2019-04-22 – The Thought of Rabbi Gedaliah Nadel – Divrei Sofrim – Lesson 1

Table of Contents

• The framework of the chapters and categories of Jewish laws not written explicitly
• Maimonides’ approach: a continuum of “divrei sofrim” according to the degree of connection to Scripture
• An exposing interpretation, an expanding interpretation, and tradition: “half plus half equals one”
• Practical ramifications: lashes, cases of doubt, and an oath regarding a commandment
• Object-status and person-obligation: an explanation for leniency in rabbinic doubt and for the concept of “do not deviate”
• Law given to Moses at Sinai, dispute about it, and the responsum of Chavot Yair
• Chapter 6: “Rabbinic, with a verse as support” and defining asmakhta as conceptual support
• Going beyond the letter of the law and expanding the boundary of the commandment
• Two types of rabbinic safeguards: a decree lest one come to, versus an essential resemblance to prohibited labor
• The tithe of tree fruits and the tithe of vegetables: rabbinic force with asmakhta versus without asmakhta

Summary

General Overview

The text lays out a continuum of levels in the relationship between Jewish law and Scripture, from what is explicit in the text, through tradition and interpretation, expanding interpretations, asmakhta, and on to enactments and decrees that are not based on Scripture at all. It attributes to Maimonides a view that is not a simple dichotomy of Torah-level versus rabbinic, but rather a system of different statuses of divrei sofrim according to the degree of connection to the written text, with practical ramifications such as whether doubt is treated stringently or leniently, lashes versus disciplinary flogging, and the question of being already under oath from Sinai. Within this framework, it presents an understanding that asmakhta is not merely “a hint,” but a conceptual leaning on the text, and that there is a difference between rabbinic prohibitions that serve as a fence against error and an expansion of the Torah’s idea beyond the formally binding boundary.

The framework of the chapters and categories of Jewish laws not written explicitly

The framework up to this point includes Scripture, reasoning, and the hermeneutic principles of interpretation, and after finishing those principles the discussion moves to kinds of Jewish law that are less connected to Scripture. The main categories are rabbinic laws (divrei sofrim) and law given to Moses at Sinai, which in the accepted view are Torah-level even though they are not written in Scripture. The author’s division is chapter 6 on rabbinic law with a verse as asmakhta, and chapter 7 on laws from the sages, with the suggestion to include chapter 5 as well, because according to Maimonides in the second root, even laws derived through hermeneutic principles are considered divrei sofrim. The overall picture is a continuum of degrees of connection between Jewish law and Scripture: explicitly written, derived from Scripture, Scripture as asmakhta, and laws not connected to Scripture at all, such as law given to Moses at Sinai.

Maimonides’ approach: a continuum of “divrei sofrim” according to the degree of connection to Scripture

Maimonides presents exceptions to the accepted dichotomous picture of Torah-level versus rabbinic, and he sometimes refers both to law given to Moses at Sinai and to interpretations as divrei sofrim, contrary to the common position. The text argues that Maimonides identifies Torah-level with the Written Torah and rabbinic with the Oral Torah, and therefore divrei sofrim is not one uniform basket of laws with identical force, but a general term for different levels, some of whose doubtful cases are treated stringently and some leniently. The continuum is determined by the degree of connection to the text, and that connection affects various halakhic parameters such as lashes, cases of doubt, and the question of whether an oath can take effect.

An exposing interpretation, an expanding interpretation, and tradition: “half plus half equals one”

Interpretations are considered by Maimonides to be divrei sofrim because they expand rather than expose, and therefore are not “found within the text” but extend beyond it. The text presents an additional level in which an interpretation joins with tradition, and then the interpretation is seen as exposing the intention of the verse and the law receives Torah-level status, with lashes applying to it; Nachmanides challenges this logic with the formulation, “How can zero plus zero equal one,” and the proposed answer is that these are not zeros but partial levels: “half plus half equals one.” The central example is the fruit of a beautiful tree, identified as the etrog by means of interpretations, while the very consensus that there is no dispute that it is the etrog indicates that there was an earlier tradition that the interpretation anchored in the text.

Practical ramifications: lashes, cases of doubt, and an oath regarding a commandment

Lashes belong only to Torah-level law, whereas for a prohibition that is divrei sofrim there are no lashes, at most disciplinary flogging. The text points to complexity in the laws of doubt according to Maimonides: there are places where laws derived by interpretation are treated stringently in doubtful cases, while law given to Moses at Sinai is treated leniently in doubtful cases, even though both are called divrei sofrim, so this is not a simple hierarchy of severity but a distinction in the type of prohibition. It cites the Ran in Nedarim 8a about an oath to study a chapter, and presents a principle according to which an oath can take effect on an obligation derived by interpretation because it is not considered a case of being already under oath from Sinai in the same way as a commandment written explicitly, and suggests that this may be another parameter within the continuum of connection to the text.

Object-status and person-obligation: an explanation for leniency in rabbinic doubt and for the concept of “do not deviate”

The text brings a principle from Netivot (section 246), according to which rabbinic prohibitions are mainly an obligation of obedience upon the person rather than a prohibition inherent in the object, and therefore in an inadvertent case no atonement is needed because there was no act of rebellion, and in a doubtful case one may be lenient because “a doubtful rebellion is not rebellion.” It uses this to explain Nachmanides’ objection to Maimonides regarding do not deviate: even though obedience to the sages rests on a Torah-level commandment, doubt remains treated leniently because this is a command to obey rather than a problem in the reality of the thing itself. By contrast, the distinction presented is that in Torah-level law there is both a dimension of obedience and a dimension of problematic object-status, and therefore in a doubtful case we are concerned about the real side of a prohibition inherent in the object and treat it stringently.

Law given to Moses at Sinai, dispute about it, and the responsum of Chavot Yair

Maimonides argues that there cannot be dispute regarding law given to Moses at Sinai, and the text notes the responsum of Chavot Yair in section 192, which lists laws given to Moses at Sinai and shows that in dozens of them disputes do in fact exist, with only partial attempts to reconcile Maimonides. The example of dispute is the willow rite and the water libation, where one opinion holds that they are law given to Moses at Sinai and another that they are prophetic custom. The overall move connects law given to Moses at Sinai to the status of an obligation of obedience not anchored in the written text, and from that explains why, according to Maimonides, its doubtful cases are treated leniently.

Chapter 6: “Rabbinic, with a verse as support” and defining asmakhta as conceptual support

Many times in the Talmud a law derived from a verse is defined as “rabbinic, and the verse is merely an asmakhta,” and the text defines asmakhta not as something with no connection to the text but as support that a rabbinic law leans on, because “asmakhta comes from the language of support.” The assumption is that every idea is infinite, but Jewish law is quantitative and defined, so when a Torah-level law stops, one can continue the idea and expand the binding boundary, sometimes as going beyond the letter of the law and sometimes as a rabbinic obligation. The text states that asmakhta is “an indication of the Torah’s intent” and not “just a hint,” and places it on the continuum as a weak level of connection to the text, “the smell of what is written,” which in halakhic terms is still defined as rabbinic.

Going beyond the letter of the law and expanding the boundary of the commandment

The text states that even going beyond the letter of the law is derived from a verse (“the deed” — that is the law; “that they shall do” — that is going beyond the letter of the law), but the Torah does not obligate it as a command; rather, it expects it from a decent or pious person according to his level. The sages sometimes take such an extension and turn it into something binding on the rabbinic level, so that the extension begins with a Torah-level idea that is not formally obligatory and receives binding force through the sages. In this context, the claim is made that it is important to distinguish the status of the law so as not to violate do not add, and Maimonides in the laws of rebels requires that the sages specify that an enactment is rabbinic so that the matter will not be considered an addition to the Torah.

Two types of rabbinic safeguards: a decree lest one come to, versus an essential resemblance to prohibited labor

The text distinguishes between decrees in which the act in itself does not belong to the Torah prohibition and is prohibited only lest one come to transgress, such as “one may not read by candlelight lest he tilt the lamp” and riding a horse lest one break off a branch, and actions prohibited as shevut because they resemble prohibited labors and are “an expansion of the boundary of the commandment,” such as selecting food from waste, considered problematic on a lower level. It describes the second type as a continuation of the idea of refraining from labor “beyond the boundary that is binding by Torah law,” so that it contains problematic object-status in a lower dosage, whereas in the first type the issue is mainly an obligation of obedience upon the person without any problematic character in the act itself. In the course of this, it emerges that the author mixes together the term “fence,” and the text corrects that the classic fence is specifically the first type, whereas expanding the Torah’s idea belongs more to the model of asmakhta.

The tithe of tree fruits and the tithe of vegetables: rabbinic force with asmakhta versus without asmakhta

Tosafot in Rosh Hashanah distinguish between a rabbinic law that has asmakhta in the text, such as the tithe of tree fruits, and a rabbinic law that has no asmakhta, such as the tithe of vegetables. The text explains that this distinction makes sense if asmakhta is an indication of the Torah’s intent and not merely a hint, in which case a rabbinic law grounded in the idea of the text carries different force from a rabbinic law that is not grounded in asmakhta. It concludes by opening toward the claim that when there is a dispute among the sages about a decree, that does not mean there is a historical dispute over what some earlier religious court decreed, and notes that this is a subject requiring separate discussion.

