2019-04-22 – Between Midrash and Logic – Lesson 4

Table of Contents

• [0:04] Introduction and presentation of Maimonides’ topic
• [1:50] The difficulty surrounding Maimonides’ toolbox
• [3:55] Presentation of the second root and its principle
• [6:07] The discussion of the first root – rabbinic commandments
• [21:15] Distinguishing between creative derash and supportive derash
• [26:38] Conceptual assumption and the indication
• [28:20] The rabbinic rule as opposed to Torah-level law
• [29:39] The statement as an indication of Torah-level law
• [32:28] Maimonides’ answer about betrothal by money
• [35:15] Maimonides – rationalist versus empiricist
• [39:26] Establishing a law according to the view of the sages
• [45:14] A few limited cases of supportive derash
• [46:49] The rule of “et” as inclusion according to Shimon
• [48:19] Rabbi Akiva saves the rule of “et”
• [50:48] Should one be concerned about Torah scholars?
• [52:00] The development of the rules of Jewish law across the generations
• [53:01] Derash as a tool for expanding the Torah

Summary

General Overview

The speaker opens a chapter in the series on Maimonides’ view of derashot from both an interpretive and halakhic perspective, as preparation for a discussion of the hermeneutic principles by which the Torah is interpreted. He presents both a scholarly and conceptual dispute over how laws are derived from derash. He formulates Maimonides’ uniqueness as someone who gives an explicit methodological account of his ways of ruling and interpreting, and he places the second root in Sefer HaMitzvot at the center of understanding the relationship between derashot, tradition, and the counting of the commandments. Throughout the discussion, a claim is developed that Maimonides distinguishes between a derash that “supports” a tradition and a derash that “creates” Jewish law, and that for him the categories of Torah-level law and rabbinic law depend on whether the derash uncovers content already in the verse or expands beyond it—while engaging with Nachmanides and later interpretations that try to soften the implication of calling it “rabbinic.”

The Purpose of the Series and the Move to the Hermeneutic Principles

The speaker explains that the next chapter deals with how Maimonides understands derashot both interpretively and halakhically, and after that they will really get into the hermeneutic principles by which the Torah is interpreted. He notes that he has already spoken about this in the past in a lecture at the study hall and on a study day, and asks people to fill in attendance on the distributed sheet.

Two Basic Conceptions of the Source of Laws Derived from Derashot

The speaker presents a central question: how were laws learned from all kinds of derashot? He describes one view according to which the laws are traditions received through transmission, and they merely “attached” them to a verse. Alongside that, he presents another approach of a “toolbox” given at Sinai that enables one to derive laws from both the plain meaning and derash. He raises a difficulty about this “toolbox,” since it does not seem fixed, and answers within the direction attributed to Maimonides that these are things given to Moses at Sinai that undergo a process of presentation, formulation, and institutionalization over the generations.

Choosing Maimonides as an Exceptional and Methodological Case

The speaker explains that he chooses Maimonides specifically because his approach is unique and he stands more or less alone in it, and precisely from the exceptional case one can also learn about the assumptions behind the more common approaches. He argues that Maimonides has a strong degree of reflection: he not only interprets and rules, but also thinks about the way he does it, formulates explicit rules, and leaves less room for speculation.

The Roots in Sefer HaMitzvot and the Distinction Between “Not Counted” and Halakhic Status

The speaker presents the fourteen roots as a system that defines what is counted in the enumeration of the commandments and what is not, and cites the second root: “that it is not appropriate to count everything learned by one of the thirteen hermeneutic principles by which the Torah is interpreted, or by inclusion.” He emphasizes that “not counted” can simply be a technical rule of classification that does not mean the law is not binding or not Torah-level law. By contrast, there are roots in which something is “not counted” because the law is rabbinic, or because it is the reason for a commandment, or a commandment for a temporary circumstance. He argues that much of the confusion surrounding the roots comes from not being aware that the conclusion “not counted” is not always equivalent to “rabbinic,” and that each root has to be discussed on its own terms; it is even possible there is disagreement over what it means.

The First Root as an Example, the Implication of “Do Not Deviate,” and the Dispute with Nachmanides

The speaker brings the first root as an example: Maimonides says that rabbinic commandments are not counted, and his position is that rabbinic commandments branch out from “do not deviate,” so that anyone who violates a rabbinic law has violated “do not deviate,” whereas Nachmanides disagrees with him. He formulates an interpretive dilemma: are rabbinic laws not counted because the 613 are only Torah-level commandments, or because they are already included under “do not deviate”? He presents a consequence of this question through Nachmanides’ challenge to Maimonides on the matter of doubt: if everything comes from “do not deviate,” why are we not stringent in a case of doubt? He argues that the question depends on how one understands the reason they are not counted.

A Parallel Dilemma in the Second Root and the Example of “You Shall Fear the Lord Your God”

The speaker says that in the second root too there is similar confusion: some understand that Maimonides does not count derashot because these are rabbinic laws, while others understand that he does not count them for other reasons, such as their being included in the verse from which the derash emerges. He gives as an example “You shall fear the Lord your God,” which is interpreted to include Torah scholars, and suggests the possibility that the fact that fear of Torah scholars is not counted stems from its being a detail within the commandment to fear God, which is already counted. He presents an argument against that possibility: the very fact that Maimonides devotes a special root to this suggests that he means a category of non–Torah-level law and not merely inclusion under another commandment, though he notes that one could answer that it is a separate root because it is a distinct category.

“Thirteen Principles” and “Inclusion,” and the Question of Precision

The speaker asks why Maimonides formulates the heading specifically as “the thirteen hermeneutic principles… or by inclusion.” What about other hermeneutic principles that are not among the thirteen, and why is “inclusion” separate? He suggests the possibility that Maimonides combines the principles of Rabbi Ishmael with the method of inclusion associated with Rabbi Akiva in order to hint that all forms of derash are included, or that some of the other principles are just detailed developments of earlier foundations, like the move from Hillel’s seven principles to Rabbi Ishmael’s thirteen. He notes that common usage and public familiarity with “thirteen” may also explain the choice even without a substantive reason.

Maimonides’ Division: Creative Derash Versus Supportive Derash, and Dispute as an Indication

The speaker reads in Maimonides’ words that in the introduction to his Commentary on the Mishnah he explained that most of the Torah’s laws emerged through the thirteen principles, and that a law derived by means of a principle will sometimes be subject to dispute. By contrast, there are laws that are accepted interpretations from Moses without dispute, but for which proofs are brought from the hermeneutic principles. From this he defines two types: “creative derash,” from which a new Jewish law is generated and in which there may be dispute, and “supportive derash,” which finds a midrashic support for a law accepted in tradition and therefore is not disputed. He points to a linguistic and technical difficulty in the claim about “most,” and suggests the possibility that “most” means “many” and not necessarily more than fifty percent.

“Said to Moses at Sinai” Versus “Rabbinic,” and the Sharp Innovation in Maimonides

The speaker emphasizes that Maimonides writes that not everything that emerges through the hermeneutic principles was said to Moses at Sinai, and that not everything supported by those principles is rabbinic, because sometimes it is an accepted interpretation. He highlights that Maimonides sets the category “rabbinic” opposite “said to Moses at Sinai,” and argues that in the straightforward reading Maimonides calls creative derash rabbinic, even though it is a derivation of law from the verse—a position the speaker presents as unacceptable to other medieval authorities (Rishonim). He sharpens the point by saying that the common distinction is between rabbinic enactments and decrees on the one hand, and interpretation/derash that derives a law from the Torah and is therefore Torah-level on the other. He gives a contemporary example of discussion about opening bottles as an illustration that a later interpretive innovation does not necessarily make a law rabbinic.

Nachmanides’ Objection: Law Given to Moses at Sinai, Derashot, and the Combination of “Tradition + Derash”

The speaker notes that Nachmanides challenges Maimonides in light of places where Maimonides writes that even a law given to Moses at Sinai is also rabbinic. This creates a picture in which tradition alone is rabbinic and creative derash is rabbinic, but tradition together with supporting derash turns into Torah-level law. He formulates Nachmanides’ objection as astonishment: how can two components defined as rabbinic together produce Torah-level law? He notes that the status of a law given to Moses at Sinai as rabbinic does not appear in the second root itself, but is learned from responsa and from the Commentary on the Mishnah.

