Biblical and Rabbinic Law – Lesson 1

Table of Contents

• The framework of the series and the approach to the question of rabbinic and Torah-level law
• Maimonides’ approach: “Do not turn aside” as the source of overall validity and the authority of the religious court
• The counting of the commandments versus halakhic validity, and the implications of the distinction
• Nachmanides’ approach: criticism of the implications of “do not turn aside” and defining the limits of rabbinic law
• The fundamental tangle: the rabbinic/Torah-level distinction as an internal contradiction
• Technical resolutions and the discussion of leniency in cases of rabbinic doubt
• Expanding the problem to legal theory and the grounding of normative obligation
• Critique of a “cynical” explanation and the distinction between “why people do it” and “why one ought to do it”
• Directions for continuation: the positive commandment to heed the sages and the question of doubt regarding positive commandments

Summary

General Overview

The text opens a series on rabbinic and Torah-level law, while recognizing that the distinction between them is blurred in early sources and becomes sharper over the generations. Still, the discussion is conducted mainly from within the halakhic conception as it took shape, not as historical research. The plan is to work through the approaches of Maimonides and Nachmanides in grounding rabbinic laws, to show that the division between them is not clean, and that the difficulties in both approaches point to a fundamental tangle. The claim is that the difficulty is not merely technical, about how to understand the sources, but a basic problem in the legal theory of Jewish law and in grounding normative obligation more generally. It is hard to satisfy at once the need for binding authority and the preservation of the practical distinctions between rabbinic and Torah-level law.

The framework of the series and the approach to the question of rabbinic and Torah-level law

The distinction between rabbinic and Torah-level law is presented as something that, according to some scholarship, is late: the early layers of the Talmud blur it, and it sharpens over time. But the speaker is not convinced that this historical claim is necessary, even though he agrees that there is blurring. The stated approach is to deal with Jewish law as it is known today, and with history as contemporary Jewish law understands it, rather than trying to reconstruct “what really happened” historically. A work plan is laid out: to present two possibilities for understanding the source of the validity of rabbinic law in Maimonides and Nachmanides, to show the difficulties and overlap between them, to suggest an additional direction that perhaps both could agree to, and then to clarify what the very definition of rabbinic and Torah-level law is, and what is included in each category.

Maimonides’ approach: “Do not turn aside” as the source of overall validity and the authority of the religious court

In the first principle in his Book of Commandments, Maimonides states that rabbinic commandments should not be counted among the 613, because the midrash in Makkot says that 613 commandments were given to Moses at Sinai, and rabbinic commandments were not given at Sinai. Maimonides explains that he needs to clarify this because the Ba’al Halakhot Gedolot counted the Hanukkah candle, the reading of the Megillah, and other laws within the number of the commandments, apparently on the basis of the blessing, “who sanctified us with His commandments and commanded us,” which makes it sound as if this were a Torah-level command. Maimonides points to the Talmudic passage in Sabbath 23, where the question is asked, “Where did He command us?” regarding the Hanukkah candle, and the answer given is, “From ‘do not turn aside.’” He accepts that the source of the validity of rabbinic enactments is “do not turn aside,” but argues that this is not a reason to count them among the 613, and that if it were, one would have to count all rabbinic laws and not just some of them.

In his introduction to the Laws of Rebels, Maimonides presents a sharp formulation: the Great Court is the essence of the Oral Torah and the pillars of instruction, and the positive commandment to obey them is learned from “According to the Torah that they instruct you,” while the prohibition comes from “Do not turn aside.” Maimonides explains that one who does not act in accordance with their ruling violates a prohibition, and he even sharpens the point by saying that, in principle, one might have expected lashes for rabbinic transgressions, since they are included in “do not turn aside,” except that lashes are not given because this is a prohibition stated as the warning for an offense punishable by death at the hands of the religious court, since the rebellious elder is punished by strangulation.

Maimonides expands the scope of this obligation to three areas: traditions received from one person to another, laws derived through the hermeneutical principles by which the Torah is interpreted, “according to their own understanding,” and decrees, enactments, and customs instituted as a safeguard or in response to the needs of the time. Maimonides attaches to all three areas the obligation to obey and the prohibition against violating them. The surprising point is that the framework of “do not turn aside” includes not only decrees but also derivations and even a law given to Moses at Sinai. It is argued that elsewhere Maimonides explicitly formulates that a law given to Moses at Sinai is “the words of the scribes,” and that even a law derived through exegesis is “the words of the scribes.” His position is described as that of an “imperialist of rabbinic law,” bringing under the heading of rabbinic law types of laws that many of the medieval authorities (Rishonim) regard as Torah-level.

The counting of the commandments versus halakhic validity, and the implications of the distinction

It is clarified that not being counted among the commandments is not proof that something is not Torah-level, because the rules of counting include many technical principles. The example is given of less than the minimum prohibited measure, which is ruled to be Torah-level but is not counted as a commandment. It is emphasized that the first two principles in Maimonides are distinctive in that they deal with non-inclusion in the count because the validity is not Torah-level, and within that framework Maimonides classifies broad areas as rabbinic, in contrast to other approaches. At the same time, it is argued that Maimonides stresses that the source of the obligation to obey the sages’ rulings is “do not turn aside,” and that in principle there would have been grounds for lashes were it not for the rule of “a prohibition stated as the warning for an offense punishable by death at the hands of the religious court.”

Nachmanides’ approach: criticism of the implications of “do not turn aside” and defining the limits of rabbinic law

Nachmanides attacks Maimonides in the first and second principles mainly over the claim that rabbinic laws derive from “do not turn aside,” because if so, they come out Torah-level with respect to stringencies such as treating a Torah-level doubt strictly. Nachmanides points out that if violating enactments and decrees is really just violating “do not turn aside,” then a doubt in rabbinic law should not be treated leniently, and the practical distinctions between rabbinic and Torah-level law should disappear, together with other implications of the division. The claim presented is that Maimonides does call these things “rabbinic,” but in terms of halakhic validity he empties the category of content, because everything becomes Torah-level.

On the other side, it is argued that Nachmanides’ own approach also gets tangled: if he does not attribute the validity of rabbinic law to “do not turn aside,” then it is hard to understand where the obligation to obey the sages comes from at all, and what distinguishes a binding enactment from an arbitrary decision by a private person. It is said that in his glosses to the first principle, Nachmanides is unwilling to say that one violates “do not turn aside” for every rabbinic law, and this leaves a puzzle regarding the source of binding authority.

The fundamental tangle: the rabbinic/Torah-level distinction as an internal contradiction

The text presents the tension as a theoretical problem: if there is an anchor in the Torah for the obligation to obey the sages, then Nachmanides’ objection arises, because that would turn rabbinic law into Torah-level law and erase the distinction; and if there is no such anchor, then Maimonides’ objection—or the objection from the other side—arises, namely that there is no basis for the obligation to obey. The words of Rabbi Elchanan Wasserman in Kuntres Divrei Soferim are cited to sharpen the point that according to Nachmanides the source cannot be a verse, an exegesis, or a logical argument, because all of those generate Torah-level law. The possibility is raised that the obligation is “the will of the Torah,” together with the difficulty of explaining how such a will does not fall into the same basic problem.

Technical resolutions and the discussion of leniency in cases of rabbinic doubt

A resolution offered by later authorities (Acharonim) for Maimonides is brought: “they said it and they said it,” according to which the sages who received authority to prohibit can also determine the boundaries of the prohibition, so that its doubtful cases are treated leniently, since they also could have chosen not to prohibit at all. A criticism is brought in the name of Shemaita regarding applying this to legal doubt, where the dispute itself is not really a “doubt” from the standpoint of the parties, and it is suggested that one could still argue that the sages can establish a sweeping meta-halakhic rule to decide leniently even in disputes. The question is also raised of the scope of the authority of “do not turn aside” as it relates to the Sanhedrin as opposed to sages in every generation. The position of Sefer HaChinukh is mentioned, which extends the obligation to later generations even without a Sanhedrin, alongside distinctions in Maimonides’ Laws of Rebels concerning changing Torah-level and rabbinic laws and the requirement of being “greater in wisdom and in number.”

