Mitzvot and Their Enumeration – Lesson 15

[Rabbi Michael Abraham] Okay, last time we dealt, the previous times we dealt with the second root in Maimonides, which talks about laws that come out of midrashic derivations, and the claim was that we see there a phenomenon similar to the one we saw in the first root, which dealt with rabbinic laws. And Maimonides says that laws that come out of midrashic derivations—and I’m summarizing where we got to—are different from laws that arise from interpretation of verses, in the sense that interpretation is seen as an uncovering tool. When I interpret a verse, the result basically uncovers something that in some way was already inside the verse, and interpretation is a tool of uncovering. Midrash, by contrast, expands what is in the verse—if you like, the spirit of the verse—but the result, as Maimonides says, is like branches that come out of the roots. Meaning, it’s some kind of expansion of what is inside the verse. And because of that, says Maimonides, the result or product of a midrash cannot be considered a Torah-level law, and therefore also cannot be counted in the enumeration of the commandments, because by his definition a Torah-level law is only a law that is written in the Torah. Torah-level in the literal sense means in the Torah, to say something found in the Torah, as distinct from law given to Moses at Sinai, as distinct from laws that come out of midrashic derivations, and so on. So basically Maimonides’ fundamental thesis—or really there are two theses here. One thesis is interpretive and another thesis is halakhic. The interpretive thesis says that something that comes out of a midrash is not uncovered or quarried out of the verse, but rather constitutes an expansion of what is inside the verse—what I called branches that come out of the roots. Or in a more extreme formulation, Maimonides says that every verse has only one interpretation; there is no more than one interpretation for a verse. That one interpretation is what is called the plain meaning. Midrash, or any other way of relating to the verse, is not interpretation but expansion of what is in the verse. Interpretation is uncovering what the verse says, while midrash and other tools are an expansion of what is in the verse beyond it. So that’s Maimonides’ interpretive innovation. On top of that, Maimonides says he also has a halakhic innovation: something that does not appear in the Torah—for example, an expansion by means of midrash—cannot be considered Torah-level and cannot be counted among the commandments. I said that in principle these two innovations are not tied to one another. You can agree with the first and disagree with the second, or agree with the second and disagree with the first. We saw, for example, Ran in tractate Nedarim, where Ran agrees with Maimonides’ first, interpretive innovation. He says that something that comes out of a midrash is not written in the verse; it is an expansion of what is in the verse. But he still sees such a thing as a Torah-level law. He does not accept Maimonides’ second innovation, that whatever is not written in the Torah is not Torah-level. In principle there could also be someone the other way around—I don’t know such a person, but in principle it could be—someone who says that something not written in the Torah is not Torah-level, but something that comes out of a midrash uncovers what is in the verse, or that there are several possible interpretations of the verse, as Nachmanides says. And so in that sense he disagrees with Maimonides on the interpretive innovation but agrees with the normative innovation that what is not found in the Torah is not Torah-level. Actually, it could be that this is what Nachmanides says, because Nachmanides disputes Maimonides and says that even something that is not the plain meaning is still an interpretation of the verse, as he says, there are seventy faces to the Torah and so on—how can you say there is only one interpretation? On the other hand, Nachmanides of course attacks Maimonides on the second root; he says that laws that come out of midrashic derivations are indeed Torah-level. Why? At first glance one could say it’s because he understands that laws that come out of midrashic derivations are also interpretation of the verse. Meaning, these too are uncovering tools and not expanding tools, and once that is so, then that law can be a Torah-level law. Meaning, he can agree with Maimonides that what is not written in the verse is not Torah-level; he only claims that a law that comes out of a midrash is written in the verse, and therefore it is Torah-level. He can disagree with Maimonides on his interpretive assumption, and he can disagree with his halakhic assumption. From Nachmanides’ wording it seems that he disagrees with Maimonides’ interpretive innovation, because he argues that there are seventy faces to the Torah. If that really is what Nachmanides holds, then you don’t have to say that he disagrees with Maimonides’ second innovation. He can accept the claim that what is not written in the Torah is not Torah-level; he just argues that midrashic derivations are something that is written in the Torah. Therefore he disagrees with Maimonides and says it is Torah-level. In short, if Maimonides needs two assumptions, you can disagree with him on either one. Someone who says that a law derived from midrash is a Torah-level law can disagree with Maimonides’ interpretive innovation and say that this is a Torah-level law—like Nachmanides, apparently. And he can disagree with Maimonides’ halakhic innovation while agreeing with Maimonides’ interpretation, and that is Ran. And actually Nachmanides is probably the… I said I didn’t know anyone, but Nachmanides apparently holds that view. For our purposes, what this really means is that when we talk about extracting conclusions from a verse or deriving conclusions from a verse, it cannot be described in black-and-white terms. Either the thing is written in the verse, or the thing is the invention of the Sage and he did not take it out of the verse. That’s a dichotomous view that makes a sharp division between legislation and interpretation. When you take something out of the verse, that’s interpretation; when you create a law of your own, that’s legislation. The Sages, from the verse “you shall not deviate,” have both authorities: to legislate and to interpret. That’s the accepted view—that there’s a dichotomous split here. Meaning, either you interpret the verses, or it’s legislation and then the law is rabbinic. Maimonides’ main claim in the second root, and elsewhere, is that the picture is not dichotomous. The picture is not dichotomous meaning there are interpretive acts—or whatever you want to call them—performed on the verses that do not uncover what is inside the verse, but are also not the invention of a new law unrelated to the verse. Rather, they are an expansion of what is in the verse, the spirit of the verse, or something like that. So you understand that this is basically an intermediate category. Or in other words, the connection between the law that I create in this way and what is written in the verse is not either there is a connection or there isn’t; it’s not binary. Rather, it is continuous. It can be any level of connection whatsoever between zero and one. One is plain meaning, interpretation of the verse. Zero is legislation—that’s a rabbinic law according to everyone. But Maimonides says there is also 0.2, 0.5, 0.6, 0.8—there are all sorts of possible levels of connection to the verse, and therefore the division between Torah-level and rabbinic is not a dichotomous division. I brought the sorites paradox to sharpen this point—why you have to be careful with dichotomous thinking. Dichotomous thinking gets us into paradoxes and problems that are the result of our dichotomy. And we have to get rid of the dichotomy; dichotomy is something that trips you up. And in our case, all the attacks on Maimonides that assume there are rabbinic laws and everything else is Torah-level law, including laws made through midrashic derivations and so on—those are really conceptions based on a dichotomy. Either it’s in the verse and then it’s Torah-level, or it’s not in the verse and then it’s rabbinic, so it’s legislation. What else could it be? Maimonides says no, it can be otherwise; the dichotomous view is incorrect. I brought various examples of why one has to resort to a dichotomous approach. I said that this very same argument, this very same dispute, is really happening today as well in our own country, and in other countries too. The debate around what is called judicial legislation. Judicial legislation is when a judge, whose role is basically to interpret the law, gives an interpretation that in effect expands the law and determines for the case before him some legal norm or legal status that doesn’t really arise from the law—maybe from his worldview, not important right now. When a judge does such a thing, people criticize him. Aharon Barak was maybe the peak of this debate around his approach, but it has been going on ever since and continues to this day. The claim is that the judge is really exceeding his authority, because a judge’s role is to interpret the law and apply it to the case before him. When a judge legislates, he is doing something entrusted to