“Words of the Scribes” and “Rabbinic” as Translation, and the Claim of Inconsistency

The speaker responds to a claim he heard about an attempt to prove that in Sefer HaMitzvot “rabbinic” still means what we would call Torah-level law, and argues that one can show this is not consistent in Maimonides. He rejects a distinction between “rabbinic” and “words of the scribes,” and argues that there is no difference between them, and that sometimes it depends on translation from Arabic, where the translator rendered it one way in one place and another way elsewhere. He adds that even in the Mishneh Torah Maimonides uses the two interchangeably.

Maimonides’ Criterion for Decision: The Sages’ Declaration of “The Essence of Torah” / “Torah-Level”

The speaker reads Maimonides’ statement that what is appropriate is this: anything not written in the Torah but learned through the hermeneutic principles—if the sages explained and said “the essence of Torah” or “Torah-level,” it is appropriate to count it; and if they did not explain and did not speak of it, then it is rabbinic, “for there is no written text indicating it.” He explains that the statement “Torah-level” serves as an indication that this is supportive derash for a tradition, because from the derash itself one cannot know whether it creates or supports. He raises a further difficulty: why is the default rabbinic and not uncertainty? He notes that Nachmanides comments that if there is no decision, one should remain in doubt.

Maimonides’ Answer on Betrothal by Money and Following the Majority of Creative Derashot

The speaker mentions Maimonides’ responsum about the beginning of the laws of marriage, where he wrote that betrothal by money is from the words of the scribes, and the outcry against that because it is such a severe law. He notes that Maimonides refers there to the second root and explains that “all the laws learned from derashot are creative derashot, except for three or four,” meaning a very small minority. He suggests that Maimonides establishes a default rule that a derash not accompanied by a statement from the sages that it is Torah-level is a creative derash and therefore rabbinic, because in his view supportive derash is rare and not likely as a broad method.

Describing Maimonides as a Rationalist and Preferring Reasoning Over Empirical “Proofs”

The speaker argues that Maimonides presents here a picture that has “not a shred of proof” against the medieval authorities (Rishonim) and tradition, yet is clear to him on the basis of reasoning. He describes Maimonides as a rationalist who organizes Jewish law into conceptual categories that he himself determines, with the facts subordinate to the rational patterns, and compares this to organizing observations according to an elegant theory. He adds that Maimonides holds a view that common sense must be found to be correct within the Torah, and that he will “work things out” with the verses according to what seems right to him.

Maimonides’ Attack on the Bahag: Fear of Torah Scholars as an Example of the Test “Included in the Verse”

The speaker brings Maimonides’ continuation, where he says that “this root has already been misunderstood by others,” and therefore the Bahag counted fear of the sages as a positive commandment on the basis of “You shall fear the Lord your God” — to include Torah scholars. He emphasizes that Maimonides attacks the Bahag not only on a technical matter of counting but on the assumption that this is Torah-level law. From his reasoning he understands that the criterion is whether the derash uncovers something included in the verse or adds an extension not included in it. He concludes that Maimonides views as Torah-level law what is written in the verse itself, and that derash generally does not “uncover” a hidden meaning but rather “expands” the spirit of the verse in order to create binding laws with the status of rabbinic law.

A Conceptual Distinction: Creative/Supportive Derash Versus Uncovering/Expanding Derash

The speaker distinguishes between two axes of division: creative derash versus supportive derash deals with the question of whether the law was transmitted by tradition or generated from the derash, while expanding derash versus uncovering derash deals with whether the content is found within the verse or is an expansion beyond it. He says these are, in principle, different distinctions, though he hints that Maimonides creates a connection between them. He explains that he identified “expanding derash = rabbinic” from the way Maimonides rejects counting fear of Torah scholars, because it is not included in the verse.

Shimon HaAmsuni and Rabbi Akiva: The Derash of “Et” as an Illustration of the Development of Rules

The speaker analyzes the story about Shimon HaAmsuni, who would expound every occurrence of “et” until he reached “You shall fear the Lord your God” and stopped, and sees this as evidence that the rule “et comes to include” is not a tradition but a generalization that is tested and can be rejected. He describes Rabbi Akiva as someone who rescues the rule with the derash “to include Torah scholars,” out of a need to preserve a rule that seemed to him to work in most places, and not as someone bringing traditional information that settles the matter. He argues that the story demonstrates a process in which rules of derash are created over generations through data and criticism, until they stand the test and serve as a binding tool.

Two Interpretations of the Second Root and the Speaker’s Decision Against “Rabbinic Only in Source”

The speaker presents two principal readings of Maimonides’ words: one reading claims that “rabbinic” here indicates only the source of the law among the sages, while its force remains Torah-level; the second reading claims that Maimonides means rabbinic also in halakhic force. He says that most interpreters of Maimonides tend toward the first, whereas Nachmanides and those who follow him tend toward the second, and he declares that in his opinion דווקא the second reading is correct. He explains that it is hard to accept that Maimonides builds a theory with no halakhic significance, and that he uses the pair of concepts Torah-level/rabbinic in a reversed and confusing sense relative to the language of the sages and to his ordinary usage—especially in the case of Maimonides, who is so orderly and precise. Even so, he concludes that the implications of Sefer HaMitzvot are “indirect,” and one can discuss them separately.

