The Commandments and Their Enumeration – Lesson 14

Table of Contents

• Second Root: Derashot and the Status of Rabbinic Law
• Types of Difficulties with Maimonides’ Approach
• The Example of Monetary Betrothal and the Explanation of an “Explanatory Derashah”
• “Branches from the Roots”: An Expansive Derashah versus a Revealing Derashah
• Source and Authority: For Maimonides, These Are the Same Question
• Supportive / Confirming Derashah: Resolving the “Zero Plus Zero” Problem
• The Two Innovations in Maimonides: Interpretive and Halakhic
• The Ran in Nedarim: Accepting the Interpretive Innovation without the Halakhic One
• Another Example: The High Priest’s Garments and the Word “Linen”
• A Continuum between Interpretation and Legislation: Fuzzy Logic and Rabbinic Laws
• Doubts, Punishments, and the Range within “Rabbinic”
• The Parallel to the Court System and the Debate over “Judicial Legislation”

Summary

General Overview

The text argues that according to Maimonides, laws derived from the hermeneutic principles of derivation have the status of rabbinic law, and it presents an interpretive dispute over whether this is only a statement about the source of the law or also about its authority, while leaning toward Nachmanides’ reading that Maimonides really means actual rabbinic authority. It organizes four types of difficulties with Maimonides’ view, proposes a principled resolution by distinguishing between a derashah that “reveals” and a derashah that “expands,” and between a law that “explains” and one that “innovates,” and develops two innovations in Maimonides: an interpretive innovation according to which only the plain meaning is the interpretation of the verse, and a halakhic innovation according to which only what is written in the Torah is Torah-level law. It illustrates, through the Ran in Nedarim, acceptance of the interpretive innovation without acceptance of the halakhic innovation, and broadens this into a non-dichotomous picture in which there is a continuum of connection to the text, with different implications for the laws of doubt and punishment, alongside a parallel to criticism of the courts and the claim that there is no “pure” interpretation without elements of legislation.

Second Root: Derashot and the Status of Rabbinic Law

The text states that laws learned from derashot through the hermeneutic principles are laws whose status is that of rabbinic law. It presents two readings of Maimonides: one sees this as a statement only about the source of the law even though its authority is Torah-level, while the other, following Nachmanides, sees it as a statement that the authority itself is rabbinic. It brings proofs that Maimonides seriously means authority, including the claim that one does not punish for laws produced by derashot because “we do not impose punishment based on derivation,” and the rule that doubt, at least regarding a law given to Moses at Sinai, is treated leniently.

Types of Difficulties with Maimonides’ Approach

The text divides the difficulties into four main types. It presents Nachmanides’ conceptual objection: if the hermeneutic principles are a law given to Moses at Sinai and they are applied to a Torah given at Sinai, then the result should be Torah-level and not rabbinic, even though Maimonides himself also gives the status of rabbinic law to a law given to Moses at Sinai. It presents a second difficulty regarding Maimonides’ distinction between a creative derashah and a supportive / confirming derashah, and asks, “How does zero plus zero make one,” when the combination of tradition and derivation becomes Torah-level. It presents a third difficulty from the Talmud, which has many places where doubt concerning derashot is treated stringently, implying Torah-level status. It presents a fourth difficulty from contradictions within Maimonides himself and from the expectation that in the Mishneh Torah one should find hundreds of places where Maimonides defines as rabbinic what other medieval authorities define as Torah-level.

The Example of Monetary Betrothal and the Explanation of an “Explanatory Derashah”

The text brings Maimonides in the laws of marriage, where he rules that betrothal by document and by intercourse is a matter of Torah law, while betrothal by money is rabbinic, and it cites the question of the Ra’avad and the commentators as to how this can fit with the Talmudic derashot in tractate Kiddushin. It quotes Maimonides’ answer that whoever asked this “did not see what he wrote in the second root,” namely that something derived by a derashah has the status of rabbinic law. It then raises a difficulty from Maimonides in the very next law, where he does not distinguish, regarding the death penalty, between betrothal by money and betrothal by document or intercourse. It proposes a solution through a distinction Maimonides makes in his Commentary on the Mishnah in Keilim between a law given to Moses at Sinai that is “explanatory,” where doubt is treated stringently, and one that is “innovative,” where doubt is treated leniently, and it applies this to monetary betrothal as a derashah that explains the meaning of “when a man takes a woman,” so that the result is Torah-level even though it is learned through a derashah.

“Branches from the Roots”: An Expansive Derashah versus a Revealing Derashah

The text quotes Maimonides’ language in the second root, “And perhaps you may think… whether the law that emerges through that principle is true or not true,” and explains that Maimonides is not rejecting derashot as untrue, but as things that grow like “branches from the roots.” It presents the possibility of reading this merely as a classificatory explanation, similar to the four species, but rejects that in favor of understanding that Maimonides connects this to rabbinic authority. It argues that according to Maimonides, the derashah does not reveal a law written in the verse, but expands the verse beyond its plain meaning, and therefore the result is not “written in the Torah” and is thus not Torah-level. It quotes Maimonides’ line, “Even though the plain sense of the verse does not indicate this,” and the principle, “A verse does not depart from its plain meaning,” and concludes that Maimonides identifies Torah-level law with what is found in the verses of the Torah in their plain meaning.

Source and Authority: For Maimonides, These Are the Same Question

The text states that according to Maimonides, the question of source and the question of authority are really the same question. It defines Torah-level law as “from the Torah” in the sense of being written in the verses, and therefore a law that is not written in the Torah—even if it comes from the Holy One, blessed be He—is not Torah-level. It applies this also to a law given to Moses at Sinai, since it is not written in the Torah and therefore has the status of rabbinic law, and it explains that derashah, insofar as it creates law, is an expansion and therefore does not insert the law into what is written.

Supportive / Confirming Derashah: Resolving the “Zero Plus Zero” Problem

The text proposes a resolution to Nachmanides’ objection regarding a supportive / confirming derashah. It argues that when there is a tradition from Sinai about a law and only afterward a derashah is found for it, the tradition serves as a sign that in this case the derashah is “revealing” rather than “expanding,” because otherwise there would have been no need to transmit it orally. It concludes that in such a case the law becomes Torah-level, because the derashah functions as an interpretive tool that uncovers what is in the verse rather than as a tool of expansion.

The Two Innovations in Maimonides: Interpretive and Halakhic

The text defines an interpretive innovation in Maimonides according to which there is only one correct interpretation of a verse, and that is the plain meaning, while all other derashot are expansions rather than interpretations, in contrast to the position associated with Nachmanides of “seventy faces to the Torah.” It defines a halakhic innovation in Maimonides according to which something that does not appear in the Torah is not Torah-level, even if its source is at Sinai. It says that the interpretive innovation is expressed in reading “A verse does not depart from its plain meaning” as limiting the interpretation of the verse to the plain meaning alone.

The Ran in Nedarim: Accepting the Interpretive Innovation without the Halakhic One

The text brings the passage in Nedarim 8a about someone who says, “I will rise early and study this chapter,” and the question, “But is he not already sworn and standing from Sinai?” It quotes the Talmud’s answer that since he could exempt himself with the morning and evening recitation of Shema, “therefore the oath takes effect upon him.” It then quotes the Ran, who says, “It is not specifically that with this he would exempt himself,” because one is obligated to study “according to his capacity,” and he cites the baraita, “And you shall teach them diligently… that the words of Torah should be sharp in your mouth.” It concludes from the Ran that “anything that comes by way of derashah, even though it is from the Torah, since it is not explicitly stated in the verse, an oath can take effect upon it,” and explains that the Ran holds that derashot are not “written in the Torah” even though they are Torah-level, and therefore the oath from Sinai applies only to what is explicit in the verse, while a new vow or oath can take effect on obligations whose source is derivation. It concludes that in this way the Ran accepts the interpretive innovation that derashah expands rather than reveals, but rejects Maimonides’ halakhic innovation and separates source from authority, while maintaining that the question of source still has practical halakhic implications in the laws of oaths.

Another Example: The High Priest’s Garments and the Word “Linen”

The text brings an example from tractate Yoma about the five occurrences of the word “linen” in the garments of the High Priest, from which laws are learned such as that they must be made of linen, that the thread must be twisted from six strands, that the law is extended to garments in which “linen” was not stated, and that this requirement is indispensable. It describes how Maimonides rules that these laws apply even to garments in which “linen” is not stated, but there they are not indispensable, and suggests that this is because the rule of indispensability is said only about what is “in the verse,” whereas applying these laws to other garments is a derashah-based expansion that is not within what is written. It presents this as a practical halakhic implication of the interpretive innovation even without accepting that the law is rabbinic.