parliament, to the Knesset. Their role is to legislate, not the judge’s. Hence the claim. He has authority only to interpret and not to legislate, like Nachmanides says about “you shall not deviate,” that it gives the Sages authority to interpret but not authority to legislate. They do have authority to legislate, but it does not come from “you shall not deviate.” In law, in our legal system, a judge has no authority at all to legislate, only to interpret. Not connected to “you shall not deviate” or not—he has no authority to legislate, only to interpret. The moment he legislates, he gets criticized. But here’s the thing: as I said before, there is no such thing as pure interpretation, interpretation that is completely detached from the worldview, the insights, the assumptions of the interpreter, from the interpreter’s world. There is no such thing. Every interpretation has certain components that come from the interpreter. We are not hollow pipes when we interpret a text. Many times it seems to us that we approach a text and draw a conclusion from it, and we can’t understand how others disagree—what, don’t you see? It’s written here! No, often they are wrong, but often they are not. It is not written here. It is written here through your glasses. When you look at it, you think that is what is written here. You don’t notice that you are bringing into your interpretive act components that come from you, not from the text. Interpretation is always a fusion between the interpreter and the thing being interpreted, and the result contains both. There is no such thing as wholly thin interpretation, interpretation that is just pure interpretation, which yields Torah-level laws according to everyone, even according to Maimonides. And therefore the sweeping criticism I presented earlier of judicial legislation is incorrect. But that’s where I stopped last time. I want to sharpen this a little more. We have to distinguish between three situations of what the judge does to the law. One possibility is that the law allows several interpretations—the text itself. You can interpret it in several ways. What is written there is not unequivocal. Now, among these several possibilities, the judge is the one who is supposed to choose, because he is authorized to interpret. On what basis will he choose? Very likely on the basis of his own conceptions, right? A judge cannot completely detach himself from his own conceptions; from among the five possible interpretations of the law in question he will choose the interpretation that seems most reasonable to him. And what seems most reasonable to him is of course what seems most reasonable to him. Another judge—we know there are disagreements between judges in court—so clearly another judge could reach a different conclusion. That means the language of the verse—the law, I mean—can bear several interpretations. In such a case the judge comes and chooses one of them because he has to decide what to do in the case before him. That choice, as I said before, always contains elements from the judge’s world, from the interpreter’s world, always. That is what is called judicial legislation. And it’s legitimate. What do you want the judge to do? The law is written. Now we have to decide what it says. There are several ways to interpret what it says. Who will decide which interpretation is correct? The judge, because he has authority to interpret. Not because he is right, not because he is the smartest and knows which interpretation is most correct, but because he is the one authorized to determine the binding interpretation. The law authorized the judge to be the authorized interpreter, that’s all. Meaning, I can disagree with him, I can think he interpreted incorrectly, but that doesn’t matter—he is the judge. And in that sense I don’t think you can complain about a judge who engages in that kind of interpretive act. That is what is called judicial legislation that cannot be avoided. Meaning, anyone who thinks it can be avoided is mistaken or lying. A second possibility is a situation where there is a gap in the law. A case comes before me and the law yields no conclusion regarding this case. Not because it can be interpreted in several ways, but because it says nothing at all about this case. So now the question is whether a judge has authority to fill in gaps, to fill in holes, yes, within the existing legal system. On the theoretical level, no. On the theoretical level, if there is a hole in the legal system, a hole in the law books, the only one who can fill it is the Knesset, because filling such a hole is legislation; that’s the legislator’s role. But there are situations where this hole is one that you cannot send back to the legislator to fill. You have to determine now what to do in this case, and it is unreasonable to say, well, there is no law on this matter, so he murdered with his left hand, not with his right hand, so who knows whether the legislator also meant murder with the left hand. Or just some example that came up not long ago—and by the way there the judges actually did not fill the gap—what happens if a woman rapes her husband? In the law, at least in the wording back then, it said that a husband may not rape his wife, that a man may not rape a woman. Now, is it also forbidden for a woman to rape a man? It’s not written in the law. So according to this formalist view, the claim is basically that this should be sent back to the legislator, and in the meantime release that woman, because the law does not prohibit it; the judge cannot legislate. By the way, that’s what they did. It’s pretty amazing. I mean, judges make very far-reaching interpretive moves, and here for some reason they decided to be very formalistic and cling to the language of the law. I mean, I don’t understand the point of it, but that’s the claim. Meaning, the claim is—I have a friend who is a judge, and he argued that the difference is what I said earlier: that even an expansive interpretation by a judge ultimately still has to fit into the language of the law. The language of the law may allow several interpretations, but it also allows that interpretation. And after you have given that interpretation, you can plant it into the language of the law. That is judicial legislation that a judge may do. But if you are filling a gap—if the law says that a man who rapes a woman gets such-and-such a punishment—you cannot insert into the language of the law that a woman who rapes a man is also such-and-such. You can only say by reasoning, what difference does it make here or there? Why should it matter whether the rapist is a man or the rapist is a woman? But that’s your own reasoning; you are making an analogy. Even if you accept that analogy, the result of the analogy—that a woman also commits a criminal offense—cannot be inserted into the language of the law. It doesn’t fit into the language of the law. You can say that the law indeed speaks only about men, but logic says why make a distinction? But you cannot insert the outcome into the language of the law. That is judicial legislation which is supposedly illegitimate. I don’t think my friend is right. In my view judges also engage in judicial legislation of the type of filling gaps. And here is the proof: there is the Foundations of Law Act of 1980, which says that when there is a gap in the law, the judge may fill it by means of Hebrew law, the sources of justice and fairness of the heritage of Israel—or some phrase like that that means nothing—or if not, then by analogy, or by inspiration from other foreign legal systems. Meaning, it says to look at what other legal systems do and draw from there. Seemingly that law should have said: if there is a gap in the law, the judge should kindly go home and leave it to the legislator to say what he has to say about this case. No, the law says that the judge should fill that gap. The only question is how to fill it. So there are big arguments between the religious and the non-religious over Hebrew law, whether to bring Jewish law into it or not, big arguments. But the assumption is that clearly the judge also fills gaps, not just chooses one interpretation from among several possible interpretations of the language of the law. He also fills gaps, because there are cases that come before him and you can’t say okay, I’m going home because the law said nothing about this; if the legislator says something, he says something. There are situations where you have to determine what to do here, and that’s really a legislative act. Okay, so that’s the second type. I said the first type of what the judge does is judicial legislation par excellence: choosing one interpretation from among several possible interpretations of the language of the law. The second move is to fill a gap. In a place where the law said nothing, the judge fills the gap either from sources of justice and fairness and I don’t know what, or from foreign legal systems. The third move is the most far-reaching of the three, and that is a situation where the judge takes the law away from its plain meaning by, for example, purposive interpretation—basically going against what the law says, or interpreting it in a way that contradicts what is written in the language of the law because he claims that in purposive interpretation that is really what it should be. The Law of Return?