Expanding the problem to legal theory and the grounding of normative obligation

The text broadens the discussion beyond Jewish law and argues that there is an essential difficulty in grounding any normative system: if the basis is found within the system, a logical loop is created, and if the basis is outside the system, an endless chain of “who says?” is created. Examples are given of a blind person who is exempt from the commandments yet is discussed as rabbinically obligated, and of a minor’s obligation in education, where the question of the starting point of obligation becomes sharper. A debate is presented against the attempt to base obligation on facts alone, such as the revelation at Sinai, or on punishment, with the argument that a fact or a sanction does not by itself create a normative obligation. In the name of Sefer HaChinukh, the need for a warning in addition to punishment is cited, so that the punishment not be interpreted as a merely mechanical reaction.

Critique of a “cynical” explanation and the distinction between “why people do it” and “why one ought to do it”

A cynical suggestion is raised, according to which the authority of the sages comes from social power and charisma, with scriptural justifications produced after the fact. This is rejected as insufficient, because at most it explains why people actually obeyed, not why there is an obligation to obey. An analogy is offered to evolutionary claims about morality, which explain a human tendency but do not create moral obligation. The claim is that if the explanation is only sociological-historical, then it has no power to generate obligation for someone who does not internalize it today.

Directions for continuation: the positive commandment to heed the sages and the question of doubt regarding positive commandments

A possibility is suggested for reconciling Nachmanides through a distinction between “do not turn aside” and “According to the Torah that they instruct you” as a positive commandment, but it is argued that this too gets complicated, because treating Torah-level doubt strictly also applies, in most understandings, to positive commandments. A discussion among later authorities is mentioned regarding doubt in a positive commandment, such as tekhelet, and the claim that where stringency does not lead to certainty of fulfillment, the same obligation of stringency does not apply, alongside examples such as doubt about eating matzah. Finally, it is said that the next lecture will continue presenting directions for explaining the authority of rabbinic law according to Nachmanides, show why they are unconvincing, and then move to Maimonides and show that there too one returns to the same methodological problem.