A Continuum between Interpretation and Legislation: Fuzzy Logic and Rabbinic Laws

The text returns to the framework of the first root, where the distinction between Torah-level and rabbinic depends on whether the sages were acting as interpreters or as legislators. It argues that Maimonides offers not a dichotomous picture but a continuous one, and illustrates this through the paradox of the heap and the claim that the mistake lies in assuming binary categories instead of “fuzzy logic.” It applies this to derashot as an intermediate state that is neither pure interpretation nor pure legislation, and gives examples of rabbinic laws that are “weakly Torah-like” as opposed to decrees whose purpose is “lest…” such as riding a horse on the Sabbath. It cites the Talmudic principle in tractate Shabbat that disputes are not from one extreme to the other, and explains this as fitting with the existence of an intermediate position of “forbidden rabbinically” as a middle state and not merely “permitted on the Torah level.”

Doubts, Punishments, and the Range within “Rabbinic”

The text argues that once you understand that there is a continuum of levels of connection to the written text within the category of “rabbinic,” the rules are no longer sweeping. It suggests that Maimonides can agree that doubt concerning laws derived through derashot is treated stringently even though they are called rabbinic law, while doubt concerning an “innovative” law given to Moses at Sinai, and doubt concerning enactments and decrees, is treated leniently. It concludes that punishment does not apply to everything that is not truly Torah-level, and therefore the line regarding punishments is drawn in a different place from the line regarding doubts.

The Parallel to the Court System and the Debate over “Judicial Legislation”

The text compares this to criticism of judicial activism, especially of Aharon Barak, according to which the court takes on the authority of a legislator instead of merely interpreting. It argues that this criticism mistakenly assumes the possibility of “hollow-pipe” interpretation, with no value-world of the interpreter involved, and claims that there is no interpretation without components of legislation. It concludes that in the background, every interpretive system contains a scale of relation to the text, and the question is where the line is drawn in each context. It ends with a personal position: “I’m in favor of reform but against the reform,” and with the claim that the public debate is being conducted more around identification for or against the government than around the content of the reform itself.

Okay, in the previous lecture we dealt with the second root. I finished reading it, and I’ll just briefly remind us where we’re holding. We saw that laws derived through exegesis, through the hermeneutic principles, are laws whose status is that of rabbinic law. We saw that there are two interpretations of this statement of Maimonides. One interpretation sees this as a statement dealing only with the source of the law and not with its halakhic force: it’s a Torah-level law, but he calls it rabbinic because its source is not the Torah itself but the sages. And there are interpretations, like Nachmanides’, that take him seriously—meaning that when he says rabbinic law, he means that it is rabbinic law also in the sense of halakhic force. Then I brought several proofs that he really does mean it seriously—that is, it’s not only a question of source but a question of force. For example, we saw that Maimonides says one does not punish on the basis of laws made through exegesis; he calls this not punishing on the basis of logical derivation. We saw that in cases of doubt, at least with a law given to Moses at Sinai, the doubt is treated leniently. So when he says this is a law that is “rabbinic,” he really means that it is rabbinic—not only a question of source but also of force. Therefore, Nachmanides is apparently right in his interpretation of Maimonides, and Maimonides means that this really is a law of rabbinic status: a law that comes out of exegesis is a rabbinic law.

But there are quite a few difficulties with that. I mentioned some of them; maybe I’ll summarize at least the types now. There are hundreds of difficulties with this, but they divide into a few main types. One type is basically a conceptual question—what Nachmanides wonders in his glosses. He has very long glosses here, and he asks: if the hermeneutic principles really are a law given to Moses at Sinai, we received them from Sinai, and we apply them to the Torah that was itself given at Sinai, then how can the result not be a Torah-level law? After all, we’re using tools we received from the Holy One, blessed be He, in order to interpret the Torah we received from Him, and the result is a rabbinic law? In other words, something here doesn’t make sense. Although, as Nachmanides himself senses and comments, Maimonides says that even a law given to Moses at Sinai itself—that is, laws transmitted to us from Sinai—also has the status of rabbinic law and not Torah law. That somewhat takes the sting out of the first kind of question, the conceptual one.

A second question: Nachmanides doesn’t understand why Maimonides made a distinction between productive exegesis and supportive exegesis. Productive exegesis—the law it creates—is rabbinic law. Supportive or sustaining exegesis—the law is a Torah-level law. Supportive exegesis means a law transmitted to us in the tradition from Sinai, and we found for it an anchor by means of a scriptural derivation. So Nachmanides asks: how do zero plus zero equal one? How can it be that a tradition from Sinai, a law given to Moses at Sinai, which is a Sinaitic tradition, has the status of rabbinic law, and a law that comes from exegesis also has the status of rabbinic law—but a law received by tradition and for which we found an exegesis is Torah law? In other words, the combination of the two gives me the status of Torah law, even though each one by itself is considered by Maimonides to be rabbinic? That was the second question.

The third question, or third category of questions, is basically from the Talmud itself—full of proofs against Maimonides. There are many places in the Talmud where you see that in cases of doubt concerning laws derived from exegesis, the doubt is treated stringently—that is, this is Torah law and not rabbinic law. And the fourth type of question is contradictions within Maimonides himself. We would have expected, if Maimonides says that laws derived from exegesis are rabbinic laws—and I mentioned Maimonides in a responsum where he writes that sustaining exegeses are maybe three or four, meaning the overwhelming majority of exegeses we know are productive exegeses—then I would expect to see in Mishneh Torah hundreds of places where laws that we think are Torah laws, Maimonides defines as rabbinic laws because they come from exegesis. All the medieval authorities (Rishonim) say it’s Torah law, but Maimonides says it’s rabbinic. We would expect to see in many places in Maimonides laws we would think are Torah law, which all the medieval authorities understand as such—and on each one there is discussion. That’s the fourth type of question. I’ll just mention maybe the exceptions.

Maimonides, at the beginning of the laws of marriage, I think I mentioned this, says that betrothal by document and intercourse is by Torah law, and betrothal by money is rabbinic. Then the commentaries there ask, what do you mean, rabbinic? The Raavad already asks there: rabbinic? How can that be rabbinic? The Talmud derives it from verses in tractate Kiddushin: a woman is acquired in three ways—money, document, and intercourse. So in a responsum Maimonides addresses this point, the same responsum I mentioned earlier, and Maimonides says that the one who asked did not see what he wrote in the second root: that something derived from exegesis has the status of rabbinic law, and therefore this is rabbinic. So the fact that you bring me proof from exegesis, that the Talmud derives it from exegesis, is not a difficulty. That’s exactly what I’m talking about. Something that comes from exegesis has the status of rabbinic law.

On the other hand, in the very next law he says that one who has relations with a woman who was betrothed is liable to death, and there he does not distinguish and say that this is only if she was betrothed by document or intercourse, but not by money. Because if by money she is betrothed only rabbinically, then one who has relations with her cannot be liable to death. I would have expected Maimonides to say that if she was betrothed by document or intercourse then he would be liable to death, but if she was betrothed by money then she is only rabbinically betrothed and this is only a rabbinic prohibition. But Maimonides does not distinguish; he says liable to death in every case for any betrothed woman. So this is a remark that many have already discussed—the question whether Maimonides changed his mind, whether it’s a scribal error, all sorts of entire discussions. I think the explanation here is simple. He did not change his mind, and it’s not a scribal error and nothing of the sort. Rather, we saw—if you remember—in the commentary on the Mishnah in Kelim, we saw that a doubt concerning a law given to Moses at Sinai should be rabbinic. But regarding prescribed measures—when we say there is a doubt in the measures, the law treats the doubt stringently. Maimonides asks why. After all, measures are a law given to Moses at Sinai. So he says: because the measures are an explanatory law given to Moses at Sinai. Meaning, it explains a Torah-level law written in the verses. For example, it is written that it is forbidden to eat pork—that is written in the Torah. A law given to Moses at Sinai comes and says what the measure is: its measure is an olive’s bulk. Here the law given to Moses at Sinai explains the parameters of a law written in the Torah. It is not a law given to Moses at Sinai that creates a new law that has no source; rather, it only explains for us the parameters of an existing law. In such a case, of course the doubt is treated stringently. If we are dealing with a Torah-level law, the law given to Moses at Sinai did not create that law but only explained it or characterized it, detailed it. But if there were a law newly created by a law given to Moses at Sinai—for example, the willow branch and the water libation are a law given to Moses at Sinai according to one opinion in the Talmud—then if that is a law given to Moses at Sinai, it is not explanatory; it is a law given to Moses at Sinai that created a new law. There the doubt would be treated leniently. Okay? So there is explanatory law and non-explanatory law.