[Speaker C] The grandson’s widow, so that a Jew could also get the Law of Return.

[Rabbi Michael Abraham] Fine, okay, but that’s okay, because that’s what is written in the language of the law.

[Speaker C] Why? The grandson’s widow.

[Rabbi Michael Abraham] Ah, the grandson’s widow, okay. Well, I don’t know what the consideration was there, we’d have to check. But in principle, when you’re talking about—even if you’re right, that still isn’t it. That’s filling a gap, not the third thing.

[Speaker C] And “de facto” whatever.

[Rabbi Michael Abraham] That’s filling a gap, because here there is still some relative with respect to whom the law doesn’t say whether the Law of Return applies or not. It doesn’t say that it doesn’t. Maybe we’ll assume that whatever it doesn’t say, apparently it means no, but that’s already a non-simple assumption. It could be that by analogy you can say, I don’t know, there is a gap here, and I’m filling it. Because otherwise, every filling of a gap really belongs to the third type. Then there aren’t three types, there are only two. I made a division here into three types.

[Speaker D] On the basic assumption that whoever is not written is not included in the law, that’s a very clear assumption.

[Rabbi Michael Abraham] Why? No. If someone’s status is exactly like that of someone who is written in the law, then the legislator didn’t write him, but it’s the same thing. So I fill the gap. I say there is a gap here and I fill it. According to that logic, as I just said, every gap-filling is actually against the law. There is no gap-filling that is neutral with respect to the law. Because according to your assumption, everything not written in the law means that the law is basically saying the opposite. So every time you fill a gap, you’re going against the law. It isn’t neutral. So there aren’t three levels, only two. I don’t think that’s right. And factually too I don’t think that’s right. I mean, practically, judges do in fact distinguish between these three things. Lawyers do. So the third type is interpreting the law against its intent. Fine, an interesting question: it’s not always clear which of the three categories specific cases belong to. There was a judge in Jerusalem—there are judges in Jerusalem, as Begin once said. There was a judge in Jerusalem who dealt with a kibbutz that desecrated the Sabbath in its factory. And the law says that Jews may not desecrate the Sabbath, meaning work on the Sabbath. You need a special permit from the Ministry of Labor. Okay? Without that you can’t work on the Sabbath. The representatives of the kibbutz argued that the kibbutz is not Jewish. The kibbutz is a corporation. The members of it are Jews, but a corporation has no religion. Who is the kibbutz’s mother, Jewish? So the kibbutz is not Jewish. Therefore the law does not apply to it. And the judge accepted the argument. I think that’s what they argued, or maybe he came up with it on his own, I already don’t remember. But practically that’s what he said. Now, clearly that’s not what the legislator intended. Clearly he inserted his own conceptions here. But on the other hand, you could say this is just an interpretive question. What is called Jewish? When the law states that a Jew may not work on the Sabbath without permission, who falls under the concept Jew? It can bear several interpretations. According to the judge’s view and the petitioners’ view, a kibbutz doesn’t fit that interpretation. So ostensibly this is just an interpretive act. Somehow the feeling is that it isn’t. Clearly he inserted his own conceptions here, and it is really perceived as a ruling of the third type. The type that goes against the language of the law. Not choosing one interpretation from among several that fit the language of the law, not filling a gap that the law did not address, but going against the law. The same feeling you mentioned earlier regarding the grandson’s widow. No, so the claim is that legally, the kibbutz works.

[Speaker A] No, that’s the legal definition of a corporation.

[Rabbi Michael Abraham] A legal definition of a corporation sees it as though it were a legal entity. That corporation can own money, for example. Who exactly owns the money? At the end of the day, a person is always the one who actually spends the money. No, but on the legal level we treat the corporation as if it were a person. A new kind of person. And that is the corporate veil. Therefore, if people join together in a corporation, we can no longer sue them directly; the corporation protects them. You have to sue the corporation. You can’t sue the individual. So after this move, corporations basically become legal entities like people. And when a person acts on behalf of a corporation, then as far as I’m concerned, the one working here is the corporation, not the person. Legally. In the physical sense, of course a human being is doing the work. But legally, the one working here is the corporation. And if I look at it on a metaphysical level, I am an organ of the corporation. I am the corporation’s leg, you are the corporation’s hand; somehow we form some kind of organism. The organism is the corporation. Now, I can’t say, look, it’s not me working, it’s my hand working. In the case of a private person. What do you want from me? I rested on the Sabbath; only my hand worked. No. Your hand is part of you. If it worked, that means you worked. Okay? So the claim is that with respect to a corporation it’s the same thing. In other words, the claim is that when a person works, it is really the corporation that is working, not the person. The person functions here as an arm of the corporation or as an organ of the corporation. And then the claim is that the corporation is a person without religion. It has no religion. It is neither Jewish nor Muslim nor anything else, and therefore the law of work and rest hours does not apply to it. That was the claim. And again I’m saying, this is very far from simple, even though your gut instinct says that the judge here abused the law. But it is very hard to locate this interpretation on the map of the three possibilities I described earlier. You could definitely see it as any one of the three. So the division looks like a logical, distinct, well-defined division, but in practice, when you take specific cases, specific actions that a judge took, it will be hard to place them on that map, under one of those three possibilities.

In any event, for our purposes, what does this actually mean? In the first case, when the judge chooses one interpretation from among several possible ones, that is judicial legislation; there’s no avoiding it. That is the interpreter’s job. The interpreter’s job is to decide what the interpretation of the law is. Filling a lacuna, that is already more controversial. Filling a lacuna—you could simply say, send it back to the legislator so he can fill the lacunae; that’s his job, to legislate. You cannot legislate. If the law said nothing, then there is no law here. So there is definitely room for criticism there, but still, it seems to me that the prevailing view says that filling lacunae is within a judge’s authority. Carefully, but it is within a judge’s authority. The problem arises in the third case, when the judge goes against what is written in the law. The reasoning may be sound, everything may be fine, but in the end it goes against what is written in the law. And the question is whether he has the authority to do that as well. And here, simply speaking, the criticism does seem justified. Because you cannot perform a legislative act—even if you can fill lacunae, you cannot nullify a Knesset law or replace it with another law. Only the Knesset can do that. Here the criticism is legitimate criticism. Therefore this is not called judicial legislation. And if you look at the justifications usually offered for judicial legislation, you’ll see that those justifications support the first two directions; they do not justify the third direction. But sometimes judges also act in the third direction. And of course they claim that this belongs to one of the first two, and that itself is what the debate is about: whether this really is something third, or whether it is one of the first two mechanisms.

If I return to Jewish law, the sages can take all three steps. Let’s give them names. When the sages choose one interpretation from among several possible ways to read a verse, what is that? The first mechanism: interpretation. Right? It is interpretation of a verse. There are several interpretive possibilities, and the sages are the ones with the authority to determine what the binding interpretation of that verse will be. Again, not what the correct interpretation is, but what the binding interpretation will be. Okay? So that is ordinary interpretation. When the sages fill a lacuna, that is the second one. And what is that in halakhic language? Legislation—it is rabbinic law. Right? What happens in the third mechanism? The third mechanism is very tricky. On the face of it, that is certainly legislation—ultra-legislation. It is not even rabbinic law; they are not allowed to do such a thing at all. You are going against the Torah. But that is not precise, because they do in fact go against the Torah. For example, the sages can determine that we do not blow the shofar on Rosh Hashanah when it falls on the Sabbath, even though the Torah says that we do blow it. This is a rabbinic law—there’s no point drifting into the Jerusalem Talmud, but according to the Babylonian Talmud it is a rabbinic law—we do not blow the shofar on Rosh Hashanah that falls on the Sabbath. The sages uproot something from the Torah by passive omission. There are various rules that explain why the sages have authority to do this.

But now let me take you back to midrashic interpretation. When the sages interpret “an eye for an eye” to mean monetary compensation, what is that? According to Nachmanides and others, they basically uncovered that the verse does not mean that we literally take out an eye; it means that we collect money. True, it does not look that way from the language of the verse, and therefore we have the verbal analogy of “under” and broader considerations. But in the end, we are convinced that what the verse means is monetary compensation, not taking out an eye. According to Nachmanides. But Maimonides—and as I said earlier, on this point the Ran agrees with him in the interpretive innovation—Maimonides says no: the verse means taking out an eye, and the midrashic interpretation is an extension, but it is not exposure. The midrash does not explain to me what is written in the verse. The midrash is something beyond the verse. An extension, the spirit of the verse, call it what you like. But it is something beyond the verse. That is according to Maimonides and according to the Ran.

