Biblical and Rabbinic Law – Lesson 2

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[Rabbi Michael Abraham] The question is whether this is similar or not similar—the dispute between Maimonides and Nachmanides. That’s the introduction for now, but I’m about to get to “do not deviate.” Okay. So the difference between rabbinic law and Torah law is not chronological, it’s categorical. The question is whether this is legislation or interpretation. Now, there’s a dispute between Maimonides and Nachmanides about the source of the sages’ authority. Maimonides says it is founded on “do not deviate,” meaning the sages’ authority is both to interpret and to legislate—both authorities. And Nachmanides says that the authority to interpret really does come from “do not deviate,” but the authority to legislate cannot come from “do not deviate.” The authority to interpret—we said that the product is Torah law, so Nachmanides has no problem saying that it comes from “do not deviate,” because if it’s Torah law then its doubt is indeed treated stringently and everything is fine. But if you say that legislation comes from “do not deviate,” then it turns out that rabbinic law is also based on the verse “do not deviate,” because the product of legislation is rabbinic law, and then its doubt should have been treated stringently, says Nachmanides, whereas we know that a doubt in rabbinic law is treated leniently. So it cannot be that every rabbinic law contains… contains “do not deviate.” That, essentially, is the dispute between Maimonides and Nachmanides, and that is exactly the question whether legislation is really an independent category, as you described. Is legislation an independent category, or is legislation like interpretation under “do not deviate”? Not exactly interpretation, but rather the Torah handed things over to the sages—even, I think, that’s a better mechanism. The Torah said “do not deviate,” and the sages can determine what it is that we are forbidden to deviate from. But after the sages determine it, that becomes the content of the prohibition of “do not deviate.” So in practice there really are not two such categories, legislation and interpretation. According to Nachmanides, who argues against Maimonides, on your view there are not two such categories. Everything is Torah-level. Everything has to be Torah-level. Basically, even what we call legislation is not legislation; it’s only a product of “do not deviate.” The Torah said “do not deviate.” It’s like what I mentioned—if I didn’t, then I’ll mention it now because we’ll come back to it again. Suppose I vow not to use this phone today. Okay? So if I violate that vow, of course I have violated a Torah prohibition. Why? I established that prohibition, and I’m not even “the sages,” just an ordinary private person. How can it be that this prohibition is a Torah prohibition? Because the Torah said, “He shall not break his word.” The Torah said that if you say something, you are forbidden to profane your word. Now what do you say? You decide. What you say is irrelevant at the moment. So exactly the same thing with “do not deviate.” The Torah says not to deviate from what the sages said. What will they say? Let them decide what they say. But the Torah established, regarding whatever they said, a prohibition of “do not deviate.” So in that sense we are dealing here with another kind of Torah law. Therefore Nachmanides asks: so how will Maimonides explain the fact that rabbinic laws and Torah laws are two different categories? According to his position they are not two different categories—they are the same thing. Everything is the same thing. Now clearly they are two different categories, because the Talmud is full of this, right? Even Maimonides can’t argue with that. So Nachmanides asks it as a question. He says: you, Maimonides, who say that everything comes from “do not deviate,” in effect there are not two categories here. Legislation and interpretation become one category. Everything is Torah-level. And then the question is how does there even arise… What does Nachmanides do with “do not deviate”? What? What does Nachmanides do with “do not deviate”? For interpretation. Nachmanides says that “do not deviate” is the source of the sages’ authority to interpret, but not to enact. Because the sages’ interpretation is Torah law. And where does the authority to enact come from? That’s where I started last time—that’s actually where I stopped last time. The question being asked here, and I said—maybe one second before I get to that—I said that this dispute between Maimonides and Nachmanides is not just some random dispute that arose because one thought this way and the other thought that way. There is apparently here a no-win question. And apparently we need—I say need—to choose one of two options, but it’s a short blanket. Meaning, if we choose this option, we cover the head with the blanket and the feet stick out; cover the feet and the head sticks out. You can’t cover both the head and the feet. In other words, there are two questions here that seemingly cannot both be answered. One question says: how can it be—sorry—one question says: why do we need to obey the sages? Where does that come from? If the Torah didn’t say so, then they said it—well, I can tell you all sorts of things too. So what if they said it? There has to be a command in the Torah that tells me to obey the sages. Meaning, there is a source in the Torah that says one must obey the sages—that’s one side. The second side: ah, but if there is a source in the Torah, then how are rabbinic laws a separate category? Then rabbinic laws are really just another type of Torah law. So there is some kind of… how did the sages determine that this is another category? Wait, one more second—Nachmanides himself raises this and rejects it, he does not agree with it, but he himself raises it. Why can’t one say that “do not deviate” applies both to Torah law and rabbinic law—“do not deviate”? Meaning, if it’s rabbinic, you still must keep it because the Torah says “do not deviate”; Torah-level regarding rabbinic law—you still have to keep it. But then it comes out that if I don’t listen to the sages, I have violated “do not deviate.” I have violated Torah law. So why is a doubt treated leniently? That just gives the rabbis permission to create rabbinic laws. But after I violate rabbinic law, have I violated “do not deviate”? It’s just a command that you have to keep them. The Torah says: rabbinic laws. No, but if it is a command that you have to keep them, and I didn’t keep them, then I violated the Torah’s command. After all, the Torah told me to obey. I am forbidden not to obey. And now I didn’t obey. So I did something the Torah forbids, no? It doesn’t sound to me like now the rabbis say this is the law and we need to keep it. Fine. So if I didn’t listen to them, then I violated the verse of “do not deviate,” right? Because the verse told me to listen to them. So then I violated a Torah prohibition. Maybe that doesn’t turn their law itself into Torah law. But I violated “do not deviate,” so doubts should be treated stringently, no? You can call it whatever you like, but halakhically what does that mean in terms of consequences? The consequence is that you violated a Torah prohibition, so why is a doubt treated leniently? It doesn’t matter what you call it. Nachmanides doesn’t care about the terminology; call it rabbinic, but he asks why it is a different category. There are all sorts of categories in the Torah: there are prohibitions for which one incurs karet, and there are ordinary prohibitions, maybe. Because this is all really Torah law. There is no such source. Maybe there are different categories in the Torah. Of course there are, but all those categories have a source. There are things for which the Torah imposes karet, things for which the Torah imposes death by the religious court, things for which the Torah says lashes—everything has a source. And now I am asking: what is the source for the rule that a doubt in rabbinic law is treated leniently? What you are basically saying is this: look, usually—you know what, I’ll say this a bit later. So there is an independent commandment, let’s say the case of a prohibition linked to a positive commandment—we learn that from the Talmud, right? So the Torah said that one does not receive lashes. Fine. If the Torah had said that a doubt in rabbinic law is treated leniently, no problem—but it doesn’t say that, so where does that source come from? The sages cannot decide that on their own, because this is really Torah law. So I’ll show you a bit of the implication of what you’re saying—I’ll get to that—but one second, usually… all right, yes. The question is: where do we know that a Torah-level doubt is treated stringently? Right, so now I’m going to say something about that. I’m now going to say something about that. There is a dispute among the medieval authorities (Rishonim) about why a Torah-level