In Kiddushin, when we say that the woman is acquired, we are basically saying that she becomes betrothed, and the Talmud says: by money, by document, and by intercourse. It is true that we derive money from exegesis—but what does that exegesis do? It explains the concept: what does it mean that a woman is acquired. Meaning, it explains a law that is written in the Torah; it does not create a new law. It is not that the concept of betrothal was created by exegesis. The concept of betrothal appears in the Torah. The exegesis says that the concept of betrothal is not only document and intercourse, but also money. But that is explanatory exegesis. Once it is explanatory exegesis, then of course one who betroths a woman by money is betrothed to her by Torah law, because the exegesis only said that this is the meaning of “a woman is acquired.” Yes, “when a man takes a woman”—not “a woman is acquired,” that is the Mishnah; the Torah says “when a man takes a woman.” Okay? Therefore here too, as we saw with a law given to Moses at Sinai, the practical law in the end comes out stringent even though it comes from exegesis, because the exegesis is explanatory and not innovative. You understand that this basically leaves us with very few places where indeed the doubt would be treated leniently—very few places. Since in most cases, exegeses do not generate a new law; in most cases, exegeses characterize an existing law. It’s an exegesis that tells me one more detail in a certain law, but not an exegesis that creates a new law. In most cases that is not the situation. But yes, there are quite a few cases where it is, so the problem still remains. It has not been solved.

Good, so that is regarding the collection, or the types, of difficulties in this statement of Maimonides. When we read Maimonides, we saw that in the root itself he explains his view. Maybe I’ll just remind us of the central sentences that are important for us. I’m not projecting it; we already saw it. I’m only reminding you. “Perhaps you think,” says Maimonides, “that I refrain from counting them because they are not true”—meaning laws that come out of exegesis—“and whether the law derived through that principle is true or not true.” You may say: I don’t count laws derived from exegesis because maybe I don’t believe in exegesis; it’s not true. Maimonides says: no, it has nothing to do with the question of truth, that is not the reason. Rather, the reason is that everything a person derives is branches from the roots that were stated to Moses at Sinai by way of explanation, and they are the 613 commandments; and even if the one deriving them were Moses himself, they ought not to be counted. What does that mean? Something innovative? Something newly derived? If it’s productive exegesis and not sustaining exegesis, so what? Why? Maimonides here is explaining something. What is the explanation? He says: don’t think that when I say this is not Torah law, that I don’t count it because I have no confidence in the hermeneutic principles, because hermeneutic principles are not something true. No, they are entirely true. The reason I don’t count it—and we explained that he doesn’t count it because it is rabbinic and not Torah law—is because these are branches coming out of the roots. What does “branches coming out of the roots” mean? Why is that an explanation?

Ah—here one could understand it in two ways. One could understand that basically we are dealing here with a classificatory root. What does that mean? We spoke about classificatory roots and said, for example, the four species are counted as one commandment and not as four commandments. Not because the citron is not Torah law or the palm branch isn’t, but because this commandment includes four details. And in the classification of the 613 commandments it is one commandment and not four. But that has nothing to do with halakhic force. Of course all of it is Torah commandment; only in terms of the classification of the commandments this is one commandment with four details and not four separate commandments. That is a question of classification. It could be that Maimonides means the same thing here. Since something is derived through exegesis from some verse, these are branches coming out of the roots. What does that mean? After all, we have already counted the commandment itself. For example, “You shall fear the Lord your God”—to include Torah scholars. Yes, we already saw that exegesis. What does it mean? “You shall fear the Lord your God”—that is fear of God, so that is a counted commandment, the commandment of fearing God. “Et” comes to include Torah scholars, fear of Torah scholars. Why don’t we count fear of Torah scholars? Because these are branches coming out of the roots. What does that mean? It is basically a branch of the commandment to fear the Holy One, blessed be He. It grows out of the same verse through exegesis. And since that is so, there is no need to count it, even though it is Torah law, because it is included in the commandment of fearing God. Not because it is not Torah law. That is one suggestion. Right?

But that suggestion assumes that Maimonides means these commandments really are Torah law. They are simply not counted, perhaps for classificatory reasons. But they are Torah commandments. As we saw—I mentioned this earlier—no, Maimonides really means that these are rabbinic commandments. He does not count them because it is a rabbinic commandment. So what does his statement here mean, that these are branches coming out of the roots? Maimonides probably means to say the following. I think I already said this last time. Maimonides says the question is how we understand the interpretive nature of exegesis. What is the relation between exegesis and interpretation? Usually the accepted view is that the hermeneutic principles are additional interpretive tools in our interpretive toolbox. There is ordinary interpretation, what we do when relating to any text, and in the Torah we have another system of tools called the hermeneutic principles. Then the view is that hermeneutic principles are a means for interpreting the Torah. Meaning that if I use—I used a hermeneutic principle, for example “et” comes to include—“You shall fear the Lord your God,” to include Torah scholars, the assumption is that fear of Torah scholars is basically written somehow in the verse itself. The hermeneutic principle helped me expose the matter, to see that this too is really found within the verse. That is the accepted view regarding hermeneutic principles. And if so, then indeed a law that comes from exegesis is a Torah-level law. As Nachmanides rightly asks: if the verses came from the Holy One, blessed be He, at Sinai, and the hermeneutic principles are also a law given to Moses at Sinai, then I am using interpretive tools to interpret the verse from Sinai—so why should the result not be Torah law? Of course it is Torah law.

But if I understand that according to Maimonides laws that come from exegesis are really rabbinic, and moreover their source is from the words of the sages, their force is rabbinic law, then we have to understand this differently. Maimonides basically says “these are branches coming out of the roots”—what does he mean? The exegesis does not expose what is in the verse; the exegesis expands what is in the verse. If the exegesis exposed what is in the verse, then the result would be a Torah-level law. It is written in the verse; what is written in the verse is Torah law. But if the exegesis is only a tool that helps me expand the idea in the verse, to expand it beyond itself, then the result is a branch that comes out of the root—it does not belong to the root itself. It is not that I exposed another root that I did not see before; rather I grew another branch out of the root, meaning it expanded. Maimonides’ view is that the hermeneutic principles are an expanding tool and not an exposing tool. Meaning, when I derive some law from exegesis, I am actually expanding what is in the verse, and not exposing more information or another dimension that is inside the verse but not visible without hermeneutic tools. No, that is not how it is.

And indeed, further on, Maimonides says—yes, he says that the Bahag counts rabbinic things in the enumeration of the commandments. He says, “even though the plain meaning of the verse does not indicate any of those matters.” The Bahag reaches absurdities—he counts rabbinic things even though the plain meaning of the verse does not say them. What do we see here? That according to Maimonides, what is fit to be counted is only what the plain meaning of the verse says. Meaning, if something comes from exegesis, then it is not the plain meaning of the verse. Only the plain meaning of the verse exposes what is in the Torah. Exegesis expands the verse beyond what is in it. And this is what he says: “with the root, may they rest in peace, benefited us in this, when they said: ‘a verse never departs from its plain meaning.’” And the Talmud asks everywhere and says: “What is the verse itself speaking about?” Okay, so Maimonides is telling us here very clearly and consistently—and in many other places too he says this—that for him a Torah-level law is a law written in the Torah. The literal meaning of the term “de-oraita” is from the Torah. A Torah-level law is a law written in the Torah; that is what is called a Torah-level law.

Meaning that Maimonides basically ties the question of source to the question of force. I said earlier that there are two interpretations of Maimonides: whether he meant only the question of source, while the force is Torah-level; or whether he means the question of force, and says this is really rabbinic commandments. The answer—we are now arriving at it—is that Maimonides ties the question of source and the question of force together; in his eyes it is the same question. Once the source is not the Torah, the law is not Torah law. If the source is from the Torah, only then, and only then, and only then, is the law a Torah-level law. Now, what does it mean that the source is from the Torah? It means that this law is found in one way or another in the Torah, in the verses of the Torah. So if I exposed this law from the Torah—once I exposed it, I understand that it is there—then it is Torah law. But if the hermeneutic tools are expanding tools, they did not expose the law they created; rather, they expanded the verse toward this law, then that basically means that even after I performed the exegesis, I do not really think its result is written inside the verse. It is not written in the verse. It is an expansion beyond what is in the verse. If so, then the source of that law is not the Torah, and therefore it is not a Torah-level law, because it is not written in the Torah. It is an expansion of what is written in the Torah, and that is not written in the Torah. Something exposing would be Torah law because it exposed something written in the Torah. But if there is something expanding, that expansion is not written in the Torah, so it is not Torah law. For Maimonides, the question of source and the question of force are the same question. And for him only the plain meaning, only what the plain meaning of the verse says—only that is written in the Torah, and therefore only that is Torah law.

Now, what does this actually mean? First of all, sustaining or supportive exegeses, Maimonides says, are Torah law. Nachmanides asked him: how does zero plus zero come out to one? A law given to Moses at Sinai, meaning a law that comes to me in oral tradition from Sinai, is rabbinic law. Why? Because it is not Torah law; it is not written in the Torah. It was transmitted orally. And “Torah law,” according to Maimonides, is what is written in the Torah, not what comes from the Holy One, blessed be He. A law given to Moses at Sinai also comes from the Holy One, blessed be He, but it is not written in the Torah, so it is not Torah law. A law that comes from exegesis is also not Torah law. So a law that we have a tradition for and also found an exegesis for—that suddenly is Torah law? Nachmanides asks, how? If each component does not give me Torah law, why does their combination do so?