Now what does that mean? You are essentially engaging in so-called interpretation of a verse, but that interpretation goes against its wording. The wording of the verse is to take out an eye. You say, no, no, we do not take out an eye, we collect money. This is really the third mechanism, right? The one that says we go against what is written in the law. The interpreter interprets the verse against what is written in it. But in Jewish law there is no criticism of that. The sages are allowed to do it, because the sages are allowed to expound verses. And again, it’s not that the midrash does not expose what is in the verse according to Maimonides; what is in the verse remains what is written in it. “An eye for an eye” means an actual eye. But the sages are allowed—or even required—to make a verbal analogy, “under” and “under,” and derive monetary compensation. We do not take out an eye. That is to interpret the law in a way that goes against the language of the law—something that in the legal world we would not accept. It is not judicial legislation; it is much worse. But in Jewish law, yes—in Jewish law this is possible. They have authority to expound verses. And again, according to Nachmanides, the authority to expound verses does not mean what I am saying here, because on his view the midrash is a tool that reveals. But according to Maimonides, where the midrash is an expansive tool, then the authority to expound verses is not merely expansive; it is actually the authority to carry out the third mechanism. It goes beyond judicial legislation.

Now I want to show you a few implications. I return to our line of thought—where are we standing right now? Right now, we are saying that midrashic interpretation, even where it does not contradict the wording of the verse—for example, “You shall fear the Lord your God” includes Torah scholars, the example Maimonides himself brings in that principle—even there, the product of the midrash, yes, fear of Torah scholars, does not contradict the verse; it extends beyond it. Right? It is the spirit of the verse; it is an extension, like branches that emerge from roots. But it does not contradict the wording of the verse.

So let’s talk about that midrash. That midrash is basically telling me that the spirit of what is written in the verse can be extended, so that one must fear not only the Holy One, blessed be He, but also Torah scholars. So that means it is not written in the verse, but branches out from the verse. I mentioned last time that “do not turn aside,” which is the source for rabbinic prohibitions, is also branching out and not specification. Specification means a private case of the rule written in the verse—a deduction. Branching out means that I make some sort of analogy or induction. What is in the verse, I extend beyond it. It is connected to the verse, but not by a full connection. When the connection is not full, that is an extension of what is in the verse; when the connection is full, that is exposure, that is deduction.

Now, there were a number of questions about Maimonides, several kinds of objections to Maimonides’ thesis, and now I want to answer them in light of the picture we have arrived at. The first question was: how can Maimonides say that a law given to Moses at Sinai is rabbinic law, because it is not written in the Torah—it is an oral tradition? Something derived by midrash is also rabbinic law, but a law given to Moses at Sinai for which we found an anchor in a midrash is Torah law? How does zero plus zero equal one? The answer is: it is not zero plus zero, it is half plus half. There is no dichotomy. The dichotomy says it is either zero or one. No—it is half-Torah-law. It is not zero. Half plus half gives me one. Or more concretely: when I have a tradition transmitting some law to me, and I can anchor it in a scriptural midrash, that means this midrash is not an expansive midrash but a revelatory midrash. I already said this last time—it is a revelatory midrash. And if it reveals, then according to Maimonides’ halakhic innovation, the product is Torah law, because the product is uncovered from the verse. The tradition that orally transmitted the law to me revealed that the midrash I am making is actually a tool that exposed additional content in the verse, rather than expanded the verse. Therefore it is Torah law. So that is one objection we already answered.

Another objection is: why do we not find in Maimonides—and of course also in the Talmud, but also in Maimonides—a great many laws that we would have thought were Torah laws, while Maimonides says they are rabbinic laws? All the laws derived from midrashic exegesis, except perhaps three or four as Maimonides writes, are rabbinic laws. I would have expected the Mishneh Torah to be full of laws that we—or the medieval authorities, or the Talmud—would see as Torah laws, and suddenly in Maimonides we would find that he says they are rabbinic. But no. Hardly any. A handful, and on each one there are disputes. A handful. One of them, I already mentioned at the beginning of the laws of marriage, where Maimonides says that marriage through intercourse and marriage through a document are Torah law, while marriage through money is by rabbinic enactment. And in a responsum to Rabbi Pinchas the judge of Alexandria, Maimonides explains that this is based on the second principle. So marriage through money is by rabbinic enactment because it is learned through midrash, not ordinary interpretation. By contrast, intercourse, for example, is explicit in the Torah: “When a man takes a woman and has relations with her,” so intercourse is written explicitly in the Torah; that is not midrash. By contrast, money comes from the verbal analogy of “taking” and “taking” from the field of Ephron—that is a verbal analogy, a midrash. Okay. As for the document, never mind, that is another matter.

So there are all sorts of debates about that too, because one law later Maimonides says that one who has relations with the woman, in any form—he does not distinguish among the types of marriage—incurs the death penalty. So we see that marriage through money also creates a Torah-level marriage, even though he called it rabbinic enactment. So that raises all kinds of debates about what he meant. The same is true regarding maternal relatives who are disqualified as witnesses. Relatives are disqualified from testifying for their relative. What about someone who is my relative only through my mother and not through my father? Maimonides says he is disqualified from testifying for me by rabbinic enactment, because that comes from a midrashic derivation, where maternal relatives are included through midrash, and therefore it is really only a rabbinic disqualification, not a Torah-level disqualification. There are all sorts of debates about that too. But these are really very, very isolated places—two, three, four places—and even each of those is disputed. You do not find in Maimonides the whole large mass that we would expect of laws that are Torah law, or that we think are Torah law, and suddenly in Maimonides we would see that he says they are by rabbinic enactment. Why not? There are hundreds upon hundreds of midrashic derivations, if not more.

So here I will use a tool we already discussed in previous sessions. If you remember, in his commentary to the Mishnah in Keilim, Maimonides explained that legal measures are laws given to Moses at Sinai. But in a doubt about a measure, we rule stringently. Why? Because the measure is not an independent law; the measure is a detail within a central law. For example, the minimum quantity for eating pork is an olive-bulk. The prohibition of eating pork has as its measure an olive-bulk. The prohibition of eating pork is written in the Torah. The law given to Moses at Sinai that the measure is an olive-bulk only comes to explain or clarify the law written in the Torah. In such a case, obviously my doubt is a Torah-level doubt, not a rabbinic-level doubt. I have a doubt whether I ate, whether I violated the prohibition of eating pork. True, the doubt concerns the measure, and the measure was stated by a law given to Moses at Sinai, whose status is by rabbinic enactment. But in this case, this is a law given to Moses at Sinai that interprets; it does not create a new law, like the willow branch rite and the water libation, which are laws given to Moses at Sinai. There it is a new law created by the law given to Moses at Sinai. Here, the law given to Moses at Sinai merely explains or clarifies a Torah law written in the Torah. In such a case, obviously we rule stringently in case of doubt, even though a law given to Moses at Sinai in itself—if it creates a new law—its doubt would be ruled leniently according to Maimonides. It says so explicitly there.