doubt is treated stringently, or what the status is of the rule that a Torah-level doubt is treated stringently. The view of Rashba and Ran is that a Torah-level doubt being treated stringently is itself a Torah law. And the view of Maimonides is that the obligation to be stringent in Torah-level doubts is a rabbinic obligation. Meaning, only the rabbis established that in the case of a Torah-level doubt we must be stringent. So that’s the dispute among the medieval authorities (Rishonim). What you proposed here earlier is sort of the reverse of the reverse with regard to a rabbinic doubt. You basically want to argue that a rabbinic doubt is treated leniently by Torah law. I know of a rule among the medieval authorities (Rishonim) that a Torah-level doubt being treated stringently is rabbinic, and what you are basically saying is that a rabbinic doubt being treated leniently is a Torah-level rule. Right? Because the Torah told us to obey the sages, and therefore every act of obeying the sages is a Torah obligation. So I asked: then why is a doubt treated leniently? The sages cannot have established that, because this is Torah law—the Torah determines what happens with these prohibitions. So you are saying the Torah stated another category here—it’s a lighter prohibition or something like that. The Torah itself said that when you have a doubt in a rabbinic prohibition, go leniently. It follows that the law of a rabbinic doubt is itself a Torah law. Right? That’s what follows according to this answer. Every doubt, right—all of them, both Torah and rabbinic. Torah law is lenient, and the sages added the stringency for Torah law to be stringent. That’s according to Maimonides… that’s according to Maimonides. And according to Rashba and Ran, a rabbinic doubt being treated leniently is by Torah law, because in Torah law one must be stringent. What I’m saying is all from the Torah. No, no—according to Maimonides, a Torah-level doubt is actually lenient by Torah law; only rabbinically is one stringent. So Torah law—rabbinic law too—is the same thing. Fine. According to Maimonides, if I am not stringent in a Torah-level doubt, I have violated a rabbinic prohibition. Exactly. But he still doesn’t say that it is itself Torah law. No—being stringent in a rabbinic prohibition, you are not obligated; you are free to be lenient. No, and therefore I never have to be stringent by Torah law. In a Torah-level doubt yes; in a rabbinic-law doubt, because the rabbis were stringent, and therefore a rabbinic doubt… a double doubt… that is a rabbinic doubt. One doubt is a Torah-level doubt, where rabbinically you have to go stringently. So if I’m not stringent… If you’re not stringent, you violated a rabbinic prohibition—not doubtfully, but certainly a rabbinic prohibition. Yes, yes, one could say that. But he still doesn’t say that, according to what you said in the previous class, he himself says that things that are rabbinic are basically from “do not deviate,” Maimonides. And therefore when they say that a Torah-level doubt is lenient, then really the rule that a Torah-level doubt is treated stringently is also Torah-level, even according to Maimonides, because of “do not deviate.” It all turns into… Like every rabbinic law, yes. Okay. In any case, there is some kind of tangle here that we need to think about how to untangle. Why does it matter whether it started as Torah law and shifted to… or whether both were originally stringent and one had to be stringent in both and only the sages later enacted that this would be lenient, or vice versa. Why does it matter—why is it relevant whether it comes from here or from that source? Is there some relevance? Practically speaking, is there any distinction? Maybe I won’t do it at all. That’s a good practical consequence. I just won’t do it at all. Why do I have to obey it? So what if the sages said it? Isn’t that a good enough question? Yes, the question is why one must obey the sages. What do you mean, what practical difference does it make? The practical difference is enormous—whether to obey them. I need a source for why to obey them. Excellent question. There can also be practical differences… You want to know whether to obey them? It’s only Purim and Hanukkah. If we are also talking about interpretation, then nothing is left at all. There is almost no law that is not either interpretation or legislation. How many laws are explicitly written in the Torah in their plain sense, without needing interpretation? The laws the Sadducees agree with, right? How many of those are there? Hardly any. Almost nothing from the 613 commandments is like that. The 613 commandments are all interpretation of… No, but there the obligation itself is not rabbinic. Yes, and if I don’t have to obey them, then their interpretation… You are obligated to interpret the Torah as… I can interpret the Torah differently, yes. Okay. So that’s basically where we got to. And now the question is—so I’ll start with the question—we need to explain as follows. Maimonides and Nachmanides each chose a different path, and of course each is left with a short blanket: one with the feet sticking out and one with the head sticking out. The question is how to cover Maimonides’ feet or Nachmanides’ head—or how to cover both head and feet with a short blanket. And therefore I say: once I present it this way, I’ll eventually get to at least the possibility that there is no dispute between them at all. It can’t be that there is a dispute between them, because no one can remain with a short blanket and something exposed. You have to somehow cover it. In my opinion, what there is between them is more a difference of understanding than a dispute; they are both saying the same thing. But we’ll see that shortly. I’ll start with what Nachmanides has to explain. Nachmanides has to explain why we should obey the sages at all, right? If it doesn’t come from “do not deviate,” then the sages said it—fine, they said it. Anyone can say something. Why do I have to listen to what they said? There is no such verse, no “do not deviate.” Rabbi Elchanan Wasserman, in his tract Kuntres Divrei Sofrim, also says that clearly there is no other verse either—not just “do not deviate”—or even a logical argument; there cannot be one. Because if there were a logical argument, or another verse, or any source at all that binds at the Torah level, then it turns into Torah law, and again a Torah-level doubt should be treated stringently, and then Nachmanides himself would face the same question he asks against Maimonides. In other words, according to Nachmanides there simply cannot be any source whatsoever of any kind, so categorically there is no answer. So what does Nachmanides do with “do not deviate”? For interpretation, I said. For legislation there is “do not deviate,” namely “according to the teaching they instruct you” and “according to what they tell you.” Yes, so that’s Torah-level for legislation. Wait, let’s see—but Nachmanides doesn’t accept that “do not deviate” either; he says it’s only an asmachta. It is Torah-level in any event, with the source of “according to the teaching they instruct you” and “according to what they tell you,” and not from “do not deviate.” No, but Nachmanides says that he says his words even according to the view that bases it on “do not deviate.” He does not make it depend on a dispute among the Amoraim; he says that whoever says “do not deviate” means only an asmachta—nobody means otherwise. Nachmanides does not make it depend on the dispute of opinions, it seems to me, there regarding Hanukkah in chapter two of tractate Sabbath. So now there are several possible ways to understand why one nevertheless has to obey the sages according to Nachmanides—that is really the basic question. Okay, truthfully, the question on Nachmanides is much harder than the question on Maimonides. Everyone deals with how to reconcile Maimonides—why a rabbinic doubt is treated leniently—which, as you already said correctly, Maimonides himself raises as a possibility. That can be resolved; it’s not so terrible. The question is why, according to Nachmanides, one has to obey the sages, right? The feet are harder than the head; I think that’s something to pay attention to. So I’ll survey a few possibilities. One possibility: there are those who want to claim that the obligation to obey the sages comes from a positive commandment. Nachmanides does not accept it from the negative commandment of “do not deviate,” but from “you shall keep My charge” and “you shall keep all My commandments.” Maimonides himself counts both a positive commandment and a prohibition to obey the sages. So with regard to the prohibition, Nachmanides does not accept it; he says that applies only to interpretation. But with regard to the positive commandment, maybe that also applies to legislation. Now, of course, that assumes, first, that the positive commandment really is the source, even though there is not a hint of