I think the answer is that if the law is created by exegesis, productive exegesis, then as I said earlier, the exegesis expands what is in the verse beyond it, and therefore you cannot say that the product is found inside the verse—so it is not Torah law. But what is sustaining or supportive exegesis? The law was transmitted from Sinai by tradition, right? Now we find an exegesis—not the exegesis, the law was transmitted by tradition from Sinai. Now we find an exegesis that anchors this law. If it is sustaining exegesis, that means that basically the exegesis exposed that this is what is written in the verse. Why? Because otherwise, if there is an exegesis, why does the Holy One, blessed be He, trouble to give us also an oral tradition about this thing? Let Him rely on our deriving it by exegesis. There are many other laws that He did not give us orally, and He relied on our deriving them through the hermeneutic principles. So why here is it transmitted to us by tradition from Sinai even though there is an exegesis that generates this law? Maimonides says: in order to teach us that in this specific case the exegesis is an exposing exegesis and not an expanding exegesis. Suppose there had been a tradition that one must fear Torah scholars, and afterward I would make the exegesis “You shall fear the Lord your God” and include Torah scholars. Then the fact that there is a tradition about it would basically tell me that the exegesis “You shall fear the Lord your God” is not expanding the verse “You shall fear the Lord your God,” but exposing something else that is inside it. That is what the tradition comes to teach me. Therefore it was transmitted in the tradition from Sinai: to teach me that the exegesis I am making is, in this case, an exposing exegesis and not an expanding one. Therefore it is Torah law. It is not zero plus zero equals one. Rather, the fact that there is both tradition and exegesis means that here the tradition apparently comes to reveal something about the exegesis. It comes to reveal that in this case the exegesis serves as an interpretive tool and not an expanding tool. That is basically the claim. Therefore Maimonides says that supportive or sustaining exegesis is an exegesis that creates a Torah-level law. Or Solomon, right? Or Solomon? Yes. I won’t forget, I won’t forget.

Now I want to continue this a little further. What we basically see here in Maimonides is a double innovation in this root—if I am right that these really are rabbinic laws. On the other hand, it is not disconnected from the question of source. The question of source and the question of force are, for Maimonides, the same question. Why? Because when Maimonides interprets, when we say of a certain law that it is de-oraita, the meaning is from the Torah—it is found in the Torah. So he makes the force depend on the question of source: whether it is from the Torah or not from the Torah. Okay, that is the same question for Maimonides. Therefore laws derived from exegesis are not Torah law. Why? Because he holds that exegeses are expanding tools and not exposing tools, and therefore the law they create is not a law written in the verse. So if it is not written in the verse, the source is not from the Torah, and therefore the force is also not Torah law. Okay? That is basically what I said.

There are in these words of Maimonides two innovations: one interpretive and one halakhic. Maimonides’ interpretive innovation is that exegeses are an expanding tool and not an exposing tool. And that is what Maimonides wrote in the passage I read a few minutes ago. Maimonides says: “a verse never departs from its plain meaning.” What does he mean to say? I think I mentioned this: Nachmanides comments on him—what does “a verse never departs from its plain meaning” mean, and why is that evidence against the Bahag? Maimonides says: you are counting things that do not appear in the plain meaning of scripture, but “a verse never departs from its plain meaning”—that is how Maimonides asks against the Bahag. What does Nachmanides say? What does that have to do with anything? True, of course a verse never departs from its plain meaning, and therefore not only the exegesis is correct—the plain meaning is also correct. But that does not mean the exegesis is not correct. Rather, in addition to the exegesis, don’t think only the exegesis exists; “a verse never departs from its plain meaning”—the plain meaning too is a correct interpretation. It is not uprooted after I make an exegesis. But Maimonides, as we see from here, understands otherwise. Once the exegesis departs from the plain meaning, then it is not an interpretation of the verse. Only the plain meaning is an interpretation of the verse. Maimonides’ interpretive method is that there is only one correct interpretation of a verse. Contrary to what we are used to—seventy facets to the Torah and all those things—in Maimonides’ eyes, one facet to the Torah. That’s it. There is one correct interpretation of the Torah. Everything else is not that it is incorrect; it is branches coming out of the roots. These are expansions of the verse and not interpretations of it. They do not expose things inside the verse, but expand beyond what is in the verse. That is exegesis. The interpretation of the verse is only the plain meaning. That is Maimonides’ first innovation. His first innovation is an innovation in his theory of interpretation, his hermeneutics, yes? Maimonides says only the plain meaning is an interpretation of the verse. Every other tool—midrashic or whatever—does not interpret the verse but expands it.

Now, this is true—we received it from Sinai, it is permitted to do this, one should do this, it’s not that it is untrue. But it is not an interpretive tool; it is an expanding tool. There is only one interpretation: only the plain meaning. And over this Nachmanides gets angry, yes, and says: seventy facets to the Torah, there are many interpretations, the exegesis is correct and the plain meaning is correct, and they are all interpretations. Maimonides says no, there is only one interpretation: only the plain meaning is interpretation. The rest is not interpretation. That is the interpretive innovation.

Maimonides’ halakhic innovation is that something not appearing in the Torah is not Torah law. And that too is a major innovation. Because others say: what difference does it make? You derived it by exegesis from the Torah. What is not written in the Torah are only enactments or decrees made by the sages, and those are rabbinic. But exegeses are not enactments or decrees; exegeses are another way of deriving laws from the Torah. Or a law given to Moses at Sinai—even more striking, yes? A law given to Moses at Sinai is a law transmitted to us together with the Written Torah by the Holy One, blessed be He, at Sinai, and passed on through the same tradition as the Written Torah, only not written in the Torah. Why should that not be Torah law? How is that different from something written in the Torah? Maimonides says it is different. Something not written in the Torah is not Torah law—even if it comes from the Holy One, blessed be He, it is not Torah law. That is a very great innovation. And “something not written in the Torah is not Torah law” is a halakhic innovation. So in Maimonides there is an interpretive innovation and a halakhic innovation, two innovations.

To sharpen this point, I’ll bring you an example where you can see that the Ran in tractate Nedarim accepts Maimonides’ interpretive innovation even though he does not accept his halakhic innovation. That is to sharpen the point that there are two different innovations here. So the discussion is in the Talmud in Nedarim 8a. Anyway, I’ll connect the destructive devices for a moment. Good, there it is. The Talmud says here: “And Rav Giddel said in the name of Rav: one who says, ‘I will rise early and study this chapter, I will study this tractate,’ has made a great vow to the God of Israel.” “Vow” here means oath; in the Talmud the terms sometimes interchange. So he swears to study a certain chapter or a certain tractate—the oath takes effect.

The Talmud asks: but he is already sworn and standing from Sinai, and an oath cannot take effect upon an oath. Yes, the rule is that if I swear to fulfill a commandment, the oath does not take effect. Why? Because I am already sworn and standing from Mount Sinai, and an oath cannot take effect upon an oath. I am already sworn to do that commandment. So if I swear again to do that commandment, this is an oath coming to take effect on an existing oath, and it does not take effect. An oath cannot take effect upon an oath. So the Talmud says: what is this teaching us? That even if it is only for encouragement? So what will you tell me? Fine, it doesn’t really take effect, but it is to spur himself on. To motivate himself, that it is permitted to do so even though it doesn’t take effect, in order to motivate himself. So the Talmud says: that is Rav Giddel’s earlier statement. It’s like the previous saying of Rav Giddel—I didn’t read it, it doesn’t matter—and it’s the same thing. Therefore it cannot be that.

So the Talmud answers: this is what it teaches us, namely: since he could exempt himself with the recitation of the Shema morning and evening, therefore the oath takes effect on him. What does that mean? Suppose someone swears to study tractate Berakhot. Okay? The Talmud says: but an oath cannot take effect upon an oath; he is already sworn and standing from Sinai, there is the commandment of Torah study. The Talmud says: no. The commandment of Torah study you can fulfill by reciting Shema morning and evening. If you swear to study something additional, beyond Shema morning and evening, for that you are not already sworn and standing; therefore the oath takes effect. Because for that there is no oath of Sinai. You are not obligated in that. What does it mean that you exempt yourself with Shema morning and evening? This is Rabbi Shimon bar Yochai in tractate Menachot, who says that if a person recited Shema morning and evening, he has fulfilled “you shall meditate upon it day and night.” Meaning, he has fulfilled the commandment of Torah study.

Now the commentators there differ on how to understand this. The Rosh, for example, and the commentary there attributed to Rashi—what is called Rashi, although it isn’t Rashi on Nedarim—from them it seems that indeed there is no obligation to study beyond Shema morning and evening. Everything else is optional. The commandment of Torah study is fulfilled by Shema morning and evening; everything you do beyond that is a fulfillment commandment or optional, or however you want to define it—but it is not part of the obligation. But the Ran there says not so. “This is what it teaches us: since he could exempt himself,” etc. “It seems to me,” says the Ran, “that not specifically that in this way he is exempt.” It cannot be that by Shema morning and evening alone you are exempt from the commandment of Torah study, that you fulfilled the commandment of Torah study. For every person is obligated to study constantly day and night according to his ability. And we say in the first chapter of Kiddushin: “Our rabbis taught: ‘And you shall teach them diligently’—the words of Torah should be sharp in your mouth, so that if someone asks you something, you should not stammer and tell him…” and Shema morning and evening is not enough for that. You cannot with Shema morning and evening get to a state where whenever someone asks you something you can answer him without stammering, but answer him immediately. Therefore, says the Ran, it cannot be that one fulfills the commandment of Torah study with Shema morning and evening alone.

