Biblical and Rabbinic Law – Lesson 4

Table of Contents

• The tangle around the source and validity of rabbinic law
• Breaking the dichotomy and proposing a continuum of levels of validity
• Emerging from the verse: specification, asmachta, and branching out
• Lo tasur according to the Rogatchover, the Or Sameach, and Maimonides
• The difficulty that remains: why not eat poultry with milk if one recognizes authority
• Authority without content and the claim about an “implicit assumption” in the command
• Command and indication, and reasoning that interprets versus reasoning that founds
• Two components in every commandment: formal rebellion and substantive content
• Nachmanides, asmachta, and the Ritva: the same framework in different language
• The authority package: accepting rabbinic law as a whole and not as an individual commandment
• The example of “Love your fellow as yourself” in Maimonides: practical branching out from a commandment of the heart
• A philosophical-legal analogy: cognition versus thought and the boundary of interpretation

Summary

General Overview

The text presents a fundamental tangle regarding the status of rabbinic laws: if they have a source in the Torah, they become Torah-level laws with all the implications of a Torah-level doubt requiring stringency; and if they have no source, then it is unclear why one should obey them. The solution is built by breaking the binary Torah-level/rabbinic dichotomy and proposing a continuum of levels of validity, in which rabbinic laws “emerge” from the verse lo tasur, but not by way of direct specification; rather as an indirect and softer branching out. Within this framework, a distinction is drawn between command and indication, and it is explained that a Torah commandment requires both a command and unique content, whereas branching out, exposition, and reasoning may create intermediate levels that are not fully Torah-level even though they are connected to a source. Later it is argued that the dispute between Maimonides and Nachmanides over lo tasur and asmachta is to a large extent a dialogue of the deaf, and that asmachta in the Ritva and Nachmanides means an indirect connection to the spirit of the verse. The conclusion presents a philosophical-legal analogy in which Torah-level law parallels cognition/interpretation from within the text, rabbinic law parallels thought/legislation, and the intermediate domain between deductive interpretation and legislation is the basis for the concept of rabbinic law and for the debates over “judicial legislation.”

The tangle around the source and validity of rabbinic law

The text presents a dilemma: a Torah source for the validity of rabbinic law turns rabbinic law into Torah-level law, while the absence of a source leaves obedience without justification. The text rejects a solution based on the possibility that the sages may have erred and on a double doubt, and determines that the question is not about reliability but about authority and validity. The text compares halakhic authority to the authority of civil legislation, where what binds is the institution itself and not the assumption that it is always right.

Breaking the dichotomy and proposing a continuum of levels of validity

The text argues that the assumption that there are only two levels of validity, Torah-level or rabbinic, creates a false dichotomy. The text uses the analogy of the “heap paradox” to explain a continuum: a small change alters the situation “a little” without turning it from zero to one. The text proposes that rabbinic law is not a separate world but rather different gradations, and sometimes “half Torah-level” or “somewhat Torah-level,” so that a law can be connected to a verse without being a full Torah-level specification.

Emerging from the verse: specification, asmachta, and branching out

The text distinguishes between the specification of a Torah-level principle into a particular case, such as “he shall not break his word,” which applies a Torah prohibition to a particular vow according to the content of the speech. The text sets against that the opposite pole of a mere asmachta, in which the law does not “emerge” from the verse but is only attached to it as a mnemonic. The text proposes an intermediate category: a law branches out from the verse, is connected to it and understood מתוך its assumptions, but is not included in its direct command, and therefore its validity is intermediate.

Lo tasur according to the Rogatchover, the Or Sameach, and Maimonides

The text cites the Rogatchover as saying that according to Maimonides one violates lo tasur only when the transgression is committed מתוך a principled refusal to recognize the authority of the sages. The text describes a distinction between someone who eats poultry with milk as a denial of the authority of the sages and someone who does so intentionally out of desire but still recognizes their authority, and states that the former commits a Torah-level violation while the latter commits a rabbinic violation. The text explains in the name of the Or Sameach that Maimonides’ words about “a prohibition given as a warning for a death sentence imposed by a religious court” hint that this is a principled Torah-level prohibition in circumstances of rebellion, even though there are no lashes because of the rebellious elder.

The difficulty that remains: why not eat poultry with milk if one recognizes authority

The text argues that the distinction between principled rebellion and a transgression committed out of appetite does not solve the question of the substantive validity of the sages’ decree itself. The text returns to the question of why the rabbinic act is forbidden if it is not a violation of the command of lo tasur in its direct sense. The text rejects a simple analogy to legal “secondary legislation,” because there is no explicit source that the Torah itself divided the authorization of the sages in advance into different levels of validity.

Authority without content and the claim about an “implicit assumption” in the command

The text argues that there is no such thing as authority if the products of that authority are not practically binding, and compares this to a sign saying “criminals will be punished” without defining what a crime is. The text concludes that when the Torah commands obedience to the authority of the sages, it assumes in the background that what the sages determine becomes “forbidden/obligatory” on some plane, because otherwise the concept of authority is empty. The text defines the prohibition against poultry with milk as a violation of an implicit assumption learned from the verse and not as a violation of the direct command itself, and therefore it is not Torah-level despite its connection to lo tasur.

Command and indication, and reasoning that interprets versus reasoning that founds

The text distinguishes between prescriptive statements and descriptive statements, and determines that in Maimonides’ approach a “commandment” requires the language of command and is not satisfied with a factual statement about will or propriety. The text emphasizes the key words for a Torah prohibition such as “beware,” “lest,” and “do not,” and explains that without an explicit command there is no prohibition even if the act is improper. The text cites the Tzelach on blessings over enjoyment in order to distinguish between reasoning that interprets an existing Torah law, which is Torah-level, and reasoning that founds a new law, which is not fully Torah-level but rather an intermediate level.

Two components in every commandment: formal rebellion and substantive content

The text proposes that every prohibition contains a formal dimension of obedience or rebellion against a command, and a substantive dimension of good/evil in the act itself. The text states that the substantive dimension can also be learned by reasoning, but the formal dimension requires a command. The text uses the example of civil law regarding a red light to illustrate that a dangerous act is not a legal prohibition without legislation, and parallels this to Jewish law, where something is not Torah-level without a command even if it appears intellectually compelling.

Nachmanides, asmachta, and the Ritva: the same framework in different language

The text brings Nachmanides’ difficulty from the Talmudic text in Sabbath regarding Hanukkah, “where did He command us,” and the answer is lo tasur, while Nachmanides explains this as an asmachta. The text quotes the Ritva in Rosh Hashanah, who defines asmachta as an indirect emergence from the verse, “the spirit of the verse,” and not as a random mnemonic devoid of meaning. The text argues that Nachmanides too needs a source from the Torah in order to justify obedience, and therefore even in his view the validity emerges from the Torah in a way that is not a Torah-level specification, and the dispute with Maimonides is described as a dialogue of the deaf stemming from a misunderstanding of the level at which the law “emerges” from the verse.

The authority package: accepting rabbinic law as a whole and not as an individual commandment

The text argues that recognizing the authority of the sages cannot be broken down into selective acceptance of particular commandments, because such selectivity makes the person the one deciding rather than the sages. The text states that someone who says, “This one I accept and this one I do not,” in practice does not accept authority, even if in fact he observes some of their rulings. The text refers to different kinds of rabbinic law, such as distancing decrees, enactments like Hanukkah and ritual hand-washing, and laws due to danger, and states that they all operate through the same basic mechanism of branching out from lo tasur.

The example of “Love your fellow as yourself” in Maimonides: practical branching out from a commandment of the heart

The text quotes Maimonides in the Laws of Mourning, where he defines visiting the sick, comforting mourners, accompanying the dead, bringing in the bride, and escorting guests as “positive commandments of rabbinic origin,” while at the same time including them within “Love your fellow as yourself.” The text explains that the Torah-level law deals with the inner duty of love, while the sages translate it into practical expressions as rabbinic enactments. The text states that one can theoretically love without performing the act, or perform the act without love, and therefore the connection is one of branching out and not of specification that would convert those acts into full Torah-level obligations.