that in Nachmanides’ own words. Nachmanides himself says that this has an asmachta from the prohibition—that’s the only reference I know of in Nachmanides to the question of the source of the sages’ authority. He says it is supported by the prohibition—it’s some kind of asmachta. And that in itself is not an answer, never mind. But if he had a verse of a positive commandment that said it, what would be the problem? There would be a verse of a positive commandment, and everything would be fine. Beyond that, the answer itself is a bit problematic because it would still be Torah-level, and a Torah-level doubt should be treated stringently. Now, that is not so simple, because regarding a doubt in a positive commandment there are several opinions among the later authorities (Acharonim). The Rebbe of Radzin, in his book Petil Tekhelet, discusses this question a bit. He says: suppose I’m only uncertain whether this is the correct tekhelet or not, okay. Still, there is a positive commandment to put on tekhelet; a Torah-level doubt is treated stringently; one should put on this tekhelet even if we are uncertain, even if we are not convinced. Yes, I wear tekhelet—not Radzin’s, but the new one. I think it sounds plausible to me that it is correct, but clearly there is doubt in it. Fine—but even doubt, a Torah-level doubt is treated stringently, and you need to do it. So he brings there that Rabbi Akiva Eiger writes that in positive commandments such as this one of tekhelet, in a case of doubt one need not go stringently. Why? Because he says that in the rule of treating a doubt stringently, what is the idea of treating doubt stringently? A Torah-level doubt is treated stringently because you want to be on the safe side. If there’s doubt whether it’s pork, doubt whether it’s kosher meat, then you don’t eat it. Good, so clearly you have not violated a prohibition. Right? You’re playing it safe. That’s the rule. Now think about it: if I have doubtful tekhelet and I put on the tekhelet, am I on the safe side? No. If it’s not tekhelet, I still haven’t fulfilled the commandment. That does not bring me to a state in which it is clear that I fulfilled the positive commandment according to all views. Maybe neither option is right. You still can’t know. Wearing only white is definitely the safe side in the sense that you are not fulfilling it. Right? When you wear only white and not tekhelet, then you are safely in the position of not fulfilling it. So he says there is an obligation to move from the safe side of definitely not fulfilling it to a 50% chance of fulfilling it. Rabbi Akiva Eiger argues that there is a Torah obligation to be stringent only when by doing so you know 100% that you are okay. But if in any case it may still be that you are not okay, who says the Torah obligates you to be stringent? So Rabbi Akiva Eiger says no. Now notice: that is not true in every commandment. Rabbi Akiva Eiger—and this is a common mistake—many people say Rabbi Akiva Eiger says that with positive commandments there is no obligation to be stringent in cases of doubt. That is not true. There are positive commandments where there is an obligation to be stringent in cases of doubt. For example, if I have two etrogim, and one etrog is of doubtful validity—maybe valid, maybe not valid. Here too, in essence, Rabbi Akiva Eiger says I do not need to be stringent. Right? Let’s say I have two etrogim according to two contradictory views: either this one is valid or that one is valid. Then certainly I am obligated to take both, because if I take both then I am on the safe side. Right? Or there is a positive-commandment prohibition against eating human flesh according to Maimonides. A positive-commandment prohibition. So if I have something that may or may not be human flesh, am I allowed to eat it? Doubt is treated leniently because it’s only a positive commandment? Certainly not. Because to be on the safe side I have to refrain from eating it, and then I definitely haven’t transgressed. Right? Correct. But also in positive commandments, not only in a positive-commandment prohibition, there are situations in which I can fulfill the commandment. If I am in doubt whether I am obligated in a positive commandment or not obligated in a positive commandment—say there is a dispute concerning women: are women obligated in a certain positive commandment or not? Out of doubt, let them fulfill it. Why? Because if the woman fulfills this positive commandment, then either she has definitely fulfilled her obligation or she wasn’t obligated in the first place. So she is on the safe side even though it is a positive commandment. In other words, there are kinds of doubts in positive commandments where there is a Torah obligation to be stringent, even according to Rabbi Akiva Eiger. Rabbi Akiva Eiger argues that there is no obligation to be stringent only in a case of… by the way, an obligation of this kind can perhaps also be found in prohibitions. I think Rabbi Akiva Eiger’s model could perhaps also be found in a prohibition where even if you are stringent you are still not definitely on the safe side. I gave the example of women—not like tekhelet. Because no, with tekhelet you are obligated in any case. A commandment I was obligated in. But with women, if they are not obligated then there is no issue, and if they are obligated then they did it. So either way they have fulfilled their obligation; therefore there one must be stringent—that’s an example. If I buy an etrog that is of doubtful validity? Not take it? According to Rabbi Akiva Eiger, there is no Torah obligation to take it. So why did you put on tekhelet? I don’t understand. Maybe because I don’t think like Rabbi Akiva Eiger. Because I don’t think like Rabbi Akiva Eiger. That’s an answer I hadn’t thought of. That’s why I’m here. Is the doubt created by the fact that there are two opinions about what the law is? Or if someone said: I follow one opinion? That’s already another question. The question is whether this kind of doubt—maybe I mentioned this once, I talked about it once, no? Did I tell the story about Rabbi Yonatan Eybeschutz, where the priest came to him and said: why don’t you follow us? We are the majority—“follow the majority”—the Christians. So he answered: I follow the majority when I am in doubt. If I am not in doubt, I do not need to follow the majority. So here too, I think that when there are two views—Maimonides and… maybe I mentioned this once—that when Maimonides and Rashba disagree, it is generally accepted among halakhic decisors that this counts as a doubt. What, is there a commandment to be in doubt? If I think like Maimonides, then I am not in doubt. If I am in doubt, then there are rules of Jewish law about what to do: a Torah-level doubt is treated stringently, a rabbinic-level doubt is treated leniently. The fact that Maimonides and Rashba disagree does not mean I am in doubt. It means they disagree. Yes, but for ordinary people it’s easier if someone with standing can decide from a halakhic standpoint, but a simple person, when there are things… So a simple person can choose a rabbi for himself—“make for yourself a rabbi”—that’s what I think. Okay. What his rabbi will do stringently between Maimonides and Rashba—because today all rabbis adopt this approach that when there is a dispute between Maimonides and Rashba, it is treated as a doubt. So they discuss it according to the laws of doubt, which is completely absurd. Anyway, one possibility is that there is a positive commandment here. I said that assumes, first, Nachmanides does not say that. First, Nachmanides does not say it; it is hard to accept that we need to say it. Second, we would need to assume that a doubt in a positive commandment is not treated stringently, because otherwise he himself would face the same problem he raises against Maimonides. Why is a rabbinic doubt not treated stringently? Right? A doubt in a positive commandment is not treated stringently—and Rabbi Akiva Eiger will not help us here, because Rabbi Akiva Eiger does not speak about every doubt in a positive commandment, as I explained, but only a doubt in a positive commandment such that if you don’t go stringent, you won’t be on the safe side. Yes, but in a doubtful rabbinic prohibition, if I’m in doubt whether yes or no, then just don’t eat and everything will be fine—what’s the problem? So why not be stringent in the doubt? Even according to Rabbi Akiva Eiger, here you would have to be stringent. Therefore it seems to me that this direction in Nachmanides is difficult. Good, that’s one direction. The second direction: there are those who want to argue that somehow it is evident that this is the Torah’s intention. The Torah wants us to obey the sages. It did not command it; we did not find a verse containing such a command, but there is some logical argument. Such a logical argument could rest on many things. For example, I think there is room for such a logical argument—that the Torah