We’re on page 28. Just to enter the context and framework: until now we’ve basically been talking about Scripture, about logical reasoning, and about the hermeneutic principles of interpretation. And now, after he finishes the hermeneutic principles, he moves to things that are less connected to Scripture—not necessarily rabbinic things, but mainly two kinds. One is rabbinic laws, words of the Sages, rabbinic enactments; and the second is a law given to Moses at Sinai, which in the accepted view is Torah-level, but it isn’t connected to Scripture—that is, it is transmitted orally. So that’s really the section, meaning the coming chapters. Now here there are several categories, and he draws a kind of distinction among them that I’m not sure I agree with, but I want to go along with him, and I’ll make my comments, as usual, as we learn.

Chapter 6 deals with rabbinic law and scriptural support, and Chapter 7 is words of the Sages. I would also attach Chapter 5 here, which deals with the hermeneutic principles. I mentioned that according to Maimonides in the second root, laws learned through the hermeneutic principles are also considered words of the Sages in Maimonides. We talked a little about what that means, and I’ll come back to it in the next chapter. What unites all these things is that they are laws not written explicitly in Scripture. In other words, there are laws written in Scripture, there are laws derived from Scripture, there are laws for which Scripture is only a support, and there are laws not connected to Scripture at all, like a law given to Moses at Sinai. So there is really a continuum of levels of connection between the law and Scripture.

Maybe I’ll say one word about this matter because it gives us a broader overall picture. Maimonides, as I mentioned before, speaks about the hermeneutic principles, and he says that laws that emerge from those principles have the status of words of the Sages. And there’s a lot of uncertainty about what exactly he means. Does he mean they are Torah-level, only since the Sages are the ones who expounded the interpretation, they’re called words of the Sages—but that has no significance regarding the halakhic status of the law itself, only regarding its source? Its source is not the verse but an interpretation that the Sages make from the verse. I said that I don’t think that’s so. There are even proofs—several proofs—in Maimonides for this, not many by the way, but there are some, that Maimonides also means halakhic consequences, not only the question of what the source is. And it seems to me that in Maimonides there is—I don’t remember how far we got into all this—some kind of continuum of levels of connection to the text.

And that continuum is not just either in the text or outside the text, some sort of dichotomy between Torah-level and rabbinic, which is the way people usually divide Torah-level and rabbinic law. Torah-level is what’s in the Torah, and rabbinic is what doesn’t appear in the Torah, what the Sages created. In Maimonides there are all sorts of deviations from that dichotomous picture. Maimonides writes in several places, for example, that a law given to Moses at Sinai is words of the Sages—which almost nobody agrees with. A law given to Moses at Sinai is Torah-level. Maimonides writes, as I just said, that interpretations are words of the Sages. So there’s some undermining here of that dichotomous view between Torah-level and rabbinic. And it seems to me that what’s there is really a heap paradox. It’s words of the Sages and rabbinic. What? Words of the Sages and rabbinic are the same thing. Yes, words of the Sages and rabbinic are the same thing in Maimonides too. The expression appears in Maimonides—only the question is what he means by it. He has several different meanings in Maimonides for the same expression. Words of the Sages or rabbinic functions similarly there; that is, there’s no difference. The dichotomy is also either Torah-level or all sorts of other expressions meaning rabbinic. But it’s a continuum whose one end is Torah-level, and all the other levels are called by him words of the Sages. Anything that isn’t fully Torah-level is called by him words of the Sages.

So how is that actually structured? I think we already talked about what is written in Maimonides’ second root: the criterion of Maimonides. Usually people divide laws, as I said before, into Torah-level and rabbinic—that’s one division. The second division is Written Torah and Oral Torah. Now Written Torah and Oral Torah—that distinction is not a distinction with halakhic status. There is no significance to the question whether something is Written Torah or Oral Torah. It says nothing about the halakhic status of the law. Most of the Torah-level laws we know are Oral Torah. So it is not parallel to the division between Torah-level and rabbinic.

What is the difference between… Torah-level and rabbinic is a distinction of halakhic force. Torah-level is the full force, and rabbinic means enactments of the Sages that have a lower force—cases of doubt are treated leniently, and all sorts of consequences. In the distinction between Written Torah and Oral Torah, it is all within the world of Torah-level law. The world of Torah-level law is divided into two types of laws: laws written in the Torah—that is Written Torah—and laws that are either a law given to Moses at Sinai or things learned from the Torah through interpretations, and that is called Oral Torah. Now in terms of halakhic status, as I said, all of these are Torah-level laws; there is no essential difference between them. Therefore that distinction is not within the world of Jewish law; it is in Torah journalism, if you will. That is, extra-halakhic concepts, which is fine—maybe they are useful in one way or another—but Written Torah and Oral Torah appear in the aggadic parts of the Talmud.

But isn’t some of the Oral Torah also rabbinic? Right, so now, I think that in a later sense, so that rabbinic laws—what we call rabbinic laws—wouldn’t be left orphaned, because if it’s neither Written Torah nor Oral Torah, then is it Torah at all? Meaning: does studying it count as Torah study, studying rabbinic laws? Do you recite the blessing over Torah study for that? The accepted answer is yes. In the historical process, that too came under the heading of Oral Torah, including rabbinic laws. Since on the one hand it also doesn’t appear in the Torah, but on the other hand it’s also called Torah. That is, people don’t want to take it completely outside the category, so that such a thing would not be called Torah. I think this conceptual mixing causes many philosophical problems, but that’s what is accepted. But originally Written Torah and Oral Torah meant two kinds of Torah-level laws. Clear?

It’s like the Talmud in Eruvin, I think, says that a minority is written and a majority is oral—there’s a tannaitic dispute. “The words of Torah: a minority is written and a majority is oral,” or “the words of Torah: a minority is oral and a majority is written.” There is a dispute there. And then the Talmud discusses this, and incidentally I think if I remember correctly it calls Oral Torah there words of the Sages. It says: why wasn’t it written? “Of making many books there is no end.” You can’t write everything. So that means it is really Torah-level. It wasn’t written because there is no room. If it were rabbinic, then what kind of question is it why it wasn’t written? It wasn’t written because it’s not a Torah-level law; it isn’t a law that the Holy One, blessed be He, commanded. The Sages commanded it—fine, it should be done—but what do you mean, why wasn’t it written? Clearly the discussion there is about Torah-level law, Torah-level law that was not written for various reasons.

So that is the accepted picture. In my opinion, Maimonides is the key to understanding many, many difficulties and uncertainties in Maimonides’ terminological and halakhic system on this topic. Maimonides identifies these two distinctions. Maimonides claims that what is called Torah-level means Written Torah, and what is called rabbinic means Oral Torah. According to Maimonides, that is the same thing. But he changes the meaning a bit of rabbinic or words of the Sages. That is, rabbinic or words of the Sages is not a uniform type of law. It is not one full basket containing all the meanings—I think we did discuss this—that its doubt is treated leniently, and that human dignity overrides it, and that the Sages can uproot it, and things of that kind. Rather, there are different types of laws that are words of the Sages, and each of them has a different halakhic status. There can be words of the Sages whose doubt is treated stringently, and there are words of the Sages whose doubt is treated leniently. But both are words of the Sages, because both are Oral Torah according to Maimonides. Maimonides calls Torah-level what is Written Torah. There are many sources for this in Maimonides; in many places you can see this completely clearly. He writes it very explicitly. People refuse to see it because they are not used to thinking that way, but he writes it as clearly as possible.

And therefore, what this means is that this range of laws, between pure rabbinic and pure Torah-level, is a whole continuum of laws with different status. Much of it is called words of the Sages; the far end is called words of Torah. And what defines the continuum? It’s a kind of metamorphosis. What defines the continuum is the degree of connection to the text. Meaning, if it comes out of the text—written, simply things explicitly written in the Torah—that is Torah-level. If it comes from the text and it’s clear that that is its intention, that is still Torah-level, already less so, but still Torah-level. Torah-level. That’s the second level on the continuum. If it is derived from the text, then Maimonides’ view—we discussed this—is that interpretations expand and do not expose, and therefore, after I make the interpretation, I have not uncovered something that was inside the text, but expanded beyond it. That is already rabbinic, because it is not found within the text. Even though it is not an enactment or a decree or rabbinic in the classic sense, still it is already rabbinic because it is less connected to the text. The next level is scriptural support.

Who are the Sages? Hazal, the Sages. Scribes means the Sages. Tannaim? Among scholars, scribes are even later chronologically—if I’m not mistaken, in academia it is customary that scribes refers to something around Ezra the Scribe, around the end of the Men of the Great Assembly and the beginning of the era of the Oral Torah. But when people say words of the Scribes, that’s not—the concept words of the Scribes is used in a broader sense. But I mean, there was such a period called the Scribes, at least in academic classification. In the Torah world they don’t talk about such a distinct period. There was the period of Written Torah and the prophets and Scripture—the Hebrew Bible, and after that began the period of the Oral Torah, and all of that is called tannaim. But tannaim is a very, very late stage in the period of the Oral Torah. And support is from the prophets, I think. What? Support is, I think—no, support is also from the Torah itself. On the contrary, no. Prophets are words of tradition. Support is verses from the Torah where it isn’t a full derivation; I’ll still speak about that.

