2019-04-22 – Between Midrash and Logic – Lesson 5

Table of Contents

• General Overview
• Maimonides and Nachmanides on the Second Root: Interpretation, Midrashic Derivation, and Halakhic Force
• Identifying the Distinctions in Maimonides: Written Torah / Oral Torah versus Torah-level / rabbinic
• The Dispute among the Interpreters of Maimonides and the Decision in Favor of Nachmanides
• “Do not turn aside,” enactments and decrees, and the relationship between the First Root and the Second Root
• Midrashic Derivations as an Intermediate Status, analogies to non-dichotomous logic, and sharpening the model
• Halakhic implications: doubts, punishments, and essence versus command
• Talmudic sources that bring us closer to Maimonides’ approach
• Vows: Rav Pappa’s innovation regarding association and the dispute between Rabbi Yehuda and the Rabbis

Summary

General Overview

The text summarizes the dispute between Maimonides and Nachmanides on the Second Root over whether laws derived from midrashic exegesis are Torah-level or from the Sages, and presents a thesis according to which Maimonides identifies the distinction between Written Torah and Oral Torah with the distinction between Torah-level and rabbinic law, whereas the common approach sees these as independent distinctions. Maimonides presents an interpretive thesis according to which every verse has one correct interpretation, and therefore many midrashic derivations are not interpretations of the text but expansions beyond it, and from this there is also a practical consequence regarding halakhic force. Later, a framework is proposed in which midrashic derivation and a law given to Moses at Sinai are different kinds of “words of the Sages,” each with different halakhic consequences, mainly in the laws of doubt and punishment. At the end of the text, a new topic is opened in tractate Nedarim, about Rav Pappa’s innovation regarding two kinds of association and the dispute over whether association with the essential object is effective, with two basic ways of understanding the dispute.

Maimonides and Nachmanides on the Second Root: Interpretation, Midrashic Derivation, and Halakhic Force

Maimonides does not count laws that emerge from midrashic derivations because in his view they are laws from the Sages, and Nachmanides challenges him and brings proofs that they are Torah-level laws. Maimonides sets out an interpretive thesis according to which every verse has one correct interpretation, and therefore there cannot be several correct interpretations of the same verse, while Nachmanides attacks this based on the idea that “the Torah has seventy faces.” Maimonides explains the saying “a verse does not depart from its plain meaning” to mean that only the plain meaning is the correct interpretation and the midrash is not an interpretation of the verse, whereas according to Nachmanides the midrash does not replace the plain meaning but comes in addition to it. Maimonides argues that many midrashic derivations are expansions of the verse’s meaning rather than revelations of its inner intention, as in the derivation from “You shall fear the Lord your God” to include Torah scholars, where the verse commands fear of the Holy One, blessed be He, and reverence for Torah scholars is an expansion beyond what is written.

Identifying the Distinctions in Maimonides: Written Torah / Oral Torah versus Torah-level / rabbinic

The text presents two distinctions: Written Torah and Oral Torah, versus Torah-level laws and rabbinic laws, and states that the common view is that the distinctions do not overlap and that both can be Torah-level. Maimonides identifies the two distinctions and holds that what is explicit in the Torah is Torah-level, while what is not explicit in the Torah but is derived from it or transmitted by tradition is from the Sages / rabbinic. Formulations are cited from Maimonides that identify “anything not written explicitly” with “words of the Sages,” including a law given to Moses at Sinai, such as: “Even in a matter that is a law given to Moses at Sinai, we call it words of the Sages,” and also: “For everything that was not explained in the language of the Torah, they call words of the Sages,” and “We have already explained that this is not a contradiction… since anything not written explicitly is called words of the Sages.” The text emphasizes that in Maimonides’ view, something can be rabbinic even if it is learned by analogy, as brought in the laws of mikvaot: “It is from the Sages that drawn water is invalid for immersion… they learned it by analogy.”

The Dispute among the Interpreters of Maimonides and the Decision in Favor of Nachmanides

A dispute is presented among the commentators on Maimonides as to whether “words of the Sages” in Maimonides refers only to the source of the law or also to its halakhic force, with this attributed to the understanding of the Rashbatz as against the understanding of Nachmanides and those aligned with him. The text argues that Maimonides means both planes together: on the interpretive plane, the source of the law is not in the plain meaning of the verse but in a midrashic expansion, and on the plane of halakhic force, the matter receives rabbinic status. The conclusion is that “both are right” in the sense that Maimonides includes both source and force, but “therefore, in the final analysis, Nachmanides is right,” because Maimonides really does turn laws that emerge from midrashic derivations into rabbinic laws even in their force.

“Do not turn aside,” enactments and decrees, and the relationship between the First Root and the Second Root

The text describes a discussion about the relationship between the First Root and the Second Root in the dispute between Maimonides and Nachmanides, and about the question whether “Do not turn aside” also commands obedience to rabbinic legislation or only to interpretation. Maimonides’ approach is presented, according to which “Do not turn aside” authorizes the Sages both to determine and expand laws and to institute enactments, but after that authorization the laws are considered to exist “because of them,” and therefore their force is rabbinic. The text avoids dealing with historical motivations of Maimonides, such as fighting the Sadducees, and focuses on the textual claim of what Maimonides actually said.

Midrashic Derivations as an Intermediate Status, analogies to non-dichotomous logic, and sharpening the model

The text presents an approach according to which the distinction between interpretation and legislation is not sharp, and according to Maimonides there is an intermediate level of “interpretive legislation or legislative interpretation,” in which midrash combines an interpretive tool with a creative contribution by the Sages. An analogy is brought to the heap paradox and the bald man paradox, to explain that many concepts are not dichotomous yes/no categories but continuous ones, and the text applies this to the concepts of Torah-level and rabbinic in Maimonides. The claim is that Maimonides is not committed to saying that everything must be either Torah-level or rabbinic in a binary sense, but that there is a scale of “sufficiently in the Torah” or “not entirely in the Torah,” which produces categories within “words of the Sages.” The text argues that even in the Sages, “rabbinic” is a general concept with subcategories, and therefore Maimonides claims that he is using the terms the way the Sages used them.

Halakhic implications: doubts, punishments, and essence versus command

The text proposes a distinction between “essence” and “command” as a central explanation for the laws of doubt, and argues that a doubt regarding rabbinic laws of the type of enactments and decrees is a doubt in command, and therefore treated leniently, whereas with Torah-level law a doubt is treated stringently because there is a doubt in essence. A position is presented regarding rabbinic prohibitions such as poultry with milk, according to which the act in itself is not problematic and the Torah permitted it, and the prohibition stems from the obligation to obey the Sages, and therefore if done unintentionally there is no rebellion and no need for atonement, following Netivot in section 234. According to the proposed model, laws that emerge from midrashic derivations are “words of the Sages” in which there is no explicit command in the Torah, and therefore one is not punished for them, but there is essence there, and therefore their doubtful cases are treated stringently. A law given to Moses at Sinai is described as a category that has command without halakhic essence, and therefore “a doubt regarding a law given to Moses at Sinai is treated leniently,” as the text notes that Maimonides writes in three places. When there is a law that combines tradition with an anchor in a derivation, it is argued that what for Nachmanides seemed like “zero plus zero” is resolved as “half plus half,” because the combination creates both command and essence, and it therefore receives full Torah-level status that can also justify punishment.

Talmudic sources that bring us closer to Maimonides’ approach

Sources are brought that present the possibility of identifying rabbinic law with Oral Torah, such as Yoma 28: “Our father Abraham fulfilled even eruv tavshilin… both the Written Torah and the Oral Torah,” with the emphasis that eruv tavshilin is a rabbinic law. Also cited is the discussion in Bava Kamma about “dayyo” as “a Torah-level dayyo” versus a dispute, in order to show the possibility that something over which there is a dispute is viewed as words of the Sages or as having a status that is not Torah-level in the absolute sense. Sanhedrin is also cited regarding the rebellious elder: “These are the words of Rabbi Meir… Rabbi Yehuda says: over a matter whose core is from the words of Torah and whose explanation is from the words of the Sages… Rabbi Shimon says: even over a single detail among the details of the Sages,” with a distinction between an explanation from the words of the Sages and details of the Sages.