A philosophical-legal analogy: cognition versus thought and the boundary of interpretation

The text presents a philosophical distinction between inner thought and observational cognition, and describes how the problem of induction from scientific laws undermines this dichotomy in Hume and Kant. The text maps this onto the legal world: Torah-level law is conceived as cognition/observation of the Torah text and its interpretation, and rabbinic law as thought/legislation that is not written in the source but is created by the sages. The text argues that rabbinic laws that emerge from lo tasur operate in an intermediate domain between cognition and thought, just as in modern law judicial interpretation cannot be pure deduction, and therefore debates over “judicial legislation” reflect that same continuum between interpretation and legislation.

The dilemma was that we basically seemed to have an unsolvable problem. On the one hand, we want to find a source for the validity of a rabbinic law. But what could a source for the validity of a rabbinic law be? A verse from the Torah, a logical argument, an exposition, something from the accepted halakhic sources. If we find such a source, the opposite problem arises: we found a source, and if so then every rabbinic law turns into a Torah-level law, doubts should be treated stringently, with all the implications of a Torah-level law. So apparently this is some kind of knot that can’t be untied, because either you find a source and then you have a problem with the status of rabbinic law, or you don’t find a source and then why obey it? Why listen to them? So there’s something here that, on the face of it, even before getting into this argument or that verse or that logic, structurally this is a problem that seemingly can’t be solved. And there’s an apparent solution of double doubt. I understand. We say that a Torah-level law is something perfect and absolute; there’s no way to think that what comes from there is not perfect and absolute. Human beings, on the other hand, are human beings, flesh and blood, they can make mistakes one way or another. So true, the Holy One, blessed be He, gave the sages authority to make decisions, but that still doesn’t change the fact that they’re flesh and blood. Therefore—one second—therefore I say that when flesh and blood rules, determines, says something, there’s always some concern of doubt about it. But that’s not the doubt we’re talking about. They come and say that in a certain case there’s a doubt, so now it becomes a double doubt, and with a double doubt we’re lenient. No, but the question here has nothing to do with whether it’s correct or not. Obviously the sages can make mistakes; I don’t think that’s the point. The question is: what is the status of their words? The status of the sages’ words has nothing to do with their necessarily not making mistakes, and by the way not even the Torah’s status depends on that. The status of the Torah is the authority that we are supposed to obey what the Holy One, blessed be He, commands—not because He is always right, but because He has authority. There is authority, just as the Knesset’s laws are binding not because it is always right, but because it is the legislative institution, and that is the law. Once they established it, it is the law. I don’t think there is any connection between the question of possible error and the question of whether it has validity. Do you understand? It’s not the same thing. What? In interpretation too you can say double doubt. Right? In interpretation too? Yes, of course. Most Torah laws are laws that come out through interpretation, and they are laws created by sages, by people, by sages. It isn’t written in the Torah, like the Sabbath for example. Okay, go on. Okay, sorry. Can’t you say that the verse commanded this whole knot, to listen to the sages? Right, I’d say that it’s a Torah-level law, but it includes within it a status, as the sages themselves admit, that they said it and they said it. That’s what Nachmanides said. Nachmanides proposes, in Maimonides’ view, that the mechanism of “they said it and they said it” works this way: since they could have enacted the ordinance or not enacted it, they can also determine that in a case of doubt we go leniently. So I said that because the interpretation of the divine command itself—that rabbinic rulings have status—that is built into that interpretation. Yes, but where does that interpretation come from? What is it based on? Where is it written in the verse? Unless the sages decided it, and if you say the sages interpret it that way, then tell me how it is interpreted, where it comes out of the verse. If they decided it—“they said it and they said it”—that’s that Nachmanides. So we discussed that there is… I suggest that the questions be at the end, because we’re not advancing at all. Okay, fine.

So this mechanism basically dictates that structurally there can be only one solution here. And by the way this is always true when we have a two-headed dilemma, a dichotomy. Usually you have to look for some assumption that can be challenged, and suddenly a third possibility appears. I think I talked about this in earlier contexts too—about the heap paradox, or all kinds of mechanisms that lead us from a state where it seems there are only two possibilities, to discovering that there is actually a third. I deal with this a lot. I’ve noticed that usually when I encounter arguments, or see arguments on certain issues, I find myself disagreeing with both sides. And at first glance I don’t really understand how that can be, because it’s either this or that—how can you disagree with both sides? But whenever you dig a little deeper, you discover that it isn’t true. It only looks like there are two options; really there are more. In this context, I presented two possibilities in a brief survey, right? Either find a verse or don’t find a verse. What else could there be? If you found a verse, the problem of validity arises; if you didn’t find a verse, then why listen to it? So again, we have a dichotomous dilemma here. And here too I think the solution is that it isn’t true. It isn’t true because we are assuming here that the dichotomy between Torah-level and rabbinic is binary. That is, either it’s Torah-level or it’s rabbinic. There are two levels of validity in Jewish law and only those two, and therefore you are either here or there. There’s no other possibility. What I want to claim is that this is not true. There is a continuum of levels, and Maimonides calls many of them rabbinic—we’ll see this later too. But in fact the concept “rabbinic” hides beneath it several kinds of laws and several levels of validity, not just one. Like in the heap paradox: we talked about how if there is one hair on a man’s head, then he is bald; adding one hair to a bald man doesn’t change his status; but one hundred thousand hairs is already not a bald person. I don’t know how many, a lot of hairs is already not a bald person. These three things obviously don’t fit together, and what you have to give up is the assumption that adding one hair doesn’t change the situation. Adding one hair does change the situation, a little. It doesn’t turn you from bald to not bald; rather from bald to a little less bald, or a little hairy. And another hair makes you a little hairier, and so on. Basically you have to give up the one-or-zero, the bald-or-hairy; there is a continuum of levels. And that is true in many knots of this kind, these dichotomous knots. Here too, the same thing. My claim—I’m jumping ahead; in a moment I’ll explain it, but just so we understand the methodological framework—my claim is that rabbinic laws come out of the verse “do not deviate,” but they do not unfold from it in detail. They emerge from it in a softer way. We usually assume that what comes out of a Torah verse is a Torah-level law, and a rabbinic law does not come out of the verse—maybe it is only a textual support, but it doesn’t really come out of the verse. So again, it either comes from the verse or it doesn’t come from the verse, right? That is the dichotomy of Torah-level versus rabbinic. What else could there be? My claim is that it sort of comes from the verse. “Sort of comes from the verse” means that coming from a verse is a concept that can happen in several ways. Okay? So there is one kind of coming from a verse that I’ll call specification. Specification. I may have brought you this example regarding a vow. Suppose the Torah says, “He shall not profane his word.” So if a person makes a vow, he creates a prohibition: I vowed not to benefit from a loaf of bread, so I am forbidden to eat that loaf. That is a Torah-level prohibition. Why is it a Torah-level prohibition? Because the Torah says, “He shall not profane his word,” meaning I have to obey and not violate my own speech. Now what did I say? What difference does it make? Whatever I said enters into the Torah-level category. If I spoke about not eating a loaf of bread, then the Torah-level prohibition applies to the loaf; if I spoke about some book, then it applies to the book. It makes no difference; that’s specification. In other words, it is simply an application of a Torah-level law, right? It’s deduction, basically. The rule is the Torah-level law, and this is a specific case of the rule. So of course it will be Torah-level. That is the simple way a Torah-level law comes forth.