So really, returning for a moment to this continuum of Maimonides: the degree of connection to the text determines the status of the law. That is why Maimonides joins the two distinctions I mentioned before. Because everyone agrees that the distinction between Written Torah and Oral Torah is a distinction based on whether it is inside the Torah or not inside the Torah. That is called Written Torah and Oral Torah. Maimonides is unusual only in this: for him that distinction has halakhic significance. Others say it has no halakhic significance at all. Fine, Torah-level is Torah-level; Written Torah and Oral Torah were given at Sinai, yes, the accepted formulas, and therefore everything is Torah-level and that has no halakhic significance. Maimonides says no, it has halakhic significance. Meaning, the more connected you are to the text, the more your status is Torah-like—usually also more stringent.

What does that mean? For example in cases of doubt? Yes, for example in cases of doubt. When you are completely connected to the text, a Torah-level doubt is treated stringently. Clear? No, when you are almost not connected to the text, a doubt in Oral Torah—even though it’s “written in the Torah” in all the supposed ways—no, no, no, it depends what kind of Oral Torah. This is one of the nicest places to see it in Maimonides. Because Maimonides calls a law given to Moses at Sinai and laws that emerge from interpretations words of the Sages, but in many places you see that laws that emerge from interpretations, their doubts are treated stringently, while a law given to Moses at Sinai, a doubt about it is treated leniently. Specifically that? Maimonides writes in several places that a law given to Moses at Sinai is treated leniently in cases of doubt. So that means it’s rabbinic? Yes. Not only rabbinic, but halakhically rabbinic—that is, doubt treated leniently, not just a label saying rabbinic. But halakhic status is divided into two categories, either Torah-level or rabbinic. No—that’s exactly it. Maimonides doesn’t divide it that way, that’s what I’m saying. In Maimonides there is a continuum. But what is this continuum? There is a continuum. Maimonides does not accept the dichotomous outlook. It isn’t only two levels. Each such level should have some kind of—there is halakhic status, but a different status. There is lenient and stringent—no, lenient and stringent is only one of the parameters. Yes, no, but if today we don’t know of several statuses in such a continuum, we know only either Torah-level or rabbinic. Fine, because that’s the accepted way of thinking. But I’m saying that in Maimonides, in my opinion, he has a different conception. And I can show this. It’s a different conception. He does not accept that dichotomous outlook of either Torah-level or rabbinic. There is a whole continuum of levels. And this continuum is determined by the degree of connection to the text.

The most intimate connection to the text is what is explicitly written. The second connection is what you can extract from the text by means of clear interpretive tools. Not the spirit of the text, but something that simply isn’t written explicitly; you need tools. In the conception of interpretations we discussed, as exposing interpretations, someone who says that interpretation is really a more global reading but is the true plain sense—I said I don’t agree with this, and I think Maimonides did not agree with it either—but those who say so would look at that as the second level of Torah-level in Maimonides’ terminology. Clear? Because that too is basically something written, just not explicitly; we need to do a little work to extract it. In Maimonides, if one level clashes with a higher level, would it override it? I don’t know of that. I don’t know.

The third level is interpretations. Interpretations are something that is an expansion from the text. Not just the spirit of the text—more than that, more solid. But we have tools that were given at Sinai for making interpretations, and those tools are tools of expansion, not tools of exposure. Meaning: they do not expose what is inside the verse, but expand beyond it. But even that receives a binding halakhic status—lower than Torah-level status, but not fully rabbinic in the accepted sense. Its doubt is treated stringently. So in what sense is the halakhic status lower? What? For example, that one is not punished for it. There are no lashes. If you violate a prohibition that comes from words of the Sages—after all Maimonides says explicitly—there are no lashes for it. Clear? Therefore there are many parameters, and each level is characterized by a whole set of parameters. Because each parameter—are lashes administered or not? Is a doubt treated stringently or leniently?—each such parameter is dichotomous. But if you map the issue according to all the parameters, you can get many levels.

Wait, but for rabbinic enactments there are lashes, no? No—disciplinary flogging. Something else. I’m talking about Torah-level lashes, not disciplinary flogging. So the third level, I said, is laws—and there is even another one in between, but no matter—is laws learned through interpretations. Clear? And there their doubts are treated stringently, but there are no lashes, because it is not Torah-level, it is words of the Sages. By the way, lashes are only for Torah-level law. Lashes are only for Torah-level law; cases of doubt are not a clear indication. With doubts, there are rabbinic laws where yes, and rabbinic laws where no. Lashes are only for Torah-level law. Maimonides writes that; that is the second root—really the first and second roots.

Now the next level is support. What is support? It’s when the Sages understand—and here I’m already bringing in something that we’ll also see in Abulafia—usually people think support is just a technical matter. It’s an ordinary rabbinic law; only what? They hang it on a verse, for reasons like maybe remembering it or just giving it some nice flavor. A kind of sermonizing, but not sermonizing in the sense of halakhic exposition. Exposition is a binding method, but sermonizing in the way we mean today when we say sermonizing, right? A nice idea, not exposition. Meaning, little sayings, but not really. Of course this strips support of all significance. Fine, you can make whatever nice sayings you want, but that has no significance and no status. In many places, in dozens of places in the Talmud, it appears that this law is “mere support.” Meaning, even though there is a verse, it is mere support. Usually people think maybe it’s a mnemonic device, maybe they simply hang it on a verse, I don’t know. Remember that Torah was transmitted orally, so you need memory devices. But that empties it of meaning.

There are several sources among the medieval authorities (Rishonim) where you see that support is not like that. Support is something that contains the spirit of the verse, but even less than an interpretation—that is why I say it is the next level. Meaning, you can understand from the verse that this too is desirable to do, but it is not at the same binding level as what is actually written in the verse. And therefore you can draw inspiration from the verse and understand that something like this—for example in prohibitions—something like this is also problematic, but it is not an expansion of what is written in the verse the way interpretations do. It is the spirit of the verse, okay? That is the next level, already the fourth level I think in our classification. So it still has a connection to the verse, but it’s just a scent. It is not—even less than interpretation, certainly not what is explicit in the verse.

And the fifth level is ordinary rabbinic laws. Meaning enactments, decrees, where the Sages establish law ex nihilo without connection to verses—they establish a new law. They have the ability to establish new laws, and that is the fifth level. I said there are more—this is a schematic classification, there are more. There are more levels somewhat in between. For example, Maimonides writes that laws learned through interpretations, but about which we have a tradition, are Torah-level and one receives lashes for them. That is fully Torah-level—not severe words of the Sages, but fully Torah-level. I think the meaning is—Nachmanides is puzzled by him. He says: you tell me that a law given to Moses at Sinai is words of the Sages? That if there is a tradition about a law, it is words of the Sages, doubt treated leniently, clear? And if a law comes from an interpretation, that too is words of the Sages. But if there is both tradition and interpretation, then it is Torah-level? How does zero plus zero produce one? If each of those mechanisms cannot produce a Torah-level law, then how do both together produce a Torah-level law?

The answer is that according to Maimonides it is not zero, it is half. Half plus half is one. Of course schematically; I can explain this in a more substantive way, but just to give the idea. Maimonides truly is not willing to accept a division of either zero or one. He does not see it dichotomously. For Maimonides there are different levels of connection to the text. And in my opinion what Maimonides is really saying—maybe I’ll say it now more fully; I don’t think we got to this when we discussed interpretations, that’s really the fuller picture—interpretations are only one slot in this picture. What Maimonides is really saying is that, as I said before, interpretations are words of the Sages because they expand and do not expose. But interpretations for which we have support—meaning, we have a tradition regarding them, that is, the law was given to us by tradition and we found it an anchor through interpretation—then that means that this interpretation truly exposes and does not expand. Therefore it is Torah-level.

Is there an example of this? Yes. For example, the citron. It says “the fruit of a beautiful tree”; it doesn’t say citron. How do I know that this means a citron? So several interpretations are brought in tractate Rosh Hashanah, that “the fruit of a beautiful tree” means a citron. “That dwells on its tree all year,” “that dwells by all waters,” no matter—various interpretations. But in the Talmud itself you see—and these are indirect indications—but in the Talmud itself you see that nobody disputes that “the fruit of a beautiful tree” means citron. Nobody suggested it might be an orange. If it says “the fruit of a beautiful tree,” one person would bring an interpretation and it would come out citron, another interpretation and it would come out orange? No. Everyone says citron, each one just approaches it from another angle and finds a different interpretation for it. What does that mean? That they really knew it was a citron. They are looking for an interpretation to anchor something they already knew. So that means it is a Torah-level law. It means there is a tradition, and we found it an interpretive anchor in the text.