Today we’re going to begin the new series on rabbinic law and Torah-level law. The truth is that there are a few sources and scholarly works that argue that this very distinction between rabbinic law and Torah-level law is actually a late distinction. Meaning, in the earlier layers of the Talmud the distinction is blurred, and it becomes sharper over the course of history. I’m not completely sure I was convinced by what I read there, but it definitely is true—that is, it’s true that the distinction is blurred. The question is whether that maps exactly onto those layers; I don’t know, maybe. In any case, a lot of the things we know today are like that. Meaning, a great many of the distinctions, categories, or forms of thinking that we’re very used to in Jewish law are definitely the product of development over the years, and in earlier stages they weren’t like that, and it developed gradually. As far as I’m concerned, I’m not planning to deal with this from a historical perspective or with the chain of development of this matter of rabbinic law and Torah-level law, but rather with the conception as it ultimately took shape. Not because the developmental claim is false—it may very well be true—but because from my point of view it isn’t important. I’m discussing Jewish law as we know it, as it came down to us, and historical questions matter less to me—that is, how it developed. There is some contact here with history, but that history is important because it is the history as current Jewish law understands it, not necessarily the result of archaeological digs to see what really happened. Okay, the point of departure—or maybe before that, just an outline. I’ll begin by trying to present the two possibilities for understanding the grounding of rabbinic laws: Maimonides and Nachmanides. Then I’ll try to show that it’s not so simple to understand where those two possibilities come from, to show that the distinction between them isn’t so simple, and that neither of them really holds water all the way through. After that I’ll propose something else, which maybe even Maimonides and Nachmanides would agree to, and then move on to the question: what is rabbinic law and Torah-level law? What is it really? It’s not so simple what it is, and how far it extends, what is included in it, what kinds of laws fall under those categories. Good. The point of departure: Maimonides in several places writes, paints, a very coherent and logical and compelling picture regarding the source of Torah-level laws. And in the first root—yes, Maimonides has fourteen roots, I already mentioned this—fourteen roots that he places as an introduction to the Book of Commandments. And in those roots he describes the principles by which he decides how to count commandments and how not to, what enters the count and how exactly to count the commandments, how one gets to 613. In that context he says: Know that the matter would not have been worthy of being stirred up for explanation—here is the first root, yes?—for after the language of the Talmud says, “Six hundred and thirteen commandments were said to Moses at Sinai,” how could one say of something that is rabbinic that it is included in the count? How could one say that rabbinic commandments are included in the 613 commandments? It can’t be, why? Because the source for the number 613 is the midrash at the end of tractate Makkot: Rabbi Simlai said, “Six hundred and thirteen commandments were given to Moses at Sinai.” And rabbinic laws were not given to Moses at Sinai; they were instituted later. So just on the linguistic level, he says it cannot be that rabbinic laws are part of the 613. But they drew my attention to it—so why am I even dealing with this at all, says Maimonides? It’s obvious, it’s simple, why deal with it? But they drew my attention to it because many erred in this matter and counted the Hanukkah lamp and the reading of the Megillah among the positive commandments, and likewise one hundred blessings each day, comforting mourners, visiting the sick, burying the dead, clothing the naked, calculation of the seasons, and the eighteen days on which one completes Hallel. So he’s speaking about the Halakhot Gedolot. The Halakhot Gedolot includes also several—at least several—rabbinic commandments in his count among the 613. Therefore, says Maimonides, even though the principle is a simple principle and there’s no reason to discuss it, I really wouldn’t have bothered devoting one of the roots to it. But since the Halakhot Gedolot erred in this and counted rabbinic commandments, let’s enter into this topic. And then he says: Consider anyone who hears their wording: “were said to Moses at Sinai,” and yet he counts the recitation of Hallel, with which David, peace be upon him, praised God Most High, as something Moses commanded; and he counts the Hanukkah lamp established by the sages in the Second Temple period, and likewise the reading of the Megillah. In short, he attacks the Halakhot Gedolot in all kinds of ways. And what seems to me to have brought them to this—what brought the Halakhot Gedolot to think that the 613 includes rabbinic commandments as well?—is the fact that we bless over these things, “Who sanctified us with His commandments and commanded us” concerning the reading of the Megillah, lighting a lamp, and completing Hallel. So what does “Who sanctified us with His commandments and commanded us” mean? “Commanded us” would seem to mean that these are Torah-level commandments; therefore that is apparently what led the Halakhot Gedolot to count rabbinic commandments within the 613 commandments. And in fact this is a question in the Talmud, as is well known, in the Hanukkah passage, right, in Sabbath 23a. The Talmud asks, “Where did He command us?” And they answered: from “Do not turn aside.” So the Talmud itself notices that when we say in the blessing “and commanded us” concerning the Hanukkah lamp, that basically means it’s Torah-level, but the Talmud also answers: where did He command us? He didn’t command us that when Hanukkah comes you should light candles—Hanukkah wasn’t even dreamed of when the Torah was given. The Talmud says that there He commanded us through “Do not turn aside.” So what’s wrong with that? Then from “Do not turn aside,” and by force of “Do not turn aside,” this would be Torah-level. That already begins to raise the problematic side of Maimonides’ position. Then he goes on attacking him further; in the end he says: And if he counts everything that is rabbinic among the 613 commandments because it comes under what He, may He be exalted, said—“Do not turn aside”—why did they count these in particular and not count the others? Then why didn’t he put all rabbinic laws into the 613 commandments? Why did he choose only a few isolated ones? Notice that Maimonides does not dispute the basic claim that the source of the binding force of rabbinic commandments is “Do not turn aside”; he agrees with that. He only says that this is not a reason to count them in the list of commandments. And so on—he continues discussing the words of the Halakhot Gedolot. He says even more explicit things in the introduction to the laws of rebels, at the beginning of chapter 1, and there he writes unequivocal things: The Great Court in Jerusalem are the essence of the Oral Torah, and they are the pillars of instruction, and from them law and judgment go out to all Israel, and upon them the Torah relied. “The Torah relied” meaning the Torah stands securely upon them, yes? Meaning, through them the Torah is upheld. As it says: “According to the Torah that they shall instruct you, and according to the judgment that they shall tell you, you shall do”—this is a positive commandment. And everyone who believes in Moses our teacher and in his Torah is obligated to base the religious act upon them and rely on them. Anyone who does not act in accordance with their instruction violates a prohibition, as it says: “Do not turn aside from any matter that they tell you.” And one is not flogged for this because it was given as a warning for a capital punishment imposed by the religious court, for any sage who rules against their words is executed by strangulation, as it says: “And the man who acts intentionally so as not to listen…” Meaning, says Maimonides, all the obligation to obey all rabbinic laws comes from “Do not turn aside.” So why aren’t they flogged? After all, it’s Torah-level; it’s a Torah-level prohibition. So why is someone who eats poultry with milk, for example—which is a rabbinic prohibition—not flogged? After all, he violated “Do not turn aside.” Maimonides says: true, in principle he should have been flogged, except that this is a prohibition detached to a capital warning, or given as a warning for a capital punishment—there are variant texts. What does that mean? There are certain situations where the punishment for violating “Do not turn aside” is death, and the rule among the sages is that if there is a prohibition that can also lead to a capital punishment imposed by the religious court, then even when there is no capital punishment one is not flogged. Capital punishment is a kind of exclusive category—meaning, if a capital punishment is stated with regard to a given prohibition, flogging is excluded. So it’s only death where applicable, and where not, then not. Someone said to him that this is a general prohibition. What? A kind of general prohibition. Because it’s not a general prohibition. No. A general prohibition is like “Do not eat over the blood.” He deals with that in the ninth root, and that is basically a prohibition from which several different things are derived, but this prohibition here is one thing: to listen to the voice of the sages. What the sages—let me perhaps give an example, and I’m getting a little ahead of myself—why is a vow not a general prohibition, “He shall not profane his word”? You don’t… What if I say, “I won’t pray from this prayer book,” then it’s forbidden to pray from this prayer book; “I won’t speak on this phone,” then it’s forbidden to speak on this phone. Is that a general prohibition? No. It’s one prohibition doing one thing: what you said is forbidden to you. To profane it—you may not profane the speech. Now of course each time it’s whatever you said, or something else. In that sense it’s quite similar to “Do not turn aside.” “Do not turn aside” is one prohibition that gives authority to the sages. Now whatever the sages say, concerning that comes the demand to heed their voice. It’s not several different prohibitions. A general prohibition, paradoxically, is one that comes out of one verse but in essence is several. Meaning, it’s not one prohibition with several applications; rather, it is several different prohibitions that come out of one verse. What a general prohibition is—that’s a discussion in its own right—but it seemingly contradicts all the assumptions we are used to, that each verse is supposed to teach us one thing, and as soon as there is something else it is always a question: after all, from this verse we learned that, so how can you also learn this other thing? A general prohibition is something else altogether. Fine, that’s a discussion in itself. So that is what Maimonides says, and it’s even much stronger because Maimonides here basically says not only that every rabbinic prohibition is really Torah-level, because it comes from “Do not turn aside,” but in principle one should also be flogged for it. Were it not for the rule that says one is not flogged for a prohibition given as a warning for capital punishment by the religious court—but on the level of principle, it is an ordinary prohibition and one should be flogged for it. So this is really Torah-level, and it is a very sweeping and powerful statement. And now he goes on to explain the scope