On the other hand, the opposite pole, on the other side, says—let’s say—that something is merely a textual support. Fine? “You shall fear the Lord your God,” extending that to include Torah scholars, and suppose that is not a real exposition but only a textual support. What do people mean when they say it is a textual support? They mean that reverence for Torah scholars does not emerge from that verse in any way. We attach it to that verse as a support, a mnemonic, whatever you want—but no, it doesn’t really come from the verse. So if it comes from the verse, it is Torah-level; if it does not come from the verse, it is rabbinic. And a textual support is just a side remark in parentheses, but not all that important. The claim is no: there are things that branch out from the verse, not unfold from the verse in detail. It branches from the verse; it is connected to the verse, but it is not a straightforward application of it. Okay? In such a case, the halakhic status of that law, the halakhic validity of that law, is something between rabbinic and Torah-level, some kind of middle thing—or perhaps rabbinic itself is really something in between Torah-level and permitted. We usually understand Torah-level as one world and rabbinic as another world. No. Rabbinic is half Torah-level; rabbinic is somewhat Torah-level. Okay? That is basically the essence of the matter. In a moment I’ll try to explain it a bit more.

So let’s begin. We started this last time. Last time, I think, I already mentioned the Rogatchover, who explains that according to Maimonides, when do you violate “do not deviate”? It isn’t every time I eat poultry with milk that I violate “do not deviate,” but only when I eat it because I do not recognize, in principle, the authority of the sages. Okay? If I eat poultry with milk because I do not recognize that if the sages prohibited something it binds me—fundamentally I deny their authority—then according to Maimonides I violate “do not deviate” on the Torah level. Okay? But if I just eat poultry with milk—I’m not talking about unintentionally; unintentional is unintentional—but intentionally, I eat poultry with milk intentionally because my impulse overpowered me, I can’t hold out, but I understand that what the sages say is binding, I do not deny their authority in principle—just as with a Torah law, when I violate a Torah prohibition it isn’t because I say that what the Holy One, blessed be He, says does not bind me. Many times people commit a violation because their impulse overpowered them. That’s not unintentional, and it’s not coerced; it’s intentional. But it’s an intentional violation that is not a principled denial of the authority of the Holy One, blessed be He. I understand that it’s a violation, and in principle I also understand that it is forbidden to do it; fine, but what can I do, it’s hard for me. Okay? In a rabbinic prohibition there are exactly the same mechanisms. The offender can violate it because he does not recognize the sages’ authority in principle, and he can violate it because his impulse overpowered him, but he understands that the sages’ words are binding; it is a binding law. The first type is a Torah-level violation—if you violate because you do not recognize the sages’ authority in principle. The second type is the rabbinic violation. That’s what the Or Sameach says. Therefore he says that when Maimonides says we do not administer lashes for “do not deviate” because it is a prohibition given as a warning for a capital offense adjudicated by a religious court—something Nachmanides himself proves from these words of Maimonides, that Maimonides really means it is genuinely Torah-level, “do not deviate,” not just words. It is a Torah-level prohibition. In principle, one would have had to administer lashes for violating a rabbinic prohibition. It’s only because it was given as a warning for a capital offense adjudicated by a religious court that we don’t administer lashes, because in the case of the rebellious elder they kill on the basis of “do not deviate.” So a violation for which one is put to death under certain circumstances—the rule is that you do not receive lashes for it. So here it is clear: Maimonides is basically saying that one should have received lashes for it; this is a Torah-level violation. Right? All this is when you violate in principle—you do not recognize the authority of the sages in principle. That is called “do not deviate,” meaning you do not recognize the idea that they bind you to obey the sages. When you do not recognize at all the command to obey them, then you have truly violated what the Torah said. If you merely eat poultry with milk, then you violated what the sages said, not what the Torah said. The Torah said to obey the sages; it did not speak about poultry with milk. The sages spoke about poultry with milk. So when do you go against the Torah? When you do not recognize the sages’ principled authority, because that principled authority is the verse “do not deviate.” That is a distinction specifically… What? Is that specific to that one violation? What? If you violate—you don’t eat—you eat meat with milk because… Poultry. But I recognize their authority in other commandments. No, that too is Torah-level, I assume. What? There is no such thing as recognizing authority here and not recognizing authority there. If there is authority, there is authority. No, he means in general, for all the… Is that the distinction between defiance and appetite? No, no, why? Defiance and appetite are two different motivations of a person who does understand that the violation can depend on what exactly “defiance” means—the question isn’t simple—but one could understand “defiance” as meaning to provoke, but not that I don’t recognize that it is forbidden. I do it to provoke; it isn’t for the appetite. Anyway, that is the Or Sameach’s distinction. It seems obvious to me, I mean it’s clear that this is correct. Look in the index volume to Maimonides at the end; he brings other later authorities who say this. I think he brings the Or Sameach, but there are several others who say it. It seems obvious to me that this is so.

The problem is that even this explanation—even if it is correct in Maimonides—the question is whether it answers the question. Because then the question comes back: so why not eat poultry with milk? We’re right back where we started. You ask, why not eat poultry with milk? Now I do recognize the sages’ authority in principle. Fine. But my impulse overpowers me and I want to eat poultry with milk. You tell me: that’s a rabbinic violation, because you recognize the sages’ authority. Fine, so why obey it? What will you tell me? That it comes from “do not deviate”? We said no. From “do not deviate” all that comes out is that I must recognize the sages’ authority in principle; the actual eating of poultry with milk is not against “do not deviate.” So what question have you solved here? In the end the question still remains: so why not eat poultry with milk? We were looking either for a source, or if there is a source then it is Torah-level, right? That was the game here. And you didn’t solve it. So you told me there are two ways to violate: for the first there is a source, and it really is Torah-level; for the second there is no source, and it really is rabbinic. Fine. So now let’s talk about the second and repeat the whole discussion from the beginning. There is a source; it’s just not detailed. Okay, and that’s why I say—because I introduced this point earlier—that it is a branching-out and not a specification, precisely in order to explain what is going on here.

Now look, I’ll explain this in a more specific way. At first glance one might have said this is like what is called secondary legislation in the legal world. That is, the Knesset authorizes the director-general of some government ministry to issue regulations in his area, right? And then the regulations he issues are binding. And indeed, in terms of legal hierarchy, as I understand it at least—I’m not a lawyer—as I understand it, those regulations have a lower status than a law passed by the Knesset. Because after all this is a secondary body to which the Knesset delegated authority. In halakhic terms, such a thing is problematic. It is problematic because in the end, when you violate that regulation of the ministry’s director-general… practically speaking, you have indirectly violated a law of the Knesset. Fine. So the Knesset itself can of course say that this is lower, because that’s what we say—not in the conceptual framework—but the Torah didn’t say that, or at least I don’t know where it said that. So as long as I don’t find where the Torah said this, that solution isn’t enough. It doesn’t answer the question, because I’m asking: where did the Torah say that violating and not obeying the authority of the sages is indeed forbidden, but with a lower level of validity? It didn’t say that it is forbidden. It said that one must obey the sages. That is what it said. It seems to me that the solution here is this: the Torah basically said that one must obey the sages, and therefore one who does not recognize their authority has violated a Torah-level law. The question is whether it is logically possible for a person to have full authority to decide something, and yet you don’t really have to obey him. That is basically what comes out, right? The Torah says that the sages have authority to establish various rules, ordinances, decrees, and so on—but in fact you don’t really have to obey. You only have to recognize their authority, but if you do this in a way that recognizes their authority—only my impulse doesn’t stand up to it, whatever—then it’s fine, right? In Torah-level terms, it’s only rabbinic. Can there be such a state? Can there be a state in which someone has authority to establish something, while in fact anyone who hears what he established can violate it, no problem? That’s very similar to illegal parking. I recognize the authority of the state to determine where one may and may not park. Sometimes there’s no time, and I park in a forbidden spot. Wait, one second. I recognize the authority. So what? But are you violating a prohibition? I’m not—yes, I am—but I’m not denying their authority, and I also accept the punishment. You’re explaining how a person can commit the second kind of violation. I have no problem with that. Obviously, I know how a person can commit the second type of offense, to recognize the sages’ authority and still violate it. I’m not talking from the side of the offender, how this happens. I’m talking from the side of the system—how does it relate to that person? It really does relate to him differently. Why differently? Because it’s not criminal, for example, it doesn’t go to court? Not related. Even if you don’t recognize the authority of the law, that’s not criminal. You park illegally—that is what you are sued for, nothing else. Because it doesn’t belong to criminal law. Fine, that’s only legal classification, not because you recognize the law’s authority. So the point is this: you know, in Milne’s book, Winnie-the-Pooh, there’s a sign on Piglet’s hut that says: “Trespassers Will.” That’s what is written on the hut. Some distortion, never mind, a children’s book. But “Trespassers Will.” It was eye-opening when I saw that. What does “Trespassers Will” mean? It doesn’t say what the offense is. What do you have to do to be an offender? In other words, it says on the hut, you come there: “Trespassers Will.” But what do you have to do to be an offender? I don’t know. There’s nothing—just don’t be an offender. In other words, you have to recognize Piglet’s authority, but it doesn’t matter at all what he said or whether you obey him, because nothing is defined as an offense. There is no such thing; it is not logically defined. In other words, when the Torah says there is a prohibition against not obeying the sages, against rebelling against the sages, it implicitly assumes—not says this explicitly, but assumes—that obviously what they say is binding, right? Meaning that I may not eat poultry with milk if they said so. But notice: the Torah does not command this; it assumes it. The Torah commands the authority of the sages. It says: what the sages say, you must obey, and if you do not obey, then you violated “do not deviate.” That is what the Torah says. But I ask myself: wait, how can it be that they are given authority if in fact whatever they say I can do the opposite of? That cannot be. Therefore it is obvious that in the background—suppose I did not think that poultry with milk is a problematic act, right?—then what is the meaning of my having rebelled against the sages’ authority? I did not recognize their authority to determine what? That poultry with milk is something problematic—but it isn’t. So what does it mean not to recognize their authority? It is exactly like “Trespassers Will.” In other words, the Torah is telling me: you may not fail to recognize the authority of the sages. They have authority. Authority over what? I don’t know, over nothing, because anything they say I can in fact do the opposite of, so long as I recognize their authority. So what is meant by their authority—authority over what? They have authority to determine which acts are forbidden and which are permitted, right? Because if the act is neither forbidden nor permitted, then what is the content of that authority? There is no concept of authority unless the product of that authority is binding, unless it says something.