Okay, so I more or less said the introduction, and what I want to do now is the next chapter in this series, and that is to deal a bit with how Maimonides understands the derashot, both from the interpretive angle and from the halakhic angle. I spoke a bit about this once in some class I gave in a beit midrash, at some study day we held, and afterward we’ll really get into the hermeneutical principles by which the Torah is expounded. There’s a sheet here afterward, just fill in the attendance. Okay, so first of all let’s take a sheet and maybe have a look. All right, so let’s begin. There’s a question that occupies many scholars, and that is how various laws were learned from various derashot. So Maimonides says that all of this is really tradition; the Jewish laws were learned by tradition, and they only attached them to some verse, right? Rabbi, there’s also another approach that says that various toolkits were given at Sinai, and there’s some power here of the plain meaning, and here plain meaning and here derash, but why is that so logical in the plain sense? And you’ve got a toolkit to extract from here all kinds of further Jewish laws to make use of. Yes. So that is basically Maimonides’ direction, except that there’s a difficulty here, because over the course of the process, I mean, when did all these tools arrive? The toolbox doesn’t seem fixed. Exactly. So the way Maimonides explains the difficulty about the toolbox is that it’s all tradition, but really there’s some kind of toolbox here that’s not always logical, supposedly. No, whether it’s logical or not is a different question. Right now I’m talking about whether there is such a toolbox. Whether it’s logical or not is already another question; that also depends on which tools. What? There is Torah, there is Torah, and he tells you there’s another midrashic layer here beyond the plain meaning. Right, a midrashic layer, and you expound it, yes. Fine, and the toolbox develops over the generations, or becomes institutionalized, or gets formulated over the generations, but basically these are things that were transmitted to Moses at Sinai, which only undergo some process of presentation, that’s all. As for Maimonides, since Maimonides’ method is very unique—this is a method that I think he stands with more or less alone—so דווקא through his approach maybe we can also see what the assumptions are of the more accepted methods. The pathological case, or the exceptional case, always points to what the normal situation is, the regular situation, okay? So here too I’m choosing Maimonides not necessarily because he’s the most important, but because he most strongly expresses the essential points precisely because he is exceptional. And I think that’s not accidental. Maimonides, unlike perhaps many other medieval authorities (Rishonim) and later authorities (Acharonim), is endowed with very strong reflection. That is, Maimonides not only interprets the Torah or rules on Jewish law, but also looks at how he himself does it. He gives himself a kind of methodological accounting of how he does it, defines the rules according to which he works, formulates them explicitly, and in that sense Maimonides is also a very convenient field to work with, because he doesn’t leave it to our speculations—he told us what he did. All right, so let’s look at the second root. It’s on the pages I gave you, where Maimonides basically sets down his principle, and he begins like this. The heading begins like this: “The second root: that it is not proper to count everything learned through one of the thirteen principles by which the Torah is expounded, or through inclusion.” Yes, the fourteen roots determine what we count in the enumeration of the commandments and what we do not; that’s the purpose of these rules. So the second rule, the second root, says that what is learned by one of the thirteen principles or by inclusion is not counted in the enumeration of the commandments. Up to here this is a technical rule. That is, saying “it is not counted in the enumeration of the commandments” doesn’t say much. Among the fourteen roots there are rules that are entirely technical. That is, something is not counted in the enumeration of the commandments because it is included in something else, for example. So that does not mean that this thing is not a law, and it also does not mean that it is not Torah-level / of biblical origin; it only means that, in terms of classification, it is not another commandment—it is included in another commandment. There are roots in which some rule is established that really tells me I do not count something because it is rabbinic, or I do not count it because it is… because it is just a reason and not a command. Yes—for example the fifth root, which says that things that are the reason for the commandment are not counted, or commandments that were said only for their time, in the third root—also, that is not a commandment and therefore it is not counted. So there are many kinds of rules, and the mere fact that a certain rule says that something is not counted does not automatically mean that that thing is rabbinic, or that that thing is not binding, or anything else. That is, each one of the roots has to be examined to see why exactly the thing is not counted, and that is one of the reasons that confusion often arises around Maimonides’ roots. At least some of the confusion is rooted in the fact that people are not always aware that when Maimonides says something is not counted, that does not necessarily mean it is rabbinic, nor does it mean it is not binding. There are different kinds of roots, and each one has to be discussed on its own terms. By the way, in some of the roots there may be a dispute about their meaning: does this root establish that certain things are not counted because they are not from the Torah, or are they not counted because they are included in something else? I’ll give you an example. In the first root Maimonides talks about rabbinic commandments, and Maimonides’ position, as is known, is that rabbinic commandments branch out from “do not deviate.” That is, someone who violates a rabbinic rule has in effect violated “do not deviate.” Here Nachmanides disagrees with him; this is old material. Now one can discuss what the first root is doing when it says that rabbinic commandments are not counted. What does it mean? They are not counted because they are not Torah-level / of biblical origin and the 613 commandments must be only commandments of biblical origin, or are they not counted because they are included within “do not deviate”? That is something completely different, right? That is, I do not count the prohibition against eating poultry with milk because it is one of the details of the prohibition of “do not deviate,” which has already been counted. That’s all. Not because it has a different halakhic status. First of all we have to understand what Maimonides is writing. A, B, for example all the questions they ask against Maimonides—then why not be stringent in a case of doubt? With rabbinic prohibitions, after all, everything comes out of “do not deviate,” so why in a case of doubt are we not stringent? As Nachmanides himself asks against Maimonides. So if we understand that Maimonides does not mean that this is biblical, and he means they are not counted because they are rabbinic, then what’s the question? Doubt is not treated stringently because it is not biblical. If we understand that they are not counted because they are included within “do not deviate,” then the question is an excellent question. So if it is included in “do not deviate,” then why is doubt not treated stringently? Okay? So that can have ramifications as well, but right now I’m not even interested in the ramifications. First of all I want to understand what Maimonides is writing, what he meant, what the significance of his words is. So the first root is one example. The second root is another example. In the second root too there is the same confusion. There are those who explain that Maimonides’ intention is—or who understand that Maimonides’ intention is—that the laws that emerge from derashot are not counted because they are rabbinic laws, and therefore they are not counted. Or there are others who explain: no, not at all. They are not counted for other reasons—for example, maybe because they are included in the verse from which the derashah emerges. If there is a derashah from, say, “You shall fear the Lord your God,” to include Torah scholars, okay? This is a derashah that Maimonides himself brings here, so I keep going back to that example. So “You shall fear the Lord your God” is a counted commandment according to everyone, fear of God, right? Now if I say that the word “et” comes to include in this verse also fear of Torah scholars, then one could say that the reason Maimonides does not count fear of Torah scholars is not because it is not biblical, but because it is a subsection of the details of the commandment of fear of God. That’s all. And that has already been counted. So the same dilemma that existed in the first root can also exist in the second root, and it indeed does. The various commentators—as much as that’s correct—it could be that here it has more to do with not counting a general prohibition as another commandment, another root, another statement that Maimonides places separately. Well, that’s an interesting comment, that’s an interesting comment, and therefore indeed this is one of the considerations that in my view really leads in the direction of the second interpretation of Maimonides. From the fact that Maimonides devotes a special root to it, it is more reasonable to assume that he does not mean it only branches off from a counted commandment, because another root is really meant for that. But that’s another issue; that’s regarding the first root. In the second root too, basically you can say the same thing. One could reject it and say, okay, but here there is a very distinct category, and therefore although Maimonides repeats the idea, here he has a very concrete application, so therefore he devotes a separate root to it. That in the first root, basically, according to Maimonides, it’s not to count a general prohibition, and all the rest are basically subsections or expressions… Not all the rest—some of the rest. Exactly. So Maimonides did not make such a subdivision. So some would say, fine, so he simply chose to make this a special root because rabbinic commandments are still a unique category, or commandments that emerge from derashot are still a unique category. Fair enough. So there is room for that—I agree with your argument. That is, I think this is one of the considerations that really leads in the direction that Maimonides means not to count it because it is not biblical, not because it is included in something else. But we’ll get there in a moment. Okay, so now let’s read the text. So at the first stage Maimonides determines that they are not counted. He has not