If it is tradition alone, that is a law given to Moses at Sinai, and that is words of the Sages. If there is some interpretation but no tradition for that law, then once again it is words of the Sages, rabbinic. But if it is interpretation plus tradition, then it is Torah-level. And why? Maimonides says—and I think the explanation can be very simple—why indeed did the Holy One, blessed be He, not write the laws that emerge from interpretations? Or in general, any kind of law—the question is why didn’t the Holy One, blessed be He, write it? So the Talmud in Eruvin, which I mentioned before, says: “of making many books there is no end.” But Maimonides says there is a more substantive reason here.

A law given to Moses at Sinai was not written—well, before the law given to Moses at Sinai, I’ll get to that at the end. When the Holy One, blessed be He, did not write a law in the Torah but left it to be produced through interpretation, that means it is not Torah-level. He did not state it in a Torah-level way. It is not the Torah itself. It is an expansion. We make the interpretation and expand the Torah, but it is not the Torah itself. But if—I can derive laws through interpretations and I don’t need a tradition for that, and we said that according to Maimonides most interpretations are creative and not merely supportive, meaning they create new laws, I don’t need to have a tradition that this law is correct and only then find it an anchor through interpretation—most interpretations create new laws for which we have no tradition. So then what about those interpretations that support existing laws? Why is that needed? Why do I need the interpretation, or why do I need the tradition, why do I need both? Maimonides says: because it comes to tell you that this interpretation is not expanding but exposing. This interpretation actually reveals that this is what the Holy One, blessed be He, intended in that verse. Therefore the tradition is needed, because if there were no tradition, I would make the interpretation and understand the law as an expansion of the verse, not an exposure. That is why the tradition is needed. Therefore tradition plus interpretation is like something explicitly written in the verse. A Torah-level doubt is treated stringently and one receives lashes for it. Maimonides writes this explicitly.

So that, for example, is another level I didn’t mention. Never mind, there are all kinds of levels, there are sometimes—never mind. So basically, yes. But still, if it’s a tradition that exposes, why isn’t it written explicitly? Still, okay, what’s the difference between something with tradition plus interpretation and—because apparently even tradition plus interpretation is not completely Torah-level. I said there is a continuum; even that is not completely Torah-level. Where would the practical difference be? I don’t know. Maybe for example—and we’ll speak more about this here too—there is a Ran in Nedarim 8a. The Talmud says there that one who says, “I will study this chapter,” has taken a great vow to the God of Israel. So the Talmud asks, what does that mean? It obviously means an oath, of course. Vow and oath in the Talmud are often interchangeable words. So he swore to study a chapter in Torah. The Talmud says: but that is Torah-level, after all Torah study is Torah-level. How can one swear to fulfill a positive commandment of Torah-level law? An oath does not take effect upon a Torah-level positive commandment. One cannot swear to fulfill or violate a Torah-level positive commandment; it does not take effect. One can make a vow concerning commandments, by the way, but not an oath. An oath concerning commandments does not take effect because he is already sworn from Mount Sinai—he is already sworn on this, and one oath does not take effect upon another oath.

So the Talmud says: this is Rabbi Shimon, as Rabbi Shimon said, “and you shall meditate in it day and night”—if one studies one chapter in the morning and one chapter in the evening, he has fulfilled his obligation of Torah study. So every chapter beyond, say, reciting Shema in the morning and evening is not a Torah-level obligation, and therefore one can swear concerning it. The Ran asks there: what do you mean? But there is “and you shall teach them diligently,” that the words of Torah should be sharp in your mouth. You have to study everything; it’s not enough to read Shema morning and evening—you won’t know anything in Torah from that. Maybe you fulfill the obligation of Torah study—you studied. But regarding knowing Torah, you have to know; you must study in order to know the entire Torah. So if there is an obligation to study the whole Torah, then the Talmud’s question returns. So he says no, because “and you shall teach them diligently,” that the words of Torah should be sharp in your mouth—that is an interpretation. And a law that comes from interpretation is one to which an oath does apply, unlike a law explicitly written in the Torah, where one is already sworn from Mount Sinai and an oath does not take effect upon an oath.

If I swear that I will sit in the sukkah, that oath has no meaning, because I am sworn to sit in the sukkah from Mount Sinai. A practical difference, for example: if I did not sit in the sukkah, then besides the prohibition of eating outside the sukkah, did I also violate the prohibition of an oath? The answer is no, because an oath does not take effect upon a matter of commandment. If I made a vow, then yes; but if I swore, then no. Clear? That’s the Talmud in Nedarim 16a. So if a person violates a prohibition whose basis is not that it is written in the Torah but that it is derived from the Torah—Oral Torah, what I talked about before—then the Ran says an oath takes effect on it. Therefore, one who swears “I will study this chapter,” although this is a Torah-level obligation, according to the Ran at least it is a Torah-level obligation, even though he holds that interpretations are Torah-level obligations. There is a Torah-level obligation to study not only one chapter in the morning and one chapter in the evening. But it is an obligation that comes from interpretation, and therefore an oath does take effect on it, because regarding that I am not sworn and standing from Mount Sinai.

Clear? Now if there is—I don’t know of an explicit place about this. Citron would be the same thing too. What? An oath that one will take a citron. Exactly. Now according to this, it would come out that if there is a tradition that joins it—soon perhaps I’ll note something further about citron—if there is tradition and interpretation together, it could still be that it isn’t Torah-level in the sense that an oath takes effect upon it, because it isn’t explicitly written in the Torah. We derive it through interpretation and there is an oral tradition, but it is not explicitly written in the Torah. Sworn regarding what am I sworn? Regarding what Israel swore to at Sinai. Regarding what is written in the Torah. The Torah was given at Sinai, Written Torah. What was given as Torah is what we are sworn to. Everything beyond the Torah—not because its halakhic status is lower; it is Torah-level, doubt treated stringently, lashes are given for it, all of that is true—but regarding that you are not sworn. So here is another parameter that defines this continuum. Doubt treated leniently or stringently, whether you are already sworn and standing, whether an oath takes effect on it, whether lashes are given or not—these all create the continuum of connection to the text.

About citron, by the way, I’ll add another point, because it is important. With citron, what happens is that the Torah says “the fruit of a beautiful tree.” So it’s not only interpretation and tradition; it is actually written in the Torah. I just don’t know what “the fruit of a beautiful tree” is. Maybe it’s an orange? I don’t know. The interpretations reveal to me that the words “the fruit of a beautiful tree” in the Torah mean citron. Fine, but now after they revealed that to me, the Torah says to take a citron. So that is Torah-level. That is already fully Torah-level; it isn’t Torah-level in the sense I spoke about before. What I spoke about before is a case where I have a tradition transmitted orally—for example willow. Clear? There is an opinion in the Talmud that willow and the water libation are a law given to Moses at Sinai. We do not rule that way in practice; in practice it is prophetic custom. But there is an opinion that it was a law given to Moses at Sinai.

So let’s say there were a tradition, a law given to Moses at Sinai, that one needs beating of the willow on Hoshana Rabbah. Clear? And let’s say I found for it some anchor in the text by way of interpretation. Fine? So ultimately, if it were interpretation—say an extra vav, I would derive something from an extra vav, never mind, say that, or an extra “et,” something like that—then it would not become Torah-level in the sense that I am sworn and standing from Mount Sinai, because there is no verse in the Torah that says it. I have interpretation plus tradition, through which I understand that this interpretation is exposing and not expanding. So therefore it is Torah-level, but it is not written in the Torah. But “the fruit of a beautiful tree” is written in the Torah. Those words are there. I just don’t have a plain-sense explanation of them. The exposition is the way to understand what “the fruit of a beautiful tree” means. Once I understand what “the fruit of a beautiful tree” means, it is written in the Torah. Now it is fully Torah-level, at the maximum level. Why? Therefore it’s not a completely successful example. Maybe bringing a lamb as an offering is fully Torah-level, but “the fruit of a beautiful tree” and citron would be less than that. If the Torah says both to bring an offering and what the offering is, then you didn’t even use interpretation on the way, not even to clarify what the offering is. No, obviously—but that is the maximum Torah-level.

You could say—but I don’t think it matters—because once you have clarified that “the fruit of a beautiful tree” really is citron, then that is what the Torah said. Why does it matter that you clarified it by means of interpretation? But that the clarification was made is not written in the Torah. True, it is written. Again: it says “the fruit of a beautiful tree.” Something is written there. So tell me what it is. If it’s not citron, what is it? But in interpretation it’s not written. No matter, I’m asking: what is it if it isn’t citron? In an interpretation like “an eye for an eye”: there is something written in the Torah there—to gouge out the eye. The interpretation says monetary compensation. There the interpretation takes the text away from its plain meaning. So that’s already a discussion about the relationship between exposition and plain sense; we discussed that. But here, with “the fruit of a beautiful tree,” the interpretation reveals to me what is written in the verse. I have no plain-sense explanation of the verse in which “the fruit of a beautiful tree” means one thing and the exposition means another. The exposition reveals to me what “the fruit of a beautiful tree” is. So what difference does it make that I arrived at it through interpretation? Interpretation was only the tool through which I understood what the verse says. But now that I truly understand that this is what the verse says, then the Holy One, blessed be He, told me to take a citron on Sukkot. So that is Torah-level. It doesn’t matter how I arrived at that information. Bottom line, the information is written in the verse. If it is written in the verse, that’s it. Clear?