So you’ll say: fine, then how is that different from specification, or from prohibition—so we’re back to Torah-level law. Anyone who eats poultry with milk commits a Torah-level offense. No. Because someone who eats poultry with milk has not gone against the Torah’s command. The Torah’s command is to give the sages authority, validity. When I go against their validity, then I violated “do not deviate”; I went against the Torah’s command. Here, though, something came out indirectly as a kind of implicit assumption in what the Torah says. The Torah says that the sages have authority, so I understand from that that what they say must be forbidden or obligatory, because otherwise the concept of authority is empty. But I understand that as an assumption lying behind the Torah’s command. It is not the command itself. When I eat poultry with milk while recognizing the sages’ authority, I have not violated the Torah’s command. But if it’s a Torah assumption, then why isn’t it Torah-level? Exactly—that means I violated an assumption implicit at the basis of the Torah’s command.

Now, why is it not Torah-level? You just said… We learned that things derived by logic are Torah-level. Why is this different? Partially. I’ll qualify that. I’m about to discuss exactly that. I just finished a very large article on this issue. There it became sharper for me, in a more pointed way. I really don’t know how much I sharpened it when I spoke about logic. Look, it is usually accepted to think that logic is Torah-level. Right? As the Talmud says, “Why do I need a verse? It is logical.” You see that logic is a substitute for a verse. In other words, it has exactly the same status. What difference does it make whether it is a verse or logic? But on the other hand, it is quite clear that a commandment that comes out of logic—for example—would not incur punishment by a religious court. The Talmud says regarding blessings over enjoyment, one must bless over food before eating it, in Berakhot 35. The Talmud asks where this comes from. It goes back and forth, and in the end: it is logical. Anyone who enjoys this world without a blessing is as if he has committed sacrilege. It is forbidden to enjoy this world without a blessing, and anyone who enjoys is as if he committed sacrilege. Fine. So now what? The Pnei Yehoshua asks: if so, then this is a Torah-level law, because logic is like a verse. So if this law comes out of logic, then it is Torah-level, with doubt treated stringently and all the rules. And the Tzelach says: what are you talking about? We discussed this once, a long time ago. The Tzelach says: what are you talking about? Where do we ever find such a thing, that something derived from logic is Torah-level? Doesn’t the Tzelach know the Talmudic statement “Why do I need a verse? It is logical”? Of course he knows it. So what is the meaning of the matter? He says that when logic serves to interpret an existing law, then that law is Torah law. But if logic establishes a new law, then it cannot be fully Torah law. In other words, not fully Torah law; it is something in between. A classic example is a person who saves himself by killing someone else: “Who says your blood is redder than your fellow’s?” One who kills him is a murderer; he receives punishment… he is exempt because of coercion… yes, but there there is the prohibition “You shall not murder.” So you can say that this logic is interpretive logic within the parameters of “You shall not murder.” In the case of blessings over enjoyment there is no root commandment within which logic tells me a parameter or detail in the commandment. It establishes a new prohibition or a new obligation. That is a bit different. Because “You shall not murder” is written in the Torah. The logic helped me understand when “You shall not murder” applies and when it does not. That is interpretive logic. Obviously there is—no one argues about this—a Torah prohibition, and logic only tells me what the verse means. But here I am talking about logic that establishes a new law; it does not interpret a verse, it is the source of the law’s validity. Okay? That is what the Tzelach says: it is not Torah-level.

In all the places in the Talmud where it says “Why do I need a verse? It is logical,” is it always talking about a case of a law that is… yes. That it is not a new law? Yes. Did you go through all of them to see that this is the case? I did. Logic that establishes a new law is a very rare thing, because generally it is always presented as some detail or parameter within an existing law. It applies here, it doesn’t apply there. Blessings over enjoyment is almost the only example I can think of. So this remains the picture? Logic is Torah-level except for an exception? I’m saying: logic is Torah-level where the logic deals with interpretation of a verse from the Torah. Fine, because logic is an interpretive tool to understand what the verse says. So it will be Torah-level because of the verse, not because of the logic. The logic only tells me what the verse obligates. But when logic establishes a new law, that is not Torah-level law. That is what the Tzelach says. What is the idea behind that? The idea is that in order for a law to be genuinely Torah-level—and we’ll come back to this later too—you need two things: you need a command, and you need content behind it. In the ninth root, Maimonides divides the root into two parts. In the first part of the root, Maimonides says that if there is a commandment repeated several times in the Torah, we count it once in the enumeration of commandments. The Torah repeats the commandment to observe the Sabbath twelve times; we do not count twelve positive commandments to observe the Sabbath, but one. The Torah repeated it a number of times in various places… there are many commandments the Torah repeats. Once. That is the first part of the root. In the second part of the root, Maimonides discusses a general prohibition. A general prohibition means when there is a verse like “You shall not eat over the blood,” and from it several different prohibitions emerge that seemingly have no connection with one another. It is a warning to the stubborn and rebellious son, a warning to a religious court not to eat on the day they decree death, a prohibition against eating before prayer. Maimonides brings this—and by the way it implies that this is Torah-level. So Rabbi Yerucham Fishel Perla asks: there is a contradiction between the two parts of the root. In the first part Maimonides says that the number of commands does not determine things; what determines things is the content. If there are twelve different commands with the same content, we count it once. Why should I care about the command? The question is the content. In the second part Maimonides says the opposite. I have one command with five contents, and we count it once. Meaning, the command determines, not the contents. So make up your mind: does the command determine or do the contents determine? So what is the answer? Both. No, both. What you need is that—yes. In order for a commandment to be Torah-level according to Maimonides, there has to be a command and it must have its own unique content. A unique command and unique content—only then is it Torah-level. If one of them is missing, then it is not exactly Torah-level. What is it then? I’ll comment on that in a moment. But it’s not exactly Torah-level. For example, one would not punish for it. Maimonides writes: there are no punishments unless there is a warning. And in a place where there is no warning, you cannot punish. Therefore Maimonides also writes that—well, this is really the next subject, the second part of the issue—that when a law emerges from an exposition, one does not punish for it. Why does one not punish? Because according to Maimonides in the second root, these are words of the sages. Why? Because Maimonides understands that an exposition is not something written in the Torah. Therefore it is called punishing without a warning. There is no warning in the Torah. You expanded it, extracted something from the Torah, but still—it is not there. There is no warning from the Torah, and therefore one does not punish.