The Ran says: rather, from here it seems to me to be proof for what I wrote in the last chapter of tractate Shevuot, that anything that comes from exegesis, even though it is from the Torah, since it is not explicitly stated in the verse, an oath takes effect upon it. He says: I wrote in tractate Shevuot, and from here there is good proof for that. That something learned from exegesis, even though it is from the Torah—meaning, a law learned from exegesis is Torah law. So the Ran does not accept Maimonides’ second innovation, right? Maimonides says a law learned from exegesis is rabbinic. The Ran says no, a law learned from exegesis is Torah law. He does not accept Maimonides’ second innovation. But he apparently does accept the first innovation. He says: although it is from the Torah, since it is not explicitly stated in the verse, an oath takes effect on it.

What does that mean? If I swear to fulfill a law that comes from exegesis, the oath takes effect. Even though if I swear to fulfill a law explicitly written in the Torah, the oath does not take effect, because I am already sworn and standing from Sinai and an oath cannot take effect upon an oath. So why does an oath on a law that comes from exegesis take effect? Why? He says because it is not written explicitly in the Torah. What does that mean? So what if it is not written explicitly in the Torah? If it is Torah law, one prohibition cannot take effect upon another. Why do I care whether it is written explicitly or not? So here’s the point.

The fact that an oath cannot take effect upon an oath—usually the accepted view is that this is part of the rule that one prohibition cannot take effect upon another. Just as one prohibition cannot take effect upon another, so too an oath cannot take effect upon an oath. According to that view, once we are dealing with a Torah-level law, an oath on it should not take effect, because one prohibition cannot take effect upon another. But the Ran apparently understands otherwise. The principle that an oath cannot take effect upon an oath is an independent principle; it has nothing to do with one prohibition not taking effect upon another. It is a law in the laws of oaths that an oath does not take effect upon an oath. Then what? We are already sworn and standing from Sinai. Don’t ask me where—nowhere does it say that we swore anything there—but that is what the Talmud says: we are already sworn and standing from Sinai. In my opinion this is a legal fiction. What does it mean? That when the Holy One, blessed be He, gives the Torah at Sinai, He makes us swear to fulfill what is written in it—what I am giving you.

The Ran says: that oath applies only to what is written in the Torah that we received. But if there is something that comes from exegesis, if there is something that comes from exegesis, it is not part of the Torah that we received. So on that, the oath we swore at Sinai does not apply. We swore there to fulfill what we received. What did we receive? We received what is written in the Torah. But if there is another law, even if it is Torah law—a law that came from exegesis is Torah law, says the Ran, unlike Maimonides—this is a Torah-level law, but it is not written in the Torah, so we did not swear on it. We only swore on what is written in the Torah. Since that is so, we are not sworn on such a law, and if we swear now, then the oath will take effect, because there is no problem here of a previous oath preventing this oath from taking effect. That is the Ran’s claim.

Or in other words, for our purposes he says: “And here this is what we mean: since he could exempt himself from what is explicitly written in the verse, namely ‘when you lie down and when you rise up,’ by reciting Shema morning and evening…” What is explicitly written in the Torah? “When you lie down and when you rise up.” To fulfill “when you lie down and when you rise up,” the Talmud says Shema morning and evening is enough. That does not mean all the rest of study is optional, that one need not do it. One must—it comes from the exegesis of “And you shall teach them diligently,” that the words of Torah should be sharp in your mouth. But that is exegesis. What is explicitly written in the Torah? “When you lie down and when you rise up.” What is explicitly written in the Torah is fulfilled by Shema morning and evening. One must study all day, or as much as one can, but that is not because of “when you lie down and when you rise up,” but because of the exegesis of “And you shall teach them diligently.” But if so, then on that we are not sworn and standing; we are sworn and standing only on what is explicitly written in the Torah. Therefore, if I now swear to study tractate Berakhot, the oath will take effect. Because I am not sworn to study tractate Berakhot. I am obligated to study tractate Berakhot by Torah law, but I am not sworn on that. Therefore, if I now swear to study tractate Berakhot, the oath takes effect, because this is not an oath taking effect upon an existing oath; there is no existing oath on that. Clear what I am saying? Good. “And therefore the oath takes effect on me fully, even for bringing an offering, and this is what it means by a great vow—that is, for all its laws, like a matter of permission.” It is really considered like a non-commanded matter regarding the oath.

What is written here in the Ran? It seems to me that what is written here in the Ran is the innovation that, even though he does not accept Maimonides’ halakhic innovation, he does accept Maimonides’ interpretive innovation. What does that mean? He says the laws learned from exegesis are not laws written explicitly in the Torah—or even written in the Torah at all, explicitly. Rather, they are laws that we generate by expanding what is written in the Torah. The tools of exegesis are expanding tools and not exposing tools. And that is exactly like Maimonides, Maimonides’ interpretive innovation. Maimonides’ interpretive innovation is that exegesis is expanding and not exposing. Therefore, says the Ran, there is a practical implication: if I swear regarding a law that comes from exegesis, the oath takes effect. Because I am not already sworn and standing on that law, even though it is Torah law, says the Ran—he says it is a Torah-level law—but we are not sworn on it because it is not written in the Torah. We swore on what is written in the Torah—only on that did we swear at Sinai. We swore on what was given at Sinai, and what was given at Sinai is what is written in the Torah.

So the Ran accepts Maimonides’ interpretive innovation. He does not accept Maimonides’ halakhic innovation. Meaning, even though a law that comes from exegesis is not written in the Torah, the tools of exegesis are expanding tools, not exposing tools—and on this he agrees with Maimonides—nevertheless he defines these laws as Torah-level laws. Because he does not accept Maimonides’ halakhic innovation. He does not accept the innovation that says that what is not written in the Torah is not Torah law. True, it is not written in the Torah, a law that comes from exegesis—that the Ran agrees to—but he says: so what if it is not written in the Torah; why should that make it non-Torah law? It is God’s will—why should I care whether it is written in the Torah or not? Like a law given to Moses at Sinai—it too is not written in the Torah, and the Ran would say that is a Torah-level law. So what if it is not written in the Torah? The question of source and the question of force are not the same question. Contrary to what Maimonides says, that source determines force, that source and force are the same question, the Ran does not agree. Source and force are two different questions.

The beautiful innovation in the Ran is that even the question of source has a halakhic implication. The Ran does not agree that source and force are the same question; they are two different questions. The beautiful innovation in the Ran is that even the question of source has a halakhic implication. How did I present this until now? Until now I presented it as if there are interpreters inclined to claim that Maimonides really intended to discuss the question of source, not the question of force. When he says that a law that comes from exegesis is a rabbinic law, he means to say that this is not written in the Torah but the sages taught it, yet it is Torah law—it is not rabbinic. Then there would be no practical implication at all: it is Torah law, and doubt is treated stringently, and everything else—it is just some technical terminological or semantic discussion. The question whether it is de-oraita or not in the sense of force, versus in the sense of source, without connection to force. The force is certainly Torah-level according to that interpretation.

The Ran says: true, regarding the question of source, I agree that laws that come from exegesis do not have their source in the Torah. But regarding the question of force, no—they are still Torah law. So I would say, fine, then he probably joins those interpreters of Maimonides who distinguish between source and force. Right? And that means the question of source is a separate question, unrelated to force. The force is Torah-level, and yet one can still discuss whether the source is the Torah or some expansion or something else that is not the Torah. The Ran says yes, true, they are two different questions. But do not think that the question of source has no halakhic consequence. The question of source, even though it does not project onto the question of force, still has a halakhic consequence. For example, regarding the fact that an oath takes effect on it. What is not written in the Torah—an oath applies to it. So here is a halakhic implication of Maimonides’ interpretive innovation. Meaning, even if I did not accept Maimonides’ halakhic innovation, but only his interpretive innovation that the hermeneutic principles expand and do not expose, there would still be a halakhic practical implication. An oath would apply to it. According to Maimonides of course an oath applies to it because it is not Torah law, so all the more so. But I am saying that even if I did not accept the innovation that it is not Torah law, I could still see a halakhic implication, namely that an oath takes effect on it.

