The Commandments and Their Enumeration – Lesson 13

Table of Contents

• Introduction to the world of derash and a dynamic tradition
• The second root in Maimonides and two fundamental interpretations
• The meaning of “divrei sofrim”: authority versus source
• First proof: the Commentary on the Mishnah in Kelim and “measurements, interpositions, and partitions are a law given to Moses at Sinai”
• Second proof: Maimonides’ introduction to Sefer HaMitzvot and “punishments are not derived by logical inference”
• An intermediate note: Sefer HaChinukh, commandment 69, and the concept of a warning as negating a mere “transaction”
• Supportive derashot versus productive derashot, and the criterion of “when there is no written verse indicating it”
• Maimonides’ criticism of the Bahag and the example of “You shall fear the Lord your God”
• “A verse does not depart from its plain meaning” as a dispute between Maimonides and Nachmanides over the nature of derash
• The truth of derash versus its status: one thousand seven hundred a fortiori arguments and Temurah
• How “zero plus zero equals one”: a tradition that reveals, a derash that uncovers

Summary

General overview

The text presents Maimonides’ second root as a key to understanding the status of laws derived through the hermeneutic principles of derash, and sets out two fundamental interpretations: Nachmanides’ reading, according to which Maimonides means that productive derashot are not de’oraita but rather derabbanan, as against the reading of the Tashbetz and most commentators on Maimonides, according to which the authority remains de’oraita and only such laws are not counted among the commandments. The author argues that Maimonides is speaking seriously about the question of authority, not merely about classification, and brings two central proofs from Maimonides’ remarks about a law given to Moses at Sinai and about the rule that punishments are not derived by logical inference. The discussion then presents Maimonides’ view of the relationship between plain meaning and derash, and of the criterion for de’oraita status as “what is written in the Torah” in a literal sense, distinguishing between supportive derash and productive derash. Finally, it proposes a framework for understanding how tradition together with derash can turn a law into de’oraita.

Introduction to the world of derash and a dynamic tradition

The author presents the world of derash as a dynamic rather than static tradition, one in which there are disputes and different frameworks, but all of them operate within a single language given as a law to Moses at Sinai. He defines the hermeneutic principles of derash as the grammar rules of that language, and explains that grammar rules are formed only after the language already exists, so arguments about them are natural. He notes that Maimonides mentions the thirteen hermeneutic principles alongside “inclusion,” because these are two different frameworks: the school of Rabbi Yishmael as against the school of Rabbi Akiva.

The second root in Maimonides and two fundamental interpretations

Maimonides rules that laws derived through the hermeneutic principles of derash and through inclusion are not counted among the commandments, and the author explains that Maimonides means the whole world of derash, not just some fixed number of principles. Nachmanides understands Maimonides to be saying that laws derived from derashot are not de’oraita and are therefore derabbanan, and from that comes his sharp attack that these statements are “destructive” and “tear down the entire wall of the Torah.” The Tashbetz and most commentators on Maimonides argue that Maimonides does not deny de’oraita authority, but only determines that such laws are not counted as commandments because they are included within, or secondary to, other commandments. The author frames the dispute as a question whether the second root is a “substantive root,” determining halakhic status, or a “classificatory root,” determining only a rule of categorization in the count.

The meaning of “divrei sofrim”: authority versus source

The discussion focuses on whether “divrei sofrim” in Maimonides describes derabbanan halakhic authority, or instead describes a source that is not written in the Torah even though its authority is de’oraita. The author argues that the Tashbetz is forced away from the plain language of Maimonides because of Nachmanides’ objections, and therefore reads Maimonides against the simple meaning in order to preserve de’oraita authority. He concludes that Nachmanides is right at least as to what Maimonides meant, even if one may disagree with the position itself.

First proof: the Commentary on the Mishnah in Kelim and “measurements, interpositions, and partitions are a law given to Moses at Sinai”

The author cites Maimonides in his Commentary on the Mishnah to Kelim, chapter 17, where measurements are said to be a law given to Moses at Sinai, and infers that according to Maimonides, a law given to Moses at Sinai is derabbanan; therefore, doubt about a required measurement should seemingly be ruled leniently. Maimonides explains that the measurements are a “interpretive” law given to Moses at Sinai, one that explains a law written in the Torah, and therefore it cannot produce a situation in which lashes, which are de’oraita, depend on a derabbanan foundation. Maimonides distinguishes between a law given to Moses at Sinai that introduces a new law, such as the willow rite or the water libation, where doubt is ruled leniently, and a law given to Moses at Sinai that interprets a written law, which ultimately becomes integrated into the parameters of a de’oraita law because it serves as the interpretation of a written law. The author concludes that this clearly shows Maimonides seriously means derabbanan as a category of authority, not merely as a label of source, and he parallels this to laws derived from derashot, because according to Maimonides anything not written in the Torah is not de’oraita.

Second proof: Maimonides’ introduction to Sefer HaMitzvot and “punishments are not derived by logical inference”

The author cites Maimonides after root 14, where he interprets “logical inference” as including every derivation through derash, not only a fortiori argument, and therefore “punishments are not derived by logical inference” means that one does not punish on the basis of a law derived from derash. Nachmanides attacks Maimonides and argues that “inference” means only a fortiori reasoning, and that the other derashot are de’oraita and one does punish based on them. The author lays out the principle, “We have heard the punishment, from where do we know the warning?” and the requirement of a written warning as a condition for punishment, and shows that according to Maimonides, a prohibition derived by derash does not incur lashes because it is divrei sofrim. He adds that according to Maimonides, when the punishment is written in the Torah, one may suffice with a warning derived by inference, because the derash then becomes “interpretive” with respect to the written punishment, similar to an interpretive law given to Moses at Sinai.

An intermediate note: Sefer HaChinukh, commandment 69, and the concept of a warning as negating a mere “transaction”

The author quotes Sefer HaChinukh on commandment 69 regarding “You shall not curse God” as the source for the warning against blasphemy, and presents Sefer HaChinukh’s claim that if the Torah had written only the punishment without a warning, one might understand the punishment as a “price” rather than a sanction for an offense, and the commandment would become something like a “commercial transaction.” He uses this idea to explain why the Sages insist on looking for a warning, in order to clarify that this is criminal wrongdoing and a sanction, not merely collecting payment in exchange. He brings two initial assumptions to illustrate the point: Tosafot’s remarks about a prophet who suppresses his prophecy receiving lashes, and the possibility in Temurah that someone who swears a true oath imposed on him by the religious court would receive lashes, linking both to a reading of “price” instead of “punishment,” a reading that is later rejected. He mentions an explanation in Minchat Chinukh of the story of Jonah as a matter of “conscientious rebellion,” based on understanding lashes without a warning as collecting a price, and adds a reading of the book of Jonah and of the a fortiori argument from the kikayon, with the expressions “the service of Heaven’s need” and “the secret of the service of Heaven’s need” as the basis for the Holy One’s response to Jonah.

Supportive derashot versus productive derashot, and the criterion of “when there is no written verse indicating it”

The author returns to Maimonides’ wording in the second root and presents categories of what is written in the Torah, what is not written, what emerges from derashot, and what is an accepted interpretation, emphasizing that Maimonides sets up an explicit contrast between de’oraita and derabbanan. Maimonides rules that anything you do not find written in the Torah and that is learned through the hermeneutic principles of derash is derabbanan, unless the Sages explicitly explained that it is “the essence of Torah” or “of biblical origin,” in which case it is proper to count it. Maimonides explains this with the words “when there is no written verse indicating it,” and the author stresses that from here it is clear that Maimonides interprets de’oraita literally as “from the Torah,” meaning what is written in the verse. He points out that Maimonides unifies the question of source with the question of authority, and determines that a written source is itself the criterion for authority.

Maimonides’ criticism of the Bahag and the example of “You shall fear the Lord your God”

Maimonides attacks the Bahag for counting fear of Torah scholars as a positive commandment on the basis of “You shall fear the Lord your God”—to include Torah scholars—and argues that if so, one would also have to count honoring one’s mother’s husband, one’s father’s wife, and an older brother, as further examples of inclusion. Maimonides states that what is learned through derash, especially where the plain sense does not indicate it, is unquestionably derabbanan and therefore is not counted. The author clarifies that the claim is not merely classificatory, about being subsumed under another commandment, but a substantive claim that the law is not de’oraita.

“A verse does not depart from its plain meaning” as a dispute between Maimonides and Nachmanides over the nature of derash

Maimonides uses the rule “A verse does not depart from its plain meaning” to determine that a verse has one interpretation, namely its plain meaning, and that derashot are not the interpretation of the verse but rather “another reading” attached to it. Nachmanides presents the opposite understanding, according to which derash is also an interpretation of the verse, while the plain meaning does not disappear, so that the verse carries multiple facets and all the approaches expose layers within it. The author sums up that Maimonides sees derash as an expansion that creates “branches from the roots,” not as a tool that extracts content latent in the verse. He uses the image of a “gift” versus “a key to a safe” to sharpen the distinction: Nachmanides sees derash as revealing what already belonged to the verse, while Maimonides sees it as adding something beyond the written plain sense.