So basically what Maimonides is saying is that without the thing being written in the Torah, it cannot be fully Torah-level. What lies behind that? Linguistically, one can basically speak about two kinds of verses or sentences. There are command sentences and declarative sentences. Declarative sentences are sentences that tell me, report to me, some fact. For example: the light is on here. A declarative sentence. It conveys to me a fact, that the light is on here. There are command verses. A command verse says to me: “Put on tefillin.” “Put on tefillin” does not convey a fact; it commands me. Now there are those who understand that when the verse says “Put on tefillin,” it is really a declarative sentence. It merely says that the desire of the Holy One, blessed be He, is that you put on tefillin, or that putting on tefillin is a worthy act, a good act. Basically the verse only gives me factual information. I naturally understand that if it is a good act, or if it is what the Holy One, blessed be He, wants, then one should do it. What I want to claim about Maimonides’ method—you can see this in many places—is that this is not true. A command verse is not a verse that conveys facts. A command verse is a command verse. It is the opposite of a declarative verse. Therefore, if the Torah says something in declarative form—say, putting on tefillin is a worthy act—that is not a commandment. It is not a commandment. It is a good act, and it is not a commandment. A commandment requires command, because that is the root meaning of commandment. In order for something to be a commandment, there must be a command about it. If there is no command, it is not a commandment. Just like with law. Suppose everyone understood that driving through a red light is dangerous. But the Knesset did not legislate a prohibition against driving through a red light. Did someone who drove through a red light violate the law in that case? Obviously not. He did something problematic, but as long as the law did not establish it, there is no prohibition, right? That is exactly what Maimonides says about commandments. As long as the Torah did not command a prohibition about that thing, then even if it becomes clear to you one way or another that it is an unworthy act, as long as there is no command about it, it is not a commandment. Okay? That means that command verses, the verses of commandments, are not declarative verses; they are command verses. That is a different type of verse. Therefore the sages say that “take heed,” “lest,” and “do not” indicate a Torah-level prohibition. In order for me to know whether a certain thing is a prohibition, there are key words that signal it. If it says “take heed,” or “lest,” or “do not,” then that is a prohibition. But if it says something else, some general statement, then there is no prohibition. Even though it may be possible to learn from it that there is an act here that is not appropriate to do. But a prohibition it is not, because for a prohibition you need language of command: “take heed,” “lest,” or “do not.” Okay? So that is the meaning.

Now what does this really mean? That behind every commandment and every prohibition there are really two components. One component is obedience and rebellion, meaning against the command of the Holy One, blessed be He. And the second component is the substantive component. Suppose I eat pork. Then I did two problematic things. One thing: I rebelled against the command that forbids eating pork—that is the formal dimension. Beyond that, there is probably some reason why the Torah forbade eating pork. So I also did something problematic because of the substantive dimension in that prohibition. Okay? And the same is true for positive commandments. I took the lulav, so I also fulfilled the command of the Holy One, blessed be He, but I also did something positive because of which the Holy One, blessed be He, commanded it. There is apparently some kind of benefit to it. Does there have to be some benefit? Why did the Holy One, blessed be He, command it? I don’t know. I don’t know the benefit, but there has to be some benefit. This is Maimonides in Guide for the Perplexed—maybe I’ll speak sometime about reasons for the commandments. He argues that there isn’t? Yes, nonsense I’m saying. Maimonides on this issue, fine, on the reasons for the verses maybe one of the next topics we’ll discuss. Maimonides comes out sharply against the view of those who say that the commandments have no reason. And the opposite too—there are those for whom the commandment is greater if it has no reason, because otherwise it’s just some human matter. He says they make the Holy One, blessed be He, smaller than His creatures, because His creatures behave rationally—they don’t do things for no reason—and He just did things pointlessly. That does not make Him greater; it makes Him smaller. Fine, we’ll talk about that sometime. In any case, my assumption is that there are reasons behind these things. Since that is so, these two dimensions in every commandment—one is the command, and the other is the substance. The command has to begin with a verse. There has to be a command in order for there to be a dimension of command, right? Now if there is no command, then there is no such dimension. There is the substantive issue—it may be a worthy or unworthy act—but there is no command. Okay?

Now what happens with something that comes out of logic? Something that comes out of logic means that logic tells me that it is appropriate or inappropriate to do it. So the substantive dimension can be learned from logic exactly as from a verse. But as long as there is no command, it cannot be a halakhic prohibition; it is only an unworthy thing, like with the Knesset and the red light. Why? Certainly. It could be that the command includes within it all the things derived from it by logic. Which command? The command from which—no, there isn’t one. It doesn’t come out of any command. That is exactly what I’m saying. If the logic is “it is logical,” yes. If the logic adds a detail to a command or an interpretation of a command, then yes—that is what I said before. Logic like in blessings over enjoyment. Yes. Then what does “Why do I need a verse? It is logical” mean? Only in interpretive contexts. No, but the addition of the verse that commands or forbids is substantive according to what you’re explaining now. No, because in interpretive contexts, no. In interpretive contexts there is logic that interprets a verse, so I don’t need to find a source in a verse for this detail I just added, because that detail enters into the command that I am interpreting, and so it really is Torah-level. Only about that does “Why do I need a verse? It is logical” apply. Only about that do the Talmudic passages say “Why do I need a verse? It is logical.” So basically the Tzelach says this explicitly there in Berakhot—that this only applies to a law among the laws within an existing command. So what am I saying? If I go back now to “do not deviate,” then “do not deviate”—when I look at what the verse commands—the verse commands accepting the sages’ authority, right? “Do not deviate,” that you should obey them according to all that they instruct you. Fine. So if so, there is a command about that. One who does not recognize the sages’ authority violated a command, because the command says they have authority. But one who ate poultry with milk while recognizing the sages’ authority has violated something that is an assumption standing at the basis of that command, an assumption that I infer from the basis of that command—but he has not gone against the command. The command only says to recognize their authority. I recognized their authority; I just do a logical analysis and say: how can it be that someone is given authority and yet whatever he says remains a neutral act—one can do it or not do it? That cannot be. Therefore I say there must be some additional category called rabbinic laws, which says that the things the sages say are prohibited or obligatory, depending on whether it is a positive or negative commandment—there has to be such a category. So what does that mean? That the Torah revealed to me that there is such a plane. It did not command that plane; rather it was revealed to me through interpretive tools of one kind or another. Therefore it is not a Torah-level prohibition. Therefore it is not a Torah-level prohibition, because it is a declarative verse, not a command verse. That sounds to me like logic. What? What you are saying sounds like logic. Correct. And logic derived from a verse is Torah-level. No, but this logic does not come to define the content of the verse. This logic is learned from the verse. That is not the same thing. There is a situation where the verse commands me something, and I say, from logic I understand that if it commands, then apparently something of this sort matters to it. That is a conclusion that does not interpret the content of the command. If I were interpreting what is included in the command, then yes, that would be Torah-level. Here I am not saying that this is included in the command. The command would have no meaning if there were not an additional category called rabbinic laws. So it was revealed to me that there is such a category. But where is the command to obey that category? I know—it is a declarative verse. It reveals to me a fact: there is such a category. Okay, and therefore? Therefore those are rabbinic commandments. That is, the verse commands the authority of the sages. My analysis says: there is no such thing as giving someone authority if what he says remains neutral, meaning permitted whether to do it or not do it. So to me, as a logical conclusion, the Torah apparently assumes—not commands, but assumes—that there is such a thing as the rabbinic plane, rabbinic prohibitions and obligations. But the words in the Torah do not fit what you are saying, because it says “do not deviate.” Okay. What is “do not deviate”? That is not authority. No, “do not deviate” means do not rebel against the authority; it is not about the act. It is not about the act itself that you do. The act that you do—so what? I brought the Netivot, if you remember, who says that one who sins in a rabbinic matter unintentionally, the Netivot says he does not even need repentance. Why not? In the end I ate poultry with milk, I deviated. No. To deviate from their words means to know that there is a command and then violate it. Since “to deviate” means to rebel—not “to deviate” in the sense of don’t do the thing they said not to do. That’s not it. But I do understand that obviously there cannot be a prohibition against rebelling if the command itself has no status at all. So from this the Torah indirectly reveals to me that there is a plane called rabbinic laws. But it only reveals this to me; it does not command it to me. Once it only reveals it, from my perspective it is a declarative verse, not a command verse. Therefore it is not a Torah-level law; it is a rabbinic law.

