Mitzvot and Their Enumeration – Lesson 12

Table of Contents

• The interpretive principles of midrash and the interpreter’s reasoning
• Shimon HaAmsuni, Rabbi Akiva, and interpretations of “et”
• The origin of the interpretive principles and their development over the generations
• “Dynamic halakha given to Moses at Sinai” and the language of midrash
• An analogy to philosophy of science: Popper and Thomas Kuhn
• The relationship between plain meaning and midrash: the depth of the plain meaning versus parallel readings
• The example of “an eye for an eye” and combining the two readings
• Maimonides’ second root: what is not counted and why
• Creative interpretation and sustaining interpretation in Maimonides
• Halakha given to Moses at Sinai as “words of the Scribes” in the Commentary on the Mishnah to Kelim
• “One does not derive a warning from logical inference” and Maimonides’ introduction to the enumeration of the commandments
• The text’s conclusion about Maimonides and the continuation of the lecture

Summary

General Overview

The text presents an approach according to which the interpretive principles of midrash are textual triggers that activate an interpretation but do not determine its content. Therefore every midrash ultimately ends with the reasoning of the interpreter, and from that a “dynamic” understanding is built of halakha given to Moses at Sinai as a language transmitted from Sinai and only later generalized into rules. Out of this introduction, Maimonides’ second root in Sefer HaMitzvot is brought in: laws derived from the interpretive principles of midrash are not counted, and the text argues that Maimonides means this as a claim about halakhic validity and not merely as a classification rule. According to this presentation, Maimonides distinguishes between a sustaining interpretation, which grounds a received interpretation from Moses and is Torah-level, and a creative interpretation, which innovates a law not written in the text and is rabbinic. Nachmanides attacks this position and argues that it undermines many foundations of the Talmud.

The Interpretive Principles of Midrash and the Interpreter’s Reasoning

Midrash begins with a linguistic or textual trigger, such as the same word appearing in two places, but the decision about what to compare, in which direction to transfer, and to what extent to compare is determined by the interpreter’s reasoning. A verbal analogy requires decisions by the interpreter about the scope of the comparison and its direction, so reasoning is always involved in the final result. The assumption that a certain word comes to include something obligates the interpreter to choose what is being included, and that choice is not derived from the trigger itself but from interpretive judgment.

Shimon HaAmsuni, Rabbi Akiva, and Interpretations of “Et”

Shimon HaAmsuni interpreted every occurrence of “et” in the Torah, but stopped at the verse “You shall fear the Lord your God,” because he could not find what to include alongside fear of the Holy One, blessed be He. Rabbi Akiva proposes “to include Torah scholars” as a solution that realizes the trigger of “et,” even though it is conceptually difficult, and the passage remains a dispute among tannaitic sages rather than a conclusion forced by a simple explanation. The text explains that Shimon HaAmsuni understood that the method of inclusion from “et” is not a datum from Sinai that one cannot give up, and therefore one counterexample undermines the whole rule for him. Rabbi Akiva, by contrast, holds on to the rule and searches for the “least implausible” inclusion.

The Origin of the Interpretive Principles and Their Development Over the Generations

The Talmudic tradition attributes the interpretive principles of midrash to halakha given to Moses at Sinai, while many scholars see them as a later development, among other reasons because the number of principles increases from earlier generations to later ones. The text describes a sequence: in Temurah, Otniel ben Kenaz is credited with “a fortiori arguments and verbal analogies”; Hillel the Elder has seven principles; Rabbi Yishmael has thirteen; and Rabbi Eliezer son of Rabbi Yosei HaGelili has thirty-two. Beyond that, additional principles appear in the Talmud as well. The suggestion is that the principles are the product of retrospective refinement from existing interpretations that were preserved after widespread forgetting, and they solidify into rules only when one becomes distant from the source and needs a pedagogic “toolbox.”

“Dynamic Halakha Given to Moses at Sinai” and the Language of Midrash

The text proposes a model in which what was given at Sinai was the “language of midrash” itself, not a list of conceptualized rules, similar to a child learning a language without explicit grammatical rules. Moses our teacher hears plain meaning and interpretation on verses without being told terms such as general-and-particular or verbal analogy, and the later generations create the rules as a description of the language that already exists. Thus it is argued that there is no contradiction between saying that the source of interpretation is from Sinai and the fact that the conceptual formulations of the rules develop, because the language itself was given and the rules are a later human processing of it.

An Analogy to Philosophy of Science: Popper and Thomas Kuhn

The text compares the disagreement between Shimon HaAmsuni and Rabbi Akiva to the dispute in philosophy of science between Popper and Kuhn. Popper emphasizes that a theory cannot be proven, only refuted by a counterexample, and Shimon HaAmsuni behaves that way when he abandons a broad rule because of one problematic verse. Thomas Kuhn describes “normal” science, in which a strong theory is not abandoned because of a single anomaly, but instead prompts a search for a local explanation until a paradigmatic crisis arises. Rabbi Akiva is presented as someone who holds on to the rule of inclusion and interprets the exception in a strained way in order to preserve the framework.

The Relationship Between Plain Meaning and Midrash: The Depth of the Plain Meaning Versus Parallel Readings

One approach sees midrash as “the depth of the plain meaning,” born out of difficulties in the plain sense and the expansion of contexts, and therefore midrash is understood as a corrected and better-grounded plain meaning. The second approach sees plain meaning and midrash as two parallel planes that are not obligated to one another, and therefore there is no problem if the midrash does not fit the plain meaning. The text attributes this approach to the Vilna Gaon and cites the words of Rabbi Menashe of Ilya on “If there is anxiety in a man’s heart, let him suppress it / let him speak of it” as proof that the Torah allows two readings, and is sometimes written so that neither of them is “perfect,” in order to compel a double reading.

The Example of “An Eye for an Eye” and Combining the Two Readings

The text presents a difficulty for the approach that sees midrash as the depth of the plain meaning: if the intention is monetary payment, why was it not written “he shall pay money for an eye”? According to the approach of parallel readings, it is suggested that the two readings together create the Jewish law, so that the plain meaning requires an actual eye, while the midrash replaces this with monetary payment. From here one can understand an opinion in the Talmud that he pays “the value of my eye,” meaning the damager’s eye-value, as money in place of the eye that should have been taken. Thus it is argued that the Torah is written in a way that generates the halakhic result דווקא out of the combination of plain meaning and midrash, and not out of either one alone.

Maimonides’ Second Root: What Is Not Counted and Why

In the second root, Maimonides determines that it is not proper to count everything derived by one of the thirteen interpretive principles or by inclusion, and the text presents two ways to understand him: as a classification rule that does not impair Torah-level validity, or as an essential rule about the validity of the commandment. Nachmanides interprets Maimonides as claiming that laws derived from interpretations are rabbinic and therefore are not counted, while most commentators on Maimonides tried to explain him as speaking only about classification or source. The text argues that Nachmanides is correct in his reading of Maimonides, because Maimonides’ language explicitly connects interpretation with “rabbinic” when the sages did not explicitly declare that it is “the body of Torah” or “Torah-level.”

Creative Interpretation and Sustaining Interpretation in Maimonides

Maimonides divides between laws derived through the thirteen interpretive principles where there is dispute, and laws that are “interpretations received from Moses,” for which proof is brought through the interpretive principles because “the wisdom of the text” contains a hint to the received interpretation. Maimonides states that everything derived through the thirteen principles will be counted only if the sages themselves said that it is “the body of Torah” or “Torah-level,” and if they did not clarify this, “then it is rabbinic, for there is no scriptural text indicating it.” The text interprets this as a determination that Torah-level force depends on the law being written or anchored as a received interpretation, whereas a creative interpretation that is not declared Torah-level is considered rabbinic and does not enter the count of the commandments.

Halakha Given to Moses at Sinai as “Words of the Scribes” in the Commentary on the Mishnah to Kelim

The text cites Maimonides’ Commentary on the Mishnah in Kelim 17, where he quotes the Tosefta in Mikvaot about doubt concerning measures and rules that “anything whose essence is from the Torah, but whose measure is from the words of the Scribes, their doubtful cases are impure.” Maimonides explains there that “everything that was not explained in the language of the Torah is called words of the Scribes, even matters that are halakha given to Moses at Sinai,” and from this the text concludes that Maimonides uses the expression “words of the Scribes” to describe a status that is not explicitly written. The text argues that Maimonides distinguishes between a case where halakha given to Moses at Sinai interprets a written law, and therefore doubt is treated stringently, and halakha given to Moses at Sinai that is “creative,” which has no written root, and therefore doubt would tend toward leniency. From this it follows that for him the discussion concerns validity and not only the source of the wording.

“One Does Not Derive a Warning from Logical Inference” and Maimonides’ Introduction to the Enumeration of the Commandments

In the introduction printed in many editions at the end of the fourteenth root, Maimonides describes situations where there is a written punishment without an explicit warning, and the Talmud asks, “We have heard the punishment; from where do we know the warning?” in order to uphold the rule that “the text does not punish unless it first warned.” Maimonides states that when the punishment is explained in the Torah, one may derive the warning “by analogy from the Torah’s analogies,” and he interprets “one does not derive a warning from logical inference” as a general limitation on warnings learned from interpretations when there is no written punishment. The text concludes from this that according to Maimonides, a law learned only from interpretation does not receive Torah-level status that would obligate punishment, and only when the punishment is written can the warning learned through interpretation be strengthened so as to generate a full warning-and-punishment system.