The truth of derash versus its status: one thousand seven hundred a fortiori arguments and Temurah

Maimonides rejects the possibility that derashot are not counted because of any lack of confidence in their truth, and rules that laws derived through the hermeneutic principles of derash are “true,” but are not counted because they are branches rather than roots. He brings proof from Temurah about “one thousand seven hundred a fortiori arguments, verbal analogies, and scribal fine points” that were forgotten during the mourning for Moses and restored through the dialectical reasoning of Othniel son of Kenaz, and concludes that even in Moses’ time these products were called “scribal fine points.” Maimonides lays down the rule: “For everything that they did not hear explicitly at Sinai is from divrei sofrim,” and emphasizes that even if Moses himself derived laws through the hermeneutic principles of derash, it is still not proper to count them among the 613 commandments. He excludes from this rule only that which was transmitted as an “accepted interpretation” and which the Sages explicitly said is “the essence of Torah” or “its prohibition is of biblical origin,” and the author defines this as supportive derash, where the comparison serves to show “the wisdom of Scripture,” as Maimonides explained in the Commentary on the Mishnah.

How “zero plus zero equals one”: a tradition that reveals, a derash that uncovers

The author raises Nachmanides’ difficulty: how can a law given to Moses at Sinai by itself be derabbanan, and derash by itself be derabbanan, yet their combination produces de’oraita? He suggests that the tradition testifies that in this case the derash is not an expansion but an uncovering of what was already “inside the text,” and therefore it turns the law into de’oraita according to Maimonides’ criterion that a de’oraita law is one that is hewn out of the verse. He concludes that a fuller elaboration of this point will come in the next lecture.

Okay, last time we started dealing with Maimonides’ second root. In this root, yes, after I gave an introduction about the interpretive principles, the whole world of interpretation, how it works, what its status is—Torah-level, rabbinic-level—about the development of the interpretive principles. I spoke about the world of interpretation as a dynamic tradition and not a static tradition. Meaning, a law given to Moses at Sinai is dynamic in the sense that it does indeed develop, and there are disputes and different formulations, but those formulations are formulations of the same language. And the language was given as a law to Moses at Sinai, along with the general grammar rules of that language—yes, that’s basically the interpretive principles. There can be debates about that, since grammar rules are created only after the language already exists. We don’t speak a language according to grammar rules. After that I started reading Maimonides in the second root, and I said that there are really two interpretations of Maimonides’ words. Maimonides says that we do not count among the commandments the laws learned through the interpretive principles, meaning the thirteen interpretive principles and amplification. Why does he say the thirteen interpretive principles and amplification? Because amplification is the method of the school of Rabbi Akiva, and the thirteen principles are those of the school of Rabbi Ishmael. Two methods in the approach to the world of interpretation, two different formulations of the interpretive rules, and Maimonides basically wants to say everything. He doesn’t mean specifically these fourteen principles; rather, he means the whole world of interpretation—whatever comes out of it is Jewish law from the words of the sages, and it is not counted among the commandments. It is not counted among the commandments; we’ll soon see what “from the words of the sages” means. About this point itself, I said, there are two interpretations.

Nachmanides, on the spot, understood Maimonides to mean that a law learned from exegesis, from the interpretive principles, is not Torah-level. And that’s also fairly clear from Maimonides’ wording that we began reading last time; it’s pretty clear that that’s what he means. And therefore Nachmanides says: I cannot agree to such a thing. In other words, Maimonides’ words are destructive; they tear down the entire wall of the Torah. He writes some very sharp things there, saying this is just a colossal mistake. But what he understands in Maimonides is that Maimonides means rabbinic laws—that is, that what is learned from exegesis is rabbinic law. Other commentators, following the Tashbetz and all those drawn after him down to this day—and that’s the overwhelming majority of Maimonides’ commentators—hold that Maimonides does not mean these are rabbinic laws. These are Torah-level laws in terms of their halakhic force. But these laws cannot be considered commandments in the count of the commandments. Meaning, the dispute between Nachmanides and the Tashbetz is really about how to understand Maimonides’ second root. Is it a classificatory root—and we spoke about classificatory roots and essential roots—or is it an essential root? An essential root means these are rabbinic commandments, so if it’s not a commandment, that’s why it isn’t counted among the commandments. That’s an essential claim. The count of the commandments is a result of that claim, but really the claim is not on the level of the count of commandments; rather, this is not a commandment at all, so why count it? There are those who say, no—the Tashbetz and all who follow him—that it is a classificatory root. A classificatory root means: it is certainly Torah-level, and in principle it is a commandment, but it won’t enter the count of the commandments, for example because it is included in other commandments. “You shall fear the Lord your God”—to include Torah scholars—the meaning is that we do not count fear of Torah scholars because it is included in fear of God. Not because it isn’t a commandment, not because it isn’t Torah-level, but because it is a detail within the commandment of fearing God, so there is no reason to count it separately. According to this approach, Maimonides is talking only about the count of the commandments; he is not saying anything essential here about the halakhic status of these commandments or these laws.

The dispute is basically over the question of whether, when Maimonides says “from the words of the sages,” as he writes here, he means a statement about force. Is the halakhic force of these commandments “from the words of the sages,” meaning rabbinic? Or is he speaking about the question of source? Meaning: what is the source of these commandments? Their source is in the sages who made these interpretations; they are not written in the Torah, and that’s why he calls them “from the words of the sages.” But in terms of halakhic status, they are Torah-level commandments in every respect. That is how the Tashbetz understands it. Nachmanides said no: Maimonides is talking about the question of source, not the question of force. And that is the plain sense of his language. It’s clear that the Tashbetz is forcing Maimonides’ language because of all the questions Nachmanides will ask—we’ll talk about them. What I said before, that Nachmanides says this is a colossal mistake, destructive, impossible—the Tashbetz says it is so obviously true that it’s impossible that Maimonides would disagree with it. So he basically takes Maimonides away from his plain meaning. And again, almost all of Maimonides’ commentators follow him in this: he took Maimonides away from his plain meaning and says no, Maimonides is not talking about the question of force, he is talking about the question of source. When he says these are laws “from the words of the sages,” he means the sages created them by means of exegesis. That’s why they are “from the words of the sages”; they are not written in the Torah. But that has nothing to do with the question of force. In force, it is Torah-level force; in cases of doubt we rule stringently, with all the consequences—it is Torah law.

So that is the basic dispute regarding Maimonides’ second root, regarding the interpretation of the second root of Maimonides. Assuming we accept the essential interpretation—that Maimonides means to say that this really is rabbinic law—then there is a principled dispute here with Maimonides himself, not just a dispute about how to interpret Maimonides’ intention, but a dispute against Maimonides’ position. Those who disagree in interpreting Maimonides do so because they do not accept the principled view that emerges from Maimonides’ plain meaning, so they say: no, no, Maimonides did not mean that; he meant something more moderate. Okay?

Now at the end of last time I brought two sources that show that Nachmanides is right. That Nachmanides is right in his interpretation of Maimonides—not in what he himself thinks, but in the question of what Maimonides intended. And it seems to me pretty clear that Nachmanides is right. Maimonides did not mean merely to say something connected to the count of commandments but with no halakhic implications, something irrelevant on the halakhic plane. I’ll expand a bit on those two sources, because I already mentioned them somewhat.

The first source we saw is in the Commentary on the Mishnah in chapter 17 of tractate Kelim, where Maimonides discusses the legal measures of the Torah. And Maimonides says that the measures are a law given to Moses at Sinai. Yes, there is a dispute in the Talmud; the Talmud brings an opinion that they are learned from “a land of wheat and barley” in the verse, and the Talmud’s conclusion is that they are a law given to Moses at Sinai—measures, interpositions, and partitions are a law given to Moses at Sinai. Now Maimonides says there in the Commentary on the Mishnah: if that is so, then a doubt regarding the measure of some prohibition or commandment should have to be ruled leniently, because it is a rabbinic doubt. If the measure—say, I ate a measured amount of pork, three-quarters of an olive-bulk of pork—and now the question is whether I transgressed a prohibition or not. Since the measures are a law given to Moses at Sinai, Maimonides says: if a law given to Moses at Sinai is rabbinic—and that is his assumption in several places, that a law given to Moses at Sinai is also rabbinic—then he says: if so, the doubt should be ruled leniently. So no, I didn’t violate the prohibition of pork, because there’s a doubt here, or there’s doubt whether there is an olive-bulk here or not. Even though the implication is Torah-level—whether I get lashes, okay, that’s a Torah-level law—but the basis is a dispute about the measure, and the measure is a rabbinic law.

