The Path of Halakha: Between Torah Law and Rabbinic Law – Lesson 10

Table of Contents

• Maimonides’ approach to “do not turn aside” and the Sanhedrin
• Three types of rabbinic rulings and the scope of obligation
• “By legal derivation” in Maimonides and the thirteen hermeneutical principles
• The dispute with Nachmanides and its implications for rabbinic law versus Torah-level law
• The sages as interpreters and as legislators, and the absence of separation of powers
• The anchor of authority: a verse in the Torah versus a source outside the Torah
• “Asmachta” in Nachmanides and the difficulty of circularity
• Rabbi Elchanan Wasserman, other verses, and logic as Torah-level law
• Hanukkah, “and commanded us,” and the question of authority versus the question of the blessing
• Authority versus correctness: the possibility that the sages have no authority
• Netivot, unintentional violation of rabbinic law, and the nature of the transgression
• Rabbi Yishmael: “I will read and not tilt,” and the limits of rabbinic enactments
• The rebellious elder, interpretive authority versus legislative authority, and the author of Sefer HaChinukh
• “They said it and they said it” as a resolution for Maimonides and rabbinic doubt
• The Rogatchover’s interpretation: “do not turn aside” as rebellion against authority, not as a prohibition on every rabbinic law
• The paradox of “offenders will be punished” and a proposed synthesis
• Non-rebellion, rabbinic obligation, and indirect derivation from the divine will

Summary

General overview

The text presents an approach according to which the question of the sages’ authority serves to clarify the kinds and levels of obligation in Jewish law, through the dispute between Maimonides and Nachmanides over the scope of the prohibition of “do not turn aside.” Maimonides anchors the authority of the Sanhedrin in biblical verses and applies the positive commandment to obey and the prohibition not only to the tradition of the Oral Torah and to derivations through the thirteen principles, but also to decrees, enactments, and customs—to the point of the principled implication of lashes for one who violates their ruling, were it not for the rule that this is a prohibition given as the warning for a capital offense adjudicated by a religious court in the case of the rebellious elder. Nachmanides rejects this inclusion in order to preserve the distinction between Torah-level law and rabbinic law, and as a result the question becomes sharper: what is the basis of the obligation to obey rabbinic enactments, if not “do not turn aside”? The text reviews various attempts to explain how authority can exist without turning rabbinic law into Torah-level law, and ends with the proposal that the verse “do not turn aside” mainly obligates non-rebellion, while implicitly presupposing a binding system of enactments that is not written there directly.

Maimonides’ approach to “do not turn aside” and the Sanhedrin

Maimonides rules at the beginning of the laws of rebels that the Great Court in Jerusalem is the foundation of the Oral Torah and the pillar of instruction, and that from them law and justice go forth to all Israel; and upon them, “the Torah assured” us, in the sense of confidence and reliance. Maimonides interprets the verse “According to the law that they shall teach you, and according to the judgment that they shall tell you, you shall do” as a positive commandment to listen to them, and he rules that anyone who believes in Moses our Teacher and his Torah must base religious practice on them and rely on them. Maimonides adds that one who does not act according to their ruling violates a prohibition, “do not turn aside,” and one does not receive lashes for this prohibition because it was given as the warning for the capital offense adjudicated by a religious court in the case of the rebellious elder, who is liable to strangulation.

Three types of rabbinic rulings and the scope of obligation

Maimonides divides the words of the sages into three categories: matters learned by oral tradition, which are the Oral Torah; matters they derived by their own reasoning through one of the principles by which the Torah is interpreted; and matters they instituted as a fence for the Torah and according to what the time required—namely decrees, enactments, and customs. Maimonides rules that in each of these three categories there is a positive commandment to listen, and one who violates them transgresses a prohibition. Maimonides attributes “according to the law that they shall teach you” to decrees, enactments, and customs meant to strengthen religion and improve the world; “and according to the judgment that they shall tell you, you shall do” to laws derived by legal reasoning through one of the principles by which the Torah is interpreted; and “from all the matter that they tell you” to the received tradition handed down from one person to another, connected to a law given to Moses at Sinai, as he explains in the first root and in his introductions.

“By legal derivation” in Maimonides and the thirteen hermeneutical principles

The text distinguishes between the language of the sages, in which “legal derivation” can mean an a fortiori inference, and the language of Maimonides, in which “legal derivation” refers to all thirteen hermeneutical principles. Maimonides includes within this framework even the discussion of “we do not impose punishments based on legal derivation” as against other formulations, and places the sages’ interpretation of the Torah within a broad system of derivation that is not limited to a fortiori reasoning alone.

The dispute with Nachmanides and its implications for rabbinic law versus Torah-level law

In his glosses to the first root, Nachmanides argues that enactments, decrees, and customs cannot be included under “do not turn aside,” because then every rabbinic prohibition would carry the Torah-level prohibition of “do not turn aside,” and all the practical differences between Torah-level law and rabbinic law would disappear. The text illustrates a practical implication through the discussion of Rashi and Tosafot about rabbinic positive commandments that are time-bound for women, and suggests that one way to explain Rashi is that rabbinic commandments are anchored in “do not turn aside” and therefore resemble a prohibition, in which women are obligated. The text brings evidence from Maimonides’ own wording, which implies that in principle there would be room for lashes for failure to obey their rulings, were it not for the rule of a prohibition given as the warning for a capital offense adjudicated by a religious court, and presents this as strengthening Nachmanides’ claim that the line between rabbinic and Torah-level law is being blurred.

The sages as interpreters and as legislators, and the absence of separation of powers

The text states that the sages operate in two fields: interpretation and legislation, whereas in modern political thought there is separation of powers between the legislature and the judiciary. In Jewish law, the same authority, the Sanhedrin, both interprets and legislates, and according to Maimonides, “do not turn aside” applies both to their activity as interpreters and to their activity as legislators. The sages’ interpretation creates Torah-level law because it determines, for us, “what is written in the Torah,” while their legislation creates rabbinic law in the form of enactments and decrees.

The anchor of authority: a verse in the Torah versus a source outside the Torah

The text presents two possibilities for grounding the authority of the sages: a source within the Torah through a verse, or a source external to the Torah through logic or some other principle. Maimonides adopts the first possibility; according to him, the Torah delegates authority to the sages by its own power, in a hierarchical and structured way. Nachmanides rejects this application with respect to rabbinic legislation in order to prevent the erasure of the distinction between rabbinic law and Torah-level law. That sharpens the question: what is the binding basis for obeying rabbinic enactments if not “do not turn aside”?

“Asmachta” in Nachmanides and the difficulty of circularity

Nachmanides notes in one place that enactments have an asmachta in “do not turn aside,” based on the Talmud in Berakhot 19, and the text presents this as difficult because an asmachta is understood as a rabbinic law; so we seem to get a circularity: “a rabbinic law to obey the sages” based on an asmachta. The text expands this into a foundational problem in any normative system: the principle that obligates obedience cannot itself be part of the very same system, because “a law that says to keep the laws” does not explain its own binding force. From that perspective Maimonides is understandable, because he presents a verse external to the rabbinic system, whereas according to Nachmanides it is difficult to see how the obligation starts at all if it rests neither on a verse nor on some other external principle.

