Torah Law and Rabbinic Law – Lecture 6

Table of Contents

• General Overview
• The Development of the Hermeneutic Rules and a law given to Moses at Sinai
• The Second Principle in Maimonides: Counting the Commandments and Torah-level vs. rabbinic
• Nachmanides’ Critique of Maimonides’ Method and the Internal Difficulties
• Creative Derash and Supportive Derash, and the Combination of Interpretation and Tradition
• The Tashbetz Principle: Source vs. Validity and the Tension in Interpreting Maimonides
• Additional Approaches and the Claim that Maimonides’ Words Do Not Fit Partial Distinctions
• Proofs that Maimonides Means Halakhic Validity: Warning, Punishment, and Doubt
• Laws of Marriage, Betrothal by Money, and Maimonides’ responsum to Rabbi Pinchas the Judge of Alexandria
• Derash as Exposure vs. Derash as Expansion, and the Proposed Resolution

Summary

General Overview

The text presents a dynamic view of the hermeneutic rules: Moses our teacher received from Sinai the very language of derash itself, not a fully itemized list of rules, and over the generations that language underwent conceptualization, definition, and formalization until systems of rules were formed that try to reconstruct how Moses read the verses. It then presents Maimonides’ method in the second principle of the Book of the Commandments, according to which laws derived through the hermeneutic rules are not counted in the enumeration of the commandments, and he uses the terms Torah-level and rabbinic, which leads to a sharp dispute with Nachmanides and to a series of interpretive attempts to explain Maimonides, including the method of the Tashbetz, who takes his words as dealing with the question of source and not the question of validity. The text then brings proofs that Maimonides does in fact make a practical halakhic distinction, such as regarding punishments and cases of doubt, and proposes a direction that partially reconciles the issue through a distinction between an expansive derash and an interpretive/supportive derash, especially through the topic of betrothal by money and document at the beginning of the Laws of Marriage and Maimonides’ responsum to Rabbi Pinchas the Judge of Alexandria.

The Development of the Hermeneutic Rules and a law given to Moses at Sinai

The text argues that the hermeneutic rules are a law given to Moses at Sinai in the sense that Moses received from the Holy One blessed be He the language of derash and the way of reading the Torah, but he did not receive a defined list of terms such as verbal analogy and paradigm construction. The text describes how over the generations this language underwent conceptualization and definition until systems of hermeneutic rules were formed, while referring to the forgetting that took place during the days of mourning for Moses and to Othniel ben Kenaz, who restored or began to define the rules. The text compares this to rules of grammar, which describe an existing language after the fact, with approximations and exceptions, rather than inventing a language.

The Second Principle in Maimonides: Counting the Commandments and Torah-level vs. rabbinic

In the second principle, Maimonides says that laws derived through the hermeneutic rules are not included in the count of the commandments, and within that discussion he uses language indicating that they are not Torah-level laws but rabbinic laws. The text emphasizes that the discussion of counting the commandments seems technical, whereas the terms Torah-level and rabbinic are halakhic terms that have implications, such as in cases of doubt requiring stringency and in punishments. The text presents the commentators as divided over whether Maimonides means the technical discussion of the count of the commandments or the halakhic discussion of the validity of the law.

Nachmanides’ Critique of Maimonides’ Method and the Internal Difficulties

Nachmanides reads Maimonides literally, that a law produced by derash is rabbinic, and attacks this in a long critique on the second principle based on many sources in the Talmud and on logical arguments. Nachmanides claims that in the Talmud and in Maimonides’ own rulings in the Mishneh Torah, laws derived from derashot are treated as Torah-level laws, including rules that in cases of doubt one must be stringent. He argues logically that since the hermeneutic rules are a law given to Moses at Sinai, and the biblical text is also from Sinai, it does not make sense that applying Sinaitic tools to a Sinaitic text would produce a rabbinic result.

Creative Derash and Supportive Derash, and the Combination of Interpretation and Tradition

The text presents the idea that Maimonides distinguishes between a creative derash, which generates a new law and therefore the law is rabbinic, and a supportive derash, which anchors an existing law and therefore the law is Torah-level, and that the Sages have to determine when the derash is merely supportive. The text adds, based on Nachmanides, that Maimonides writes in several places that even a law given to Moses at Sinai is classified as words of the scribes, and from this there emerges a structure in which tradition alone does not make something Torah-level, and a creative derash alone also does not make something Torah-level, but tradition together with a supportive derash does create a Torah-level law. Nachmanides sharpens what he sees as the absurdity by describing it as “zero plus zero equals one,” and asks what logic could combine two components, each of which by itself is insufficient.

The Tashbetz Principle: Source vs. Validity and the Tension in Interpreting Maimonides

The Tashbetz and those who follow his approach explain that Maimonides did not mean a halakhic distinction of validity, but rather that the terms Torah-level and rabbinic in the second principle refer only to the source of the law. According to this line, laws derived from derashot are Torah-level in their validity, and are only called words of the scribes because the Sages were the ones who exposed them from the written text, while the counting of the commandments is the technical framework in which Maimonides classifies them. The text presents an interpretive dilemma between “stretching the language” in order to reconcile Maimonides with the sources and “stretching the logic,” and brings in Donald Davidson’s principle of charity as well as the saying attributed to the Chazon Ish that it is better to stretch the language than to stretch the logic.

Additional Approaches and the Claim that Maimonides’ Words Do Not Fit Partial Distinctions

The text brings intermediate approaches, such as an attempt to limit Maimonides’ remarks to verbal analogy as opposed to other hermeneutic rules, and emphasizes that Maimonides himself does not distinguish in that way; even in the heading of the second principle he includes “anything derived through one of the thirteen hermeneutic rules or through amplification.” The text presents another difficulty: if Maimonides really did turn most derashot into rabbinic law, one would expect to see this throughout the Mishneh Torah “in every other law,” but in practice one hardly finds many fingerprints of this principle there, aside from a few isolated examples.

Proofs that Maimonides Means Halakhic Validity: Warning, Punishment, and Doubt

In the introduction to the enumeration of the commandments at the end of the fourteenth principle, Maimonides writes that when the punishment is explicit in the Torah but the warning is not explicit, the warning is derived “by way of inference,” and he explains this with respect to one who curses his father or mother and one who strikes his father or mother. The text reads this as proof that according to Maimonides the rule that “one does not derive warnings from inference” applies to learning through the hermeneutic rules, and therefore one generally does not punish for a prohibition learned from inference alone. From this it concludes that his distinction is a distinction of validity and not only of source. In his Commentary on the Mishnah in Keilim chapter 17, Maimonides says that a law given to Moses at Sinai is classified as words of the scribes, and explains that with regard to prescribed measures, in a doubtful case one is stringent when they are details within an enumerated commandment that interpret a prohibition written in the Torah, whereas with a law given to Moses at Sinai that introduces a new law, its doubtful case is treated leniently. Here too, the text sees in his words a practical halakhic distinction.

Laws of Marriage, Betrothal by Money, and Maimonides’ responsum to Rabbi Pinchas the Judge of Alexandria

At the beginning of the Laws of Marriage, Maimonides writes that intercourse and document are from the Torah, while money is “from the words of the scribes,” and the Ra’avad objects that this is “an error and a mistaken explanation,” because in the Talmud betrothal by money is treated as Torah-level betrothal. The text points to the internal difficulty that in the very next law Maimonides writes that a betrothed woman is a married woman and one who has relations with her is liable to death by the religious court, without qualifying between money, document, and intercourse. The text brings Maimonides’ responsum to Rabbi Pinchas of Alexandria, in which he explicitly refers back to the principles, argues that anything learned through one of the thirteen hermeneutic rules is not Torah law “unless the Sages explicitly say that it is from the Torah,” and adds that even a law given to Moses at Sinai is called words of the scribes, and that Torah-level law is either what is explicit in the Torah or what the Sages said is from the Torah, “and these are only some three or four things.” In the responsum, Maimonides explains that betrothal by document is from the Torah because in the Talmud in tractate Kiddushin, page 9, regarding a betrothed young woman liable to stoning, it says, “You can find such a case where he betrothed her by document,” whereas money is not stated there in that way, and therefore remains in the category of words of the scribes.

Derash as Exposure vs. Derash as Expansion, and the Proposed Resolution

The text suggests that the root of the dispute is whether derash “exposes” a dimension already embedded in the verse or “expands” the law beyond what the verse itself indicates. According to the proposed direction, Nachmanides sees derash as exposing, and therefore its products are Torah-level, whereas Maimonides sees derash as creating or expanding, and therefore its products are not Torah-level unless it is a supportive derash or a derash that interprets an existing Torah term that appears in the verse, such as “a betrothed young woman.” The text uses a comparison to Maimonides’ remarks in his Commentary on the Mishnah in Keilim about prescribed measures in order to argue that when a law or a derash interprets a written law, the halakhic result is Torah-level even if the source is called words of the scribes. The text concludes by proposing that in Kiddushin the concept of erusin is certainly Torah-level because the Torah speaks of “a betrothed young woman,” and the Sages, through derashot, clarify what is included in that concept. Therefore, in practice, a Torah-level status is produced even if on the level of source Maimonides uses the phrase “from the words of the scribes.”