Vows: Rav Pappa’s innovation regarding association and the dispute between Rabbi Yehuda and the Rabbis

The text moves to the topic in tractate Nedarim and presents Rav Pappa’s innovation that there are two kinds of association: association with the essential object and association with a vow, while explaining the Mishnah to mean that “the emphasis is on the prohibition,” and that a vow takes effect only when one associates something with an item to which the status of a vow-prohibition has taken effect. Regarding someone who says “like pork” or “like idolatry,” a tannaitic dispute is presented in which Rabbi Yehuda validates it because this is association with the essential object, meaning association with the prohibited object itself and not with the name of the vow-prohibition, while the Rabbis invalidate it and hold that “association is effective only with something vowed.” Two ways of understanding the dispute are proposed: one approach ties it to the derivation from “to vow a vow,” according to which “the Rabbis need a verse in order to limit it,” while Rabbi Yehuda learns association from logic as the creation of similarity, and therefore even association with the essential object works; a second approach suggests that association with the essential object is not formal association but a kind of handle-expression, so that according to Rabbi Yehuda, “like pork” functions as a handle for vows, while according to the Rabbis a handle has to come from the world of vows and therefore is not recognized when it is based on an object whose prohibition does not stem from a vow.

Okay, let’s summarize for a moment where we’re holding. We saw that Maimonides does not count the laws that emerge from interpretive expositions, because those are laws of the sages. Nachmanides disagrees with him and brings a lot of evidence that these are actually Torah-level laws. We read Maimonides’ second principle inside. We saw that his structure is really built as follows. He starts from an interpretive thesis: according to Maimonides, there is only one correct interpretation for every verse. There cannot be more than one correct interpretation of a verse. Nachmanides attacks him precisely at that point and says, what do you mean? The Torah has seventy facets; the Torah can be interpreted in several ways, and therefore there is no reason to assume that only one interpretation is correct. The argument is simply over the meaning of the rabbinic statement that “a verse does not depart from its plain meaning.” According to Maimonides, only the plain meaning is the correct interpretation; everything else is not an interpretation of the verse. According to Nachmanides, even when you study, even when you interpret by way of exposition, don’t forget that there is also the plain meaning. It does not replace the plain meaning; it comes in addition to the plain meaning. That is what “a verse does not depart from its plain meaning” means. Then Maimonides’ claim was that once we accept this interpretive thesis, that only one interpretation can exist for each verse, then any other way of interpreting the verse does not count as interpretation. What is it, then? An extension. Meaning, if we make the exposition on “You shall fear the Lord your God” to include Torah scholars, the inclusion of Torah scholars does not reveal that the verse itself intends to command us to fear Torah scholars. Rather, the verse itself intends to command us to fear the Holy One, blessed be He, and fear of Torah scholars is an extension beyond what is written in the verse. In essence—and if we now identify it—the next step for Maimonides is that he identifies the interpretive mechanism and gives it significance on the plane of halakhic validity. In other words, since on the interpretive plane the midrashic result is not the uncovering of what is written in the verse, then this is not a Torah-level law but a rabbinic law. And that is the next stage. In other words, first of all he establishes the interpretive determination that exposition does not uncover what is written in the verse, and after that he says that as a result this also has implications regarding halakhic validity: since interpretively it did not uncover what is in the verse, it also does not have the force of a Torah-level law. Okay?

If I remind you of what we discussed, the interpreters of Maimonides disagree about how to understand what he writes. Does he mean to say that it is “from the sages” only in the sense of the source and not in the sense of halakhic validity—that is, the sages are the source of this law, but not that the halakhic force of this law is that it is a law of the sages? That is one possibility; that is how the Tashbetz understood it. Nachmanides and his school read Maimonides literally, that he truly means these are rabbinic laws. What I’m saying now is that in practice they are both right—but really that means Nachmanides is right. Both are right, meaning Maimonides intends both things, not just one of them. Therefore, in the bottom line, Nachmanides is right. That is, Maimonides means to say that the source of the law is from the sages—that is a statement on the level of the source of the law, that is the interpretive statement. After that he also says: as a result, the halakhic force of the law is also rabbinic in force.

So if I redefine this now: we know of two distinctions between different kinds of laws. There is the distinction between the Written Torah and the Oral Torah, and there is the distinction between Torah-level laws and rabbinic laws. There is no connection between those two distinctions. No connection at all. They are completely independent. Sorry, maybe could you repeat that sentence? I didn’t understand why they are completely unrelated. I’m explaining—I’ll explain now. The distinction between the Written Torah and the Oral Torah is the distinction that Maimonides is ostensibly talking about here. What is written in the Torah is the Written Torah; what the sages derive, what is a law given to Moses at Sinai, something transmitted orally—that is the Oral Torah. The distinction between Torah-level laws and rabbinic laws is a different distinction. That is the question of what halakhic force the law has. The practical difference is whether in a case of doubt one must be stringent or may be lenient. There are all sorts of halakhic implications, but this is a question touching the halakhic force of the law.

In the conventional definitions, Written Torah and Oral Torah are both subtypes of Torah-level law. Meaning, there are two kinds of Torah-level law: Torah-level laws written explicitly in a verse… and Torah-level laws that are Oral Torah, meaning we learn them from expositions or something not explicitly written in the Torah, or a law given to Moses at Sinai—so it is not written in the Torah, it is Oral Torah, but its halakhic force is that of a Torah-level law. Some want to include rabbinic enactments and decrees under the label “Oral Torah” as well—that is not the original meaning, but fine, let’s say even that. In any case, it is clear that these distinctions do not overlap. They are two different distinctions. For Maimonides, it is the same distinction. The accepted view is that these are two independent distinctions. Maimonides says it is the same distinction. The distinction between Torah-level laws and rabbinic laws is the distinction between Written Torah and Oral Torah. Therefore Maimonides says: what is written in the Torah—what others call Written Torah—that is what I call Torah-level law. What is not written in the Torah but derived from it, or a law given to Moses at Sinai—what others call Oral Torah—that is what I call rabbinic law, or laws of the sages. Okay? In other words, Maimonides’ basic thesis here is that he identifies these two distinctions with one another, something all the medieval authorities (Rishonim) do not do. The distinction between Written Torah and Oral Torah has no halakhic implication; it changes nothing, it is just a statement, it has no practical meaning. The halakhic implication emerges in the question whether something is Torah-level or rabbinic; it makes no difference whether it is Written Torah or Oral Torah. Maimonides says: not true. The distinction between Written Torah and Oral Torah is the distinction between Torah-level and rabbinic. It is the same distinction.

Because in some sense he was fighting the Sadducees. What? His struggle was with the Sadducees. Maimonides’ motivation—who he was fighting and what he wanted to achieve—doesn’t interest me. It doesn’t interest me; what interests me is what he said. Why he did it and all kinds of such reasons—maybe yes, maybe no, I don’t know—but first let’s see what he said. What did he say? He said this. Now we can think whether he really meant it or whether he only wanted to fight the Sadducees, but in fact didn’t himself think this way. If he himself thought this way, then what difference does it make whether he wanted to fight the Sadducees or not? So what are you telling me? He wanted to fight the Sadducees but in truth did not himself really think this way. Meaning, all these great compositions without actually believing what you write—it sounds a little problematic to me. What? Like what we said last week according to the Tashbetz, that Maimonides didn’t really mean that. Yes, yes, he didn’t mean it seriously. So that is the same thing; that is exactly the Tashbetz’s view. Meaning, it’s not “like”—it is that.