Then he says no, that’s not correct, because the measure is really an interpretive law given to Moses at Sinai. What does that mean? We have the prohibition of pork in the Torah, and I don’t know how much pork one has to eat in order to violate the prohibition. Then the law given to Moses at Sinai comes and says: an olive-bulk. The measure is an olive-bulk. This law given to Moses at Sinai does not innovate a new law of its own; it interprets an existing law written in the Torah. The Torah says it is forbidden to eat pork; the law given to Moses at Sinai merely explains how much is forbidden to eat or for how much one receives lashes. Okay? Because eating any amount is forbidden in any case; according to Jewish law, a partial measure is prohibited by Torah law. But for how much does one get lashes? The law given to Moses at Sinai says: for an olive-bulk. So a law given to Moses at Sinai does not innovate a new law but explains or interprets an existing law. A law given to Moses at Sinai of that sort cannot be treated as a rabbinic law. After all, if I eat an olive-bulk I receive lashes, and if I don’t eat an olive-bulk I do not receive lashes. Lashes are a Torah-level law. So the difference between an olive-bulk and not an olive-bulk cannot be a rabbinic difference. After all, the olive-bulk determines whether I get lashes.

Rather, Maimonides’ claim is that a law given to Moses at Sinai whose status is like a rabbinic law is a law given to Moses at Sinai that innovates a new law. For example, the willow ritual and the water libation are a law given to Moses at Sinai according to one of the opinions in the Talmud. That is: the willow ritual, striking the willow on Sukkot, or the water libation on Sukkot—that is a law given to Moses at Sinai. Now here this is not an interpretive law given to Moses at Sinai; it is a law given to Moses at Sinai that innovates a new law. It is not interpreting some existing law. The willow ritual and the water libation are not explanations of what the Torah means in some commandment or prohibition of its own. Not at all. This is a law that stands on its own. There, a doubt would indeed be ruled leniently: a law given to Moses at Sinai that innovates a new law—what does “a new law” mean? It means a rabbinic law, and a doubt about it is ruled leniently. But in an interpretive law given to Moses at Sinai—like measures, which tell us how much one must eat to get lashes for eating prohibitions, or the height of a sukkah, or the measure of a sukkah, or whatever it may be, all the measures, impurity and the like—all of those are interpretive laws given to Moses at Sinai. They interpret the relevant Torah law, and so in the end this comes out as part of the definition of the prohibition of pork. The prohibition of pork is Torah-level. It does not matter that the interpretation comes to me through a law given to Moses at Sinai. That is what Maimonides writes there.

For our purposes, what does this really mean? That when Maimonides says a law given to Moses at Sinai is a rabbinic law, he means it seriously. Truly, a doubt about it is ruled leniently. This is not just some declarative statement that a law given to Moses at Sinai is not written in the Torah, and therefore we call it rabbinic, but its force is Torah-level. No—its force is rabbinic, Maimonides says. And therefore the implication is that a doubt should be ruled leniently. This statement has halakhic consequences; it is not just a classificatory remark. Here specifically, because this is an interpretive law given to Moses at Sinai, those consequences do not apply. But at the level of principle, we learn from here that a law given to Moses at Sinai, the laws it creates or transmits to us, are rabbinic laws according to Maimonides—genuinely rabbinic in terms of force. Of course, this is talking about a law given to Moses at Sinai. We are talking about laws that emerge from exegesis, not a law given to Moses at Sinai. Fine. But it is the same thing. For Maimonides, a law given to Moses at Sinai and laws that emerge from exegesis are both rabbinic laws, and we will see later why: because they are not written in the Torah. For Maimonides, anything not written in the Torah is not Torah-level. Maimonides interprets the concept of Torah-level literally. What is Torah-level? Literally: from the Torah. If it is from the Torah, then it is Torah-level. That is what Maimonides says. What is written in the Torah is Torah-level. Anything not written in the Torah—whether a law given to Moses at Sinai, which is transmitted orally, or something that comes out of exegesis—it is not written in the Torah; we extracted it through exegesis. So since it is not written in the Torah, it is from the words of the sages; it is rabbinic. In other words, for Maimonides, a law given to Moses at Sinai and laws that come out of exegesis are rabbinic in the same sense. Therefore the proof I brought, which deals with a law given to Moses at Sinai, is also relevant for understanding what Maimonides said about laws that come out of exegesis. Okay? That was the first proof.

The second proof I brought is in the introduction to the Book of Commandments after root 14, where Maimonides basically says there that one does not derive punishments from legal inference, and since one does not derive punishments from legal inference, one also does not punish for something that comes out of exegesis. Maimonides interprets “punishment from legal inference,” or “warning from legal inference,” to mean a law that comes out of exegesis. “Inference” means all exegesis. The accepted interpretation is not like that. The accepted interpretation is that “inference” means an a fortiori argument. “And if not by inference?”—yes?—that means an a fortiori argument. And “one does not punish from legal inference” means that something derived through an a fortiori argument is not punishable. But Maimonides says no. “One does not punish from legal inference” means one does not punish from any exegetical inference. Any law that comes out of exegesis, not specifically an a fortiori argument, is a law for which one does not punish. That is what “one does not punish from legal inference” means according to Maimonides. And Nachmanides attacks him on that too, saying: what do you mean? “Inference” means only an a fortiori argument, and the rest of the laws that come out of exegesis clearly have Torah-level status and one punishes for them and so on.

Maimonides says there in the introduction to the Book of Commandments: what is the implication? Usually we know that if there is a punishment in the Torah and no warning—say, “One who strikes his father or his mother shall surely be put to death.” So it says there is a punishment for striking one’s father or mother, but nowhere does it say that it is forbidden to strike one’s father or mother. There is no prohibition; the warning does not appear, only the punishment. Now, as I mentioned, in Israeli law too it says the thief’s punishment is such-and-such or the murderer’s punishment is such-and-such. It doesn’t say it’s forbidden to steal or forbidden to murder. So unlike civil law, where the assumption is obvious that if there is punishment then obviously it is forbidden, the sages’ assumption about the Torah is the opposite. If a punishment is written and we have not found a warning, it is impossible to punish. What? Meaning, if in exegesis we said it is forbidden, say—no, then basically we interpret that it is forbidden because we see only the punishment somewhere. In law. Yes. Meaning, the assumption is that if the legislator imposed a punishment, he is apparently forbidding it; he just thought it was unnecessary to mention it—if I punish it, then obviously it’s also forbidden. Fine, that’s reasonable. But in Jewish law it is not like that. In Jewish law, when we find a punishment, that is not enough. That is why the Talmud asks: we have heard the punishment; from where do we know the warning? There is a punishment—so what is the problem? No, if there is no warning, even though the punishment is written, we may not punish.

Therefore Maimonides says that when we punish, it is always only when the punishment is accompanied by a warning written in the Torah. Without that, we do not punish, even if the punishment itself is written in the Torah. In general, maybe I should preface—here I’ll expand a little on what I didn’t get to last time. In terms of the Torah’s punishments, what punishments do we find? There are fines, there are lashes, and there are death penalties—yes, four death penalties—possibly ransom, and there is death at the hands of Heaven, excision—yes, these are the Torah’s punishments. Now all punishments except lashes have to be written explicitly in the Torah. Any place where there is liability for death is because the Torah itself says that one who does that is liable to death. There is no death penalty without that. So the punishment absolutely has to be written. The one exception—and it is a very large exception—is the punishment of lashes. An ordinary prohibition for which nothing else is written—the punishment is lashes. But nowhere is it written that for this you are liable to lashes; it says only that it is forbidden, not that you are liable to lashes. So the Talmud derives that from “then the judge shall cause him to lie down and strike him.” And “then the judge shall cause him to lie down and strike him” is said regarding muzzling—“you shall not muzzle an ox while it is threshing.” I don’t know why they chose specifically that from which to learn the principle, but in principle one who violates a normal prohibition is liable to lashes. From there the sages derive it for all prohibitions—except, again, a prohibition that involves no action, a prohibition converted into a positive commandment; there are special prohibitions for which one is not lashed. But an ordinary prohibition—once you transgress it, there are lashes. And the punishment of lashes is not written in the Torah. But the warning, of course, must be written in the Torah. Otherwise, if we did not find a prohibition and no punishment is written either, then how could we punish? And where there is a warning and we know the person violated a prohibition, one does not need a punishment to be written in order to say he is liable to lashes. The punishment of lashes is not written, but it need not be written.

What happens if I learned the prohibition from exegesis? Then one does not lash. Maimonides says: one does not lash because that is punishment from legal inference. Something learned through an a fortiori argument or one of the interpretive principles does not have the status for which one lashes; it is from the words of the sages. A prohibition—and there is a halakhic consequence: one does not punish. That means Nachmanides is right in his interpretation of Maimonides’ words. Nachmanides basically says that when Maimonides says that laws that emerge from exegesis are from the words of the sages, Maimonides means it seriously. This has halakhic consequences, and it is not merely a matter of classification.