Last time I spoke a bit about the question of the hermeneutic principles and how they developed, how they actually evolved over the course of history on the one hand, while on the other hand the medieval authorities (Rishonim) relate to them as a law given to Moses at Sinai. And I wanted to argue that there is some kind of dynamic perspective here on that development. It was given at Sinai in a way that was not yet conceptualized. Meaning, the list of principles, I assume, was not familiar to Moses our rabbi. If someone had said to him gezerah shavah, binyan av from one verse, and all kinds of things like that, he would not have known what they were talking about. But this language, the language of interpretation, that he did receive from the Holy One, blessed be He, and that is what he then passed on—how to read the Torah. And afterward, through the generations, things underwent conceptualization, definition, and formalization, and then systems of principles were formed. I spoke about the forgetting during the days of Moses’ mourning, and how Othniel son of Kenaz restored—or maybe began to define—those principles, to conceptualize and define them. And this continues throughout history: more and more principles keep being added, on the assumption that these principles that we define are really rules describing how Moses our rabbi himself read the verses through the lens of interpretation. Now it could be that we are mistaken—that is, this reconstruction is not necessarily faithful to the original. But at least that is what it is trying to do. Just as I compared it to rules of grammar, linguistic rules, where we try to determine rules for how the language is spoken, even though it is clear that when the language developed, it did not develop through rules. People started speaking, and some language emerged through mutual agreement. Afterward people came and tried to pour that into a set of rules. Sometimes they succeed and sometimes they do not. Those rules are approximations, and they have exceptions and so on. But it is clear that such rules do not come to invent a language but to describe an existing language. And therefore here too, in the world of interpretation, my claim is that on the one hand one can say that this is a law given to Moses at Sinai, as all the medieval authorities (Rishonim) say, and on the other hand it develops over the course of history. It develops over the course of history not because it was invented over the course of history, but because more and more conceptualization is done of this language that we received with Moses our rabbi. That was basically the first part I spoke about. After that, I think I already began dealing with Maimonides’ words in the second root. We saw there at least the beginning, and Maimonides basically says there that laws learned from the hermeneutic principles are not included in the count of the commandments. In other words, laws that we derive from interpretive exposition are not included in the count of the commandments, while in the course of his remarks he uses language saying that they are not Torah-level laws, but rabbinic laws. Even though his discussion is a discussion about the count of the commandments, about which of these laws can be counted among the commandments—which is a technical discussion and on the face of it lacks halakhic significance—I think I spoke about that as well. The terminology Maimonides uses is halakhic terminology. In other words, Torah-level and rabbinic—those are halakhic terms. When you say about some law that it is Torah-level, you have said a lot. That in cases of doubt one rules stringently, and that it comes from the Torah, and so there are implications, and that one is punished for it, and so on and so on. In other words, it is a concept with meaning on the halakhic plane: Torah-level versus rabbinic. When you ask whether a particular law is counted in the count of the commandments, it is not clear how far that is a halakhic statement. What enters the count enters; what does not enter does not enter. But the significance of whether something is counted in the count of the commandments or not is not necessarily halakhic. There are things that are not counted in the count of the commandments and yet are Torah-level. Maybe not the reverse, but there are many things not counted in the count of the commandments that are Torah-level. They are not counted for technical reasons. Therefore the discussion about the count of the commandments is a technical discussion. The discussion about whether it is Torah-level or rabbinic is a halakhic discussion. And the commentators on Maimonides—I’ll get to them in a moment—disagree among themselves about which of these two discussions Maimonides meant. Did he mean the technical discussion of the count of the commandments, or did he mean the halakhic discussion, whether it is Torah-level or rabbinic? All right, so now maybe I will briefly present the suggestions that have been offered in interpreting Maimonides’ words. Maimonides’ words themselves, if understood simply, mean that a law that comes out of interpretation is a rabbinic law. It is not a Torah-level law. That is extremely puzzling for many reasons. Nachmanides has a very long critique on the second root, and there he really sails across the expanses of the Talmud and through logic and sources from the Sages, and he shows with signs and wonders that this cannot be. In other words, Maimonides made a mistake here. Did he retract it? He retracted it? There is no other interpretation of Maimonides. Maimonides means to say that a law that comes from interpretation is rabbinic—that is how Maimonides understood it, and that is how Nachmanides read him. But Nachmanides said: this simply cannot be right. It cannot be right for many reasons. It cannot be right because in the Talmud itself, in very many places, you see that they treat this as Torah-level. More than that, you see it in Maimonides himself. Maimonides himself, when you examine practical law in his code, the Mishneh Torah, you see that he treats laws that come from interpretation as Torah-level laws whose doubtful cases are ruled stringently and things like that. And besides that, he says on logical grounds, what do you mean? The hermeneutic principles are a law given to Moses at Sinai. The biblical text itself was also given at Sinai. So when you apply tools that were given at Sinai to a text that was given at Sinai, how can the result be rabbinic? All right? It is basically a kind of deduction. When you take tools you received at Sinai and are told to use these on that text, so I used these on that text, and what came out—even though it is not explicitly written in that text—is rabbinic, not Torah-level? Nachmanides says: how can that be? Nachmanides says more than that. In Maimonides you see—Maimonides himself distinguishes, and we saw this last time as well in the second root. Maimonides argues that there are laws learned from interpretation that are indeed Torah-level. I mentioned that in a responsum he writes three or four such cases. In other words, there are not many such laws, but there are some. And Maimonides himself makes the distinction: when the interpretation is creative interpretation, then the law that emerges from it is a rabbinic law. Creative interpretation means interpretation that created a new law not previously known to us. By contrast, when the interpretation merely supports an existing law, that is supporting interpretation, then the law is Torah-level. That is what Maimonides says. How do we know whether the interpretation is creative or supportive? The Sages have to tell us. When the Sages said that this law is Torah-level, or they said that this interpretation is supportive interpretation, then fine, it is a Torah-level law and it is included in the count of the commandments. And if not, then not. So Nachmanides asks Maimonides: then what comes out is as follows. Or maybe before that I need one more datum. Nachmanides brings from that same responsum of Maimonides, and you see it in other places in Maimonides as well, that even a law given to Moses at Sinai is not a Torah-level law. It is “the words of the Scribes.” Maimonides writes that in several places. So Nachmanides says this: basically, when there is a law transmitted by tradition and it is not written in the Torah, then it is “the words of the Scribes,” it is a law given to Moses at Sinai. When there is a law that comes from interpretation but there is no tradition about it—that is, creative interpretation, not supportive interpretation—then it is rabbinic. But if you have both together, that is, there is interpretation and also tradition, then it is Torah-level. How does that miracle happen? Zero plus zero equals one. Interpretation is not enough to make a law Torah-level. Tradition is also not enough to make a law Torah-level. So how does interpretation plus tradition make the law Torah-level? Yes, what? Why not? Why yes? Because they will try to reinforce one another. What do you mean reinforce? Is this some quantitative matter? What does reinforce mean? The Holy One, blessed be He, intended something He transmitted by tradition; what was transmitted by tradition came from the Holy One, blessed be He, at Sinai, so then every tradition should be Torah-level. Maybe you need both conditions. I can say that logically, but what is the logic in it? The logic is that what the Holy One, blessed be He, both transmitted in tradition and attached to verses are the things that are Torah-level. Why? Why? What is your definition of Torah-level? What? What is your definition of Torah-level? What the Holy One, blessed be He, intended. What is Torah-level? What He said He intended. Fine, so He said it in a law given to Moses at Sinai—is that not enough? It was transmitted orally. He said it; He still said that this is the meaning. Look at the definition of what Torah-level means. That is the definition. You can explain it in two ways. First, you can be more certain once it is also supported. So it is only a matter of doubt. Then the first case is a Torah-level doubt, not rabbinic. As long as it has not entered the category of Torah-level. So it is a Torah-level doubt, and there are rules for doubt—what is the problem? The first is doubt and the second… But no, Nachmanides says not doubt. Nachmanides says this is rabbinic and this is Torah-level. He does not say this is doubtful Torah-level and that is Torah-level. That too is not reasonable. What kind of doubt is that? If there is a law given to Moses at Sinai, is that doubtful? A law given to Moses at Sinai—we received by continuous tradition that this is what the Holy One, blessed be He, said. What? It could be there was a break in the tradition. And if there could have been a break in the tradition, then with interpretation too? You have two witnesses. Even with two witnesses you have that… It is very strange. Why not with one witness and yes with two witnesses? What? No, because there the question is your degree of certainty. So the same thing here—your degree of certainty. Both tradition and supportive interpretation. So I say: if it were only a question of degree of certainty, then there would be no