Rabbi Elchanan Wasserman, other verses, and logic as Torah-level law

Rabbi Elchanan Wasserman, in Kuntres Divrei Soferim, sharpens the point that for Nachmanides the solution cannot be another verse, because any verse that grounds authority would recreate the same problem that Nachmanides raises against Maimonides. The text also discusses the possibility of logic as the source, and cites the Talmudic assumption “why do I need a verse? It is logical” as proof that logic has Torah-level force; and therefore that too does not solve Nachmanides’ problem without returning to the blurring of the line between rabbinic and Torah-level law. The text presents the question of the Pnei Yehoshua in Berakhot 35 about the blessing over benefit, which is learned from logic, against the rule that “in cases of doubt concerning blessings, we rule leniently,” and then the Tzelach’s answer that Torah-level logic mainly applies in interpreting an existing law, not in creating a completely new law from scratch—while stressing that the difficulty regarding the sages’ authority still remains.

Hanukkah, “and commanded us,” and the question of authority versus the question of the blessing

The text notes that in tractate Shabbat it is explicitly stated that Hanukkah is learned from “do not turn aside” and “according to all that they shall teach you,” but emphasizes that the Talmud there is dealing with the question of how we can say in the blessing “and commanded us,” not with the question of the source of the sages’ authority to institute the enactment itself. This distinction is used to show that the question of the blessing is not identical to the question of the binding force of that authority.

Authority versus correctness: the possibility that the sages have no authority

The text raises the possibility that according to Nachmanides there is no “authority” in the sense of something binding regardless of personal agreement, but rather a practical obligation to listen to the sages because they are right; and someone who disagrees is simply “taking a risk” with respect to the truth. The text explains that authority means an obligation not left to private discretion, like a law that obligates not because it is wise but because it is law. This possibility shifts the discussion from the question “who has authority?” to the question “who is right?”

Netivot, unintentional violation of rabbinic law, and the nature of the transgression

The text cites Netivot in section 234, who rules that someone who unknowingly violates rabbinic prohibitions of benefit does not need to repent, unlike one who unknowingly violates a Torah prohibition, and he brings proof from Eruvin regarding a student who sees his teacher erring in a Torah-level matter as opposed to a rabbinic one. Netivot explains that in a rabbinic transgression the act itself is not inherently problematic; it is a fence, and the problem is rebellion against the authority of the sages. Therefore, in an unintentional case there is neither rebellion nor any essential corruption. Against this, the text sets an opposite conception as a possible implication of Nachmanides: that in rabbinic law there is no authoritative command at all, only a matter of correctness and risk. It stresses that this is a complete 180-degree reversal of the position of Netivot, which rests on “do not turn aside.”

Rabbi Yishmael: “I will read and not tilt,” and the limits of rabbinic enactments

The text uses the sugya of “I will read and not tilt” to show a model in which a person thinks the enactment applies only where the relevant concern exists, and therefore one’s own assessment of the facts may determine whether the enactment obligates him. The text argues that such a reading reduces the concept of authority to an obligation only where the rule seems “reasonable,” and compares it to the king in The Little Prince who commands the stars to do anyway what they already do. Against that stands the possibility that Rabbi Yishmael retracted his confidence in making a general factual assessment about when one can critique the sages, in statements such as “how great are the words of the sages,” but the text leaves that as an open question.

The rebellious elder, interpretive authority versus legislative authority, and the author of Sefer HaChinukh

The text notes that if the sages have no authority at all, it becomes hard to understand the law of the rebellious elder, but clarifies that the rebellious elder concerns Torah-level law, not rabbinic law, and that even Nachmanides admits interpretive authority under “do not turn aside.” The text cites an “absurd” statement attributed to the author of Sefer HaChinukh, according to which, if a sick person must be fed prohibited foods, it is preferable to feed him a prohibition explicitly written in the Torah rather than one learned from derivation, because in the case of a derived prohibition there is both the prohibition itself and also “do not turn aside.” The text rejects this as something that “doesn’t begin and doesn’t end,” even though it is brought as a view that was said.

“They said it and they said it” as a resolution for Maimonides and rabbinic doubt

Nachmanides himself raises the possibility of reconciling Maimonides by means of “they said it and they said it”: the sages received Torah-level authority to legislate, and therefore they can also assign a lower force to their enactments, such as ruling leniently in cases of doubt, since they could have refrained from legislating altogether. The text brings the question from Shema’teta based on Sefeika DeRabbanan, where each side rules with certainty and cannot “permit” merely because someone else disagrees, and from there the difficulty in explaining leniency in rabbinic doubt as a built-in condition in every enactment. The text proposes an alternative: that there is a general enactment that in matters of rabbinic law we rule leniently in cases of doubt—and especially according to Maimonides, who holds that being stringent in a Torah-level doubt is itself a rabbinic law. That yields the striking formulation that stringency in Torah-level doubt is a rabbinic law, while leniency in rabbinic doubt is a Torah-level law.

The Rogatchover’s interpretation: “do not turn aside” as rebellion against authority, not as a prohibition on every rabbinic law

The text cites in the name of the Rogatchover, at the beginning of Tzafnat Pa’neach, an interpretation according to which a violation of “do not turn aside” is created when a person violates rabbinic law out of principled denial of the sages’ authority; but someone who violates it out of appetite, while acknowledging their authority, violates only a rabbinic prohibition and not “do not turn aside.” The text presents this solution as “brilliant,” but objects that it brings back the basic problem: if “do not turn aside” does not in practice obligate in every rabbinic violation, then what is the binding prohibition in a case where there is no rebellion against authority? The text sharpens this through an analogy: if you say “listen to Reuven,” that means that failing to heed Reuven’s instruction is itself rebellion against the original command. So it is hard to split the verse into a general layer of authority without giving it concrete binding content.

The paradox of “offenders will be punished” and a proposed synthesis

The text raises the paradox of a command that has no content other than “obey the command,” and compares it to a sign that says “offenders will be punished,” which does not define who counts as an offender or what the offense is. From this it argues that Maimonides and Nachmanides are really saying the same thing, because it cannot be that “do not turn aside” has only the content of authority without there being a real system of commands from which one can “turn aside.” The text proposes that “do not turn aside” forbids rebellion against the authority of the sages, and that from the very granting of authority there necessarily follows an implicit assumption that there is a binding system of rabbinic commandments, even though the verse does not directly command every detail, like fowl cooked in milk.

Non-rebellion, rabbinic obligation, and indirect derivation from the divine will

The text concludes with the proposal that someone who eats fowl cooked in milk without any principled rebellion does not violate “do not turn aside” itself, because the verse does not directly command that act; rather, he violates “rabbinic commandments,” which are learned indirectly from the fact that the Torah gave authority from which one can “turn aside.” The text states that there are not two separate systems here, but one command that cannot exist without presupposing a binding system of enactments. Therefore, the very meaning of “turning aside from the words of the sages” assumes concrete content to that authority. The text describes this as an indirect derivation from the fact that the Torah gives authority to the sages, and from that we know that it is the will of God that such a system exist, even though it is not spelled out in “do not turn aside” as a prohibition on every individual detail.