should not become like two Torahs, that there should be some framework through which we can make decisions, some authority that determines what we do and what we don’t do, because otherwise everyone will make his own Torah. So why wouldn’t that reasoning be Torah-level? Ah, and now the question arises: then Rabbi Elchanan Wasserman’s question returns. If that is a logical argument, a Torah-level logical argument—“why do I need a verse? It follows from logic”—then the doubt again should be treated stringently. As Rabbi Elchanan said, there cannot be an answer to this. Not that there is no answer, but rather that every answer will turn it into Torah law, and then the question of doubt comes back again. By the way, here I’m not sure he is right. I myself went through some development on this issue. At one time I thought he was right—that “why do I need a verse? It follows from logic” means that logic and a verse are the same thing. Today I don’t think so. Logic can be Torah law, but without a command. Logic can be Torah law, but there is no command attached to it. And when there is no command, that has consequences. It is not the same when there is logic and when there is a command. Even though in some sense it may be considered Torah law. For example, Maimonides’ view is that if there is no command, there is no punishment, because one does not punish unless one first warns. And logical reasoning is not a warning. With logical reasoning I may think that something is forbidden, and maybe I ought to think that it is forbidden, but there is no warning. A warning is a command—that is, the Holy One, blessed be He, says: don’t do this, because otherwise you will receive punishment. He never said that anywhere; it is just logic. So maybe I need to act that way—but then how does the Talmud ask, “why do I need a verse? It follows from logic”? Fine, I mentioned this once. There is a dispute between Pnei Yehoshua and Tzelach in tractate Berakhot regarding the blessing recited before enjoying food. The Talmud asks: why does one recite a blessing before food? The Talmud says that anyone who benefits from this world without a blessing is as though he committed sacrilege. And Pnei Yehoshua asks: if there is logic, then a doubtful blessing should be treated stringently. Exactly the same question we are asking here. Because logic is Torah-level—“why do I need a verse? It follows from logic”—so the doubt should be treated stringently. So why is a doubtful blessing treated leniently? And Tzelach says: what are you talking about? Where have we ever heard such a thing, that something derived from logic is treated stringently? Not at all. One goes stringently only in matters explicitly written in the Torah. And the question then, of course, is: so what does “why do I need a verse? It follows from logic” mean? The Talmud says in many places: why do you need a verse? There is logic. That implies there is no practical difference between a verse and logic. That is in places where the logic is interpretive logic. When I interpret a certain law written in the Torah by means of logical reasoning. For example, the Torah has laws of evidence, fine? The Torah says that one must judge according to rules of evidence. And I have the logical concepts of migu, or “the mouth that forbade is the mouth that permitted.” And the Talmud asks: what is the source for “the mouth that forbade”? It says: a verse? It says: logic. There is a verse, there is logic. We see that there they are equivalent. There I say: the Torah says that one must judge according to the laws of evidence, and the logic says that “the mouth that forbade” is evidence. That is something else, because that is interpretive logic. And about that the Talmud says: why do you need a verse for that? The Torah already says to judge according to the laws of evidence, and you understand on your own that this is evidence, so judge accordingly. When the logic is interpretive logic, even Tzelach would agree that no verse is needed, because the verse already says to judge according to the laws of evidence; that verse is enough, and everything else is just the reasoning that tells us what counts as evidence and what does not. But in a case like the blessing before enjoying food, where the logic creates a new law—this is not logic interpreting something. A new law: one must bless before eating. There is no such law in the Torah. It is not an interpretation of Torah law; it is substantive logic, not interpretive logic. In such a case Tzelach says: no, that’s not true—you need a verse. Without a verse there is no prohibition. Okay, so that’s about the Torah’s intention and “why do I need a verse? It follows from logic.” I think this is a possible mechanism, because it is not true that logic must always, like a verse, be treated stringently in cases of doubt, contrary to what Kovetz Shiurim assumes. Kovetz Shiurim says it is the same thing. I just want you to notice that this logic is not logic about the subject matter itself. Suppose when someone refrains from eating poultry with milk because the sages prohibited it, one could say: I understand the rationale of poultry with milk, and therefore I understand that it is forbidden to eat it. Why not eat poultry with milk? Here, even without understanding the rationale of poultry with milk, I understand the rationale that there needs to be an authority that determines what to do and what not to do. This is second-order reasoning. Meaning, this is reasoning about the framework, not reasoning about the content itself. It could be that with this kind of reasoning, again, doubt would not be treated stringently. If something is itself problematic and you are in doubt, then maybe be stringent. But if something is based on a framework-level rationale, not a rationale about the act itself that I am doing, then perhaps here too one could say that even according to Rabbi Elchanan, its doubt is treated leniently. But I’m saying—it’s a possibility. There is such a possibility in Nachmanides: that this is the Torah’s intention, even though there is no explicit command that we need to obey the sages. At the end of the day, if you take the paragraph where “do not deviate” appears, what is it? “If a matter eludes you… you shall come…” Here you are not talking about the absence of a verse—you are talking about a rationale that is documented in the Torah. You are kind of ignoring the fact that… Not at all. Nachmanides claims that this is only about interpretation. If the sages interpret the Torah, they have authority to interpret, but legislation is something else. So the question is where that “something else” came from. Okay, and then that even fits with “if a matter eludes you.” Yes, exactly. You don’t know the meaning of the Torah, so go and they will tell you what its meaning is. That exists in every legal system. Also in the Israeli legal system. In court there are, say, three judges who decide what the norm is and what the person did. There too, by the way, the very same questions arise. The same questions. If judges interpret a law, then certainly that is their authority. That is the authority they received from the legislature. But if they establish a new norm, then exactly there the criticism arises: you are not legislators, you are judges. It is exactly the same thing we are talking about here. Because you received the mandate to interpret the law. So interpretation comes from “do not deviate,” but legislating is the authority of the Knesset, not of the judges. And that is exactly the criticism directed at judges—it is precisely this reasoning. Good. A third possibility according to Nachmanides—or really the second, the first one I think is plausible—is in a book I wrote, The Two Roots of Maimonides, I’ll give you here… I didn’t give credit, so that’s… The Spirit of Law. No, no, the fourth in the quartet—that’s already out. The third possibility is one that Rabbi Kook raises in a responsum in Mishpat Kohen, section 144. He says it is the acceptance of the collective of Israel. The collective of Israel accepted the sages upon itself, just as we accepted the Torah itself. We accepted the Torah upon ourselves, and therefore we are obligated. So too we accepted the sages upon ourselves. This is, of course, some kind of fiction—a certain fiction. There was no event in which the whole Jewish people assembled and accepted upon themselves the authority of the sages. But it is true that over time people did in fact obey the sages, and the accepted norm is that the sages determine things—that is, that the sages have authority. So there is here an acceptance by the collective of Israel, and therefore this idea too is perhaps possible. It’s not on the level of… because there is this issue of something becoming widespread, what Maimonides says—that a custom spread or… No, he is speaking about accepting the sages generally, or accepting rabbinic commandments. No, no—the acceptance of the authority of the sages. Because