difference. So I say: two witnesses are stronger; it is not twice doubt. If you have half times half, that does not produce one. No, half plus half does produce one. But you are making exactly the point: why is your model multiplication? But if it is supportive interpretation and each one is half, then together they are one. So I say: all that is if you are talking about degree of certainty. In a court the question is how convinced I am that this is the truth. One witness gives me a certain degree of conviction—not enough. Two witnesses give me a higher degree of conviction. Of course two witnesses are more than one. But here the question is not one of degree of certainty; the question is the status of the law. It is not how sure I am that the Holy One, blessed be He, said it, because if that were the question, then as I said earlier, there would be a difference between doubtful Torah-level and certain Torah-level, not between Torah-level and rabbinic. Rather here I am in doubt whether it is Torah-level and there I am not. Suddenly you brought in the question whether a law given to Moses at Sinai is Torah-level; suddenly you brought in that it is rabbinic. No, Maimonides says that. I did not bring it in. We used that word just now, didn’t we? No, I did not mention such a thing. What is tradition according to your book? Tradition is something passed from generation to generation. And there is no text at all—what is in that tradition? The Oral Torah. The Oral Torah was forbidden to be written down until Rabbi came. But when you say there is tradition and there is a verse, what does that mean there? Oral tradition and a verse means what is written. Where do we see that a sin-offering whose owners died is left to die? That is a law given to Moses at Sinai. It is oral tradition. It has no scriptural source, but it is a law passed down orally. No, but when you said just now that there is tradition and there is a verse, what example is there of that? Of something that has both tradition and a verse? Like what you said. So it depends. Maimonides says there are three or four such examples, not many. One of them, I think, is for example “the fruit of a beautiful tree.” “The fruit of a beautiful tree”—the Talmud in Rosh Hashanah says they learn from that that it is an etrog. But from the Talmud it is also clear that this is supportive interpretation, not creative interpretation. From the structure of the sugya this is clear. Because the Talmud brings several different interpretations, each entirely different, and all of them arrive exactly at etrog. None arrives at a clementine. So that means that apparently they knew it was an etrog, there was a tradition, and now they bring interpretations that support that tradition on the text. There Maimonides himself brings this. Or “an eye for an eye” means money. Maimonides says there is a tradition that “an eye for an eye” means monetary compensation, but we also have an interpretation, “under” “under,” “under” from the context of payment, right? So the Talmud learns by gezerah shavah that it is talking about money. But this was a law known beforehand. All right? Maimonides himself gives several examples of that. So Nachmanides asks: how and why does the combination of these two things, each of which separately cannot produce a Torah-level law, create a Torah-level law? All right? Four things. I can give a lecture even on zero things. The Talmud asks what practical difference it makes, right? You know, in yeshivot they joke about this. You ask the lecturer what practical difference it makes, and he says: marriage betrothal. What does he mean? We once spoke about that Ran in Sanhedrin 15, where the Talmud asks: the Sinai ox—before how many judges? Before how many judges did they judge the ox that approached Mount Sinai? The ox that came near, “the sheep and cattle also shall not graze facing that mountain,” and the ox that gored on the mountain was liable to death. So before how many judges did they try it? Ran there asks: what practical difference does that make? He says: practical difference for a Nazirite vow. If someone vowed Nazirite status on condition that the Sinai ox is judged by twenty-three judges, the question is whether he becomes a Nazirite or not. You understand that Ran was joking. What is he trying to say? Why should I care what practical difference it makes? Why should I care about practical consequences? I am discussing an idea now. So there is no practical consequence—expound and receive reward. Yes? No, I want to clarify the sugya itself. Practical ramifications—what is so interesting about that? Practical ramifications are secondary. The conceptual plane has value in itself; it is not merely a means for practice, for concrete practical consequences. Yes. Does the term Torah-level refer only to the Written Torah? No. The term Torah-level apparently refers also to the Oral Torah, but in Maimonides it is not entirely clear. The accepted understanding is that Torah-level includes both the Written Torah and the Oral Torah. On the contrary, rabbinic has nothing to do with the distinction between Written Torah and Oral Torah. The distinction between Written Torah and Oral Torah exists within the category of Torah-level. There are Torah-level laws explicitly written in a verse, and there are Torah-level laws learned from interpretation or from various kinds of exegesis of the verses. But all of that is within Torah-level. In Maimonides, as we will see later, there seems to be another method. All right? So if it is “the words of the Scribes” or rabbinic, is all that included in the Oral Torah? No. No, apparently it is not even Oral Torah; it is just something else—that is how people usually think. So what is the Oral Torah? The Oral Torah is what is not explicitly written in the Torah but is Torah-level. But then it comes out that according to Maimonides all the laws given to Moses at Sinai are rabbinic? Most interpretations are rabbinic? Then almost the whole Oral Torah is rabbinic? Correct. That is why I said that Maimonides has a different approach to this matter, and now I am beginning to present it. Good question, exactly in place. I said I would get to the fact that Maimonides has another approach here, and now I’m starting to present it. Yes, correct. The accepted conception is that the difference between the Written Torah and the Oral Torah is a distinction within the category of Torah-level. There are two kinds of Torah-level laws. In Maimonides—and you are asking correctly, it is a very good question—you can see that he undermines that distinction. He does identify the two distinctions, but I’ll get to that in a moment. Okay, so there is a whole set of very many difficulties in Maimonides, and here I was speaking about the kinds of difficulties. When you get into the details, there are hundreds of difficulties with Maimonides’ view. That is, Nachmanides there in his critiques points to hundreds of places in the Talmud and in Maimonides, every place where you see that what Maimonides says cannot be correct. Okay? Now, as a result of that, several possibilities arose among the commentators to explain what Maimonides meant. One possibility is that Maimonides did not really mean it seriously. I think the Tashbetz was the first to present this. He was very excited about the idea that came to him, and after him almost all the traditional commentators follow in his path. According to this, Maimonides did not really mean to make a halakhic distinction when he distinguished between Torah-level and rabbinic. Halakhically, of course, things that come from interpretation are also Torah-level. Maimonides is speaking about the question of source, not the question of authority. Torah-level and rabbinic are categories on the plane of halakhic authority. There are laws that are Torah-level and laws that are rabbinic. Maimonides does not mean to discuss the plane of authority; he means to discuss the plane of source. In other words, what is the source of the law? “From the Torah” means the source is in the Torah, or else the source of the law is “from the words of the Scribes,” meaning that the Sages are the source of the law. But if you ask what is the authority of the law, the halakhic force is Torah-level. And then Maimonides of course goes back to being like one of the medieval authorities (Rishonim), or like all the medieval authorities (Rishonim)—that is the accepted view. I am speaking now in terms of terminology; the medieval authorities (Rishonim) do not call it “the words of the Scribes,” but on the level of principle Maimonides is like everyone else. In other words, laws that come from interpretation are Torah-level. There is no halakhic dispute. The whole dispute is only semantic. And maybe regarding the count of the commandments. But even if it does not enter the count of the commandments, that still does not matter. It is Torah-level. That is the view of the Tashbetz, and almost all the commentators, all the halakhic decisors, the traditional commentators, almost all of them follow him, because Maimonides’ words are indeed very difficult in light of the sources. Except that Maimonides does not say this. It is clear that Maimonides does not mean this. Entirely clear. There are several proofs for this. Maimonides does not mean it; it cannot be that Maimonides means it. So now, of course, there is a dilemma: it is clear what Maimonides means, but on the other hand it cannot be, it cannot be right. So what do you do now? In interpretation there is, I think Donald Davidson once formulated it as the principle of charity. The principle of charity says that I interpret someone’s words in the way that makes them come out as most consistent, most reasonable, and best, even if from his wording it does not seem that this is what he intended. So there are those who prefer to go with the principle of charity and interpret Maimonides in the direction of the Tashbetz, the first approach, so that Maimonides should not come out so difficult. But in terms of wording it is very difficult. The question is whether it is preferable to force the language or to force the reasoning. Yes, so the Chazon Ish, as I always knew—I don’t know of a written source for this, but they always quote it in his name—that it is better to force the language than to force the reasoning. Force the language a little, but let the ideas hold together, meaning let them make logical sense. There is some Beit Yosef like that in Yoreh De’ah who writes this, that it is better to force the language than to force the reasoning. So that is the first approach, that of the Tashbetz and his school. The second approach is the approach of Nachmanides. When Nachmanides reads Maimonides, as I said before, he reads him according to the plain sense. He understands that Maimonides is speaking about a rabbinic law even in terms of its halakhic force. He only says that this cannot be, and he raises many difficulties against him. But in terms of how he read Maimonides, he read Maimonides according to the plain sense. In other words, it is clear that Maimonides means this is a rabbinic law. And he writes about this—I just mentioned that Nachmanides—that the rabbi and his book, all of