There are several books that actually didn’t focus on the question of the authority of the sages itself, but rather used it as a way to examine what kinds and levels of command or obligation we have in Jewish law. Maimonides’ approach regarding the prohibition of “do not deviate.” Maimonides writes as follows, in the beginning of the Laws of Rebels: “The Great Court in Jerusalem is the essence of the Oral Torah, and they are the pillar of instruction, and from them law and judgment go out to all Israel. And on them the Torah gave assurance”—“gave assurance” meaning it stands securely on them, yes, the Torah is secure through them, stands upon them, leans upon them—“as it says: ‘According to the Torah that they shall instruct you, and according to the judgment that they shall tell you, you shall do’”—this is a positive commandment. “And whoever believes in Moses our rabbi and his Torah is obligated to base the practice of religion on them and to rely on them. Anyone who does not act according to their instruction violates a prohibition, as it says: ‘Do not deviate from anything they tell you.’ And one is not flogged for this prohibition, because it was given as a warning connected to a death penalty imposed by a religious court.”

One is not flogged for the prohibition of “do not deviate” because it is a prohibition given as a warning for a death penalty imposed by a religious court. Why? Where was it given as a warning for a death penalty imposed by a religious court? In the case of the rebellious elder, right? “For any sage who rules against their words—his death is by strangulation, as it says: ‘And the man who acts intentionally, not listening,’ etc.” A rebellious elder also violates the prohibition of “do not deviate,” and since he is liable for death, then others who violate the prohibition of “do not deviate” as well—this is called a prohibition given as a warning for a death penalty imposed by a religious court, and therefore one is not flogged for it.

Now Maimonides says the following: “Whether matters they learned through received tradition, and these are the Oral Torah; or matters they derived by their own reasoning through one of the principles by which the Torah is interpreted, and it appeared to them that the law in this matter is so; or matters that they made as a fence around the Torah and according to what the time required, and these are decrees, enactments, and customs—in each and every one of these three matters there is a positive commandment to obey them, and one who violates any one of them violates a prohibition. As it says: ‘According to the Torah that they shall instruct you’—these are the decrees, enactments, and customs that they instruct the public in, in order to strengthen religion and to improve the world. ‘And according to the judgment that they shall tell you, you shall do’”—this is an exposition of the verse—“that they shall tell you, you shall do”—these are matters they derived by legal reasoning through one of the principles by which the Torah is interpreted.”

“By legal reasoning through one of the principles by which the Torah is interpreted”—that’s interesting; this is Maimonides’ approach in several places. The expression “by legal reasoning” usually refers to an a fortiori inference. Right? “Surely it follows by reasoning,” doesn’t it? “Reasoning” in the language of the sages is an a fortiori argument. Right? But for Maimonides, “reasoning” means all thirteen principles, including everything—except for the rule that punishments are not derived by legal reasoning, though obligations are derived by legal reasoning from all thirteen principles. “Or matters they learned by legal reasoning through one of the principles by which the Torah is interpreted.” “From anything they tell you”—this is the received tradition passed from person to person; that apparently is what is called a law given to Moses at Sinai. That’s also how it is in the first root and in other places, in the introduction to the Commentary on the Mishnah, and so on.

Maimonides’ position is that there is in fact a prohibition of “do not deviate” that commands us to obey the sages in all types of their statements: traditions transmitted orally to us, laws given to Moses at Sinai, decrees, enactments, and customs, and things they derive through one of the thirteen interpretive principles, interpretations of the Torah, and so on. As is well known, Nachmanides disagrees with him in his glosses to the first root and elsewhere; he also says so in his commentary on the Torah. Nachmanides claims that it cannot be that decrees, enactments, and customs are also included under “do not deviate,” because if that were so, then every rabbinic prohibition would contain a Torah-level prohibition—the Torah prohibition of “do not deviate”—and everything would have to be treated strictly, and all the practical differences between Torah law and rabbinic law would basically disappear. Therefore, he says that the prohibition of “do not deviate” cannot apply to rabbinic laws—decrees, enactments, and customs.

All right, in order to try to understand and unpack this dispute a bit more, I’ll begin with several preliminaries. First preliminary: the sages engage in two types of activity—they interpret and they legislate. Usually, say in modern political thought, there is separation of powers. There is a legislative branch and a judicial branch. The judicial branch is also the one that interprets the laws. In Jewish law there’s no such creature. Meaning, the legislative branch and the judicial branch are the same branch: the Sanhedrin. And with regard to the Sanhedrin it is said: “do not deviate,” as Maimonides writes here. And that is said—according to Maimonides—both about their activity as interpreters and about their activity as legislators. About both types of activity, the prohibition of “do not deviate” is said.

What is the difference between functioning as interpreters and functioning as legislators? When the sages function as interpreters, the Jewish law that results from that process is Torah law, right? They interpret the Torah, and in the end, after they interpret the Torah, from our perspective that is what is written in the Torah, so this is in fact Torah law. When the sages legislate, the result of that legislation is rabbinic law, right? That is basically the accepted definition, at least, of rabbinic law as opposed to Torah law. Rabbinic law is legislation, and Torah law is interpretation. So basically the sages interpret and legislate; this is what is called Torah laws and rabbinic laws.

Maimonides says that “do not deviate” gives them authority in both of these kinds of activity. In effect, when we think about the question, what is the authority of the sages, that is really the question under discussion. Where do the sages draw their authority from? Now, you could look for an answer to that question in one of two directions. One direction would be to look for the answer inside the Torah—that is, to look for a source in the Torah, a verse in the Torah, that grants authority to the sages. A second possibility is to look for a source outside the Torah that gives authority to the sages—a logical argument, or I don’t know what, something else, not in the Torah itself. Those are the two options.

Maimonides chose the first option. That is, Maimonides says that the authority of the sages derives from a verse: “Do not deviate from anything they instruct you.” It’s actually a simpler solution, because it arranges the authority of the sages in a very orderly hierarchical way. The Torah has authority by virtue of the Holy One, blessed be He; because the Torah has authority, it can itself delegate authority to the sages. Once the Torah does that, then the sages also have authority. The whole thing is organized and structured properly.

But against that direction, as I already mentioned earlier, Nachmanides says: that really would have been wonderful if it worked that way, but in fact it erases the difference between rabbinic laws and Torah laws, because anyone who violates a rabbinic prohibition is really violating “do not deviate.” So every rabbinic prohibition—or rabbinic commandment—contains the prohibition of “do not deviate,” and it basically becomes Torah law. There are all sorts of practical implications that depend on this matter, that “do not deviate” grounds rabbinic laws. For example, there is a dispute between Rashi and Tosafot about time-bound rabbinic positive commandments. Tosafot says that… Rashi says that women are obligated in rabbinic positive commandments, and Tosafot says women are exempt. And he brings proof for this in two places, I think—Passover tractate and New Year tractate maybe, I don’t remember, and one more place—because the Talmud says that women are obligated in the four cups or in the reading of the Megillah because “they too were part of that miracle.” Why do we need the reason that “they too were part of that miracle”? That implies that without it they would have been exempt. A special reason, “they too were part of that miracle,” implies that without it they would have been exempt. Why would they have been exempt? Because apparently… it is a time-bound commandment. That means that even a time-bound rabbinic commandment exempts women.

And here they challenge Rashi. In the book Har Tzvi by Rabbi Tzvi Pesach Frank there is an answer there on this issue, an interesting answer on this issue. In any case, one of the reasons—why indeed, according to Rashi, are women not exempt from time-bound rabbinic positive commandments? There are those who explain that it is because he goes like Maimonides: every rabbinic positive commandment is actually anchored in the Torah prohibition of “do not deviate,” and with prohibitions, even if they are time-bound, women are obligated. All right? That is, for example, one possible implication, and there are various others.