The Text’s Conclusion about Maimonides and the Continuation of the Lecture

The text concludes that Maimonides sees creative interpretation and laws not explicitly written as a kind of “words of the Scribes” in the halakhic sense, and therefore he does not count them in the enumeration of the commandments; their doubtful cases are treated leniently, and one does not administer punishment for them. The text presents this as a direct continuation of the first root, which does not count rabbinic commandments, and adds that the second root introduces that there are additional laws with rabbinic status that are not enactments and decrees, but rather arise from creative interpretation or from halakha given to Moses at Sinai that is not anchored in the written text. The text stops at this point and announces that the discussion will continue next time.

Okay, last time we started talking a bit about the hermeneutical principles, with the ultimate goal of getting to Maimonides’ principle in the second root: that laws derived through the hermeneutical principles are not included in the count of the commandments. We’re dealing with the commandments and their enumeration, so now I want to talk a bit about midrash. But behind this statement of Maimonides there’s a more general conception, and it has various implications, and I want to say a little about that. So last time I began describing the hermeneutical principles themselves and looking at how midrash actually works. And the claim was that midrash always ends with the interpreter’s reasoning. Meaning, the various hermeneutical principles are a trigger in the text that tells me to make a derivation. For example, there’s an identical word in two scriptural contexts, so the hermeneutical principle of gezerah shavah tells me to make a comparison between the two places—that is, to take the laws that apply here and say that they apply there as well. So those two words are basically a hint or a trigger to make a gezerah shavah derivation between the two places. But once I’ve reached the conclusion that I need to make a gezerah shavah, that still doesn’t tell me what to do with it. In what respect do I make the comparison? Do I equate them in every respect? Only in some respects? Do I transfer from here to there, or דווקא from there to here? Which side do I compare to which? All those things are determined by the interpreter’s reasoning. So in the end, the interpreter’s reasoning is always involved in midrash. The hermeneutical principles only say: here, make a derivation. But which derivation to make, how to choose the derivation—that is given over to the interpreter’s judgment. We saw an example of this in the Talmud in Pesachim: “You shall fear the Lord your God.” Shimon HaAmsuni would expound every occurrence of the word “et” in the Torah, and when he reached the verse “You shall fear the Lord your God,” he basically abandoned the whole method of including something through the word “et.” Then Rabbi Akiva came and said: “You shall fear the Lord your God”—to include Torah scholars. We saw there in the passage that this remained a dispute among the tannaim. It’s not that Rabbi Akiva explained it to him and then he understood. No—he remained with his own view. There’s a tannaitic dispute here. And what lies behind it? The claim is that the text says “et,” and the assumption is that “et” comes to include something. But what exactly is included—that is of course the interpreter’s decision. In every place you can say, “Honor your father and your mother”—to include your stepfather, or your father’s wife, or your older brother, and so on. But what are you including from “You shall fear the Lord your God”? You’re supposed to include something else that you must fear like the Holy One, blessed be He, and that seems impossible. So Shimon HaAmsuni says: fine, this is where we get stuck. This can’t be right. What bothered him was this: he had the trigger for interpretation—the word “et” is there—so I say this necessarily means I have to include something. But reason gave him no way out: what can I include? There was nothing to include. He got stuck on the reasoning. The trigger exists. Then Rabbi Akiva said to him: yes, but the trigger exists—what are you going to do with it? There’s no choice but to take what is least implausible. “You shall fear the Lord your God”—to include Torah scholars. True, nothing can really be compared to the Holy One, blessed be He. But if we are compelled by the text to compare something else to the Holy One, blessed be He, then we’ll take what is least implausible, namely Torah scholars. So that was the first point we saw. Beyond that—I think I spoke about this, I don’t remember anymore—what does it mean that Shimon HaAmsuni thought of giving up all the “et” interpretations? After all, the hermeneutical principles are a law given to Moses at Sinai. Did I talk a bit about a dynamic law given to Moses at Sinai? I don’t remember if I spoke about that. Yes? Then I’ll say briefly: why did Shimon HaAmsuni want to give up the interpretations based on “et”? What do you mean—this is one of the hermeneutical principles. These are hermeneutical principles. Not among Rabbi Ishmael’s principles—it doesn’t appear in his thirteen principles—but it is one of Rabbi Akiva’s hermeneutical principles. Rabbi Akiva includes things from the word “et.” Fine. So if there’s an assumption that things are included through the word “et,” then you have to include something. What do you mean, abandon all the inclusions? It could be that here you didn’t find anything, so remain with the matter unresolved regarding “You shall fear the Lord your God.” But why in the world abandon all the interpretations based on “et” that he had made until now? As he says there: just as I received reward for the interpretation, so I will receive reward for withdrawing from it. Clearly, from his perspective there is no datum received from Sinai that one must include from the word “et.” If that were a datum, you couldn’t just throw it away. Rather, what was it? It was the result of reconstruction. And I said there is a dispute between scholars of the Talmud—yes, of Jewish law, of the Talmud—and the Talmudic tradition itself regarding the origin of the hermeneutical principles. The tradition we have says that the hermeneutical principles are a law given to Moses at Sinai. Everyone agrees with that, and I’m speaking about halakhic midrash. Among scholars, almost everyone agrees that they are not. It’s a later development. There are even comparisons to ancient Near Eastern cultures; one can see some somewhat similar things there, very little in my opinion, but there are a few points here and there. And beyond that, one can also see that the number of principles grows over the generations. Right? We start with Othniel son of Kenaz. The Talmud in Temurah says these were kal va-chomer arguments and gezerah shavah. That’s apparently two principles. Then with Hillel the Elder there were seven principles. Rabbi Ishmael had thirteen principles. And Rabbi Eliezer son of Rabbi Yosei the Galilean already had thirty-two principles. And in the Talmud itself there are more principles that don’t even appear in Rabbi Eliezer son of Rabbi Yosei the Galilean’s list. So the number of principles swells as the generations pass. What does that mean? Apparently that it developed later; it’s not a law given to Moses at Sinai. A law given to Moses at Sinai is supposed to be fixed, right? What we received is what we pass on. How do new principles suddenly arise if they didn’t exist in earlier generations? Apparently the principles are a later development and not a law given to Moses at Sinai. In other words, there are several good indications in favor of the scholars and against what is accepted in tradition. So I explained that if we begin with the Talmud in Temurah, it says that during the mourning period for Moses, 1,700 kal va-chomer arguments and gezerah shavah derivations were forgotten, until Othniel son of Kenaz restored them through his analysis. Even laws given to Moses at Sinai were forgotten, but Othniel son of Kenaz restored the kal va-chomer arguments and gezerah shavah derivations through his analysis. What does that mean? So I suggested a possible explanation of what happened there with Othniel son of Kenaz. The claim was that he essentially carried out a kind of scientific reconstruction. What does that mean? He took the derivations that people still remembered after the mourning period for Moses. For forty days they didn’t study Torah; the entire Oral Torah was unwritten, so naturally a lot was forgotten. But some of it wasn’t forgotten. Some remained. You look at what remained and try to understand or extract from it the interpretive principles that led to it. Suddenly you see that in several places there is an obligation to include, say, the firstborn brother, or one’s father’s wife, or one’s stepfather—where did that come from? We don’t know. So someone proposed: maybe it comes from the word “et.” It says, “Honor your father and your mother,” so those are included from the word “et.” And then that means there’s a rule that one must always include something from the word “et.” Wow, so we found one hermeneutical principle. Now we have to test it on other laws that existed there. If it works, then we’ve confirmed that there is such a hermeneutical principle. You see—like observations that confirm a scientific law. We make an observation here, an observation there, until we confirm our scientific generalization. So here too, Othniel son of Kenaz essentially did a kind of scientific work: he took the laws derived by midrash that remained and tried to extract hermeneutical principles from them. And that’s how they continued throughout history, extracting more and more hermeneutical principles, until the ever-growing lists emerged, up to Rabbi Eliezer son of Rabbi Yosei the Galilean with thirty-two principles, and so on. In other words, this whole thing probably worked like this: when Moses ascended on high, the Holy One, blessed be He, studied with him as a study partner. He read a verse, explained the plain meaning, and explained the interpretive meaning. But He didn’t say, this is a general-and-particular rule, this is a gezerah shavah, this is a binyan av—He didn’t call them by names. Rather, just as a child learns a language at home, nobody tells him about beged kefet letters at the beginning of a word, subject and predicate. They speak to him, and slowly he gets used to how people speak correctly; he learns how to speak properly. So too in the world of midrash. I’m saying—and this is an imaginative reconstruction, just to explain the principle—Moses essentially heard from the Holy One, blessed be He, the language of midrash. He read the verses and the Holy One, blessed be He, spoke with him in the language of midrash. He says to him: “You shall fear the Lord your God”—the plain meaning is to fear the Holy One, blessed be He; the interpretive meaning is to fear Torah scholars. He doesn’t say it’s because of the word “et.” He says: “You shall fear the Lord your God”—plain meaning, fear the Holy One, blessed be He; interpretive meaning, fear Torah scholars. Then they move on to another verse: “Honor your father and your mother,” and so on. So with all the verses, the Holy One, blessed be He, is essentially reading with him on the level of plain meaning and on the level of interpretation, but He isn’t giving him rules, the grammatical rules. Just as in language, the grammatical rules are conceptualized and created only after the fact. After the language exists, linguists and language scholars come along and try to understand what the rules are that stand behind our speech. The rules are generated after the fact. Rules do not exist in a language