Now, how do I know for sure that for Maimonides there is an identification between Torah-level law and Written Torah? I’ll read you a few formulations of Maimonides. There is the responsum about the laws of marriage that I mentioned, that I brought in the previous class to show that Maimonides did not retract from the second principle even after he finished the Mishneh Torah; he goes back and mentions the second principle. There in the responsum it says as follows: “And even in a matter that is a law given to Moses at Sinai, we call it ‘from the sages.’” Do you hear that? Something that is a law given to Moses at Sinai is called “from the sages.” “And nothing is from the Torah except a matter explicitly stated in the Torah, such as sha’atnez, mixed species, Sabbath, and forbidden sexual relations.” Or something about which the sages said that it is from the Torah, as we also saw in the principle, right? That if there is something that emerges from exposition, which is ostensibly Oral Torah, if the sages say that it is Torah-level, then it is Torah-level. And that is what Nachmanides attacked: how does that miracle happen? We’ll come back to that later.

Another source, for example in his Commentary on the Mishnah on Kelim chapter 17: “For everything not explained in the language of the Torah is called ‘from the sages.’” Again: whatever is not explicit in the language of the Torah is “from the sages,” even things that are laws given to Moses at Sinai. “For when one says ‘from the sages,’ the meaning is that the matter is a received tradition of the sages, like all the interpretations and laws received from Moses, or an enactment of the sages like all enactments and decrees.” And remember that as well. Also in his Commentary on the Mishnah in Mikvaot: “And we have already explained that this does not contradict what they said, that the measurements are a law given to Moses at Sinai, because everything not written explicitly is called ‘from the sages.’” A law given to Moses at Sinai is “from the sages.” Yes.

The same thing at the end of the first principle Maimonides says: “For this entire rule is written in the Torah; there is nothing rabbinic in it.” What is the connection? Meaning, he identifies “written in the Torah” with Torah-level, right? Written in the Torah means it is not rabbinic. Okay? Again, that identification between Written Torah and Torah-level law. Or in the second principle, what we already read in several places there: “If they did not explain it and the sages did not speak of it, they did not say that this exposition is Torah-level—then it is rabbinic.” Why? “Because there is no text written there indicating it.” Again, something for which there is no written text indicating it is rabbinic, even if there is an exposition. Okay? “And all of them, without doubt, if one counts them among the commandments”—what we read in his attack on the Behag—“even though the plain meaning of the verse does not indicate any of those matters.” So what? Only the plain meaning of Scripture is Torah-level? Yes. Only the plain meaning of Scripture is Torah-level.

But all the Sabbath labors are rabbinic? What? No, no, because it’s like monetary betrothal that I spoke about last time. When the exposition explains a verse in the Torah, then it receives the status of Torah-level, because it explains to me what the Torah means. The Torah says, “Do not do any labor.” What is labor? I have no idea what labor is. It’s not that I have a plain interpretation and then exposition comes and makes another interpretation. The exposition reveals what counts under the term “labor.” So that is Torah-level. And what about monetary betrothal? That’s interpretation? Yes, certainly. Because they tell you: “When a man takes a woman”—what does “takes” mean? What does “takes” mean? What does “takes” mean? You make a verbal analogy and say it means with money. Meaning you are interpreting a word in the Torah, so that is Torah-level.

That is what I said at the end of the previous class. That is why there are actually so few practical differences that appear in Maimonides himself in the Mishneh Torah. We would have expected to see many laws where Maimonides writes that they are “from the sages,” and we would be left wondering about that. There really aren’t that many. There are a few here and there, and even then it’s not always clear which ones, whether that’s really so or not. Why aren’t there many? Because most expositions are expositions that explain verses. Once they explain verses, even if the sages do not say that it is Torah-level—there the whole discussion begins. It explains what the verse says. Fine, but the verse commands me, not the exposition. So that is Torah-level, not rabbinic. Okay?

The same thing at the end of the second principle: “For everything not heard at Sinai in explicit explanation is from the sages.” And here too there is room to discuss. Ostensibly one could have said: everything not heard at Sinai is from the sages. Fine—but what about a law given to Moses at Sinai? That was heard at Sinai, so that should be Torah-level, no? And what about all the laws that a veteran student will one day innovate—the Holy One, blessed be He, showed Moses at Sinai all the expositions and all the other matters, everything was heard at Sinai. So then everything should be Torah-level. How does that fit with what he said? The emphasis is on “in explicit explanation.” “Everything not heard at Sinai in explicit explanation is from the sages.” Everything not written explicitly in the Torah—that is what is called heard at Sinai in explicit explanation. That is from the sages. The things accompanying that, even if they were heard at Sinai, but not in explicit explanation, are from the sages and not Torah-level.

Okay. Regarding—yes. Rabbi, you mentioned in the previous class why Nachmanides doesn’t come back and include this under the first principle, which says that really all laws of the sages are Torah-level because of “do not stray”—those are Nachmanides’ questions against him. On the contrary, he says it’s not Torah-level—what do you mean? No, “do not stray,” Maimonides says that Maimonides says that it comes from “do not stray,” but that does not mean that every rabbinic prohibition is Torah-level. At least that is how Nachmanides understood him. Nachmanides understood him that way, but he did not understand him correctly. But in the second principle he did understand him correctly. Okay? What—someone who misunderstands, misunderstands all across the Torah? No, no, but one has to ask: why, if in the first principle Nachmanides fights Maimonides’ position that includes all laws of the sages under “do not stray,” and Nachmanides says wait, you went too far here, and in the second principle he says everything that… Exactly—what do you mean? That is exactly consistent with his position. What do you mean? After all, what must “do not stray” command about? Right? What must “do not stray” command about? So if it does not command about enactments and decrees, then what does it command about? Expositions? No, yes, but for Maimonides “do not stray” is really about everything. Right. And Nachmanides says: you went too far. Then he says: all rabbinic laws and so on and so forth, everything we interpret from the Torah is rabbinic. Maimonides says to him: you went too little—that is, you defined Torah-level as too thin a concept. Fine, so what? I don’t understand. But it’s a contradiction, meaning… Where is the contradiction here? With rabbinic laws you fattened the Torah; with laws from exposition you thinned the Torah. So what? Why must it always be in the same direction? What’s the problem? Here there is one attack and here there is another attack.

And what about what you said, that every enactment maybe has a kind of Torah-level force from “do not stray,” but the thirteen hermeneutic principles do not have Torah-level force because they are only interpretation of the Torah. No, nobody disputes that the thirteen principles also come from “do not stray.” On the contrary, here Nachmanides agrees with Maimonides. That is clear. And Maimonides says that even so, it is only “from the sages,” despite the fact that it comes from “do not stray.” Exactly like ordinary rabbinic laws, enactments and decrees: even though they come from “do not stray,” still their halakhic force is that of laws of the sages. So in essence it comes out that there is the whole Torah, which is Torah-level on one side, and then “do not stray,” which opens the door to additional prohibitions, and that is not the same thing at all. Exactly. And that is Maimonides’ position in both principles. I’m not going to speak about this because it goes beyond the boundaries of our present topic, but that is Maimonides’ view in both principles: everything comes out of this. “Do not stray” authorizes the sages to establish or expand—in the first principle or the second principle—Torah-level laws, or to establish new rabbinic laws. But after he authorizes them, in the end the laws are because of them, not because of “do not stray,” and therefore they are rabbinic laws. One could go on about this at length; I don’t want to now. What? Roughly what Maimonides brings in the enumeration of the commandments? Maybe. Yes, maybe, yes.

Okay, now Maimonides—I already brought his language in the second principle—where he says: “And perhaps you will think that I refrain from counting them because they are not true, and whether the law derived through this principle is true or not true—that is not the reason. Rather, the reason is that everything a person derives are branches from the roots that were said to Moses at Sinai in explicit explanation, and these are the 613 commandments. And even if Moses himself derived them, it is not fitting to count them.” So what is he apparently saying here? When you say these are branches that emerge from the roots, are you basically saying that you do not count these commandments because they are already included in the roots? The branches are included in the roots. But that is not what Maimonides means here. What he means here is exactly the opposite. Since the branches are not included in the roots, therefore they are not Torah-level, and consequently I do not count them. Okay? “Root” here is not an enumerative root—we discussed this. It does not mean these are Torah-level laws that are not counted because they are included in other laws. No. These laws are not counted because they are not Torah-level laws at all.