How do we know that the commentators on Maimonides are right when they say that according to Maimonides it comes out—or as Nachmanides attacks Maimonides—that according to Maimonides, every time I violate a rabbinic prohibition, a Torah prohibition is involved in its shadow, so to speak? Well, that is actually explicit in Maimonides himself. Maimonides writes: “Anyone who does not act according to their instruction violates a prohibition, as it says: ‘Do not deviate,’” and he continues: “And one is not flogged for this prohibition because it was given as a warning for a death penalty imposed by a religious court.” That implies that were it not given as a warning for a death penalty imposed by a religious court, we would be dealing here with flogging. In other words, someone who violates a rabbinic prohibition, someone who violates a rabbinic instruction, would in principle have to receive forty lashes. It is only that there is a rule that one is not flogged for a prohibition given as a warning for a death penalty imposed by a religious court. That means Maimonides means this literally: anyone who violates a rabbinic transgression has in fact violated a Torah prohibition and in principle should be flogged, were it not for that rule. That is the proof, and Nachmanides himself mentions this, as I recall.

So this really is a problematic direction, it seems, the direction of Maimonides. Maybe it is very orderly systematically; it is very stable, very clear, the authority of the sages is very clear. But on the other hand, it has the problem that it doesn’t really fit what we know, namely the distinction between rabbinic law and Torah law. So Nachmanides indeed, as a result, says it cannot be that enactments, decrees, and customs—that is, legislation, what we called earlier the legislative activity of the sages, whether enactments, decrees, customs, fences—all these cannot be anchored in the prohibition of “do not deviate.” And in that way he solves the problem of the distinction between rabbinic and Torah law.

Only then, of course, the question immediately returns: so why do we have to listen to them nonetheless, according to Nachmanides? If it isn’t the verse “do not deviate,” then what is it? That Nachmanides never writes anywhere—why yes. In one place he writes that it has an allusion in “do not deviate.” It is supported by the verse “do not deviate,” Talmud in Berakhot 19, and that is what Nachmanides says in one place in his glosses to the first root. Yes, and that of course seems very strange. An allusion in “do not deviate” is the basis for the authority of the sages? An allusion is a rabbinic law. That means there is a rabbinic law saying one must obey the sages, and it has an allusion in the verse “do not deviate.” So how does this start in the first place?

There are parallel questions in general. After all, we already spoke about this once in one of the previous meetings: every normative system, when we ask ourselves what is the basis for obeying it, what is the basis for complying with it, what is the force of its authority—there has to be some principle because of which we obey it, that generates our obligation toward it. That principle again can either be inside it or outside it. There is no other possibility, right? If it is inside it, that cannot work, because there cannot be a law that says “observe the laws.” Fine—but then why should I obey that law itself? So obviously it cannot derive from the force of law. So it cannot be inside the system. Rather, the principle that creates my obligation to the system has to be outside the system. All right? Something outside the system is supposed to cause me to obey that system, the system of laws, the system of Jewish laws, whatever system you are discussing.

So how does this work with regard to commandment observance? I think we talked about this the first time, in the first meeting. But returning to our matter: with regard to the system of rabbinic laws, I understand Maimonides when Maimonides says there is a verse in the Torah that provides the anchor for the authority of the sages. Because there cannot be a rabbinic law that provides the anchor for the authority of the sages; you need something outside the system under discussion. So we have the verse “do not deviate.” But according to Nachmanides, if the verse “do not deviate” does not do the job, then what does it mean that there is an allusion from “do not deviate”? Meaning, what does it mean that there is in effect a rabbinic law to obey the sages? There is a law to obey laws? How does that work?

Rabbi Elchanan Wasserman in Kuntres Divrei Sofrim sharpens this question even more. He basically says this: let’s try to think where there could even be a source that Nachmanides could recruit to ground the authority of the sages. Where could such a source even come from? So suppose it’s not from the verse “do not deviate” but from another verse, maybe? Could that be? What do you say? Clearly not, right? Because then it itself would be exposed to the very same attack with which he attacks Maimonides. He attacks Maimonides for bringing the verse “do not deviate,” since every rabbinic law becomes Torah law; so clearly Nachmanides cannot propose, instead of “do not deviate,” some other verse as an alternative. That verse too would turn all rabbinic laws into Torah laws. So it can’t be any verse at all. In other words, verses are off the table.

So notice—not only a rabbinic law is off the table, which is the circularity I spoke about earlier; it cannot be a rabbinic law that says to obey the sages. All verses are off the table too. What remains? Well, maybe logical reasoning. But logical reasoning too is Torah law—logical reasoning is of Torah force. How do we know that? From many places. Right. The Talmud says, “Why do I need a verse? It is logical.” Right? Meaning, in the Talmud it is clear that if there is a logical argument, you don’t need a verse. Why not? If logic is rabbinic and a verse is Torah law, then what does it mean, “Why do I need a verse? It is logical”? It’s a very nice argument, but you still need a verse to teach me that this is Torah law. If they say to me, “Why do I need a verse? It is logical,” then they probably mean—or at least assume—that logical reasoning itself has the force of Torah law.

As everyone knows, there is… yes?

The Talmud says that regarding novel laws? Meaning, it says, say there is some law to pour the ashes of the red heifer in some specific case, so the question is whether that is learned from interpretation or from logic. But to say that logic about a novel specific law has Torah-level force—where does that come from?

There is a bit of room here for discussion. For example, how would you relate to “the mouth that prohibited is the mouth that permitted”? Is that a novel law? What exactly is it? The Talmud says that there, for example: “If you wish, I could say a verse; if you wish, I could say logic.” “The burden of proof rests on the one who seeks to extract from another.” Not entirely clear.

So the truth is that there seems to be a dispute among later authorities here. Since you raised it, I’ll mention it briefly. The Talmud in Berakhot 35 discusses grace after meals beforehand—blessings over enjoyment, as we call them. All right? And the Talmud discusses where we know from that one has to recite blessings over enjoyment. The conclusion of the Talmud is that it is logic. What logic? That anyone who derives benefit from this world without a blessing is as though he committed sacrilege. So the Pnei Yehoshua asks there: if it is logic, then why in cases of doubt about blessings do we rule leniently? Logic is Torah-level. So blessings over enjoyment should be Torah law.

Now, the Tzelach says there on the spot: no, what are you talking about? Logic is not Torah law. What does he mean? So how will the Tzelach explain “Why do I need a verse? It is logical”? The Talmud says that logic is Torah-level, doesn’t it? How does the Tzelach explain those Talmudic statements? Apparently the Tzelach would say what you said earlier: that “Why do I need a verse? It is logical” is said only in a place where I need to interpret an already given law. The law is written in the verse, and now I need to interpret it. So if I have a logical argument that this is… that this is the interpretation, then I don’t need a verse to reveal to me that this is the interpretation. But if I have logic that creates a novel law out of nothing, like the blessing before eating, then we do not say that logic is Torah-level. That is what the Tzelach says.

All right, but then of course that still leaves us with the same problem: so if logic is not Torah-level, then what is it? With regard to blessings over enjoyment, it is rabbinic law. So what? Then there is a rabbinic law to obey the sages if it is logic? That also doesn’t work, right?

Because that’s inside the system—because it’s their logic, not my logic.

Exactly. If I now think of a logical argument why one should obey…

And what if I don’t think it?

