this law is learned through a gezerah shavah from the prohibition regarding the uncircumcised person and the Passover offering, and therefore it is counted together with it. Are these two laws of similar content or character? At first glance they are wholly different, and therefore there is no substantive logic in counting them together. One might perhaps compare them on the basis that both involve an affront to sacred foods, though this is strained, since the Passover offering is not among the highest sancta, so sanctity is probably not the criterion here. Moreover, Rabbi Perlow’s own wording indicates that the consideration is one of location rather than content, namely only that both these laws are learned from the same verse. How is this to be reconciled with the fact that Saadia Gaon counts the prohibition against executing capital offenders in addition to the prohibitions of labor on Shabbat, as we saw above?

Perhaps his intention is that the prohibition of kindling is not learned from that verse, according to the opinion that kindling was singled out in order to divide the labors, and that is the accepted law, but from the general prohibition of labor on Shabbat. If so, the verse “You shall kindle no fire” does not teach an enumerated law, but only a detail within the laws of Shabbat. Perhaps Rabbi Perlow understands that since that verse itself contains no enumerated law, there is no room to include the prohibition against executing capital offenders within the prohibition of labor on Shabbat, for it is not derived from there. It must therefore be counted separately.

If so, the conclusion seems to be that one can indeed infer something substantial from this about Saadia Gaon’s hermeneutic theory. Saadia Gaon holds that there can be two different interpretations of the same verse, and therefore, if two laws emerge from it, we should not count them separately. Rather, both are included together in the same enumerated commandment. And if the exegetical law emerges from a non-legal verse, then once again we are interpreting the same verse in two different ways, except that in this case we count only the exegetical law in the enumeration of the commandments.

The Nature of Enumeration

It may be that Saadia Gaon’s position can be tied to the question why we count the commandments at all. If indeed only one commandment is counted from each verse, is it plausible that this is merely a formal technical principle with no halakhic consequence? Is the matter under discussion here really only the enumeration of the commandments, with no halakhic implications at all?

As stated, Saadia Gaon holds that when an exegetical law is learned from the same verse that contains a plain-sense law, we count only the plain-sense law in that verse. Again, the consequence is not with respect to the halakhic status of these commandments, because both commandments appearing in the verse—the explicit plain-sense law and the exegetical law—are Torah laws. This is only a matter of enumeration. Why do we in fact do this? What is the meaning of this rule? Rabbi Perlow himself wondered against the interpreters of Maimonides allied with the Tashbetz: if, in their view too, Maimonides held that exegetical laws have Torah force, why would he not count them? If so, it is unclear on Rabbi Perlow’s own approach why Saadia Gaon does not count the exegetical law when another law appears in the plain sense of the same verse.⁸⁶

Although Rabbi Perlow’s words suggest that this is a completely technical matter, at least in Saadia Gaon’s case it is more plausible to understand that there is also a substantive reason. The reason is that there is indeed an essential relation between all the commandments that emerge from the same verse. If one commandment appears explicitly in a verse, and another is derived from it through one of the hermeneutical methods, it is plausible that both share a common foundation. That is why we do not count them each separately in the enumeration of the commandments.

According to this, Saadia Gaon’s view is that if Maimonides’ Second Principle has any significance at all, it is really a special case of the Seventh Principle. One does not count parts of the same prohibition, or different expressions of the same prohibition, twice. We do not count the prohibition against the uncircumcised person eating terumah because it is essentially included in the prohibition concerning the uncircumcised person and the Passover offering. Perhaps the reason is not sanctity, as we noted above, but status. In both the Passover offering and terumah, personal status is important—one must be a Jew who eats the Passover, and specifically a priest who eats terumah. In both cases, then, the uncircumcised person is forbidden to eat because uncircumcision is a kind of defect in his identity as a Jew, a defect of status. Perhaps this is also related to the word “your dwellings,” from which the one prohibition is learned from the other by gezerah shavah: the dwelling place of Israel, specifically yours. This is not the place to elaborate the underlying principle, but it does suggest a common denominator between these two prohibitions.

If our words are correct, Saadia Gaon is presenting here a new and very important thesis regarding exegesis in general: derash reveals something that is in the verse. The revelation discloses to us a more fundamental idea, of which both the plain sense and the exegesis are merely two different expressions. What is counted in the enumeration of the commandments is not the law of the plain sense nor the law of the exegesis, but the underlying idea from which both emerge.⁸⁷

The Meiri’s Position

We conclude the chapter with a brief mention of the Meiri’s innovative position. He seems to adopt an extreme line and to reject the criterion established by Maimonides for distinguishing between exegetical laws that are by Torah law and those that are rabbinic.

Maimonides establishes that if the Sages stated that some law is by Torah law, then it is indeed a Torah law. At first glance, this is the simple and accepted part of Maimonides’ position. The main novelty lies in the second part of his claim: exegetical laws concerning which the Sages did not say that they are by Torah law have only rabbinic force. Yet the Meiri, who is generally counted among Maimonides’ loyal followers, specifically chooses to disagree with this aspect of his view. Thus he writes in his explanation of the first Mishnah in Kiddushin:

Nevertheless, we do not rely on this rule… for we find that regarding the honor due to one’s father’s wife, which comes from the Torah, it is said in Ketubot, in the account of Rabbi’s death, “it is by Torah law,” and nevertheless it is only from the words of the Sages.

That is, even when the Sages say of some law that it is by Torah law, this is not conclusive proof, and it may still be said that the law is rabbinic. So too he writes in Beit HaBechirah on Moed Katan 11b:

What is said here, that labor on the intermediate days of a festival is prohibited by Torah law, means that it is akin to Torah law. Similar language is mentioned in many places in the Talmud regarding rabbinic laws.⁸⁸

So too in Ketubot 103a and the parallel passages.⁸⁹

These claims undermine the entire basis of Maimonides’ position, which relies on the language of the Sages in the Talmud as the criterion for distinguishing between exegetical laws that are by Torah law and those that are rabbinic. The Meiri does not regard such language as decisive.⁹⁰

Appendix D

Laws Derived from Reason

This appendix is divided into two chapters. The first deals with reason and its significance as a normative source; for completion, see also the next appendix, which will deal with the meaning of command. The second chapter deals with another kind of law, those sometimes called “de’oraita matters,” that is, laws that have a source in the Torah but do not appear there as commandments.