I want to make exactly the same claim about laws that come from midrashic derivation. When the midrash creates a detail within an existing law that is written explicitly in the Torah, or follows by plain interpretation, then that law will be a Torah law, even though it comes from a midrashic derivation. Why? Because the midrash functions here as a tool that clarifies the law written in the Torah. It does not create a new law. It clarifies the law written in the Torah. In such a case, obviously the result is the interpretation of the law written in the Torah, and so it is a Torah law.

Where there is a midrash that creates a new law—for example, fear of Torah scholars—that really has that status: it will be rabbinic law, not Torah law. Regarding doubts we’ll still talk about it, but it will be rabbinic law. You do not receive lashes for that. Okay? But if there is a midrash that clarifies an existing law in Scripture—for example, a midrash that tells me what it means to fear the Holy One, blessed be He, that fearing the Holy One means doing this or not doing that—that clarifies for me the verse “You shall fear the Lord your God.” So even if that clarification is obtained through a midrashic derivation, still, the midrash is clarifying the verse. Therefore, in the end, this is a Torah law and not a rabbinic law.

Now, most midrashic derivations are derivations that create details within existing laws. There are very few midrashic derivations that create entirely new laws. “You shall fear the Lord your God” is one example—it creates a new law. But “an eye for an eye” meaning monetary compensation—no, that clarifies the words “an eye for an eye,” it clarifies the verse. It does not create a new law, even though it explains it against the plain meaning. But practically speaking, it tells me: this is what the verse means; when it says “an eye for an eye,” it means this. That is a clarifying midrash, so obviously its status will be Torah law, not rabbinic law. But “You shall fear the Lord your God” including Torah scholars—that will be rabbinic, because there the midrash is creating a new law and not clarifying an existing law. A law generated by midrashic derivation is rabbinic law.

I’ll maybe give you an example—something I thought I might deal with later; we’ll see if I get to it. In the beginning of tractate Berakhot, the Talmud discusses the question: from where do we know that we recite a blessing over food? Before eating, not after. Grace after meals—what we today call Birkat HaMazon—is a blessing after we have eaten, and that is written explicitly: “You shall eat and be satisfied and bless.” It is written explicitly in the verse, therefore it is Torah law. But the blessings of enjoyment, what we call “by whose word all things came to be,” “who brings forth bread from the earth,” “who creates the fruit of the tree,” and the like—the blessings before benefit—the Talmud asks: what is the source? We know that this is rabbinic law, right? Blessings before benefit are rabbinic law; in doubt we are lenient, doubt regarding blessings is treated leniently, and so on. The Talmud asks: what is the source? It finds no source, rejects all the sources, and in the end concludes: rather, it is logical reasoning—that anyone who benefits from this world without a blessing is as though he has committed sacrilege. Yes, if you benefit from this world without a blessing, it is as if you did not ask permission from the Holy One, blessed be He, to benefit from the world that He created. So that act appears as, and is regarded as, an act of sacrilege, like misappropriating consecrated property. You took property that is not yours, exalted property, the property of the Holy One, blessed be He, without permission—like sacrilege. That is what the Talmud says there.

The Pnei Yehoshua asks: if this law really comes from reasoning, that anyone who benefits from this world without a blessing is as though he committed sacrilege, then why are doubts regarding blessings treated leniently? After all, something derived from reasoning has the status of Torah law. Why are doubts regarding blessings treated leniently? How do I know that something derived from reasoning has the status of Torah law? Because in several places the Talmud says, “Why do I need a verse? It is logical.” Right? When someone brings a verse for a certain law, the Talmud asks: wait, why do I need the verse? I have reasoning. And if reasoning were not a tool that generates Torah-law status, then what kind of question is “Why do I need a verse? It is logical”? He is bringing the verse in order to tell you this is Torah law. So from that question of the Talmud, we see that when a law is derived from reasoning, it has the same status as a law derived from a verse. If so, then why are the blessings before benefit treated as rabbinic laws, asks the Pnei Yehoshua? They come from reasoning; the obligation to bless comes from reasoning, and what comes from reasoning has Torah-law status.

Now in truth, in the students of Rabbenu Yonah there in Berakhot, they say that one who ate without a blessing has to bring a guilt offering. He committed sacrilege; there is a guilt offering for sacrilege, an offering for misappropriation, and he has to bring a guilt offering to the Temple. Now this is obviously a completely astonishing thing. After all, someone who ate without a blessing—what prohibition did he violate? What do you say—are you with me? What prohibition did someone violate if he ate without a blessing? A rabbinic prohibition. There is a rabbinic commandment to bless before eating; if he did not bless, he neglected that rabbinic commandment, he violated a rabbinic prohibition. He ate without a blessing. How can one bring an offering to the Temple for a rabbinic prohibition? That would be unconsecrated slaughter in the Temple courtyard. And yet they say that you bring a guilt offering, a guilt offering sacrifice.

Now in truth that is not so terrible; guilt offerings can come even without a sin—you can show this from many places. But it seems to me that according to the Pnei Yehoshua it is much more understandable. No, he did not violate a rabbinic prohibition; he violated a Torah prohibition. He violated a Torah prohibition because the reasoning… so why are doubts regarding blessings treated leniently if it is Torah law? Not really Torah law. In a moment I’ll get to that. But at the moment I am assuming that it is really Torah law, as the Pnei Yehoshua assumes. The claim is that in truth doubts regarding blessings should indeed be treated stringently, not leniently. If you have a doubt whether you blessed or not, you need to bless. But then—what should you say? In what wording should you bless? The wording of the blessing is certainly rabbinic law. The obligation to bless is Torah law, but the wording, the divine name and kingship formula, the form of the blessing, is a rabbinic ordinance. So if you are in doubt, rabbinic doubt is lenient. Torah doubt is stringent; rabbinic doubt is lenient. So if you are in doubt whether you blessed or not, you should take the apple, say thank you very much to the Holy One, blessed be He, I ask Your permission to eat, and eat. Without the divine name and kingship formula. Because rabbinic doubt is lenient, and the text of the blessing is rabbinic law. If you are in doubt, don’t say God’s name for no reason. Rabbinic doubt is lenient. But the obligation to bless—you are forbidden to eat without a blessing. The obligation to bless remains, because doubt regarding the obligation is basically a Torah-level doubt, and Torah-level doubt is treated stringently. You need to say, thank you very much to the Holy One, blessed be He, I ask permission to eat, in your own language, so that you do not get into the problems of a blessing in vain and the like, because of which we are lenient in the laws of blessings. That is what comes out according to the Pnei Yehoshua.

But the Tzelach—Tziyun LeNefesh Chayah, which is a commentary on the Talmud by the Noda B’Yehuda. The Noda B’Yehuda is responsa; his commentary on the Talmud is called Tziyun LeNefesh Chayah, the Tzelach. There, on the passage in Berakhot, the Tzelach says that the Pnei Yehoshua is not right. The Pnei Yehoshua assumes that anything derived from reasoning has the status of Torah law. Why in the world? Only where the reasoning characterizes an existing law. The reasoning tells me that the law written in the Torah is to be carried out in such-and-such a way. For example, eating pork is a prohibition written in the Torah. What if I eat it abnormally? Not in the normal manner of enjoyment, not in the normal manner of eating? Then I am exempt. Where does that come from? Reasoning. The reasoning says that this is not called eating. If you ate boiling-hot pork and got no enjoyment from it, then that is not called eating. There is no source for that in the Torah; it is reasoning. The reasoning says that such a thing is not called eating. And understand: this reasoning interprets the prohibition of eating pork written in the Torah. It is not reasoning that creates a new law. It is reasoning by means of which I interpret an existing law written in the Torah. Therefore it is obvious that the product of this reasoning will be Torah law. Someone who ate in the way that the reasoning says counts as eating violated a Torah prohibition. Why? Not because the reasoning says it is a prohibition of eating; after all, the Torah already says it is forbidden to eat. The reasoning only explains to me what counts as eating.