Fine. But the question is: you still have to obey. If you think of a logical argument, then in any event you’ll obey. We are asking why I can obligate someone to obey, apparently even if he himself has no such logic. So what—because the sages have a logical argument? The sages’ logical arguments—what are they? At most that is rabbinic law, no, according to the Tzelach? So according to the Tzelach, if that is rabbinic law, then we have circularity. According to the Pnei Yehoshua, if it is Torah law, then we are back to the problem that Nachmanides raised against Maimonides. So if so, then logic too is off the table.

In the Talmud in Sabbath it says explicitly that Hanukkah is learned from “do not deviate,” “according to all that they instruct you.” It says so explicitly. Why don’t we learn it explicitly from there? Regarding Hanukkah the Talmud says: why do we recite a blessing over Hanukkah—not why do we observe Hanukkah. How can we say in the blessing, “and commanded us”? But the Talmud is not discussing the source of the authority of the sages. That is a somewhat different question.

But why isn’t logic itself heavenly authority? Meaning, the same logic that creates Torah law is also logic, and if I think of the logic why to bless or not to bless explicitly…

And if I don’t have that logic? Presumably you can disagree with the sages.

Fine, but is there any claim against me? Is there a claim against me?

If a sage comes and says that this logic is not a good argument, then certainly you can’t rule like him?

Obviously not. What do you mean? At least that is the common assumption, I don’t know.

What you are basically saying is that the sages have no authority.

What do you mean they have no authority? Whoever agrees with them agrees with them, and whoever doesn’t, doesn’t.

In absolutely no sense! If you don’t agree with them, then no; and if you do agree with them, you agree. “No authority” means something not left to your discretion. That is what authority means. In other words, it’s not that if you decide it’s correct, then fine, and if you decide it isn’t, then not. But if a sage says this argument is not an argument, or that this argument from some… I’m not talking now about the argument why to bless before eating; I’m talking about the argument why to obey the sages.

No, there is no argument to obey the sages.

So what are we listening to them for?

Anything the sages base on logic can be disputed.

So there is really no authority of the sages—that’s what you’re saying.

Indeed, indeed. One moment.

All right, so what really emerges is this. Maimonides constructs a magnificent tower, beautifully structured, logically it works very well; it just doesn’t fit the facts, because the distinction between rabbinic law and Torah law is one of the halakhic facts we are supposed to account for. Because the idea that the sages instituted for themselves a law that gives them only rabbinic authority…? Wait, wait, we’ll see in a moment. That is one of the possible answers to Maimonides’ direction.

So that’s Maimonides. Nachmanides, by contrast, solves the problem of fitting reality. There is a difference between rabbinic law and Torah law because there is no verse that teaches us the authority of the sages. But it is not clear at all how he answers the basic question: so why do the sages really have authority?

The Birkat Avraham wants to say there, in Kuntres Divrei Sofrim, that we saw that the will of Heaven agreed with their opinion, and therefore, therefore obviously we are supposed to obey them. And again, I don’t quite understand what he wants to say by that. Either it is logic or it is a verse. Meaning, where else can it possibly land if not either in logic or in a verse? So I’m not entirely clear what he means there.

One possibility is really to say what Avi said earlier: who said the sages have authority? They don’t. Why should one listen to them? Because they are right. That’s all. It isn’t a matter of authority. Authority is always something I have to obey regardless of whether I agree, disagree, think it is right or not right. It has authority—like law. The law obligates me not because it is right, not because it is useful, not because it is wise, but because it is law. We talked about that too then. Authority—that is what the concept means.

When I say that in fact the sages have no authority—or that they do have authority—that is really to say that I am supposed to obey them simply because this is an instruction that came from the sages. It doesn’t matter right now what I think—whether it is right or not right. But maybe according to Nachmanides it really isn’t like that. There is no authority for the sages in that sense. What there is, simply, is that since they are right, they are right. Whoever thinks they are not right—fine, he is taking a certain risk. Maybe he will get to the heavenly court and it will turn out that he was right—indeed, maybe nothing will happen. But if it turns out he was wrong, then he should take into account that there may be problems.

But if he made a mistake—what then? If he relied on the sages and the sages were wrong—what then?

If he relied on the sages and the sages were wrong? Indeed, indeed. And therefore really the question is what exactly you are betting on, because here the question really is who is right, not who has authority. That shifts the whole discussion completely.

Just to sharpen the point: Netivot in section 234 says there that one who violates rabbinic prohibitions of benefit unintentionally… does not need to repent. For a Torah transgression committed unintentionally, one needs repentance. Not only for deliberate sin—even for an unintentional one one needs repentance. For a rabbinic transgression committed deliberately, one needs repentance; unintentionally, one does not. Why not? He has proof from the Talmud in Eruvin there, that when a student sees his teacher making a mistake, if the teacher is mistaken in a Torah matter, he has to alert him before his teacher performs the act. If he is mistaken in a rabbinic matter, then let him perform the act and ask him only afterward. So he asks: what do you mean, let him commit a transgression? What kind of thing is that? Rather, it is proven that if the teacher errs unintentionally, so long as it hasn’t yet been clarified—and then the teacher is presumably acting unintentionally—then at most, if indeed the student is right and the rabbi is wrong, at most the rabbi committed an unintentional rabbinic prohibition. Nothing happened. An unintentional rabbinic prohibition is nothing. Why? What is the idea?

In simple language, the idea is that the whole foundation of the authority of the sages, as distinct from Torah law, is the obligation to obey them. It says “do not deviate,” basically like Maimonides. So when I eat poultry with milk, I haven’t done something intrinsically problematic, because otherwise the Torah itself would have prohibited it. Meat cooked with milk is something problematic, so the Torah prohibited it, and therefore one who eats meat cooked with milk both did something problematic and also disobeyed what is written in the Torah. Two problems. We already talked about this—that “greater is one who is commanded and performs” is because of this. Because the commanded person fulfills two things: he also obeys what is written in the Torah and also does something beneficial. And one who is not commanded and performs does something beneficial, but he did not obey what is written in the Torah. So with transgressions too it is like that.

That is for Torah transgressions. For rabbinic transgressions, the act itself is not problematic. What is there? At most it is a fence. Do not eat poultry with milk lest you come to eat meat with milk. So if I ate poultry with milk but did not come to eat meat with milk, then nothing problematic happened. Right? The act itself is not problematic. So what did happen? I defied the sages. I did not obey the sages. All right? Netivot says: in other words, the whole problem here is only the rebellion. There is rebellion against the authority of the sages. The act itself is not problematic. In a Torah prohibition there are two problems: rebellion against the Torah’s command and the problematic nature of the act itself. In a rabbinic transgression there is only the aspect of rebellion against the authority of the sages, but not the problematic nature of the act itself.

Now, if I do it unintentionally, then there is no rebellion here either, right? I didn’t know they prohibited it; I’m acting unintentionally. So there is neither rebellion, nor a problematic act, nothing happened. In a Torah transgression, if I did it unintentionally, then the rebellion aspect is indeed absent, but at the end of the day I still performed a problematic act, and for that I need repentance. That is what Netivot says.

I’m only bringing Netivot to sharpen the point, because what we are saying now is exactly 180 degrees the opposite. Netivot is saying that what characterizes rabbinic laws is that unlike Torah laws, in rabbinic laws there is only command and no essence. The act in itself has no essential problem; there is only an obligation to obey, right? What we are saying now is basically that in rabbinic transgressions there is no command, there is only essence. Not that there is command and no essence, but there is no command and there is essence. What does that mean? Why should one obey the sages? Because what they are saying is problematic. That is, it is correct, and therefore one should obey. But command, really, there is none. If we say there is no authority, then there is no command. That is 180 degrees opposite to Netivot.