of laws this refers to. Maimonides says: Whether matters that they learned through tradition and which are the Oral Torah; whether matters they derived by their own reasoning through one of the hermeneutic principles by which the Torah is interpreted, and it appeared to them that the law in this matter is such; or whether matters they made as a fence for the Torah and according to what the time required, and these are decrees, enactments, and customs—in each of these three matters there is a positive commandment to listen to them, and one who violates any one of them violates a prohibition. Thus, he says, “According to the Torah that they shall instruct you”—these are the decrees, enactments, and customs by which they instruct the public in order to strengthen religion and repair the world. “And according to the judgment that they shall tell you, you shall do”—these are matters they derived through legal reasoning by means of one of the hermeneutic principles by which the Torah is interpreted. “From any matter that they tell you”—this is the tradition received person from person. Here there is already something more surprising, which appears in the first and second roots. We’ll return to them later. Maimonides says here that this matter of “Do not turn aside,” which is apparently the definition of rabbinic laws, includes decrees, enactments, and customs—which are the classic rabbinic laws. Beyond that, it includes matters they derived by their own reasoning through the hermeneutic principles by which the Torah is interpreted. The emphasis is on “by their own reasoning”; I’ll come back to that, because the accepted view is that when something is learned from an interpretive derivation, it is Torah-level law, not rabbinic law. And the third thing is matters learned person from person—that is, a law given to Moses at Sinai. And that too is grounded in “Do not turn aside,” and apparently from Maimonides here it looks like this is also rabbinic law. Maimonides does not say these are Torah-level laws but there is “Do not turn aside,” and these are rabbinic laws but there is “Do not turn aside”; for Maimonides it’s all one package. And if you say maybe he means to say: no, this is Torah-level, but still there is “Do not turn aside,” because after all the sages are the ones who interpreted the Torah, so some principle is needed to determine their authority to interpret or derive—Maimonides says this explicitly elsewhere. We don’t need to go into speculation. Maimonides writes, at least in a responsum and elsewhere too, with a few contradictions that maybe we’ll get to, that a law given to Moses at Sinai is also rabbinic law, words of the scribes. And in the second root Maimonides writes that a law that comes from an interpretive derivation is words of the scribes. Meaning, elsewhere he says this explicitly. Here it’s just some summary stated almost in passing, but it’s quite clear from here too that this is basically Maimonides’ conception. Maimonides is basically an imperialist when it comes to rabbinic law. A great many categories of law that other medieval authorities (Rishonim) do not regard as rabbinic laws, Maimonides does regard as rabbinic laws. But as I said, I’ll get to that at the end, to the question of what this category of rabbinic law includes. Here Maimonides has a very special conception. What didn’t I understand? He doesn’t count them among the 613 commandments? Yes, but I’m saying that the fact that he doesn’t count them still doesn’t mean—because there are many Torah-level things he also doesn’t count. He doesn’t count them because of rules of enumeration. Say, if there is a detail included within another commandment, it also isn’t counted, but that detail could still be Torah-level. Because there are rules from among the fourteen roots; only the first two really deal with exclusion because of a problem of halakhic force, that some given thing isn’t counted because it does not have Torah-level force. Only the first two roots. The other twelve deal with principles of enumeration that are technical principles: what is included, what is not included. More or less—there may be one or two exceptions, something else. But there’s a lot there about how to classify things, how to decide which detail establishes a commandment for itself and which enters under the commandments, what doesn’t enter at all even though it is Torah-level. For example, a partial measure: we rule that a partial measure is Torah-level. There is a dispute between Rabbi Yohanan and Resh Lakish if someone eats, I don’t know, a quarter of an olive’s bulk of pork. Okay, so there is a required measure of an olive’s bulk, and “measures, partitions, and interpositions are a law given to Moses at Sinai,” but in practice when someone eats less than an olive’s bulk, that is a dispute between Rabbi Yohanan and Resh Lakish. According to Rabbi Yohanan it is a Torah-level prohibition; according to Resh Lakish it is rabbinic law. So we rule like Rabbi Yohanan. Maimonides… Maimonides rules like Rabbi Yohanan. It is Torah-level law, and he does not count the law of a partial measure. It does not appear in the enumeration of commandments, not because it isn’t Torah-level, but for other reasons, perhaps because it is a detail within the prohibitions that are counted, that in every prohibition one must know that the measure is only for punishment, but less than the measure is also forbidden by Torah law. And there are all sorts of reasons why Torah-level laws were not counted. When Maimonides does not count something, that does not necessarily mean that that thing is not Torah-level. But here, in the first and second roots, these are principles of non-enumeration, meaning things he does not count because of their force, because they are not Torah-level. In that sense these two roots are special, and under that heading he puts in a great many things that other medieval authorities do not put there. Meaning, he calls a great many things rabbinic that for other medieval authorities are clearly Torah-level law. There are things here where he is really a lone opinion on this; nobody joins him. Other things maybe less so. Okay, so as I say, I’ll get to that later—Maimonides’ view in the end we’ll get to and discuss it at length, because he really does have a special view, and it seems to me that in the end it is very coherent and impressive in its understanding, even though many attacked him on this issue. Okay, but let’s return to the point of departure. Maimonides establishes here that rabbinic laws—I don’t care right now what is included in that category, we’ll leave that for later—these are laws that come from “Do not turn aside.” In principle we should also be flogged for them. Notice: for every enactment, decree, every rabbinic law, one who violates it in principle should have been flogged. Only because it is a prohibition given as a warning for capital punishment by the religious court are they not flogged. So Maimonides says very, very clear things. He repeats this in the Book of Commandments too when he counts “Do not turn aside,” and as far as… how does it go there? The positive commandment he writes here, “According to the Torah that they shall instruct you, and according to the judgment that they shall tell you, you shall do”—that is a positive commandment. “Do not turn aside” is a negative commandment. Also in the Book of Commandments, when he counts these commandments, he repeats the same principle. For Maimonides this is a clear doctrine; this is how he understands it. Nachmanides attacks Maimonides on this issue, and he points to many sources in the sages showing that Maimonides is wrong in his definition of what rabbinic law is. But as I said, that will be at the end of the discussion. We’ll get to that at the end. Why is a law given to Moses at Sinai rabbinic? Why is something derived by interpretation rabbinic? But in the first and second roots, Nachmanides attacks Maimonides in the opposite direction. Nachmanides attacks Maimonides for saying that rabbinic laws come from “Do not turn aside,” and seemingly Maimonides here actually broadens the definition of what is Torah-level, not what is rabbinic. Because Maimonides says that from “Do not turn aside” come also decrees, enactments, customs—that is, all kinds of things that in the simple sense we do not regard as rabbinic prohibitions. Maimonides says that in principle one should have been flogged for that. What is rabbinic? Torah-level prohibitions—yes, sorry, rabbinic. Maybe they have authority only for the early rabbis and then afterward there are no rabbis? No, there are rabbis. We’ll get to that. There are rabbis in principle in every generation, in principle. But these rabbis concerning whom there is “Do not turn aside,” according to most positions—regarding the Sefer HaChinukh one can now argue, on the plain sense he doesn’t say this, but the straightforward conception, and in the Torah itself too, “rabbis” means the Sanhedrin. “Do not turn aside” is with respect to the Sanhedrin. And regarding the rebellious elder nobody disputes: the rebellious elder is only against the Sanhedrin. “Do not turn aside” in the sense relevant to the ordinary citizen—there the Sefer HaChinukh wants to argue that it applies to the sages in every generation, but if there is no Sanhedrin today… Theoretically… then it would be rabbinic. Right, yes. We spoke about changes in law in previous times and saw there Maimonides’ words, where Maimonides says that at least in chapter 2 of the laws of rebels—now I read chapter 1—chapter 2 of the laws of rebels, Maimonides says that if they want to change a Torah-level law, then any court in any generation can change it, the Great Court of course, because anyone who disagrees with the Great Court must also himself be the Great Court, but it can be in any generation whatsoever. And in rabbinic laws it has to be a court greater in wisdom and number, which is a stronger requirement, but still there is no obstacle to any court in any generation doing exactly what the sages did. If he counts it among the 613, then there’ll be another set of rabbis, then there’ll be another 613. Why? The commandment is to listen to the Sanhedrin of your day. Now every generation has a different Sanhedrin, so it is one commandment. Just as the prohibition today is to eat the pork that exists today, the prohibition in the Second Temple was to eat the pork that existed then. Those are not two prohibitions; it’s the same prohibition: it is forbidden to eat pork. You don’t need to count… By the way, this is root 13 in Maimonides. Root 13 in Maimonides is that commandments are not counted according to the number of moments and days in which we are obligated in them. Meaning, that you don’t count 365 commandments because every day of the year you are obligated in the commandment. In that commandment again. Yes, that’s obvious—so obvious that one wonders why he deals with it there at all. Okay, but yes, Nachmanides attacks Maimonides here in the opposite direction, not over his rabbinic imperialism, but over his Torah-level imperialism. Maimonides inserted into the Torah-level category things that are traditionally perceived as rabbinic laws. Then Nachmanides says: wait, then why aren’t they flogged for it? Maimonides says, fine, because it is a prohibition given as a warning for capital punishment by the religious court. What’s the problem? And Nachmanides says: and why, in a case of doubt, are we lenient? Why is doubt regarding rabbinic law treated leniently? After all, if you’re unsure whether something is poultry with milk, you tell me it’s a doubtful rabbinic matter and we are lenient. Not true—it is a doubtful Torah-level matter. If you eat poultry with milk, you have violated “Do not turn aside”; “Do not turn aside” is