regarding every rabbinic commandment, the Talmud already says that if an enactment did not spread, or a decree did not spread, then it is void. But what alternative was there? What, the sages or what? Or nothing. Or everyone would interpret for himself what he understands, in quotation marks, and all the… Why no lashes? There are lashes—whoever commits a Torah prohibition gets lashed. “Commits a prohibition” meaning something the Sadducees agree with. Why wouldn’t we obey them? Because they don’t beat us? They don’t beat us because we allow them to beat us. If we don’t let them beat us, then what, they’ll beat us? Three old men with white beards will beat all of us? We’ll beat them back. Or we’d be like Korah and rebel against them. So then according to this approach, what is “do not deviate”? Why is there a verse? Interpretation. I said—it goes back to interpretation. Maybe I also mentioned once—I don’t remember anymore—about… I once read a biography of Stalin, and it was really fascinating. Because throughout the whole book the feeling was: a huge country—something like 150 million people in the Soviet Union at the time—a giant country, 150 million people, with almost the strongest army in the world, against one single man. Everyone is against him and he defeats them. In the end he dies in bed. There are conspiracy theories about whether in the end he really died in bed or not, but the picture is that he ruled there for forty years and in the end died at home, died in his own way. It’s amazing. How can that be? One man against all the soldiers and all the civilians, everyone wants to kill him, everyone hates him, everyone is afraid of him, and one man controls everyone. This is related to what I said earlier about the sages, that we’d beat them back. Apparently it really isn’t so simple to beat back. Meaning, the state bureaucracy creates a situation in which everyone is against him and still can’t rebel against him. Maybe that’s like what you just said—that everyone accepted him upon themselves; did the Russians accept Stalin upon themselves? Exactly—I’m bringing this to show it. I don’t know if the Russians exactly accepted Stalin upon themselves, but I’m saying that with us too, the perception—what I told you, sort of in… What do you mean? Obviously we accepted them upon ourselves, otherwise why do we obey them? So you said: because they beat us. So I said: we’ll beat them. What do you mean, they beat us? We gave them permission to beat us. So now I’m qualifying that—it’s not so simple. Meaning, there can be a situation where a certain factor takes over, and if it succeeds in taking over, then you won’t be able to deal with it. That can happen. Fine, but it seems to me that generally people did not want to beat them. Generally they listened to them, and they did understand that authority was in the hands of the sages. I think that is true as a historical description. Yes. The last answer has the advantage of the question. We are talking about rabbinic law, but this is Talmud, medieval authorities (Rishonim), the sages of our own generation. And if it is acceptance, we can say: we accepted the Talmud, but not this. And if it is logic, then even with the logic we need to discuss what the difference is between the Talmud and our sages. No, with logic too you have to discuss to whom the reasoning applies. With any reasoning, you have to see what the reasoning is. But with reasoning you have to see what its root is. There are rationales that really would still be relevant today, and rationales that would not. It is true that the Talmud has authority that later generations do not have—everyone agrees with that. Yes. No, so I’m saying the opposite: because the Talmud too was accepted. If it is acceptance… Yes. According to this approach, that is actually perfectly clear. What about decline of the generations? I don’t really accept this whole business of decline of the generations. Meaning, one day you were something two years ago and today you are less? Yes. Right, and who said that… You don’t need decline of the generations for this. We accepted them upon ourselves not because they are smarter, but because we want a framework—some framework that is agreed upon. And the Talmud is the agreed framework. Just as we accepted the Knesset upon ourselves here—does that mean the smartest people are sitting in the Knesset? If so, then we are in trouble. Rather, they have authority because we accepted them upon ourselves. We want there to be order here, and we obey them not because they are always right. A magistrate’s court also cannot disagree with the district court, and the district court cannot disagree with the Supreme Court. Yes. And they are not always wiser. Not always wiser. In any case, that is another possibility, and here too there is room to discuss: if this is reasoning, then why is a doubt not treated stringently? This too is reasoning. And again, one can re-raise the whole issue of doubts being treated stringently with all of these things. There is a fourth possibility: perhaps there is no obligation to obey the sages. Who says there is? Where is it written that there is an obligation to obey the sages? What do you need to do? You need to do it because it is correct, not because there is an obligation to obey the sages. If the sages say that one may not eat poultry with milk, there is some rationale behind it—that if you eat poultry with milk you may come to eat meat with milk. Okay, I as a human being can understand that rationale. So the fact that one must not eat poultry with milk does not stem from the authority of the sages. It stems from the fact that it is correct. That’s all. The sages simply showed us this because they are wise, so they showed us that it is correct, and therefore one should do it. You’ll ask: then why do the sages administer disciplinary lashes, for example, to someone who does not listen to them? Because the sages are responsible to ensure that we do the correct thing. If we don’t do the correct thing, then they beat us. They don’t beat us as a punishment. They beat us to make sure we do the correct thing. That is an authority the Torah gave them—to ensure that we do the correct thing. But in essence there is no real substantive authority of the sages here. And if the rationale is not relevant today? Then no—according to this, indeed not, correct. And who is supposed to say that the rationale is not relevant? Your own reasoning. Your own reasoning, yes. Doesn’t matter who. You say you have to listen to them because they are wise? No, I don’t have to listen to them. I only have to do the correct thing. So what they say is correct. But maybe not. If Maimonides says there is a God, is that because he is Maimonides and because he is wise? No—I’ll argue with him, just as I can argue with the sages. If I think there is no problem with eating poultry with milk, then I’ll quietly eat poultry with milk at home as long as I don’t get caught. They can’t beat me, and I think it’s correct—what’s the problem? Only when I get to the heavenly court and they ask me: tell us, why did you eat poultry with milk? I’ll say: because I thought… Except now you can’t claim coercion, because there were people here who told you this rationale exists. So don’t say you didn’t think about that rationale. So that only neutralizes the defense claim of coercion, but it does not mean you are actually obligated to obey them. If, say, it turns out in the heavenly court that you were actually right and the sages were mistaken here, then nothing will happen, then everything is fine—you ate poultry with milk and everything is fine, according to this line of reasoning. Not that they were mistaken; in different times there is something… Doesn’t matter—that’s what you asked earlier. It was correct in their time, and today it is very… no… Everyone agrees it is not relevant. No problem—then don’t do it. But most halakhic decisors said… If they said, then if I have to explain the majority of halakhic decisors, I don’t know. I’m just trying to lay out the different possibilities here. I don’t know what most halakhic decisors say. Most halakhic decisors say all sorts of things. What? Anarchy. Correct. We have a yeshiva here together, so we can see it. Right, so what? How can there be anarchy? Why not? You say there is a rationale… There is a rationale that there must not be anarchy. Fine—that’s possibility number two. We already dealt with this rationale that says there must not be anarchy. Good. Possibility number two is that there is a rationale saying there must not be anarchy, and from that it follows that one must obey. There are two things here: one is to obey, and the second is that this is a safeguard. They made a safeguard because they didn’t want you to eat meat with milk. That’s the problem—meat with milk. Poultry with milk. No, they said poultry with milk so that you wouldn’t come to eat meat with milk. And now you obey them because you are obeying the