All right, that is no surprise, because Netivot follows Maimonides. He bases himself on “do not deviate.” Where did he get the idea that there is an obligation to obey the sages? The prohibition against rebelling against the sages comes from “do not deviate.” There is an obligation to obey the sages, so he is following Maimonides. But Nachmanides, in effect, comes out here 180 degrees opposite to what emerges from Maimonides.

What about this? Is there no point at all to fences? If I know, if I understand the fence, then there is no reason at all for me personally to make a fence?

I didn’t understand.

If I don’t… why shouldn’t I eat poultry with milk? There’s no problem with it at all. And I can do it because there is no authority over me. I know I’ll be careful not to come to meat with milk.

Fine. Indeed. But there is logic—the act itself, and this is a point I won’t get into too much, just as a side note—there is logic in the sages’ enactments. Nobody says there is no logic in the sages’ enactments. It’s just that the act itself is not intrinsically problematic; no corruption occurred if you did it. But of course there is logic. The logic says that if you eat poultry with milk, you may come to eat meat with milk. And one who eats poultry with milk has in fact done something problematic—not intrinsically, but there is logic in not doing it, you understand? And therefore your judgment may have been faulty even if in the end you did not fail by eating meat with milk.

Like what we saw with Rabbi Ishmael, right? “I will read and not tilt” there in Sabbath, where he read by candlelight. “I will read and not tilt,” and then he says, “How great are the words of the sages.” Why? Because he… he thought to tilt, right? What is really written there, if we are already speaking about that passage? He didn’t obey the sages. It says there, in fact, that one need not obey the sages, right? That is basically what is written there.

No, but “I am a distinguished person.” They say that to a distinguished person.

A distinguished person? No, no, no—that is about a bonfire, that is something else. It is not said there. One of the later authorities says that “I am a distinguished person” applies in this matter, but what is actually written there, what is actually written there, really is that one need not obey the sages. Rabbi Ishmael basically says: I thought that I would read and not tilt, therefore I read. In other words, what does our conception say? So what if I won’t tilt? There is a rabbinic enactment not to read by candlelight; it is forbidden to read by candlelight. What is this? Everyone has to calculate for himself whether there is concern that he will tilt or not? In other words, his simple assumption was that the sages have no authority. All that matters is doing what is correct. So there is no problem—if from my perspective there is no concern, then I don’t need to comply; I can read by candlelight.

And what did he retract after that? Only his assessment of reality, not the conception. Right? What did he actually say? He saw that in practice he almost tilted. Meaning, I assessed reality incorrectly. I thought I wouldn’t come to tilting, and I was wrong. Here—even I came to tilting. But suppose there were someone who certainly would not come to tilting—apparently from that Talmudic passage it comes out that he would not need to refrain; he could read by candlelight.

But that doesn’t mean there is no authority to the sages’ enactments. It could mean that from the outset the enactment refers only to cases where it is relevant. Meaning, it could say that if there were some person who certainly…

Fine, but that already… you are right, but that already drastically narrows the meaning of authority. Because if you are really saying that the authority exists only where I would have done it anyway, that is like the king in The Little Prince.

No, because those are the places where there is some initial thought that maybe I should have done it. After all, that is exactly what Rabbi Ishmael says there.

What do I see from here? He did not retract only his assessment of the specific reality regarding the lamp. He retracted his assessment of reality in general regarding the very idea that we can second-guess the sages. He says, “How great are the words of the sages.”

Yes, who says he says that about all the sages’ enactments? “How great are the words of the sages”—that indeed here their assessment was correct. I don’t know exactly whether he meant it about everything, I don’t know. Maybe it means, as in, how great are the words of the sages in general, not only these specific words of the sages. But in the end that is not important. Substantively it still means: so what are you saying? That their assessment of reality is correct, therefore one should obey them. Even if you think their assessment of reality is incorrect, you are mistaken. Again, that is not a question of authority. Authority means: even if I am wrong, you still have to listen to me. That is what it means to have authority. That there is authority unless the enactment from the outset presumably—if they had not enacted it…

So that is what I am saying: you are reducing that authority until it is basically empty of content. Because you are saying that that authority exists only where it is reasonable. That is precisely what is not called authority.

No, but maybe…

Authority means saying that I have authority regardless of whether I am reasonable or not. If you say it is only where I am reasonable, then true, you can say that from the outset I commanded only where it is reasonable. That is like the king in The Little Prince, who commands all the stars to move exactly where they were already moving.

All right, so that may be what emerges from Nachmanides’ words. Actually no, yes. If the sages have no authority, why do we execute the rebellious elder? For Torah matters we execute the rebellious elder, not for rabbinic ones. We are talking about authority to legislate. Authority to interpret surely exists. Even Nachmanides says that comes from “do not deviate.” All right? On that Nachmanides also agrees.

More than that—there is something completely absurd there. The author of Sefer HaChinukh writes that if there is a sick person and you need to feed him two prohibitions—one prohibition is something derived from interpretation, and the other is written explicitly in the Torah—which is preferable to feed him? An interpretation? I wouldn’t ask if it were that way, right? You should feed him the lighter one first. You should feed him what is written explicitly in the Torah. Why? Because for what is derived from interpretation there is both “do not deviate” and the prohibition itself. After all, on this Nachmanides also agrees—that for interpretation there is “do not deviate.” So if the sages derive something through interpretation, then there is both the prohibition they derived, and if you do not listen to it you also violate “do not deviate.” It is a double prohibition. Therefore, it is preferable to give him what is written explicitly in the Torah.

It makes no sense at all, of course—erase that from the whole framework. It simply should never have been said. It doesn’t begin and it doesn’t end. But that is what he says.

No, you have to erase it de facto—he says it, but it simply is not correct. All right. Remind me and I’ll explain in a moment why it isn’t correct; it’s not really important to me right now, I’ll say it in a moment.

Now, even in Nachmanides himself it is hard to fit this in. Just because first of all—I don’t know—it seems hard to say that the sages have no authority. Second, Nachmanides really does say that there is an allusion from “do not deviate.” What does an allusion from “do not deviate” mean? He does mean something—some kind of authority. He doesn’t mean only “listen to them because they are right.” He is talking about some sort of authority; he just expresses it in the language of an allusion and not in the language of an actual command.

So let’s leave Nachmanides for a moment and move to Maimonides. So what really happens with Maimonides? Nachmanides himself proposes the answer that came up here earlier; Nachmanides himself raises that possibility. What is difficult about Maimonides? That if everything comes from “do not deviate,” then every rabbinic prohibition or rabbinic commandment basically includes a Torah prohibition as well. Its doubt should be treated strictly; one should have to spend all one’s money in order not to violate it, because it is a Torah prohibition; human dignity should not override it; all the differences between rabbinic law and Torah law are erased. That is the difficulty.