a Torah-level prohibition, so in fact this is a Torah-level doubt and we should have been strict. And basically all the distinctions we find in Jewish law between Torah-level prohibitions and rabbinic prohibitions should be erased. Even if I accept, let’s say, that they don’t punish because it is a prohibition given as a warning for capital punishment for a technical reason, fine—but even so, it’s just like Torah-level law. In Torah-level law too, a prohibition given as a warning for capital punishment is not flogged. There is no difference. Essentially, says Nachmanides to Maimonides: you may indeed be an imperialist of rabbinic law, putting a huge amount under the heading “rabbinic,” but you’ve emptied the concept of rabbinic law of content. Because in the end, what you call rabbinic is just words. It’s Torah-level; it’s not rabbinic. One should be flogged for it, doubts should be treated strictly, all the things—human dignity, there are many implications, many differences between rabbinic law and Torah-level law—and according to Maimonides’ definition, everything is really Torah-level. You can call it rabbinic verbally, but in terms of Jewish law, everything is Torah-level. By the way, if you violate something rabbinic, in fact you violated two things—two separate things. So the Minchat Chinukh wants to argue that, but it’s absurd. Why? Because there is the body of the transgression itself, which is rabbinic, and also… Who said there is such a body? Maybe there is only the “Do not turn aside”? There is the rabbinic law, and there is the “Do not turn aside.” What is rabbinic law? Now I’ll establish a new law—now there is my law, except with regard to me there is no “Do not turn aside,” so then you’d violate only one transgression. And I’ll now say: I establish an enactment—starting today, on Fridays it is forbidden to speak on the phone. Now whoever speaks on the phone on Friday—true, there is no “Do not turn aside” for me, I’m not in the Sanhedrin, but at least one transgression he’ll violate. He won’t violate “Do not turn aside”; he’ll violate only the transgression of not speaking on the phone. You can’t separate it that way. Someone who just makes arbitrary determinations—his determination is not law. Only because of “Do not turn aside” is there a prohibition here, not because they established it. These are not two prohibitions. The Minchat Chinukh wants to argue that a prohibition derived by interpretation is more severe than an ordinary Torah-level prohibition, because with a prohibition derived by interpretation you violate both the prohibition and “Do not turn aside.” There is no such thing; that’s nonsense. But Maimonides in chapter 2 distinguishes between enactments and interpretive derivations, right? He does indeed include derivations within Torah-level… Not Torah-level—within words of the scribes of a different type. It is definitely not Torah-level; he says that explicitly. And on this issue of needing to be greater in wisdom and number, he distinguishes between the two types. Here in chapter 1 he puts them all together. The change—just a second—I already explained this when I spoke about changes. I said that there it isn’t at all a question of force. The difference in why for rabbinic laws you require a court greater in wisdom and number, and for Torah-level law not, is not because rabbinic law has lower force, but because of the question of whom you are disputing. But right now in chapter 1 it appears that he places all these types of rabbinic law in one unit. Right, because there what determines it is not at all the division between rabbinic and Torah-level; it’s all… It’s still rabbinic and still can be changed. It’s all rabbinic. Yes. No, Torah-level force. Yes. No, rabbinic force too. Rabbinic force… I’ll speak about that more. I explained it there in connection with change, that I think the difference between rabbinic and Torah-level law in Maimonides regarding change—why one needs a court greater in wisdom and number, or that anything requiring a matter decided by vote requires another vote to permit it and not necessarily one greater in wisdom and number—the difference is not because rabbinic law has lower force, but because of its character; because it has higher force. What? No, I don’t agree it’s because it has higher force. That’s what I just said. I don’t think rabbinic law has higher force than Torah-level law. A court greater in wisdom and number looks as if the force is higher. Yes, yes, but I’m saying that’s not… You’re saying it just can’t be like that at all. Okay. I think the point is—and I’ll get to this in just a moment—the point is that Torah-level laws, in the end, when you dispute the sages or don’t follow them, or when a court comes to change them, then it is disputing the first court. But if it is Torah-level law, the first court did not legislate that law, right? It carved it out of the Torah. That is, it interpreted the Torah. So in the end what you are claiming is that God does not say this; He says that. No problem—you are allowed to interpret. Every generation’s court is authorized to interpret for that generation. You are not really disputing the first court directly. In rabbinic laws you are disputing it; the first court is the source of the law. It established it, and the source of authority for that law is the obligation to obey them. And when you stand against it, you really need to be strong enough to stand against them, because the dispute is with them and not with the claim that God says something else. Why do I obey this? Because of their authority. So if you want to tell me not to obey it, you need greater authority. Here you are only telling me what God wants from me; you are not speaking to them. Therefore I think that in the straightforward sense it really does not depend on the question of force; it depends on the question of what the sages are doing, which I’ll get to in just a moment. So Nachmanides is basically claiming that the laws Maimonides puts under the category of rabbinic law cannot really be there. Such a thing is impossible. Rabbinic laws—enactments, decrees, customs—yes, but not things derived by interpretation or a law given to Moses at Sinai. Those things are Torah-level law and not rabbinic law, and therefore in those cases indeed doubt is treated strictly and everything as it should be. But does he still explain that “Do not turn aside” is rabbinic only? No. If you violate “Do not turn aside,” then the source is “Do not turn aside.” No—you don’t violate “Do not turn aside,” that is explicit. In his critiques on the first root, Nachmanides… No—you don’t violate “Do not turn aside.” Then what is its force? I don’t know; he leaves it open. He doesn’t deal with that, but it really is a puzzle. According to Nachmanides, why must one obey the sages? Yes, because after all it doesn’t come from “Do not turn aside.” And this is exactly where I really want to get to the heart of the problem, which sometimes can be missed. There is a problem with Maimonides’ conception, as Nachmanides himself already pointed out, but there is a no less severe problem—maybe an even more severe one—in Nachmanides’ conception. Because in Nachmanides’ conception, yes, I understand why doubts regarding rabbinic prohibitions are treated leniently, fine—he has preserved beautifully the distinction between Torah-level and rabbinic. But he preserved it so beautifully that then it becomes impossible to understand why one should obey the sages at all. So where does it come from? Why heed their voice? If there is no verse commanding this, then that’s it—I too, as I said, can get up tomorrow morning and announce to you what I forbid and what I permit. Who appointed me? We already talked once about how the sages established that doubt regarding their laws is treated leniently. So that is the answer to the difficulty with Maimonides; now I’m asking what is difficult about Nachmanides. That is the answer to what Nachmanides asks against Maimonides: they said and they said—that is, they said there is a general obligation to obey the sages according to the same force that they themselves defined, and they defined that there are Torah-level laws, and they defined… Nachmanides does not accept that. I say this—I’ll also say it with regard to Maimonides—so what does he want from Maimonides? Maimonides says that too. If you can make do with that, then what’s the problem? Nachmanides is not willing to understand such a thing—that there can be a general obligation and yet in the details doubt is treated leniently. Because what we said regarding Maimonides is that he included them all together, also derivations we accept and laws given to Moses at Sinai that we accept as Torah-level—he included them together with enactments in the basic rabbinic commandments. No, but Nachmanides asked another question. That is a question about what is included in the definition of rabbinic law—what is included and what isn’t. I’m asking a question about the very principle. Nachmanides asks an additional question: not only why did you include a law given to Moses at Sinai and interpretive derivations. Nachmanides asks: how can it be that this comes from “Do not turn aside”? After all, a Torah-level doubt is treated strictly. Even for decrees and enactments, which are indeed included in rabbinic law, even there it does not come from “Do not turn aside,” says Nachmanides. Why? Because there too it would be different; doubt should have been treated strictly. Fine, so the sages determined that doubts are lenient. Then you’ve answered Maimonides—I’ve arrived at the answer for Maimonides. No—if Nachmanides agreed to accept that, then what is his objection to Maimonides? What does he want from Maimonides? That’s what Maimonides says: it comes from “Do not turn aside,” and the sages are the ones who said that in a case of doubt we are lenient. Many later authorities say this as an answer, but Nachmanides himself certainly does not accept it, because if it were true, then what difficulty would there be in Maimonides? Well, then what does Nachmanides himself say? Maybe it doesn’t come from top down, meaning the obligation is… Okay, we’ll get to the different ways of explaining the force of rabbinic laws according to Nachmanides. First I just want to place the difficulty on the table. There is a difficulty here: if I look at this through the lenses of Maimonides and Nachmanides, there is in effect an a priori difficulty that cannot be solved. This difficulty cannot be solved a priori. Why? If we find a source in the Torah—I don’t care from which verse, by what derivation, whatever you want—if we find a source in the Torah, then Nachmanides’ question arises: after all, its doubt should be treated leniently, and the whole distinction between Torah-level and rabbinic… and all doubt should be treated strictly, yes—and the whole distinction between Torah-level and rabbinic should really be erased. And if we do not find a source, then why obey them? So there is something here that just doesn’t work. Now Rabbi Elchanan Wasserman in his booklet Words of the Scribes sharpens this further. He says: suppose the source were not “Do not turn aside” at all—another verse, not another verse, logic, whatever you want. It changes nothing. According to Nachmanides, there cannot be a source for the obligation to obey the sages in principle—it cannot be. Because the moment there is a source, his own objection will apply to him; it will become Torah-level. What could the source be? Let’s count. Either it comes from another verse in the Torah, not from “Do not turn aside,” for some reason. It doesn’t matter, right? Still, doubts should be treated strictly; all the objections remain exactly as they were. I don’t care from which verse it comes. Will you say derivation? According to Nachmanides, derivation is also Torah-level. According to Maimonides it is rabbinic, so that doesn’t solve the problem. Either way, derivation won’t help. Will you say logic? Logic is also Torah-level. “Why do I need a verse? Logic!”