Chapter 1: The Meaning of Reason as a Normative Source

Introduction

As stated, this appendix deals with laws that emerge from reason. This means that we have no command in the Torah concerning them; the meaning of command will be clarified in the next appendix. Let us begin with several prominent examples of laws learned from reason:

1. The obligation to recite a blessing of enjoyment before eating; see Babylonian Talmud, Berakhot 35a. There the Gemara derives this obligation from the reasoning that it is forbidden to benefit from this world without a blessing.
2. The prohibition of bringing an object from the public domain into the private domain on Shabbat; see Babylonian Talmud, Shabbat 96b. There the Gemara learns the prohibition from the reasoning, “What difference is there between bringing in and taking out?” that is, there is no difference between carrying out and carrying in.
3. In the laws of evidence we find two prominent examples: in Ketubot 22a, the rule “the mouth that forbade is the mouth that permitted,” and in Bava Kamma 46b, the rule that “the burden of proof rests on the claimant,” derived from the reasoning, “if someone has a pain, he goes to the physician.”
4. In Avnei Nezer, Yoreh De’ah section 306, citing a responsum of Rabbi Yosef ibn Migash, he learns that a person is obligated to fulfill an oath made in writing, even though the formal prohibition requires verbal expression. In this case, the reasoning underlying the obligation is moral. This example was also discussed in the body of the book, at the end of chapter 2 of the first part.

Is Reason De’oraita?

We commonly hold the principle that “reason is de’oraita,” meaning that a law established by reason has Torah force. The principal sources for this are found in the language of the Gemara when it asks, “Why do I need a verse? It is logical,” see Ketubot 22a, or “If you wish, say it from a verse; if you wish, say it from reason,” see for example Berakhot 4b and the glosses there. From such formulations it appears that reason is equivalent to an ordinary Torah commandment.⁹¹

As we saw in the second part, according to Maimonides at least, every Torah law has two components: command and essence. But in a law derived from reason, although the dimension of essence certainly exists, the dimension of command is lacking. It is therefore difficult to understand why such laws are regarded as Torah laws.

This is especially difficult for Maimonides, who does not distinguish between Torah law and rabbinic law in terms of force at all, but only in terms of source. In his terminology, laws derived from reason are certainly laws “from the words of the Sages,” since they are not written in the Torah.

If so, it is unclear how the Sages can take for granted that a commandment derived from reason is equivalent to one derived from a command. Such an approach makes the command superfluous, and the only function it serves is to provide us with factual information—namely, whether some act is appropriate or inappropriate. Beyond that, the obligation to act or refrain from acting follows from the very fact that the act is appropriate or inappropriate. But as we shall see in the next appendix, this contradicts the nature of command in halakha generally.

As we saw in the second part, and will see again in the next appendix, and in greater detail in the third book, there is also a logical problem here. The obligation to perform or refrain from some act belongs to the normative sphere. But the question whether the act causes damage or corruption is a factual one. Hume’s naturalistic fallacy teaches us that one cannot infer value judgments from factual data. The information that some act damages or corrupts is not enough to generate a normative obligation to do it or refrain from it.

Using the terminology we developed for understanding Maimonides, another problem arises: what exactly is the difference between laws derived from exegesis and laws derived from reasoning? At first glance, in both kinds we have essence without command, and therefore both sorts of law would seem to belong to the same category, with all the same halakhic consequences.

Interpretive Reason and Innovative Reason: The Dispute Between the Tzelach and the Pnei Yehoshua

We already mentioned in the first part the dispute between the Pnei Yehoshua and the Tzelach on Babylonian Talmud, Berakhot 35a. They disagree whether the reasoning that one may not benefit from this world without a blessing, from which we derive the obligation to bless before eating, is de’oraita—namely, whether the blessing before food is by Torah law.⁹² At first glance, the Tzelach, who holds that it is not de’oraita, is difficult to understand, because as we already noted above, the Gemara itself says in several places: “Why do I need a verse? It is logical,” meaning that for the Gemara reason is clearly equivalent to a verse.

It seems that when the Tzelach says that reason is not de’oraita, he refers only to reason that innovates a law, and not to interpretive reason. In the case of interpretive reason, it is clear that the source of the obligation is the verse, and reason is a legitimate interpretive tool according to everyone. This dispute among later authorities concerns only reason that itself serves as the source of the law’s validity—legislative reason, not interpretive reason.

It is quite clear that according to the Pnei Yehoshua, the obligation to give thanks before eating is indeed by Torah law, and only the fixed text of the blessing is rabbinic. If one gave no thanks at all, he violated a Torah prohibition. But if he gave thanks in different words, not in the liturgical formula established by the Sages, he violated only a rabbinic prohibition. This also seems explicit in the words of the students of Rabbenu Yonah there, who wrote that one who eats without a blessing brings a suspended guilt offering, though this is not the place to elaborate. See the discussion of the meaning of command in halakha, in the article on the Fifth Principle, and in Appendix H here, where it was explained that a guilt offering can be brought even without sin.

A similar foundation appears in Sha’arei Yosher, Gate 5, page 4, where Rabbi Shimon Shkop innovated the idea of the obligation of “the laws of civil justice.” He explains that the definitions of property law in halakha precede the command and bind as a pre-halakhic legal system. Here of course the question arises: why should one obey such a system of norms? He explains there that just as the obligation to keep the Torah itself emerges from reason, so too the legal norms bind by force of reason, even if they are not written in the Torah. But this justification applies to all kinds of reason, interpretive and legislative alike, for the obligation to keep the Torah is not derived from interpretive reason, but from legislative reason. He therefore probably agrees with the Pnei Yehoshua, that even such reasoning is de’oraita.