So that is more or less the continuum. Now for example, regarding laws of doubt—regarding laws of doubt—why indeed is a law given to Moses at Sinai treated leniently in a case of doubt, while a law that emerges from interpretation is treated stringently in a case of doubt? Both are words of the Sages. And of course enactments and decrees too are treated leniently in cases of doubt; that is clear. Why? Why is this related to connection to the text? Why does connection to the text determine that issue? So here is another example showing that this continuum is not always a continuum of stringency. The relation between the levels is not that one is less stringent than the other, but that it is a different type. It has all sorts of implications, sometimes more stringent and sometimes more lenient, but it is a different type. It is not always necessarily a continuum of degrees of stringency.

For example, the subject of doubt—whether a doubt is treated stringently or leniently—is not necessarily because one thing is more severe. I can show several sources that it isn’t so. Rather, what matters is the character of the law. If the law is what in Brisker language is called a law in the object, meaning there is something problematic in reality, then doubt is treated stringently. But if the law is a law that addresses the person subjectively, meaning that the person has to do something not because—for example, let me give an example—usually people think rabbinic laws are laws regarding the person and not the object. For example, the prohibition of poultry with milk. Meat and milk is an object-level prohibition. The thing itself is prohibited to eat; the prohibition grasps the thing itself. Clear? It is prohibited in reality. Okay? Poultry with milk is a personal prohibition, not an object prohibition. Poultry with milk is not itself problematic; after all, it is permitted by Torah law. The Sages prohibited it. So what does that mean? That basically the Sages told me not to eat poultry with milk. Poultry with milk in itself is not problematic; otherwise the Torah would have prohibited it. The Sages told me not to eat poultry with milk.

A practical difference, for example: the Netivot—I may have mentioned him, I don’t remember—in siman 246, the Netivot says that if someone violates a rabbinic prohibition unintentionally, he does not need atonement. Someone who ate a rabbinically prohibited benefit unintentionally truly does not need atonement; he does not need to repent for it, he needs nothing. This isn’t just “unintentional” like we say with Torah-level law. In rabbinic law, if you acted unintentionally, there is no prohibition at all. It is as if you committed no prohibition whatsoever. Why? So he explains that with rabbinic law, the whole obligation is to obey the Sages. Now if I acted unintentionally and did not know that the Sages commanded not to eat this, then I did not express disobedience to the Sages here. True, I ate poultry with milk, but eating poultry with milk in itself is not problematic. There is no problem in eating poultry with milk. The whole problem is that I am supposed to obey the Sages who told me not to eat poultry with milk. Fine, if I didn’t know that this thing was poultry with milk, or didn’t know that they prohibited it to me, then there was no act of disobedience here. So what’s the problem? There is no prohibition here at all.

But when the Sages said poultry with milk is forbidden, didn’t they make it an object-level prohibition? No—that’s the claim. No, his claim is that it remains a personal rule; it is an obligation of obedience. You have to obey. In contrast, with Torah law—say I ate meat with milk, not poultry with milk, unintentionally. Now with Torah law there are two aspects. In Torah law there is also the obligation to obey what the Holy One, blessed be He, commanded, and there is also the thing itself—the thing is harmful or there is something problematic in the thing itself, and that is why the Holy One, blessed be He, commanded not to eat it. Okay? Now suppose I ate it unintentionally. Then the problem of obedience toward the Holy One, blessed be He, is not present, because unintentional means, as we said before, that I did not know He commanded that it was forbidden, and therefore I did not rebel against the command. But I did eat something problematic—that part is present. Even if it was done unintentionally, the problem created by eating that thing exists. Therefore with Torah law I have to be stringent. With rabbinic law I can be lenient.

Why? Because with rabbinic law, if I did it unintentionally—sorry, I already moved to doubts; that was about unintentional violation. And the same applies to doubt. Some later authorities (Acharonim) say that according to this principle of the Netivot, this also explains why a rabbinic doubt is treated leniently. Why is a rabbinic doubt treated leniently? Because once I have a doubt whether the Sages commanded this to me or did not command it to me, and I violated it, doubtful rebellion is not rebellion. Rebellion is against a definite prohibition. Therefore you can be lenient. With Torah law, if I am in doubt, what happens? With Torah law there are the two dimensions, as I said: both that I am commanded to do it, and the problem itself because of which I was commanded. From the standpoint of the command component: in doubt there is no problem, I can be lenient, because doubtful rebellion is not rebellion. But if I am lenient, maybe I will eat meat with milk here. In reality maybe I will eat it—after all, there is an object-level prohibition. That is what I must guard against. Therefore its doubt is treated stringently.

This is how they explain Maimonides. According to Maimonides, rabbinic laws emerge from “do not deviate.” So Nachmanides attacks him: if so, why are their doubts treated leniently? It turns out that every rabbinic prohibition you violate means you violated the Torah prohibition of “do not deviate,” so its doubt should be treated stringently. Why is it treated leniently? According to Maimonides, this is the answer given for Maimonides on the basis of this Netivot: yes, it is Torah-level, but what is written at the Torah level? At the Torah level it says “do not deviate.” What does that mean? It is an obligation of obedience. Poultry with milk is not prohibited in itself; it does not become an object-level prohibition. Rather, there is a Torah-level obligation to obey the Sages. Fine. But doubt about a command—when I do not obey it—that is doubtful rebellion. And there is no doubtful rebellion. Rebellion has to be frontal. There is no doubtful rebellion. Only if you eat the thing itself, and if in fact it is problematic, then there is a problem—the reality is the reality. There you must be careful even in a case of doubt, because maybe you are eating meat with milk. There it is a factual question. That is what you must be careful about. Clear?

This answer is a bit problematic. Why? Let’s say I prayed and on the new month I forgot to say “Ya’aleh VeYavo.” Now I’ll come to the Netivot—so I don’t repeat? What, did I rebel against the Sages? Did I disobey the Sages? I didn’t do it; it was unintentional. But the Sages told me to repeat. But the Sages told you to repeat not as atonement. They told you to repeat because you didn’t pray. You didn’t pray—fine, you’re not liable to punishment. Say you missed it completely, for example, unintentionally. You missed it, you didn’t repeat, and now the next day already came. That’s it, you lost the makeup opportunity. No problem, truly it’s not a prohibition. That’s what he would claim. According to Nachmanides, for whom prayer is only rabbinic; according to Maimonides there is somewhat more room to discuss, but according to Nachmanides at least, maybe also according to Maimonides. Clear?

So what am I trying to say here? That laws of doubt do not necessarily express the degree of stringency. The fact that the doubt regarding one thing is treated stringently and the doubt regarding another thing leniently is not necessarily because the first is more severe and the second lighter. Sometimes it is simply a matter of type. The rabbinic prohibition or the prohibition of obedience can be very severe, but its character is a subjective prohibition. It is an obligation to obey. It isn’t that the thing itself contains problematicity in the object. So there a doubt is treated leniently. But if it is a Torah-level obligation that is object-level and not only person-level, then because of its character—not because of its severity—its doubt is treated stringently. So this hierarchy I am speaking about here, the hierarchy of connection to the text, is not necessarily a hierarchy of severity. Connection to the text, according to Maimonides, really expresses the degree of problematicity in the thing. That’s how I understand it.

The degree of connection to the text—why did the text leave a law given to Moses at Sinai outside? Why didn’t they write it? There really aren’t so many laws given to Moses at Sinai either; those they could have written. Why didn’t they write them? If one truly understands that a law given to Moses at Sinai is Torah-level, as most medieval authorities (Rishonim) understand, that really is a difficult question. I don’t know. The Holy One, blessed be He, wanted not to write it; His reasons are with Him. But according to Maimonides, it is not so. It was not written for very good reasons. A law given to Moses at Sinai is not written, and since it is not written, there is no command about it. A command in the Torah. Okay? Wait, sorry, the opposite. And a law that emerges from interpretation is not written in the Torah. Since it is not written in the Torah, there is no command regarding it. Because the Sages expanded the Torah. There is no command, neither oral nor written. But what does that expansion mean? It means that there is a problem in the thing itself.