sages. Whether you eat or don’t eat poultry with milk is something else; in itself that is not the problem. No, so this proposal says otherwise. This proposal says: no, it may be that poultry with milk is a problematic thing, and therefore the sages prohibited it. Doesn’t matter—even if it is problematic only because it leads to meat with milk. Doesn’t matter—even a safeguard is a rationale. So it makes sense because of the safeguard. And now do it—you should have made a safeguard for yourself. You should have made a safeguard for yourself; why didn’t you? The sages helped you—they revealed to you that there is a safeguard here. You didn’t do it, so you have a problem. Now if it turns out in the heavenly court that you were right, they’ll tell you: kol hakavod, no problem—there is no obligation to obey them. I once asked this when they established the Degel HaTorah party. I was in Bnei Brak then—the cheerful Bnei Brak period. I was sitting there in a yeshiva for newly religious people, studying there in such a yeshiva, and they established Degel HaTorah, and they were chasing after every vote because they were afraid they wouldn’t pass the electoral threshold. Rabbi Shach was fishing for people one by one, vote by vote. So of course, if I’m in Bnei Brak, I announce that I’m voting for Mafdal. That’s always how I am—I’m always the opposite of the environment. So I told people I’m voting Mafdal—the first time in my life I had thought of voting Mafdal. In any case, a messenger from Rabbi Shach came to me saying that he was summoning me. Somehow it reached him that my wife was friends somehow with his daughter—it doesn’t matter—somehow it reached him, and he said… he was fishing one person at a time, one person at a time. I didn’t go. I didn’t go because I knew that if he told me to, I would do it. So I didn’t go, and in the end I did it anyway even though I didn’t go. But afterward I went to my lecture teacher in the yeshiva and said to him: tell me, if I go up to the heavenly court and the Holy One, blessed be He, asks me, tell me, why didn’t you vote Mafdal? What is this crime of voting for Degel HaTorah? Can I say to Him: look, Rabbi Shach told me—what could I do? Meaning, am I exempt? And he told me something very nice to hear from a Bnei Brak rabbi. He said: you’re right. Meaning, if the truth is to vote Mafdal, then you should vote Mafdal. It’s just that most likely he is more accurate about the truth because he is a greater Torah scholar than you—Rabbi Shach. It’s somewhat like this argument, understand? Meaning, you don’t have to obey Rabbi Shach because he has authority that you must obey; rather, he is a great Torah scholar, so there is a reasonable chance he is closer to the truth than you are. So really what you have to do is the truth—and if it turns out that you were right, no problem, nothing happened; you were right, even though you went against him. There is no obligation to obey him; it’s just that probably what he said is closer to the truth than what you say. Fine. One could say this kind of reasoning also regarding rabbinic enactments. Maybe the public determines in each generation what the norm is. Fine, that may be—but still, at base, it binds because it is correct. Now you ask who determines what is correct and what is not? Fine. Maybe not—maybe there is a matter of norm, that the public thinks this is right, the public thinks this is right. But then what? So they think so—so what? Why? Why? Why must one obey that? Because it is right? Fine. You’re telling me that this is the mechanism that determines what is right. There is a concern about anarchy—so anarchy we already discussed; that was the previous option. I’m distinguishing here between the possibilities. No, but what I’m emphasizing is that there is the issue of today—meaning, there could be one norm in the past, and norms change over… Fine, norms change. It could be that according to this approach things really should change, correct. If a heavenly voice says “this is impure,” the correct thing is impure, and the rabbis say… Impure. Okay. What do you do? Impure. That same court concluded that the right ruling was that it is impure. Right—and the heavenly voice said it is impure, no? Yes. So I say it is impure too. And the sages can talk until tomorrow. If the heavenly voice says it is impure, I say it is impure because that is what is correct. Fine, the story is fine, but I’m saying according to this approach, according to this approach, that there it is not rabbinic law, it is Torah law—it is unrelated. But I mean on the conceptual level, according to this approach you are right. “It is not in heaven.” Yes, “it is not in heaven.” According to this approach. One has to do what is correct; the sages have no authority in and of themselves. You can already see why this is not so plausible—I mean, at least in the halakhic world we are not used to thinking this way. But it is a possibility. Let me sharpen it a bit more. Look, Netivot in section 234 in Choshen Mishpat argues—and we’ll come back to this Netivot, so it’s worth remembering it. I heard this, by the way, from that same person whom I asked about Rabbi Shach, it seems to me—my lecture teacher. Because once someone brought me, while I was hospitalized, and I was not eating produce from the sale permit then. It was during the Sabbatical year and I wasn’t eating produce from the sale permit. And someone brought me some drink—I don’t remember what—and I drank it, and suddenly I saw it was from the sale permit. So he came to visit me, and I asked him: tell me, what is my legal status? Was it water? No, some fruit drink of some kind. Don’t worry, there’s no concern about fruit. There was fruit in it. So I asked him about it, and he brought me this Netivot. He says that Netivot says that with a prohibition—after all, a rabbinic prohibition, and the Sabbatical year in our time is rabbinic—so with a rabbinic prohibition, if you transgress it inadvertently, you don’t even have to repent. You need no atonement, no repentance, nothing. Why? What is the idea behind this? Usually they explain that with rabbinic prohibitions, the act itself is not problematic. What is problematic about it? The obligation to obey the sages—that you did not obey, that you rebelled against the sages. And if you acted inadvertently, you didn’t know there was a command, so there is no rebellion. Right? With Torah law, even if you acted inadvertently, in the end you ate pork or ate meat with milk, so you did something problematic even though maybe you are not culpable because you didn’t know. But the act is a problematic act. Whereas with a rabbinic prohibition, the act itself is not problematic; the entire problem is the command. And if there was no awareness of the command, then there was no rebellion against the command. That is the approach—a common approach, not agreed to by everyone, but a common approach regarding rabbinic law. What I’m saying here—notice—is 180 degrees the other way around. According to this approach, in a rabbinic prohibition there is no command at all—the whole dimension of command is absent. What exists is only the substance. Meaning, only the fact that the thing is in itself problematic. It’s not that the absence of command is irrelevant—you should have known. Yes, you should have known, exactly. And if not, fine, it was inadvertent—but you still need repentance, because even for an inadvertent transgression one repents, since in the end you did something that was not right. So that’s the point. This is really a view that is 180 degrees opposite to Netivot. Maybe I’ll bring an interesting example of this mechanism; it bothered me for quite a while. At the end of the third chapter of tractate Bava Batra, the chapter of “Presumptive Ownership,” the Talmud says there that from the time the wicked kingdom subjugated us, it would have been proper to decree upon Israel a prohibition of procreation, not to be fruitful and multiply, and thus the seed of Abraham would come to an end by itself. As if they don’t let us perform commandments and so there’s no point—don’t bring children into the world, and then the seed of Abraham ends by itself; there’s no point in continuing. The Talmud asks: then why didn’t they decree it? And it answers: better that they be inadvertent than deliberate sinners. Okay? In that same Talmudic passage, in another context—I don’t even remember exactly what—the Talmud states a similar but different principle: that one does not impose a decree on the public unless the public can stand by it. Fine? But here, regarding this matter, they did not invoke the principle that one does not decree something the public cannot uphold; rather, they invoked the principle “better that they be inadvertent than deliberate sinners.” Now this is very strange. Because if they did not decree a prohibition of procreation, then there is no prohibition. So someone engaging in procreation is not inadvertent. If there is a prohibition and I