So when reasoning serves as an interpretive tool explaining what is written in the Torah, then obviously the result is Torah law. But when the reasoning creates a new law, rather than interpreting an existing law—for example in the blessings before benefit—what happens there? Does the reasoning interpret or create a law? That one may not benefit from this world without a blessing. It creates a new law, right? It is not an interpretation of an existing law. So says the Tzelach: regarding this, the statement “Why do I need a verse? It is logical” was never said; that reasoning creates Torah law. In order for something to be Torah law, you need a verse. Of course this fits very well with what we saw in Maimonides, who says that Torah law means what is written in the Torah. You need a verse for something to be Torah law. Even something that comes from a midrash is not called Torah law, because it is not really written in the verse. For something to be Torah law it has to be written in the verse. Or interpreted out of the verse by plain interpretive tools, not by midrash. Okay? That is the Tzelach’s claim, and therefore he says that a law derived from reasoning is really not Torah law. As we saw in Maimonides, it is not written in the Torah; reasoning says it, you have to do it, but it is not Torah law, because only what is written in the Torah is Torah law.

So why does the Talmud say in a number of places, “Why do I need a verse? It is logical”? According to the Tzelach, that is the proof the Pnei Yehoshua brought. The Talmud is speaking only about situations in which the reasoning interprets an existing law. For example, the Talmud says, “The burden of proof is on the claimant.” “Whoever has a grievance shall approach them”—that is a verse. And the Talmud asks, “Why do I need a verse? It is logical. One who has pain should go to the doctor.” Whoever is making the claim should bring evidence if he wants us to give him the money. So that is reasoning. Now there, the reasoning is really an interpretation of judicial procedure, and judicial procedure is written in “Judge your fellow with righteousness.” There is a verse. This reasoning—“one who has pain should go to the doctor”—interprets for me what the Torah means about judicial procedure when it says, “Judge your fellow with righteousness.” So that is interpretive reasoning. About reasoning of that sort the Talmud asks, “Why do I need a verse? It is logical.” Even if the reasoning says it, that is good enough. But when the reasoning creates a new law, as in the case of blessings before benefit, there it does not make sense to say, “Why do I need a verse? It is logical.” There the reasoning creates a new law, and that law will be rabbinic law, not Torah law.

And the second place is “the mouth that prohibited is the mouth that permitted.” From where do we know “the mouth that prohibited is the mouth that permitted”? The Talmud says: reasoning. And there too, it is reasoning that explains the laws of evidence in “Judge your fellow with righteousness.” So that is explanatory reasoning, not reasoning that creates a new law. So with this I have explained the second and third difficulties: why we do not find in the Talmud and in Maimonides a great many laws that surprise us by turning out to be rabbinic laws, even though we would have expected them to be Torah laws, because every law derived from midrash should be Torah law. We do not find those laws. The answer: now we know why. Because in most cases a law given to Moses at Sinai and a law derived by midrash are explanatory laws, not laws that create a new law. Explanatory laws clarify a verse written in the Torah, and so the product is Torah law, not rabbinic law. Only in very rare cases, where that law creates a new law, where the midrash creates a new law, can one indeed say that it is rabbinic law and not Torah law.

The last question I want to touch on in this context is the question of cases of doubt. According to Maimonides, if a law derived by midrash is rabbinic law, then in a case of doubt it should be treated leniently. But we do not find this anywhere. Not even in Maimonides, by the way. Even in places where Maimonides says that this is rabbinic law, he does not write that in doubt we are lenient. The simple rule in Maimonides everywhere is that when there is a law derived by midrash, in doubt we are stringent. So too in the Talmud; Nachmanides brings dozens of places and challenges Maimonides on this point. What do we do with Maimonides on this issue? This is the fourth and final difficulty I’ll address here.

To understand this matter, I need to return to the model I described, or to the picture I described in Maimonides’ approach. Remember? Maimonides basically says that a law derived by midrash is not completely detached from the text, but neither is it rooted inside the text; it branches out from the text. The affinity between it and the text is something between zero and one, something in the middle. The claim is that the laws of doubt do not operate in a sweeping way. It is not that Torah-level doubt is stringent and doubt about everything else is lenient. No. When we say Torah-level doubt is stringent according to Maimonides, we mean doubt about something written in the Torah, because that is Torah law. Rabbinic doubt is lenient—that refers to decrees and enactments, meaning legislation. What about all the in-between cases? Cases where the affinity between the law and the text is neither zero nor one. Zero is rabbinic, one is Torah law. What about 0.4? Or 0.7? That is open. The question is where the line is drawn, from which point on we say this is a Torah-level doubt and therefore stringent. And I claim that the line is below the level of midrashic derivations. In other words, midrashic derivations, although they are not Torah law, in case of doubt they are treated stringently. Because once I understand that there is a continuum of levels in the concept of Torah law—or rabbinic law, or by rabbinic enactment—then the possibility opens up of saying: fine, but who said that at all these levels doubt is lenient? There is a continuum here, like the heap paradox: from what stage do I decide that a person is bald? Or that a collection is a heap? There is a certain threshold from which on I define it as a heap for purposes of ruling stringently in doubt. Midrashic derivations are above that threshold. Maimonides will agree that a doubt about a law derived by midrash is treated stringently. Even though it is rabbinic. Because for Maimonides, the concept of rabbinic law is a concept under which there are many, many kinds, subcategories. The law is not the same for all of them. You do not punish for any of them. You punish only for Torah law. But for example regarding the laws of doubt, the rule is not the same for all of them.

I’ll sketch a few notches for you on this scale. Let’s say that when we make rabbinic legislation—such as forbidding poultry with milk—that is rabbinic law, right? A decree. The Ritva and other medieval authorities say that if I have a rabbinic law that has a scriptural asmakhta, then it is more severe. Why? Because the question is how we understand asmakhta. Usually, how do people explain asmakhta? We say that a certain law is rabbinic law, we find it in a verse, through midrash or interpretation, and then we say: no, the verse is merely an asmakhta; the law is rabbinic law. What does asmakhta mean? Usually it is explained as a mnemonic support, something to help you remember. The Torah was transmitted orally until Rabbi Yehudah HaNasi decided to write it down. So they attached things to verses in order to remind us. Okay? Besides the fact that this explanation limps—because many of these derivations do not help one remember but only confuse; they have no internal logic—I think this is also not right in substance. When I say that something has an asmakhta in the text, it is not a memory aid. It means that something in the spirit of the text says it. To be sure, it is rabbinic law because it does not cross the threshold beyond which laws are defined as Torah law, but there is something of Torah law in it.