yet explained why they are not counted. I already said—I think I mentioned this last time too—what did Maimonides insert into this heading? “The thirteen principles by which the Torah is expounded, and inclusion.” What about all the other principles? There are many interpretive principles. Not all of them are included within the thirteen or inclusion. And why is inclusion separate? If you’re already saying that the thirteen are only an example, leave it at the thirteen, and inclusion too is just one of the principles that you don’t count. Isn’t inclusion part of the thirteen? What? Isn’t inclusion part of the thirteen? Right, but there are many principles that are not part of the thirteen, and they are not mentioned here. This can’t be a principle of Rabbi Akiva as an example of the thirteen. No, that’s not the point, no—I didn’t say it’s a principle, I didn’t say it’s an example. I said that maybe by “the thirteen principles” he doesn’t really mean specifically the thirteen principles, but only to say everything that comes from methods of derash—and that the thirteen are just an example—then he should also have omitted inclusion. If you tell me it is precise, then the question arises: why the thirteen and inclusion, and not all the other principles? There are many other principles of derash. Okay? So here there is some room for hesitation. I don’t know; it could still be that this is just an example, because Maimonides only means to say the thirteen principles of Rabbi Ishmael and inclusion, which is a principle of Rabbi Akiva, in order to tell you that the intention is really all principles of derash. But really he also means all the other principles. Or he simply wanted to show all the approaches—he wanted to say both Rabbi Ishmael and Rabbi Akiva so that we wouldn’t think it is precise, and would understand that it is just an example. Could it be that the other principles are really more of a detailed subdivision within these principles? Some of them are hard to see that way. In other cases, yes. There is a certain portion of them that is simply a further specification of these principles, just as we saw that even these thirteen are a specification of earlier principles found with Hillel the Elder, where there were only seven. There was one principle of general and particular, and with Rabbi Ishmael there are three. It is clear that these three were detailed out of the one principle that existed with Hillel the Elder. So if you already want to go in that direction, I would say there are seven and not thirteen. But okay, we are already used to thirteen, so there are also considerations here that may not be essential considerations but simply what people know, and Maimonides illustrates it in their terms, that’s all. Very few people know Hillel’s seven principles. “We have already explained in the introduction to our work in the Commentary on the Mishnah that most of the laws of the Torah emerged through the thirteen principles by which the Torah is expounded, and that a law derived through one of those principles will sometimes be subject to dispute, and that there are laws that are accepted interpretations from Moses, with no dispute about them, but they bring proof for them through one of the thirteen principles, because it is from the wisdom of Scripture that it is possible to find in it some hint indicating that accepted interpretation, or an analogy indicating it.” So here Maimonides is really dividing between two types of midrashic laws. In the introduction to the Commentary on the Mishnah Maimonides divides all the types of laws we know in general, but here he is dealing with two of the… or really with three. The third we’ll add later. With two of those types. The first type is a law that emerged through one of the thirteen principles, yes? “Most of the laws of the Torah emerged through the thirteen principles by which the Torah is expounded.” By the way, that itself is a very problematic statement. Do the statistics and you’ll see that it’s not most—it’s a negligible minority. The laws that emerge through the thirteen principles by which the Torah is expounded are a negligible minority, completely marginal. He means all derashot, not just the thirteen. In a moment. Right, exactly. So now if I say that the thirteen are just an illustration, then what Maimonides means is all the laws that emerge through methods of derash, not specifically the thirteen. If he meant specifically the thirteen, then saying that most laws of the Torah come from them is absurd. Very few Torah laws come from them. There are… we’ll also see this when we talk about the interpretive principles themselves—there are principles of derash for which there is not even a single example, maybe one example in all rabbinic literature of their use, and even that is not always a halakhic use, but sometimes an aggadic use. So this is very far from “most of the laws of the Torah.” He writes here, “most of the laws of the Torah emerged through the thirteen principles,” which seems to contradict what he’s going to say later, that it’s rabbinic. No, no, wait, we’ll get there in a second. One thing… possibility… According to this, then according to Maimonides the disputes are about how to learn? What do you mean? In the use of the principles of derash… Ah, wait, wait, I haven’t gotten there yet, I’ll explain. Another possibility, before I get into the substance of his words—when he writes here “most of the laws of the Torah,” “most” does not necessarily mean more than fifty percent. “Most” can simply mean many. That’s often true in the language of the sages too. We say “most” such-and-such, meaning there are many such cases. It does not necessarily mean a majority in the sense of over fifty percent. It’s a bit odd not to say “many.” Is there… In rabbinic language there are examples of using it that way. Yes, exactly. “Most of his sons and his property,” exactly, a good example. There are many examples of this both in rabbinic language and in the language of the Torah. “Most” means many. It does not necessarily mean—depending on the context—it does not necessarily mean a majority in the sense of more than fifty percent. “Most laws of the Torah” means many Torah laws emerge through these principles. That too is of course a possibility. No, no, that’s not… Well, I already don’t know whether the time is up or… okay. So now what does he divide here? He says there are laws that emerge from the thirteen principles, what we called on one of the previous occasions creative derashot. That is, derashot from which new laws were created, okay? “And the law derived from one of those principles will sometimes be subject to dispute.” Sometimes a dispute falls upon that law. Some derive it this way, some expound it differently. That is, derash is not a one-directional mechanism. There can be disputes in the use of the methods of derash. On the other hand, “and there are laws that are accepted interpretations from Moses, with no dispute about them.” This is usually, say, what we would call a law to Moses from Sinai. But he continues: “but they bring proof for them through one of the thirteen principles,” what we called a supportive derash. As opposed to a creative derash, a supportive derash means the law is already given, and I find support for that given law by means of a derashah. Okay? And in that case the law is not disputed, because it did not emerge from the derashah. The law was already given. We only find a derashah after the fact as support for the given law. Okay? “And this is from the wisdom of Scripture,” that there can be a hint. So these are the two types, “and we have already explained this matter there. And thus he said: not everything that one finds the sages deriving through analogy from the thirteen principles is to be said to have been said to Moses at Sinai.” If so, then not everything that comes from the thirteen principles was said to Moses at Sinai. There are things that were created in a later period. “And likewise one should not say of everything found in the Talmud and supported through one of the thirteen principles that it is rabbinic, because at times it is an accepted interpretation.” He says one sentence, but folded into it are countless assumptions. Notice that. Every word here contains a lot of assumptions. Notice what the contrast is to “said to Moses at Sinai”: rabbinic, right? Usually I would not frame it that way. In the accepted conceptual system, there is “said to Moses at Sinai” and “innovated later.” But innovated later does not necessarily mean rabbinic. That this too was said at Sinai? What do you mean, said at Sinai? Like the rabbi said yesterday, that every law was said to Moses at Sinai and forgotten… No, no, no, I’m not talking about forgotten. There is “said to Moses at Sinai” and passed down by tradition. I’m leaving aside forgetting now. Passed down by tradition. Another possibility: I don’t know whether it was said to Moses at Sinai or not, but it didn’t reach me. The sages derived something by a derashah—a new law. They derived it by a derashah. And that isn’t rabbinic? So now Maimonides… Maimonides calls it rabbinic. In the simple reading that is certainly not rabbinic. No medieval authority agrees with that. What—what’s the option? As far as I know, in any case, no medieval authority agrees with that statement. What’s the option? Biblical. The sages interpret or expound the Torah. They do so a thousand years after the giving of the Torah, but they derived a law from a verse by means of the tools of derash. The status of that law is a Torah-level / of biblical origin law. It is not a rabbinic law. It came from a verse. So what if the interpreter lived a thousand years after Moses our teacher? If someone today decides that opening bottles—we spoke about this once, I think, right?