There is another interesting implication; I won’t go into it here in detail. There is a passage in tractate Yoma. The Talmud derives there regarding the garments of the High Priest. In that section the word “linen” appears five times. “Twisted linen,” yes, “linen.” It appears five times, and from each appearance they derive something else, include something else. One occurrence says that it has to be made of linen itself. That is one. After that, it has to be sixfold—twisted from six strands. Every thread from which the High Priest’s garments are woven has to be twisted from six strands, and therefore “shesh” there means six, the number six, not “shesh” as the material linen. Another of the occurrences of “shesh” teaches that this requirement is indispensable. Sorry—another occurrence of “shesh” says that, if unnecessary for the garments concerning which the Torah does say “shesh,” then it comes to include garments for which the Torah does not say “shesh,” that there too all these laws apply. There are garments about which the Torah says they must be made of linen, and other garments where it is not mentioned that they are of linen. So the Talmud says that even the garments where “linen” is not written must be made according to all these rules. And one of the words “shesh” that is superfluous here comes to teach exactly that. It comes to teach concerning those garments where “shesh” is not written. And one more occurrence of “shesh” comes to teach that what is written here is indispensable. If you did not make it sixfold or of linen or something like that, it is invalid.

Maimonides—and everyone is puzzled there—brings all these laws. He says it has to be made of linen, and the threads have to be sixfold, and also the garments where “shesh” is not written have to be made that way. But with those garments it is not indispensable. All the other laws are indispensable, but with those garments the laws apply, yet they are not indispensable. Now why? One of the derivations was that from the word “shesh” we learn the other garments; from the word “shesh” written here we learn the other garments in which “shesh” is not written. And from another occurrence of the word “shesh” we learn that everything we learned is indispensable. So what we learned there should also be indispensable—why isn’t it? In my opinion the answer is simple. Maimonides says that since we learn those garments from the extra word “shesh,” this is exegesis; it is not the plain meaning of the text. The plain meaning of the text here is about the garments in which “shesh” is written. But since the word “shesh” is superfluous, then through “if it is unnecessary for this matter” we make an exegesis and apply it to the garments in which “shesh” is not written. Okay? So those garments are not written in the verse here; this is an expansion of what is in the verse here. Now another “shesh” here says: everything here is indispensable. What is here. Now true, from here we learned about those garments too, that they too must be linen, but that is not written here. It is an expansion of what is written here. And the “shesh” that says everything here is indispensable says that what is in this verse is indispensable. But what I learned from exegesis is not in this verse, so it is not indispensable. Thus Maimonides says all these laws, in those garments where “shesh” is written, are also indispensable. In the garments where “shesh” is not written, all these laws exist, but they are not indispensable. Because the exegesis of indispensability was said about what is written in the verse, and this is not written in the verse; it is derived from the verse, not found within the verse.

I think that is a very beautiful consequence of Maimonides’ interpretive innovation. Usually people understand that Maimonides’ halakhic innovation is what has halakhic consequences. An interpretive innovation is interpretation, but not connected to halakhic questions. In the Ran we saw one halakhic implication. Here we see a second halakhic implication—that these laws in the garments in which “shesh” is not written are not indispensable. And that is because of Maimonides’ interpretive approach. According to my approach, the Ran, who disagrees with Maimonides and says that laws derived from exegesis are Torah law, does not accept Maimonides’ halakhic innovation, but he does accept Maimonides’ interpretive innovation. The Ran would also agree there that it is not indispensable, because that depends on the interpretive innovation, not on the halakhic one. And that the Ran does accept. Is what I’m saying clear, or does it seem a bit… If not, stop me. Okay? Fine.

Now, I actually want to talk a little about the significance of the picture I have described here, and with that I’ll connect it back to the first root. We are usually used to understanding that we have a division between Torah-level laws and rabbinic laws. What distinguishes between them? I spoke about this when I discussed the first root. What distinguishes between them is the question whether the sages who created this law acted as legislators or as interpreters. If they acted as interpreters—what is that? If they acted as interpreters, then the law is Torah law. If they acted as legislators, then the law is rabbinic. Okay? Meaning, if they act as interpreters, they interpret what is written in the Torah. Once they have interpreted it, from my perspective this is what is written in the Torah; therefore it is Torah law. If they act as legislators, then they created a new law. They have the authority to do that, and we spoke about that in the first root. But they created a new law; they are not deriving it from the Torah. Therefore it is a rabbinic law. Okay? What determines whether a law is Torah law or rabbinic law is not the chronological question—when the law was created, at Sinai or later—but the question of how it was created: whether through a process of interpretation or a process of legislation. That is what determines whether it is Torah law or rabbinic law. If it is a process of interpretation, then it is written in the Torah and therefore it is Torah law. If it is a process of legislation, then it is unrelated to the Torah, and therefore it is rabbinic law.

Usually we understand this distinction as dichotomous. Meaning, either interpretation or legislation. That is the view of most medieval authorities (Rishonim). It seems to me that what Maimonides wants to say here is that the picture is not dichotomous. There are things that are half interpretation. They are not entirely interpretation, but they are somewhat interpretation. Before I explain a bit more what that means, I want to clarify the point with a logical analogy. Are you familiar with the heap paradox? The heap paradox says this: one grain of gravel is not a heap. Right? Neither are two. If I have a collection of stones, gravel stones, that is not a heap, then adding one stone does not change the status. But a thousand gravel stones is a heap. Okay, you understand that this doesn’t work. Maybe it’s like every minute and another minute and another minute. Yes, that is, I have here three claims, each of which sounds reasonable, but they do not fit with each other. I’ll list them again. First claim: one gravel stone is not a heap. Yes, induction. The next claim is the induction claim: adding one gravel stone does not change the status. Third claim: a thousand gravel stones are a heap. What? Achilles and the tortoise? No, Achilles and the tortoise is something else entirely. Yes, but Achilles and the tortoise simply converges; there is no paradox there, it’s just a mistake. Here it is not a mistake. Yes, it’s true, no? Add one gravel stone to a pile that is not a heap—it won’t turn it into a heap. You can define whatever you want; the question is what is true. If you want to create a mathematical model that is contradiction-free, no problem. You say: from seventeen and up it’s a heap, and all is well. Then adding one gravel stone will change things if you are at sixteen, because it reaches seventeen. But you understand that this is not the concept of heap we use. If you want to understand what the concept of heap means in our language, that is not its meaning. There is no number that determines from when it is a heap.

So I am asking about everyday language, not about some detached mathematical model that can give a coherent meaning to the concept. Fine, I can find… You know, it’s like there are all sorts of paradoxes of self-reference. The liar paradox is the best known: statement A: statement A is false. That is the liar paradox. There is also the barber of Seville who shaves all and only those who do not shave themselves. Does he shave himself? If yes, then no. If he shaves himself, then he belongs to the group that does not get shaved by him. And if he does not shave himself, then he belongs to the group that he does shave, so he does shave himself. Protagoras, yes, the law teacher—he says he made a contract with his student that he would teach him law, and if he won his first case then he would pay tuition, and if not then apparently he did not teach him well, so he is exempt from paying. Fine, he finishes his studies, goes home on his way, goes to tan on the beach. Protagoras sues him, says: pay me the tuition, I taught you. Now the question is what the judge will decide. If the judge decides that the lecturer really deserves tuition, then the student lost his first case, so he is exempt from paying. But if the judge decides that the student is exempt from paying tuition, then the student won his first case, so he is obligated to pay. Okay? And so on. There are all sorts of collections of paradoxes that are called self-reference paradoxes.

Bertrand Russell has a book—he and Whitehead—a book called Principia Mathematica. Three such volumes that are all just formulas; I don’t know whether anyone ever really read them. I tried and got stuck in the middle of the first. Actually a book that is only formulas is relatively easier to read than those with lots of handwaving. But in the introduction to that book—that much I managed—the introduction contains what is called type theory. There Bertrand Russell offers a solution to all self-reference paradoxes. He builds a hierarchy of statements in language, types. The statements belong to different types in the language, and there is a hierarchy of types. And he sets the rule that every statement can refer only to lower types than itself. So clearly self-reference is an illegal statement in that language, because a statement cannot refer to itself. It can only refer to statements belonging to lower levels. Does that really solve the paradox? Obviously not. You defined a language in which it is impossible to express that paradox, that’s all, but you didn’t solve it. That’s no great trick—I can always create a language in which, yes, Stalin solved paradoxes that way. Whoever raised the paradox, he chopped off his head. That is also a solution. Meaning, if I forbid you to express the paradox, that does not mean I solved it. It means I don’t let you express it. But I’m talking about this language. What do I care about in my language? Right. This isn’t mathematics. I have a paradox in my language, in everyday language—solve it for me. Why are you taking me to mathematics and saying: no, there there’s no paradox. Fine, I asked you about here, not there. What do you mean “erase it”? You forbid expressing it. You say from today on it is forbidden to speak Hebrew; you may speak only mathematics. No, the problem is in language. Okay, then show me what the problem in language is. That is called solving the paradox. Find what the problem in the language is. And the problem in the language is not that it allows reference to the same type. That is not the problem in the language. You can define another language where this is forbidden, and then you won’t be able to express the paradox. That is not a solution. Right. Well, if your speech changes, then there is no paradox. There is no paradox in the changed speech. And I am asking about this speech, not the changed speech. Explain it to me here, not there. You can tell me: look, speak English and there won’t be a paradox—but I’m speaking Hebrew. I’m asking you about Hebrew, not English. Also because this isn’t mathematical. Right, I’m asking what is wrong with the language. Everything seems okay. So explain to me what exactly is wrong here. So what if it isn’t mathematical? No language is mathematical. What does that have to do with anything? If it were mathematical there would be no problem. Right. And if it were English there would also be no problem. I am asking the question about Hebrew, not about English. The fact that in another language there is no problem—does that solve the problem? In this language I asked you what is going on. It’s exactly the same as saying that from 17 and up it’s a heap. No problem, I solved the paradox. I solved nothing. I simply defined the concept of heap artificially so that the paradox wouldn’t appear. But I’m asking the question about the concept of heap as it is used in everyday language. And there the paradox is present. And if you didn’t show me there what the problem is, or discover a problem there, you didn’t solve the paradox. It’s like Achilles and the tortoise. That’s not a paradox. Obviously Achilles catches the tortoise. That is not the solution. That’s why it’s a paradox—because the calculation shows that he doesn’t catch it. On the other hand, it’s obvious that he does catch it. Therefore it is a paradox. Solving the paradox means showing why the calculation is incorrect, not showing why its conclusion is wrong. That I know by myself. The question is what in the calculation is defective. That is called solving the paradox.