“Branches that emerge from the roots” is meant in two directions. On the one hand, don’t tell me that this is untrue—it is not untrue; it emerges from the verses through genuine methods. On the other hand, don’t tell me that it is included in the roots, because these are only branches emerging from the roots; they are not the roots themselves. So there is some intermediate status here. In other words, things that are new inventions—that was the topic of the first principle—those are rabbinic laws: enactments, decrees, rabbinic commandments, that is the first principle. Those are things that exist separately; they did not emerge from the Torah, they have no connection to the Torah. There are things that are in the Torah itself—that is Torah-level, and Maimonides is not dealing with that at all. In the second principle he deals with laws that have an intermediate status: these are laws that somehow almost emerge from the Torah; they are not like decrees and enactments, but this emergence from the Torah is an extension of what is written in the Torah and not an uncovering of what is inside it. So this is some kind of intermediate condition, and I’ll come back to that point later.

Yes—here, for example, in the laws of mikvaot, another example in chapter 4, law 2, Maimonides writes: “It is from the sages that drawn water is invalid for immersion. Even though the invalidity of drawn water is from the sages, they learned it by analogy.” What is this? If they learned it by analogy, that is Torah-level—what do you mean “from the sages”? It is clear that Maimonides understands that something learned by analogy is from the sages.

Anyway, where does Maimonides get this from? So I said that Maimonides himself brings no proofs for his position at all. He is so convinced that he is right that he brings no proofs for his position. I’ll nevertheless bring one or two sources in the words of the sages where something similar does seem to appear. It says as follows—there are many such sources; everyone has brought them, no need to present them, it’s straightforward. Regarding Yoma 28, it says: “Rav said, and some say Rav Ashi said: Abraham our father fulfilled even the law of joining cooked foods for a festival; as it is said, ‘My Torahs’—one is Written Torah and one is Oral Torah.” So is joining cooked foods for a festival Oral Torah? Joining cooked foods for a festival is a rabbinic law. Huh? Yes, a rabbinic law. So how is that connected to Oral Torah? For Maimonides, rabbinic and Oral Torah are the same thing. And here too we see a similar interpretation.

Or the Talmud in Bava Kamma, when it speaks about the principle that a conclusion from an a fortiori inference cannot exceed its source, in the dispute between Rabbi Tarfon and the sages. The flow of the passage there doesn’t matter right now, but the Talmud says: “And does Rabbi Tarfon not accept this principle? But that principle is from the Torah! As it is taught: ‘And the Lord said to Moses, if her father had but spit in her face, would she not be ashamed seven days’… all the more so for the Divine Presence.” Fine? So what—what is the connection? If it is Torah-level and Rabbi Tarfon disagrees, what, are there no disputes in Torah-level law? There are tons of disputes in the Talmud over Torah-level law. Does the fact that something is Torah-level mean one cannot disagree about it? Why not? There are many disputes that concern Torah-level laws. Again we see, like Maimonides, that something over which there is disagreement is essentially Oral Torah, or is from the sages, and not Torah-level in that sense. Huh? Yes, yes—for now, that intermediate status is “from the sages” as far as I’m concerned. I haven’t yet divided it more finely; we’ll get into that.

Okay, maybe one more example: the Talmud in Sanhedrin. “A rebellious elder is liable only over a matter whose intentional violation incurs karet and whose accidental violation incurs a sin-offering,” these are the words of Rabbi Meir. Rabbi Yehuda says: “Over a matter whose principle is from the Torah and whose interpretation is from the sages.” Rabbi Shimon says: “Even over one fine point of the sages’ fine points.” What is the difference between the last two categories? When you interpret the Torah in a way that is from the sages, that is what people usually call Torah-level. And “fine points of the sages,” one fine point of the sages’ fine points, means rabbinic laws—enactments, decrees, things of that sort. It depends whether there is rebellious-elder liability over rabbinic laws; that is a major dispute among the medieval authorities.

So really Maimonides’ meaning here is this: Maimonides is basically saying—we usually make a sharp distinction between interpretation and legislation, right? “Do not stray” was mentioned before. The verse “do not stray” delegates power to the sages to do two things: interpret and legislate. What they legislate has rabbinic force, right? And what they interpret—I’m talking now in the accepted approach before Maimonides—and what they interpret has the force of Torah law. In other words, the difference between Torah-level and rabbinic is simply the question whether here the sages legislated or the sages interpreted. Interpreted, expounded—it doesn’t matter right now, okay? So ostensibly there is a very sharp distinction between legislation and interpretation. Two functions of the sages. And over that, by the way, Maimonides and Nachmanides disagree: which of these two functions does “do not stray” command us about? Maimonides says both. Nachmanides says only interpretation, not legislation. And then of course the question arises: then from where does legislation emerge? But that is another discussion already. Okay? So that is the accepted approach.

Maimonides says: this division between legislation and interpretation is not sharp. There are intermediate degrees; it is not one or zero. There are middle levels. Enactments and decrees—the laws usually called rabbinic laws—are pure legislation. What does that mean? These are laws rooted in the sages’ own judgment, in their own decision, and this obligates us. Maimonides claims by force of “do not stray”—it doesn’t matter right now why—but it obligates us even though there is no hint of it in the Torah; it has nothing to do with the Torah; the sages determined that this too is forbidden. That is pure legislation. There is pure interpretation, and that is, of course, revealing interpretation. When interpretation reveals what is written in the verse, then that is pure interpretation and certainly the result is Torah-level. But Maimonides says there is an intermediate case: interpretive legislation or legislative interpretation. In legal theory today this is often called judicial legislation. Many disputes revolve around this issue: to what extent is a judge allowed to make an interpretation that goes beyond the simple meaning of the language of the law? Because in doing so he moves from the role of interpreter to the role of legislator. And in our system, after all, there is separation of powers. The legislature is supposed to legislate and the judge is supposed to interpret. Okay? And de facto it often turns out that the judge does something that has a legislative dimension, not only an interpretive one. Incidentally, you cannot escape that. The only question is where the boundary lies—how far one may go with it. You cannot preserve that sharp distinction completely; that’s naïve, obviously.

According to Torah law? In Torah law there is no such distinction; there is no separation of powers. The Sanhedrin is responsible both for legislation and for interpretation. To the extent possible, there is legislation that the Holy One, blessed be He, gave—that is straightforward Torah-level law. But if legislation or interpretation is needed, both are done by the Sanhedrin, and therefore it is not always clear under which hat they are acting. That is why disputes begin to arise among the tannaim or the amoraim as to whether a certain law is Torah-level or rabbinic. Why? Because the question is: when the sages established this law, did they legislate it, or did they interpret the verse and this is what came out? Were they legislators or were they interpreters—because it is the same authority. So from the fact that it was done in the Sanhedrin you cannot know whether it is legislation or interpretation. You have to enter the process by which the law came into being and see whether it was a process of legislation or a process of interpretation. So Maimonides is basically saying that such an intermediate state exists.

I’ll bring just one example to sharpen the point. Look, there is a paradox I’m fond of—the paradox of the heap. There is one gravel stone; it is not a heap, right? The sorites paradox. Yes. So it is not a heap. Now, if there is a certain number of gravel stones that is not a heap, and we add one stone, that won’t change the situation, right? It won’t suddenly become a heap. But a million gravel stones is a heap. Right? Those three claims do not fit together. There is a problem in language, in the definition of a heap—when we say “heap,” what are we talking about? Let’s talk about that problem. Whether that is a problem in language or not—you are already assuming analytic assumptions I don’t agree with—but there is some kind of problem here. So the question is how… how to resolve the contradiction? On the one hand, each one seems reasonable; each of the three claims seems reasonable on its own. Fine, but if I adopt each of them, how can I adopt all three together? There is an internal contradiction among them. Which of them do I give up, in other words? I am supposed to give up a premise that on its face seems reasonable to me. Which one do I give up, and why? Meaning, with some rationale.