—that opening bottles is a Torah prohibition of building, demolishing. There are all kinds of discussions about this. And say in previous decades, when these caps already existed—I’m not saying they didn’t exist—but once these caps did exist there were many people who simply did not notice and permitted it, including halakhic decisors, even important ones. Okay? Today there are all kinds of arguments about it. Fine. So does that mean it’s rabbinic because in the past it wasn’t? What suddenly happened? They sat and analyzed it, derived a law by means of derash, by means of interpretation, whatever you want. As long as this is not a new enactment—meaning a religious court did not sit and establish a decree or a safeguard—but what did it do? It derived it by means of the interpretive principles or other interpretive tools from the verses. The law we derived is biblical. It is not rabbinic. What does “rabbinic” mean? It is biblical and was created thousands of years after Moses our teacher. So what? We received the interpretive principles from Moses our teacher in order to make use of them. So we use them. These are creative laws. So now we use them, taking tools we received from Sinai, applying them to verses that we also received from Sinai, and the result is a rabbinic law? Something here is strange. And in such a case once again the line between biblical and rabbinic gets blurred. Why? So everything that… Not at all. The line is completely sharp. If the sages say that they derive… if the sages enact an enactment, and they say it is forbidden to eat poultry with milk lest you come to eat meat with milk, then poultry with milk is a prohibition they themselves invented. It is not a prohibition they derived by derash or by interpretation of a verse; rather, they innovate a new prohibition. They can do such a thing. That is a rabbinic law according to everyone, that is clear. But when they derive a law by means of the interpretive principles, plainly it is biblical; Maimonides says rabbinic. More than that: if a law was passed down to us by tradition and has no textual source, that is what we call a law to Moses from Sinai, right? A law was transmitted by oral tradition from generation to generation that such-and-such must be done; we did not derive a derashah for it from a verse or anything. That is biblical. Right? Also, a derashah that supports a law passed down to us by tradition—Maimonides apparently calls that here, well, he doesn’t call it that; he says it was transmitted from Sinai, but the implication is apparently that it is biblical, because it is the opposite of what he afterward called rabbinic, right? That is biblical. We need to understand very carefully the concepts Maimonides uses, because we will see later that the concepts here are the root of the problem and perhaps also the root of the solution. Okay? So that too is biblical. But something that came from a derashah and does not support an existing law but rather created a new law—in other words what today is called a creative derash, not a supportive derash—a creative derash creates a rabbinic law. Not a biblical one. Now Nachmanides here asks an even harder question. Maimonides writes in several places that a law to Moses from Sinai is also rabbinic. In several places he writes that. Words of the scribes, rabbinic, whatever. Yes? That too is rabbinic. Okay? So now Nachmanides really doesn’t understand what’s going on here. When the law comes to us by tradition and has no anchor in the written text, it is rabbinic—that is a law to Moses from Sinai, okay? It is not written in the Torah. A law that comes from a derashah and was not passed to us by tradition—a creative derash—that too is rabbinic, that’s what Maimonides says here, right? A creative derash is a rabbinic law. Fine. But if that derash supports a law that comes by tradition, then it is biblical. That is, if you have both together—tradition and a derash that supports the tradition—it suddenly becomes biblical. Why? Decide. If these tools create rabbinic laws, then how do two tools that create rabbinic laws together reinforce one another and suddenly become biblical? How does that work—two rabbinics become biblical? Like meat with milk, where this and that together become a prohibition. Yes. Okay, so in short, Nachmanides does not understand what Maimonides wants here. Now this rule, that a law to Moses from Sinai is also rabbinic, does not appear in this root. Nachmanides gets that from a responsum of Maimonides, from things he writes in the Commentaries on the Mishnah. Maimonides writes this in more than one place, that a law to Moses from Sinai is a rabbinic rule. That too is rabbinic. Okay? And then Nachmanides asks: if so, tradition brings us rabbinic laws, a creative derash—that is, a law that emerges from the interpretive principles—also creates rabbinic laws, but tradition and a derash supporting tradition together create a biblical law. Why? All right, so we’ll have to see this, we’ll have to understand it. But that is what Maimonides writes. Yes. I don’t know if this will ruin your class, but once this was revealed to me I dealt with this matter and spoke with a friend of mine who studies at Kerem B’Yavneh, and he said there was some rabbi who gave a class trying to prove that in the Book of the Commandments, when Maimonides writes “rabbinic,” he still means what in our language we call biblical. That is, it’s still something that the sages agreed on, it’s still something… I can prove to you that that’s not correct, and we’ll see that there are places where yes and places where not. We’ll get there. I think that’s about “words of the scribes,” Rabbi. No, no, there is no difference between “rabbinic” and “words of the scribes.” No difference whatsoever. Doesn’t the Kesef Mishneh make a distinction? No, the Kesef Mishneh—there is some other medieval authority, some later authority, some Yemenite I think, who started this whole business, but it’s simply a mistake. Simply a mistake. There is no consistency in this in Maimonides; he switches between “rabbinic” and “words of the scribes.” The expression “words of the scribes” that appears here is the result of translation. When you look at the Arabic in which Maimonides wrote… So the Yemenite made a precise inference, you know? Yes. As far as I remember it was Yatza Ibn Yahya or something like that, some Yemenite commentator started it, and perhaps because of that people thought he had some authority, since he understood Arabic, and therefore everyone—or not everyone, but many—followed him, and it is simply not correct. It does not stand up under Maimonides. I don’t know Arabic myself, but I asked and I also saw and read people who know Arabic, and they say that in the original text the original word translated as “words of the scribes” and “rabbinic” is the same word; the translator chose to translate it once this way and once that way. There is no consistency in this matter. Okay. And in the Laws? What? In the Mishneh Torah does Maimonides also use both this term and that term? In the Laws too, I think there is no difference. There it’s not a translation. Does he use both? He uses both interchangeably, yes. Like everyone uses both interchangeably; usually most people who use these terms use them with interchangeable meaning. All right, so that’s the introduction. Now another point that comes up here in Maimonides is the issue of dispute. That is, Maimonides gives an indication of what is rabbinic and what is biblical. What is that indication? Whether a dispute arose about it or not. Okay? That is, according to Maimonides it’s as if there cannot be a dispute in a biblical law. If there is a dispute, then if there is a dispute, he says, that means it is not a biblical law—it is a rabbinic law. A bit strange, since we know of many disputes in biblical law, right? Details of the law. What? Details of the law. Fine, details of the law—so what? Those details are biblical. So this is strange, but apparently that’s what Maimonides says—that’s an indication. And again, obviously this joins the same intuition he presented at the beginning: dispute means that the human being is involved here, and therefore disputes arise, because each person interprets or expounds differently. That is, for Maimonides, biblical law is law untouched by human hands. It is something that… What? What’s called glatt. Exactly, what’s called glatt. For Maimonides, biblical law is something written in the Torah pure and simple. What in other contexts might be called something the Sadducees would admit. Yes, something the Sadducees would admit, written explicitly, not rooted in interpretation, impossible to dispute. That is called biblical. Anything else, where a dispute can arise—derashot, interpretations, I don’t know, all kinds of things like that—that is not biblical law. Which is of course a very novel thing. There is some conceptual assumption here that this… that the reason is because it can’t… but it seems explicit that this is simply an indication. Meaning, if they disputed it—if they disputed it… Fine, it’s an indication, and I also agree that it’s an indication, so what? No, meaning, it’s not because it’s something the Sadducees would admit. It could be a novel law, a law we would never have understood on our own, and nevertheless it is biblical. How do I know? Because I see that… or one of the reasons is that I see that no one ever disputed it, so apparently it started… maybe yes, maybe no, but if no one disputed it, then what does that mean? If it’s… if there could have been a dispute, then what does that mean? So if a dispute did arise, then he says it is not biblical. Why? So a dispute arose—after all, a dispute can arise in biblical law. He says it in both directions: if a dispute arose, then it’s not biblical, and if no dispute arose, then it is biblical. Yes, but if… if the situation is such that the disciples of Shammai and Hillel increased and did not serve their teachers adequately… Well then, consequently it could be the reverse, but it can’t be… No, what do you mean the students increased? From when is that? From Beit Shammai and Beit Hillel. So what disputes is he talking about—those with disputes and those without? What was there before Beit Shammai and Beit Hillel? The early pairs, that’s what we’re talking about. If we try to polish up the disputes from before Beit Shammai and Beit Hillel and see whether there are things without dispute… there aren’t. Before Beit Shammai and Beit Hillel there was almost nothing. You’re dealing here with an almost empty set. Beit Shammai and Beit Hillel—let’s say we start with Hillel and Shammai themselves, yes? Hillel and Shammai are still among the pairs. What was before them? All the tannaim are after them. What exactly is he talking about? This really is almost empty of content. In short, he says: if so, we cannot know. The mere fact that a law comes from a derashah does not itself tell us whether it is biblical or rabbinic. We don’t know. Okay? So he says as follows: “Therefore the proper rule in this matter is that whatever you do not find written in the Torah, and you find in the Talmud that it was learned through one of the thirteen principles—if they themselves explicitly stated and said that this is essential Torah, or that it is biblical, then it is proper to count it, because the transmitters said that it is biblical.” So that can be counted in the enumeration of the commandments, because “the transmitters” means the bearers of the tradition, said it is biblical. “But if they did not explain this and did not speak of it, then it is rabbinic.” So if that is the case, then it is a rabbinic law. “For there is no written text indicating it.” Okay? Because after all there is no written text indicating it, only a derashah, so it is rabbinic. Only if they said of it that it is biblical, then it is biblical. What does it mean “if they said of it that it is biblical”? How does that make it biblical? How do they say of something that is rabbinic and thereby turn it into biblical? Tradition. Exactly. Meaning, when they say “this is biblical,” for us that is only an indication that the derashah here was a supportive derash and