from the moment of its birth. The same thing here. The language of midrash is transmitted from generation to generation. To the extent that we are no longer native speakers—right, we didn’t absorb this in our parents’ home—then we need rules to help us learn it, like grammar. Someone who immigrates to Israel at an older age learns in ulpan through all kinds of grammatical rules. A child isn’t taught that way. A child is simply spoken to. In other words, someone who learns this language from home in childhood learns it naturally, and understands naturally how to speak it correctly. But someone who doesn’t, someone who comes later in life, needs it explained through rules, needs rules. But to explain it through rules, one first has to create the rules. A child can’t tell you according to what rules he speaks. So there were people who tried to generate rules by observing the speaking patterns of the community. They extracted rules, and that way we can also teach adults. That is exactly what happened in the world of midrash. It was given as a language to Moses. Little by little it passed from generation to generation. The farther we got from the source, the less we were native speakers. We were essentially in ulpan, right? We were trying to learn the language of midrash as adults. We had no natural feel for how to speak it correctly. And therefore we needed to use rules. We generated rules from the derivations we knew, trying to understand what rules stood behind them. And that is how the whole world of the hermeneutical principles came into being. That is also why more and more rules kept being added. So is it a law given to Moses at Sinai or not? The answer is yes: it is a law given to Moses at Sinai, even though it develops over the generations. It is a dynamic law given to Moses at Sinai. What does that mean? The language is a law given to Moses at Sinai. The conceptualizations and rules that we create—we created them—but we created them as descriptions of the language we received. In other words, at root it is a law given to Moses at Sinai; it’s just that we conceptualize it and formulate it and turn it into toolkits—the hermeneutical principles. So there is no contradiction between the claim that this is a law given to Moses at Sinai and the claim that it develops over the generations—the scholars and the tradition, right? They are two sides of the same coin, provided that we accept the idea of a dynamic tradition, or a dynamic law given to Moses at Sinai. A law given to Moses at Sinai doesn’t simply pass through an empty pipe. It is transmitted, but the transmitters create concepts, interpretations, understandings, and that gets planted into the law given to Moses at Sinai. Okay? So the whole story is a law given to Moses at Sinai, and still it develops over the generations. That is probably the reason Shimon HaAmsuni expounded all the occurrences of “et”—because it fit several derivations he saw. Suddenly he encountered a counterexample: “You shall fear the Lord your God.” He didn’t know what to include. Fine, so apparently I missed something, and this isn’t the correct rule. One should not include from “et”; one has to look for different rules. And therefore he gave up on the inclusions from “et.” Then Rabbi Akiva said to him: no, no—if it works well, don’t give it up. Then apparently one has to include Torah scholars, despite all the difficulties with that. And I mentioned—I think—that this is similar to a dispute in the philosophy of science, because this process is a scientific one. In the philosophy of science there’s a similar dispute. Popper says that a scientific theory cannot be proved. “All ravens are black”—you can’t prove that. How are you going to see all ravens? How do you know you’ve seen all ravens? You can’t prove it. What you can do is falsify it. Take a raven and check. If it’s black, excellent—you confirmed the theory, or at least didn’t refute it. But if it’s pink, then the theory has fallen. A single counterexample and the theory falls. Then Thomas Kuhn—a sociologist and philosopher of science—came and said that in practice science doesn’t work that way. In practice, if I have a good theory—say gravitation—the theory of gravitation works wonderfully, explains a huge number of phenomena, we constantly see it working around us. It’s a very strong and solid theory. Now suppose we found some kind of object that doesn’t fall to the earth, just remains suspended in the air. An airplane, okay? Someone sees an airplane and doesn’t know anything. Here is an object with mass that doesn’t fall to earth. That contradicts the law of gravitation. Conclusion: we have to throw out the law of gravitation. That is exactly what Shimon HaAmsuni says. I have a counterexample: “You shall fear the Lord your God.” There’s no way to include from the word “et,” so that’s an example that refutes the theory. The theory that “et” comes to include has fallen; there’s a counterexample. That’s true in mathematics. In science it doesn’t work that way. And that is what Rabbi Akiva said to him. Rabbi Akiva said: listen, “et” works well. This rule that “et” comes to include works well; we have many examples. Like gravitation. So if you see an airplane that doesn’t fall to the earth, look for an explanation. There is probably an explanation for why the law of gravitation, though true, does not operate on airplanes for some reason. But don’t throw out the law of gravitation itself. And that depends on how much confidence you have in the law of gravitation. If you have strong confidence in it, then isolated counterexamples won’t bother you. When will you replace the theory despite your strong confidence in it? When there are enough counterexamples; it passes some threshold you’re no longer willing to live with. Then you change paradigms; that’s what Kuhn calls a paradigmatic crisis. But if I have one counterexample, or a few isolated counterexamples, and I have countless phenomena that I can explain with the theory, then I won’t give up the theory because of the counterexamples. So I’ll find an explanation—even a somewhat forced one—for the contrary findings, but I’ll leave the theory standing. And that is basically what Rabbi Akiva says to Shimon HaAmsuni. He says: the theory that one should include from the word “et” works extremely well. We have many good examples that it explains. I wouldn’t throw it out because of one counterexample. You have one counterexample—“You shall fear the Lord your God”—there’s nothing to include. Since the theory is very well established, I say: fine, then apparently we have to include Torah scholars, despite all the difficulties involved in comparing anything to the Holy One, blessed be He. Yes, it is hard to include anything here. But because I have great confidence in this theory that “et” comes to include, I nevertheless include something. This is exactly Kuhn’s dispute with Popper. In any event, to return to our topic: up to this point I’ve basically described the way the hermeneutical principles developed and how they work. Okay, so essentially we have two modes of reading verses: the plain-sense reading and the interpretive reading. What is the relation between them? I’m still continuing the introduction to the hermeneutical principles—what is the relation between them? Here opinions divide. There are views that say that the interpretive reading is the depth of the plain meaning. What does that mean? When you read the verse and explain it literally, that seems to you to be the plain meaning. But when you check the contexts elsewhere, comparisons, difficulties, the structure of verses, and so on, you come to understand that there are problems with the plain meaning. Then you propose an alternative plain meaning. And therefore the interpretive reading is really the plain meaning when you take broader considerations into account, not just the local explanation of the words. The local explanation of the words is what we call the plain meaning—the simple interpretation of the words of the verse. But the interpretive reading is really the true plain meaning, it is the depth of the plain meaning, because the simple explanation doesn’t fit with various other contexts. So the interpretive reading is the depth of the plain meaning. That is one approach, and it is common among the apologetic commentators on the Torah, who come to defend the interpretive reading, because it often seems strange. When they come to defend it, they basically show or anchor it within the biblical text. They try to show that if you take a broader look, then you’ll see that the interpretive reading makes sense. The interpretive reading is somehow in the verses, but you need to look more broadly. It seems to me that this is the common approach, say, among Torah students in Gush. Yes, one can say that in general terms. When people study Torah in Gush, I often see attempts to explain the midrashim the Sages made on verses in terms of plain-sense considerations. Look, the plain meaning as it appears to you doesn’t really fit. There’s a difficulty from here and a difficulty from there, compare this and compare that, and you’ll see: the plain meaning doesn’t really work, and suddenly you see that when the Sages interpreted a verse, it wasn’t detached from the text. There is something here that can be shown to emerge from the text itself. That’s the depth of the plain meaning. That’s one approach. A second approach basically says that these are two parallel interpretations. Two parallel interpretations, meaning: when you read the verse, you read it by way of interpretation and you read it by way of plain meaning, and these are two different readings, neither one obligated to the other. And on that view, there is no need at all to force the interpretive reading into the text, as I noted that they do, say, in Gush. There is no need to do that. Why? Because they assume that the interpretive reading is the depth of the plain meaning, so you need to show how it emerges from the text. But if you understand that the interpretive reading is an alternative mode of reading, then it doesn’t have to emerge from the plain meaning of the text. The plain meaning of the text is the plain meaning. The interpretive reading doesn’t claim to offer a substitute for the plain meaning; rather it is an additional plane. And that plane is another way to read. Every text is written in such a way that it can be read simultaneously on several planes—plain meaning, hint, interpretation, and secret—and each of those can also branch into multiple readings. But since there are several planes of reading, each operates according to its own rules. It functions on its own. No, there’s no point objecting to the interpretive reading because it doesn’t fit the plain meaning. Of course it doesn’t fit the plain meaning. If it fit the plain meaning, it would be the plain meaning. There are two different ways of reading, and therefore there is no need to challenge one from the other. This approach is essentially the Vilna Gaon’s approach. He writes this in a number of places. Rabbi Menashe of Ilya, his student, in Binat Mikra—he has a book called Binat Mikra, if I remember correctly, on the Masorah—and there in the introduction he brings the example: “If there is anxiety in a man’s heart, let him…” Did I talk about this? I’m not… yes, “let him speak of it” or “let him suppress it,” so there are two ways of reading the verse—plain meaning and interpretation. Suddenly I think I did talk about this, right? There are two different ways of reading the verse there, one with a shin pronounced one way and one the other way: yasichena or yashchena. And he shows that neither of those readings fits the verse well—not what we call interpretation and not what we call plain meaning. Yasichena, “let him