—that’s what Rabbi Elchanan says. So if that’s the case, then logic can’t be it either. So it’s not logic, not a verse from some source, not derivation, not anything. Then according to Nachmanides, why should one obey the sages? He says that this is the will of the Torah. Yes, so that is the answer he gives, and the big question is why that does not fall under the difficulties he himself raises. We’ll get to that too. Fine? But I’m saying that before approaching this topic by clarifying what is written in the Talmud and how Maimonides understands it and how Nachmanides understands it and how each one deals with the difficulties, first one has to understand the theoretical tangle we’re in here. After all, Maimonides and Nachmanides were grappling here with a problem in the theory of halakhic law. In the theory of halakhic law there is such a category called rabbinic law—nobody disputes that. You can dispute what is included in it, but there is a distinction between Torah-level and rabbinic. The question is how such a thing can be. This distinction itself is a contradiction in terms. That is the problem. So if Maimonides adopts one route out, and Nachmanides adopts another route out, neither of them works. Because if I adopt Maimonides’ route, that it comes from “Do not turn aside,” then everything should be Torah-level, so we have erased the distinction between Torah-level and rabbinic. If I adopt Nachmanides’ route, then there is a splendid distinction—but it is so splendid that I don’t understand what it is at all. It’s adding commandments—that is, more commandments that obligate us beyond the commandments written in the Torah, without a source. So why should I obey all this? By the way, very often—and this is a very interesting point—I once heard this from Rabbi Lumentzweig in Yeruham, and it’s a real point—he said that the Hazon Ish has astonishing leniencies in the laws of the Sabbatical year. The Hazon Ish was a major strict authority against the whole matter of the sale permit and so on, and yet he has astonishing leniencies. Why? Because the moment you intensify the prohibition so strongly, you have to empty it of content, otherwise life becomes impossible. Meaning, you have to find solutions to resolve the problem even though it is Torah-level, or even though the sale permit cannot work. You have to allow people to function; otherwise they can’t function. Very often—and this is a general phenomenon—very often someone who is extremely stringent in a certain area ultimately empties it of content to a large extent. That is, you’re very stringent—but over what? Over nothing. In the end there is nothing left to be stringent about. Maimonides basically includes everything under the heading of rabbinic law, but in effect somewhat empties the category of rabbinic law. He greatly expands the category of what is included in rabbinic law and empties of content what rabbinic law is. It basically turns it into Torah-level law. Why? Because the difficulty here is: okay, otherwise why obey? Here there is some kind of tradeoff between these two things, and Maimonides and Nachmanides each chose one path in order to solve the problem. But as I said before, one has to look at this not as “what’s the difficulty in Nachmanides” and “what’s the difficulty in Maimonides.” There is an unsolvable problem here. Because a priori you cannot go in Maimonides’ channel and you cannot go in Nachmanides’ channel, so what do you do? How is there such a category of rabbinic law over against the category of Torah-level law? How can there be such a thing? That is really the big question here. The big question here comes out of Maimonides and Nachmanides together. It is not an objection of this one to that one or that one to this one. Okay, that is basically the great difficulty. Now, technical answers on behalf of Maimonides have already been mentioned here. Some later authorities said that—these are disputes—why, for example, doubtful rabbinic law is lenient. According to Maimonides, after all, this is “Do not turn aside,” so it is a Torah-level prohibition. So yes, they said and they said. Meaning, since the rabbis could determine that this thing is forbidden or not forbidden—they have authority by force of “Do not turn aside”—then they can also determine that in case of doubt it will be lenient. After all, they could have refrained from forbidding it entirely. True, once they forbade it, it is Torah-level, but since they could have refrained from forbidding it altogether, then certainly they can, when they do forbid it, forbid it without its doubtful cases. Meaning, with regard to the doubt, okay, not such a big deal. The Shev Shema‘ta tries to explain why Nachmanides did not accept this. For Nachmanides this is difficult—why did he not accept it? He saw this as a problematic position. He says: what will happen, for example, with a legal doubt—when there is a dispute, I don’t know, among medieval authorities, Amoraim, whatever, a dispute between two halakhic views; not a doubt in reality but a doubt created by disagreement between two legal views. In that case there is a problem, because there is one position that says there is a rabbinic prohibition and another position that says there is no rabbinic prohibition. Seemingly, doubtful rabbinic law should be lenient. He says: wait, but those who say there is a rabbinic prohibition themselves certainly do not agree that in a case of doubt one should be lenient, because there is no doubt in their eyes—they think there is a prohibition. Others think there is no prohibition. You may be in doubt; we are not in doubt. We say this is definitely a rabbinic prohibition. So why? We didn’t tell you that. Neither side here tells you that if you are in doubt, go leniently. One of them tells you to be strict even without doubts, and the other says there is no prohibition at all, do whatever you want. But neither one says that if it is this type of doubt you should be lenient. That is what the Shev Shema‘ta claims. I don’t think that is a necessary claim. It is obvious that the sages can determine, just as the Torah gave them some authority to legislate or determine prohibitions, so the sages can establish generally, as a broad rule, that when you are in doubt—even a doubt stemming from a disagreement between two sages—you may go leniently, follow the more lenient sage, and establish that as a kind of meta-halakhic rule. Okay, so that is basically the problem. Are there laws with no source in the Torah? What? Are there laws with no source in the Torah? For example, today there is a prohibition against marrying two women. Fine, because it isn’t a Torah-level prohibition, what do you mean? So that’s rabbinic? Right—not a rabbinic prohibition, but a ban, the ban of Rabbenu Gershom. But there is no connection to the Torah, no connection to Torah-level law? Why not? A verse. Maimonides says that the verse “Do not turn aside from all that they shall instruct you” regarding the sages is what gives the sages the ability to establish things that do not appear in the Torah. Hanukkah too has no source in the Torah. You don’t need to get to the ban of Rabbenu Gershom. Hanukkah or the reading of the Megillah. Of course the Torah doesn’t say you must light the Hanukkah lamp. But the sages, because they have the verse “Do not turn aside from all that they shall instruct you,” that verse says the sages can establish enactments, and when they establish them, it is binding. That is according to Maimonides. Nachmanides does not accept that. Okay? So this basically leads us to the problem of normative grounding. When there is a normative system, and we ask ourselves why it is binding—now I’m speaking generally. There is an inherent problem in grounding normative systems at all, even Torah-level law by the way, not just rabbinic law. Why? Because either way. This is something I think I discussed once. Either way: let’s say, why obey the law? Okay? A question that amuses a great many legal theorists—they deal with it, write all kinds of proposals, this proposal or that one. Why should one obey the law? What is the basic problem in this matter? If the basis is inside the law, then obviously there cannot be a law that says one must obey the law, because who says one must obey that law itself? An infinite regress is required, yes—that’s one direction. So what will you say? That the basis is outside the normative system under discussion. Who says one should listen to that? Go one step back again—where will you stop? You cannot ground a normative system. Somehow one must always start from some point of departure that itself cannot be justified or grounded. That’s the problem. For example, later authorities ask: what happens, say, if a blind person is exempt from the commandments? Elchanan Wasserman, I think, in his Collected Lessons. A blind person is exempt from the commandments, but on the rabbinic level there are those who say he is obligated. In the book of prohibitions there are all kinds of disputes about this, but let’s say according to those views that he is obligated in some commandments, the question is how this starts. If he is exempt from the commandments, what does it mean that the sages obligated him? What does it mean that I’m obligated if I don’t want to do it? What does “obligated” mean? I’m not obligated in anything. What obligates me? That the sages established it. And why does what the sages established obligate me? Because it says “Do not turn aside.” But “Do not turn aside” I’m not obligated to obey—the Torah-level law I’m not obligated to obey, right? What will you say? I’m obligated on the rabbinic level to obey “Do not turn aside”? Well, then why am I obligated to obey that rabbinic law itself? There’s no way to get started. Or minors. There is a dispute between Rashi and Tosafot regarding a minor. Is the minor himself obligated in rabbinic commandments—that is the definition of the commandment of education—or is the adult, the parent, obligated rabbinically to educate him? That’s a dispute. A practical implication is whether he can discharge another person’s obligation if that person is only rabbinically obligated, and so on. Well-known things. So there is a dispute between Rashi and Tosafot on this issue. And once again the question arises: what does it mean that the minor is obligated in rabbinic commandments? By virtue of what? By virtue of “Do not turn aside”? But “Do not turn aside” is in the Torah, and according to the Torah he is not obligated. Ah, so “Do not turn aside” itself is rabbinic—the rabbis obligated him rabbinically in “Do not turn aside.” Meaning—you understand that this is basically the question of whether the basis is outside, “Do not turn aside” being Torah-level and coming to ground the obligation of rabbinic law, or whether the basis is inside, that rabbinically there is “Do not turn aside” also for this. But why should I obey that rabbinic law itself? That is an internal grounding. You want, within the framework of rabbinic law, to ground the obligation to obey rabbinic law. In very many places we run into this tangle. It is a tangle inherent in the question of normative obligation. How can one obligate normative obligation, ground normative obligation? If it is grounded from outside, then an infinite regress is needed—who says one must obey that? If it is grounded from inside, then it is a logical loop; it cannot work. So how are normative systems grounded? There is something problematic here. Okay? Now I’ve widened the difficulty even further. This