The premise that one stone is not a heap sounds very reasonable. A million gravel stones is a heap—not less reasonable. The premise that if I have a given number of gravel stones that is not a heap, adding one stone changes the situation—also sounds very reasonable. So what, then, what is wrong here? What should one give up? The same thing, yes, like the bald man paradox. With one hair you are bald. If you are bald and add one hair, that does not change your status. But with a million hairs you are no longer bald, right? So here too, those three claims do not fit together. One can raise the heap paradox about any everyday concept. Lunch? Yes, exactly.

So what do we do with such a thing? What do we give up? What one gives up is the middle premise, of course. It is not true that when I have a given number of gravel stones, adding one does not change the status. So what shall we say? What is the alternative? That it does change? When? From 17? 28? That is what is not defined for us. Fine, but I’m asking. Fine, but give me a solution, don’t just tell me I give up that premise. So what replaces it? Up to a certain number of gravel stones… What, so you’ll say artificially: from 43 gravel stones it’s a heap? That is not what we usually mean by “heap.” I’m trying to capture what we really mean when we use the concept “heap.” Sorry, the human eye—for one person it’s a heap… But we’re talking about the concept “heap.” I tell you, I saw a heap of stones, and you tell me what that… There’s a heap of guys on the grass, all sorts of things like that. So we speak with one another and understand one another, right? You don’t assign some defined meaning to that concept? So I say that giving up that premise is actually giving up something much more fundamental: the assumption that everything must be either a heap or not a heap. That is the mistake here. The logic with which everyday concepts are handled is not binary logic. It is not yes or no. There is something that is not a heap, something that is a bit of a heap, something that is somewhat more of a heap, something that is fairly much a heap, something that is very much a heap, something that is really a heap, and something that is a heap. In all these explanations you are using the very concept you are trying to define, and you define it through those explanations. It is a bit of a heap—but what makes it a bit or more of a heap? No, no, I’m not using it that way. I’m defining a system of a hundred concepts instead of one; I’m not defining the one by means of the hundred. Erase the concept “heap”; there is no concept heap. What exists are different levels of heapness, okay? And now I say: each one—0.1 is slightly heap-like, 0.2 is somewhat more heap-like… it doesn’t matter; the resolution here depends, of course, on the limitations of language. We do not have enough words for infinitely many points on the axis.

So what are we really supposed to give up? We are supposed to give up the dichotomous view of concepts. Not every concept is measured in terms of yes or no—in fact no concept is measured in terms of yes or no. Rather, when you say “heap” what you mean is: this is very heapy, you mean that there is a high degree of heapness here. That is really what you are trying to say, okay? Now of course you’ll ask me: so what is a “high degree”? And now once again it is the heap paradox with respect to what counts as a high degree. Starting from 0.7? From where? When you say something is not a heap or something is a heap, that thing is a heap and all the rest are not heaps. It cannot be dichotomous, only maybe not in such measures… Yes, it can be, but in our language we do not use it that way. We do not have a given number of stones that is considered a heap and all the rest are not heaps. That is not our use of the concept. I am trying to track our everyday use of the concept, not redefine it. If I want to redefine it, no problem: I can define it consistently. Up to 17 stones it is a heap, from 17 it is not a heap, and everything is consistent, no problem. It just does not fit how we use the concept. So if we wanted to create a pure mathematical language, free of paradoxes, maybe we would succeed—apparently we would not, as has already been proven—but maybe we could have succeeded. But that is not what I am looking for. I am trying to understand our language, the concepts we use.

But why are we trying to make this a numerical concept at all? A heap is a certain form… Doesn’t matter—the numerical quantity is only for demonstration, I don’t mean it seriously. If you don’t do it with numerical quantity, you no longer get into the paradox. Why not? I can still add a stone and ask you whether it is a heap or not. But adding is once again getting into numbers. What do you mean “getting into”? I do it in practice—what do you mean? Don’t get into numbers—I’m asking you: is this a heap? Am I allowed to ask whether this is a heap? Answer me. Now you tell me. Then I take another stone—don’t close your eyes—I put another stone there. Now I ask you: tell me, is this a heap? What does it mean “don’t get into it”? I’m asking you. I’m asking whether these things are a heap. No, no, it’s not a matter of adding or subtracting, it’s simply a matter of form, a matter of… Fine, then decide according to form, but give me a criterion. Then when will it be a heap? You won’t have a criterion. And the answer is: you do not need to have a criterion.

There is a book called Zen and the Art of Motorcycle Maintenance by Pirsig. And the whole pursuit there revolves around this issue of Phaedrus, the hero of the story. I don’t know, some of you may know it; once it was a cult book, there was hardly anyone who didn’t know it. So the whole pursuit of the hero of that book, who is a lecturer in rhetoric, is that because the Greeks messed up our minds and got us to think that everything must be defined—for example the concept of quality, that is the concept he chases there—it has to be defined: either it is quality or it is not quality, and there must be rigid criteria. And the great illumination he reaches in the end is that this is not true—they messed up our minds.

This paradox also has practical implications. For example, in some book I read an example where someone writes how he and Joe in Japan tried to jump high: they planted bamboo and jumped over it every day. Now the bamboo grows slowly, but in the end it becomes very high. If every day you can jump over it, then presumably tomorrow too you can jump over it, because it grew by a millimeter and a half. Fine, those are Zeno’s paradoxes. And it comes out that you can always jump, even when it is five meters high. Those are really Zeno’s paradoxes, paradoxes of the continuum. Fine, that’s an example of a practical implication of the paradox. Okay, the paradox of the flying arrow also has practical implications, it’s the same thing, and it is solved in exactly the same way. The flying arrow is a paradox that does not come… No, Achilles and the tortoise isn’t this one; the flying arrow. It has practical implications? Yes, certainly. Here’s a practical implication: I shoot an arrow and I see that it arrives. Now you see that it moves—how can it be moving? What do you mean practical implication? But here too, you don’t have a practical implication—you just won’t succeed in jumping, that’s all. There is no practical implication. You ask: but why does that happen? That is the question you’re asking. Huh? If yesterday I succeeded, then today not? So it’s the same question as the arrow, in short. That’s a question; there too I ask how can it be moving, after all according to my calculation it ought not to be moving. So how can it… It’s the same question. It’s the paradox of the continuum, the same question.

Okay, but let’s not get into that now. In the end, what I want to say is that a large part of the tangles we get ourselves into—especially in this analytical world of study, of yes or no—are tangles we create with our own hands. Because we decide that concepts must be defined dichotomously, yes or no. And once, if it’s not not, then it is yes, then all sorts of contradictions arise for us. But if there can be a state that is “a bit”—it is neither yes nor no; there is some of it there, but there is also something that is not quite that—then the paradox disappears, right?

The same here, I am now talking about legislation or interpretation. In the standard analytic perspective, either it is legislation or it is interpretation. If it comes from you and cannot be extracted from the text, that is legislation. If it is extracted from the text and does not need you in order to be extracted—again, doesn’t need you as legislator; I don’t mind if it needs you as interpreter—then that is interpretation. But Maimonides says no. There is an intermediate state, a state in which this law is a combination of something from me with some interpretive tool, and that is called exposition. Now you ask me: was it inside the text? Was it the uncovering of something really there? No. It is there partially, the spirit of the text says it, or something like that. But you cannot say that I deciphered here something that is inside the text. I did not do that. It is a kind of intermediate state—it is a bit legislation and a bit interpretation. And therefore it is an intermediate status. Okay? So laws derived from exposition are in fact an intermediate status. That is Maimonides’ claim.