speak of it,” is the plain meaning, and yashchena, “let him suppress/bow it down,” is the interpretive reading. Okay? Neither of them fits the verse well. But he says that’s perfectly fine; it’s not difficult at all. Why? Because if the plain meaning fit the verse completely, we would not need interpretation. But if the interpretive reading fit the verse completely, then there would be no need for the plain meaning; the interpretive reading would simply be the plain meaning. Therefore, if the Torah wants to hint to us in the verse that we should read it in both ways, both interpretively and according to the plain meaning, it has to write it in such a way that neither of the two readings is perfect. Right? Think, for example, about “an eye for an eye”—money. Okay? Let’s say I’ve been convinced that the interpretive reading is the depth of the plain meaning. And from general considerations I conclude that “an eye for an eye” does not mean gouging out an eye but paying money. Suppose I’m convinced. Fine. Someone from Gush comes and convinces me that that’s really how one should read the plain meaning of the text. There would still remain the question: then why didn’t the Torah write that? Fine, in truth and in a certain sense it can’t be interpreted literally and one has to interpret it that way. But then why not write it in a way that wouldn’t require all this in order to understand it? Let it say: he shall pay money for an eye. What’s the problem? Is it impossible to write that? Why write “an eye for an eye” and leave me with a gezerah shavah of “for” and “for” so that I infer that it means money? If you understand that the interpretive reading is the depth of the plain meaning, you have to realize that while it sounds very attractive to say that the interpretive reading is the depth of the plain meaning, in the end it leaves a very great difficulty. So why is the plain meaning written as it is, and why didn’t they write the interpretive reading as the plain meaning? Let them write directly what they mean if that is what they intend. Why write one thing and intend me to interpret it in another way? There’s no logic in that. Why do it that way? Why act that way? Therefore the Vilna Gaon says: one has to say that it was written this way intentionally, to tell you that you must read the verse in both ways together—both interpretively and according to the plain meaning. For example, with “an eye for an eye,” from an article by Anker in HaMa’ayan 77, he suggests the following. There is a dispute in the Talmud regarding “an eye for an eye”—we pay money. There is a dispute in the Talmud how much I pay if, say, I put out someone’s eye. One opinion says I pay the value of his eye, the injured party’s. Another opinion says I pay the value of my own eye. And what is the logic of the second opinion? You injured him, so compensate him for what you did to him. Pay him the value of his eye. Why should you pay the value of your own eye? Clearly, when they say that you pay the value of your own eye, they mean that the money is not compensation to the injured party but a substitute or expiation for the removal of my eye. Instead of taking out my eye, they take my money. How much money? The value of my eye. If so, then look what happens. If the Torah had written “an eye for an eye” and there were no interpretive tradition, what would we understand? They gouge out the eye, right? If the Torah had written “he shall pay money for an eye,” we would say money, right? The injured party’s eye, right? Pay for the eye you took out. How can the Torah write that I should pay the value of the aggressor’s eye? So it writes it in a way that allows two readings. On the simple reading, they gouge out an eye. If I took out an eye, they take out my eye. On the interpretive reading, not an eye but money. But when I take both readings together, what comes out is this: really they should take out my eye, but instead of taking out my eye, I pay money in place of my eye. Therefore what I pay is the value of my own eye, not the value of the injured party’s eye. That is the result of the fact that we read the Torah both according to the plain meaning and according to the interpretive reading together. Those two readings together create the halakhic conclusion. And that is what the Vilna Gaon says: the interpretive reading and the plain meaning are two forms of reading, neither one obligated to the other. There is no point objecting to the interpretive reading because it doesn’t fit the plain meaning, because it operates under different rules—gezerah shavah, or general and particular, or things of that sort. But in the end I have both conclusions, the plain-sense conclusion and the interpretive conclusion, and I have to take them both together in order to produce the Jewish law. Good. So up to this point this is a general introduction to the world of interpretation. Now I want to enter Maimonides’ second root. Okay, so we’re looking at Maimonides’ second root—you see it, right? The second root—Maimonides’ roots are the principles for counting the commandments. We already discussed that when I spoke about the first root. The second root is: it is not proper to count everything that is learned through one of the thirteen principles by which the Torah is interpreted, or through inclusion. So Maimonides says that if there is a law that emerges from one of the hermeneutical principles, it is not included in the count of the commandments. Okay? Now what does “the thirteen principles by which the Torah is interpreted, or through inclusion” mean? It means all the hermeneutical principles. “Inclusion” is simply Rabbi Akiva’s form of interpretation; “thirteen principles” are Rabbi Ishmael’s. We said there are disputes between the school of Rabbi Akiva and the school of Rabbi Ishmael about how to interpret. So Maimonides says, never mind, in order not to get into all those issues: no—everything that emerges from the world of interpretation is not included in the count of the commandments. You don’t put it into the count of the commandments. Now why not? Before we get to the explanation, in principle there could be two directions for understanding this statement of Maimonides. I think I talked about this, and if not I’ll say it now. Among Maimonides’ roots—that is, the rules for counting the commandments—there are several types, or at least two principal types for our purposes. One type is principles that concern the authority or status of the commandment. For example, a rabbinic commandment is not counted because its authority is not Torah-level. Okay? Something that is merely the reason for a commandment is not counted because it is not a Torah law; it is only an explanation for a Torah law. Like Maimonides, like the Talmud, which says concerning the king: “He shall not multiply wives for himself, lest his heart turn away.” “He shall not multiply wives for himself” is the prohibition, and “lest his heart turn away” is the explanation. So we do not count “lest his heart turn away.” Why not? Because it is not a commandment; it is just the explanation of the commandment. There is a certain type of root that addresses the force or status of the commandment—whether there is a commandment here or not. There is another type of root, which is classificatory. For example, when I have the commandment to take the four species on Sukkot—lulav, etrog, myrtle, and willow—how many commandments is that? Four or one? The counters of commandments count it as one commandment, even though we are in fact commanded here about four things. But for various reasons—never mind what they are right now—Maimonides establishes in the eleventh root that the four species are one commandment. Is this connected to the authority of those commandments? No. It is obvious that the obligation to take an etrog, or lulav, myrtle, and willow, is Torah-level. The fact that I don’t count this in the count of the commandments is not because these are not Torah commandments. It’s only a question of classification. Because these four commandments are really details of one general commandment. But it’s not because their authority is somehow lacking, or because there is no commandment here. There certainly is a commandment here. I just don’t count four commandments here, but one, because there is a classificatory rule. When I classify the commandments, these four are classified as one commandment and not four. And not because they aren’t commandments. It’s not like rabbinic commandments, which are not counted because they really are not commandments in the 613. Here they are completely commandments; they are just not counted because of classification. Or when there is—or when there is… fine, that already depends on a dispute. Never mind; this example is enough. So how should we understand this root? One could understand that, say, from “You shall fear the Lord your God”—to include Torah scholars—that comes from interpretation, right? From inclusion through the word “et.” Is reverence for Torah scholars counted among the commandments? According to Maimonides, no, right? Because he himself brings this example, as we’ll soon see. Why not? Because it comes from interpretation. What does it mean that it isn’t counted? That it is not a Torah-level commandment? That it is a rabbinic commandment that is not counted among the commandments? Or that it isn’t counted because it is a detail within the commandment of fear of God? “You shall fear the Lord your God” is one commandment that is counted—fear of God. But from the word “et” we include reverence for Torah scholars. So it could be that we don’t count it not because it isn’t Torah-level, but because it is a detail within the commandment of fear of God. Included within that is also the commandment of reverence for Torah scholars, and therefore it isn’t counted. That’s a big difference. The question is whether reverence for Torah scholars is a Torah law that simply isn’t counted because of a classificatory rule—when we classify the commandments, it is simply included within another commandment, but it is a full Torah law—or else I don’t count it because it is not a Torah law. What does Maimonides mean here when he says that laws derived from interpretations are not counted? On this issue Maimonides’ commentators are divided. Nachmanides, as we will soon see, understood Maimonides to mean here a principle based on the authority of the commandment, not a classificatory principle. Laws derived from interpretation are rabbinic laws according to Maimonides, and therefore they are not counted—just as in the first root we saw that rabbinic laws are not included in the count of the commandments. The second root says that laws derived from interpretation are also rabbinic laws, and therefore they are not included in the count of the commandments. Most of Maimonides’ commentators disagree with Nachmanides, because of various difficulties, and they argue that Maimonides intended here a classificatory root, not an essential root. Meaning, laws derived from interpretation are Torah-level laws in every respect. Why then aren’t they counted? Because they are included within another commandment, or because—because they are laws that don’t have an explicit source in the written text. Even though they are Torah-level, since they don’t have a clear source in the text, they are not counted among the commandments. And that is still a Torah law. That is how the Tashbetz understood Maimonides, and almost all Maimonides commentators after him follow that path. That is the standard way of interpreting Maimonides. But I don’t think that can be right. I think Nachmanides is correct in understanding Maimonides, and I’ll put it more sharply—maybe before I get more deeply into Maimonides’ own words. The question that arises