A similar conception also emerges from the words of the author of Avnei Nezer, Yoreh De’ah section 306, cited in chapter 2 of the first part regarding a written oath. There too one sees that legislative reason fully obligates on the halakhic plane, though he still writes there that its status differs from that of a commandment explicitly stated in the Torah.

Returning to the Difficulties

From our explanation of Maimonides it emerges that when the Gemara says that reason is a halakhic source equivalent to a verse, it does not mean that there is a command here, but that the practical consequences remain unchanged even without a command. That is, the Gemara does not mean that laws derived from reason are fully Torah laws in terms of source, but only that they are unlike rabbinic enactments and decrees. Laws derived from reason have essence but no command, just like exegetical laws. It follows that in cases of doubt one must be stringent concerning them, exactly as with an exegetical law and exactly as with a law that has both command and essence, because in cases of doubt the command is irrelevant, and therefore the two kinds coincide in cases of uncertainty. There will, however, be other halakhic consequences of the absence of command, such as warning from reason, which certainly does not work, or the case of the rebellious elder, and so forth, but these are secondary derivatives. Therefore, when we say that “reason is de’oraita,” according to Maimonides, we mean that laws derived from reason differ from enactments and decrees, and that in doubtful cases one rules stringently. But in the terminology of source, which is Maimonides’ terminology, these are laws “from the words of the Sages” and not laws “from the Torah.”

According to the other medieval authorities, laws derived from reason are indeed entirely identical with laws written in the Torah, since both express the will of God, and therefore both are Torah laws—just like a law transmitted to Moses at Sinai, which is not written in the Torah but still expresses the will of God and is therefore, in their view, a Torah law.

According to Maimonides, there is no difference at all between laws derived from reason and laws derived from exegesis. Both of these halakhic categories contain laws with essence but without command, with all the consequences that follow from this. Indeed, we noted above that Maimonides often groups expressions like reason or the use of analytic methods together with expressions concerning derash through the thirteen rules; see, for example, Laws of Rebels at the beginning of chapters 1, 2, and 4, in the introduction to the Mishnah, and elsewhere.

Yet it is possible that there is nevertheless some difference between these two categories. In the second part, in light of the sorites paradox, we saw that the term “included in the text” can admit several degrees. That is, one can be connected to the text at various levels or intensities. We saw that an asmachta is a weak connection to the text, derivations are a medium connection, and plain interpretation—and certainly what is explicit in the text—produces laws with a total connection to it. Here, then, a possible difference arises between the two kinds of law: exegetical laws are connected to the text to some degree, and are therefore “sufficiently included” within it; they contain some measure of command, even if not a full command. By contrast, laws derived from reason are not connected to the text at all, at least those that innovate new laws. Laws derived from interpretive reasoning that reveals the meaning of biblical terms are in fact fully present in the text.

If so, reason is something closer to a law transmitted to Moses at Sinai, which is not in the text at all, and in that respect it differs from an exegetical law. On the other hand, laws derived from reason are laws that possess essence, for that is exactly what reason establishes—that one must do or refrain because of the consequences, and that is precisely the essence of the commandment. In this respect, laws derived from reason resemble exegetical laws. Regarding laws transmitted to Moses at Sinai, we saw that according to Maimonides it is more plausible to understand them as command without essence.

This picture explains why a separate halakhic category of reason is needed, in addition to the categories we sketched at the end of the second part. It has a uniqueness not found in the other categories, even if the halakhic consequences of that uniqueness are not entirely clear.

To conclude the chapter, we should note one important point: what is the basis of the binding force of the obligation to heed reason?

The Obligation to Act in Accordance with Reason

In this chapter we have seen that there are several commandments whose basis lies not in command but in reason. We saw that reason is derived from the essence of the commandment—the benefit achieved by fulfilling it. These are therefore commandments with essence but without command, similar to exegetical laws. The question that arises from this phenomenon is: why should we obey such laws? What is the source of their binding force?

At first glance, we might seek a source for this in the Torah. But then all the problems we saw in the First Principle would arise, since in that case the Torah would contain a command regarding these laws. We find no such verse, and indeed this would be even more problematic than in the case of rabbinic laws discussed there. It is difficult to accept even an indirect command, such as “do not deviate,” as applying to laws of this type.

It seems more plausible that there is no such source. The obligation to fulfill them derives from the very reasoning that makes them obligatory. The explanation is that behind every normative system stands some principle that grounds our obligation to it. What is the obligation to comply with what emerges from that principle? We must assume that it is a prescriptive principle that itself grounds the obligation to what follows from it; see on this at great length in the third book.

Rabbi Shimon Shkop, whom we mentioned above regarding “the laws of civil justice,” addresses precisely this point at the beginning of Gate 5, where he writes as follows:

At first glance this is astonishing: what necessity or obligation can there be for a person to do something without a command and warning of the Torah? But on deeper consideration, this can be understood. For the very obligation and necessity to serve God and fulfill His will, may He be blessed, is itself a matter of obligation and necessity according to the judgment of reason and understanding. So too the obligation and subordination of property is a legal obligation, imposed according to the modes of acquisition…

His central claim is that even the obligation to fulfill what is written in the Torah is based on reason and our own judgment. Therefore, other rational determinations of ours—there he is dealing with financial obligation—are no less binding, for their binding force arises from the same source.

Chapter 2: De’oraita Matters

Introduction

There is now room to discuss another kind of law—or, more precisely, another kind of norm: norms for which we have evidence from the Torah that they are proper and that one ought to act accordingly. In other words, the Torah wants us to act this way, but does not command it. Several later authorities call this category “de’oraita matters.” To illustrate generally, note that there are several verses in the Torah that are not counted as prohibitions because they are not formulated as commands. The Gemara establishes that in order to treat a verse as a prohibitory commandment, it must use formulae of command. In the Gemara’s language, Menachot 99b and parallels:

Rabbi Avin said in the name of Rabbi Ila’a: everywhere the words “beware,” “lest,” and “do not” are stated, it is nothing other than a negative commandment.