isn’t a specific problem regarding rabbinic law in Jewish law, Maimonides—it’s a general question. We have a normative system; how can it be grounded at all? Not what is the basis. I’m not asking why obey the law. I’m asking how one answers this kind of question—why obey the law? I’m asking the question on the methodological level, not why obey the law, but how does one answer a question of this type at all? Maybe one cannot answer it? Maybe these are questions that inherently do not admit of an answer? That is the real question in the background here. This is not the question of one Talmudic passage against another Talmudic passage. We are facing a tangle that has no solution. And not for nothing did Maimonides choose one route and naturally difficulties arise from there, while Nachmanides chose the other route and difficulties arise from there—for this is a short blanket. It cannot cover both the head and the feet. If you want to cover the head, the feet will be exposed; cover the feet and the head will be exposed. You can’t cover both the head and the feet. The blanket is too short. This seems less difficult, I think, with the Torah, if you accept Torah from Sinai, because… like, why do you obey gravity, yes? Or something like that, yes? What? The acquisition by pulling? What “law of pulling”? No, no, some force… Yes, gravity. I don’t… like I… it’s just so, it’s a fact. It’s just so, it’s a fact. Yes, so if you accept there is Torah from Sinai, then it’s just so, it’s not obligating—it’s simply reality. I don’t agree at all. You are erasing the distinction between the factual and the normative. The fact that there was a revelation at Sinai—I can accept. If it’s a fact, it’s a fact. And now what? There was a revelation at Sinai, so what? I don’t want to do it. This is a normative obligation. Facts won’t help. With gravity, you can also refuse to accept the laws of gravity—you’ll just crash if you fall from the top of a tower. That’s the fact. But here I’m demanding obligation from a person. You must do what was said at Sinai. The question is why. I agree—it was said at Sinai; I reached the factual conclusion that there was a revelation at Sinai, everything was said there, and so on. Still—why should I obey? I too can now declare a revelation at Ra’anana. I announce to you: it is forbidden to talk on the phone on Fridays. I… I have an obsession about phones on Fridays—it is forbidden to talk on the phone on Fridays. There you go, now there has been a revelation at Ra’anana. From now on it’s forbidden to talk? I said so. So it was said. So I said it. But the fact that someone said something does not obligate me. I need an explanation why what he said obligates me, and even if I accept factually that he said it, why does it obligate me? That is the problem of normative grounding. Of who said it? No—even if God said it. No—the source of whoever… God Himself said it. Well, so it was said. So He said it. So what? I said something too. He said and He said, or they said and they said. It’s like gravity: if you fall you’ll break. That’s something else. You’re asking… He told you, He revealed a fact to me. He revealed a fact to me, that if you don’t do it they’ll fry you in Gehenna. Fine, then let them fry me in Gehenna—do you have a claim against me? I have no problem with being fried in Gehenna. The claim is that I’m obligated to do it. The frying in Gehenna is because I’m obligated and I’m not fulfilling my obligation. This isn’t something done without justification. And I’m asking why. What is the basis for that? By the way, the Sefer HaChinukh in commandment… I think commandment 69. The Sefer HaChinukh writes there: why do the sages everywhere say, “We found the punishment; from where do we know the warning?” Why do we need a warning? If it says a punishment, “One who strikes his father or mother shall surely be put to death,” then everyone asks: and where is the warning? Which prohibition did he violate? Which prohibition did he violate? After all, it says he shall surely be put to death—don’t you understand from that that there is a prohibition? He says no. Besides there being a punishment for you, there also has to be a verse saying it is forbidden. Because otherwise you would think—this is how he explains there—that the punishment is some kind of mechanical conditioning, like gravity. Meaning, someone who strikes his father or mother automatically triggers the reaction “shall surely be put to death,” but there’s no problem, he did nothing wrong, he’s entitled—if he wants to die, health to him, let him strike his father and mother and die. Okay? God has no issue with it. Therefore, says the Sefer HaChinukh, that cannot be; such a conception is incorrect, and therefore everywhere there is a punishment there also must be a verse saying it is forbidden. Not that maybe I couldn’t punish even without that, but I would not correctly understand the meaning of the punishment; the punishment would not be justified. That is what I’m saying here too. Suppose they would put me in Gehenna for every transgression—I have no problem with being put in Gehenna—but the question is, you are demanding of me: did I do something wrong from your point of view? Why? You said so—fine. Why should I listen to what you said? Lots of people or lots of entities tell me things. So what? Moses received two Torahs, the Written Torah and the Oral Torah. What is the definition of the Oral Torah? Is it Rashi, method, phylacteries—or also Hanukkah or Purim? I’ll get to the definition of what the Oral Torah is later. Because the distinction between Torah-level and rabbinic law is one division, and Written Torah and Oral Torah is another division. What is the relationship between those two divisions? That is really the heart of the issue. And I’ll get to it later. Not today, but later. Can one say something cynical? Always. That in practice the rabbis were the powerful people in society; they stumbled onto some formula for interpreting things, for controlling people—how not stumbled onto, invented—with charisma and all that, and then they looked for some justification within the verses. It’s like the explanation for why one should be moral because evolution created in us some altruistic capacity, and it has more survival value to be moral, because a group that cares for one another will survive better. The failure here is the same failure as there. Both are failed claims. Why? Because you can explain to me why I have a moral tendency that way. You cannot explain to me why I am obligated to behave in accordance with morality. You can explain why there exists within me a moral tendency, because evolution created it. Now suppose there is someone who has no such moral tendency. Do you have a problem with him? Do you accuse him of something? Is he not okay in some sense? Of course not. He’s an evolutionary mutation. In him that thing doesn’t exist. No problem. Nor am I obligated to do it; I just do it. Likewise with rabbinic law: if you explain it in that cynical way, I can accept it. But then it only explains why the Jewish people observed rabbinic law. It does not explain why I too should do it. So I don’t want to do it. In my eyes rabbis have no charisma, so I don’t do it. That was the social order. No problem, but is it also the social order today? Does that obligate? I’m asking—I have no issue with it; a historical argument could be true. Now I’m asking what it says. Does such a historical argument, even if true, establish an obligation to obey the sages? They internalized it. So here I am—not internalizing it now. I don’t want to obey. Is there something wrong with what I’m doing? Like someone who doesn’t stand for the siren. Yes, maybe. Yes. Is there some law? If you didn’t stand for the siren, you don’t stand for the siren, society will ostracize you. You are explaining to me why society does things. I’m not asking why they do them. That is a question in history, or anthropology, sociology. Why do people do this? I’m asking why one should do it, not why they do it. You are giving me an explanation of why people do it. They do it because he had charisma and he managed to gain status and determined that this is how one should do it, and everyone thought one ought to obey him. Fine, I understand—that’s an interesting historical theory. But I’m asking why one should do it, not why people did. So what you’re really suggesting is that in truth one shouldn’t have done it, they just happened to do it. That is not a basis for the obligation to obey the sages. It’s a historical description of an interesting issue: why, despite the fact that one need not obey the sages, for some reason many people thought that they do obey them. They tried to ground it. If they found sources, then I’m asking what they are. I’m asking what the basis is. So it’s not their charisma. What do you mean they invented it? Okay, so then we’ve dropped the cynical explanation. If they found sources, then they have a real explanation. So I don’t need to get to the point that they had special charisma and therefore people listened to them; rather, they were actually right. There is some real explanation here. So I’m looking for it. And now I tried to show that such an explanation seemingly is not to be found. There cannot be such an explanation. Because if I go in Maimonides’ direction, there will be a difficulty from one side; if I go in Nachmanides’ direction, there will be a difficulty from the other. So we’re back to cynicism, fine—but then there is no obligation to obey the sages. Okay? Just regarding why obey the Torah: because it’s the covenant we accepted upon ourselves, like you said about the siren, how we all observe it. If we had said in advance that whatever You say we will accept, then it’s only the covenant that we need to accept. Good—that’s an interesting question. I don’t remember reading that in the covenant. I’m saying that on the assumption there was a revelation… Yes, there was a revelation. The revelation at Sinai included obligation, including that whoever was there and whoever would act committed himself. What does that have to do with me? Then the question is about the force of Torah-level law too. Exactly, absolutely. All along I’ve been shifting the question from rabbinic law to Torah-level law. That’s why I say the problem is not at all with rabbinic law. The problem is how one grounds normative systems at all. What difference does it make whether it is a secondary system or a primary system? In the secondary, rabbinic system, the question is whether you’ll find an anchor in Torah-level law, one level above it, or within it. Neither is possible, right? But I’m saying: leave that. It applies above as well, to Torah-level law. When you ask me what is the basis for obeying the sages, ask me what is the basis for obeying Torah-level law. If the basis is outside, then again what is the basis for that? And if the basis is inside, then it cannot work because it’s circular. So what do we do? Like the obligation to obey the law, the question why obey the law is a question parallel to Torah-level law, not to rabbinic law. Usually in such a case one goes to another meta-level. Yes, like Torah-level law over against rabbinic law. Then I’ll ask about the meta-level. That’s why I say it won’t help. There is some problem here that is an essential problem. Okay. So this basically brings us to possible solutions. Look, there are several possibilities that have been suggested—I don’t know whether any of them… They don’t persuade me. Most of these possibilities, by the way, were not suggested by others; I suggested them. Really, I don’t know anyone who is convincing? Yes. I tried to raise as many as I could, but it may really be my own fault. Maybe there’s some additional possibility hidden somewhere