not a creative derash. That is what Maimonides is saying. Okay? So basically what we are looking for here is this: we see a derashah. From the derashah itself, one cannot know whether it is creative or supportive. In the vast majority of cases one cannot know whether it is creative or supportive. Okay? Maimonides says: we need to look for indications. If the sages told us that it is biblical, then in doing so they are apparently transmitting to us that this is a supportive derash. This law was really transmitted by tradition from Sinai; the derash supported it; and therefore it is really biblical. Okay? If the sages did not tell us anything—not that they said it is rabbinic, they said nothing. Then what do we do? “Then it is rabbinic.” Why rabbinic? If we don’t know, then isn’t this a biblical doubt? Let’s hear. So why is the default rabbinic? We don’t know, okay. Again, after all there are two possibilities. If the sages said it is biblical, that means it is a supportive derash. I understand. If the sages said nothing, then it is a creative derash and therefore rabbinic. Why? If they said nothing, then they said nothing, so now I have to see what… the tradition, the law sits on top of it. Ah, so then first we just need to know—and again, one could explain this simply and technically—that the rule is that the sages are supposed to declare it if there was a tradition, and that’s how tradition is transmitted; they are supposed to transmit the tradition to us; that’s how they do it, okay? And then what Maimonides writes here raises no principled difficulty. The problem is that this does not really stand up under scrutiny. It doesn’t stand up because when Maimonides speaks of whether “the transmitters” said it is biblical or not, they don’t do this as a declaration: “Know that this law is biblical.” Rather, if in your reckoning and in some initial assumption of the Talmud it comes out that this thing is biblical, that too counts as saying it is biblical. Now if that is so, then when you do not find such an initial assumption, there is no rule that the sages are supposed to declare of every commandment that it is biblical. Rather, what? If you have an indication, fine; and if not, then not. Okay, but if so—if there is no rule that they must always declare, but it is only a question of whether I found evidence or did not find evidence—then perhaps in this case there simply wasn’t evidence? Because no discussion took place about it, or because I didn’t think of that evidence, no matter right now, because I didn’t analyze the sugya correctly—it doesn’t matter. Why assume that it is a rabbinic law? Say that it is a doubt. Nachmanides also remarks this against Maimonides. If you say the sages made no comment, then fine, remain in doubt—so it is doubtful whether it is biblical or rabbinic, and a biblical doubt should be treated stringently. One must remember, of course, that according to Maimonides even a doubt on the biblical level is treated leniently, right? Only rabbinically must one be stringent in cases of doubt. On the biblical level one may be lenient, so this is not terrible. That is, even the obligation to be stringent in a state of doubt is itself only a rabbinic rule according to Maimonides. All the places where he says this are in cases of doubt in fact and not doubt in law. What? All the places where he says this are in doubt in… No, I don’t think so. In both. In doubt in law and in doubt in fact. But maybe we’ll get to that too at some point, we’ll see. All right, but some wanted to distinguish between a known prohibition and no known prohibition, which also doesn’t stand up, but perhaps we’ll talk about that another time. In any case, in the last cycle there’s an article of mine about this; if you’d like, you can read it there. Anyway, so Maimonides—what is really the point? I think this point is connected to what I already mentioned from Maimonides’ responsum. Maimonides has a responsum regarding the Laws of Marriage. At the beginning of the Laws of Marriage—I already mentioned this—Maimonides writes that betrothal by money is from the words of the scribes. And everyone cries out, how can that be? It’s biblical. What do you mean? Someone who has relations with her is liable to death. How can this be “words of the scribes”? So Maimonides in his responsum answers this and refers us to the second root. He says, “Read the second root,” because as I already mentioned, many medieval authorities did not have the roots before them, certainly not those who didn’t read Arabic, since the roots were written in Arabic. And therefore many of them did not know this root. The Raavad quite clearly did not know the roots. There are very clear indications of that—he simply did not know the roots. He does not understand Maimonides. Every time something doesn’t please him, he declares something rabbinic—thus the Raavad shouts at him, as if everywhere, “the author”—every place where something doesn’t seem right to him, he declares it rabbinic. What does that mean? He simply did not know this root. That is clear. So in the responsum, when Maimonides opens that responsum and talks about… he says, “Know that all the laws learned from derashot are creative derashot, with the exception of three or four.” I already mentioned that. With the exception of three or four cases. Now I don’t assume he means literally three or four; he means a few. Yes? That is, most laws are laws of creative derash. If so, Maimonides simply follows the majority. So Maimonides says like this: if the sages said it is biblical and this is a supportive derash, then it is biblical. If the sages said nothing, we have two options: either it is creative or it is supportive. But Maimonides’ view is that the overwhelming majority of derashot are creative derashot, therefore the default is a creative derash. Where does he get that from? Did he count? No, no, no. He didn’t get it from counting, I don’t believe that. Then why did he reach the substantive conclusion that it is more creative than supportive? Yes, I’ll tell you—it’s very simple. Because seemingly there is not much reason to do a supportive derash. Why support a law you already know? Except for an asmakhta, here and there—why? I don’t know, for local reasons. But when all the derashot are “here and there,” that can’t be. In the end, if something is implausible, you assume it is a minority. And wherever you do not find it, you say that apparently it is not that but rather the usual, normal, plausible thing. By the way, Maimonides does this in many places. This whole picture I’m describing now—one of the striking things about Maimonides is that he does not have a shred of evidence for anything he says here. Not a shred of evidence. Against all the medieval authorities, against the tradition, against everything that… the medieval authorities too in his terms, not in our terms; also in our terms. Against everything, and he has not a shred of evidence. Nothing. Not a millimeter, not a tiny little point of evidence, nothing. On the contrary, there are dozens and hundreds of proofs against him, which the medieval authorities pile up again and again. And Maimonides says it. Why? Because it is clear to him logically that this is so. Maimonides is a rationalist. As distinct from empiricists—in the context of science, do you look at facts and derive the theory from them, or do you come with your own conceptions and impose them on the facts? Maimonides is a rationalist. Whether for good or bad, you judge that. But Maimonides is very clearly that. And for him the facts are subordinate to his rational categories, and not the reverse. Of course that is an extremely extreme formulation. Obviously there is some interplay here between the two things, but broadly speaking he is certainly closer to the rationalist pole than the empiricist pole. Okay? Maimonides organizes Jewish law into categories that he himself invents, and he himself decides what the relation is between them. Why did he invent them—because of what he studied all his life and then he arrived… No, I didn’t mean… when I say invent, I mean he did not receive them. I did not mean invention in the negative sense of the word. He did not receive it; it came from him; that is his conception, certainly. Out of his learning everything. Not in an empiricist way. Not in the sense that he saw… Yes, but there’s a difference. You can always say, yes, so as an empiricist I invent string theory with sixty-four dimensions. Fine, no one sees that with their eyes. What you see with your eyes are various facts. It is very hard to call that theory something that emerged from observations. You then organize the observations with it, or very often force the observations to fit the theory that seems elegant or convincing to you, or however you want to put it. In Maimonides too, clearly, that is the case, and I’m not saying this to disparage him, by the way. It is a kind of ideological or intellectual approach that says common sense must be found true in the Torah. And if common sense says this, then that is what the Torah says, period. Like what people do today with conscience. What? Right—he says he is not bothered at all by verses, he is not bothered by anything; with the verses I’ll manage. It has to fit with what I think, and that is what he does in Jewish law too. The Jewish law doesn’t come out for him from the Talmud—again, what I’m saying is very extreme. Obviously it comes from how he learned the Talmud, but from how he learned the Talmud with his categories, and afterward all the difficulties are arranged—you have to arrange them. And if they don’t get arranged, then leave it as requiring further study. Like what people do today with humanistic morality. Like what people do today with humanistic morality vis-à-vis the Torah. What do you mean? Yes, okay—that you decide in advance what the Torah does and what the Torah will say, and then you find it inside. Fine, to some extent perhaps you’re right. In any case, that is what Maimonides says, and therefore when Maimonides decides that it is not plausible that all derashot are supportive, and not plausible that there should be supportive derashot at all—but there are a few that we saw are like that—fine, so the few that we saw, we saw. But all the rest are creative derashot. And roughly how many are there? What? Roughly? Not three or four—it’s far, far from that. What, supportive ones? Yes. No, he says only three or four. Not correct. He brings the examples… No, he does not bring examples. He says “like three or four”; he doesn’t bring examples. There are dozens. There are dozens. Okay, and that is still a discrete number compared to the rest of the derashot. When Maimonides says three or four, it’s not exact arithmetic; he means roughly. As an order of magnitude. The exact number is unimportant here. Relative to the derashot that are not like that, it is a negligible minority—that is what he means to say. Okay, but a few lines later he says—those I’ll bring and point