Like, say, “the Lord your God you shall fear”—to include Torah scholars. So the obligation to fear Torah scholars is like the obligation to fear the Holy One, blessed be He. There is no command regarding this, because it is an interpretation. But the idea underlying the obligation to fear the Holy One, blessed be He, also underlies the obligation to fear the Sages. The object is the same thing, the reality. In reality the same factor exists in the interpretation too. So what happens? It comes out that here there is a law with no command on it, but it does have the essence. So what should the law be in a case of doubt? The doubt regarding such a law should be treated stringently, right? Because after all, strictness in cases of doubt follows the question whether there is an essential problem. In contrast, a law given to Moses at Sinai does have a command. After all, a law given to Moses at Sinai is from the Holy One, blessed be He. There is a command—not in the Torah, but there is a command. Why does it remain outside? Why isn’t it written in the Torah? Why was it transmitted orally? Because orally means there is a command but no essence. No essence does not mean it has no reason, but that it is not in the object. Meaning, there is nothing in reality itself that is problematic. Therefore it remained outside. Because connection to the text—that’s what Maimonides is saying—connection to the text expresses the question of how much there is a problem in reality. The less connected something is to the text, the more subjective and less objective it is. Less in the world itself. It is not object-level but person-level. Yes, and therefore the doubt concerning a law given to Moses at Sinai, according to Maimonides, is treated leniently, because a law given to Moses at Sinai is an obligation of obedience, exactly like rabbinic law, an obligation of obedience. And an obligation of obedience, even if in ordinary definitions it is Torah-level, according to Maimonides a doubt concerning it is treated leniently. Why? Because if you are in doubt, then you do not know whether you are commanded or not, and in the thing itself there is no problem. In reality itself there is no problem. So in doubt you can be lenient. Doubtful rebellion is not rebellion.

Is there a list of laws given to Moses at Sinai that aren’t written in the Torah? A closed list—no. But the Talmud says of many things that they are a law given to Moses at Sinai. That can be because the Talmud says so. Yes, that is the tradition. The tradition transmits it to us as a law given to Moses at Sinai. Could there not be a dispute whether it is a law given to Moses at Sinai or not? Maimonides claims there cannot be, and there is a responsum of Havot Yair in siman 192, where he goes through all the laws given to Moses at Sinai in the Talmud and shows that in many dozens of them disputes arose. Some of them he nevertheless manages to explain in line with Maimonides one way or another, and some not. In practice there are disputes even about laws given to Moses at Sinai. I mentioned before willow and the water libation, where there is one opinion that these are a law given to Moses at Sinai and another that says they are prophetic custom. So here is a dispute about a law given to Moses at Sinai. In any event—what I wanted only… How does Maimonides say this? There are disputes here. I don’t know. It’s really like making an error against an explicit mishnah. Yes, I don’t know, I don’t know.

So this continuum that I sketched here—say a continuum of five or six levels, as I described before—is really characterized by two parameters. One parameter is degree of connection to the text. Something written explicitly in the text, or something hewn from the text by interpretation plus tradition, meaning the interpretation is exposing and not expanding. An expanding interpretation is already a lower connection. Support is an even lower connection, already a fourth level. And an enactment or decree has no connection at all to the text. Clear? Just an enactment, with no verse on the matter whatsoever. The degree of connection to the text determines the question of how problematic the act itself is—or alternatively whether it is merely an obligation upon the person to behave this way, a personal obligation and not an object-level obligation.

And one of the consequences, for example, is whether we are already sworn and standing from Mount Sinai. Or, for example, regarding already being sworn and standing from Mount Sinai, it could definitely be that a law given to Moses at Sinai would indeed count as already sworn and standing from Mount Sinai, because we received the law given to Moses at Sinai from Mount Sinai from the Holy One, blessed be He, together with the Written Torah, even though Maimonides defines it as words of the Sages. You can see how the whole business gets mixed up here. The hierarchy does not preserve a simple order. Yes, someone who is stricter regarding laws of doubt will not always be stricter also regarding whether an oath takes effect on it. Okay? Interpretations—apparently not. Regarding interpretations, an oath probably does not take effect. Okay? Regarding support maybe also not. So the degree of connection to the text determines how much there is a problem in the thing itself, and that affects whether one is already sworn and standing from Mount Sinai, whether its doubt is treated stringently or leniently, whether lashes are given for it, and all sorts of halakhic consequences. That is more or less the general picture.

Now we saw interpretations in the previous chapter, which we have now finished, so that is really the third level. Yes, there are things written explicitly in the Torah; there are things for which we have a tradition plus interpretation, meaning the interpretation is exposing and not expanding—that is the second level. The third level is interpretations that are expanding interpretations, creative interpretations; they are expanding interpretations. The fourth level is support. And the claim that this is a fourth level is itself not agreed upon. Because usually people think that support has no connection to the text. It is just the Sages, nice sayings of the Sages, Hasidic-style sayings of Hazal. But in the Ritva on tractate Rosh Hashanah and in Tosafot in several places you see that this is not so. Support has some connection to the text. True, it is only the scent of what is written. It is not really anchored as in interpretation. So it is a weak connection to the text. Therefore it is really a rabbinic rule; all the medieval authorities characterize it as a rabbinic rule, unlike interpretations and a law given to Moses at Sinai. But according to Maimonides perhaps this is the fourth level on the continuum of connection to the text. It is a weak connection to the text. So that is Chapter 6.

I’ll start reading on page 28. “Many times we find in the Talmud that the law learned from a certain verse is rabbinic, and the verse is mere support. One must understand that support does not mean something with no connection at all to the text”—what I just said—“rather support comes from the language of leaning, something one leans on. And even if it is rabbinic, it can have a source in the text.” By the way, “leans on” means rests on, yes? Meaning, this rabbinic law rests on the text. In other words, there is something in the text that nevertheless grounds it; it is not completely detached.

“How so? We have already said that every idea is infinite, but man operates quantitatively, and therefore Jewish law is defined and precise. However, when a Torah-level law stops at a certain point, it is still possible to continue the idea and expand the binding definition. Sometimes the expansion remains in the category of going beyond the letter of the law, and sometimes not.” Okay? So what is he saying here? That sometimes the Torah-level law is sharply defined in a certain way: up to here is a Torah-level obligation. But of course there are more refined levels of the same matter. Let’s say we are talking about “the Lord your God you shall fear,” to include Torah scholars. So fearing Torah scholars is not exactly fear of God, but the idea of fear of God is there. But that is actual inclusion, that is interpretation. What about honoring sacred books? I don’t know an interpretation that obligates honoring sacred books, okay? But there is definitely room to say that one can see in “the Lord your God you shall fear” some sort of support showing that there is also an idea of honoring sacred books, that there too there is a dimension of what exists in Torah law or in the interpretation, just in a lighter form. Okay? So that would be rabbinic law and the verse is mere support. Meaning, it is only the scent that comes from the verse. It is not learned from the verse; it is not expanded from the verse. But the idea of the verse is still here.

Where exactly do you draw the line between Torah-level and rabbinic? That is what he says here: you can go on to infinity, and the question is always where the line passes. That line determines from what point it is a full interpretation and up to what point it is only support. It is a question of degree of connection to the text. How much does this really say what the verse says? If it really says what the verse says, if it is essentially connected to what the verse says, or if it contains the spirit of the matter, the idea of the matter. The idea of the matter is mere support. But one has to understand that the difference is basically quantitative. Meaning, the question is to what extent the idea of the text is actually expressed in the case we are dealing with. If it is expressed a little, that is called mere support. If it is expressed strongly, that is interpretation. If it is exactly that, then it is Torah-level; then that is what is written in the Torah. Here too, basically, we see a continuum.

“Man operates quantitatively, and therefore Jewish law is defined and precise. When a Torah-level law stops at a certain point, it is still possible to continue the idea and expand the binding definition.” Exactly like the example I gave. You can continue the idea further, but it will no longer be Torah-level. Yet the idea is drawn from the Torah; it is not that I invented this thing.

I’ll give you an example. Suppose my own reasoning tells me that there is absolutely no idea of fearing Torah scholars; on the contrary, that is idolatry—you should fear only the Holy One, blessed be He; there is no point in fearing Torah scholars. Still, it could be that I would carry out this whole process—not even speaking about the interpretation, even regarding the rabbinic law. In what sense this process? This process of expanding the Torah law of “the Lord your God you shall fear.” Why? Because perhaps my own reasoning says one should not do this, but the spirit of the verse does say it. If the verse says to fear the Holy One, blessed be He, and we interpret it to include fearing Torah scholars as well, fine—then that means that apparently one can fear more things than just the Holy One, blessed be He. Good, so maybe sacred books too. It doesn’t mean that I, by pure reasoning, understand that one should fear sacred books—let’s say for the sake of discussion—but that does not mean I would not make the support argument. That is exactly the idea of support.

Support means a law that is an enactment or a decree, a law whose basis is the reasoning of the Sages. If there is no reasoning, the Sages will not prohibit it. The Sages prohibit it because they understand that there is some reason to prohibit it, by one kind of reasoning or another—we’ll speak more about that later—but there is some clear reasoning. With support, it is absolutely possible that the Sages will prohibit something that, if you had asked them on their own, perhaps they would not have thought should be prohibited, but they understand that it is the spirit of the text. The text—the idea of the text—also says this. On my own, perhaps I would not say this is right, that one should do so, but I understand that this is an extension of what the verse demands of me. So if so, I prohibit it rabbinically. That is called support.

Meaning, unlike an enactment—or let’s say someone who prohibited poultry with milk. Poultry with milk, simply speaking, is a decree lest one come to eat meat with milk. Fine? But there is no verse that provides support for it, nothing like that. It is a rabbinic enactment, okay? That means it isn’t that poultry with milk contains the same dimension as meat with milk and I am extending the prohibition of meat with milk to poultry as well. No. Poultry with milk has no problem in itself. There is no problem in the object, as I said before. Rather, the Sages understand that if they permit eating poultry with milk… in this case it is reasoning to make a fence. Never mind. Hanukkah and Purim are reasoning on the merits of the issue itself, not because of a fence or safeguard for something else. The Sages thought this was the right thing to do. But support can exist even without the Sages independently thinking this is the right thing to do. It is enough that it is the spirit of the text, and they understand that this is a continuation of the spirit of the text, and they say: well, apparently the Holy One, blessed be He, expects this from us too, so they do this as well.