violate it without knowing, then I am inadvertent. But this is a rabbinic prohibition; by Torah law there is certainly an obligation of procreation. The sages would have had to decree a prohibition of procreation, right? Now they did not decree it for some reason. Once they did not decree it, then certainly one should be fruitful and multiply, right? So when I procreate, am I violating a prohibition inadvertently? “Better that they be inadvertent than deliberate sinners”? I am not violating any prohibition at all—I am fulfilling a positive commandment. So why do they say here, “better that they be inadvertent”? If they had said, one does not impose a decree on the public unless it can withstand it, that would fit here. They would be saying: we don’t prohibit it because we know the public won’t be able to withstand it. Fine. But instead they say, “better that they be inadvertent than deliberate sinners.” But that’s not true—I’m not inadvertent. What do we see here? That we should have understood not to… not to be fruitful and multiply. When the sages determined that they should have determined not to be fruitful and multiply, they were not thereby creating the law. That law is true and exists even without their saying it; they simply did not tell us so that we would remain inadvertent. But the law exists even without their saying it. So that fits with Joseph—that passage in Rosh Hashanah where it says that his children were born before the years of famine. Rashi brings there the idea that they specifically had to be born before the famine, because in years of famine one does not have marital relations. Yes, so in any case that strengthens the point that there is some idea here, some rule, that one does not have marital relations in a year of famine. But there they say “the seed of Abraham would end by itself.” Meaning, here the claim is that if, say, the famine lasted a hundred years, it does not say there not to fulfill procreation and that the people of Israel should come to an end. That is not what it says. It says one should not have marital relations, incidentally—it does not say not to have children. The issue is not procreation; the issue is not having marital relations, sharing in the suffering of the public, something like that. The issue is not the children. And clearly where there is a concern that the people of Israel would come to an end, then no—you would do it even in a year of famine. To fulfill procreation, you fulfill procreation, that’s obvious. But here the aim is that there should not be procreation—not merely not to have marital relations, but not to have procreation, because if one cannot fulfill the commandments there is no point. And here we see that many times, when the sages say something, that thing is already true before they say it. And in fact, if you work it out now, the Torah scholars of that generation—this is an amusing thought experiment—the Torah scholars of that generation actually did understand that it was proper not to be fruitful and multiply, right? So they in fact did not procreate, but they did not tell everybody because “better that they be inadvertent,” and for those who were not Torah scholars they did not say it. So what comes out? That we are all descendants of the ignoramuses of that generation, right? The Torah scholars did not procreate at that point because they knew it was forbidden, and those who did transgress were only the common folk, and we are all descendants of the common folk of that generation—so that can explain a great deal, obviously. But that is one option. Okay, so that is another direction. There is Rabbi Elchanan Wasserman himself, a fifth direction. Rabbi Elchanan Wasserman himself, after he raises this question on Nachmanides, then asks: why must one obey the sages according to Nachmanides? And in Kuntres Divrei Sofrim he says: because we have seen that the mind of the Omnipresent agreed with their mind. In several things they did, the mind of the Omnipresent agreed with them, and therefore we should understand that the Holy One, blessed be He, wants us to do what they say. Now this is a very problematic explanation, because we have seen that the mind of the Omnipresent agreed with Moses our teacher—but where does that get us to Rabbi Akiva Eiger, or Abaye, or I don’t know, or Rabbi… Fine, there was one great prophet with whom God really agreed, who did three things and the mind of the Omnipresent agreed with him. Maybe there was someone else too. But where does this general statement come from, that God agrees with the sages? It is pretty clear—and I also mentioned this once in the name of Rabbi Medan—that he said he knows twenty-two answers to the question why the Scroll of Ruth is read on Shavuot, but he knows only one answer to the question why the Scroll of Esther is read on Purim. Because why Esther is read on Purim is obvious, while with Ruth on Shavuot all those answers are worthless and no one really understands, so you need twenty-two answers. So when there are many answers, you understand there is a problem. These answers—at least many of them—are somewhat problematic. And besides, if we saw that the mind of the Omnipresent agreed with them, then again that is a logical argument. And Rabbi Elchanan Wasserman himself said that if it is a logical argument, then in a case of doubt we should be stringent. So how does he himself resolve it and not feel the difficulty against himself, the very one he himself raised? One could say similarly, perhaps, that this is a kind of substantive asmachta—a sixth direction. What is a substantive asmachta? The Ritva on Rosh Hashanah 17 says that what we usually think, when we say that a certain verse is an asmachta for a law, is that the law is really rabbinic, but there is an asmachta from a verse. Usually people say this is just a mnemonic device—seeing the verse is only so that we remember the matter, but it’s not really a law derived from the verse, because if it were, it would be Torah law. But Ritva says that is not so. Ritva says it does emerge from the verse, but indirectly. It is the spirit of the verse. There is the plain interpretation of the verse—that is Torah law—and then the spirit of the verse, or what somehow emerges from it, that is rabbinic law, but it has a substantive asmachta. A substantive asmachta means that we understand from the verse that this is the Torah’s will. Now, this is not a command of the Torah; it is the Torah’s will. So in that sense there is no command here—it is not a Torah prohibition or a Torah commandment—but we understand that this is what the Torah expects of us. And that point I’ll continue a bit, or maybe continue next time, but just one more thing in order to complete the proposals in Nachmanides’ approach—one more proposal before I get to what I think is the correct explanation. Another proposal—and this relates somewhat to the question I tied in last time—is: why obey the law? I said there is some problem with normative grounding, right? How does one ground a normative system? It cannot be grounded from within itself, and it cannot be grounded from outside itself—so how can one ground a normative system? So also with respect to law, many philosophers of law or legal theorists ask: why do we need to obey the law? What is the basis? They suggest all kinds of different proposals, most of them very shaky. All of them, not most of them. It seems to me that one could look at this somewhat differently and understand that maybe the question doesn’t arise at all. When we ask why obey the law, we are basically assuming that the legislator stands over there, and we stand opposite him, and the question is why listen to him? Who is he? Maybe we should listen to that one too, or that one? Why suddenly him? There is some kind of confrontation, right? Some kind of clash between me and him, and the question is what his authority over me is, why I have to obey him. But I can look at it differently: I stand behind him, not opposite him. And when he speaks, he speaks in my name. And especially in a democracy, I think that is the basic conception. In a democracy the legislator is elected by the public, okay? So now, after he is elected, he is not some entity standing there like a king. In the case of a king, that would be a good question—why obey him? On what grounds? He appointed himself? Or his father appointed him? But in democratic elections, you elect the parliament. And now the parliament legislates a law. Why obey the law? Why obey the law? Because you legislated it. You yourself committed to it, you determined this for yourself, so there is no question of why I should do what I myself determined. Clearly. It is like asking: I committed myself at Mount Sinai to be obligated in Torah and commandments, to keep the commandments. And I can ask: and why am I obligated to keep it? Fine, I committed myself, so I committed myself to keep it. That is a commitment. That’s a duty of fairness; that’s your justification. But