As emerges from the passages that discuss this rule, and from the words of the medieval authorities, such as Maimonides in the Eighth Principle and many others, the rule is not intended only to define positively that wherever such expressions occur there is a prohibition. It also serves to exclude: a verse not formulated in those expressions cannot be regarded as a prohibition, that is, it is not a formal warning.⁹³

If so, when a verse in the Torah does not use these words of command, we must interpret it as a statement and not as a command—for example, as negating obligation, as discussed in the Eighth Principle; see also Appendix H. All such verses will be good sources for norms that are “de’oraita matters.” The Torah reveals to us that something is contemptible, but it does not impose a halakhic command concerning it.

Examples

Let us open with a few examples. Several decisors learn from the story of Jacob and Laban that one should not marry off the younger daughter before the elder; see the Bach and the Shakh, Yoreh De’ah section 244 subsection 13, and Pardes Yosef on Vayetze 29:26. Some learned the laws of omen-seeking from Eliezer, Abraham’s servant, and some learned from him the laws of feeding and giving drink to human beings and animals; see Babylonian Talmud, Berakhot 40a, the Taz on Orach Chayim section 167 subsection 7, and the decisors. Some later authorities wished to say that the prohibition of causing damage is a de’oraita matter; see, for example, Nachalat Asher on Bava Kamma, section 1. And so on in many other cases. In fact, broad sections of works such as Pardes Yosef, Ravid HaZahav, and similar books deal with laws of this kind.

Another example is the consideration raised by Maimonides in the responsum mentioned above concerning betrothal by document. There Maimonides shows that it is evident from the Torah that one can betroth a woman without intercourse, for otherwise there would be no betrothed maiden who is a virgin. From this it is proven that there is another way to effect betrothal besides intercourse, and from here they prove that one can betroth by document. Here too there is no command in the Torah, only at most a mere disclosure of fact. True, there is also an exegetical derivation supporting this mode of betrothal—the juxtaposition “and she shall go out and become”—and this also provides a normative source beyond mere factual disclosure. As we saw, Maimonides combines both sources and concludes that betrothal by document is Torah law.

Yet here we are dealing with a procedural disclosure concerning the mechanism of betrothal, not necessarily a commandment. In such a case, perhaps no warning or command is needed, because we are not dealing with a commandment. Such a case would be a Torah law, even though apparently it should not be counted among the commandments, because it does not innovate a command but a procedure—the method by which the betrothal contract takes effect.⁹⁴ Even so, betrothal by document does have halakhic consequences, for example regarding fulfillment of the commandment of betrothal, or regarding the prohibition of relations with a woman betrothed by document, which also entails capital punishment. Those laws do require a genuine command and warning. Still, one might reply that these are general laws applying to any betrothed woman, whereas the modes of betrothal are merely the technical mechanism of betrothal and do not concern the commandment itself. On that account, the innovation of betrothal by document is not a normative innovation but only a technical-procedural detail within an existing norm.⁹⁵

Another example is Maimonides’ explanation of the obligation to obey the Sages. We saw that, according to him, it cannot have an explicit command in the Torah as its source. Some of the proposed solutions to the problem treat this as a de’oraita matter. This may be the meaning of the Kuntres we cited in the first part, which brought sources showing that the Holy One desires this obedience, and we asked why that itself does not make it a Torah law. Our own proposal for explaining Maimonides, according to which this principle branches out from “do not deviate,” means that we are dealing with a de’oraita matter. There is no command here in the full sense of the term, only a disclosure that there exists a normative sphere called rabbinic law. True, it is clear that the Torah wants us to obey it, but there is no command concerning this. Our proposal for explaining Nahmanides’ view, see the end of chapter 2 of the first part, can also be included in this category.

Another example is found in Rabbi Shimon Shkop’s Sha’arei Yosher, mentioned above, where he speaks of the obligation to “the law of civil justice,” which precedes the obligation to halakha and commandments.⁹⁶ As I noted elsewhere,⁹⁷ Rabbi Shkop brings there two different reasons for the obligation to the law of civil justice, and from them it emerges that the legal layer is not merely a juridical infrastructure that determines the laws of ownership as the background for the halakhic prohibition of theft. The legal prohibition itself also constitutes an independent prohibition, and not merely a definition of ownership. One who violates it transgresses two prohibitions: “you shall not steal” on the halakhic plane, and, in addition, the legal prohibition itself. We shall note this again below.⁹⁸

The Will of God

De’oraita matters, as defined thus far, are also commandments for which we have no command. On the other hand, the will of God that things be this way appears in the Torah. According to the definitions of the other medieval authorities, these would seem to be Torah laws, because the will of God concerning them is clear. But according to Maimonides, the criterion for being a Torah law is not that something is the will of God, but that there is a command. If so, in his view there must be a new category here: a de’oraita matter, different in source and force from the other halakhic categories we have listed.

This category provides an excellent indicator for the question whether, according to Maimonides, what matters is the fact that something appears in the Torah, or rather the existence of a command. In this case the first criterion is satisfied and the second is not. The practical difference concerns laws transmitted to Moses at Sinai, which according to Maimonides are considered “from the words of the Sages.” Is that a case of command without essence, or essence without command? Our conclusion there was that it is command without essence, and therefore one is lenient in cases of doubt. That means that what matters is the presence in the Torah as indicative of essence, and not command.

It is quite clear that such laws will be lighter than laws stated explicitly in the Torah, even according to those medieval authorities for whom the will of God is determinative. The reason is that they too understand that God’s command has significance, and not only His will. That is, they too recognize the distinction of Rabbi Elchanan Wasserman between essence and command that exists in every commandment or prohibition, except that in their view this does not determine the status of the law within the Torah-rabbinic distinction.

According to our understanding of Maimonides, there is no significance to the fact that these laws appear in the Torah, as in the case of Eliezer, Abraham’s servant, if their appearance there is not in the form of a command. In the halakhic sense, appearing in the Torah means appearing only as a command, and here there is no command. Therefore these laws are exactly like those derived from reason, except that sometimes the Torah itself discloses the reasoning to us, as in Eliezer’s case. The verses in which these laws appear are declarative verses, so there is no normative dimension here, only an essential one. But essence without command is exactly what characterizes laws derived from reason.