So is it Torah-level? Ah—now that is a wonderful question. What do you say, would that be Torah-level or rabbinic? If there is an intermediate status—it’s Torah-level. Exactly. You are asking the question again out of that same mistake. Who said that Torah-level and rabbinic are dichotomous concepts? But in the end he’ll have to tell you Torah-level or not. Why? If it comes from the Torah, then we understand why. Not true. For Maimonides, Torah-level and rabbinic are not dichotomous concepts. I’m already jumping to the end. Maimonides will say the same thing there as well. For Maimonides, even the concept Torah-level and rabbinic is not one or zero. What does Torah-level mean? You are used to saying, “Fine, in a Torah-level doubt one is stringent,” and all the consequences, and human dignity does not override it, it is a prohibition written in the Torah, and all sorts of things of that kind. Those are consequences. I’m asking what Torah-level is. There can be something that is Torah-level, says Maimonides, Torah-level in the literal meaning—“in the Torah”—that is Torah-level. That is what is written in the Torah. So if there is something really written in the Torah, it is fully Torah-level. If there is something that is “fairly in the Torah” but not entirely, like expositions, then it will be somewhat Torah-level. And if there is something not in the Torah at all, like enactments, then it will be rabbinic. There is “somewhat Torah-level”? Yes, yes, there is—I’ll show you now, there is.

But Rabbi, how can one issue halakhic rulings if that’s the case? So I’ll explain. This “somewhat Torah-level” is on the conceptual plane. Of course, when we enter the halakhic world, we need to make decisions. A legal world cannot be built like this unless one wants to leave everything… A legal system does not like such things; there has to be some certainty in law. So you have to give some rules so that we can act, direct our behavior, understand. Otherwise we might suddenly come before a judge and be stoned for what we did because he decided it was Torah-level, while we assumed there was no prohibition at all because really it falls below the threshold of Torah-level. If we do not define things here, there is no certainty. And a legal system cannot function without certainty. Yes. And one also does not receive lashes for it if it is not explicit, according to what we said. One second, I’ll get to that in a moment.

Until now Maimonides says as follows: conceptually as well, if it has no practical consequence whatsoever, there is no point in conceptualizing it. No, it does have consequences. I’m going to state the consequences now. Maimonides basically says—the source of many of the challenges against Maimonides, where does everyone attack him from? From the fact that laws derived from exposition are stringent in cases of doubt. A large portion of the objections are about this. In many places in the words of the sages we see that laws derived from exposition are stringent in cases of doubt. Who said Maimonides disagrees with that? Ah, because Maimonides says they are rabbinic. So what? The question is: with regard to which implication? Maimonides calls them laws of the sages; there are many kinds of laws of the sages. Everything that is not entirely in the Torah, which is what Torah-level is, is a law of the sages. But among laws of the sages there is type one, type two, type three—there are many kinds. There are laws of the sages—one second—there are laws of the sages—one second—there are laws of the sages whose doubt is treated stringently; there are laws of the sages whose doubt is treated leniently. Torah-level doubt—stringent—that is always true. But who said rabbinic doubt is always lenient? It depends what kind of rabbinic law it is. And I’ll try to make clearer how the decision is made—it is not just arbitrary, however the judge feels. In my opinion there are sharp and clear criteria here.

What I want to show is that this ambiguity, or this intermediate state of being somewhat Torah-level and somewhat rabbinic, has sharp halakhic expressions. The somewhat Torah-level/somewhat rabbinic category of expositions—their doubt is treated stringently. The somewhat Torah-level/somewhat rabbinic category of a law given to Moses at Sinai—their doubt is treated leniently. And I’ll soon explain why. Therefore this has very clear implications. By contrast, in what sense then is it from the sages—the thing that comes from expositions? In what sense? What you said earlier, what we saw in the fourteenth principle, at the end of the fourteenth principle. Maimonides says that if there is a prohibition that emerges from exposition, one does not administer lashes for it. Therefore it is from the sages. So in that respect, both a law given to Moses at Sinai and something that comes from exposition are from the sages. One does not punish for them; this is called punishment derived from legal reasoning. Okay? So in that respect, yes—but there are other respects in which it can be Torah-level. For example, the laws of doubt.

We are used to this being a package deal. If something is Torah-level, then its doubt is stringent, and one punishes for it, and human dignity does not override it, and infinitely many implications. And if it is rabbinic, then again all the answers are the opposite. Not true. Maimonides says it depends. For each implication one must decide separately. There are certain implications for which we will take this rabbinic law and it will resemble Torah-level law; and other implications where it will resemble rabbinic law. And we’ll soon see a possible proposal in this matter.

So it’s kind of like that view the Rabbi once presented of the Yemenite sage who said we have this kind of rabbinic law and that kind of rabbinic law, and one of the central objections the Rabbi raised against that approach was that Maimonides takes precise terms and uses them differently. נכון. And that same objection doesn’t… Right. Maimonides claims he uses the terms exactly the way the sages used them. Maimonides claims that the sages too used the terms this way. The concepts Torah-level and rabbinic, even among the sages, are not binary. No. No. A rabbinic doubt of a certain kind is lenient. There are many kinds of rabbinic law. They do not need to say it. They do not need to say it. They told you that a doubt in matters derived from exposition is stringent. And they call this rabbinic and that rabbinic. Of course, because there are many kinds of rabbinic. They call “the mouth that prohibited” a type of claim enhancement, and they also call ordinary claim enhancement claim enhancement, right? Because those are two types of the same thing. But “the mouth that prohibited” is sometimes stronger than an ordinary claim enhancement, even though both are called the same, because it is true that both really are of that kind, so it is right to call them that, but that still does not mean there are no subcategories within. So when the sages use the term rabbinic, it is a very general term. There are places where they mean rabbinic in the sense of decrees and enactments, and there are places where they do not. Precisely because even for the sages these concepts were not sharp. So I say: Maimonides did not deviate from the sages. Maimonides claims that this too is how the sages used the concepts. That is what I gain here. And I’ll try to explain it.

So now look. I’ll first propose the general claim. When Nachmanides in the first principle asks Maimonides: if rabbinic laws derive from “do not stray,” then why is their doubt not stringent? After all, every rabbinic prohibition effectively becomes a Torah prohibition of “do not stray,” so in doubt we should have been stringent. There are various answers; it doesn’t matter right now. One of the accepted answers—Rabbi Shlomo Zalman writes this, Rabbi Shimon Shkop as well—Maimonides himself rules that it is lenient. Of course; the question is only why. Maimonides even rules that Torah-level doubt is lenient. Torah-level? Only rabbinically is it stringent. But Maimonides says it is lenient—about decrees and enactments, that is what I’m discussing now. Their doubts are treated leniently. Many ask, both Nachmanides and others: why are their doubts not stringent? Everything derives from “do not stray.”

So one common answer to this is as follows. In rabbinic laws—the nature of a rabbinic law, I mean a decree or enactment now in the accepted sense of the term—is that there is a command regarding it, but in terms of content the act itself is not problematic. I ate poultry with milk. Poultry with milk in itself has no problem. Why am I forbidden to eat poultry with milk? Because the sages commanded it. There is no problematic act in itself; the Torah permitted it. Right? I am obligated to refrain from poultry with milk because I must obey the sages. The sages commanded not to eat poultry with milk, so one is obliged to obey them. This is what the Netivot writes in section 234 about rabbinic prohibitions of benefit: one who violated them unintentionally does not even need atonement. He does not need repentance. Why? Because if you violated them unintentionally, what did you do? After all, the act itself is not problematic. There was no rebellion against what the sages said, because you did not know they had commanded it—you were acting unintentionally. So what should you repent for? Nothing happened. In Torah-level law, when you do it unintentionally, there is no rebellion against the Torah command, but the act you performed is a problematic act. With rabbinic law there is no problematic quality in the act itself. The entire problem is only the command. Well then, if it was unintentional there is no problem, because you did not rebel against the command either. So what is the issue? That is the Netivot.