out later—in the Book of the Commandments he points out… No, I’m not talking about the Book of the Commandments, I’m talking about the responsum. In the responsum when he writes, he says there are only three or four such cases and moves on. There’s some commandment three, if I remember. In a few commandments, yes, Maimonides addresses these matters—they’ve also collected it—but I don’t think there exists a complete list. I don’t remember where I saw it, maybe in Feintuch’s Pikkudei Yesharim. I think there he tries to claim that the three or four are exactly the ones he finds in the Book of the Commandments. I don’t accept that. I don’t think that’s right, because here we’re speaking about details, not complete commandments. Maybe three or four complete commandments of that kind—possibly. But details, there are many. Not many, but far more than three or four. What is the responsum about betrothal by money? I didn’t understand. Wait, wait, I haven’t gotten to betrothal by money yet. I only brought it as an example. I’ll comment on betrothal by money in a moment. Hopefully in a moment. In any case, Maimonides presents these two things here and declares that this is biblical and that is rabbinic. So now we need an indication, regarding a law that emerged from a derashah, of what it is—biblical or rabbinic. The indication is what the sages said about it. If they said it is biblical, it is a supportive derash. If they said it is rabbinic, it is a creative derash. And if they said nothing? If they said nothing, then that too is a creative derash. “And this root too has been corrupted by others. Therefore he counted fear of sages among the positive commandments. What led him to this, in my opinion, was Rabbi Akiva’s statement, ‘You shall fear the Lord your God’—to include Torah scholars, and he thought that whatever comes by inclusion is part of the mentioned category. And if the matter were as they thought, why did they not count honoring the husband of one’s mother and…” Precisely. Meaning, what is his claim here? What led the author of Halakhot Gedolot to count fear of Torah scholars is that he… because he thought—sorry—that whatever comes by inclusion belongs to the mentioned category. When Scripture says “You shall fear the Lord your God,” what does it say? It says fear of the Holy One, blessed be He. When we expound from this fear of Torah scholars, that belongs to this category of fear of the Holy One, fear of God, okay? And therefore the author of Halakhot Gedolot counted it. Now even if that assumption were correct, Maimonides would attack him, because Maimonides would say: you don’t need to count it not because it is not biblical, but because it is already included in the commandment to fear God. But okay, Maimonides says, I’ll argue with him about that in another root. But right now what I’m arguing with him about is at the level of whether this is biblical or rabbinic. And at the level of biblical or rabbinic I’m arguing with him on another point. My argument is not about whether it is included in fear of God. It is not included in fear of God, says Maimonides. It is not included in fear of God, and therefore, first, it is not biblical, because it is not included in fear of God—so it is not biblical. Here already there is some hint of what he said earlier. And second, he says—he does not say this explicitly, but he would have had to say it—if it were included in fear of God, even then I would disagree with you: one should not count it. Yes, from the standpoint of the enumeration of the commandments it is biblical, but from the standpoint of the enumeration of the commandments one need not count it. But here notice—this is very important—Maimonides is not arguing with him on that. Maimonides did not say, “You were wrong because you included it in that commandment and didn’t count it separately.” Maimonides argues with him about the very fact that he counted it, because it is rabbinic and not biblical, not because it is included in another commandment. Maimonides attacks him because he decided it was biblical, not because he decided it was included in that commandment. True, Maimonides’ reason for why it is not biblical is that it is not included. But that it is not included is not meant to explain why it should be a separate commandment; rather, why it is not biblical but rabbinic. So here too there is another hint to Maimonides’ view of why these things are not biblical. Why are the laws that emerge from derashot, according to Maimonides, not biblical? Because they are not included within the verse. I’ll jump ahead and say the conclusion now, because we’ll soon need to stop. I think what Maimonides means to say is this: a biblical law is a law written in the verses. Biblical, translated literally, means “from the Torah,” what is written in the Torah; it is written in the verse. That is biblical, okay? Now Maimonides says this: when we do a derashah, one could understand it in two ways. One could understand that the derashah exposes another dimension that is within the verse. It is another tool for exposing another dimension. We have the plain interpretive method, which explains one meaning of the verse or one content of the verse, and midrashic interpretation is another content of the verse in the world of derash. But both are acts of uncovering—we uncover information that is contained within the verse. That is one possible way to understand how derash works, the meaning of derash. The second possibility is to say: no, derash reveals nothing. Derash expands. Derash expands the spirit of the verse and creates new laws; according to how I understand what direction the verse is pointing, I—the sages, yes?—the sages create additional laws here. They are not embedded within the verse. Derash reveals nothing; derash expands. Maimonides argues here for that claim. Maimonides says: do you know why laws of derash are rabbinic laws? Because these are laws that do not reveal what is inside the verse, but rather laws that expand beyond what is written in the verse. The tools of plain-sense interpretation are interpretation whose goal is exposure. Midrashic interpretation is interpretation whose goal is expansion. Expansion of the Torah’s laws—legitimate expansion. Expansion that the Holy One, blessed be He, told us how to do. But still, the Holy One, blessed be He, said: you will expand this. You are not revealing my intentions here, the meaning of what I put into the verse; rather, you are making legitimate expansions. And since the expansion is not included within what is in the verse, one cannot call it biblical. Because for Maimonides, biblical is what is in the verse. That is biblical. It is what is in the Torah. It is what is written. I earlier called this “something the Sadducees would admit.” Now notice—this really is somewhat similar to what you noted. It’s not exactly something the Sadducees would admit. Maybe the Sadducees did not admit the tools of derash at all; I don’t know what their view was on these matters. But from our perspective, if derash were a revealing derash, then despite its being a midrashic tool, the product would still be a biblical product. Only usually derash is not a revealing derash but an expanding derash… no, again, let’s not use “creative” here, because “creative” is paired with “supportive.” An expanding derash. And since that is so, this is a rabbinic law. So here Maimonides has also revealed to us why he decided it is rabbinic. And once again you see that he decides this on logical grounds. Maimonides’ categories of biblical and rabbinic are categories based on how he understands the concepts. He does not start from the sages. He does not bring proofs from the sages for his thesis. And I assume he knows very well that this is an innovative thesis. Rabbi, are you intentionally distinguishing between the concepts “creative” and “expanding”? What? Are you intentionally distinguishing between the concepts “creative” and “expanding”? Yes, of course. These are two completely different concepts. Because creative derash is the question whether the law was transmitted by tradition or not—that is creative derash versus supportive derash. Expanding derash versus revealing derash is the question whether the law is found within the verse or whether the law is an expansion of the verse. And a creative derash too could, theoretically, be a revealing derash. We’ll see that later. But on the conceptual level, these are two different conceptual divisions. Okay? Later we’ll see that Maimonides does draw some connection between them, but on the conceptual level, when I define the concepts, these are two different conceptual distinctions. Okay? How did the rabbi infer here that an expanding derash is rabbinic? Because he attacks the author of Halakhot Gedolot for why he counts fear of Torah scholars, which is his example here of derash, right? This is the topic of the root: that from “You shall fear the Lord your God,” by inclusion, we learn fear of Torah scholars. So he attacks the author of Halakhot Gedolot—why are you counting this? After all, it is not included in the verse. That is how he attacks him. Meaning that the criterion is whether this derash exposed something that was in the verse or expanded the verse, and that is the basis for determining that it is rabbinic. That is what one sees here. Therefore this local attack on the author of Halakhot Gedolot reveals a great deal to us about Maimonides’ theory. Meaning, why did he suddenly decide on these distinctions? Now he continues. Also notice, I think I spoke about—well, I no longer remember—Shimon HaAmsuni used to expound all the occurrences of “et” in the Torah, right? Until he came to “You shall fear the Lord your God,” and there he stopped. And what did he think of doing? Shelving everything. Shelving all the derashot he had made, right? Why? Because he thought that apparently this tool does not work. Listen, here you can’t expound. If this tool were valid, it should work everywhere. If here it doesn’t work, apparently in other places too it didn’t work. Notice what that means: all the previous derashot of Shimon HaAmsuni were creative derashot. Because really, how can you discard those results? What do you mean? You discard those results because now you are making a generalization. We spoke about Otniel ben Kenaz. You are now defining some interpretive rule. I see many data points, I make generalizations—we spoke about this last time. He says: ah, it seems to me that every place where there is “et” in a verse, that includes something. But that is only what seems to me. I did not receive this rule by tradition. And now you can see before your eyes that when he runs into a fact that does not fit, he discards the theory. So what about the rule we received from Sinai? Weren’t the interpretive principles largely from Sinai? That “et” comes to include? We did not receive that from Sinai. Maybe they received it and it was forgotten, it doesn’t matter, but it did not reach us by tradition