I come back here. So the heap paradox basically tells me that there are three statements here, each of which sounds reasonable, but they do not fit one another. They are not consistent. This paradox can be formulated about any everyday concept, by the way. For example, the bald man paradox. A person with one hair is bald. A bald person to whom you add one hair—this does not change his status. One hair. But a person with a hundred thousand hairs is not bald. Same thing, right? Or from when is it afternoon? Children, yes, always ask: from when can you play, it makes noise outside. So from when is it afternoon? Twelve o’clock is not afternoon. If you add one second to a state that is not afternoon—unless you’re American. If you’re not American, then you add one second, and that does not change the status. It is still not afternoon. But five o’clock is already afternoon. There is no everyday concept that is not vulnerable to this logical attack.

You know M. C. Escher’s drawings of the fish and birds, Escher’s metamorphosis? You can take a picture of a fish and a picture of a bird. Fine? Now create a weighted sum of them. Meaning, suppose this is a collection of—what is it called in an image? Pixels. A collection of pixels, the two images. Okay. You create another image that is p times this pixel plus one minus p times that pixel. A weighting of them. Okay? And you create an image in between. Now vary p. When p equals zero, you get this picture. When p equals one, you get that picture. When p equals something in between, you get intermediate images that you can animate from this image to that image. That is metamorphosis. That is how you make metamorphosis. Now at what point does it stop being a fish and start being a bird? There is no way to define it. Adding epsilon to p does not turn you from a fish into a bird. But here it’s a fish and there it’s a bird. You understand that this basically means there is no everyday concept that is not exposed to this logical attack of the heap paradox. And the answer to this paradox is that we are mistakenly assuming a dichotomy. We think the world is divided into two kinds of piles of stones: a pile that is a heap and a pile that is not a heap. And the question is whether the non-heap became a heap or not. Right? That is basically the dilemma. But you assumed there are only two states: heap or not heap. You assumed binary logic. But that isn’t true. There is fuzzy logic. There is a continuum of heap-states. Heap-ness. There is something that is completely a heap, something that is fairly heap-like, very heap-like, not so heap-like, a little heap-like, almost not heap-like at all, and not a heap. Or, if you like, any number between zero and one can represent a certain level of heap-ness. The world is not divided into things that are a heap or not a heap. The world is divided into things with different levels of heap-ness.

So what does that mean? It means one of the three statements I presented earlier is actually false. “Adding one gravel stone does not change the status”—false. Adding one gravel stone changes the status a little bit. That is the correct answer. And now there is no paradox. Everything is fine. What created this paradox was our feeling that the world is divided dichotomously: therefore either heap or not heap, bald or not bald, afternoon or not afternoon. No. The world is built in fuzzy logic, not binary logic— not yes-or-no logic, but a logic with an infinite continuum of values. That is basically the more correct way of looking at concepts in everyday language.

Think, for example, there is a class of arguments in logic called dilemma arguments. What are dilemma arguments? For example: there is no point in giving exams. Why? The lazy won’t study even if there is an exam, and the diligent study even without an exam. So the exam is unnecessary anyway. Neither the diligent nor the lazy need it. What is wrong with that argument? Right—there are people somewhere in the middle, not at the pole of absolute laziness and not at the pole of absolute diligence, but somewhere in between. So without an exam they won’t study; with an exam they will. Or without an exam they study with a 30 percent chance, and with an exam with a 60 percent chance. So I increase the chance that they study, or the amount of study, however you want to model it. And what is the fallacy in such an argument? Again, the dichotomy. You decide that the world is divided into absolute lazy people versus absolute diligent people. But no—the world is divided into a continuum of levels of diligence or laziness, if you want. The half-empty glass, the half-empty glass. Okay.

So many times, when someone raises such a dilemma argument to us—yes, a dilemma argument is: P implies Q, not-P implies Q, conclusion Q. Because if both P implies Q and not-P implies Q, then the conclusion is Q. That is the structure of a dilemma argument. A dilemma argument is a valid logical argument. You cannot argue with it. But when you translate it into real-life concepts, it is not valid, it is not true. Because the world is not divided only into P or not-P. There is half-P, quarter-P, third-P, 0.8-P, and so on. If all of those imply Q, then you can conclude Q. But the fact that the two extreme sides imply Q does not mean Q is true. Okay?

Why am I saying all this? Back to our topic. The difference between legislation and interpretation is the question of whether something is in the Torah or not in the Torah. Do I succeed, by interpretive tools, in deriving it from the Torah, or are we dealing with legislation? Am I basically creating a law here that has no connection whatsoever to what is written in the Torah? So if we apply here the logical lesson we just saw, the required conclusion is that there are laws that come out of the Torah, but not entirely. They emerge from the spirit of the Torah, from expanding what is written in the Torah, but it is not something written in the Torah. Something written in the Torah is pure interpretation. Something you can reach by expanding what is written in the Torah is somehow related to the text, so that means it is related to the Torah—but the relation is not one, not airtight. It is one-third or 0.8. Okay? And there are things that are legislation, not related to the Torah at all. Just legislation where the sages create a new law without connection to the Torah. The two poles are de-oraita and derabbanan. What is written in the Torah in ordinary plain interpretation—Torah law. What is pure legislation—rabbinic law. What about the middle? There are things that emerge from the Torah, but you cannot say they are actually written there. It is some sort of expansion, it is related, but not… I cannot logically deduce it from what is written in the Torah. Okay? What is the status of that? Most medieval authorities say that thing is Torah law. That is exegesis. And Maimonides says no, that is rabbinic law.

It is like—there is a passage in tractate Shabbat in the chapter Tolin. The Talmud says there that there is no dispute from one extreme to the other. You will not find such a dispute. The Talmud brings a dispute regarding going out wearing a “golden city”—going out on Sabbath beyond the boundary, from private domain to public domain, with jewelry. A “golden city” was a very fancy ornament, like what Rabbi Akiva bought for Rachel. Is it permitted to go out with it on Sabbath? One tanna says it is forbidden by Torah law. Another tanna says it is entirely permitted. The Talmud says: you see, there is a dispute from one extreme to the other. The Talmud says: no, that is not true. Why? Because there is also a tanna in the middle who says it is forbidden rabbinically. And the question is: so what? Why should I care that he says it is rabbinically forbidden? Rabbinically forbidden means Torah-wise it is permitted. So what if the sages also decreed? What does that have to do with anything? But from his perspective, by Torah law it is permitted. Why do I care that there is a tanna who says it is rabbinically forbidden? Clearly the Talmud understands that if a certain tanna says it is rabbinically forbidden, he means this is basically weak de-oraita. Not zero de-oraita. One-third de-oraita or, again, 0.7 de-oraita. Then you say: fine, there is some sort of continuum. This one says 0.2, that one says 0.6, that one says 1. So I can maybe understand that. But for one to say 1 and the other to say 0.2—a dispute so extreme, with no one in the middle—that is not plausible.

And that really divides rabbinic laws into two types, and this is a known distinction among later authorities (Acharonim). There are rabbinic laws—think, for example, of someone sorting on Sabbath. Sorting on Sabbath means sorting refuse out of food. What happens if someone sorts food out of refuse? That is not forbidden by Torah law, but the sages forbade it. Okay? Why did they forbid it rabbinically? Usually the view is: lest one come to sort refuse from food. Then it turns out that in itself it is entirely permitted, and the sages made a decree: they forbade it lest you come to sort refuse from food. I want to argue that this is not the correct mechanism. The sages forbade it because this too is sorting, but not sorting with enough intensity to cross the threshold of Torah prohibition. It is 0.6 de-oraita. So by Torah law it is not enough to forbid it, but the sages still forbade it. Notice the difference. I am not claiming this was forbidden lest you come to sort refuse from food. No—it was forbidden because it is itself problematic. It is not problematic enough to be forbidden by Torah law, but it is problematic enough that the sages nevertheless forbade it. So this is sorting rabbinically—not that it is merely a rabbinic decree lest you come to sort. No, you are sorting now, only you are sorting in a less severe way. Therefore it is not forbidden by Torah law but only rabbinically.