here is basically this: does what Maimonides establishes here concern the question of authority or the question of source? Right? When Maimonides says that these commandments aren’t counted, is that because they don’t have Torah-level authority and therefore cannot be counted, or because their source is interpretive—even though they are Torah-level, we still don’t count them? Then it depends on the question of source. One has to understand that the question whether something is counted or not counted among the commandments is not necessarily a question with practical legal ramifications. For example, the four species—what difference does it make whether I count them as one commandment or as four? Each one is still a Torah obligation. It’s only, in terms of classification, four details of one commandment rather than four distinct commandments. So what? In the end this is a Torah commandment. In other words, the question whether something is included in the count of the commandments or not is not necessarily one that affects practical law, and does not necessarily have legal implications. Therefore, most Maimonides commentators indeed say—those who follow the Tashbetz—that Maimonides does not mean to say anything halakhic here. The fact that he does not count these commandments is not because of some halakhic problem. They are Torah commandments in every respect, their authority is exactly like that of other Torah commandments, but he has some classificatory rule saying that something not written in the Torah but derived by interpretation is not included in the count of the commandments. Why? Just because. But that is the claim; and then the question is really one of source and not one of authority. Okay, so that is basically the dispute among the commentators on Maimonides. Let’s now read Maimonides inside. “We already explained in the opening of our work, in the Commentary on the Mishnah, that most of the laws of the Torah are derived through the thirteen principles by which the Torah is interpreted, and that a law derived through one of those principles—sometimes disagreement will arise about it. And there are laws that are interpretations received from Moses; there is no disagreement about them, but they bring proof for them by means of one of the thirteen principles, because it is part of the wisdom of the text that it is possible to find in it a hint indicating that received interpretation, or an inference indicating it. And we already explained this matter there.” In the introduction to the Commentary on the Mishnah, Maimonides divides the laws into five types. There are laws written in the Torah. There are laws derived by interpretation, not explicitly written in the Torah. There are laws for which we have a tradition, but we also find an interpretation that anchors those laws—this is called supportive interpretation. The previous category is creative interpretation—interpretation that created a new law we didn’t know before. The third category is supportive interpretation: a law we already knew beforehand, but for which we found an anchor in the text. That is what he says: “because it is part of the wisdom of the text that it is possible to find in it a hint indicating that received interpretation.” So I received this law by tradition—it didn’t come from interpretation—but I found an interpretation that anchors that law I already knew. Okay? That is called supportive interpretation. Then there is, again, something explicitly written in the Torah; there is creative interpretation, a law generated by interpretation; there is supportive interpretation, meaning a tradition that reaches us but also has an interpretive anchor; there are laws given to Moses at Sinai, which are laws transmitted by tradition without any interpretation attached to them; and there are rabbinic laws—ordinances, decrees, customs, and the like—rabbinic enactments. Now, I already said this when I discussed the previous root, about rabbinic laws. I said that the Sages have a role both in creating rabbinic laws and in creating Torah laws. In both categories the Sages have a role. What is the difference between rabbinic laws and Torah laws? In rabbinic laws the Sages function as legislators. They legislate a new law: it is forbidden to eat poultry with milk. The Torah forbids meat and milk; the Sages forbid poultry with milk as well. That is legislation. That is a rabbinic law. When the Sages function as interpreters, the product is a Torah law. The Sages say, I don’t know, “You shall fear the Lord your God,” so this apparently comes to include Torah scholars. So the accepted approach—we’ll still see Maimonides, but the accepted approach—is that this is a Torah law. Why? Because the Sages merely interpreted what is written in the Torah, but in the end what they say is written in the Torah. The verse “Do not turn aside” tells us that the Sages have authority both to legislate and to interpret. They can do both, and we are supposed to accept both their legislation and their interpretation. Fine? But there is a difference. When they legislate, it has no connection to the written text. They have authority to add new laws; there is no “do not add” problem here. Those laws will be rabbinic laws, and we discussed that in previous classes. When they interpret, they have authority to interpret, and authority to interpret means that what they interpret is, for us, what appears in the verse. They interpreted the verse for us. Which means that from our standpoint the Torah said it, not the Sages. And therefore it is a Torah law, not a rabbinic law—even though it was generated by the Sages. The law generated by the Sages is in fact a Torah law because when the Sages generated it, they did so through a process of interpretation, not legislation. Okay? That is the difference between Torah law and rabbinic law. So note carefully: what is the difference between, say, the ordinance forbidding poultry with milk—which is a rabbinic decree—and the ordinance to light Hanukkah candles, which is an enactment, on the one hand, and “You shall fear the Lord your God”—to include Torah scholars, on the other? The difference is whether there is an anchor in a verse, right? Are the Sages legislating or interpreting? “You shall fear the Lord your God”—to include Torah scholars—is an interpretation of the word “et,” an interpretive reading of the word “et.” Therefore the product will be a Torah law. The product is connected to the text. In legislation, when the Sages say not to eat poultry with milk, there is no anchor for that in the text—neither in interpretation nor in plain-sense reading. The Sages decided that this is proper, and they have authority to establish that law. Now we saw that even in a law derived from interpretation, the interpreter’s reasoning is involved. Right—we saw that. “You shall fear the Lord your God”—why not include pigeons? Why include Torah scholars? Reason says that if I am including something in addition to the Holy One, blessed be He, then Torah scholars are more plausible—or less implausible—than pigeons. So reason enters here. But notice: reason plays a completely different role in interpretation and in rabbinic law. In rabbinic law, the whole thing rests on reason. My reason tells me that one should forbid poultry with milk, because otherwise people will come to eat meat with milk. On the basis of that reasoning, I decide that it is forbidden to eat poultry with milk. Reason created the law. In interpretation it isn’t like that. What created the interpretation was the biblical trigger. It says “et,” I have a rule, a hermeneutical principle, that “et” comes to include. Now reason comes and says: what should it include? Apparently Torah scholars. Now let’s say that if you were to ask me independently of the verses and everything else—if you asked Rabbi Akiva: tell me, in your opinion is it proper to fear Torah scholars? What do you think he would answer? That no, one should not. That’s idolatry. One should fear only the Holy One, blessed be He, not Torah scholars. What forced Rabbi Akiva to adopt this interpretation was the word “et” that appears in the verse. And there is a rule that the word “et” comes to include. So that forced Rabbi Akiva to search for an interpretation, and that search was carried out with the help of reasoning. He searches: what does reason say is the most plausible thing to include? But that does not mean that this reasoning says the resulting law is a sensible law in my view, something I would also establish on my own. No. The reasoning simply says that if one must include and there is no choice, then Torah scholars are the most plausible among the available options. But that does not mean that if you had asked Rabbi Akiva whether it would be appropriate to establish a rabbinic law to fear Torah scholars, he would have said yes. No, quite the opposite—he would have said no, because that’s idolatry; fear should be directed only toward the Holy One, blessed be He. Therefore there is a great difference between legislation and interpretation. In both cases reasoning is involved, but in interpretation the reasoning is reasoning that helps me understand what the text says. It is not reasoning that tells me: this is right in my eyes. It is interpretive reasoning. It is reasoning that tells me what the text most plausibly means. In the end, once I have interpreted it, then for me that is what the text says, and therefore it is a Torah law, because the text says it. By contrast, the reasoning behind poultry with milk is not interpretive reasoning. It is not reasoning that I use to interpret some verse; I’m not interpreting any verse. It is reasoning on which the law itself rests. I prohibit eating poultry with milk because it seems logical to me that eating poultry with milk should be forbidden. The reasoning creates the law; it is not interpretive reasoning, it is reasoning in the law itself. The reasoning of a rabbinic law says: the law seems sensible to me. The reasoning of interpretation says: the interpretation seems sensible to me—not necessarily the law, but it seems plausible to me that this is what the verse means. Does it seem sensible to me in the sense that I would establish it even without the verse? Absolutely not, not necessarily at all. And “et” comes to include. Include what? Reason tells us what to include. In principle, always. “Your father and your mother”—“et” comes to include. It includes your older brother, your father’s wife, your stepfather. Every “et” there comes to include. And “You shall fear the Lord your God” comes to include Torah scholars. But we do not have interpretations for every occurrence of “et” in the Torah. It could be that they were lost to us; I don’t know. But in principle, every word “et” requires inclusion. Yes. So in all these places there is reasoning, but reasoning plays a different role. Maybe I’ll just complete the picture. Beyond Maimonides’ five categories, there are those who divide rabbinic laws into enactments and decrees, safeguards, so there are also subcategories within rabbinic laws. Beyond that, there are also laws whose basis is reason. But here too, if the reasoning is interpretive reasoning, then it appears in Maimonides under the category of laws written in the Torah. If the reasoning does not interpret what is written in the Torah but stands on its own, then it is an independent law. Now here there are those who want to claim that a law based on reason is also Torah-level, because the Talmud says, “Why do I need a verse? It is reason.” In other words, we see that reason and a verse are equivalent sources. So if I have a law that comes from reason, that is basically like a law for which I have a verse—a Torah law. But simply speaking, that is not so. “Why do I need a verse? It is