Now what about the other punishments—offenses for which there is a different punishment? There the punishment must be written, right? Otherwise what would we do? We would administer lashes, right. If no punishment is written, then the default is that if you committed a prohibition, you get lashes. Any other punishment has to be written: a fine, death, any death penalty, excision, death at the hands of Heaven—all those other things have to be written. If it isn’t written, we give lashes; we don’t do something else. So the punishment certainly has to be written. The question that arises is: once the punishment is written, can we dispense with the warning? If the warning isn’t written, no big deal—after all, the punishment is written, so the Torah said to kill him, then surely we kill him. Why do we need a warning? The Torah said to kill him; what does the warning have to do with it? For lashes, you can’t punish without a warning because regarding lashes the punishment isn’t written. So if you have no warning, then it simply isn’t forbidden—what do you want? On what basis would you punish him? But for other punishments, where the punishment is already written, why do we need the warning? Why does the Talmud ask: we have heard the punishment; from where do we know the warning? Okay?

So Maimonides says that if we have no warning, then even if the punishment is written, we do not know that there is a prohibition here. In a moment we’ll see whether we would lash or not lash, punish or not punish, but we do not know there is a prohibition. Without a warning, even though the punishment is written, we do not know there is a prohibition. The prohibition must be written. What happens if the punishment is written, and we derive the warning through exegesis, from some interpretive principle? Maimonides says: if the punishment were not written—just a plain case—we learned a prohibition from an interpretive principle, then one does not punish. This is called “one punishes only if one gives a warning,” right? Or “one does not punish from legal inference,” or “one does not warn from legal inference.” So therefore we would not punish, because something that comes out of exegesis is not Torah-level. But if the punishment is written, and we did not find a written warning, only a warning from legal inference, a warning from exegesis, then we do punish too, says Maimonides.

So first of all, what do we see for our purposes? That something that comes out of exegesis is not just a classificatory claim in Maimonides—that one does not count it among the commandments. This is a halakhic claim. Something that comes out of exegesis, according to Maimonides, is not punishable. That is the idea of “one does not punish from legal inference.” In other words, Maimonides does not mean merely to say: okay, it came from the sages, but its status is Torah-level. No. Its status is rabbinic; one does not punish for it. There—you have another implication through which I show that Maimonides means it seriously when he says this is from the words of the sages, this is rabbinic. Not as the Tashbetz and his followers interpret Maimonides.

Why indeed, when the punishment is written and we derive the warning from legal inference, is that okay? Apparently, the same idea we saw in the previous example: once the punishment is written, then when we find exegesis, the exegesis reveals to me that this punishment is a punishment for an offense. Because otherwise, why is it written? There is a punishment in the Torah. Therefore there a warning from legal inference suffices for me, a warning that emerges from exegesis. Because that is, in a certain sense, an interpretive exegesis—just as we saw earlier regarding a law given to Moses at Sinai, that an interpretive law given to Moses at Sinai—the measure—explains the prohibition of pork. Here, “one who strikes his father or mother shall surely be put to death”—we found a warning through exegesis. That warning merely interprets “one who strikes his father or mother shall surely be put to death”; it tells me that this is not just a punishment, but there is also a prohibition. Therefore such a warning, even though made on the basis of exegesis, a warning from legal inference, is one for which we do punish. Exactly as we saw with a law given to Moses at Sinai.

But in both of these cases, from the positive you can infer the negative: only in a law given to Moses at Sinai and in laws that come out of exegesis—why indeed do we punish for it, or why indeed is doubt ruled stringently? Because this is an interpretive law given to Moses at Sinai or an interpretive exegesis, one that interprets a Torah law that is written. But from that we can understand that if there is a law given to Moses at Sinai that innovates a new law, or an exegesis that does not interpret an existing law but creates a new law, then there it would really be from the words of the sages; doubt would be ruled leniently, and one would not punish for it, and so on. Those are basically the two proofs that Maimonides means it seriously.

Now, one question—just a side question that I still want to touch on briefly. What would happen if the punishment were written and we did not find a warning, not even through exegesis? The Talmud says: we have heard the punishment; from where do we know the warning? It says there has to be a warning. We didn’t find one. What do we do in that situation? What does it mean that we didn’t find one? One could say: fine, we didn’t find one because we’re not smart enough, but there has to be a warning; there is no punishment without a warning. But if that were so, then clearly there is no need to search for the warning. Because we know it exists. What difference does it make whether we are smart enough to find it or not? We know there is a warning, because without a warning there could not have been a punishment. No. The Talmud insists on looking for a warning, and if it doesn’t find a warning, then it looks for one through exegesis. Meaning: there must be a warning, and we also have to find it. Why? If we didn’t find it, what would happen? The Torah says “one who strikes his father or mother shall surely be put to death,” and we did not find a warning. So we would not carry out what is written in the Torah? The Torah says he shall surely be put to death—would we not punish?

So look. The Sefer HaChinukh, in commandment 69, in parashat Mishpatim, on not cursing a judge—not the prohibition of blessing the Name—“You shall not curse God,” and the meaning is judges. Because in the Torah, “God,” when the Torah says “God,” means, in certain cases, judges. By the way, why? Why are they called “God”? Yes, right—meaning, the judge has formal authority such that what he says must be done, not necessarily because he is right but because he is the judge. Authority of that kind is called “God.” That is the authority the Holy One has: one must obey Him because He is the Holy One, not because He is right—He probably is right, but that’s not the basis of His authority. The basis of His authority is that He created us; He is the owner; what He says must be done. In that sense, the judge is “God.” Okay, that is the meaning of the term.

Yes, not to curse the judges, as it says “You shall not curse God,” and its interpretation is the judges, “whom God shall condemn.” Scripture expressed them with the term “God” so that another prohibition would be included together with this prohibition, namely the prohibition against blessing the Name, may He be blessed. So why were they called “God” here—“You shall not curse God”? In order to hint to us that there is also a prohibition against cursing the Holy One, “You shall not curse God.” And in the Mekhilta and the Sifrei: the warning for blessing the Name is from the verse “You shall not curse God.” And what is written elsewhere, “Whoever pronounces the Name of the Lord shall surely be put to death,” that is the punishment, but the warning is from here. It says “Whoever pronounces the Name of the Lord shall surely be put to death,” so the punishment appears for someone who curses God, but where do we get the warning? So he says the warning is from “You shall not curse God” in our passage, okay? Meaning in parashat Mishpatim. Then what it says there, “God,” in its plain sense means the judges, but in its exegetical sense it means the Holy One—it means God. Here we see an example of what Maimonides wrote: when the punishment is written in the Torah, the warning can also be derived from exegesis, because that is exegesis, not the plain sense of the verse. Okay? And this is what our sages of blessed memory always said: we have heard the punishment; from where do we know the warning? Yes—when there is a punishment, in order to implement it there also has to be a warning; without a warning we do not do it.

Now he starts to explain the matter. And the idea is that if all we had was a divine prevention in the matter, saying merely that one who does such-and-such will be punished in such-and-such a way—this reminds you of Israeli law, the thief’s punishment is such-and-such, right? If that were all that was written, it would imply that anyone who wished would have permission to accept the punishment and not care about the suffering involved, and to violate the commandment without thereby acting against the will of the blessed God and His command, and the commandment would become something like a commercial transaction. Meaning: one who wishes to do such-and-such will pay such-and-such and do it, or will accept such-and-such suffering and do it. What is he saying? He is saying that if the Torah wrote a punishment and we did not find a warning, then a person would understand that basically—say, one who pronounces the Name—fine, no problem pronouncing the Name; there is nothing forbidden about it, the Holy One has no issue with it. Fine? Only what? There is a rule here, like a commercial transaction, as he calls it. You want to do it? Fine, the price is this. If you do it, he shall surely be put to death. They will kill you not because you committed an offense, but because those are the rules. Yes, it reminds me of The Little Prince. Yes, I do this because those are the rules. Okay, that is what I would think. Therefore the Talmud constantly insists: we have heard the punishment; from where do we know the warning? In order to explain to me that the punishment is not given as some kind of price in a transaction. The punishment is a sanction for criminality. Because you did something wrong, therefore you receive a punishment. How do I know that I did something wrong? There has to be a warning telling me that it is forbidden to do that. It is not enough to say “the thief’s punishment is such-and-such”; it also has to say that it is forbidden to steal. Otherwise I would say: okay, I’ll steal; the prohibition is getting caught, right? That’s the standard joke. That is really what the conception would have to be. Meaning: if they catch me, then I’ll get punished because those are the rules, but there is no principled problem with stealing; the legislator doesn’t mind that I steal, he just has, for obscure reasons one way or another, a definition that if I steal I go to prison. Fine, but there is no problem. Fine? So that is the claim.

Today it is very common to see things that way. You can see all kinds of former prisoners interviewed all over the place explaining to us what ethics says one should do in various situations. And they “paid their debt to society,” as they say. So the claim of the Sefer HaChinukh is that this is basically what lies at the foundation of the Talmud’s question, “we have heard the punishment; from where do we know the warning?” Meaning: how do I know that this thing is also forbidden, and that the punishment is not just a commercial transaction? So because of that one always has to look for a warning too; it is not enough that the punishment is written. And that is what I would think if only a punishment were written and not a warning. And the commandments are not intended in that way; rather, God, for our good, restrained us from certain things, and in some of them informed us of the punishment awaiting us immediately, aside from the violation of His will, which is the hardest thing of all. Yes, aside from the fact that you’ll get punished, simply the very fact that you did not obey the Holy One—that is the more problematic thing. And this is what the sages of blessed memory said everywhere: He does not punish unless He first warns. Meaning, God does not inform us of the punishment that will come upon us for violating the commandment unless He first informs us that His will is that we not do that very thing for which the punishment comes. Okay? So there has to be a warning too, not only a punishment.