By contrast, someone riding a horse—it is forbidden to ride a horse on Sabbath. Why? Lest he pluck a branch. While riding the horse he might pluck a branch. Would anyone think to say that riding a horse is reaping rabbinically? What connection is there? I’m riding a horse; this is not an act of reaping, only less severe. It is not an act of reaping at all. It is a completely different act, riding a horse—there is only a concern that I may come to reap. So they forbade that act. But in that act it is clear that this is only a rabbinic decree. There is no weak de-oraita here: lest you come to violate a Torah prohibition. With sorting it is not like that. With sorting, they forbade taking food from refuse because it itself is sorting. It contains the problematic character of sorting, only at a lower intensity.

That is basically what Maimonides says about laws that come from exegesis. Laws that come from exegesis are laws related to the Torah, but not written in the Torah. It is an expansion of what is written in the Torah, so there is a connection between them and the Torah, but the connection is not one. “Connection” is correlation, in secular language. Correlation one means when this appears, that appears too—it is written in the Torah. Okay? Here the correlation is half, three-quarters, one-third, I don’t know how much—partial. So you cannot say this is a rabbinic enactment. A rabbinic enactment is something the sages create without any connection to verses. The sages create it because that is what seems right to them. That is pure legislation. Interpretation is pure interpretation when I understand what is written in the Torah. Exegesis is neither pure legislation nor pure interpretation—it is something in between. Therefore there is a dilemma among the medieval authorities whether it is Torah law or rabbinic law. Maimonides says that for him it is rabbinic. Torah law is only something that is really interpretation. Everything that is 0.8 de-oraita is rabbinic law.

But here a distinction comes in. Here I also resolve additional difficulties raised against Maimonides, the ones I presented at the beginning. What will happen in the laws of doubt? I claim that Maimonides agrees that doubt in laws that come from exegesis is treated stringently, even though these are “words of the sages.” Maimonides holds that “in rabbinic doubt, be lenient” applies only to a certain kind of rabbinic law—enactments and decrees. But the rabbinic laws that are laws derived from exegesis—there the doubt is treated stringently. Do you understand that once Maimonides defines a continuous scale of rabbinic laws—what is the axis it runs on? The axis is connection to the text. What has no connection at all to the text is a pure rabbinic law. What has a faint connection to the text is a somewhat more severe rabbinic law. What has more connection to the text is an even more severe rabbinic law. What is fully connected to the text is Torah law. So according to Maimonides there is a continuum of levels of rabbinic law. That means the concept “rabbinic law” contains under it many shades. And it may be that the laws we are accustomed to attributing to rabbinic laws are not true of all types. They may be true of some types of rabbinic laws and not of another type.

Once we understand there is a continuum of levels, that it is not one binary concept—either Torah law or rabbinic law—but the concept “rabbinic” means everything that is not Torah law, while still containing many shades of rabbinic law—now we can start to play with it. Punishment will not apply to all rabbinic laws; that is what Maimonides says. But regarding doubts, for example, I claim that doubt in a law derived from exegesis is treated stringently, doubt in a law given to Moses at Sinai would be treated leniently, and doubt in a law that is an enactment or decree would also be lenient. There is no sweeping rule that “rabbinic doubt is lenient” according to Maimonides—it depends which rabbinic law. Once I see that there is a spectrum, a whole range, of rabbinic laws, that opens possibilities for me to accept all these rules as non-sweeping rules. The rules that say how we treat rabbinic laws and how we treat Torah laws—they stop being sweeping. Because it depends on which type. It is no longer dichotomous; it is no longer either all Torah law or all rabbinic law.

I’ll conclude perhaps with a more current remark. There is a great deal of criticism of the Supreme Court. Right now maybe not now, before the war it was really at the center of public discourse, but in fact it began in the period of Aharon Barak’s judicial activism. And there was very harsh criticism that basically the court takes for itself the authority of a legislator. It takes a law established by the legislature, interprets it according to the judge’s values, and says: this is what the law says and therefore you must do this. But clearly this really reflects the judge’s values. Or in other words: de facto, you legislated; you did not judge. The judge’s role is to interpret the law and apply it. But the legislator’s role is to legislate. A judge cannot legislate. That was the criticism of Aharon Barak, and to this day. The claim that the court basically does whatever it wants—what does that really mean? The court takes for itself the authority of a legislator even though it was supposed to be only an interpreter. The court was supposed to generate only Torah-level laws; it has no authority to generate rabbinic laws. It cannot create laws of its own. It can interpret what the law says. Okay? In the terms of Torah law and rabbinic law, this basically means the court can only interpret the law but cannot legislate.

If you remember, in the functions of the sages, in rabbinic laws, under “do not deviate,” the dispute between Maimonides and Nachmanides that we saw in the previous root, we saw that the sages have both functions. They both interpret the Torah and legislate. When they legislate, that is rabbinic law; when they interpret, that is Torah law. And Maimonides says those two authorities were given to them by the verse “do not deviate.” Nachmanides claims only interpretation, not legislation. For our purposes, in the legal system, in our legal world, the criticism of the court is basically: by what right do you allow yourselves to legislate? You are supposed only to interpret. What is the problem with that criticism? Only one small problem: it’s not true. Why? There is no such thing as something that is only interpretation without legislation. The court—there is no interpretation in the world that is a hollow pipe with no components from the interpreter’s own worldview. There is no such thing. Everyone who approaches the Torah comes with everything he brings with him, everything he carries with him. And when he interprets what is in the Torah, clearly the interpretive product also contains something from the interpreter’s worldview—or in our context, from the judge’s worldview. You cannot be some kind of objective thing that merely distills what is written in the Torah or what is written in the law. It simply does not exist. There is no interpretation in the world that is purely interpretation, of complete correlation one with the text, so that nobody could dispute it. There is always something taken from the world of the interpreter, or in our context from the world of the judge.

Therefore there is no judicial ruling in the world that does not include dimensions of legislation. Whenever a judge interprets a law, there are some elements of legislation too, because another interpreter can come and say the law means something else, and the law in itself does not necessarily say what the judge said. But the judge is the authorized interpreter, and once he is the authorized interpreter, then he can—this just reminded me of something, I suddenly caught another implication, good, maybe I’ll write something about it one day. A judge cannot really be a pure, thin interpreter, yes, doing only net interpretation detached from his own world, his world of values, his conceptions, and so forth. Now of course one can argue about how far one may take that, or how far the judge’s interpretation can go along with his personal conceptions. But you cannot come with a categorical claim and say: you cannot legislate, only interpret. There is no interpretation without certain components of legislation. There is no such thing.

Therefore I think, first of all on the factual level, it is clear that Maimonides is right that there is an entire continuum of connection, levels of connection to the text. There is a connection of one—then it is written, that is plain interpretation, that is what is written. At most I only expose to you what is written; this is deduction. I can show you logically that this is what is written; one cannot argue. Okay, but how many things like that are there? None. Every other interpretation is interpretation at 0.9, 0.8, 0.4, 0.2. Okay? Then others will argue; others who come with different assumptions will reach different conclusions. Meaning, clearly there is a continuum of levels of connection to the text. It is not true that either it is written or it is rabbinic; clearly there is a continuum of levels. The whole question is where you place the line, where you draw the line between Torah law and rabbinic law. It may be that this line passes in different places for different implications. Regarding the laws of doubt, that line passes at 0.5. All exegeses that are beyond 0.5—their doubts are treated stringently. Enactments, decrees, and other things—their doubts are treated leniently. Regarding punishment, the line passes at one. Everything that is not fully Torah law has no punishment, according to Maimonides. So the line is drawn in a way that can be relevant separately for each discussion; each discussion has its own line. But first and foremost one has to understand that in the background there is some sort of continuum, and on that continuum we draw a line, a cutting line.

Good. No, the judicial reform is indirectly related to this matter, but I am in favor of reform and against the reform. I think I spoke about this once. You know, those who oppose the reform and those who support the reform are not saying anything different from one another; they are saying exactly the same thing. Those who oppose the reform say: look, true, reform is needed, but not this kind. And those who support the reform say: look, true, you don’t need to change things quite that much, but you agree that things need changing. Right, but they are basically saying the same thing. Everyone says reform is needed, just not so extreme. The whole question is whether you look at the glass as half full or half empty. It’s not an argument—there is no argument at all. The argument is only whether you are for the government or against it; it is not an argument about the reform. So I’m against it.