I’m not saying it is always like that. I’m only bringing this as an indication of the difference between rabbinic law based on support and rabbinic law that is pure rabbinic law, which comes from the Sages’ own reasoning. Clear? “Sometimes the expansion remains in the category of going beyond the letter of the law.” That is already the next stage. Meaning, going beyond the letter of the law is not binding even rabbinically. One is not obligated. But it is still expected of us. So the spirit of the matter obligates, but in the mode of going beyond the letter of the law. That is, not truly halakhically obligatory; it is an even lighter level.

The Talmud in Bava Kamma says: “and the deed”—this is the law; “which they shall do”—this is going beyond the letter of the law. So even action that is beyond the letter of the law is Torah-level, because “and the deed which they shall do” is derived from a verse. Of course that is the heap paradox; we talked about it. If it is derived from a verse, then it comes out that it is the letter of the law, not beyond the letter of the law. Because the verse says it must be done, so that is the letter of the law. So he says: “Thus even acting beyond the letter of the law is from the Torah. However, the Torah does not obligate one to act this way. But a decent person acts this way; a pious person acts this way; each according to his own level.” Clear? So basically this is not a command, but an expectation of the Torah. The Torah expects things from us, and we spoke about the fact that it really wants to leave these things in the category of one who is not commanded yet performs. That is part of the issue. It does not want to command this, because if it were commanded it would ruin it. So it leaves it as going beyond the letter of the law.

“And sometimes the Sages expand the boundary of the commandment and turn the expansion into something rabbinically binding.” His claim is that before the Sages expanded it, there was already in essence a point to doing it. Someone who understands the idea should have done it beforehand too. The Sages decided to take this expansion and not leave it merely beyond the letter of the law, but establish it as something binding on the rabbinic level. But fundamentally it begins as some kind of expansion of a Torah-level law. Only sometimes the Sages leave this expansion outside the halakhic framework, as voluntary behavior by the person—each one decides whether he wants to do it or not—and sometimes they establish it as something binding at the halakhic level, but rabbinically. Okay? Both are really some kind of expansions. But both this and that are expansions of the type of support, because they are expansions of the type that say that here too there is really the same idea as in Torah law. Not like poultry with milk, which in itself has no problem; only if you eat it you may come to eat meat with milk. Here we are talking about expansions of the Torah’s own idea, not safeguards lest one come to violate Torah law.

“This is making a fence for the Torah”—and this is self-contradictory; I just said the opposite. “This is making a fence for the Torah, about which the Sages were commanded: ‘make a safeguard for My safeguard.’” That is not correct. Making a fence is exactly the opposite of this. A fence means something that in itself is not problematic, but if you violate it you may come to something that is problematic in itself. Earlier we were talking about something that is itself problematic, just at a lower level of problematicity. So the formal law does not require it, but still beyond the letter of the law—or sometimes the Sages establish it, and then it becomes a rabbinic obligation and you must do it. Clear? Therefore it is the opposite. He himself makes that correction.

By the way, Rabbi Kook in Musar Avikha argues that even things that are fences contain essence. If poultry with milk can bring me to eating meat with milk, that is an indication that eating poultry with milk has something of what exists in meat with milk. That similarity works in both directions. The similarity can lead me from violating poultry with milk to eating meat with milk too, but that similarity also says the reverse: that the idea present in meat with milk apparently exists in some measure in poultry with milk too. And then he really turns the fence into what I was talking about now. So for him everything is essence. Right, right. He claims that even fences are basically essence—that is his claim.

Isn’t there a problem here of adding to the Torah? No, because adding to the Torah only applies where you determine that this thing is binding by Torah law. Maimonides, for example, in the laws of rebels writes that when the Sages establish an enactment, they must specify that this thing is a rabbinic enactment, because otherwise they mislead us and themselves violate adding to the Torah. You see that if you specify that the thing is not binding by Torah law, then you do not violate adding to the Torah; otherwise every rabbinic enactment would. In fact that is why it is important to know the status of every law, because otherwise we are liable to violate adding to the Torah. If we think the Torah obligates it—many ignoramuses violate adding to the Torah, because they do something since they are sure the Torah requires it, but that is not true; it is a rabbinic law. And it is important to distinguish between rabbinic law and Torah-level law. That is an important point.

“There are in fact two kinds of rabbinic fences,” he says. This is a distinction made by many later authorities, by the way. “There are cases where they decreed concerning something that, in itself, does not belong to the Torah prohibition, but they decreed concerning it lest one violate the Torah prohibition. For example: one may not read by candlelight lest one tilt the lamp and violate the prohibition of kindling.” These are his words: “one may not read by candlelight lest one tilt it.” Clear? That is a baraita in tractate Shabbat. Meaning, it is forbidden to read on the Sabbath by candlelight, because if the flame weakens a bit, you may come to fix it, and once you improve the wick, then you kindle and violate a Torah prohibition. Therefore one may not read by candlelight. Clear? So he says that reading by candlelight on the Sabbath is itself a safeguard against kindling. Meaning, it is forbidden so that you not come to violate the prohibition of kindling.

Can one say that when someone reads a book by candlelight, he is kindling? Rabbinically? He is not kindling, he is doing nothing of the sort—he is reading. There is a concern that he may come to kindling if he reads and wants to fix something there, true. But reading itself, which was prohibited here, is not rabbinic kindling. It is not kindling at all. It is a fence. Okay? Or for example, riding a horse on the Sabbath. It is forbidden to ride a horse on the Sabbath lest one break off a branch, right? So it is reaping—a decree because of reaping. Meaning it is a safeguard against reaping. Clear? Is riding a horse rabbinic reaping? Is someone who rides a horse reaping? What does that have to do with it?

But let’s take the opposite kind of example. What about selecting? If one selects waste from food with a utensil and not for immediate use—say all the fully stringent ways of selecting—then that is a Torah prohibition. Clear? What if someone selects food from waste, not waste from food? That is selecting rabbinically. But here there is definitely room for the reasoning that selecting food from waste is essentially very similar to selecting waste from food. Here the point is not only that if you select food from waste, you might also come to select waste from food, but that selecting food from waste is itself problematic, only at a lower level of problematicity, and therefore the Torah does not forbid it. But it too contains the problematicity that exists in the Torah prohibition. So that can be called selecting. The problem of selecting is present here, but on the rabbinic level. But riding a horse is not rabbinic reaping. Someone riding a horse is not reaping—what does that have to do with it?

Food from waste is permitted. No, no, it isn’t permitted. Only where you do it by hand and for immediate use. Fine, but I mean where it is rabbinic. Clear? So food from waste, say, would be selecting rabbinically. But riding a horse or reading by candlelight would not be rabbinic kindling. You are not kindling anything; there is no problem here. Reading itself, as I said before, is not problematic. There is no problem in the object. It is a problem at the level of the person: you are forbidden to read. Why? Because if you read, you may come to the prohibition of kindling. But reading itself is not problematic at all. There is no sense in speaking here in terms of “this is labor rabbinically.” Riding a horse is not rabbinic reaping; he is riding a horse. There is only concern that he may come to reap if he rides a horse. But the riding itself is not rabbinic reaping.

By contrast, selecting food from waste is rabbinic selecting. Meaning it is a rabbinic expansion of the prohibition of selecting. The idea of why selecting is forbidden exists also in selecting food from waste, only apparently at some lower level and therefore the Torah does not prohibit it; the Sages prohibit it. So here one can say that this is rabbinic selecting. This is the second type of fence—that’s what he says. Why did he say in that baraita that he would bring a choice sin-offering, if he did not violate anything substantive? A choice sin-offering is only if he actually kindled. He doesn’t bring a choice sin-offering. Is that what he said? That he wanted to tilt it—that was Rabbi Yishmael, right? Is that the baraita? He wanted to tilt it, but in the end he didn’t tilt it. Right, so why did he say “when the Temple will be rebuilt I’ll bring…” no, certainly not. What sin-offering would he bring? Even if this were rabbinic, by the way—even if it were substantive rabbinic, I’m saying—even then he couldn’t bring a sin-offering. A sin-offering there would be unconsecrated slaughter in the Temple court. But the Sages decreed so that we should not come to tilt.

“By contrast, all those actions forbidden under the category of shevut because they are similar to forms of labor”—for example selecting food from waste—“must be understood as an expansion of the boundary of the commandment, a continuation of the idea of refraining from labor on the Sabbath beyond the boundary that is Torah-binding.” So there is the same idea that exists in the Torah prohibition, only in a lower dosage, at a lower level. Therefore it is not included in the Torah prohibition; the Sages expanded it. “The Sages knew, according to their understanding and wisdom of the text, how to say what the Torah-binding boundary is, and what is a fence for the Torah whose derivation from the text is only support.”