Actually, when you look at this Sefer HaChinukh, first of all what is he saying for our purposes? Suppose a punishment were written and we did not find a warning—what would we do then? We would punish. As I said before, okay, so we wouldn’t punish? The Torah says to punish. So there is no option not to punish. So why is it important to find a warning? It is important to find a warning because we would punish, we would impose the punishment, but not as a punishment—as a price. You did it? Receive this sanction. Everything is fine, we have no complaint against you. You are not disqualified from testimony, not disqualified from slaughtering, everything is fine. You have no criminal status at all; you simply paid your debt to society and everything is excellent. So the claim of the Sefer HaChinukh, first of all, is that a warning is needed not in order for us to punish—the verse says to punish. It’s not that we would not punish without a warning. But we would punish in the mode of a transaction, as if imposing a price or collecting a price, not as a sanction, a punishment in the substantive sense.

There are two examples of this. Maybe before that, this is somewhat related to what I talked about in the first semester. He says that beyond the punishment, the greatest thing is violating His will. Yes, that is the most problematic thing in a transgression. Aside from getting punished, the consideration should be that I must fulfill the will of the Holy One. That parallels the two aspects in every commandment and transgression, what I spoke about—the aspect of essence and the aspect of command. Yes, when I fulfill a commandment, I obey the Holy One, and it probably also produces some benefit; that’s why we were commanded, because it is supposed to bring some sort of benefit. And similarly if I commit a transgression. If I commit a transgression then, first, some sort of spiritual damage is caused, because of which the act was forbidden; and second, I also rebelled against the command of the Holy One. These two aspects are expressed in the punishment and the warning. Okay? Basically the warning comes to tell you that this is wrong, and the punishment is the sanction or recompense for having done that act. Okay?

So there are… what happens? There are situations in which we nevertheless see that a punishment is written and we do not find a warning. Two examples of this—I don’t know whether there are more, because I saw this once in an article by Rabbi Dov Lando many, many years ago. Today he is the head of the gang. In a short article he brought two examples there that are implications of the Sefer HaChinukh’s words here. First example: the Talmud says that a prophet who suppresses his prophecy receives lashes. Yes, a prophet who receives prophecy from the Holy One and does not deliver it to the one to whom he is supposed to deliver it—he gets lashes. The Talmud discusses there how he gets lashes, who warns him, after all only he and the Holy One know that he received prophecy. So how does the court know? How are there witnesses? How can they administer lashes? His fellow prophets warn him and testify against him, the Talmud says. But there is a question: Tosafot there asks, where is the warning? Why is he lashed? Suppose we have a source saying he gets lashes—but where is the warning? Where is it written that a prophet is forbidden to suppress his prophecy—sorry, not supposed to suppress his prophecy. Is there a verse about that?

Really that question is a bit strange, because what do you mean, a verse about that? Meaning, where is there a verse telling me I need to keep the Sabbath? In the verse commanding me to keep the Sabbath, right? I don’t ask where there is a verse commanding me to obey the verse that tells me to keep the Sabbath. The verse commanding me to keep the Sabbath tells me to keep the Sabbath. When the Holy One comes to a prophet and says to him: prophesy, go to so-and-so and tell him such-and-such—that is the command. You don’t need a command in the Torah. The command is that itself. They told you to go and prophesy; you didn’t do it. So there you are, you have a warning. The warning is the very fact that the Holy One told you to go prophesy. So that is a somewhat strange Tosafot question. In any case, the Minchat Chinukh, when he talks about suppressing prophecy, says that beyond that, simply speaking it is probably only rebellious lashes and not regular lashes; there are several difficulties here. Never mind. The Minchat Chinukh, when he discusses this, proposes another suggestion, and he brings the Sefer HaChinukh we just read, and says: right, in the case of a prophet who suppresses his prophecy there is no warning. There are lashes without a warning. And still, they lash him. If it says one has to lash him, then they lash him. It’s just that if there is no warning, the Sefer HaChinukh taught us that these are basically lashes that are only collection of a price. Right? It’s not because you did something wrong, committed an offense, and therefore they punish you. They are collecting from you the price fixed in the law for one who does such-and-such. But otherwise you are completely fine; we have no complaint against you.

He says that this can explain what happens in the book of Jonah. Yes, in the book of Jonah the Holy One tells Jonah to go to Nineveh and tell them what needs to be told. And Jonah runs away from the Holy One like a first-grade child. The Holy One sends you to tell Nineveh some prophetic message, and you run away from the Holy One? Playing hide-and-seek? So He won’t see me, He won’t catch me? What, are you joking? A prophet—we’re talking about someone who reached the level of prophecy, not some simple person. How—what did he think?

So the Minchat Chinukh says: what he thought is what is written here. He thought that one who suppresses his prophecy has no warning, only lashes. So he says: I am making a conscientious objection. I’m not going to prophesy even though the Holy One commanded me, and I will bear the consequences. Fine, He’ll lash me. There is no problem in not prophesying, in not delivering the prophecy, right? Because there is no warning. So it isn’t written that it’s wrong. There is a price. Let them lash me, fine. I refuse to prophesy and let them lash me. That is what he says.

And here you have an example of the implication of the Sefer HaChinukh’s words, that this really means that where we find a punishment and do not find the warning, then in that place we will impose the punishment but as recompense or a price, collection of a price, not as a sanction for a criminal act. In the end the Minchat Chinukh rejects this and says it can’t be. Why can’t it be? Maybe before I say why it can’t be, another example. There is a Talmud in Temurah. The Talmud in Temurah raises the possibility—not states it, but raises the possibility—that one who swears a true oath that the court imposed on him would get lashes. That too is very strange. Not that he swore a true oath—terrible thing—but for example the oath of bailees. Someone sues me, I am a bailee and he deposited something, and then I swear the bailee’s oath, which the court forces me to swear. And the oath is a true oath; there is no indication at all that I lied—and I get lashes? For having sworn. Why? Because there are lashes for an oath. The Talmud cannot figure out how there could be lashes for an oath, and the option it found was for a true oath.

Now here, not only is it a true oath; the court forced me to swear. What—you forced me to swear? It’s not that I chose, like Jonah, to make a conscientious stand, do it and take the punishment. I didn’t choose. You would have beaten me if I hadn’t sworn. So after you force me to swear, you lash me for having sworn? And I swore truthfully. It’s absurd. There are two nuances there in how to interpret the Talmud, but according to Rabbeinu Gershom that is what comes out. Then the Talmud rejects it. It says: that can’t be; one does not get lashes for a true oath. What was the initial assumption? So Rabbi Dov Lando writes the same thing as with Jonah. Since there are lashes for an oath, and we did not find the warning on the basis of which one could administer lashes, for various reasons appearing there in the Talmud, then apparently one has to say that there is some act which in itself is not an offense, but whoever does it pays a price. Like someone who does it under compulsion, when the court forces him to swear. And that too is an expression—but there too it is only an initial assumption that gets rejected. And in the Minchat Chinukh too he rejects it out of hand. So there are two nice initial assumptions. They sharpen for us the Sefer HaChinukh’s idea. But why indeed are they rejected? They are rejected for a very simple logical reason.

The Talmud asks: we have heard the punishment; from where do we know the warning? Maybe there is no warning. Who says there is a warning? It could be that this punishment is only collection of consideration, and not a sanction. It could be, right? If we don’t find a warning, then what will be our conclusion? That it is a price, not a punishment, right? Like the examples we saw. How does the Talmud know that all the punishments written in the Torah are punishments and not that some of them are prices? For things that have a warning, then certainly they are punishments. But in a place where you did not find a warning—what is the problem? You have a simple way out. It is a price, not a punishment. So why does the Talmud ask: we have heard the punishment; from where do we know the warning? Because it is obvious to the Talmud that there has to be a warning. There cannot be a punishment without a warning. Or in other words, what is the Talmud assuming? That there is no such category as consideration, as a price. All punishments in the Torah are punishments; they are not prices. How do I know that? From the fact that the Talmud asks: we have heard the punishment; from where do we know the warning? If the Talmud found a warning, then it found a warning, everything is fine. In places where it found one, it found one; in places where it didn’t, it didn’t. But if it asks: we have heard the punishment; from where do we know the warning?—what does that mean? That there must be a warning. If there is no warning, that requires investigation. Then they even strain to find a warning from legal inference, through the interpretive principles, as Maimonides explained and the like. Because there has to be a warning. Why does there have to be a warning? Because in Jewish law there is no punishment that is not a punishment, that is merely collection of a price. There isn’t. Every punishment written in Jewish law is a sanction upon wrongdoers. And for that there must always be a warning.