And the same thing is said by Rabbi Shimon Shkop, Rabbi Shlomo Zalman, and several later authorities. They want to claim that this is why a rabbinic doubt is lenient. Although the law is a Torah law by virtue of “do not stray,” it is a kind of Torah law that has only command without essence, unlike the rest of Torah laws. Because “do not stray” does not mean there is now also an essential problem in eating poultry with milk. It means one must obey the sages, that is all. I am speaking now about someone who ate poultry with milk but recognizes the authority of the sages. Someone who ate poultry with milk because he does not recognize the authority of the sages in principle clearly violated a Torah law. In my opinion that is true even according to Nachmanides. But that is a different issue, and therefore Maimonides and Nachmanides do not disagree about that at all. I am speaking about someone who violates it in the ordinary way, just transgresses a rabbinic prohibition. Okay? So why in a doubtful case can one be lenient? Because a doubtful command—this is Rabbi Shimon Shkop’s definition—is not a command. Or in other words, more accurately, doubtful rebellion is not rebellion. Meaning, if I rebelled against something and I do not even know whether there was a command here, one cannot say I rebelled. Rebellion exists only where I go against a clear command. But if the command is doubtful, or if I acted unintentionally and do not know there is a command, that is not called rebellion.

Good. So if we understand this regarding Maimonides in the first principle, let us now return to Torah-level law. So why in Torah-level law must one be stringent? Let us do the calculation. In Torah-level law we said there is both the obligation to obey, or the prohibition against rebelling against the command, and also the essence. Right? Meaning that the act itself is problematic. The reason we were commanded is because it is a problematic thing; therefore the Holy One, blessed be He, commanded it. One second, one second, one second—just let me finish the description and then… So there are both of these things in Torah-level law. Okay? Now a person is in doubt. He is told: in a doubtful case you must be stringent. Why must he be stringent in doubt? Because of the dimension of command, or because of the essential dimension? It has to be the essential one. What is the proof? Because in rabbinic law there is command, and with doubtful command there is no issue, right? So now in Torah-level law, where there is both command and essence, when I am in doubt, the command side falls away, right? What remains? Only the essence. And in doubtful essence one must be stringent. Doubtful command one may treat leniently. So if so, the difference between Torah-level and rabbinic is not really the difference between Torah-level and rabbinic. It is the difference between command and essence. Doubtful command is lenient; doubtful essence is stringent. Okay? Good.

Now let’s ask ourselves another question, and I think Maimonides asked this too. Is there really nothing essential that the sages commanded? If it were essential, the Torah would have prohibited it. That’s it—that’s what I wanted to say. Yes. But if it’s essential on the halakhic level. Obviously there is always a reason why they prohibited something. But if Jewish law relates to it as an essential prohibition, then it would have been forbidden at the Torah level. Okay? We can argue about that afterward. Right now I am setting up Maimonides’ picture because I want to put some framework in place before I have to run. So we’ll talk… come over to me during the week, I apologize that I have to rush off like this after the class, or by email, doesn’t matter.

So now—Maimonides says this: if so, in a place where we see several types of laws—there are enactments and decrees, that is clearly rabbinic law, but there are various types. There is a law given to Moses at Sinai, that is a law transmitted by tradition, right? We prefaced the various kinds of laws according to Maimonides. There are laws derived from exposition. There are laws transmitted by tradition that also have some anchoring in exposition—that is a third type. And there are laws written explicitly in the Torah—that is straightforward Torah-level law, right? Why didn’t the Holy One, blessed be He, write the laws given to Moses at Sinai? Why did He choose not to write them? Those too are laws He wants us to do, and we do not have so many laws given to Moses at Sinai. Why not write them? Add another twenty verses to the Torah and close the matter—what is the problem? Why create a new genre or a new channel of communication between us and the Holy One, blessed be He, namely a law given to Moses at Sinai? Maimonides asks himself this question and answers that these really are a different kind of law. The Holy One, blessed be He, wanted to convey them that way because this is a different kind of law, and therefore He did not write it in the Torah. To define it, excuse me, as subjective? Yes, yes—one moment, I’ll make it clearer.

What is special about what is written in the Torah? After all, Maimonides says that something derived from exposition or a law given to Moses at Sinai is not punishable, right? Why? Because it is not written in the Torah. So what? So what if it is not written in the Torah? There is no command. It is not written in the Torah, so there is no command. But there is essence. Wait—we’ll see in a moment. There is no command. You cannot punish without a command; that is Maimonides. Maimonides himself says: there is no punishment unless there is a prior warning. If it is not written in the Torah, that is called not having been warned. Maimonides writes this explicitly. If it is not written in the Torah, that is called not having been warned, and therefore one does not punish. Right? So Maimonides is basically saying that something is written in the Torah to tell us that there is also a command upon it, right? And if it is an exposition not written in the Torah—why was it not written explicitly in the Torah? Why only through exposition? Because it is an extension, we said, not an uncovering. If it were uncovering, then it really is written in the Torah. But according to Maimonides it is an extension. Why was it not written explicitly in the Torah? Because this too is not a regular Torah-level law. Because if it is not written in the Torah, then there is no command on it, right? Since it is not written in the Torah. Maimonides writes that explicitly. Since it is not written in the Torah, there is no command on it; therefore it is called a warning derived by inference. Therefore one does not punish for it, because it is not written; there is no warning, no command. So what does remain in it? The essence, right? There is no command, so what is there? Otherwise nothing remains. There is essence.

And what is the idea behind this? When I make the exposition “You shall fear the Lord your God” to include Torah scholars, what is Maimonides telling me? That including Torah scholars is not something we were commanded in the verse; the verse does not command that. There is no command, but clearly the idea is an extension of the idea written in the Torah. Just as one must fear the Holy One, blessed be He, one must also fear Torah scholars. Meaning that same essence is also found in fear of Torah scholars; only the command does not exist. This is Maimonides—this is a free translation of Maimonides’ interpretive statement, right? Good. So now let us do the calculation. What happens in a doubtful case of a law derived from exposition? It is stringent. Right, because that is doubtful essence. So why should I care that there is no command? It is rabbinic because Torah-level law is only something that has both command and essence. That is Torah-level law. So this is rabbinic because it has no command on it; it has only essence. But with regard to the laws of doubt, why should I care whether there is no command? Doubtful essence is stringent. So of course a doubt regarding a law derived from exposition is stringent, and you can throw hundreds of objections to Maimonides straight into the trash.

Now what happens with a law given to Moses at Sinai? A law given to Moses at Sinai is a third type. Again we must ask ourselves: there are already several communication channels the Holy One, blessed be He, has with us. There are things written explicitly in the Torah, there are things that are expositions, and there are expositions. Why does the Holy One, blessed be He, now choose a third channel—a law given to Moses at Sinai? So I say: let us draw the inference. What remains? Only command without essence. Because in a law given to Moses at Sinai there is command from the Holy One, blessed be He. The Holy One, blessed be He, commanded Moses at Sinai that we should do such-and-such. There was command. Why is it not written in the Torah? Again, no essence—just as I said earlier about ordinary rabbinic laws. Of course there is a reason why the Holy One, blessed be He, commands it. But from the Torah’s perspective, the Torah does not see that essence as something halakhically problematic. There are reasons why it was said, just as there are reasons why the sages enacted what they enacted. But from the Torah’s point of view those reasons are not strong enough to establish that there is an essential halakhic problem here. From a halakhic perspective, a law given to Moses at Sinai is viewed as command without essence. What will be the law in a doubtful case? Lenient. Lenient. Maimonides writes in three places that a doubt concerning a law given to Moses at Sinai is treated leniently.