Like the example I mentioned of separating food from waste on the Sabbath. Separating food from waste on the Sabbath—you could say that this is actually completely permitted by Torah law, but the sages forbade it by decree lest one come to separate waste from food. But one could also say no. Just as there is a problem with separating waste from food, that very same problem exists also in separating food from waste, only at a lesser intensity. And therefore the sages forbade that too. So you understand that what I just said here is that this is 0.3 Torah law. It is not zero Torah law. It is 0.3. And the sages said: we also forbid 0.3. Okay? But that means that the Torah-law problem exists here too, only at a lower intensity. This is not like the usual conception of rabbinic law, which says that from the standpoint of Torah law the act is completely smooth and unobjectionable, and nevertheless the rabbis forbade it for one reason or another. No—even according to Torah law it is not totally smooth. But 0.3 is not serious enough to establish a Torah prohibition. The sages lower the threshold, are more stringent, and say: we forbid even 0.3. So I want to claim that if there is a rabbinic law that has an asmakhta in the text, the asmakhta really means that the text truly says this law—only it says it at the level of 0.3. So that is rabbinic law. It is not a source. A source would mean that it is Torah law. It is not a source. It is support. It is an asmakhta. But asmakhta is not merely a memory aid. It is connected to the text—just connected in a weak way, not in a full way. So that is one-third Torah law, thirty percent Torah law. Okay? Therefore a rabbinic law with an asmakhta is more severe.

What about a law that comes from midrash? A law that comes from midrash is not just an asmakhta. It really comes out of the verse. But it is not uncovered from the verse; it is an extension of the verse. So that is 0.6, not 0.3. Asmakhta is 0.3. Midrash is 0.6. Okay? So here Maimonides will say: yes, it too is rabbinic—we do not punish for it, because for rabbinic laws we do not administer lashes and so on—but in case of doubt it is already treated stringently. Because the threshold for stringency in doubt lies at 0.5. And if midrash is 0.6, then the doubt is treated stringently, even though it is rabbinic. There can also be plain interpretive readings of a verse that are not one hundred percent but maybe eighty percent. Maimonides will say: for me, eighty percent is also interpretation; it is Torah law. Even though it is not one hundred percent, because it is above 0.6, the level of midrashic derivations. The 0.6 of midrashic derivations is not Torah law, it is rabbinic. But it could be that the region near one hundred—ninety percent, eighty percent, I don’t know, the region already close to one hundred—the halakhic status there is that this is Torah law. And then perhaps they would even punish for it, not only treat the doubt stringently. Because we know that in interpretation of verses, we said that one of the mechanisms of interpretation is that there are several ways to interpret the verse, and the interpreter chooses one of them. So you cannot be sure that this is the correct interpretation—certainly not sure. But still, it is interpretation, and it is plain interpretation, not midrash. Plain interpretation, according to Maimonides, also produces Torah law. It is not midrash. Why? After all, it is not perfectly clear in the text; only eighty percent. Fine, eighty percent is also good. The threshold of Torah law passes at seventy-five percent. That is where the line is. Anything beyond that is fully Torah law; it is called interpretation, and it is written in the Torah, in the verse itself.

So you see that when we give up our dichotomous way of thinking, we can actually solve all the problems that arise against Maimonides’ position. And the lesson is a very important one: you have to be careful with dichotomies, as I said before. And now I want to explain a bit more—I’ll take a little more time today than I thought—I just want to manage to explain the laws of doubt a bit more fully.

Look, maybe I’ll start with the laws of doubt in general. Yes, the question is basically why a doubt regarding a midrashic derivation is treated stringently, whereas a doubt regarding a law given to Moses at Sinai is treated leniently. Right? That is the conclusion we reached in Maimonides. After all, both are by rabbinic enactment, neither is written in the Torah, and still one is treated stringently in doubt and the other leniently. Why?

So let me explain for a moment. A law given to Moses at Sinai, for example, cannot be placed on the axis of what its affinity to the text is; its affinity to the text is zero, just like ordinary rabbinic law. There is no connection to the text at all. In that sense it is much farther from the text than a midrashic derivation. A midrashic derivation draws on the spirit of the text; it is an extension of what is in the text, like branches emerging from roots. A law given to Moses at Sinai has no connection to the text at all. But it is not a rabbinic ordinance; it is a law that we received from the Holy One, blessed be He, at Sinai. How do we relate to such a thing? Maimonides says: it is rabbinic, and in doubt it is treated leniently. Why? Why is it treated leniently in doubt? Because it has no connection to the text, like rabbinic laws, ordinances, and decrees. Why does the connection to the text determine the laws of doubt? That is what I want to clarify more.

We know that the fundamental rule in the laws of doubt is that Torah-level doubt is treated stringently and rabbinic-level doubt leniently. Now why indeed is Torah-level doubt stringent and rabbinic-level doubt lenient? We saw that Nachmanides asks this against Maimonides, because Maimonides derives the binding force of rabbinic laws from “do not turn aside.” So it turns out that anyone who violated a rabbinic prohibition violated a Torah prohibition, the Torah prohibition of “do not turn aside.” So why is rabbinic doubt treated leniently? A doubt about a rabbinic prohibition is a doubt about whether you are violating the Torah prohibition of “do not turn aside”—a Torah-level doubt. Okay? So

[Speaker C] One of the answers lies in the following claim.

[Rabbi Michael Abraham] What distinguishes rabbinic laws from Torah-level laws? So I talked about that when we discussed the first root. I brought the Netivot, if you remember, in section 234, and the Netivot says that a rabbinic law is a law whose essence is simply the obligation to obey. It has no intrinsic essence. Let’s put it differently. A regular Torah-level law has two aspects. We saw this in the name of the Ramchal. One aspect is obedience or rebellion against the command, and the second aspect is the harm or benefit brought about by the act itself. What happens with a rabbinic law? Say I ate poultry with milk. What’s the problem with that? That I deviated from the words of the Sages; it says, “Do not deviate.” I rebelled against the Sages. Is there also some intrinsic harm here? Did eating poultry with milk spiritually dull my soul? No. Because if there were such harm, it would be forbidden by the Torah. The Torah doesn’t forbid it. Why doesn’t it forbid it? Because there’s no real problem with eating poultry with milk; the whole issue is lest you come to eat meat with milk. Okay? So what does that mean? The Netivot says that rabbinic laws are laws that contain only the dimension of obedience and rebellion; they do not contain the intrinsic dimension. When you ate poultry with milk, you rebelled against a command of the Sages—that’s what’s wrong. But the act in itself caused no harm; there’s no problem with the act itself. Otherwise the Torah would have forbidden it.

What’s the practical consequence? The Netivot says that if, for example, you ate poultry with milk unintentionally, not deliberately—even then, you don’t even need to repent. There’s no sin here at all. Why not? Because eating poultry with milk in itself is not problematic. There’s no problem in the act itself. The Torah does not forbid it. So what was the issue? I was supposed to obey the command of the Sages, who told me not to eat poultry with milk. But I didn’t know there was such a command. I acted unintentionally. I didn’t know this was a case that the Sages had forbidden. So there was no rebellion against the command of the Sages, and since there’s no intrinsic transgression here, there’s nothing at all. You don’t even need to repent. What happens with a Torah prohibition if I violated it unintentionally? Say I unintentionally ate pork. What’s the problem there? The rebellion against the command doesn’t exist, right? Because I didn’t know it was pork, so I didn’t know there was a command not to eat it. So there’s no rebellion against the command. But the act itself is problematic: I ate pork. Eating pork is a transgression. That exists only on the Torah level, not on the rabbinic level. Therefore, an unintentional violation of a Torah law is still a transgression, but an unintentional violation of a rabbinic law, says the Netivot, is not a transgression. Not everyone agrees, but that is the Netivot’s view.