it is sweetness, “his palate is sweetness and he is altogether delightful,” a wonderful book. And all of it was not worth it just because of the second root. Better that he had not written the book. In other words, this root simply cannot be. It collapses everything we know about Jewish law. Because one must remember that almost all the Torah-level laws we have are not laws written in the Torah, as Maimonides himself opens the root by saying. Most of what we have are laws learned from interpretation. So Maimonides is essentially turning almost all the Jewish law we have into rabbinic law. There is almost no Torah-level law. Aside from three or four things, and things explicitly written in the Torah—but how many such things are there? And that is a colossal scandal, Nachmanides says. It cannot be. So that is the second approach. After that there are intermediate approaches which want to say that according to Maimonides, for example—the Shitah Mekubetzet, Rabbi Bezalel Ashkenazi—he wants to claim that there is a difference between gezerah shavah and the other principles, speculations with no basis at all. Various intermediate views like that, trying to say that Maimonides is talking only about some of the laws and means it there. But he never says that anywhere. On the contrary, in the heading of the second root, in the title of the root, it says that anything derived by one of the thirteen principles or by inclusion. There are no distinctions there. It is everything that comes out of the hermeneutic principles. Yes. I don’t entirely understand what you said before, that according to the Tashbetz now the source is rabbinic—so what exactly does he gain from that? He gains that Maimonides fits all the sources in our possession, our tradition. What does he gain in terms of interpretation? He only loses in interpretation of Maimonides. And what did Maimonides actually mean? What is the content of the… I do not fully understand, literally, what he meant by saying “their words.” What is the meaning of that sentence? It is stretched: that it comes from the Sages, it is not written in the Torah. The Sages interpreted it from the Torah and they are the source of the law. But why does the source matter? Yes, although… But Nachmanides already says: since the thirteen principles were given at Sinai and the text was also given at Sinai, the fact that the Sages are the ones who derive it does not matter; the result is still a Torah-level law. That is what the Tashbetz argues. It is just true that the Sages are the ones who brought it to our knowledge; it is not written explicitly in the Torah, so it is called “the words of the Scribes.” In other words, it is latent there, it is Torah-level there, and they only uncovered it. Right. Okay, and that is a very important statement. I will come back to it in a moment. Because it seems to me that that is the root of the dispute here. But I’ll get there in a moment. So why not just say that once? Because of the whole second root. There is a technical issue here, a technical issue that is not entirely clear according to that view. More than that as well—why the whole discussion at all? Just from Maimonides’ perspective, not from the perspective of his commentators: why did Maimonides need to innovate this idea that it is “the words of the Scribes” and confuse all of us without defining it, and mix it up with the concept of Torah-level and rabbinic? Maimonides, again, is very careful with precise formulation. Maimonides, by the way, may be the first, maybe the only one, whose language can really be analyzed precisely. Other medieval authorities (Rishonim)—you cannot analyze their wording precisely. They write, and you have to understand what they mean; there is no… you cannot really infer from exact wording. Medieval authorities (Rishonim) are not careful in their wording. What? Rashi? I do not know, maybe. In Maimonides this is certainly so. Maimonides is precise in his wording. Maimonides says this. What? Regarding Maimonides, it is one of the rules that one can infer from his wording precisely. That is a rule. In the Mishneh Torah maybe, but not in the Guide for the Perplexed—I do not know if… No, no, in the Mishneh Torah; I am talking about Jewish law. To infer from his wording in the Guide for the Perplexed? What does that matter? We are talking about Jewish law. He also wrote in Arabic. Yes. He wrote in Arabic. Correct. But there is a dispute between Maimonides and Nachmanides in the laws of the Shema, or Maimonides and the Raavad in the laws of the Shema. Maimonides says that the Shema may be recited in any language. That is in Sotah chapter seven, right? It is one of the things that may be said in any language. And he says: provided that one pronounce its letters precisely. So Raavad asks Maimonides: but all languages are interpretations, and who is there to scrutinize a person’s interpretation? What is there to pronounce precisely in its wording if you yourself formulated it? So what is there to be precise about? But Maimonides’ view is apparently that one can be precise even in something one formulated oneself… Okay. In any event, this is very difficult in Maimonides. First, he is meticulous about precise wording. If this is such a fundamental halakhic matter, he should say: I am speaking here only about the question of source and not about the question of authority. He uses the language of Torah-level and rabbinic, which is language used to discuss authority, while he is supposedly discussing source. It simply cannot be. For example, in the laws of divorce Maimonides writes: what is the difference between an invalid bill of divorce and a void bill of divorce? Know that in every place throughout these laws where I wrote that the bill is void, the meaning is void by Torah law. Where I wrote that the bill is invalid, the meaning is that by Torah law it is valid but the Sages invalidated it. Maimonides is meticulous in his wording, really to a very fine degree. So to say that he writes Torah-level and rabbinic while meaning something entirely different is so implausible as an interpretation of Maimonides. It is implausible. It simply cannot be right. Beyond that, Maimonides writes in… in the introduction at the end of the fourteenth root. Or here. In the introduction to the count of the commandments, at the end of the fourteenth root, Maimonides writes as follows: “And when the prohibition will not be clarified from the text…” Maybe one more introduction before I read this. In truth, when one checks the Mishneh Torah, as I mentioned—but I just want to sharpen it—you hardly find fingerprints there of this ruling from the second root. That is, you almost do not find a law known to be Torah-level, learned from interpretation, where Maimonides writes that it is rabbinic. There are a few isolated examples of this. The most famous is at the beginning of the laws of marriage, where he speaks about betrothal by money as only “the words of the Scribes.” There is also regarding disqualified witnesses from the mother’s side, relatives from the mother’s side, there too. For every such source there is a dispute among the commentaries on Maimonides as to what exactly he meant. But even if in those places he meant the principle he writes here, very few places in the Mishneh Torah reflect it. Now, we would have expected this to appear every other law, because almost all the laws we possess, as Maimonides himself writes, are laws that come out of interpretation. We should have been hit in the face with contradiction every other law. Every other time he should have told us that something we thought was Torah-level is, according to Maimonides, rabbinic. That does not happen. I said there are also opposite examples. There are a few isolated ones, yes, I said, in the laws of marriage. What do you mean? That Maimonides… yes, either he says nothing, in which case it is clear that it is Torah-level, or he says it is Torah-level, and in doubts one rules stringently. Yes. Therefore I say: there is very little expression of this, very little halakhic expression of this principle in the Mishneh Torah, which strengthens the Tashbetz’s view that Maimonides is not speaking here about Jewish law but about the question of source, not the question of authority. But there are here and there a few references to this in practical law, and one or two are enough for me to show that Maimonides is speaking about a substantive distinction. After that I still have to ask myself why it appears so infrequently, but if it appears even in isolated places, that is enough for me to prove that the Tashbetz is not correct in principle. Then I have to ask myself: all right, but why only so few times? Okay? In any event—yes, fine—so that is a second question that needs discussion. So I will try to bring one or two sources for this. Maimonides—maybe even three. Maimonides writes in the introduction to the count of the commandments as follows: “And when the prohibition is not clarified from the text…” If we have a verse imposing punishment—“one who strikes his father or mother shall surely be put to death.” All right? So the Talmud asks: we have heard the punishment, from where do we know the prohibition? The Torah establishes a punishment for one who strikes his father or mother, but where is there a prohibition? Where does it say this is forbidden? Okay? So you also need a prohibition. The Talmud searches for all kinds of prohibitions from different places. But there is no punishment without prior prohibition. It is not enough. Everywhere the Torah writes a punishment there has to be a verse giving the prohibition as well—a negative commandment, right? There has to be a verse forbidding it as a prohibition. So Maimonides says this: “And when the prohibition will not be clarified from the text, they will learn it by analogy from the Torah analogies,” meaning from the hermeneutic principles. “As they mentioned regarding the prohibition of cursing one’s father and mother and striking one’s father and mother, which was not clarified in the text at all, for it did not say ‘you shall not curse your father’ and it did not say ‘you shall not strike your father,’ yet one who strikes or curses is liable to death. Thus we know that these are prohibitions, and we derived for them and for others like them the prohibition from another place by way of analogy.” The Talmud did not find such a verse; it derived the prohibition by way of analogy, through interpretation. “And this does not contradict their statement, ‘We do not derive warnings from legal reasoning,’ nor their repeated saying, ‘Do we derive warnings from legal reasoning?’” This does not contradict the rule that we do not derive prohibitions from legal reasoning. “For we only say ‘we do not derive warnings from legal reasoning’ in order not to forbid something for which no specific prohibition was clarified, by way of analogy. However, when the punishment is explicitly found in the Torah for one who does this act, we know necessarily that it is a forbidden act against which one was warned. We derive by analogy the prohibition only in order to strengthen for us the principle of their saying, ‘The verse does not punish unless it has first warned.’ And once the prohibition for that matter has been obtained, then one who transgresses and does it becomes liable to karet or death.” What is Maimonides saying? Basically, when there is a punishment in the Torah and we found the prohibition through interpretation, one of the interpretive principles—no, we searched because we saw there was a punishment. Yes, and we found it. We searched and found. Now Maimonides asks: still, why does it matter that we found it? Isn’t the rule that there is no punishment unless there is a warning? And if we had not found it? If we had not found it, then we would not punish. Is there an example where there is a punishment in the Torah and no prohibition was found? No, there is a Tosafot that asks this. Is that not tautological? It is all… it is not tautological? They always found a prohibition. Of course they found one. What do you mean, of course they found one? How can there be punishment without a prohibition? Maybe they would not have found one? There is no such thing, but it did not happen that they did not find one. Fine, but it could have happened that they would not find one. As a matter of fact they always found one. There is a Tosafot in Sanhedrin that asks about one who suppresses his prophecy. The Talmud says there that one who suppresses his prophecy is liable to lashes. Tosafot asks: but we did not find a prohibition. So how can lashes be administered there? So there are whole methods discussing where exactly the prohibition is. The Minchat Chinukh wants to claim that this is indeed the one case where there is punishment and no prohibition. And he wants to explain Jonah the prophet this way. Jonah the prophet—just parenthetically—Jonah the prophet fled from the Holy One, blessed be He. The Holy One, blessed be He, told him to go to Nineveh, and he suppressed his prophecy. We are speaking about a prophet, not a little child. What, are you fleeing from the Holy One, blessed be He? He tells you to go prophesy and you run away to sea? What kind of thing is that? So he says that Jonah the prophet—this is what the Minchat Chinukh suggests—understood that there is punishment for suppressing prophecy but no prohibition. So what? The Sefer Ha-Chinukh writes in commandment 69, “you shall not curse God,” not to curse a judge. There the Chinukh writes: why indeed does one need the prohibition in addition to the punishment? He says because if there had been no prohibition, we would think that the punishment is some sort of mechanical condition. You are not doing something against God’s will. You may do it; just know that you will get hit for it. Not because you angered the Holy One, blessed be He, not because you acted against His will, but because there is a kind of condition: whoever does this gets lashes. But not punishment in the full sense, that you did something against God’s will and therefore deserve punishment and so on. That would be the case if there were only punishment and no prohibition. But there is no such thing, and therefore the Sages assume there must always also be a prohibition, because there is no mere punishment that is just a mechanical condition. Punishment comes because you committed a transgression. So the Minchat Chinukh says: fine, according to the Chinukh, let us return to Jonah. Tosafot asked that regarding suppressing prophecy there is no prohibition. So perhaps that indeed explains Jonah. Right, this is the unique case, or one of the cases, where there is punishment and no prohibition. Jonah the prophet made the calculation. The Holy One, blessed be He, told him to go to Nineveh. He says: look, I am not acting against God’s will when I flee from Him, because there is no prohibition; it is not a negative commandment to suppress one’s prophecy. So he fled from the Holy One, blessed be He, knowing he would be punished. He knew he would be punished, but he took that into account. He had some ideology around the matter—many have written about this. He thought it was not right to bring people to repentance; if they sinned, they should take the blow. All the well-known interpretations about Jonah. It is not just sermonizing; it is quite clear from the verses. But in any event, that is exactly the point: Jonah thought—but he would not “receive” it in that sense. He would receive punishment only as a condition, not punishment by a court. He would receive punishment as a condition. Meaning, if you do this then punishment comes to you, not because you really did something wrong. That is up to your choice. It will happen to you, but you will get punishment. From the Holy One, blessed be He, not punishment by a court and nothing of the sort. That somewhat strengthens this whole thing—not two witnesses. What? You do not need two witnesses. If this were punishment by a court, then you would need two witnesses. The Talmud asks: how do they warn him? In that same place the Talmud asks how they administer warning to one who suppresses his prophecy. The prophet received prophecy and did not say it. So how—who testified to that? How? So they say: his fellow prophets warn him. They testify to it and warn him. And specifically in a case where the Holy One, blessed be He, explicitly tells you to do something, and you… that is exactly the case where there is no prohibition. Correct. The Minchat Chinukh himself later backs away from this. He says: it is a nice homiletic point, but it is not correct. There is no negative commandment there; there is failure to fulfill a positive commandment. Correct. And that makes the whole thing difficult. Because the lashes there are simply disciplinary lashes. It is failure to fulfill a positive commandment. A prophet must prophesy—that is a positive commandment—and if he does not prophesy, suppressing prophecy is failure to fulfill a positive commandment, not a prohibition. So of course you do not need a warning. Fine, but I do not know—Tosafot and the Minchat Chinukh—it seems difficult between them. Fine, in any event, that was only about whether there is something where no prohibition was found. So here, there is one example. And even that was probably abandoned; I do not think it is correct. Right—so Maimonides says, returning to Maimonides’ words here, that if we find a prohibition through interpretation—there is a punishment in the Torah and we find the prohibition through interpretation—then that is acceptable. What is the innovation? That this does not contradict the saying that there is no punishment unless there is a warning, or rather no, not “we do not punish from legal reasoning,” sorry, “we do not derive warnings from legal reasoning.” What does that mean? What then is the rule “we do not derive warnings from legal reasoning” talking about? First of all there is a novelty in Maimonides: “we do not derive warnings from legal reasoning” refers to all the hermeneutic principles. On that Nachmanides attacks him, because it only applies to a fortiori reasoning, not to all the hermeneutic principles. But Maimonides says it applies to all the hermeneutic principles. We will come back to this point later. But beyond that, what is Maimonides’ understanding of “we do not derive warnings from legal reasoning”? That anything learned from interpretation is not something for which punishment is administered. In other words, for Maimonides all interpretations are like a fortiori reasoning. What does that mean? That the statement he makes in the second root—that a law learned from interpretation is rabbinic, not Torah-level—is a halakhic statement. Here is the conclusion: they do not punish for it. It is not Torah-level; you do not get lashes for it. Maimonides’ novelty here is that if there is a punishment explicitly written in the Torah, and the prohibition was found only through interpretation, that is fine. Because at the end of the day the Torah itself wrote the punishment. So if there is a prohibition, then it is fine. And that too I will still have to explain. That is his novelty. But from his words, what do we learn? That if there is no punishment in the Torah, and there is only a prohibition learned through one of the principles, in such a situation there is no punishment and no lashes. That is Maimonides’ view. It is written explicitly. So this goes against the Tashbetz. Because the Tashbetz says that according to Maimonides, his distinction between laws that come from interpretation and are rabbinic, and laws written in the Torah and are Torah-level, is not speaking on the halakhic plane at all. It is speaking about source, not authority. Here Maimonides says they do not punish for it. That is certainly talking about authority. Maybe only in this rule? In this rule… in that rule he moved to speaking… according to the Tashbetz he moved to speaking… which rule there? In the second root? No, in the first root it is a concept. There it is a concept. In the root… I do not remember which root… here it is not 14; it is already the introduction to the Sefer HaMitzvot. There he is speaking halakhically. Right, but then you still cannot conclude that there Maimonides is speaking… But is a thing derived from interpretation halakhically different from a thing written in the Torah or not, according to Maimonides? Here—Maimonides says precisely because there is a rule that we do not derive warnings from legal reasoning. That is specifically about punishment, not about authority. What do you mean punishment? This is a prohibition. So there is no prohibition. “We do not derive warnings from legal reasoning” means there is no negative commandment. No warning, no negative commandment, and consequently no punishment either. He is speaking there specifically in the context of eventually receiving punishment. Obviously. Right, because if there is no negative commandment, there is no punishment. Yes, but it is defined specifically with regard to punishment. But why? Why is it defined regarding punishment? It means that it is not a warning. No, it is a law… So what is the other assumption? Tell me some other assumption. That this means it is forbidden but there is no punishment. Fine, but that is still a halakhic statement. So there is a halakhic consequence to what Maimonides says in the second root, no? It may be, no problem, but punishment there is none. Yes, like a partial measure, for example. A partial measure is forbidden by Torah law according to Rabbi Yohanan, but there is no punishment for it, no lashes. Yes, there are such things. But that means there is a halakhic consequence to his statement in the second root. A halakhic consequence. Correct—that there is no punishment. So it is not only a matter of source. Fine. And that is to challenge the Tashbetz. Yes. Let me give you another example. Maimonides in his Commentary on the Mishnah in Kelim, chapter 17. I did not leaf through here, I do not remember where it appears here, but Maimonides writes there that a law given to Moses at Sinai is “the words of the Scribes.” Then he speaks there about legal measures. So he says: then why, if you are in doubt whether there is the required measure—say regarding impurity—whether there is the measure or not, do you not rule leniently? After all, legal measures are a law of “the words of the Scribes.” Then