if your representative, if what you chose, is not… You established that whoever is elected is your representative. No, who said so? Obviously—those are the rules of the game; don’t participate if you don’t want to. The rules of the game. And if you didn’t vote, then you are not obligated? No. In the end there will always be some principle that is a logical argument, and when you ask why about it, I’ll say I have no explanation why—it is true because it is obvious that it is true. And that’s what we had at the very beginning. I’m saying here: I think this reasoning absolutely contains that same foundational point, the cornerstone. Because I’m saying: if I myself determine something for myself, then I need to stand by my commitment. I need to stand by what I said. That is a basic foundation. If I don’t accept that, I don’t know how to ground anything. Then I can ask about everything, who said so and why, and nothing can be grounded. This is something everyone understands: if you said something, there is a basic obligation to stand by your word. Now the claim is that when the sages speak, they are not speaking to me from the outside; they are speaking in my name. They are my representatives, and when the Jewish people determine something for themselves, then the Jewish people have to stand by what they determined, because they themselves said it. It is not that someone else stands opposite them and tries to force them. Then the question why obey the sages does not arise, because it is not a function of the sages standing here, me standing there, and the question being why I listen to him. We are the same group, the same organism called the Jewish people. For example, suppose my hand says: why should I listen to what the head decided? The head decided, so what—why should the hand listen? It’s not effective because the hand doesn’t ask questions. But in principle, when you have an organism, say a people, such an organism, then a certain group from within it is chosen—or not exactly chosen in the case of the sages, it seems to me, but never mind. Some group that is the head. Meaning, it is the one that determines things. Not because it has authority, but because neurologically it is the head. Or physiologically—neurologically is only the head. But once that is so, then when the head speaks, it is really speaking in the name of the whole organism, and so the whole organism is supposed to do what the head says. This is not a matter of obedience. That whole language of obedience is misleading language. And I think if we examine our intuitions regarding obeying the law, for example, it seems to me that this is the correct intuition. Not gratitude, and not all kinds of gimmicks they make up there in legal theory. It is simply that anyone who is a member… anyone who ever sees… comes to obey the sages when necessary. Okay, meaning they come from the same group. Yes, right. I’m saying it is a mechanism through which, from within us somehow, a layer emerges that essentially determines what all of us are saying. Because all of us are saying—each one says something else. So this is what we are saying. If this is what we are saying, then this is what we have to do. Otherwise, one could ask about the Torah too why it must be obeyed. So we said that we committed ourselves to do it—“we will do and we will hear.” We said it. But why should we obey? Because what one says must be fulfilled. Fine—here too, what we say, we must fulfill. I’ll maybe bring a little anecdote and with that I’ll finish. Isn’t this what Rabbi Kook says in the fourth view or something? What? Isn’t that what he says… No, he says… So what he says, I have to do. Here I’m saying I don’t need to accept it upon myself—it is me. It is not something else. The question is not—Rabbi Kook answers it by giving an answer. I’m saying there is no question. I’m not standing here opposite someone and asking what his authority is. It is simply what I do; what I say I need to do. There is an interesting note: Maimonides writes—no, there is a dispute among later authorities, the Rema—no, there is a dispute among later authorities about an oath in writing. I may have mentioned this once way at the beginning when we discussed something here: is a written oath binding or not? Because for an oath you need explicit verbalization, you need speech with the mouth. And the question is, when I write the oath, does that also bind me? So the question is whether writing is like speech or not; there is a dispute. The Avnei Nezer, in responsum 306 in Yoreh De’ah, brings a responsum of Ri Migash. And Ri Migash writes that one certainly has to obey it. Why? Because it is simple logic that a person must do what he says. And Avnei Nezer brings proof for this from Mount Sinai. At Mount Sinai too, we committed ourselves to accept the Torah, and the Talmud says that one is “already under oath from Mount Sinai.” We are under oath to fulfill what we committed ourselves to at Mount Sinai. And then of course the question arises—the Mishneh LaMelekh asks this—if we are under oath to fulfill what we were commanded at Mount Sinai, what obligates me to fulfill that oath itself? The obligation to keep oaths is part of the Torah. So how can it be that my obligation to the Torah is itself based on an oath? If I am not obligated to the Torah, then I am not obligated in that oath either, and so it cannot ground the Torah. The whole thing is circular. And Avnei Nezer’s claim is that an oath obligates not because of the Torah. Eliezer swore, Abraham swore, everyone swore, and it is obvious to everyone that if you swear, if you commit yourself, you need to stand by your word. What you say, you need to do. Okay? And that is a principle that is not because of a command of the Torah. When the Torah said, “He shall not break his word,” it established that there is also a prohibition attached to this, and it said that someone who violates it receives lashes. One does not receive lashes based on logic. I have logic—I would act on it, I know I need to do it even without the Torah’s command, but one does not receive lashes from logic. So the Torah came to give me also a prohibition regarding this matter, but the obligation to keep what I say exists even without that. Maimonides writes in the laws of claims and admissions, chapter 5, he writes: “And one cannot transfer the oath onto a minor, because a minor is not administered an oath at all”—this is transferred oath—“one does not administer an oath to a minor at all, and he does not even accept a general ban, because he does not know the punishment for an oath.” There is no point in administering an oath to a minor, because what is the force of an oath? A person who swears knows that if he swears falsely he is punished, right? And therefore if a person swears about something, I have an indication that it is probably true. Okay? But if someone does not know the punishment for an oath, then he is not afraid of an oath. There is no point in administering an oath to him, because the whole point of the oath is the deterrence produced by the punishment, right? Now these words are very strange. One should not administer an oath to a clever minor? I would be even less willing to administer an oath to him, because he knows there is no punishment for him for an oath. What does “he does not know the punishment for an oath” mean? A minor has no punishment. It is not that he does not know the punishment for an oath—there is no punishment for him for an oath. On the contrary, if he is a clever minor, be even more wary of him, because if he is clever then he knows there is no punishment for him for an oath and he can swear to whatever you want. What does “he does not know the punishment for an oath” mean? Rather, Maimonides here follows the approach of Ri Migash—who was, of course, famously his father’s teacher. What is the idea? The idea is that the obligation to keep an oath exists, and a minor will be punished if he does not keep the oath—not in a human court, but in the heavenly court—and he will be punished if he does not keep the oath because the obligation to keep an oath is not from “He shall not break his word.” The Torah’s prohibitions are addressed to adults; minors are not obligated in them. But prohibitions that come from logic—any minor who understands the logic is also obligated in that prohibition. And everyone has to understand that if he swears, he has to keep what he swore, so a minor too is obligated in that—he just does not know the punishment for violating an oath, so don’t administer an oath to him. But there is such punishment for him even though he is a minor. You can see this in other places as well. And what I really want to say from this—one second—is that maybe this too could be a rationale for why one must obey the sages. The answer is: it is not obedience at all. What we said—“whatever comes out of his mouth he shall do”—that is what we said, and therefore that is what has to be done. Okay?