To conclude this appendix, let us note that in the third book, within the framework of the discussion of the principle of acting “for its own sake,” we brought a series of examples of laws grounded in reason, and even proposed an explanation for why they are not included in the commandments of the Torah. Here we shall suffice with the reference.⁹⁹

Appendix E

What Is a Command?

Introduction: What Is a Law?

A number of philosophers of law have dealt with the question what a “law” is. They distinguish between two meanings of the concept “law.” There are laws of nature, whose subject is the description of some segment of reality. Reality behaves in accordance with those laws, but it is not coerced to do so, nor is it correct to say that it ought to do so. They are embedded in the nature of reality itself; that is simply a fact. For our purposes, these are descriptive laws. In other words, these are facts and not norms. By contrast, there are “laws” in another sense, not descriptive but normative or action-guiding. Examples are the laws of religion, morality, or jurisprudence. All such laws do not describe reality but describe obligations and commands imposed upon us. These rules guide our behavior, and do not necessarily describe it; a criminal does not behave in accordance with them. In nature, by contrast, there are no “criminals” who fail to behave according to the laws of nature.

In the language of analytic philosophy, this difference is described as the distinction between descriptive laws and prescriptive laws. Laws in the natural sense are descriptive laws, since they merely describe facts. Normative laws—laws of jurisprudence, halakha, or morality—are prescriptive laws, since they precede the facts and are not necessarily about them.

The Naturalistic Fallacy: Essence and Command

We can now ask ourselves: what is a “command”? The simple answer is: a command is the act that creates the norm, the law, or the obligation. From this arises the difference between the laws of morality and the laws of jurisprudence and halakha. Regarding moral laws there is probably obligation, but certainly no command. Regarding the laws of jurisprudence or halakha, there is a command that creates the obligation.

Of course, it is true that a system of facts may also stand in the background of a normative system. Usually, unless one is dealing with a purely arbitrary system such as the rules of a game, commands are created as a result of certain facts. The obligations imposed are meant to achieve some purpose. For example, the laws of morality are grounded in the fact that some person can be harmed by a particular act, and therefore it is immoral, or there is a moral obligation not to perform it. The same applies to legal obligations, at least some of which are grounded in a factual background on the basis of which they are created.

As the positivists teach us, saying that obligation arises from facts does not mean that the facts are the source of the obligation’s binding force. The fact that a person is harmed by action X is not a sufficient justification for creating an obligation upon someone not to perform that action. To ground the obligation we must posit an additional principle that bridges the plane of facts and the plane of norms—for example, that one must not perform an action that harms another person.

In Gate Seven, and even more in the third book, we brought the distinction of the philosopher David Hume, who pointed out that one cannot derive a value or normative conclusion from factual premises. If the sky is blue, one cannot infer that it is beautiful. To infer that, one must add a bridging assumption between facts and norms, such as: everything blue is beautiful. An inference whose premises are factual and whose conclusion is normative suffers from the fallacy known as the “naturalistic fallacy.”

This is where the concept of command enters. A command is the act that generates norms or obligations out of facts. When there is a fact that action X harms some person, the command instructs us not to perform that action. In this way a norm or obligation is created. Regarding morality, some wish to argue that it too cannot ignore the need for command, and therefore outside a religious system, in which there exists some external commander, moral laws can have no normative force.¹⁰⁰ The common view since Kant, even when it does not accept the existence and/or authority of an external commander, holds that at the very least there must be some overarching, unstated norm that connects facts to norms, and that this norm creates moral obligations and renders them binding. Kant calls such a principle the “categorical imperative”—note, imperative, from the language of command.

What emerges from this is a picture in which a factual plane underlies a legal or halakhic system. From here one may reasonably assume that violation of a negative commandment damages some aspect of reality—within the person himself, the world, or some spiritual realm. Yet it is still very important to understand that this is not the whole picture. Halakha includes another element beyond this: violation of the command. Every person who transgresses acts against God’s command, that is, against the obligation imposed upon him by the command. In addition, he also damages reality in some way, for that is the reason we are commanded not to commit that transgression. Conversely, every person who performs a commandment both repairs something on the factual plane—which is the reason for the existence of that commandment or command—and also obeys the command, that is, fulfills an obligation imposed on him.

Command and Statement

As we saw in the third part, this picture stands in opposition to natural-law theory, which sees the legal command as a mere statement. On the simple view, the law’s role is to reveal to us that some act is bad or worthy. With respect to halakha, such an approach means that the entire significance of a commandment in the Torah is only to tell us the fact that certain acts are harmful or damaging, while other acts are repairing and beneficial. This is a descriptive conception of commandments, as is common among proponents of natural law, who hold that facts create the command. According to such a view there is no “command” in the legal sense, and a command-sentence is no different from a declarative sentence, since it contains only a factual dimension. The norm arises from the facts on its own. Obviously, according to this view, when a person transgresses or fulfills a commandment, we relate only to the factual plane, which is repaired or damaged by his actions.

But, as we saw above, there is a fallacy here. Law, or halakha, is not merely a declarative statement. A declarative statement tells us a fact. But from a fact as such no norm can be derived, according to the Humean principle. Such a derivation is a logical error. So what is present in a norm—legal or halakhic—beyond the fact that an act yields benefit or damage? The difference is the command, which creates normative obligation. Once there is a command, the fact described in the declarative verse becomes the basis for a binding norm. This is the essence of law, as distinct from a moral principle: law is a binding norm, and one can also impose a sanction on someone who does not comply with it.

To be sure, even with respect to moral norms there is room for uncertainty. We noted that the common view today is that there is no command concerning moral principles. They are principles expressing facts, namely that some act causes damage or benefit, and the obligation is left to each individual’s personal judgment. Yet there is strong reason to doubt the conception of moral principles as mere declarative statements. The simple intuitive feeling is that there is also obligation here, and to some extent one can also demand of someone that he comply, and perhaps even impose sanctions on him—perhaps social rather than legal sanctions. But this raises the question: who is the agent that can obligate me or impose binding norms on me? In an atheistic world there is no reasonable answer. From here arose the Kantian theses that locate the normative source of moral principles in the human being or in society. Perhaps this is what the moralists meant when they spoke of the danger of immorality in a non-religious society, alluding jokingly to the verse: “Surely there is no fear of God in this place, and they will kill me…” Genesis 20:11.