that I didn’t think of, and therefore I’m not persuaded. Because if I’m the one inventing them, then the pretentiousness collapses; that’s not much of a feat. Do they discuss this paradox? No, that’s the thing. The big problem is that no one, at least no one I know, puts the paradox on the table as such. Meaning: this is a problem with no solution. One has objections to Nachmanides and then resolves Nachmanides. Another has objections to Maimonides. Of course, behind all these things there sits an attempt to answer the paradox, but I think people didn’t notice enough that there is some built-in difficulty here. You need to understand that before you even begin looking for solutions. There is some built-in difficulty here, and you need to understand it: a solution won’t be found. A priori no solution can be found. It was something self-evident. Yes. No, I understand. So once, an explanation in the sense of “okay, it was self-evident”—but it isn’t self-evident. Fine, in the end “logic is Torah-level,” we once talked about that, right? With “why do I need a verse? Logic”? Right, with “why do I need a verse? Logic?” with Maimonides in the laws of idolatry there. On Maimonides’ words—we talked about that once regarding acceptance of a prohibition. Yes, yes, right. Maybe we’ll come back to it. Fine, in any case, if you don’t remember, that’s okay; we can return to it. I always discover—I’m constantly worried maybe I already said something—and I discover it’s fine, people don’t remember, so that’s how it is. Fine. So I’ll try not to repeat things entirely, but to make use of things I already said. Is this in the context of logic? Of Shas in the context of logic, of “an appraisal of his collateral” and so on and so on? Right, “an appraisal of his collateral” asks similar questions about legal theory. Yes. Okay, so here there is basically some difficulty, and now you’ll see that it is very, very hard to get out of it. Meaning, there is a first proposal—I’m now speaking in the direction of Nachmanides. Let’s look at this through the lenses of later authorities. Through the lenses of later authorities there is a difficulty against Nachmanides and one must resolve it. Through the philosophical lenses I tried to present here, there is no difficulty against Nachmanides—there is a difficulty against the Torah. What do we do? Meaning, in what direction can one even go? I asked the question about how one answers this type of question at all; I did not ask what the answer to this question is. That is really the true question. But as you know, the way of later authorities is not to ask questions like that. They try to resolve objections against Nachmanides or against Maimonides, but I think that here what is somewhat missing is exactly that meta-halakhic point of view which would very quickly show that these solutions do not really answer the problem. Fine, so there are of course those who want to say that there is a positive commandment to obey the sages. There is no “Do not turn aside,” but there is a positive commandment. After all, there are two things: there is “Do not turn aside” and there is “According to all that they shall instruct you, you shall do,” yes. So there is a positive commandment and a negative commandment; both are counted by Maimonides, of course. Then a possible solution is that maybe Nachmanides accepts the positive commandment; he just doesn’t agree to the negative commandment. Fine? Now that solution is problematic, because in the end, at least according to the accepted view, also with a positive commandment a Torah-level doubt is treated strictly. Although there is a bit of discussion about this. The Avnei Nezer in his book discusses this question: what happens in the case of a doubtful positive commandment? For example, with tekhelet. If I have something that is doubtful tekhelet, do I have to wear it because of doubtful Torah-level law? A Torah-level doubt is treated strictly, and the commandment of tekhelet is a Torah-level commandment. So there is an argument there, which he rejects, but he tries to say: Rabbi Akiva Eiger and other later authorities want to argue that with positive commandments there is no rule of doubt treated strictly. Why? Because if this thing is not tekhelet, then even if I wear that tekhelet, I still have not fulfilled the positive commandment, because it isn’t the tekhelet. The obligation to be strict with Torah-level prohibitions applies where, if I am strict, then it is clear that I have fulfilled my obligation. Clearly there is no issue. Suppose I have a doubt whether this is pork or not pork; I don’t eat it—then there is no problem in any case because I didn’t eat it. But with tekhelet I have a doubt whether this is tekhelet or not. So if I say, let’s wear it to be strict, let’s go by the rule that Torah-level doubt is treated strictly and wear the tekhelet—but even if you wear the tekhelet, if this is not the correct tekhelet, you still have not fulfilled the positive commandment. Where being strict in the case of doubt does not bring you to a clean result, to a state where there is clearly no problem, there is no obligation to be strict. There may still be a problem anyway, so why should there be an obligation to be strict? You still gain something from it. Of course. Meaning, there is some gain regardless—it moves you from definitely not fulfilling to possibly fulfilling. And the obligation to be strict is where you move from “possibly not fulfilling” to “definitely fulfilling.” That is the obligation to be strict. But there is no obligation to be strict in order to move from “definitely not fulfilling” to “maybe I’ll fulfill.” Okay? There are such arguments; I think they’re difficult arguments. Most decisors certainly do not… In the case of doubt whether you ate matzah—if you are unsure whether you ate matzah, are you obligated to eat matzah? That’s the question. It is not obvious that you are obligated to eat. But you’re talking here—here it’s even more so. That too is not simple, but according to Rabbi Akiva Eiger’s argument, you are obligated to eat. Why? Because here it’s a doubt regarding a positive commandment such that if you eat again, you definitely will have fulfilled it. That is not the same as the doubt regarding tekhelet. Okay? After all, if you have a doubt whether it is tekhelet or not, that’s a different kind of doubt, because even if you wear it, it is still not certain that you fulfilled your obligation. Right. Exactly—in the Pri Megadim, right, but in the Pri Megadim he wants it to be doubtful… the parallel here would be a shade of matzah: you have something where there is doubt whether it is matzah or not. Yes. To eat it or not? That is the parallel. To the basic matter of a Torah-level doubt being treated strictly. What you’re saying is that in such a case you are not obligated to eat. Because of the emphasis you just gave—right—then what you’re really saying is that this is not a difference between positive commandments and prohibitions, but a difference between two types of commandments; it can appear in prohibitions or in positive commandments. Right. These are types of doubts. Meaning: when you are strict, will that solve the problem, or even if you are strict might it still be unsolved? Here you reach certainty. Yes, exactly. Right, that is Rabbi Akiva Eiger’s view. But there are later authorities who want to argue generally that for all positive commandments there is no rule of doubtful Torah-level law treated strictly—this was said only about prohibitions. Okay? So fine, but I think the accepted conception is that with Torah-level doubt of this kind one must be strict, and according to your definition even according to Rabbi Akiva Eiger. If I have a doubt whether a certain commandment is a rabbinic commandment or not, certainly I should observe it because of doubt. Why? Because if I observe it, then I have clearly discharged it, right? So clearly I’m covered. So in such a case even with a positive commandment there is an obligation to be strict. That narrows even further the later authorities on whom one could build such a conception of a positive commandment. Beyond that, Nachmanides nowhere writes that he has this positive commandment; he attacks Maimonides in general, and it is quite clear that he means both the positive and the negative commandment. If the rabbis tell you that right is left and left is right, “Do not turn aside from all that they instruct you,” what do you do? That is the well-known dispute between the Babylonian Talmud and the Jerusalem Talmud. In the Babylonian Talmud it says: even if they tell you that right is left and left is right. The version in the Jerusalem Talmud—or in Sifrei, I don’t remember—is that it is only if they tell you that right is right and left is left. Personally I’m with the second version, but okay. In any case, Nachmanides on the Torah explains there that no, there is some divine assistance that will not let the sages err. Right, right. He also writes such a thing regarding conspiring witnesses. Though that itself doesn’t really hold water; in several places one sees that he himself did not consistently hold that way. How can there be errors of the sages? After all, there are whole sections dealing with the errors of the sages. What is the body that critiques rabbis? It’s unfortunate that there isn’t one. And what is the body that critiques the body of critique? At the tip of the pyramid there is always some body over which there is no critique. That’s true for us too. Who critiques the High Court? And who critiques the State Comptroller? The State Comptroller, the Knesset—whoever sits at the top of the pyramid, there is no way to critique him. That’s just the reality. And if you put someone else there, then he will be at the top of the pyramid. So where is this confidence if there is no review body? It may be. That’s the problem. Everything came from them. That is a problem. Right, but if they legislated the law and voted on it—right—but on the other hand, that is exactly the question I’m asking. So how can one ground normative obligation? What you are really presenting is another side of the same problem. But that’s true of everything, not just rabbinic law. There is a review body. No, no, understand—it has nothing to do with rabbinic law or Torah-level law or anything. In legal systems too it is like that. In every normative system it is like that. There is a review body. So who put it there? It decided that it is the review body. No, there are all sorts of ways. What do you mean “ways”? There are no ways at all. There too exactly the same problem exists. Who decided that it determines? Who will review it? Who determines that it is right? Who decided that the Knesset is right? Who decided that the court is right? At the top of the pyramid there is always some body that is at the top of the pyramid. That’s just how it is. In Judaism at least there is this idea that it spread throughout all Israel. Yes, so there is something there. And if the sages enact an enactment and it did not spread throughout all Israel, then it is not an enactment. That is only with Hanukkah. The enactments of invitations did not spread throughout all Israel; that is not a condition for the acceptance of an enactment. So there is nevertheless some sort of check and balance here. Fine. In any case, I see that we’re already past time, so I’ll just say in one sentence: next time I’ll continue from this point. I’ll try to show a few more directions that have been suggested to explain why, according to Nachmanides, one must obey the sages. I’ll show why none of them really seems convincing to me. After that we’ll move to Maimonides, and there too we’ll get stuck with the same problem. I’ll try to argue that the problem is a methodological problem.