reason” is said when you are dealing with interpretation. I would naturally interpret the given law in this way, so I don’t need an interpretation or another source to tell me that this is the correct interpretation. That is the meaning of “Why do I need a verse? It is reason.” But if there is a new law that reason created, then I won’t say “Why do I need a verse? It is reason.” If there is a verse, it is Torah-level. If there is reason, it is not Torah-level. Fine. In any event, those are the legal categories. I return, yes, to the categories of the types of laws that exist generally. Now Maimonides—I return to the passage we read just now—Maimonides says: “We explained in the opening of our work, in the Commentary on the Mishnah…” There he listed all these categories, and he said that most of the laws of the Torah emerge through the thirteen principles by which the Torah is interpreted. But the laws that emerge from interpretation are divided into two. There are laws that emerge from interpretation over which disagreement arose: some interpret this way, others that way, others not at all. Those are laws of creative interpretation. And when interpretation creates a new law, if someone else disagrees with the interpretation, then he will not agree with the law created here. But there are laws that are interpretations received from Moses at Sinai, and afterward we find an interpretation that anchors them in the text. Say there were a tradition that one must fear Torah scholars, and Rabbi Akiva came and said: I have an idea what the source of this law is—“You shall fear the Lord your God,” to include Torah scholars. Then one would say that the interpretation did not create this law; the law already existed and had been received by tradition. The interpretation is an anchor that I found after the fact for a law already known. That is called supportive interpretation or sustaining interpretation. Okay? So Maimonides makes a distinction here between an interpretation that creates a new law—creative interpretation—and a law that comes to anchor an existing law, which is sustaining interpretation. Now let’s read the continuation: “And since this is so, not everything that the Sages are found to have derived by inference through the thirteen principles is said to have been said to Moses at Sinai, and likewise not everything that they find in the text and support by one of the thirteen principles is said to be rabbinic, for at times it is a received interpretation.” Take a look for a moment at that sentence—it’s an interesting sentence. In light of what I said, in light of the introduction I gave, Maimonides tells us: if we see an interpretation made by the Sages in the Talmud, that is not necessarily something said to Moses at Sinai. It may be a new law that they created by means of interpretation—they created it now; it did not come by tradition. And neither must it necessarily be a rabbinic law. Why not? Because sometimes it is a received interpretation and the interpretation merely anchors the received interpretation. What is the word “rabbinic” doing here? Notice—third highlighted line. Who mentioned rabbinic law? Our question is whether to count it among the commandments or not. Maimonides is aiming to tell us that sustaining interpretations—interpretations that anchor a law that reached us by tradition—are included in the count of the commandments. Creative interpretations—interpretations that create a new law—are not included in the count of the commandments. Here, from Maimonides’ language, we see that he says it is not included in the count of the commandments because it is a rabbinic law. In short, this root is not a classificatory root but a root connected to authority. Why don’t we count commandments that emerge from interpretation? Because they are not Torah commandments; they are rabbinic commandments. It isn’t because of classification—we don’t refrain from counting them because they are included in some other category. No. We don’t count them because they are not Torah commandments at all; they are rabbinic commandments. And this is an enormous innovation of Maimonides. Nachmanides attacks him for this here, in his glosses on this root. And he says: this whole book of Maimonides is “his palate is sweetness, and he is altogether lovely,” except for this root, which destroys the entire book and smashes all the foundations of Jewish law. According to Maimonides, everything that comes from interpretation is basically a rabbinic law. So it’s not just that technically I don’t count it among the commandments; there is a halakhic statement here: something that comes from interpretation is a rabbinic law, not a Torah law. And Nachmanides says: that cannot be. The Talmud is full of proofs against this. Something that comes from interpretation is a Torah law, not a rabbinic law. But Maimonides says it is a rabbinic law. So from here we have learned that the distinction Maimonides makes in the introduction to the Commentary on the Mishnah—there he doesn’t say this, here he does—between sustaining interpretation and creative interpretation also affects the authority of the law that emerges from that interpretation. In sustaining interpretation, what is the status of the law that comes from it? Come on, friends, I feel you’re a bit passive. In sustaining interpretation, what is the status of the law that comes from it? Torah-level. Torah-level. Why? Because sustaining interpretation means the law was transmitted from Sinai, and the fact that I found an interpretation—I found an interpretation, so what? It is Torah-level. But in creative interpretation, where the interpretation created a new law—not a law I already knew, but one I have now created through interpretation—that is a rabbinic law, says Maimonides. Therefore it is not counted among the commandments. This is a huge innovation. All the medieval authorities disagree with Maimonides and hold—this is what Nachmanides said—no, no. Nachmanides understands Maimonides this way but attacks him for it. On the contrary, Nachmanides is the leader of those who disagree with him. All the medieval authorities disagree with Maimonides on this issue and say: it cannot be that a law derived from interpretation is a rabbinic law. It is a Torah law. The whole Talmud is full of indications that it is a Torah law. And that is what Maimonides says here: “Therefore, the proper conclusion in this matter is that whatever you do not find written in the Torah, and you find in the Talmud that they learned it through one of the thirteen principles—if they themselves clarified and said that it is part of the Torah itself, or that it is Torah-level, then it is proper to count it.” If the Sages who made the interpretation said that this thing is Torah-level, then one should count it. “For the transmitters said it was Torah-level.” What does “the transmitters” mean? It means that the law they derived through interpretation is a law that was received by tradition, and the interpretation is only sustaining. The transmitters testified to us that this thing was received from Sinai; the interpretation came only later. Therefore it is Torah-level. In other words, the Sages don’t need to tell us explicitly: look, this is sustaining interpretation. It is enough if they say that the law that emerged from this interpretation is a Torah law. I understand from that that this is apparently a case of sustaining interpretation and not creative interpretation. Therefore it is Torah-level, and then it is also counted among the commandments. “But if they did not clarify this and did not speak of it”—they didn’t say it was Torah-level, they said nothing—“then it is rabbinic, because there is no written text indicating it.” Why is it rabbinic? Because there is no verse that states it. Ah, but there is interpretation. And in sustaining interpretation, is there a verse that states it? Why is sustaining interpretation Torah-level? Because it was received by tradition. It was received by tradition despite there being no written text. In creative interpretation we have no tradition, so we needed the interpretation to create the law. And it also isn’t written in any verse, so it is rabbinic. Okay? But here I’ll stop for a moment and move to Nachmanides. Up to this point, that is Maimonides’ position. So we’ve reached this conclusion: Maimonides distinguishes between two kinds of interpretation—sustaining and creative. Sustaining interpretation is Torah-level. Creative interpretation is rabbinic. Therefore the law that comes from sustaining interpretation is counted among the commandments, whereas the law that comes from creative interpretation is not included in the count of the commandments because it is rabbinic. We also learned: what is Maimonides’ criterion for Torah law and rabbinic law? Is there a written text indicating it, or not? Whatever has a written text saying it is Torah-level; whatever has no written text saying it is rabbinic. Okay? Then what about a law given to Moses at Sinai, according to that? Torah-level. Because there is a tradition for it. It is Torah-level because there is a tradition for it—that is what all the medieval authorities say. But Maimonides in several places says that that is rabbinic. A law given to Moses at Sinai? What do you mean? A law given to Moses at Sinai? No one says that; it is fully Torah-level. Only Maimonides. And then we return to his phrase: “because there is no written text indicating it.” Now this is literal. According to Maimonides there is one definition of Torah-level: what appears in the Torah. Notice—a literal interpretation. What does the word de-oraita mean? When I say this is a Torah-level law, the literal meaning—forget for a moment what you are used to understanding—de-oraita means from the Torah, what appears in the Torah. That is how Maimonides interprets it. A Torah-level law is a law that appears in the Torah, okay? What follows from that? That a law learned by tradition—a law given to Moses at Sinai—has no verse in the Torah, and therefore it is not Torah-level; it is rabbinic. A law that comes from reason is also not written in the Torah, so it too is not Torah-level. Rabbinic enactments, of course, are not written in the Torah, so they too are rabbinic. What about interpretations? Maimonides says: it depends. Sustaining interpretation is Torah-level; creative interpretation is rabbinic. Now here I do not understand, claims Nachmanides. If you tell me that creative interpretation is rabbinic, you are basically saying that interpretation is not something written in the Torah. But if so, then why is sustaining interpretation Torah-level? That too is interpretation. Will you tell me it is because of the tradition? But according to your own view, the tradition itself is only a rabbinic law. A law given to Moses at Sinai is also a law that we have by tradition, and Maimonides says that this is a rabbinic law. In short, Nachmanides asks Maimonides this: a law transmitted by tradition, according to you, is not Torah-level because it is not written in the Torah—that’s a law given to Moses at Sinai. A law derived from interpretation is also not written in the Torah, so that too is rabbinic. So why does a law for which there is both a tradition and an interpretation suddenly become a Torah law? What, zero plus zero equals one? Do you understand the question? And Nachmanides says: Maimonides, you are inconsistent. A law we have by tradition—a law given to Moses at Sinai—you tell me is rabbinic. A law derived from interpretation is also rabbinic—creative interpretation. But sustaining interpretation—what is sustaining interpretation? I have a tradition from Sinai about the law, and I also found an interpretation that sustains it—and now suddenly it becomes Torah-level. Why? Is it written