Of course, once again the question comes back: then why do we need the warning? If you already know in advance that every punishment must have a warning, then even if you didn’t find it, it has to be there—so why search? You already know there is a warning. What difference does it make whether you found it or not? Practically speaking, you know it’s there. The answer is probably that you cannot punish if the person standing before you has no source in a verse or some other source telling him that this is forbidden, then he was never warned. You cannot punish him if you did not warn him, even though it is obvious that the thing is forbidden. Still there is a rule that one punishes only if one warns. Not because there is no justification for punishment; there is justification, because a warning has to exist—there is no punishment that is just collection of a price. But from the standpoint of the person, it may be that he was not warned, he did not know, there is no source from a verse prohibiting it, and therefore you cannot punish him. From the standpoint of the individual, you cannot punish him.

In any case, I’m closing that remark. The claim is basically that from these two places in Maimonides one can see that when Maimonides says that laws that emerge from exegesis are laws from the words of the sages, he means it seriously. He is talking about the question of force and not the question of source. That is really the claim.

Now I want to go back for a moment to the second root that we started last time. So yes, we started the second root; I’m not going to go back again over the first part we read. The claim is that Maimonides there brought several categories of commandments: things written in the Torah, things not written in the Torah, things that come out of exegesis, but there are supporting exegeses and creative exegeses. Supporting exegeses are Torah-level; creative exegeses are rabbinic. Accepted interpretations from Moses are basically a law given to Moses at Sinai, and that too is rabbinic. Then he says that not everything the sages found and derived by analogy from the thirteen interpretive principles should be said to have been said to Moses at Sinai, nor should everything found in the Talmud and linked to one of the thirteen interpretive principles be said to be rabbinic, for sometimes it will be an accepted interpretation. Again, so what is the contrast here? Was it said to Moses at Sinai, or is it rabbinic? Right, those are the two categories. The dilemma is: I see an exegesis, and the question is whether it is rabbinic or whether it was said to Moses at Sinai. Now if it was said to Moses at Sinai, then what is it? Then it is not rabbinic, it is Torah-level, and then it would apparently also be counted among the commandments. Which means that the contrast to Torah-level, what he writes here, is that those creative exegeses, exegeses that are not Torah-level, are rabbinic.

Now the term—Maimonides is precise in his wording. Why does he say “rabbinic,” unlike almost all the medieval authorities? With Maimonides there is a rule: Maimonides is precise in his wording. Fine distinctions in the medieval authorities are often just pilpul. But distinctions in Maimonides—that’s basic, he chose his words carefully. As a rule, with Maimonides one may infer from wording. And if Maimonides writes “rabbinic,” the term “rabbinic” is used by him on the plane of force, not on the plane of classification, not on the plane of source. If he says this is a rabbinic law, then “rabbinic law” is a clearly defined category; we know that term. If he says rabbinic law, he means rabbinic.

Now why, if it is an accepted interpretation from Sinai, is it Torah-level? Notice: an accepted interpretation from Sinai does not mean what is written in the verse—that is obviously Torah-level. “Accepted interpretation” means a law given to Moses at Sinai. After all, we saw in the Mishnah in Kelim, in the Commentary on the Mishnah in Kelim, that according to Maimonides a law given to Moses at Sinai is rabbinic, from the words of the sages. Yes—but that is only where the law given to Moses at Sinai stands by itself. But if we find exegesis that anchors the law given to Moses at Sinai that was transmitted orally, then it is Torah-level, not rabbinic. Right? That is supporting exegesis, not creative exegesis. Supporting exegesis is Torah-level; only creative exegesis is rabbinic. In other words, Maimonides says: if there is exegesis and we have a tradition regarding it, then it is Torah-level, because that is supporting exegesis. We know the law, and then we find exegesis that supports that law. If it is creative exegesis, we have no tradition and the exegesis created the law, then it is rabbinic and therefore it is not counted. And Nachmanides comments to him: according to your own position, Maimonides, a law given to Moses at Sinai is rabbinic. In other words, a tradition transmitted orally from Sinai is a rabbinic law. A law that emerges from exegesis is also rabbinic law—that is what he writes here in this root. But if you have both together, then it is Torah-level. If there is tradition and exegesis about that commandment—it came in tradition and I also found exegesis—then it is Torah-level. How does zero plus zero give me one? The tradition by itself does not make it Torah-level; the exegesis also does not. But if there is tradition and exegesis together, then it is Torah-level. How does that miracle happen?

Now notice: the idea in Maimonides all along, as I said before, is that the concept of Torah-level is interpreted literally. Torah-level means what is written in the Torah. A law given to Moses at Sinai is not written in the Torah, and a law that emerges from exegesis is not written in the Torah either. “You shall fear the Lord your God”—to include Torah scholars—fear of Torah scholars is not written in the Torah. Okay? Therefore it is rabbinic, because it is not written in the Torah. What happens when it is both a law given to Moses at Sinai and exegesis—there is a tradition and exegesis that anchors the tradition—then it is already Torah-level. Why? Then it is written in the Torah? How does that happen?

Well, we’ll see—yes—how zero plus zero equals one; remember that phrasing. Then he says that the indication depends on what the sages themselves transmit to us. If they made an exegesis and tell us that it is Torah-level, we understand that this exegesis was supporting exegesis, preserving exegesis, as some call it; yes, the law was already given and the exegesis anchored it. If the sages did not tell us anything, our assumption is that this is creative exegesis and therefore it is rabbinic law. Why, if they didn’t say, are we not in doubt? They didn’t say, fine—so either there is a tradition or there isn’t; we don’t know. If they said there is a tradition, then we know there is a tradition and it is Torah-level. If they didn’t say, then they didn’t say, so I don’t know. Why is that not a situation of doubt? Why does he say that if they did not say, then it is rabbinic? His assumption is that the default is that it is rabbinic. And the sages themselves need to tell us, for every case that has a tradition, so that we know that it is Torah-level law. If they didn’t tell us, then apparently it is rabbinic. It is not a doubt, because if it were Torah-level they would have had to say so. Okay? Simply in order not to cause us to err—that is his assumption. Therefore if they did not mention it, did not say anything, then it is not a doubt whether it is Torah-level or rabbinic; rather, it is rabbinic.

Maimonides writes in a responsum that all the laws that emerge from exegesis, except for maybe three or four—three or four—are creative exegeses, laws from the words of the sages. So basically we have only isolated examples where the sages told us that it is Torah-level, and therefore we understand that the exegesis there is supporting exegesis and not creative exegesis. Isolated laws. The default for almost all exegesis is that it is creative exegesis. And if it is creative exegesis, then the product is rabbinic law, one does not punish for it, a doubt is ruled leniently, one does not include it in the count of commandments, and so forth.

And look at the expression. Therefore the proper approach here is that everything you do not find written in the Torah, and you find in the Talmud that they learned by one of the thirteen principles—if they themselves explained and said that it is the body of the Torah or that it is Torah-level, then it is proper to count it, because the transmitters said that it is Torah-level. Do you see the antithesis? Before he spoke about rabbinic; now he speaks about “it is proper to count it,” but he doesn’t leave it at that. He says it is proper to count it because it is Torah-level. The question of force is what is at issue here. The counting is only an expression. First of all the question is whether it is Torah-level or rabbinic. A practical difference is whether to count it, but he is speaking about the question of force. More than that: and if they did not explain this and did not speak about it, then it is rabbinic. You see here that he explicitly sets Torah-level over against rabbinic.

Now look at the last words: because there is no written text there indicating it. Why is it rabbinic? Because there is no written text indicating it. What does that mean? Because it does not appear in the Torah. Again, there is the indication: according to Maimonides, Torah-level is what appears in the Torah. If there is no verse that says this thing, then it cannot be Torah-level law. There is simply no verse that says it, so it is not Torah-level. So what do we learn from here? First, that Maimonides is talking about force—Torah-level versus rabbinic—not source. Second, what is the criterion? The criterion is whether it is written in the Torah.

Now this is a very interesting point. Notice: apparently these two conclusions that we see here contradict one another. Why? I said there are two interpretations of Maimonides’ words: is he talking about source or force? Right? If he is talking about source—sorry, source—then I understand why the criterion is that Torah-level means what is written in the Torah. A question of source. What is the source? The source is what is written in the Torah. If it isn’t written in the Torah, then that is what Maimonides calls rabbinic, but that is only a question of source. Is it written in the Torah or not? That doesn’t necessarily have anything to do with force. Fine? So I understand why the criterion is whether it is written in the Torah. But if you are talking about force, why is your definition of Torah-level “what is written in the Torah”? What difference does it make whether it is written in the Torah? If there is a law given to Moses at Sinai that the Holy One told us orally, He still told it to us—only orally, not in writing. So that isn’t Torah-level? Why isn’t it Torah-level? If you are talking to me about source, then okay—it isn’t Torah-level because it isn’t written in the Torah. Fine, I don’t care, that’s not so important. But if you’re talking about force, why does it matter how the Holy One told it to us—orally or in writing? At the end of the day, if the Holy One said it, it should carry Torah-level force.