he says: because the measures are details within an enumerated commandment. For example, if there is a prohibition against eating pork, that is a Torah prohibition, written in the Torah. The measure that only from an olive’s bulk onward is there a prohibition against eating pork—that is a law given to Moses at Sinai. “Measures, partitions, and interpositions are a law given to Moses at Sinai.” The Talmud in Sukkah tried to derive it from “a land of wheat and barley and vine and fig and pomegranate”—but no, it is a law given to Moses at Sinai. So Maimonides says: yes, but this is a law given to Moses at Sinai that explains the prohibition written in the Torah not to eat pork. So of course that is Torah-level. It is not rabbinic. If there is a law given to Moses at Sinai that innovates an entirely new law—say willow on the altar and the water libation are a law given to Moses at Sinai—then a law given to Moses at Sinai that innovates a new law, that law is “the words of the Scribes.” But if there is a law given to Moses at Sinai that comes to explain a law written in the verse, then it is only a law given to Moses at Sinai that explains the verse, so in practical terms what comes out of it is Torah-level, not rabbinic. And therefore in case of doubt one rules stringently. That is what Maimonides says there. What do we see again? That if there is a law given to Moses at Sinai that innovates a new law—its doubtful cases are ruled leniently. In other words, when he writes that it is rabbinic, he does not mean only the question of source; he means the question of authority, because he says there is a halakhic practical difference. If something is a law given to Moses at Sinai, its doubtful cases are ruled leniently. Here he only says: yes, but if it is a law given to Moses at Sinai that explains a verse, then it will be Torah-level. But once again you see that this statement that we are dealing with a rabbinic law and a law given to Moses at Sinai is a statement referring to the halakhic plane. Here is the consequence: doubt must be ruled leniently. He is not just saying it as some kind of meta-halakhic remark that the source is a rabbinic source and so on. But where do you see that Maimonides uses the term rabbinic not only for the end result of the law? I see. Maimonides uses the term rabbinic—Maimonides uses both. There is one Rabbi Chiyya ben something, Rabbenu Tov ben Chiyya, something like that, a Yemenite commentator, who wanted to claim that in Maimonides there is a difference between the term rabbinic and the term “the words of the Scribes.” He argues that rabbinic is the halakhic term, and “the words of the Scribes” is the question of source. That is how he wants to explain the Tashbetz. And many were drawn after him; to this day they quote this in yeshivot and it has become very widespread. It has no root or branch. Maimonides wrote this in Arabic, not Hebrew. And people who know Arabic—I do not know Arabic—but people who know Arabic say that what is written there is rabbinic; the translator rendered it as “the words of the Scribes,” and this has no significance at all. The expression in the Arabic original is the same expression. Yes, yes, it is the same expression. And you also see in the Mishneh Torah that he uses rabbinic and “the words of the Scribes” completely interchangeably. You will not find there that “the words of the Scribes” is one type and rabbinic is the regular type. In Maimonides it is completely interchangeable. But on the other hand you do see that there is something whose authority is Torah-level, that the law is… that it has a Torah-level root, or that its source is Torah-level in a direct way—up to there the interpretation does have Torah-level authority. Correct. On the other hand you see there are cases where a law is Torah-level, even though it is only interpretation, yes, only that, but Maimonides himself writes this. If the Sages tell us that it is Torah-level and they made an interpretation, then it too will be Torah-level. Here Maimonides adds two more categories. One category is when the punishment is written in the Torah for what the Sages told us. Fine, but there is already such a category in Maimonides—interpretations that create a Torah-level law. If it is supportive interpretation, or if the punishment is written in the Torah, which is also basically supportive interpretation. Because we already know that this is the law, since the Torah says there is punishment for it. So we are only looking for a source, and that is basically supportive interpretation. Okay. Now one of the well-known and difficult sources in Maimonides is his words in the laws of marriage. At the beginning of the laws of marriage. Yes, betrothal by money. Maimonides writes in the laws of marriage as follows—at the very beginning of the laws of marriage, chapter 1, law 2: “And these acquisitions are a positive commandment of the Torah. And a woman is acquired in one of three ways”—the opening Mishnah in Kiddushin—“by money, by document, or by intercourse. By intercourse and by document by Torah law, and by money by the words of the Scribes.” All right? There is not the slightest hint of this in the Talmud. And he continues: “And these acquisitions are what are called kiddushin or erusin everywhere.” The Raavad immediately jumps in: this is corruption and a corrupt interpretation along with it. Where did he get that betrothal by money is “the words of the Scribes”? There is not the slightest hint of this in the entire Talmud. They treat betrothal by money as Torah-level betrothal. A woman is put to death for adultery as a result of betrothal by money. On the contrary, there is a rabbinic ordinance that one betroths only by money and not by intercourse, a decree of Rav. So now all betrothal is only rabbinic? How can such a thing be? But you do not have to get to the Talmud. Maimonides himself writes this in law 3: “And once the woman has been acquired and becomes betrothed, even though intercourse has not yet taken place and she has not yet entered her husband’s home, she is a married woman, and one who has intercourse with her besides her husband is liable to death by the court, and if he wishes to divorce her she requires a bill of divorce.” He does not say: only in the cases of intercourse and document. After listing the three ways in which a woman is acquired, he says: once she is acquired, one who has intercourse with her is liable to death. But as you explained in law 1—only for intercourse and document. He does not write “as I explained in law 1.” It simply does not… What do you mean, simply? He should write: if she was betrothed by intercourse or by document, she is liable to death. If she was betrothed by money, then not. That is not simple at all. Why is it so obvious that this refers only to intercourse and document? Because he wrote it in law 1. No, he wrote that it is rabbinic, “the words of the Scribes.” Therefore law 3 will refer only to the first two topics in law 1. But he does not write that. He needs to write that. He should write it. It is clear—in every place he speaks about liability to death, and he does not say “provided she was betrothed by intercourse or document.” There is no such qualification in Maimonides. He says “even though not…” Explicitly, in law 3 he says: “Once the woman has been acquired and becomes betrothed, she is a married woman, and one who has intercourse with her besides her husband is liable to death by the court.” No, but at the beginning, at the beginning—“once the woman has been acquired and becomes betrothed by money or by document…” That is exactly the question: if she is acquired by any of the three ways, even without intercourse—“even though intercourse has not taken place”—no, “even though intercourse has not taken place” means even though there has only been betrothal and not marriage. There is intercourse for the purpose of betrothal and then there is intercourse for the purpose of marriage. “Even though intercourse has not taken place and she has not entered her husband’s house” means even though there has not been marriage but only betrothal. So here this really is a difficult question, and there are different textual versions. Some want to claim that Maimonides retracted. Rabbi Abraham son of Maimonides claims that his father retracted. Meaning that it is not “the words of the Scribes” but Torah-level. But that is a strange claim, because in a responsum long after he wrote the Mishneh Torah, Maimonides explicitly writes: “I have a composition in Arabic”—a very famous responsum to Rabbi Pinchas of Alexandria, the judge of Alexandria—on the matter of the count of the commandments. He asks him about this “words of the Scribes” there. “And with our teacher Saadia…” etc. “…and at its beginning there are fourteen chapters comprising major principles in the fundamentals of counting the commandments.” By the way, the Raavad apparently did not know the Roots, and many of the medieval authorities (Rishonim) did not know the Roots because they were written in Arabic. Therefore it is clear—you can see from the medieval authorities (Rishonim) who attack Maimonides that they did not know the Roots, because there are things written in the Roots where Maimonides explains this, and this is one of them. “A person must know them, and afterward the error of everyone who counted the commandments except me will become clear, from the author of Halakhot Gedolot until now. After you study these fourteen roots, you will understand that everyone except me erred. And in those chapters I explained that not everything learned by analogy or by a fortiori reasoning or by gezerah shavah or by one of the thirteen principles by which the Torah is expounded is Torah law, unless the Sages explicitly say that it is from the Torah. Otherwise it is not Torah law. And I brought proofs for this, and there I explained that even something that is a law given to Moses at Sinai we call ‘the words of the Scribes.’” By the way, there it is not explicit. In our text of the second root it does not explicitly say that a law given to Moses at Sinai is not Torah-level, but it is written there indirectly. I will get to that later. “And there is nothing from the Torah except something explicit in the Torah, like shaatnez and kilayim and Sabbath and forbidden sexual relations, or something that the Sages said is from the Torah—and those are only about three or four things. In that book I explained everything, and when you read it, it will become clear to you, even though it is in Arabic. And one can certainly ask and say to me: intercourse is certainly from the Torah, since they did not learn it by one of the thirteen principles, but rather ‘and has intercourse with her’ teaches that she is acquired by intercourse.” So that is written explicitly in the Torah, therefore betrothal by intercourse is Torah-level. “Rather money and document were learned by analogy. Why then did you say that document is from the Torah and money is from their words? Decide! Let document too be from their words.” “And the answer to this is that certainly I would have said that money and document are from their words, since they came by legal reasoning, were it not for the fact