in the Torah? It is not written in the Torah. We have a tradition about it. But interpretation doesn’t mean it is written in the Torah, because otherwise creative interpretation would also have to be Torah-level. So there is some contradiction in Maimonides’ words that is not clear, according to Nachmanides in his glosses here. How do I know that, according to Maimonides, a law given to Moses at Sinai is rabbinic? Let me take an example. In chapter 17 of tractate Kelim, the Mishnah deals with the prescribed measures of the Torah—various measures: a barley-bone from a corpse, an olive-bulk in food, things like that, a cubit, an egg-bulk, and so on. And Maimonides says as follows, at the end of halakhah, at the end of Mishnah 12—look here—“I must mention here a great and useful principle, and it is what they said in the Tosefta of Mikvaot: regarding an olive-bulk from a corpse and a lentil-bulk from a creeping thing, if there is doubt whether there is the requisite measure or doubt whether there is not, the doubt is impure. For anything whose root is from the Torah and whose measure is from the words of the Sages—its doubt is impure. Remember this.” They are saying this: concerning an olive-bulk from a corpse, impurity from a corpse is a Torah law. But the measure—the measure of an olive-bulk—who said it is an olive-bulk and not an egg-bulk? Or half an olive? What is the measure that imparts impurity, and how do we know this? There is a dispute in the Talmud. There are those who derive it from “a land of wheat and barley” and related verses, and there are those who say it is a law given to Moses at Sinai. So Maimonides says: such a thing is called “its root is from the Torah and its measure is from the words of the Sages.” The Sages measured it, or alternatively, never mind, a law given to Moses at Sinai gave us the measures—measures, interpositions, and partitions are a law given to Moses at Sinai—and this is called a thing whose root is from the Torah and whose measure is from the words of the Sages. Because when there is a tradition, a law given to Moses at Sinai, that is “from the words of the Sages.” And we see this in other places in Maimonides as well. Now look at the continuation: “Remember this rule, for by it you will know in every place where you have a doubt concerning any measure whether to act stringently or leniently.” You have doubt about a measure—whether the measure is an olive-bulk or a large date-bulk. There is a dispute in the opening Mishnah of tractate Beitzah regarding leaven: “leaven” is in an olive-bulk and “hametz” in a date-bulk, according to Beit Shammai; Beit Hillel say both are in an olive-bulk. So I have a dispute, a doubt. What should I do? Let’s say the law was not decided like Beit Hillel, and I have a doubt. What do I do when I have a doubt about a measure? Maimonides says here: for anything whose root is from the Torah and whose measure is from the words of the Sages, we go stringently, even though it is a rabbinic doubt, because the underlying law is a Torah law. Only the measure was determined by the Sages or by a law given to Moses at Sinai. In that situation its doubt is treated stringently. “And do not let the phrase ‘its measure is from the words of the Sages’ mislead you.” You say: its measure is from the words of the Sages. But if the rule we hold is that all measures are a law given to Moses at Sinai, how can I say this is from the words of the Sages? After all, the measures are a law given to Moses at Sinai. The Talmud says: measures, interpositions, and partitions are a law given to Moses at Sinai. So how can I say that measures are from the words of the Sages? Maimonides says: “Because everything not clarified in the language of the Torah is called ‘from the words of the Sages,’ even things that are a law given to Moses at Sinai.” Here he says it explicitly. Even things that are a law given to Moses at Sinai are called “from the words of the Sages.” “For the phrase ‘from the words of the Sages’ means that the thing is a reception of the Sages, like all the interpretations and laws received from Moses, or an enactment of the Sages, like all enactments and decrees. And remember this too.” Here Maimonides says very clearly that, for him, a law given to Moses at Sinai is called “from the words of the Sages.” Now what does that mean—called “from the words of the Sages”? Is it halakhically rabbinic, so that in cases of doubt we are lenient? What do you say? Or is it just called that because there is interpretation, there is reception by the Sages, and there are enactments by the Sages, so everything is called “from the words of the Sages,” but its legal status is Torah-level? How do you understand Maimonides’ words here? A doubt concerning such a thing, a law given to Moses at Sinai—would it be lenient or stringent? Why? Because it is rabbinic—words of the Sages. That’s what he says. Even though we say it is a law given to Moses at Sinai, we still call it words of the Sages. But above he said that its doubt is treated stringently. He said that if you have doubt about a measure, you go stringently. So that actually seems to indicate that even though he calls it words of the Sages, its halakhic status is Torah-level. It is only called words of the Sages because it has no verse in the Torah. We received it from the Sages and not from the Torah, so we call it words of the Sages, but we received it and it is Torah-level. Therefore its doubt is treated stringently. But in Maimonides here, if you look carefully, it says that its doubt is lenient. Why? Because how does he explain that if you have a doubt about a measure you go stringently? Because this is a thing whose root is from the Torah and whose measure is from the words of the Sages. Because the law of corpse impurity is a full Torah law—it is written in the Torah. The measure—how much of the corpse imparts impurity—that is where you have a doubt. This, says Maimonides, is called a Torah-level doubt. I don’t care that the measures are a law given to Moses at Sinai. Here the law given to Moses at Sinai is interpreting a Torah law. So if you have a doubt in the interpretation supplied by a law given to Moses at Sinai, that is basically a doubt in a Torah law, and therefore we go stringently. So basically creative interpretation is also considered rabbinic according to Maimonides. Again? According to Maimonides, creative interpretation is also—right, I said earlier—creative interpretation and a law given to Moses at Sinai are both rabbinic. And not like the Ramah disagreed—not like the Ramah. No, on the contrary, that’s what Nachmanides said. Nachmanides interprets Maimonides that way; he just attacks him. He doesn’t agree with him. But he interprets Maimonides to mean that when Maimonides says “words of the Sages,” he means a rabbinic law. Therefore he says it can’t be; it is a Torah law. The others, in order to defend Maimonides from Nachmanides’ attacks, say: no, no, Maimonides also did not mean that it is a rabbinic law. He calls it words of the Sages because it isn’t written in the Torah, but he really means a Torah law. Here in the Commentary on the Mishnah we see that this is not so. Maimonides means to say that this is really a rabbinic law, even on the halakhic level. How do I know? Because Maimonides assumes here that a doubt in a law given to Moses at Sinai should be lenient. Only with regard to measures, although they are a law given to Moses at Sinai, is the doubt stringent. Why? Since the law under discussion is Torah-level, and only its measures are from a law given to Moses at Sinai. Therefore we go stringently. But what if there were a law that is entirely a law given to Moses at Sinai? The willow and the water libation are, according to one view, a law given to Moses at Sinai. The willow and the water libation on Sukkot are not interpretations of a Torah law by a law given to Moses at Sinai. That is a law given to Moses at Sinai that innovates a new law. It is a law given to Moses at Sinai that creates a new law. There, according to Maimonides, the doubt would be lenient, not stringent. How do I know? Because here, when he says the doubt is stringent, he explains: look, this is a law given to Moses at Sinai, and a law given to Moses at Sinai is words of the Sages. So in principle the doubt should have been lenient. Fine—here we do not go lenient because its root is from the Torah and only its measure is from the words of the Sages. So if there were a law given to Moses at Sinai that had no root in a Torah law, a law entirely created by a law given to Moses at Sinai, then indeed according to Maimonides its doubt would be lenient. This passage in Maimonides is evidence that when Maimonides calls these things words of the Sages, he means they are rabbinic laws, period. It is not a rhetorical flourish; it is a legal statement. Their doubts are lenient. Therefore, in my opinion, those who disagree with Nachmanides about how to interpret Maimonides are mistaken. As I said earlier, Nachmanides interprets Maimonides this way, and therefore attacks him, because he says it cannot be; this is a Torah law. But all the Maimonides commentators following the Tashbetz interpret him differently. They say: no, no, he means that this is a Torah law. He calls it words of the Sages because it has no verse in the Torah. He is talking about the question of source, not the question of authority. The authority is Torah-level. The source is not from the Torah but from the Sages, and therefore he calls it words of the Sages. But the authority is Torah-level. Here in Maimonides we can see that not so. Maimonides is speaking about authority, not only source. For him, a law from the words of the Sages has lenient doubt. And therefore with words of the Sages that are creative interpretation, I would expect their doubt to be lenient as well. It is words of the Sages like a law given to Moses at Sinai. Everything Maimonides calls words of the Sages has lenient doubt. Or I can show you another source where we see the same thing. So according to Nachmanides, is there sort of a contradiction in Maimonides? What? According to Nachmanides, is there a contradiction in Maimonides? No, there is no contradiction in Maimonides. Why? Because we said earlier there is a part where he says it is Torah-level—there are also Torah-level cases, so to speak. No—only in a place where its root is from the Torah and its measure is from the words of the Sages; there it will be stringent, because there the law given to Moses at Sinai only interprets what the Torah says. Where do Nachmanides and the other commentators disagree with Maimonides? Where? On a regular law given to Moses at Sinai that creates a law, such as the willow and the water libation. We said that in that case, according to Nachmanides, there is consistency, so to speak. Why? There is consistency. Its doubt is lenient in two different cases. In a law given to Moses at Sinai, its doubt is lenient. In a Torah law that is interpreted by a law given to Moses at Sinai, its doubt is stringent. Where do Nachmanides and the other commentators disagree with Maimonides? In the first one. There? A law given to Moses at Sinai that creates a law—they say this is Torah-level. It comes from the Holy One, blessed be He. Why should I care whether it is written in the Torah or not? The same with interpretations: you are interpreting the Torah—that is what is written in the Torah—so it ought to be Torah-level. How can Maimonides say that interpretations, creative interpretations, are words of the Sages? Let’s take another example, where again we see that Nachmanides is right about Maimonides—that is, Maimonides means this seriously, not jokingly. In most editions of Maimonides, you have the fourteen roots of Maimonides, and then Sefer