So it comes out that Maimonides here is dancing at two weddings. Maimonides is basically saying: on the one hand, I am interested in force, not just source. But my criterion for force is a criterion that looks like the criterion for source. If the source is from the Torah, then it is Torah-level and therefore its force is Torah-level. And if the source is not written in the Torah—a law given to Moses at Sinai or exegesis or something like that—then its force is rabbinic. In other words, Maimonides says this, in other words, and now I’m summarizing the first part: Maimonides basically says, I am dealing with force. But the criterion for force is the source. Or in other words, Maimonides does not accept the distinction between source and force. It is the same question. Whatever has its source in the Torah—its force is Torah-level. Whatever has its source not in the Torah—its force is rabbinic. It is not correct to distinguish or separate the question of source from the question of force. That is really what Maimonides is saying here. Now that needs to be understood. Why? What is the idea here? So let’s continue a bit; we have a hint further on.

And this too is a root in which others have already erred. Usually this means the author of Halakhot Gedolot, yes? Everyone Maimonides attacks in the roots is usually the author of Halakhot Gedolot, because he counted the commandments before Maimonides, and Maimonides proposed an alternative count. And therefore he counted fear of sages among the positive commandments, and brought as support for this, as it seems to me, the saying of Rabbi Akiva: “You shall fear the Lord your God”—to include Torah scholars. And he thought that whatever comes through amplification is part of the category mentioned. Since “You shall fear the Lord your God” is amplified, then apparently it is included in the verse. Right? So the verse says fear of Torah scholars too, and therefore there is a verse and it is Torah-level.

And if the matter were as they thought—if that were really so—why did they not count honoring one’s mother’s husband and one’s father’s wife as separate commandments, attached to honoring? I said I understand why the author of Halakhot Gedolot thinks this is Torah-level, because it comes out of a verse. But if you count fear of Torah scholars, then count too honoring one’s mother’s husband and honoring one’s stepfather and honoring one’s older brother and the like. Count those too. All of them come from amplifications of “et”; you are not being consistent.

What does Maimonides himself claim? That one need not count them. Why not? Why not count them? One could have said not to count them because of a classificatory problem, because they are basically included—say, fear of Torah scholars is included in fear of God, because it is amplified from the same verse. So it is a Torah-level commandment, only one does not count it separately in the count of commandments because there is already such a commandment. Fear of God includes this too. But Maimonides, as we have seen until now, does not mean to claim that. He says one does not count it because it is not Torah-level. It comes out of the verse and you think it is Torah-level—you are mistaken; it is not Torah-level. Even if it were Torah-level, it would still not necessarily have to be counted, because it is included in fear of God, which is learned from the verse “You shall fear the Lord your God,” so it is included in fear of God. Who says this is counted as a separate commandment? But it also is not included in the verse, says Maimonides. This is a rabbinic law.

And their foolishness reached something even worse than that. Namely, when they found exegesis in a verse, from which that exegesis required performing some action or distancing some matter—and all these are, without doubt, rabbinic, as he said above, something that comes out of exegesis is rabbinic—they counted them, the author of Halakhot Gedolot counted them, among the commandments, even though the plain sense of the verse does not indicate any of those things. Even though the plain sense says nothing of the kind. So how can you tell me it is Torah-level and not rabbinic? What do we see here? What is Maimonides’ criterion for Torah-level versus rabbinic? Does the text say it? Is it the plain sense of the text? He says no, the plain sense of the text doesn’t say it, it is exegesis. So if that is the case, then it cannot be Torah-level; it is rabbinic. Again he says here: source is tied to force.

With this root our sages of blessed memory also helped us, in their saying: “A verse never departs from its plain sense.” And the Talmud asks in every place and says: regarding the verse itself, about what do they disagree? They found one verse from which to learn many things by way of explanation and proof. What is he saying? The Talmud says in several places, “Regarding the verse itself, about what do they disagree?” or “A verse never departs from its plain sense.” What does Maimonides mean to say here? What does “a verse never departs from its plain sense” have to do with this discussion?

Maimonides means to say: suppose we have a verse whose plain sense teaches fear of God, “You shall fear the Lord your God,” and the amplification includes Torah scholars, fear of Torah scholars. “A verse never departs from its plain sense,” says Maimonides, means that the interpretation of the verse is only its plain sense. “A verse never departs from its plain sense.” The exegesis is not an interpretation of the verse. The exegesis is another reading or an expansion—I’ll speak about that in a moment. It is not the interpretation of the verse. “A verse never departs from its plain sense” means, in effect—and this is Maimonides’ hermeneutics, Maimonides’ theory of interpretation—that every verse has only one interpretation, unlike what we are used to, “the Torah has seventy faces” and so on. No, says Maimonides. “A verse never departs from its plain sense” means every verse has only one interpretation and no other, and that is what is called the plain sense. The plain sense is the meaning of the text. And whatever is the meaning of the text is Torah-level law. What is not the meaning of the text is not written in the text, and therefore is not Torah-level law. And that is what Maimonides says here. Maimonides attacks the author of Halakhot Gedolot over this. He says: after all, a verse never departs from its plain sense, so how can you count fear of Torah scholars or honoring your father’s wife?

Nachmanides launches a major attack on Maimonides over this point. Many attacks here, but on this too he speaks particularly strongly. What does “a verse never departs from its plain sense” mean? How would you have understood “a verse never departs from its plain sense” until now? Not the way Maimonides says. What does that principle mean? So that is what Maimonides said—is that how you understood it? Absolutely not. That is absolutely not the accepted understanding.

Usually, when do people say “a verse never departs from its plain sense”? When they bring exegesis. Say, “You shall fear the Lord your God”—to include Torah scholars. Then the Talmud says: but a verse never departs from its plain sense. What does it mean? It says: fine, including Torah scholars is all very good, but the plain sense still stands. It is not coming to exclude the exegesis. It is coming to say: after you made an exegetical reading, fine, but there is also the plain sense. A verse never departs from its plain sense; you can’t remove the verse from its plain meaning. You can interpret it in other ways too, but the plain interpretation remains in force. For example: “an eye for an eye” means monetary compensation. Then you say: but a verse never departs from its plain sense. It says “an eye for an eye.” So you interpret that as money, fine. But a verse never departs from its plain sense—there is also the plain sense. That is what it means. And this is how Nachmanides attacks Maimonides: what do you mean, “a verse never departs from its plain sense”? It does not mean there is only one interpretation of the text. On the contrary. It comes to say that the text can be interpreted in many ways. And if you made all sorts of other interpretations and exegetical moves, the plain sense does not disappear. The plain sense remains with us; it too is an interpretation of the verse. Also—not only. The plain sense too is an interpretation of the verse; don’t tell me it is only the exegesis. That is what “a verse never departs from its plain sense” means.

Maimonides says no. And here the dispute begins—notice, this is an important point. Maimonides says no. “A verse never departs from its plain sense” means the interpretation of the verse is only the plain sense. “A verse never departs from its plain sense”; other interpretations are not interpretations of the verse. So then what are they? Then how are we to relate to exegesis? If the interpretation of the verse is only the plain sense, then how do I relate to exegesis? That is what I discussed in the introduction. I said that exegesis is a parallel reading of the verse. The interpretation of the verse is the plain sense. Exegesis is another plane, another language in which one can read the verse and derive further implications from it, learn further things from it. Fine? But the world of exegesis does not decipher what is written in the verse; only the plain sense does that. When I ask, what is the interpretation of the verse? What does the verse say? Only the plain sense tells me what the verse says. Exegesis does not.

Usually we understand exegesis as exposing further layers contained within the text. On the surface the verse tells me fear of God, “You shall fear the Lord your God,” and exegesis exposes another deeper layer here: one must also fear Torah scholars, something the untrained eye would not have seen. So exegesis comes and brings that to light, deciphers another layer present in the text. That is how Nachmanides understands it. Nachmanides understands “a verse never departs from its plain sense” to mean that exegesis is of course an interpretation of the verse, but the plain sense is also an interpretation of the verse. Don’t abandon the plain sense. There are several interpretations—that’s what he says, the Torah has seventy faces, and so on; he expands on this at length. “A verse never departs from its plain sense” means there are several ways to read the same verse, and all of them are interpretations of that verse.

Maimonides says no. Exegesis is not an interpretation of the verse; only the plain sense is an interpretation of the verse. Exegesis is not an interpretation of the verse; exegesis is something else attached to the verse. It is not the interpretation. And therefore, says Maimonides, one cannot count what emerges from exegesis among the commandments. It is not Torah-level. Why? Because it is not written in the verse. Exegesis does not interpret the verse; it uses the verse, it is attached to the verse, but it does not interpret the verse. So you cannot tell me that what you learned from exegesis is written in the verse. It is not written there. So it is not Torah-level.