So what I am saying here is what I said earlier: in practice I can now speak of three kinds of relationship between a law and the verse from which it emerges. The first type is implementation or specification. The law is basically a specific implementation, a deduction, right? A specific implementation of the verse. Like “He shall not profane his word”: I vowed concerning bread, then I ate the bread even though I had forbidden the bread to myself. That is a private case of “He shall not profane his word.” So that is a simple implementation. Because here the Torah itself commanded not to profane one’s word. Fine? So I acted against the Torah’s command. That is what I call specification or implementation. There is a second state—or third, let’s say, the other extreme—where it is only a textual support. The law does not really emerge from the verse; rather they attached it to the verse. But it does not really emerge from the verse; it is a law established as an independent law, not truly connected to the verse. Just one second—there is only a textual support, yes? Some kind of mnemonic or something like that. In a moment I’ll qualify that. What I want to argue here is that there is something in between. There is a situation in which the law branches from the verse, but not in the sense that the verse commands it; rather, from the verse I understand that apparently this too exists, that this too is something right to do, or forbidden to do, or something like that. If I only understand it from the verse, not that it commands me. It’s like if I say to a person, “Go there,” versus “I would be very happy if you went there.” You understand there is a difference. If I say, “I would be very happy if you went there,” then I’m only revealing a fact to him—that it would make me happy if he went there. If I say, “Go there,” that is a different linguistic statement; it is a command. Fine? That is exactly the difference. So “do not deviate,” when I rebel against authority, that means I go against the command. The command says there is authority. When I merely eat poultry with milk but recognize the authority, then it is like “I would be happy if you went there.” In other words, I violate what I know the Holy One, blessed be He, does not want me to violate, but He did not command me about it. Therefore it is not Torah-level; it is only rabbinic.

Yes. But you basically started with the dispute between Maimonides and Nachmanides, where Nachmanides does not accept what Maimonides says. Now really, with Maimonides there wasn’t such a problem, but now what you’re saying could be applied to Maimonides. But Nachmanides apparently uses this whole verse for the matter of the sages’ interpretation, and therefore why don’t we remain with the same problem in the same place according to Nachmanides? Because according to Nachmanides, the interpretations, the expositions of the sages, really are Torah-level, so what is the problem? Maimonides. Yes, according to Maimonides only the expositions and interpretations are Torah-level, and only on that does “do not deviate” apply. But all their legislation—Hanukkah, Purim, decrees, and so on—that is rabbinic. It is rabbinic and not connected to “do not deviate.” We talked about the question why, so why yes? In other words, basically all you’re saying right now is really only according to Maimonides and not according to Nachmanides. For now. In a moment I’ll continue. For now, yes, okay?

Now, if so, it seems to me—notice, let’s return for a moment to the general framework. What came out here is not a local answer. It cannot be otherwise. There is no other way out. Either there is a verse and then it is Torah-level, or there is no verse and then why should one keep it? There has to be a verse here, but it does not emerge from it in the simple way of specification, but rather in an indirect way—in the mode of declaration, not command. Everything I have explained now. It has to be this way structurally; not because I happened to find a solution. The problem dictates this kind of solution. There cannot be any other solution. Now if that really is so, then it cannot be that Nachmanides disagrees with this too. What does he propose? He is in the opposite problem, as we said before. According to Nachmanides, it does not come out of “do not deviate,” so if it does not come out of “do not deviate,” why obey? These are the two sides of the blanket, right? So why obey? So I say: there too there is a source. Then what does he want from Maimonides? According to his own approach too, then, it is Torah-level. Nachmanides is also stuck inside the same knot, because this knot is a priori. In other words, it cannot be: either there is a verse or there isn’t a verse, and both possibilities are problematic. So the whole move I made until now has to be true for everyone. It cannot be only according to Maimonides, because this is the only possible way out. That is basically what I want to claim: that Nachmanides also agrees with this. But he already appropriates this whole passage only for the matter of… No. What I want to say is that Nachmanides understood Maimonides…

First of all, maybe one more introduction. Nachmanides writes—there is a Talmudic passage, the Talmud says in the second chapter of Shabbat regarding Hanukkah: where did He command us? We recite the blessing, “Who sanctified us with His commandments and commanded us to light the Hanukkah lamp.” And where did He command us? The Talmud says in one of the answers: in “do not deviate.” Nachmanides says: well then, that is proof for Maimonides, that Hanukkah really is not an exposition or an interpretation of the Torah. Hanukkah is a rabbinic ordinance. And you see that a rabbinic ordinance comes out of “do not deviate.” So Maimonides is right. It is proof against me. Nachmanides himself raises this difficulty. So Nachmanides says: it is a textual support. But what does “textual support” mean? Well, Nachmanides’ students—the Ritva, for example—explain what a textual support is. In Rosh Hashanah 16, the Ritva says that textual support is not the way people usually understand it, that textual support means only some mnemonic device or something like that; basically the law is not connected to the verse, but it’s attached to the verse as a memory aid. The Ritva argues that textual support means exactly what I said before: textual support is something that comes out of the verse, but not directly. The spirit of the verse, if you like, or something of that sort—which completely parallels what I said before. So it is not included in the command itself of the verse, but it is the spirit of the matter. In other words, you can understand from the verse that this too ought to be forbidden or obligatory, yes, depending on whether it’s a positive or negative commandment. And that is what is called textual support.

Now if that is really so, it seems to me that this is what Nachmanides also means. When Nachmanides says that “do not deviate” is a textual support, he does not mean to wave us off, as people always do, as is often implied in Tosafot. Fine, textual support means: ignore it, it’s nothing. Nachmanides says no. Textual support means that it does not emerge from the content of the command “do not deviate,” and therefore it cannot be Torah-level, but it is learned indirectly out of “do not deviate.” And that is textual support. Exactly as the Ritva says. So basically Nachmanides also means… otherwise what does he answer? Why should one obey the sages? We already went through all the possibilities there in Nachmanides, and all of them were difficult. So why obey the sages? According to Nachmanides, if there is no verse and no source whatsoever, that cannot be. So why obey? He says one should obey because we learn from the Torah in some way that it is proper to do so. But it is not a command, because if it were a command it would be Torah-level. So it is not included in “do not deviate”; that is what he attacks Maimonides for. But it does emerge from “do not deviate” in some way, and that is what he means when he says this is from “do not deviate”—it is a textual support. That Talmudic passage in Shabbat, yes, that says “Where did He command us?”—in “do not deviate.” So really that is exactly what he is saying.

So what is the dialogue between him and Maimonides? To my mind it is a dialogue of the deaf. They are both saying the same thing. Maimonides says it one way, and Nachmanides attacks Maimonides because he thinks Maimonides is talking about specification. He thinks that when you eat forbidden fat you have violated a Torah prohibition. In other words, Nachmanides did not understand… Exactly. Nachmanides did not understand that Maimonides basically also means what he himself means. So he says to him: what, this isn’t Torah-level, so why aren’t doubtful cases treated stringently? Because he understood Maimonides to mean that anyone who eats forbidden fat violated “do not deviate.” He said no, it is a textual support. It’s not that he violated “do not deviate,” right? Maimonides too means to say that he violated what comes out of “do not deviate”; he did not violate “do not deviate” itself. One violates “do not deviate” only when one does not recognize the sages’ authority in principle. That is really the core of the matter.