HaMitzvot begins. Now at the end of the fourteenth root there is another passage that is usually attached to the fourteenth root, because the fourteenth root deals with punishments and this passage also deals with punishments. And they don’t notice—on the Bar-Ilan Responsa Project they did notice this—that this passage does not belong to the fourteenth root; it is an introduction to the enumeration of the commandments. The roots end, then there is an introduction to the count of the commandments, and then the count itself begins. So I’m now reading from that introduction. In the books, if you open a standard edition, it usually appears at the end of the fourteenth root. He says as follows: “Sometimes the prohibition is clarified in the text, but the punishment is not clarified.” Sometimes in the verse the prohibition appears—the warning, meaning the negative commandment that one may not do this—but the punishment is not written. The prohibition of eating pork, for example: the punishment is not written. It says that one may not eat pork; the prohibition is there, the punishment is not. “And sometimes the punishment is mentioned and the prohibition is mentioned.” Both the punishment—“whoever profanes it shall surely be put to death”—and the prohibition of doing labor on the Sabbath. Okay, so both the punishment and the prohibition are mentioned, like Sabbath desecration and idolatry, where it says “you shall do no work” and “you shall not serve them”—those are the negative commandments, the prohibitions—and after that there is stoning for one who does labor or serves idols. “And sometimes the prohibition is not clarified in the text as a plain negative commandment, but only the punishment is mentioned and the prohibition is left implicit.” Sometimes only the punishment appears and not the prohibition. Does anyone know an example? “One who strikes his father or mother shall surely be put to death.” It says that someone who strikes his father or mother is liable to death, but nowhere does it explicitly state the prohibition against striking one’s father or mother. It doesn’t appear. There is only the punishment. Incidentally, in Israeli law there is no prohibition against stealing or murdering—did you know that? It says the punishment for a thief is such-and-such, or the punishment for a murderer is such-and-such. It doesn’t say “it is forbidden to steal” or “it is forbidden to murder.” What? Are these deficiencies in Israeli law? What? Ostensibly it’s a criminal offense—what do you mean? You violated the law, committed a criminal offense if you murdered or stole. What? In principle. Let’s say, for example, that I tell myself: you know what, I’m prepared to accept the punishment. I’ll go steal and let them impose whatever punishment they impose. Is there something morally tainted about that? There could be practical ramifications, for example, regarding appointing me to public office. No, I didn’t do anything forbidden. It’s just that the judge has to impose punishment on me. If I stole, he imposed punishment on me; everything’s fine. Each of us did his duty: I stole, and that’s fine, and he imposed punishment as he should, and everything is excellent. But is the act itself wrong? In what sense is it wrong? I didn’t violate the law. In fact Haim Cohen, in his book—he served as Deputy President of the Supreme Court and Attorney General—in his book HaMishpat, where he describes the world of law generally, argues that in Israeli law there is no prohibition against stealing or murdering. It is only an obligation on the courts to punish whoever does such things, but you did not violate an offense. Behind this lies a liberal conception saying that the law cannot tell the citizen what to do. The law can tell the authorities that work under it what they are required to do, but citizens are free to do what they want. The law cannot tell us what to do and what not to do. Of course that’s somewhat ridiculous, because if it tells the judge to punish me, then the judge may punish me—and I’m a sovereign citizen. You’re just sidestepping the problem. What difference does it make? Fine, but that’s what he argues. Obviously the straightforward reading is not like that. When one says the thief’s punishment is such-and-such, or the murderer’s punishment is such-and-such, one means to say that stealing and murdering are forbidden; they just don’t bother to write that explicitly, and go straight to the punishment. If there is punishment, then it is obviously forbidden as well. In Jewish law it is not so. In Jewish law, when a punishment appears—“one who strikes his father or mother shall surely be put to death”—and there is no prohibition, then there is no prohibition. And that is what he says here: “And sometimes the prohibition is not clarified in the text as a plain negative commandment, but only the punishment is mentioned and the prohibition is left implicit. But the principle with us…” It appears in the Talmud: “The Scripture does not punish unless it first warns,” and it is impossible that there be punishment for anything without there first being a prohibition. Therefore they say in every place: “We have heard the punishment—but from where do we know the prohibition? The verse says such-and-such.” The Talmud asks in every place: we found the punishment, but where is the prohibition? And the Talmud assumes that when punishment is written, that is not enough; there must also be a prohibition written. The fact that punishment is written—I do not infer from that that of course it is also forbidden. No. For it to be forbidden there must be a prohibition. Therefore the Talmud always asks: “We heard the punishment; from where do we know the prohibition? The verse says such-and-such.” It also brings a prohibition. There must also be a prohibition. “And when the prohibition is not clarified in the text”—we did not find a prohibition; there is punishment but no prohibition—“they derive it by inference from one of the Torah’s inferences,” that is, by interpretation. It is not explicitly written in the Torah, but the Talmud made an interpretation. There is no explicit verse, but the Talmud made an interpretation. “Thus we know,” says Maimonides, “that they are negative commandments, and we derived for them and for similar cases the prohibition from elsewhere by way of inference. And this does not contradict their statement ‘we do not warn from inference,’ nor their repeated statement ‘do we warn from inference?’” Maimonides says: after all, we do not warn from inference. And what is he assuming? That “inference” means interpretation. When you have a prohibition learned through interpretation, it is not a true negative commandment, and one cannot punish on the basis of that prohibition. So if so, how can it be here, when the punishment is written? Maimonides says: we derive the prohibition by interpretation. But don’t we not warn from inference? Isn’t that not enough, even if there is punishment? In other words, this is what the Talmud assumes: there has to be a prohibition; punishment alone is not enough. Even if punishment appears. One cannot punish unless one also finds a prohibition. But you can find the prohibition through interpretation as well if you don’t find anything else. Maimonides says: why? After all, we do not warn from inference. If you found it through interpretation, that isn’t enough to punish. So why here is it enough? He says: “Indeed, we only say ‘we do not warn from inference’ in order to prohibit something for which no specific prohibition has been clarified by way of inference.” When we say “we do not warn from inference,” the meaning is not that if we have a prohibition learned through interpretation, one cannot punish for it because it isn’t a proper negative commandment. Rather—“however, when the punishment is found explicitly in the Torah for one who does this act, then we know necessarily that this is a prohibited act from which one is warned.” So we know it is forbidden, because otherwise why would there be a punishment? Therefore in such a case we allow ourselves to derive the prohibition through interpretation as well. In other words, if the punishment is not written in the Torah, then interpretation is not enough—we do not warn from inference. But if the punishment is written in the Torah, then even interpretation alone can generate a prohibition. If I found an interpretation, that is a prohibition. “However, we derive the prohibition by inference in order to strengthen for us the principle of their statement that Scripture does not punish unless it first warns. And once the prohibition has been reached for that matter, then one who violates and does it becomes liable to karet or death and the like. Know this introduction and remember it with the previous roots.” What is Maimonides basically saying here? “We do not punish from inference”—what does “we do not punish from inference” mean? Nachmanides cries out against him on this issue too, and all the medieval authorities again. “We do not punish from inference” means from a kal va-chomer argument. “Inference” here means kal va-chomer. When the Talmud says “Is it not an inference?” what does that mean? Kal va-chomer. Or “we do not punish from inference” means we do not punish on the basis of a kal va-chomer. That is called inference. Maimonides says: no. “Inference” means all the hermeneutical principles. A law that emerges from interpretation means any of the hermeneutical principles, not only kal va-chomer. And “we do not punish from inference” means we do not punish for a law derived from interpretation. Only if the Torah explicitly writes a punishment, and then afterward we found the prohibition by interpretation—then yes, one can punish. It will be Torah-level. It is a negative commandment that we count among the negative commandments. We will count it among the negative commandments, and then we will also punish. But from Maimonides’ words we see that if there is a law that comes from interpretation and there is no punishment written in the text, then it will not be Torah-level. We do not punish for it, and we do not count it among the commandments. What do we see? That when Maimonides says a law that comes from interpretation is words of the Sages—rabbinic—he means it seriously. It is not a Torah law that is merely called words of the Sages because it isn’t written in the Torah—no. We saw earlier that its doubt is lenient, and now we see that there is no punishment for it, and it does not enter the count of the commandments. There is no such negative commandment. In other words, it is not Torah-level. In other words, for our purposes: when Maimonides says that we do not count laws derived from interpretation or laws given to Moses at Sinai, but only things written in the Torah—or supportive interpretations, and we will still have to explain why—he means that they are not Torah-level, and therefore they are not counted. This is a continuation of the first root, which says that rabbinic laws are not counted. This root too says that rabbinic laws are not counted. It comes to add that there is another type of rabbinic law: laws derived from interpretation, or laws given to Moses at Sinai—laws not written in the Torah. They too are rabbinic laws, even if they are not enactments and decrees. Therefore they are not counted because they are rabbinic, and their doubts are lenient, and we do not punish for them, and so on. In other words, Maimonides hints to us in several places—not as he is usually interpreted, that he basically means these are Torah laws and he only calls them words of the Sages because they have no source in the Torah. No. Maimonides says: I call them rabbinic law because according to my view they really are rabbinic. Good. We’ll stop here and continue next time.