from Sinai. But to expound each and every one of these? No, that’s something else. I’m saying: this derash itself, that “et” comes to include—where did that come from? It came from the generalization that Shimon HaAmsuni wanted to make, or others around him, no matter, and he said: here it doesn’t work, you have to throw out everything that came out until now. Then Rabbi Akiva came and saved it. He says, “‘You shall fear the Lord your God’—to include Torah scholars.” Okay? What does that really mean? There was a dilemma here: what can be included beyond the Holy One, blessed be He? What can be compared to the Holy One, blessed be He? “To whom will you liken Me that I should be equal?” yes? Whom should one fear as one fears the Holy One, blessed be He? That was Shimon HaAmsuni’s problem. There is no such thing. There cannot be such a thing. Therefore clearly something here is not working, and he was about to discard it. Rabbi Akiva came and said: no, this rule is definitely correct. This rule is correct, and therefore, against our will, we must expound. But what are we to do? The difficulty remains in place. So we take what is closest, despite all the difficulty of comparing someone to the Holy One, blessed be He. What is closest? Closest is Torah scholars. So Rabbi Akiva says: since I do believe that this rule is sweeping, then I will take the option that surely you too thought of, only it seemed implausible to you. And I tell you: there is no choice. It is the least implausible, and therefore we choose it. I think with Rabbi Akiva one could have come and said that he came with information. No, you missed it—I have information. This expounds Torah scholars, and it is a supportive derash and all that. I think he continues what we saw with Shimon HaAmsuni: we are discussing whether this rule, that “et” comes to include, is correct or not. Rabbi Akiva too is participating in the discussion. Shimon HaAmsuni got stuck and said we need to discard the rule. Rabbi Akiva says to him, what do you mean? This rule must be correct. Look—it works in many places. We are making a scientific generalization. It works in many places. It cannot be wrong. Fine, so what do we do here? There is no choice but to take the least implausible option, let’s call it that. We take Torah scholars. Okay? Where would the difference show up? For example, if we were in a situation where it seemed to us that there is no logic at all in fearing Torah scholars, one should not fear Torah scholars, why should one fear Torah scholars? Maybe it’s idolatry, okay? Just as an example. There is no reason. It’s a very bad thing to do. So then—would anything change in this derashah? Nothing. They would fear someone else. No—if it’s clear that this is the most plausible. What if not Torah scholars—then no one. But I’m saying, Torah scholars too—no way. One should fear only the Holy One, blessed be He. If this were an enactment—what is usually called a rabbinic law—then the enactment depends on how the sages understand it. If the sages think there is a point in fearing Torah scholars, they enact it. If they think that reasoning is incorrect, there is no such idea, they do not enact it, right? That is the difference between a derashah and an enactment, even according to Maimonides, where both are rabbinic. But in a derashah it does not come from my own reasoning. It comes from the verse. There is “et,” and it has to include. Now of course my reasoning enters too. I ask myself, okay, what is the most reasonable thing to include, or what is the least unreasonable thing to include? Torah scholars. So even if perhaps I resist the idea that one should fear Torah scholars—I’m of course drawing it sharply only to sharpen the point, yes?—still I say, okay, but this is what comes out of the derashah, and therefore there is a law here, a binding law. Maimonides calls it a rabbinic law. Okay? By the way, the fact that Maimonides calls this a rabbinic law—earlier I said one could have come and argued that Rabbi Akiva came with information: we received by tradition fear of Torah scholars, and the “et” is simply what renews it. If that were the case, Maimonides certainly did not learn it that way, right? Because if that were really what was going on there, then what does he want from the author of Halakhot Gedolot? After all, if there was a tradition and the “et” only reinforces tradition, then this really is biblical, and the author of Halakhot Gedolot is right. That means Maimonides understood that not only was Shimon HaAmsuni doing a kind of scientific generalization, creating rules here—Rabbi Akiva too, who corrected him, did not do so by force of tradition. Rather, he found a solution, and therefore this generalization that “et” comes to include can be left standing. This is a generalization that works, and that’s perfectly fine. Okay? Meaning, one sees here clearly—at least Maimonides certainly read it this way—that this whole process is an attempt to understand whether there is such a rule. I think this exactly illustrates what I said in the previous class: these rules are gradually created over the generations out of the data. People find various generalizations, some challenge them, they fall away, until eventually you arrive at some rule that stands up to the empirical tests. That’s what we see here before our eyes with Rabbi Akiva and Shimon HaAmsuni. And once it stands up to the tests, then there is such a rule, and now one can use it. Yes. It seems that Maimonides is basically moving toward the approach that strict textual interpretation cannot be considered biblical. As stated, unlike someone who saw the transmission of the Torah as something much more… Fine. What is the theory behind that, and how does that answer Nachmanides’ question you mentioned? What? The question of why, if a midrash also aligns with tradition… Ah, that I’ll still get to—I haven’t gotten there yet. For now I’m just reading Maimonides and saying what comes out of him. Afterward we’ll try to think further. First of all let’s see what’s written. Okay? So Maimonides is basically telling us here that derashah is a tool that expands what is written in the Torah. Since that is so, its product is a rabbinic law and not a biblical law, and Maimonides himself understands that the root of the disagreement is at this point. The disagreement is not over the halakhic question. The disagreement is over the interpretive question: how do I understand the tools of derash? Do the tools of derash reveal content that appears, hidden within the verse, or are the tools of derash an expansion beyond what is in the verse? This disagreement is a theoretical disagreement, a disagreement about interpretive theory or about the theory of derash. It is not a halakhic disagreement. As a result of the disagreement about interpretive theory, halakhic consequences emerge. Meaning there are two levels of disagreement here. The first disagreement is at the interpretive level, the second is a halakhic disagreement. Just so that we don’t stop in the middle, I’ll complete the picture. The point is this: among Maimonides’ commentators there are two interpretations of what Maimonides says here in the second root, two directions. They divide into several sub-shades, but there are two principal directions. One direction basically says that Maimonides is really referring only to the interpretive discussion. Not to the halakhic level? No. Maimonides is basically saying that when I say “words of the scribes” or “rabbinic” in this context, I do not mean that in doubt we should be lenient and that it is really a rabbinic law. It is a biblical law in every respect, but I call “words of the scribes” that which the sages derived from the verse, expansions of the verses. As I suggested at the beginning—that “rabbinic” is just the name for what came out through them. We’ll get to that, we’ll get to that. Many say this; most interpreters of Maimonides say this. Nachmanides did not read him that way, and those who follow Nachmanides also did not read him that way. And in my humble opinion, they are the ones who are right. And they read Maimonides to mean that this really is a rabbinic law. Not that it is a biblical law but its source is from the sages. When I say “words of the scribes” or “rabbinic,” the question is whether I am speaking about the source or about the force. That is basically the disagreement in the interpretation of Maimonides. Some understand Maimonides to be speaking about the source. Where did the law come from? It came from the sages, because the sages made a derashah here. But that does not mean the result is rabbinic in force. The result is biblical: doubtful cases treated stringently, all the rules, liable to stoning and so forth—yes, everything. Only the source is a source… so according to that interpretation, the expression here has no halakhic meaning whatsoever, except with regard to the enumeration of the commandments. But even the enumeration of the commandments is not important at the halakhic level. So what difference does it make? Count it this way, count it that way—what practical difference is there? So there is no practical difference here. It is very hard to understand… Sorry that this is again in your class, but there is criticism, so whoever in the 22 hours that passed until this evening suddenly… All right, I’ll finish in another two minutes and then we’ll go out. I’ll finish in two minutes, okay? So that’s one possibility. A second possibility: some say that Maimonides meant a rabbinic law even in terms of its halakhic force. Not just a statement of where the law came from. Harder. So I’m saying these are the two options. Now there are difficulties with each option, but I’ll say already here: Maimonides does not lay out an entire halakhic theory with no halakhic significance. That is implausible. A, and B, his use of the concepts biblical and rabbinic is not careful—very uncharacteristic of Maimonides—because in many contexts, when Maimonides speaks about biblical and rabbinic, he is talking in the sense of halakhic force. And the sages also used it in that sense, right? Just a second—so Maimonides takes the same pair of concepts, biblical and rabbinic, and uses them in a completely different sense, and completely confuses us. His job is to put us in order, right? He wants to organize life for us, not confuse us. Maimonides is a very orderly man, very theoretical, very structured. It is very hard for me to accept that Maimonides uses a conceptual system in a completely different meaning—and not just different, but opposite, confusing. He calls a biblical law “rabbinic,” and he takes into account the possibility that I will now come to be lenient in cases of doubt or not know exactly what to do with it. That is not plausible. It is not plausible. But the whole Book of the Commandments has no halakhic implication. It has many halakhic implications, many halakhic implications, though indirect ones. If you want, we can talk about that another time.