So it turns out that we really have three kinds of rabbinic laws. There are enactments and decrees—that is rabbinic law. There is… a law given to Moses at Sinai—that is rabbinic law. And there are expositions—that is rabbinic law. But with respect to the laws of doubt we do not ask in some all-inclusive way: if it is rabbinic, doubt is lenient; if it is Torah-level, doubt is stringent. Because there is no all-inclusive concept of Torah-level and rabbinic. One has to examine each thing on its own. We know that in the laws of doubt what determines the matter is whether there is essence, not command. So let’s see. In laws that emerge from exposition, there is essence; therefore their doubts are stringent. In a law given to Moses at Sinai there is no essence, only command. So this is doubtful command; like “do not stray” in ordinary rabbinic law, doubtful command is lenient. Therefore Maimonides said that a law given to Moses at Sinai is lenient in doubt. Okay?

When there is a Torah-level law written explicitly in the Torah, it has both command and essence, so for it one also punishes, besides the fact that its doubt is stringent. Which one does not do with laws of exposition, because in laws of exposition there is essence but no command, and to punish you need command, because there is no punishment unless there is prior warning. So one does not punish. Okay? But laws written in the Torah have both command and essence, so one both punishes and treats their doubt stringently, and that is the whole picture.

Okay? So in the bottom line Maimonides says this. We have several kinds of laws. What he calls Torah-level is what is written explicitly in the Torah. What he calls rabbinic is everything else. But among everything else there are several kinds. There are decrees and enactments—that is one type, and now I’ll detail it a bit more. Decrees and enactments are one type. There are decrees and enactments that have a scriptural support text. Some of the medieval authorities say that when there is a scriptural support text, it is more severe. Fine—it still is not a full exposition; it is only a support text. It comes somewhat from the Torah. We spoke about the heap, right? If something has an exposition, then it comes quite a bit from the Torah. Not fully yet, but quite a bit, right? If it is a law given to Moses at Sinai, it does not come from the Torah at all; there is an oral command from the Holy One, blessed be He, it does not come from the Torah at all. If something is written explicitly in the Torah, of course—or is uncovered through interpretive methods—then of course it comes from the Torah, period. Okay? That is the whole scale for Maimonides.

The question of what to do in the laws of doubt does not depend on the label Torah-level or rabbinic. It depends on the question of how much it is written in the Torah, how much essence there is here. Command is relevant regarding punishment. Okay? So that is really the difference.

And one last point that I really have to say, just so the picture remains complete. I simply don’t want to keep going with this for too long. Nachmanides asked against Maimonides: how does this miracle happen, that things derived from exposition are laws of the sages, laws learned by tradition and transmitted by tradition—a law given to Moses at Sinai—are also laws of the sages, and yet if you have laws transmitted by tradition but that also have an anchoring in exposition, then that is Torah-level. How does that miracle happen? How does zero plus zero come out to one? It is half plus half, not zero plus zero, right? What is the point here really? Once we have an exposition that anchors a law given to Moses at Sinai, what does that mean? That there is command here and there is essence here. That is clear. So obviously it is Torah-level like something written explicitly in the Torah. What is the question? It cannot be otherwise. There is both command and essence here. So what is the problem? Every rabbinic law is rabbinic because one of the components of Torah-level law is missing—either one of the two components. Here we have a place where I have both a law given to Moses at Sinai, which gives me command, and something derived from exposition, which shows that there is also great essence here. So what is the problem? It is completely Torah-level. Its doubt is stringent, one punishes, everything is fine.

But you said earlier that if you have essence and no command, still the doubt is stringent like Torah-level, and here you are saying you need both components, both essence and command. No—its doubt being stringent does not require both components. Even doubts concerning expositions are stringent. Here one can punish; that is the difference. You cannot punish for a law derived from exposition because there is no warning. But here the warning comes from the law given to Moses at Sinai. And that is very similar, if you remember, to what Maimonides wrote about warning derived by inference when the punishment is written. When the punishment is written in the Torah, Maimonides says, one can derive the warning by inference. Why? Because clearly in a place where the punishment is written in the Torah, the Torah has already told us that this is forbidden. So even if I find it by inference, if I derive from inference that there is essence here, together it joins into a fully Torah-level law and one can even punish for it.

In “do not stray” there is also both the prohibition and the essence. No, there is no essence. Because there is nothing wrong with poultry and milk. Not on the side of poultry and milk—no, on the side of the sages’ words. That is why I stressed and said: if you reject the words of the sages because in principle you do not recognize their authority, then certainly you are right. But if you do not listen to them because your inclination overpowered you, while you do recognize the authority of the sages, then there is no essential problem of “do not stray” here—you just ate poultry and milk. So you did not obey them, but there is no essential problem in the poultry and milk itself.

Maybe one could say—and with this really one last thing—to make sense of it also from the side of rabbinic law: the Rabbi said that for Maimonides, from both places rabbinic authority has two sources, both interpretation and legislation. So if the sages use both hats and derive one law, using both hats—legislation is not a warning. Warning has to be a Torah warning. From where did they get it? From where did they get it? No. Okay. Thank you very much.

We continue with chapter two in Nedarim. In the previous class we dealt with this innovation of Rav Pappa, that there are two types of association. There is association with the essence and association with a vow. We said that this is the plain meaning of the Mishnah. The Mishnah says that a person who associates something with a vowed object—that is a vow; with a forbidden object—it is not a vow. And we explained according to Rav Pappa that the emphasis is on the prohibition. If you associate with something upon which the status of vow-prohibition rests, it takes effect. If you associate with something upon which the status of vow-prohibition does not rest, but rather another prohibition, it does not take effect. In other words, association with a vow is association with the status of vow, and that is an effective association.

We saw that there is another innovation Rav Pappa points to, when he says “like pork” or “like idol worship.” We said that this is a dispute among tannaim. According to Rabbi Yehuda it takes effect, and the reason it takes effect is because that is association with the essence. Association with the essence means that I am not associating with the status of prohibition, but with the forbidden object. If I associate with the forbidden object, then even if that forbidden object is not a vow, it is effective. The sages disagree. The sages hold that there is no association except with a vowed object. Of course, the big question is what the nature of that dispute is—what is the nature of the dispute between the sages and Rabbi Yehuda? Is it possible to associate with the essence, or is it not possible to associate with the essence?

We saw two ways of understanding that dispute. One way, we said, is that the question is whether to derive from the phrase “to vow a vow.” “To vow a vow” appears in the section of vows. The sages derive from that repetition—“to vow a vow”—that one must vow with something that is itself vowed. In other words, the Torah requires that the association be with a vow. Rabbi Yehuda says no: “to vow a vow” does not come to teach about association with a vow; it comes to teach something else—a person who vows by reference to a Nazirite. We ask ourselves from where Rabbi Yehuda learns association, and we said that there is such an approach: Rabbi Yehuda learns association from logic. Association is an act of creating a vow. Just as I can create a vow by saying “this is upon me as an offering,” I can create a vow by saying “this is like pork.” I create an analogy. And if I create an analogy, I do not need a verse. A verse is needed only for someone who wants to limit the possibilities. So the sages need a verse to limit the possibilities to association with a vow. Rabbi Yehuda says that association is open to any possibility of creating an analogy, and therefore even association with the essence is effective. That was one possibility.

A second possibility we saw at the end of the previous class: is association a type of handle? That what Rav Pappa is really saying—and this is perhaps an even bigger innovation—is that association with the essence, meaning “like pork,” is not association in the formal sense of the word. Association in the formal sense means taking an existing vow and transferring it to a new object. When you say “like pork,” you are not doing that. Pork is not a vow. What you are doing is really saying, “I want to forbid this object the way pork is forbidden.” And that is a kind of handle. After all, shorthand expressions of vows are treated like vows. Since you used language of prohibition, even though it is not unmistakable language of vow, it takes effect as a shorthand expression. And the sages invalidate it because in their view a shorthand expression must resemble the source. The source is a vow, and therefore the shorthand expression must be drawn from the world of vows. Pork is not from the world of vows. That was the second suggestion we saw at the end of the previous class.