Wait, if the essence of the prohibition of “do not deviate” is defined as rebellion, then is that a prohibition that exists only in thought? Yes. In other words, there is no rebellion—there’s no dimension of rebellion in it. Exactly. It is a prohibition consisting in doing a problematic act that does not go against a command of the Holy One, blessed be He, or of the Torah. Like driving through a red light when there is no law of the Knesset forbidding it. It is a problematic thing, you are still endangering lives—but here there is a prohibition. What is the essence of the prohibition of rebellion if I violate… In Jewish law it is a prohibition. I did not violate any rabbinic law, but exactly as on the road… No, you violated a rabbinic law, not a Torah law. On the road, exactly the same—I don’t recognize the essence of the prohibition, but I obey because I don’t want a ticket. Okay. So am I rebelling, as it were, in terms of “do not deviate”? You mean from the legal perspective. From the legal perspective, obviously not. No, I’m saying in the rabbinic parallel. I don’t recognize rabbinic laws at all for various reasons, but I obey them anyway. Do I violate a Torah prohibition? What is the substance of the command if there is no act here? What kind of command is that? What command? “Love your neighbor as yourself”—what is the meaning of that command? There are commands about matters of the heart too. Faith—what is the command of faith? Fear of Heaven? These commandments apparently have no practical expressions, and yet they are commandments. The Torah commands things of the heart too, not only acts. Okay.

I want to… yes. What did I say before? That it must be something like this according to Maimonides, because this is the only possible way out. Why are you convinced there is no other way out? The Sforno—some proposal, a nice explanation—but no, not this specific explanation. It could also be his cousin. But it has to be an explanation of this type. That is, it has to be some way in which it comes out of the verse, but not that the verse commands it. Now I proposed one mechanism, and of course there can be other mechanisms too, but the logical structure has to be like this. Because it cannot be either there is a verse or there isn’t a verse, and both possibilities are problematic. It has to be that there is something here that is connected to the verse but not completely, right? That’s how I started. In the end I proposed a particular mechanism showing how this can be, but of course there can be others.

Look, I want you to understand this. Are rabbinic commandments a package that you either accept or rebel against, or can it break down into individual commandments? In other words, can a person say: I accept the Torah and rabbinic law in general, but this specific commandment I do not want? So I said—someone asked this before—I said it’s a package. Because if you do not recognize the authority of the sages, what does it mean if you don’t recognize it in one commandment? You’re basically deciding on your own what you recognize and what you don’t recognize. So you do not recognize the authority. The fact that you accepted the rest—only because you decided to accept it. You decided to accept it. That doesn’t matter. The fact that I decide what I accept and what I do not accept means that I do not accept their authority. Because authority means not that I decide, but that what they say decides.

There are several kinds of rabbinic law. There is something like the Sabbath fence or poultry, where they say: distance yourself from Torah-level law. There is a second type like Hanukkah, ritual hand-washing, and so on. There are things where they say only this is dangerous or something, don’t do it—there’s some logic or something. Is there no difference among all these kinds? From this standpoint, I don’t think so. Different types of “do not deviate,” but all of them are under the same “do not deviate,” as branches of “do not deviate.” Does Maimonides use terms like “according to their words”—does he say “words of the sages”? No, those are translations into Hebrew. But in the Mishneh Torah? There, there is no strict consistency in terminology. But in the second root, when he speaks about laws of the thirteen interpretive principles, he says these are words of the sages. Some have tried to base things on this, saying perhaps “words of the sages” is a different concept from “rabbinic,” but in the Arabic original that is not so. It is written in Arabic in the original; it’s the same thing. Not that I know Arabic, but those who do have written that it is not true; that’s only in the translation. Anyway, in the Mishneh Torah too you can see that he uses “rabbinic” and “words of the sages” completely interchangeably. There is no precise significance there.

Maybe I’ll bring another example. Look, Maimonides in the Laws of Mourning, beginning of chapter 14, writes: “It is a positive commandment of their words to visit the sick, comfort mourners, bring out the dead, bring in the bride, accompany guests, and engage in all burial needs, to carry on the shoulder,” and so on, “to gladden bride and groom. These are acts of kindness done with one’s body that have no measure.” Even though all these commandments are from their words—he begins by saying it is a positive commandment from their words—even though all these commandments are from their words, they are included in “Love your neighbor as yourself.” Whatever you would want others to do for you, do for your brother in Torah and commandments, your brother in Torah and commandments. So is this rabbinic or Torah-level? He begins by saying it is a positive commandment from their words, and then says that all this is included in the positive commandment of “Love your neighbor as yourself.” If it is included in the positive commandment of “Love your neighbor as yourself,” then it is not from their words; it is Torah-level. Maimonides counts “Love your neighbor as yourself.” So what is happening here? Again, this is an example of commandments that emerge from the verse, but they are not its specification. They are included in that verse, but they are not the result of that verse, the result of the command. Therefore they are rabbinic commandments even though they emerge from that verse. In this context, the mechanism is a little different, I think, but it is still the same idea. “Love your neighbor as yourself”—we spoke earlier about commandments that concern matters of thought, right? “Love your neighbor as yourself” is a command directed to the soul, meaning one must love one’s fellow. The acts that derive from that are rabbinic. The Torah commands me to love; it does not tell me what to do with that. The sages say: fine, one who loves also helps him, also accompanies the bride, also accompanies the dead, and gladdens the bride, and so on. Obviously there are practical expressions of this, but that is not what the Torah said. The Torah said: love. That’s all. If someone loved the bride but did not go to gladden her, then he fulfilled the Torah-level law but neglected the rabbinic one. And the opposite: if someone gladdened the bride but did not love her—love in the non-romantic sense, I mean, unless he’s her husband—then in that case he fulfilled the rabbinic law but not the Torah-level law. But the rabbinic law is derived from the Torah-level law? No, it is not derived; it branches out. That is exactly the point. The sages say: since I have an obligation to love the other person, it follows naturally that you should do actions that express love. But that only branches out from it; it is not the implementation. There can be love without doing this, and one can do this mechanically, by rote, without loving. And that will be the difference. This is rabbinic and that is Torah-level. Even though there is obviously a connection. When the sages established these rabbinic obligations, they established them from the spirit of the verse “Love.” What they list. Yes. So if you see other things that you… then would that not be rabbinic? Rather only if it gives expression to love you fulfilled the Torah-level law, and if not, then you fulfilled nothing. And that is only what they wrote. Yes, unless you say these are examples. It could be that these are just examples, but really every form of helping another person is included in those examples. There is room to interpret it that way too. Yes.

On that basis I return to the… there are three different levels, the sages recognize this. To hand something directly, to cause “do not place a stumbling block” in the literal sense, and bad advice on the other side. Okay. Yes, are all those under the same… Is it all interpretation of “do not place a stumbling block,” or is it branching, or is it fixed? In the simple reading, it is interpretation of “do not place a stumbling block.” Why assume it is branching? Even bad advice? Why not? And how is that different here from “Love your neighbor as yourself”? Because there Maimonides says those are branches. No, there it’s two… there it’s two kinds of acts. It’s exactly the same thing; that’s the example. Here it is not one example and other examples, but a command of the heart and practical expressions of a command of the heart. If the Torah had commanded “bring in the bride” and I learned from that also “accompany the dead,” then it would be similar to that. It’s an example, but the intention is to help another person. But the Torah here doesn’t speak at all on the practical plane; it speaks about duties of the heart. The sages want to translate that into the practical plane, and then it already becomes a rule and translations or branches. It is not an example where I’m just saying this example and all the other examples too. The point is not “the other examples too.”