that we say explicitly in Kiddushin on page 9 regarding a betrothed maiden, where we say: ‘A betrothed maiden, for which the Merciful One says the punishment is stoning—how can that be found?’” Meaning, since the verse says “a virgin maiden betrothed,” it follows that there certainly is betrothal by Torah law. Otherwise how could the Torah speak of a betrothed maiden? Apparently there is such a thing as betrothal already by Torah law, not rabbinically. Without intercourse, because it is speaking of a betrothed maiden without intercourse, and she is still betrothed by Torah law. All right? “And they discussed it back and forth, and in the end Rav Nachman bar Yitzchak said: this is found, for example, when he betrothed her by document.” So what do you see? That the Sages themselves testify that betrothal by document, even though it comes from analogy and should therefore have been rabbinic, the Sages say it is Torah-level, so it is Torah-level. But regarding money they did not say this, and therefore money remains “the words of the Scribes,” while document is Torah-level. Look how precise Maimonides is: from the initial assumption of the Talmud on page 9 he learns that betrothal by document is Torah-level, and he goes back to his Mishneh Torah and explains: document is Torah-level, money is rabbinic. This whole composition, the Mishneh Torah, is a frightening composition. The way he managed to organize all this, to account for these sorts of initial assumptions and derive from them a structure—it is really amazing. In any event, what do we see here? That in the responsum he stands by what he wrote, right? So what does it mean that he retracted? Long after he completed the Mishneh Torah, they asked him about what is written there and he says: look at the second root, there I explain why… there I explain why I called it “the words of the Scribes.” By the way, that is a very rare place where Maimonides refers to the root, to the impact of the second root on the book, on the Mishneh Torah. I said there are very few such places. Here Maimonides himself says that this comes from there. So here we do not need interpretive speculation. Here Maimonides himself says: look at the second root and understand. But on the other hand Maimonides also writes that one is liable to death if he has relations with such a woman. So there is something problematic here. Yes. Regarding the betrothal of a woman, are we talking about fulfillment of a Torah-level or rabbinic commandment, or about her legal status? Because those are two different things. I mean the fulfillment… In plain terms kiddushin is not a commandment. I understand, but in plain terms kiddushin is not a commandment. It is a preparatory act for a commandment… No, generally speaking there is no commandment in kiddushin at all. Not because of betrothal by money. It is a means toward procreation. So it is only status? So the status of one who betroths—is it rabbinic or Torah-level? Apparently, yes. Okay, so those are entirely different things from everything else we are talking about. No, but you still see that a thing that comes from interpretation has the status of a rabbinic law. That is the dispute between the Tashbetz and Maimonides. But it is not really a law. Is it not a law that she is betrothed rabbinically? But that status is very important—whether one who has relations with her is liable to death or not. But a regular commandment is something you are obligated to do. Fine, okay, so what? Still the question is whether a law learned from interpretation is a Torah-level law or not. That is the dispute. Here you see that it is not. But there is no law to betroth someone. No, there is no commandment to betroth. There is a law that the woman is betrothed. That is a halakhic determination. It is not a commandment, but there is a halakhic determination here that this is a Torah-level status. Like what we discussed regarding a married woman—the question is whether she is a married woman or not. Yes. Correct—that is Torah-level. Right, but this is rabbinic, and that is Torah-level by everyone’s view. It stems from the determination of status. Fine, so it is not a commandment—so what? Still the thing that comes from interpretation is a rabbinic law. But this dispute is not similar… Of course it is similar! The Tashbetz and Maimonides disagree about what Maimonides means. Is a thing that comes out of interpretation, is a law that comes out of interpretation Torah-level or rabbinic? They are not speaking about commandment, they are speaking about law. Is a law that comes out of interpretation Torah-level or rabbinic? Here you see it is rabbinic. But it seems to me that Maimonides himself—as I said before—here itself this is difficult. True, you see it is a rabbinic law, but on the other hand you also see that one who has relations with her is liable to death, because in the next law Maimonides writes that. So actually this is proof for the Tashbetz. This is similar to the law of conversion—is it not a commandment to convert? Right, I agree that it is not a commandment. We are not disagreeing; I agree it is not a commandment. But still it decides the dispute between the Tashbetz and Maimonides. They are not disputing about commandments, they are disputing about every halakhic determination. If a halakhic determination comes from interpretation, is it Torah-level or rabbinic? That is their dispute. Here you see that it is rabbinic. On the one hand. But on the other hand, in terms of the consequences, one who has relations with her is liable to death. So this is proof for the Tashbetz, right? Because you see that it is only a matter of source and not a matter of… Now I think that this is not proof for the Tashbetz. Some want to bring proof for the Tashbetz from here. I think it is not proof for the Tashbetz, and the point is that earlier I brought Maimonides from the Commentary on the Mishnah in Kelim. And there Maimonides spoke about the legal measures, if you remember. I did not understand the question. All in all, the change of status stems from rabbinic law, but the status itself is defined as a Torah concept, a Torah-level concept. You are married or you are not married. The Sages turned you into the status of someone married by Torah law. Who said so? He says: what are you talking about? How can one be married rabbinically? Why not? Of course there is. Certainly there is. If one betroths a woman through ma’amad sheloshtan, what is the law? She is married to him rabbinically. Now the question is whether rabbinic acquisition works for Torah law or not. The Machaneh Ephraim discusses this and others as well. If rabbinic acquisition does not work for Torah law, then there is a whole world there, just like the Torah-level plane there is also a rabbinic plane. Everything is there: there is a rabbinic mamzer, rabbinic divorce, rabbinic betrothal, everything rabbinic. One who says that rabbinic acquisition works for Torah law says what you are saying. And to that I am getting in a moment. So here indeed I think this issue in the laws of marriage does not concern us. Because I mentioned Maimonides in the Commentary on the Mishnah in Kelim. Maimonides says there that when the law given to Moses at Sinai of legal measures, right, comes to teach what a verse means, then it is Torah-level. Even though it is a law given to Moses at Sinai, and usually a law given to Moses at Sinai is rabbinic, but if the law given to Moses at Sinai does not innovate a new law then it is rabbinic, whereas if it comes to explain a Torah-level law written in the verse, then it is from the Torah. That is what Maimonides himself writes in the Commentary on the Mishnah. I am claiming that here it is the same thing, and now I come to what you were saying. The concept of kiddushin is certainly Torah-level—that is what Maimonides says, after all, “a betrothed maiden” is written in the Torah. You see from the Torah itself that there is such a thing as betrothal; meaning, the concept of betrothal is Torah-level. Now the Sages come through interpretation, and that interpretation explains to me what the Torah means when it says “betrothed.” So this is supportive interpretation, not creative interpretation. Essentially this is interpretation that teaches me what the verse means. In such a situation, the law that comes from the interpretation is Torah-level, because the law taught me what the Torah meant when it said “a betrothed maiden” or “a woman who is betrothed.” All right? So the Sages tell me through interpretation that it meant not only intercourse and document but also money. But after they innovated that point—just a second—after they innovated that, now I already know that when I read in the Torah about a woman who is betrothed or a betrothed maiden, that includes money, document, and intercourse. I learned that through interpretation, just like a case where the punishment is written in the Torah and I learned the prohibition through interpretation. There too, in the end they do punish for it. Why? Because here the interpretation comes to explain something that has an anchor in the verse. This is not interpretation that creates something new, but interpretation that explains a verse. Just a moment, I want to read a passage in Maimonides, commandment 213: “He commanded us to cohabit by kiddushin and to give something into the woman’s hand, or by document, or by intercourse, and this is the commandment of kiddushin.” Notice how careful he is: “to give something into the woman’s hand, or by document, or by intercourse.” What is that? Yes—“to give something into the woman’s hand, or by document, or by intercourse.” Money, document, and intercourse, right? “To give something into the woman’s hand,” that is, give the woman… yes. “And this is the commandment of kiddushin.” What is that? A positive commandment that includes money as well. One can interpret the sentence differently. What? “To give something into the woman’s hand,” meaning either document or intercourse? Intercourse is not giving something into the woman’s hand. “And its indication is His saying, ‘When a man takes a woman and has intercourse with her,’ which indicates acquisition by intercourse. And there it says, ‘and she leaves his house and becomes another man’s wife’; just as departure is by document, so becoming is by document. And likewise we learned that she is acquired by money from His saying regarding the Hebrew maidservant, ‘there is no money’—there is no money to this master, but there is money to another master. And who is that? Her father. But the Torah-level kiddushin are indeed explicit in intercourse.” What does “Torah-level” mean here? It means what is written explicitly in the Torah, because that is intercourse. “As has been explained in the places in Ketubot and Kiddushin and Niddah, and the laws of this commandment have already been explained.” So what does he mean? He does not say it is rabbinic. He says Torah-level kiddushin is intercourse; that is what the Torah says when it says “when a man takes a woman and has intercourse with her.” All right? But the things we learn from the gezerah shavah regarding document and the interpretation regarding money from Ephron—“taking” “taking” from