It should be noted that there is a certain difficulty even with this conception, because the very fact that a command exists is itself only a fact. The fact that someone commands me to do something is still only a fact, and certainly not enough to create a binding norm for me. One must always add another principle establishing the obligation to obey that command. Many incorporate this layer into the meaning of a command-sentence itself. According to this conception—prescriptivism—a command-sentence does not describe a fact but creates a norm. It binds by the very fact that it is uttered, because the principle that one must obey commands of this type is contained in the very existence of those commands. According to this approach, the command-sentence is not descriptive, factual, but prescriptive, action-guiding. It contains two layers: a factual description of the damage or benefit in the relevant act, and a command that imposes a normative obligation on the addressee of the command.

These Two Planes in Halakha

Applying this analysis to halakha yields the following picture: the verses in the Torah command us, and by doing so create norms or obligations. But since it is reasonable to assume that God’s commands are not arbitrary, that is, that they aim to achieve something and are not merely a meaningless framework, we infer that certain facts underlie halakha. Hence halakhic analysis of commandments and prohibitions involves two planes of discussion: the essential-factual plane, and the normative plane of obligations. Every transgression damages some aspect of reality, and this is its essential aspect. In addition, transgression is also violation of the command, or failure to fulfill an obligation—a kind of rebellion against the authority of the Holy One, blessed be He.

According to some of the medieval authorities, this is precisely the meaning of the Sages’ statement: “Greater is one who is commanded and performs than one who is not commanded and performs,” see Babylonian Talmud, Bava Kamma 87a and parallels. According to our explanation here, perhaps the point is not that such a person performs a more important and worthy act, but that he fulfills two aspects of the service of God: obedience and substantive repair, whereas one who is not commanded fulfills only the repair, not the obedience.¹⁰¹

This is exactly Rabbi Elchanan Wasserman’s conclusion in his essay “On Repentance,” in Kovetz Ma’amarim, already mentioned several times in this book, and in the second part we even cited the Ramchal as his source. He proves the split between these two planes from several sources and also brings consequences of the distinction. He discusses situations in which one acts contrary to halakha but violates only the essential-factual plane—for example, when acting unintentionally, in which case the dimension of rebellion is absent—or only the normative plane, as in one who intended to eat pork but happened to eat lamb.

To conclude, one more point should be noted. There is an additional difference between divine command and human command. In a human legal system, the command is written in the law book, but it has no ontological significance. The writing there serves only to inform, nothing more—though it informs us not of the facts underlying the command, but of the very fact that there is a command. By contrast, a divine command is a kind of entity. It has ontological significance, described in the verse: “Forever, O Lord, Your word stands firm in heaven.” Just as God created the world through speech, so too the giving of the Torah was the coming-into-being of a spiritual creation through the Ten Utterances.

God’s command has normative significance, like a human command: it creates an obligation or imposes a duty. But, as many have already written, beyond that it also exists as a being. Therefore transgressing it creates an additional defect in reality, beyond the damage that was the reason for the existence of the command, and beyond the violation of the norm itself, as in every command. This means that it is indeed possible that a person who did not know of the command—at least if he is culpable for that ignorance—still violated the command itself and not merely damaged or corrupted the essence. Therefore an unintentional transgression, unlike one done under coercion, is still a transgression: it contains a dimension of defiance against a command, as well as substantive corruption, that is, injury to the reason for which the command exists.¹⁰² In civil legal systems there is a parallel rule that ignorance of the law is no excuse, but that is a technical rule: the punishment is for the damage, and the rule merely states that ignorance is not itself an exempting claim. In any event, there is no offense of disobedience there, only the damage to the substance.

Appendix F

The Hermeneutic Theories of Maimonides and Nahmanides: The Relation Between Peshat and Derash

Introduction

We have seen in our discussion the full scope of Maimonides’ position and the force of the revolution reflected in it. The system Maimonides constructs is highly logical in structure, and it seems almost to ignore accepted assumptions and the various sources. It imposes upon them a new logical order to which all must conform. We further saw that this whole move runs against the plain sense of the various sources and lacks substantial explicit proof. Nevertheless, as emerged from the entirety of our discussion, Maimonides’ approach is coherent, and he manages quite well with almost all the sources, perhaps even better than the accepted positions. In particular, he offers a comprehensive explanation of the hierarchy and classification, and especially of the role and very appearance of the various halakhic categories. Even so, all this cries out for explanation: how does Maimonides carry out such a revolution without proofs?

As we have already mentioned, from his words in the Principle and from surveying the other relevant sources in his writings, it emerges clearly that this process is based mainly on a consideration belonging to Maimonides’ hermeneutic theory. His simple assumption is that Scripture—and apparently any text—can have only one correct interpretation. On this, see Gate Three, where we cited Nahmanides’ remark that this is the root of the disagreement between him and Maimonides. From this assumption follows the conclusion that derash cannot be an interpretation of the text, because peshat already fulfills that role. We are therefore compelled to conclude that derash is a synthetic expansion of the text, not an analytic interpretation that reveals what is there. If we add to this the assumption that Maimonides’ definitions of Torah law and rabbinic law differ from the accepted ones—as we saw, for him these concepts concern the source of the laws and not their force—then all the halakhic and conceptual consequences we have presented follow automatically. It should be noted that the very assumption that the distinction between Torah law and rabbinic law concerns source rather than force does not seem to be a result of Maimonides’ hermeneutic theory, but an additional assumption that joins it. Hermeneutics is not the source of the new structure Maimonides proposes for halakha, but the constraint that generates this architectural structure.

Opposed to Maimonides stands Nahmanides. He vigorously defends the accepted hermeneutic theory, according to which the biblical text, and perhaps any text, can have several true interpretations. Therefore derash is merely an additional key for deciphering what is in the Torah itself, and the laws produced from it are Torah laws. Hence no conceptual revolution is needed in the conception of halakha.