According to Maimonides, according to Maimonides’ criterion, what is Torah-level? What is written in the verse—that is called Torah-level. Exegesis does not tell me what is written in the verse; the plain sense does that, and only the plain sense. So what is exegesis? Look further in the next section—I’m skipping a bit. See the next passage: and perhaps you may think that I refrain from counting them because they are not true, and whether a law derived by that principle is true or untrue? What does he mean? That I don’t count commandments that emerge from exegesis because I don’t trust exegesis. Exegesis is wordplay, I don’t trust it. Only exegeses for which we have a tradition from Sinai—those are Torah-level, because those I believe. But creative exegeses, exegeses that create new laws—who knows if they’re true or not? You can do anything with exegesis. That is not the reason.

But the reason is that whatever a person derives are branches from the roots that were said to Moses at Sinai in explanation, and those are the 613 commandments. Even if the one deriving them were Moses himself, it would still not be proper to count them. Maimonides says: exegeses are true. I have no doubt whatsoever about exegesis. The fact that I do not count the laws that emerge from exegesis among the count of commandments, and that they are not Torah-level, is not because I don’t trust them. I trust them completely. I don’t count them because they are branches that emerge from the roots. The roots are the Torah-level laws, what is written in the Torah, and exegeses are branches that emerge from the roots. What does that mean? It means this: Nachmanides represents the accepted view, which says that the interpretive principles are another tool for extracting information from the text. What does the text mean to tell us? When we want to know what the text means to tell us, we have the tools of plain interpretation, ordinary interpretation, and we also have the tools of exegesis, and they all extract for us more and more information from the verse. In other words, Nachmanides and most of the medieval authorities understand the interpretive principles as alternative or additional interpretive tools, and exegesis helps us expose additional dimensions that are present in the text.

Maimonides claims no. Exegesis does not expose what is written in the verse; exegesis expands what is written in the verse. That is Maimonides’ claim. Those are branches emerging from the roots. What is written in the verse is the roots, and that is Torah-level law—it is written in the Torah. Fear of God, “You shall fear the Lord your God,” is a Torah-level commandment; it is written in the Torah. “Et” to include Torah scholars—that is an expansion, not exposure of something else already inside. It is not there; the verse does not tell me honor Torah scholars. It is an expansion that we perform on the basis of the verse. It does not reveal something that was hidden within the verse. No. It expands it beyond what is in it. The tools of exegesis were given to us at Sinai so that through them we could expand the verses, learn additional things, not only expose what is in the verse. But those expansions are of course halakhically binding, they are true, valid, all of that is correct. But one cannot say that their products were written within the verse—they were not. They are expansions, not exposures.

Think of it this way. There is a difference between a person who comes and gives me a gift of a hundred shekels, and another person who gives me the key to my own safe, which I had lost, and I open the safe and find inside it a hundred shekels that were always mine. The dispute between Maimonides and Nachmanides about the interpretive principles is a dispute about how to see it: like a gift of a hundred shekels or like a key to a safe inside which I find a hundred shekels. Nachmanides understands it as a key to a safe. The interpretive principles open the safe of the verse, and I find more and more things that were inside. They were always there, they were there the whole time, that was the original intention, but you needed a key to open the safe—the interpretive principles are that key. Once I opened it, it is there; that hundred shekels is mine, it is part of what was inside the verse. So it is Torah-level, says Nachmanides.

Maimonides says no. It is not a key. The interpretive principles bring me a new gift of a hundred shekels; it was not mine before. I use a certain tool to receive an extra hundred shekels beyond the money that was mine. It does not reveal more things that were already mine; it is an expansion of what is mine. Therefore, says Maimonides, even though it is true and I have no doubt and everything is fine—I accept the validity of laws that emerge from exegesis—but it is not Torah-level. It is not Torah-level because these laws are not written in the Torah. They were not exposed or carved out from the verse. And that is what he says: even if the one deriving them were Moses himself, it would still not be proper to count them.

Yes, what if Moses himself made the exegesis? It changes nothing. It still is not Torah-level. Why? Because in the end he made an exegetical derivation. Why should I care that the one who did it was Moses? It is not because it isn’t true, says Maimonides; I trust exegesis, and if Moses made the derivation then surely it is correct. The problem is not whether it is correct or not; the problem is what it is. Is this correct thing carved out from the verse—was it inside the verse and I merely exposed it or extracted it—or was it added to the verse? Is it an expansion of what is in the verse?

And the proof for all this is what is said in the Talmud in Temurah: one thousand seven hundred a fortiori arguments, verbal analogies, and scribal subtleties were forgotten during the mourning for Moses, and yet Othniel son of Kenaz restored them through his analysis, as it says: “And Caleb said, whoever strikes Kiriath Sefer and captures it… and Othniel son of Kenaz captured it,” and so on. Since they were thus forgotten—yes, how many were forgotten? One thousand seven hundred a fortiori arguments and verbal analogies. That is the number forgotten. How many in total must there have been if that many were forgotten? Thousands, many. Because it would also be false to say that everything known was forgotten. And without doubt those laws derived by a fortiori argument and the other interpretive principles were many thousands. If one thousand seven hundred were forgotten, then not everything was forgotten. Apparently there were many thousands. So he says: if that is so, and all of these were known in the days of Moses—because they were forgotten during the mourning for Moses—then we are speaking about thousands of laws emerging from exegesis that existed in Moses’ own time. Here you see that even in Moses’ time they were called “scribal subtleties.” It says “one thousand seven hundred a fortiori arguments, verbal analogies, and scribal subtleties.” So what do we see? That even exegeses that Moses himself derived are rabbinic, not Torah-level. The problem is not that they are untrue—I believe Moses. Obviously it is true. But it is not exposure of the Torah; it is expansion beyond what is written in the Torah. Therefore it is rabbinic. So I also do not care if Moses himself derived it; that is irrelevant.

And then here is the rule he adds: for whatever they did not hear at Sinai explicitly is from the words of the sages. Everything not heard explicitly at Sinai—meaning, in the Torah—is from the words of the sages. Again he returns to his criterion. The criterion of source. If it is written in the Torah or not—that determines force. If it is written in the Torah, its force is Torah-level. If it is not written in the Torah, its force is from the words of the sages, rabbinic. Thus it has already been clarified that among the 613 commandments said to Moses at Sinai, one does not count everything learned by the thirteen interpretive principles, even in his own time, peace be upon him—Moses’ time. All the more so, one does not count among them what they derived at a later time, in future generations.

However, one does count what was an accepted interpretation from him. That is, if the transmitters explain and say that this thing is forbidden to do and that its prohibition is Torah-level, or they say that it is part of the Torah itself, then we count it. Because it became known by tradition and not by inference. That is what he said: if there is a tradition and the exegesis only comes to protect the tradition, then it is Torah-level. The fact that you see exegesis by itself proves nothing. It depends on whether it is preserving or supporting exegesis, or creative exegesis. And the mention of the inference and the bringing of proof for it through one of the thirteen interpretive principles is only to show the wisdom of the text, as we explained in the Commentary on the Mishnah. Yes, so that is preserving exegesis or supporting exegesis. Even though we have this law by tradition, the exegesis anchors that law that we knew—that is Torah-level law.

Now I’ll just finish with one sentence that closes the circle. Nachmanides had asked: why is a law given to Moses at Sinai rabbinic? Something that comes out of exegesis is also rabbinic according to Maimonides, yes? So why, if something passed in tradition from Sinai and yet we have exegesis that anchors it in the text, does it become Torah-level? How does that happen? How does zero plus zero give one? Now we have a tool to try to answer this. Why? Because basically the question is this: Maimonides already told us what his criterion is. What is written in the Torah, right? Torah-level is what is written in the Torah or what is carved out from it. Okay? By contrast, expansions beyond what is written in the Torah, or oral tradition such as a law given to Moses at Sinai—those are rabbinic laws, because they are not written in the Torah. You cannot call them Torah-level in the literal sense.

It may be that Maimonides says that a law for which we have tradition, but we also have exegesis that anchors it in the text, is Torah-level. Why? Because the tradition tells me that the exegesis I made is actually contained within the text. In this case the exegesis is exegesis that exposes what is within the text, not exegesis that expands what is in the verse beyond the verse. And that is what the tradition comes to tell me. And if the tradition reveals that the exegesis here is exposing exegesis and not expanding exegesis, then it is Torah-level. Why? Because the product of the exegesis was exposed or carved out from what was inside the verse. The exegesis brought out what was inside it, and so it is Torah-level. Exegesis for which there is no tradition is exegesis that expands what is in the verse—not one that exposes what is in it—and so that really is rabbinic law. The criterion is that what is in the text is Torah-level; what is not, is rabbinic.

Therefore, according to this, supporting exegesis—if I have a law given to Moses at Sinai conveying a law, and there is exegesis that anchors that law—then the law given to Moses at Sinai reveals to me that the exegesis I am using here exposed something that was already inside the verse. That is why they transmitted it to us as a law given to Moses at Sinai—to tell us that after all we have exegesis, so why do we need the law given to Moses at Sinai? The exegesis already tells me that law. The law given to Moses at Sinai reveals to me that this exegesis which I used is exposing exegesis, not expanding exegesis. Exposing exegesis reveals what is in the text, and therefore the product is Torah-level, because it was in the text. What is in the text is Torah-level. I’ll spell out that point more in the next class.