So Nachmanides says: one possibility is indeed to say, “They said it and they said it.” What does that mean? The sages received Torah-level authority from “do not deviate” to legislate—and by legislate I mean decrees, enactments, and customs, not interpretation. Since they have the authority, they could legislate and they could choose not to legislate. So they could also say that it has lower force. After all, they could have chosen not to legislate it at all, so certainly they can also say: you know what, we are legislating this, but its halakhic force will be weaker; a doubt about it will be treated leniently. Yes, that is what Nachmanides asks: why should a doubt about it be treated leniently? After all, it is a doubt in “do not deviate”—a doubt in a Torah prohibition should be treated strictly. So Nachmanides says: maybe one way to explain Maimonides is that perhaps the sages were given authority to legislate, the sages legislate, and they themselves also determine that in case of doubt it should be treated leniently. Within the framework of the enactment they enact, they could have chosen not to enact it at all, so certainly they also have the power to enact it with a qualification—to enact it in such a way that in a case of doubt it should be treated leniently.

But he says that cannot be; it doesn’t seem plausible to him, and he moves on, and therefore rejects Maimonides. But later authorities remain with this. Why doesn’t it seem plausible to him? Shema’ata discusses this, and asks what happens in a case of doubt involving a dispute among great authorities. What does that mean? There is a dispute among Amoraim, medieval authorities, decisors—it doesn’t matter, a dispute among legal authorities. If this concerns rabbinic law, then in doubt we should rule leniently, apart from some isolated opinions. In a simple case, doubt in rabbinic law is treated leniently, both in factual doubt and in doubt created by a dispute among authorities.

Now let’s look: the side that prohibits does so with certainty; the sage who prohibits prohibits with certainty; the sage who permits permits with certainty. Right? The sage who prohibits does not allow you to violate his words. So how can it be that in a doubt you go leniently here? After all, if the rule of leniency in rabbinic doubt stems from the principle of “They said it and they said it,” then the sages enacted the enactment in such a way that if you have some uncertainty in it, you may go leniently—that is how they enacted it. But here this authority tells you: this enactment is absolutely certain, there is no doubt in it, you are obligated to observe it. The other says: there is no such enactment at all. There is a dispute. So does the one who says there is an enactment also tell you that you may be lenient about that enactment? That can’t be, because he is essentially saying: ah, because someone disagrees with me, therefore you never need to listen to me. But he is the one who says that there is such an enactment.

I can enact that a dispute among authorities should be treated leniently.

What? Could they have enacted that a dispute among authorities should be treated leniently?

A dispute. What do you mean? A special enactment about disputes among authorities?

Yes, it is a different enactment than the ordinary rule that doubt in rabbinic law is treated leniently; it is a different source, a different enactment.

And that is an enactment.

There really are two possibilities here, two ways of understanding “They said it and they said it.” Nachmanides probably adopted one possibility: that every rabbinic enactment comes with a built-in qualification that if you are in doubt, you are exempt from it. And perhaps according to the Shema’ata’s explanation, that really is implausible. But as you are raising now, there is another possibility too. It is possible to say that the sages established a general rule that in all rabbinic laws, if you are in doubt, you should go leniently. Especially according to Maimonides, since even doubt in Torah law that is treated strictly is itself only a rabbinic law—so what is the problem with saying that regarding rabbinic doubts, they simply did not enact that one has to go strictly? Again, “They said it and they said it.” Right. So according to Maimonides that can certainly be said.

All right, that is one direction that appears in later authorities. Actually in Maimonides it’s not lacking, meaning—what they explain in Maimonides, that doubt in Torah law treated strictly is only rabbinic, and that is because he holds that every doubt is fundamentally treated leniently, and therefore in rabbinic law they left it…

That’s what I’m saying. That’s what I’m saying. A doubt in rabbinic law treated leniently is another rule altogether, external to all rabbinic law in general. Of course. That’s what I said. That’s what I’m saying. That’s what I’m saying. It comes out in Maimonides, as we’ve seen until now, that doubt in Torah law treated strictly is a rabbinic law, and what we see now is that doubt in rabbinic law treated leniently is Torah law. Right? Because all doubts are lenient by Torah law. The sages enacted that with Torah doubts you go strictly; with rabbinic doubts they left things as they were, and it remained lenient by Torah law. Yes. So it turns out that doubt in Torah law treated strictly is rabbinic law, and doubt in rabbinic law treated leniently is Torah law. Good. And so too double doubt is permitted, because that is rabbinic.

No, there are those who explain Maimonides in general, even without connection to what I’m saying now: since Maimonides says that doubt in Torah law is only rabbinically strict, that’s how they explain the law of double doubt, and then you don’t need all the upheavals and all those complicated constructions around double doubt. It has many implications, so it is probably not correct, but let’s leave that for now.

There are several later authorities who explain Maimonides differently, and it seems to me this is probably the plain meaning in Maimonides. The Rogatchover, for example, right at the beginning of his book Tzafnat Paneach on Maimonides, right at the start—not here on the Laws of Rebels. Also, see the Frankel edition here on the Laws of Rebels; you’ll see several such approaches there. What Maimonides says is that rebellion against the authority of the sages is a violation of “do not deviate.” In other words, if someone commits a transgression—eats poultry with milk—because he does not recognize in principle the authority of the sages, then he has violated “do not deviate,” because the Torah says that the sages have authority. But if he eats poultry with milk simply because he has an evil inclination—not unintentionally, deliberately—he has an evil inclination just as one violates Torah law. What, Torah law isn’t violated? For appetite. For appetite, it doesn’t matter, or out of spite, it doesn’t matter why—for appetite or even out of spite. He recognizes in principle the authority of the sages, he just has an inclination. So then he does not violate “do not deviate”; rather, he violates a rabbinic prohibition. Everything Maimonides says that derives from “do not deviate” applies only when you rebel against the basic authority of the sages. But that does not mean that everyone who violates a rabbinic law has violated Torah law. If you violate a rabbinic prohibition without rebelling against the very authority of the sages, then it is just an ordinary rabbinic law.

A brilliant solution—but it still doesn’t work. Why? Exactly. Our whole question was: what is the source of the authority of the sages? Why do the sages have authority? Yes? What are you really saying? That if I violate a rabbinic transgression because I do not recognize the authority of the sages in principle, then I have violated “do not deviate.” But if I simply eat poultry with milk because I feel like eating poultry with milk, fine, then I haven’t violated “do not deviate.” So why is it really forbidden? Then there is no authority. So that means there is no authority. What? So that means there is no authority. So even according to Maimonides there is no authority, not only according to Nachmanides? We are talking now within Maimonides’ view. And that seems very strange.

Why not say that the command “do not deviate” obligates us to establish from this point onward a status of authority for the sages?

Fine, so we established it, and now anyone who violates it has violated “do not deviate.”

No, if from that status a new kind of authority is created…

Fine, but then it comes out that one who violates—one who eats poultry with milk—has violated “do not deviate.”

No, it creates a new kind of authority.

What kind?

This authority is constituted by the verse “do not deviate.”

So if you violate that authority, you have violated “do not deviate”—or you haven’t? Decide. If you haven’t, then maybe the verse doesn’t actually anchor these prohibitions.

No, because this is like, say, the commandment or something like “Cursed be the man who does not uphold the words of this Torah,” or something like that. And they explain there who that is—it’s someone who rebels against the Torah and decides not to do one of the commandments, even though he knows it is forbidden, or something like that, and it’s not just a one-time impulse.

Fine, so similarly I can say…

But “cursed” is not a prohibition. Fine, so he is cursed. I mean, maybe this command stamps us, constitutes some new system, some new categorical system of obligations that are not Torah obligations as such.

But if that verse constitutes it, then if you violate it, you have violated the verse.

No, you haven’t violated the verse. You violated the authority that the verse created.

So if I violate a detail, and when I violate a detail I haven’t violated it, then why should I refrain from violating that detail?