I want to pause for one more important point, and with this I’ll probably finish for today, because it opens into what comes next. We just need to understand in practice the difference between this dichotomy of Torah-level and rabbinic—that it isn’t simply non-Torah-level. But in practice what you’re saying is that rabbinic law is not something that is not Torah-level; it is somewhat Torah-level. Correct, and there are different kinds of rabbinic law. I’ll get to that. Yes, yes. And we’ll see that there are also several levels of Torah-level law. There is very Torah-level, fairly Torah-level, somewhat Torah-level. There are all kinds of levels of rabbinic law; we’ll get to that later. I just want to finish with the significance of the matter. Look, I’ll make a certain analogy so you’ll understand.

Usually, say in philosophy, we distinguish between thinking and cognition. When I think about something, that is an activity taking place inside my head. Fine? When I know something, when I observe something, then I have interaction with the world. Fine? Interaction through the senses, say. I see that there is a chair here, so I apprehend that there is a chair here. Okay? That is observation. Cognition is done through the senses, while thinking is the thought that takes place internally in the brain. The accepted view is usually that scientific laws—and we talked about this—how scientific laws begin from observations, the view of Francis Bacon. The scientific logic of Francis Bacon… that scientific laws begin from observations, and after we make observations the mind thinks, as it were, about the result of the observation and reaches the generalization of the general law. But then people generally understand that a law of nature is something empirical, meaning it comes out of observation. But that is not true, because observations only show me the private cases. Afterward I take those cases and make a generalization. In that generalization there is much more than the few cases I actually saw. That is a thought process. Then a question arises here, the question of David Hume and afterward Kant and others: how can it be that I perform a thought process and arrive at conclusions about the world? If I want to know the world, then I need to look at what is there, and then I know what is there. But thought processes depend on how I am built. Why is the product of a thought process perceived by us as some kind of description of what is happening in the world itself? That is not reasonable. Well, that is the problem… these are the problems of Hume and Kant and all those issues. He tried to resolve, or to propose a solution to those problems. To this day, I don’t think in the history of philosophy there has been a satisfactory solution to this matter.

What stands behind that problem is the dichotomous conception of cognition versus thinking. Either you know, in which case that is a tool for knowing the world because you simply saw it, or you think, but then that’s your problem—it happens inside you, and there is no reason to assume that what happens inside you reflects what happens in the world itself. It depends on how you are built. Your thoughts are a function of how you are built. Okay? There is no reason to assume that this describes what is happening in the world itself. Therefore Hume’s problems are problems that arise from a dichotomous conception of thinking versus cognition. It seems to me that the only solution that can be proposed is that this dichotomy too has to be broken. In other words, cognition and thinking are not two things sharply distinct from one another. There is some middle category in between, some kind of thinking cognition or cognitive thinking, or something that combines… both cognition and thinking. I’m saying this very telegraphically. Maybe we’ll talk about it in greater detail later. I just want you to understand that this is the significance of what I did today. Because basically—yes, exactly—because what I really said today… this book is the fourth in the quartet on the analytic and the synthetic. It starts with Kant and ends with the theory of halakhic law. Because what I am doing here is exactly what Kant did to Hume. In other words, if we look at cognition and thinking in the legal world—what is cognition? Looking in the law book and seeing that there is such-and-such a law, right? Just looking—that is observation. The legal observation, the legal fact, is what is written in the law book, right? As distinct from the physical fact, which is events in the world. Fine? In order to understand what the law says, I have two possibilities. Either to observe, to see what is written in the law book—that is the empirical mode, that is cognition. Besides that, I can think, do interpretation, a legal model, legal reasoning, and arrive at a legal result. The difference between these two things is that Torah-level laws are grounded in cognition, right? Torah-level laws mean looking in the Torah and seeing what is written there. It begins with observation. Once I found it in the Torah, that is Torah-level law. Rabbinic laws are grounded in thinking, not in cognition. The sages do not need to look in the Torah to see that it is forbidden, because then it would be Torah-level. The sages create a new law from themselves, parallel to thinking as opposed to cognition, right? It is basically something that comes from them; it does not come from the legal sources in which we look factually, observationally, and see that this is what is written there. It is not written there. We invent something new from ourselves, from our feverish minds. Okay?

So basically the distinction between Torah-level and rabbinic is completely parallel to the distinction between thinking and cognition. Torah-level is cognition and rabbinic is thinking. I defined this as legislation and interpretation. Torah-level is interpretation of what is written in the Torah, and rabbinic is legislation that the sages… that is how I began this whole series on rabbinic and Torah-level law. The distinction between rabbinic and Torah-level is not chronological. It is not that whatever existed in the time of Moses our teacher is Torah-level and whatever is today is rabbinic. Even in the time of Moses our teacher there were rabbinic laws, and even today new Torah-level laws can come into being. The question is how it came into being. If it came into being through legislation, then it is a rabbinic law, even if Moses our teacher created it. And if it came into being through interpretation, interpretation of the Torah, then even if it came into being now, it is a Torah-level law, because that is what the Torah says. What I interpreted is the content of the verse; that is a Torah-level law. In other words, the distinction between rabbinic and Torah-level is basically the distinction between legislation and interpretation. Or now, in the language I just defined, it is the distinction between cognition and thinking. Fine? Interpretation is basically cognition: I want to understand what is written in the verse, so I look at the verse and I want to understand what is written in it. And thinking is basically legislation, because it does not stand opposite the verse. I do not create interaction with the facts; I carry out a process that takes place only within me. Okay, so basically that is parallel to thinking.

And my claim here is that “do not deviate,” the prohibition of eating poultry with milk, emerges from “do not deviate” not in the mode of cognition and not in the mode of thinking, but in a mode that is something between the two or combines them both. The distinction between cognition and thinking, in the legal world too and not only in the scientific world, is not dichotomous. It is not sharp. It is not that every matter is either Torah-level—interpretation, observation—or rabbinic—legislation, thinking. No. Just as in the scientific world and all other areas, there is some intermediate area between thinking and cognition, so too in the world of legal thinking there is some intermediate area between thinking and cognition. And in fact, if you think about it, this is what lies at the basis of all the stormy arguments about judicial legislation. In Aharon Barak’s period this was the most extreme, but it exists beyond that too. When a judge basically gives a far-reaching interpretation of the law, people say to him: listen, you legislated; you didn’t interpret. But only the Knesset is authorized to legislate. You are not authorized to legislate; you need to interpret what the Knesset enacted. So interpretation is supposed to be deduction, apparently. You only need to know what is written in the laws of the Knesset. Anything you add beyond that—you acted as a legislator, and it has no validity. You cannot do that. And Aharon Barak constantly insisted: what are you talking about? There is no such thing. Legislation cannot… interpretation cannot be entirely non-expansive. In other words, within interpretation there must necessarily be a dimension—now in my language—a dimension of thinking and not only a dimension of cognition. It is not that I look at the law and now I know what is written in it. There is always something in it that expands, and that is why there are also disputes among judges and the like. One cannot—this is an illusion. Even if you thought that ideally that is how it ought to be, that a judge should only interpret and not legislate, in practice it is impossible. There is no such thing. There is no interpretation without a dimension of thinking and only cognition. Positivists, both in the philosophical world and in the legal world, live in a kind of illusion that the interpreter can be only an observer. Meaning, only cognition. It is written there, and by deduction I will derive only specifications, what I earlier called specifications. It says “He shall not profane his word,” I spoke about bread, I ate it—okay, that is a private case of “He shall not profane his word.” That is interpretation in… If it is deduction, then how can there be disputes about interpretation? Huh? Yes, exactly. So the positivist conception is naive. There is no such thing. Obviously, at least at the practical level—you can argue whether that is desirable or undesirable, but that is another issue—there must be in every such interpretive act an observational dimension. You have to look at the law, and that is of course the basis of the matter, like the facts in scientific theory. But afterward you build a model, you make some generalization, and you arrive at a law—whether legal law or natural law, it makes no difference. And that is a thought process, not an observational process.

And basically my claim is that when we do a process of this sort, then it is not legislation, because then it would be rabbinic. But neither is it interpretation in the deductive sense; we are not simply extracting from the verse what is there, meaning what is written there, because then it would be regular Torah-level law. Rather, there is something in between legislation and interpretation, and that is basically the concept of rabbinic laws. So that is what we…