So what is the claim here? That shevut in the end is something that—even though he mixes the concepts a bit here—what he calls fence actually includes two types of rabbinic prohibition underneath it. One type is a decree of “lest.” Riding a horse, or reading by candlelight, lest one come to violate a Torah prohibition. The act you are doing now has no problem in itself. It is only a personal rule: you are forbidden to do it. But if you did it, nothing happened—the act itself is not problematic. So you only violated the words of the Sages; you disobeyed. But there is no problem in the act itself. That is a real fence. A fence is indeed a fence—putting a fence around a vineyard.

So that is a true fence with no inherent prohibition at all. Selecting food from waste, or all the forms of labor forbidden under shevut because they resemble Torah-level labor—there the Torah-level problem exists but in a lower dosage. Since that is so, the Sages prohibited it. But there the thing itself really is problematic; it is a problem in the object. It is a problem in the object, meaning the act itself is problematic. It is not only a personal rule. It’s just that it is not problematic enough for the Torah to prohibit it at the Torah level. The level of problematicity is too low. Therefore here only the Sages prohibit it. So on the conceptual level there is an object-level law here. That’s why I say this is called support, because it basically means that when the Torah prohibits selecting, I understand from that that selecting food from waste is also prohibited. Even though it is not a Torah prohibition—only waste from food is a Torah prohibition—I understand that the idea of this exists also in selecting food from waste. That is exactly support. I extend the Torah’s idea to places where it appears in a lower dosage too—like fear of sacred books as compared to Torah scholars or the Holy One, blessed be He—so here too the same. I take the Torah’s idea in lower intensities and understand that this too should be prohibited.

Why don’t I use the opposite logic? Say that precisely because it says selecting waste from food or food from waste—I don’t know—maybe that was the intention… No, in the case of food from waste it’s not even a good example because the prohibition of selecting is not written in the Torah at all. All the primary labors, after all, were defined by the Sages; the Torah just says “do not do any labor.” The Sages understood that the labor truly prohibited by Torah law is only selecting waste from food, either because it was written, because it was in the Tabernacle, whatever—for various reasons they understood this to be the prohibited thing. But they understand that there is another thing that contains the same idea. Even when the Torah defines something—“the Lord your God you shall fear.” So why not? “The Lord your God you shall fear”—what suddenly about Torah scholars? I understand that the extra word comes to include, but inclusion does not mean it is found in the verse. The verse speaks about the Holy One, blessed be He. Inclusion means I expand the circle to places where the idea appears, but at lower levels, in lower dosages.

Let me maybe give you an example. There is an article by someone named Daniel Weil, a physicist from Jerusalem; I don’t know him. I once saw an article of his in Higgayon, issue 1. He wants to argue an interesting claim there. I don’t agree with the claim, but never mind. He brings one sugya from chapter Tolin in Shabbat. The Talmud there says there is no dispute from one extreme to the other. Meaning, there cannot be a tannaitic dispute where one tanna obligates a sin-offering and another permits it outright. One says it is a Torah prohibition, or liable to stoning if done intentionally, and the other says it is permitted outright—for the same act itself.

Then the Talmud brings a three-way tannaitic dispute regarding going out wearing a golden city. A golden city is a type of ornament, like the one Rabbi Akiva bought his wife. The question is whether a woman may go out wearing a golden city from a private domain to a public domain. Is this thing an ornament and she may go out with it, or is there a problem of carrying from private to public domain? There is a three-way dispute. One tanna says one is liable to a sin-offering. One tanna says it is prohibited rabbinically. One tanna says it is permitted outright. So the Talmud says: don’t we see here that there is a dispute from one extreme to the other? So the Talmud says no, here there is a middle tanna who says it is a rabbinic prohibition.

Now understand: if rabbinic law were conceived as something with no problem in itself, just a command of the Sages, then what difference does it make that there is a rabbinic prohibition in the middle? In the end there is still a dispute from one extreme to the other. More than that: according to that, I think one also cannot understand why there is a dispute when one obligates a sin-offering and the other prohibits only rabbinically, according to the third opinion. There too it is still a dispute from one extreme to the other. Because if the second says it is prohibited rabbinically, what does that mean? That from the Torah’s perspective it is completely permitted; there is no problem. The Sages decreed it so that one not come to do a Torah prohibition. So what difference does that make? How does that solve the problem? There is still a dispute from one extreme to the other: one says Torah prohibition and the other says completely permitted.

In other words, how does it help that there is a mediating third opinion in the middle saying there is a rabbinic prohibition? Only if we understand that a rabbinic prohibition is half a Torah prohibition. Rabbinic means that someone who goes out wearing a golden city, according to the middle tanna, there is a problem of carrying here—but not at the level of Torah law. A problem at a lower dosage, on a lower level, and therefore only the Sages prohibited it, not the Torah. If you understand that there is an opinion that sees this as fifty percent problematicity, then I understand how there can be a dispute between one hundred percent and zero, because the fifty percent is in the middle. But someone who understands that going out wearing a golden city was prohibited rabbinically lest one come to carry something one may not carry, while this thing itself is completely permitted and has no problem at all—then what does it help that there is an opinion prohibiting it rabbinically? Therefore I say that the Talmud there is a wonderful proof for this conception of rabbinic prohibitions as basically half Torah prohibitions.

What I said about Maimonides—that half plus half is one and not zero plus zero—meaning rabbinic prohibitions are half; they are not zero. So indeed this is a distinction made by many later authorities, especially in the laws of the Sabbath, by the way; that is the main source where they discuss this. And as an aside, some interpret it negatively and some positively—meaning, the question is which of the two prohibitions is more severe. Two rabbinic prohibitions: one is a fence, saying if you do this there is concern you may come to violate Torah law. The other contains the idea of the Torah prohibition, but in a lower dosage. Okay? Two kinds of rabbinic prohibitions. Which is more severe? The later authorities disagree from one extreme to the other on this point. Some say fence-type prohibitions are more severe, and some make the distinction in order to say that the conceptual prohibitions are more severe. And truly there are arguments in both directions.

Why? Because in the conceptual prohibition, even if there is a problem, it is never on the level of Torah law. There is a problem at the rabbinic level—fifty percent problematicity—so it is lighter than a fence-type prohibition, because with a fence-type prohibition, if you fail and reach the Torah prohibition, you will violate a Torah prohibition. Meaning, the potential for damage is much higher, right? So if the potential damage is higher, it is more severe. On the other hand, if you don’t fail, then you didn’t do anything, because the thing itself is not problematic at all. But the other thing is problematic in itself regardless of whether you fail in Torah law, and therefore it is more severe. Those are exactly the two sides we talked about.

But in any event, for our purposes this means there are two kinds of rabbinic prohibitions. I think only one of them belongs to support—only the prohibition that extends the Torah’s idea. Because support means there is some connection to the idea in the text, and therefore this type of rabbinic prohibition is rabbinic law with mere support. The fence type does not belong to this concept of support. Maybe one could call it support, but there support would really mean only some mnemonic device or something like that. Support in this sense is support only with regard to substantive rabbinic prohibitions.

“There are of course also rabbinic laws”—I’ll finish the chapter—“that have no support at all in the text, where it was the Sages who expanded the boundary on their own judgment.” Yes, that is what we called ordinary rabbinic prohibitions, with no support at all—rabbinic enactments. By the way, according to what I’m saying here, and I think according to what he said too, every rabbinic prohibition that is substantive—even if no verse was brought for it—is basically a prohibition with support. Because the verse of the Torah prohibition is its support. Right? When you say it is forbidden to select food from waste, I don’t know of a verse they bring there as support, but it would belong to the category of support-type prohibitions because the prohibition of waste from food is the verse—or not a verse, the source—that serves as support for the prohibition of food from waste. Because the idea is there. In other words, the essence, the meaning of support, is not that there is a verse and I lean on it, but that it leans on the idea of Torah law. So one need not bring a verse for the thing to have the status of support. Okay?

Now he says here: “There are laws that do not even have support in the text.” That is really the fences we talked about before. “Rather, the Sages expanded the boundary on their own judgment.” Tosafot in Rosh Hashanah say there is a difference in force between a rabbinic law that has support in the text, such as tithing fruit of the tree, and a rabbinic law that has no support in the text. Because the tithe is only on grain, wine, and oil. So why do they bring grain, wine, and oil? Because tithing other tree fruits is only rabbinic law, but it has support—a verse is brought for it, and then they say this is not a full verse, it is support—as opposed to a rabbinic law with no support in the text, such as tithing vegetables.

“And this should be understood according to what was said: support is not a mere hint, not just some homiletical allusion, but an expression of the Torah’s intent. When there is a dispute among the Sages—one master holds we decree such-and-such, and another master holds we do not decree—this does not mean that they disagree about historical knowledge, about what some earlier court decreed, what exactly they decreed, whether they decreed this or not. Nor does it mean that so-and-so convened in his generation…” okay, that is already a separate sugya that should be discussed on its own. Maybe we shouldn’t rush into it. I’ll discuss that separately, maybe.