The root point of this fundamental dispute is a question in hermeneutics:[^460] can there be several correct interpretations of a single text? And in light of that question, another follows: what is the relation between peshat and derash? In this appendix we shall try to examine both questions.

To examine the first question, we must say a little about various hermeneutic approaches and understand what constraint leads Maimonides to cling to this assumption so firmly that he overturns the entire halakhic structure just to preserve it. We shall then turn to the second question, where we will examine several approaches developed with respect to halakha, accompanied by examples of legal derash. There too we will come to the disagreement between Maimonides and Nahmanides concerning the statements of the Sages on this topic, as it emerges explicitly from their words in this Principle.

First Question: Hermeneutics in General

What could be the reason for the assumption that every text has only one true interpretation? To answer this, we must examine what “interpretation” is. This question belongs to the field of hermeneutics—the theory of interpretation—which began with biblical texts, moved on to texts in general, and now concerns all forms of interpretation, including works of art and facts. Here we shall only briefly survey several points relevant to our subject.¹⁰³

Every interpretive act involves three factors: the author, the book or object, and the reader or interpreter. In the history of hermeneutics, opinions have differed over whether the true interpretation of the text or work is the author’s intention, or rather the meaning of the interpreted object in itself—a position that of course requires conceptual clarification—or whether interpretation is simply what arises in the mind of the reader or interpreter when he reads or interprets the work. In fact, in the general context of interpretation there need not be a contradiction among these positions. Each interpreter seeks something different in the work and therefore assigns a different goal to interpretation. Why should there be a dispute here at all? Let each person seek what he wishes to seek. In what sense can one say that one kind of interpretation, for example the author’s intention, is true, while another, such as the meaning of the work in itself, is not an interpretation of the text? What one seeks will also define the truth one seeks, though not necessarily what one finds. At first glance, then, this seems like a merely semantic dispute.

And yet there is a strong sense that a real disagreement remains. The question underlying the various hermeneutic positions is to what extent we can at all attain this or that goal—such as the author’s intention, the meaning of the work, and so on. One who thinks that the author’s intention cannot be reached, because of differences in language, connotations, or cultural and philosophical assumptions between the interpreter’s world and the author’s world, will set the interpreter other goals, such as the meaning of the work itself. Another hermeneutic dispute concerns how we are to regard the interpretation we have found: is it an approximation to the author’s intention, or does it bear no indication of his intentions at all, with my interpretation having only subjective meaning for me and therefore no reason to expect my colleague to reach the same conclusions?

In the world of Torah and its study, an additional, normative aspect arises. Torah study, almost all of which is interpretation, is itself one of the commandments—in fact, one of the most important ones.¹⁰⁴ We can therefore ask what exactly is required of us in the study of Torah, and how we are to regard the interpretation we have drawn up in our nets, whether peshat or derash. Are we seeking God’s intention, or rather the intention of the Torah itself, or perhaps only what arises in our own minds when we study it?

There are differences between hermeneutic questions concerning ordinary texts and these questions when directed toward Torah. The “author” is not present in our world, and it is difficult to believe that we can grasp the full depth of His mind. On the other hand, precisely because of this, the rule is that “it is not in heaven,” and we must understand the Torah as though it were written for us. If so, the approach of authorial intention and the approach of the interpreter’s own insights both converge with the approach that seeks the meaning of the book itself. What remains are nuances regarding the degree of interpretive freedom, and how far the interpretation is necessarily unique—true or untrue.

If we now turn to the question of the uniqueness of interpretation, we must decide in what sense we are using the terms “interpretation” and “true interpretation.” Is interpretation everything that occurs to us when reading the text? Or the author’s intention? And is the uniqueness of interpretation relative to interpretations of the same type, or in general?

One should note that if we were asking about interpretation as the author’s intention, then the possibility of multiple interpretations could not be ruled out in advance, certainly not when speaking of God. There is no reason why a writer could not intentionally embed in a text several layers of interpretation. Of course, if that writer is committed to all the conclusions that arise from the text in both interpretive planes and with both interpretive toolboxes, the matter becomes complicated. After all, there may always be some consequence he did not foresee. Yet the possibility still exists in one of two cases:

1. If the author is not interested in the content of the conclusions as such, so long as they are derived through one of the legitimate interpretive systems that he himself transmitted together with the text. In other words, the tools are not merely a means to desired ends; they are themselves part of the desired end.
2. If the text and the interpretive tools are mathematical in character. In such a case one can safely assume that if the premises are correct from the author’s standpoint, then the conclusions drawn from them will also be correct.

But with respect to God the situation is even better in this regard. Surely it is no wonder for Him to foresee the conclusions that will be drawn even if the tools are not mathematically exact. If so, He can be interested in the outcomes and not only the tools, and still write a text that is interpreted non-mathematically in several different ways, all of which are true from His standpoint.

The question of uniqueness of interpretation, especially in a divine text, is asked from the assumption that a concrete text presently lies before us. It may be that on other planes of reality—in the worlds of angels, Kabbalah, and the esoteric—it is interpreted differently. But as it stands before us, in our language, it has one interpretation: its own interpretation. Thus, precisely the fact that we are not seeking the intention of the “author,” but the meaning of the text in itself, raises the possibility that the interpretation is unique. Maimonides seems to have held that the text itself has a meaning of its own, and not one derived from the intention of the “author,” and that this meaning must be unique.

This becomes especially sharp in light of the fact that we decide halakha “against God,” by force of the rule “it is not in heaven.”¹⁰⁵ In fact, we study “Torah,” not the current will of God, if such a thing may be spoken of. As it were, God Himself bound Himself to the text as such, as it was given to us at Sinai. The expressions “the Torah says” or “the Torah wants,” or “the Torah demands,” are common on the lips of learners. Here we see the depth of their meaning and their hermeneutic root. The Sages too commonly use the expression “the Merciful One said,” meaning “it is written in the Torah.” The Torah is God’s utterance, and for us at present that is His will—even He Himself, as it were, cannot act against it or express another will.