Because it obligates you.

So if it obligates me and I did it, that means I violated it.

No, because that verse created this system. What, did it build it with a chisel? What does it mean “created it”? It commands it.

It commands it, so if you don’t fulfill it, you have violated the verse.

Why? Why not?

Because the verse created your basic obligation to that system. Now the verse created your basic obligation to that system, and now you must listen to rabbinic law.

Okay. And if now…

No, true, I have to listen to the sages’ words. I am only obligated not to rebel in principle against the authority of the sages. But I can still eat poultry with milk. Just eat poultry with milk? Poultry with milk not מתוך lack of recognition of the sages’ authority, but simply because I feel like it, because I like it. So that’s not…

Then you haven’t violated the verse?

I haven’t violated the verse.

So why… did I commit a prohibition?

You haven’t violated the verse, but you committed a prohibition.

Which prohibition?

The system that the verse created…

What is this system? Isn’t it the verse?

The verse made the system, but it doesn’t have to remain inside it.

What does that mean? Of course it doesn’t remain inside it, because it doesn’t understand it? Now it stands on its own without the verse. What is this, “sent and forgot”? No, what does it mean, it created it and then went away? What does that mean? It created it—that means it continuously anchors it. What does it mean it created it and left? If I tell you, “Listen to Reuven,” yes. Now, to rebel against Reuven means that you say, “I’m not willing to listen to Reuven.” That is rebellion against you. Right. But if I am willing to listen to Reuven and now I didn’t do something he said…

That too—either decide whether that is rebellion against you or disobedience to Reuven, one of the two. You can’t tell me “I have to listen to Reuven but this won’t count as rebellion against you.” Why do I have to listen to him? Because you commanded it. So if you commanded it and I didn’t listen, then that is rebellion against you.

Beyond that, are there then two things learned from the verse “do not deviate”? One is the prohibition against rebelling against the sages, and besides that there is also this system in which there is no “do not deviate,” only the rabbinic prohibition? So this verse branches into two separate branches in parallel, teaching two different things.

Like what? Like a beloved one versus the… no, no. But it says “do not deviate.” No, no—poultry with milk is in the Talmud. Once you say that if you rebel against this system, then by implication you learn that there is a prohibition here. That seems to me the simple explanation. In the Winnie-the-Pooh book, on Piglet’s house there is a sign: “Trespassers Will.” I think maybe even misspelled in translation—it’s from English. “Trespassers Will.” It doesn’t say who the trespassers are, what the punishment is, who will punish—just “Trespassers Will.” Simply “Trespassers Will.”

Tell me, is it possible that there is a command whose entire content is only to obey the command? It has no other content, this command itself. It does not command anything concrete other than obedience to itself. “I command you in the strongest terms: obey this command that I am now saying.” To obey this command that I am now saying—that is the command. Can there be such a command?

The whole Torah, after all, we interpret it that way—yet it says obey.

What are you talking about? What does “we interpret it that way” mean? The Torah gives us commandments, but we perform them as we understand them. No, that’s something else. I am talking now about a command that has no content at all except that you are obligated to obey it itself. You enter a library and there is a sign in the library: “Please do not read anything in this room.” You know these paradoxes? It is about the same thing. If one must not read anything in this room, then one doesn’t read the sign either, right? Meaning, it doesn’t work.

What does this mean? I think Maimonides and Nachmanides are not disagreeing at all. They are both saying the same thing. They are both saying the same thing because nothing else can be said. It says “do not deviate,” and “do not deviate” teaches you that the sages have authority. But it cannot be that the entire content of the authority of the sages is merely to obey their authority. What? Can there be someone whose whole authority is only that he should be an authority, and not anything concrete that he says? Like the prince… yes, like the king in The Little Prince—you meant the prince. There can’t be such a thing.

In other words, clearly if the Torah says that the sages have authority, then it is basically assuming behind that statement that there must also be force to the sages’ concrete commands. Because if there were no concrete content to that authority, then there would also be no meaning to rebellion against it. Suppose I ate poultry with milk out of a principled rebellion against the authority of the sages—would I have violated a prohibition? Of course not. Because they have no authority to command me about poultry with milk; they only have authority over authority, not over poultry with milk. So what’s the problem? In what way did I rebel against their authority? I merely ate poultry with milk מתוך non-recognition of their authority to command me about poultry with milk. So what is the problem? Then I didn’t violate any prohibition that way either. That obviously empties it entirely of content. That is of course absurd.

What do I mean to say? If there is a command “Trespassers Will,” then hidden behind it is some statement like: know that there are instructions here and there are trespassers, and anyone who trespasses may be punished, right? Even though no instructions, no trespassing, and no concrete content are spelled out here. When the Torah tells us, “Listen to the sages, do not deviate from their authority,” clearly once authority is given to someone, that authority must have some content. In other words, when he commands me something, that command is what the Torah was talking about when it said he has authority.

But notice: this is not the same as what Shlomi said earlier. I don’t think so, at least. Because what I’m saying now is basically this: if I really eat poultry with milk not out of recognition of the sages’ authority, then indeed I have not violated “do not deviate.” Why? Because “do not deviate” does not command me not to eat poultry with milk. “Do not deviate” commands me only not to depart from the authority of the sages, not to rebel against the authority of the sages. Only by implication I understand that if they commanded me something, or if authority was given to the sages, then obviously the Torah takes for granted that there is some system of rabbinic commandments which they have authority to establish. If someone violates them, what has he violated? I have no idea. I don’t know. Something else. We call it rabbinic commandments. It is not written in “do not deviate.” It is an assumption without which “do not deviate” would have no content at all.

Meaning that one who ate poultry with milk not as rebellion against the authority of the sages did not violate “do not deviate,” because “do not deviate” does not command that. He violated what is implied as an assumption embedded within “do not deviate.” The Torah does not command that. The Torah assumes it when it commands “do not deviate.” So when I eat poultry with milk, I have essentially violated what we now call a rabbinic prohibition. How do I know that there are rabbinic prohibitions? Because if there were none, then the commandment “do not deviate” would have no meaning either. Not because “do not deviate” commands it. It does not command it. “Do not deviate” only forbids me to rebel.

So who commands it?

We learn it from the verse; from there we know, from there we know that this is the will of God. That this is the will of God, because the fact is He commanded “do not deviate.” So apparently He assumes implicitly that there is some system of commandments from which one can deviate or not deviate, because if there were no such system, how would we define the concept of deviating from the sages’ words? When does someone deviate from the sages’ words? If he eats poultry with milk? Why? After all, eating poultry with milk is fine; they have no authority over that. They only have authority to be authorities. That can’t be, right? So there must be some system of commandments over which the sages have authority.

But notice, I’m getting the best of both worlds. When I ate poultry with milk, I did not violate “do not deviate,” because “do not deviate” does not command me not to eat poultry with milk. It tells me: listen, the sages have authority. Right, I agree that the sages have authority. So what is the problem with the fact that I ate poultry with milk? That I violated the will of God, which I can learn from the underlying assumption of the command “do not deviate.” All right? So these are not two separate systems. It is not that there is one commandment not to rebel against the authority of the sages and another branch not to eat poultry with milk unrelated to rebellion against the authority of the sages. One comes out of the other. You cannot have the first without the second. If the second did not exist, the first would not exist either. It is one command, not two. It is just that there is an indirect learning here from the fact that the Torah gives authority to the sages.