the field of Ephron—when we learn those things from interpretation, they explain to us what kiddushin is. So true, that explanation is an explanation from the words of the Sages, but in the end it explains what kiddushin is, and a woman who was betrothed—one who has relations with her is liable to death. But still he distinguishes between document and money—he does make that distinction. So he says here, in this context, that distinction is like the Tashbetz: it is only a question of what the source of the law is. But in terms of the force of the law, both are Torah-level. And why? But only here. The Tashbetz is not generally right. Here it is like the Tashbetz. Why? Because here the interpretation explains a term that appears in the verse, “a betrothed maiden.” All right, interpretation that explains yields a Torah-level law. Because at the end of the day “betrothed” is a Torah law; the interpretation only explained to me what “betrothed” means. But if there is interpretation that creates a new law, then there it will be rabbinic. As we saw with a law given to Moses at Sinai, as we saw when the punishment is written in the Torah. Just one sentence I want to say: this point is very important not only to explain betrothal by money. In my opinion, this is actually what explains most of the places—or all the places—where Maimonides himself takes a law that comes from interpretation and treats it as a Torah-level law, and everyone asks how that can be. The answer is that in all those places we are dealing with interpretation that explains a law appearing in the verse. Therefore, how many interpretations actually innovate a law that is entirely new, not just a detail within a commandment or a law in a verse? Very few such interpretations exist. In those interpretations Maimonides will say that it is rabbinic even in practical law. It is true that there are few such cases in the Mishneh Torah, but there are some, and we see them. Maimonides already says himself that if the interpretation or the law given to Moses at Sinai explains a Torah-level law that appears in a verse, then he too agrees that it is Torah-level. But that is not proof for the Tashbetz. That is true in those places where the law given to Moses at Sinai or the interpretation is explanatory, but a law given to Moses at Sinai or an interpretation that produces a new law—there it is really a rabbinic law, not only regarding source but also regarding authority. Also regarding authority. Sorry, yes? Again, I did not understand the difference between document and money. Both are verses interpreted through exposition, so why does Maimonides say there is a difference between them? Because Maimonides says that regarding document, the Sages themselves said it is Torah-level. But both are clarifications. In practical halakhic terms there is no difference. In practical halakhic terms there is no difference. All are Torah-level in the sense that one who has relations with her is liable to death. But there is a difference in the Tashbetz’s sense, in terms of source. Maybe I’ll say one more sentence because I’ll get to this later. The claim is basically this: Nachmanides asked Maimonides, how can it be that interpretation plus tradition does what tradition alone does not do and interpretation alone does not do? The answer, which I will get to later, but it also answers that so I’ll say it now, is that it depends on how you view interpretation—and you also pointed this out earlier. Maimonides understands that interpretation does not uncover; it expands. Nachmanides thinks interpretation uncovers—when I interpret, I reveal another dimension already present within the verse, and therefore for him it is Torah-level. Maimonides says interpretation expands the law appearing in the verse, okay? Therefore it is not Torah-level. But in a place where I have a tradition and the interpretation is only supportive interpretation, in such a place even Maimonides agrees that the interpretation is uncovering, not expanding. And then the law that comes from it is a Torah-level law. Now regarding the document—the gezerah shavah between divorce and betrothal by document—he argues that this is uncovering interpretation, and therefore it is Torah-level. The interpretation of money is creative interpretation, not uncovering interpretation. But it creates a detail within an existing law, so in practical halakhic terms it will also be Torah-level. But if you ask me whether it is “the words of the Scribes” in terms of source, then yes, it is “the words of the Scribes,” because the source is not from the Torah. The Torah itself did not speak about it. It does not uncover; it expands. But in the sugya there, it is true that the Talmud says this, says it is Torah-level, so Maimonides agrees—but why? Where does that come from? Because they had a tradition. No, because it is supportive interpretation. They had a tradition regarding document; they did not have a tradition regarding money. So was there really a tradition from Moses that this is the meaning? And here there was not? Correct. Regarding money there was not. Supportive interpretation, as Maimonides writes explicitly, is Torah-level. He writes that in the root, and there he refers to that root. This example of document sounds a bit arbitrary. It sounds like they could too easily have said that this was so; in another sugya maybe it would not have been document. Maybe I can strengthen your question. One of the questions on Maimonides that I did not mention, but it also comes up, is: why does Maimonides assume that every place where the Sages did not say anything explicitly is rabbinic? Every place where the Sages did not say anything, that should be doubtful Torah-level—either Torah-level or rabbinic. If the Sages said no, I understand. But if they said nothing? If they say it is Torah-level, then it is supportive interpretation, so it is Torah-level, fine. If they say nothing, then I do not know. But Maimonides says no: if they do not say it, then it is rabbinic. Why? If they say nothing, then I do not know. But Maimonides says no—if they do not say it, then it is rabbinic. I understand how that relates to your question, because about document they said it, and about money maybe yes maybe no, but they did not say it. About document they said it; about money they did not. Maimonides, as he said in the responsum, says there are only three or four cases that are Torah-level. Therefore you basically go by the majority. Every place where the Sages did not say so, clearly it is not Torah-level. When the Sages want to say that something is Torah-level, they need to say so. But it does not sound that way. In the Talmudic sugya it does not sound as though regarding document—they had a question, yes? Maimonides says document… it has to be document. It does not sound like there was such a tradition. You are saying it looks like creative interpretation. So in any case that is difficult on Maimonides. I agree, but in any case it is difficult on Maimonides. Maimonides himself takes it to be supportive interpretation; that is clear, that is written in Maimonides. Now the question why he thinks it is supportive interpretation—that is a good question on Maimonides, but it is a question on him, not on me. You asked me why Maimonides says this about document and not about money. Look at Maimonides himself: he says because document is supportive interpretation and money is creative interpretation. Not creative—creative interpretation that explains? Correct, but it still explains an existing law. And what are the three or four? Hm? The three or four where there are such cases? Yes, so document, for example, is perhaps one of them. But creative or supportive interpretations that explain verses? No, then that too is Torah-level. That too is Torah-level. There are not many of those either, by the way. No, sorry, sorry, there are not many others, right. If they explain verses, then most of them are like that. If there are few interpretations, say, like the shape of tefillin, is that one of those? Correct, correct. Therefore that too will be Torah-level according to Maimonides, because it is a law given to Moses at Sinai that explains what tefillin are. And the three or four Maimonides speaks of—what category are they? No, that is supportive interpretation that does not explain a verse, but supports a tradition we received orally, and I have an interpretation that supports it. Interpretation that speaks about verses—there are lots, interpretations that speak about laws in verses. But that is not called a law given to Moses at Sinai—is it called supportive? The explanation of tefillin is law given… no, there is no interpretation there. It is only a law given to Moses at Sinai. There is only oral tradition. It is a law given to Moses… Maimonides writes this explicitly; it is not my idea. Maimonides writes explicitly that a law given to Moses at Sinai is something transmitted in oral tradition for which we have no anchor in the written text. That is what the Talmudic term “law given to Moses at Sinai” means according to Maimonides. Something transmitted by tradition for which we do have some textual support is not called a law given to Moses at Sinai. It is a law given to Moses at Sinai, but it is not called that. So it turns out that betrothal by money is Torah-level according to Maimonides. Correct. So how can he say in law 1 that it is rabbinic? I said: it is “the words of the Scribes” in its source, as the Tashbetz says. But right after that, in the next law, he writes—precisely for that reason he writes—that one is liable to death for it, in order to clarify that in the end all of it is… and in the Sefer HaMitzvot he writes this explicitly. There he says that what the Torah spoke about was intercourse, but document and money also enter into the commandment. After all, there he writes it. That document and money, although they are learned through interpretation, are included within the concept of kiddushin written in the Torah. So in halakhic terms it is Torah-level. Is there not something in Maimonides that says that in ancient times a man would meet a woman and marry her, right? Yes, at the beginning of the laws of marriage. Correct, in law 1. I read law 2. So maybe there is some historical development here in how they actually carried out marriages. These are very ancient things. Intercourse is Torah-level. They only later thought of the idea of document, and institutionalizing it with ceremony and money, and therefore that is more distant. Maybe Torah-level means very ancient things, and “the words of the Scribes” means things added later. But Maimonides said no. He said document too is Torah-level. He said document too is Torah-level. Right. On the contrary, all that the Torah innovated is what goes beyond what was customary in ancient times. What was customary in ancient times still exists among gentiles. And what the Torah innovated—that is the Torah-level law. The Torah innovated the additional legal layer beyond what was customary in ancient times. Document? No, kiddushin in general. Oh, kiddushin. Because in ancient times there was marriage. The Torah added kiddushin. Ah, that layer of kiddushin. Yes.