If so, Maimonides’ conception of peshat as unique apparently arises from the meaning of the concept “interpretation” with respect to Torah. We seek the meaning of the verses themselves, of the Torah as such, not the intention of its Giver.¹⁰⁶

This fits very well with the description we have proposed thus far of Maimonides’ position. As we have seen, for Maimonides the distinction between Torah law and rabbinic law hinges on whether the conclusion is “inside” the Torah itself, or whether it is a kind of extension of the Torah given to us. Being present within the Torah is a critical parameter in his thought, because the entire goal of Torah study is to examine what is in it, not to see through it the will of God. For example, derivations or laws given to Moses at Sinai are not written in the Torah. There is no doubt that they are the will of God, but they are not written in the Torah. In pure Torah study, we seek what is written in the Torah itself. Everything beyond that is an act of expansion performed with the authorization of the Giver of the Torah. But the laws that arise from such acts are not an interpretation of the Torah itself, but an expansion of it, one that also accords with the will of the Giver of the Torah.

As we have often noted, Nahmanides, and most other medieval commentators, unlike Maimonides, locates the distinction between Torah law and rabbinic law in the question what the will of God is. Torah law is the will of God, and rabbinic law is the will of the Sages, namely enactments and decrees. Most likely, there is no disagreement between them that derivations involve analogy, and in that sense they expand what is written in the plain sense of the verses. But the result is still the will of God. Therefore, from Nahmanides’ perspective, this is a revelation of His will, which was latent in the Torah, because He certainly foresaw that we would make such derivations, having Himself given us those tools of interpretation. Hence the laws derived are Torah laws. Laws not drawn from His direct will, but from the will of the Sages—enactments and decrees—are rabbinic laws.

Maimonides, then, sees the essence of Torah inquiry as uncovering what is latent in the Torah, and there only one thing is latent, with nothing beside it; all the rest is expansion. As we saw, at the basis of his words lies a hermeneutic conception according to which we seek the meaning of the text itself and not the intention of its author. Therefore, in his eyes, only peshat is the true interpretation, and there can be no additional interpretation. Nahmanides and the other medieval commentators, by contrast, see the essence of engagement with Torah as uncovering the will of God, whether by analysis of the Torah itself or by various extensions of it through the tools given us for that purpose. Therefore, according to Nahmanides, there can indeed be several divine intentions and several different “true interpretations” of the same verses simultaneously.

Thus we see how the hermeneutic theories of Maimonides and Nahmanides are also the substantive foundation of their positions. Hermeneutics is not merely the constraining factor, as we suggested above. Their differing conceptions of interpretation play a central role in the different architecture they propose for halakha. If above we thought that the definitions of the concepts “de’oraita” and “de’rabbanan” precede the dispute about hermeneutics, it now becomes clear that they are a direct result of it.

In fact, the foundation of Maimonides’ view is the dictum “it is not in heaven.” Maimonides understands it as a programmatic statement directing us to focus on the Torah as such, and not on uncovering the intentions of the Giver of the Torah. From this Maimonides infers that “de’oraita” means only what is found in the Torah, and that what is found in the Torah is only one thing and not two parallel planes of interpretation. From there, everything follows.¹⁰⁷

Second Question: The Relation Between Peshat and Derash in Biblical Interpretation

Very often legal derash appears quite distant from the meaning of the text itself. “Distant” here means different, and at times even contradictory. A prominent example is the derivation: “an eye for an eye” means monetary compensation. We accept that both peshat and derash have significance, for otherwise one of them would presumably not exist. The Torah could have written “money for an eye” directly, or else we could simply have refrained from deriving the verse and left the plain meaning intact. More than that: derash, which at times is very distant from the plain meaning of Scripture, is precisely what determines the halakhic ruling; see the example of “an eye for an eye” above. There is a convenient and popular way to explain this duality by saying that derash is merely a support, while the law itself was received by us as a tradition from Sinai. It does not purport to interpret the text, but only to provide some technical anchor. In fact, according to what we have argued thus far concerning Maimonides, the picture is completely reversed: it is specifically the supportive derash that serves as interpretation of the text itself, whereas the creative derash is an expansion of the text rather than its interpretation. We dealt with this question, the distinction between supportive and creative derash, at the beginning of the second part. Here we wish to examine the issue from another angle: what is the relation between the peshat and the derash of the same verse?¹⁰⁸

Among commentators, ancient and modern alike, we find several approaches to the relation between peshat and derash:[^467]

1. The apologetic approach. Malbim, at the beginning of his introduction to Leviticus, argues against the views that derashot are supportive rather than creative, and writes as follows—see there for similar statements:

Derash is the simple peshat, necessary and embedded in the depth of the language and in the foundations of the Hebrew tongue.

That is, Malbim holds that derash is nothing other than a tool for uncovering peshat. True, the tool was given at Sinai, but using these tools reveals what is latent in the texts themselves. According to this, there can be no contradiction between peshat and derash; indeed, after sufficient analysis it should become clear that derash is the true peshat.

This path was also taken by the author of HaKetav VeHaKabbalah, see his introduction, by David Tzvi Hoffmann, as is apparent throughout his commentaries, and by others as well. Neshke already noted that this approach characterizes the sages of Western Europe in their defense against various attacks on the Oral Torah coming from their Enlightenment surroundings.

This approach is not plausible, precisely because of the argument we raised earlier: it does not answer the question why the Torah wrote things in such a convoluted and indirect fashion. If the “peshat,” that is, literal retaliation in “an eye for an eye,” has no meaning and is merely an error, then the wording chosen by the Giver of the Torah for this verse is puzzling. Moreover, the Sages themselves, whom this approach seeks to defend, already established that “a verse never departs from its plain sense,” meaning that peshat has significance even when derash contradicts it.

2. The functional-parallel approach. The students of the Vilna Gaon testified that their teacher sharply and unequivocally opposed this mistake, which identifies derash with peshat. This is the language of the book Ben Porat concerning Rabbi Menashe of Ilya; see Neshke, page 9:[^468]

Footnotes