Now I want to say the same thing regarding the laws of doubt. What do I mean? I want to argue that when I am in doubt, a Torah-level doubt is treated stringently. Why do I have to be stringent? Because of the dimension of command, or because of the intrinsic dimension? What do you think? Suppose there is something in front of me and I don’t know whether it is pork or not. I have to be stringent; a Torah-level doubt is treated stringently. Why? Because of the concern that I might rebel against the command, or because of the concern that I might eat pork? Or both? Let me prove to you that it’s the second one—because of the concern that I might eat pork. Because if this were a rabbinic pork case—poultry—a doubt whether this is poultry with milk or soy with milk, okay? A doubtful rabbinic prohibition. I can be lenient. Why? After all, the dimension of rebellion exists here too. The only thing missing is the intrinsic dimension, because it’s a rabbinic law, so there’s no intrinsic dimension. And the fact is that in a case of doubt I can be lenient, right? That means that when I have a doubt and the only issue is the rebellion involved, that does not make me stringent. So why in a Torah-level doubt do I have to be stringent? Because on the Torah level there is also essence, not just command. Or in other words, the obligation to be stringent in Torah-level doubts is because of the dimension of essence, not because of the dimension of command. Is that clear? Okay? It’s also very logical.

Why? Suppose I don’t know whether this is pork or not pork. Then there’s no question—what does it mean to be stringent lest I violate the Torah’s command not to eat pork? If I don’t know it’s pork, then there’s no rebellion against the Torah’s command. A doubt is, in a certain sense, like acting unintentionally. I don’t know there is a command here, so I allow myself to eat. So there’s no issue of rebellion. But the Sages tell me: yes, but there’s a problem of eating pork. If in fact it turns out to be pork, and in practice you ate pork—even if it wasn’t your fault—bottom line, you ate pork, spiritual contamination of the heart and all these things. What does that mean? That when you are in doubt about a prohibition, the obligation to be stringent is because of the intrinsic dimension, not because of command and rebellion. And therefore with a rabbinic doubt one may be lenient. Why? Even if the rabbinic prohibition is rooted in “do not deviate,” as Maimonides says. But even if we derive it from “do not deviate,” what do we derive from there? We do not derive from there that eating poultry with milk spiritually dulls the soul and is a transgression like any Torah-level transgression. What we derive from there is that there is an obligation to obey the Sages. “Do not deviate,” right? That’s the meaning of the words: “according to all that they instruct you.” You have to obey the Sages—not that the act itself suddenly becomes problematic in itself. It is not a problematic act in itself; otherwise the Torah would have forbidden it. There is an obligation to obey the Sages. Even if that obligation were Torah-level—and it isn’t; we explained that in the previous class—but even if it were Torah-level, still the doubt would be treated leniently. Because even if it were Torah-level, it would contain only the dimension of command, not the dimension of essence. And in the laws of doubt, what produces stringency is essence, not command. Therefore, a rabbinic doubt is treated leniently.

Now, this opens an interesting door for understanding Maimonides’ whole idea about doubtful cases. I claim that in Maimonides there are basically four categories of laws. It’s a continuum, but you can divide it into four types: ordinary rabbinic laws—enactments and decrees, that is legislation; laws that emerge from scriptural derivations; laws given to Moses at Sinai; and Torah laws—written in the Torah or emerging from straightforward interpretation of the Torah. These are the four categories. According to most of the medieval authorities (Rishonim), the three categories besides legislation are Torah-level. According to Maimonides, the opposite: the three categories other than straightforward interpretation are rabbinic; only straightforward interpretation is Torah-level. The dispute concerns a law given to Moses at Sinai and laws that emerge from scriptural derivations. According to Maimonides these are rabbinic; according to the other medieval authorities they are Torah-level.

What distinguishes these four categories? Why didn’t the Holy One, blessed be He, write them all in the Torah? The rabbinic laws are clear. Those contain no intrinsic problem, and in that sense the Torah does not command them; it’s just that the Sages decided to prohibit them. So that’s legislation, yes, the regular rabbinic laws. But about the other three I want to ask: why are there things that the Torah writes explicitly, things it leaves for me to derive through exegesis, and things it transmits orally, as a law given to Moses at Sinai? What is the difference between these kinds of laws?

I want to make the following claim: if every Torah-level law or commandment contains both the dimension of command and the dimension of essence, that means that a Torah law requires both things: that there be a command about it, and that there be essence—that the act itself bring benefit or harm, and therefore the Torah commands or forbids it. That is a regular Torah-level law. That is the first category. And according to everyone, that is Torah-level.

With a law that emerges from a scriptural derivation, I want to argue, there is essence but no command. With a law given to Moses at Sinai, there is command but no essence. And with rabbinic laws there is neither command nor essence. Those are the four categories. And from this all the laws of doubt are derived. Let me show you.

Regarding laws that emerge from scriptural derivations, I said there is essence and no command. Why do I say that? Simple. Maimonides himself said that a law emerging from a derivation—why is it rabbinic? Because it is not written in the Torah. If it is not written in the Torah, there is no command. That is what Maimonides says: there is no command. So what remains? Essence. Why? When I say, “You shall fear the Lord your God”—to include Torah scholars—what am I really saying? I am saying that the same idea found in fear of God should also exist in reverence for Torah scholars. The essence found in fear of God exists also in reverence for Torah scholars. That is the idea of the spirit of the verse. There is no command—it is not written in the verse—but the idea of the verse exists here too. In contemporary language, what does that mean? That here there is essence even though there is no command, in laws that emerge from scriptural derivations. So if I am in doubt regarding such a law, what should the ruling be? Stringent! Why? Because even in Torah law, the reason I go stringently in doubtful cases is the aspect of essence, not the aspect of command. So what do I care that it isn’t Torah-level? It still has essence; it’s only missing command. But in the laws of doubt, command is not what matters—only essence matters. And essence is present here. Therefore a doubt regarding a law that emerges from a derivation is treated stringently.

Now I ask: why are there laws that the Holy One, blessed be He, transmitted to us orally, entirely apart from the text of the Torah? First of all I ask: is there command in them? Obviously there is. True, it is not written in the Torah—so what? It does not come from human beings; it comes from the Holy One, blessed be He. It is a tradition passed down orally from Mount Sinai. So there is certainly a command of the Holy One, blessed be He, being transmitted to us. So in a law given to Moses at Sinai there is definitely command. Apparently what is missing there is essence, and therefore it is a separate category. When the Holy One, blessed be He, transmits a certain law to us orally and does not anchor it in the written text, or does not write it, or does not anchor it through derivation from the text, that is basically telling us that this is a law without essence, only with command. So how should doubt about it be treated? Leniently, like a rabbinic law. A rabbinic law also has only command without essence, and therefore its doubt is treated leniently.

So notice: basically we now have a complete map of all the halakhic categories, and everything fits nicely with Maimonides’ laws of doubt. In every Torah-level law there is both command and essence. Rabbinic laws are divided into three subcategories: laws with essence but without command—that is, laws produced by scriptural derivations; laws with command but without essence—that is a law given to Moses at Sinai; and laws without essence and without Torah-level command—though with rabbinic command—that is legislation, enactments, and decrees. And regarding each one, the laws of doubt are derived from its nature, from what it contains: essence or command. So this organizes all the laws of doubt.

And therefore all these objections to Maimonides—why don’t we find that doubt in such laws is treated leniently if these are rabbinic laws? Because in laws that emerge from scriptural derivations, their doubt is treated stringently, even though they are rabbinic. It is simply not true that every rabbinic law has its doubt treated leniently. It depends what type of rabbinic law it is. That is true only for a law given to Moses at Sinai or for enactments and decrees. But a law that emerges from a derivation—even that too is a rabbinic law—its doubt is treated stringently. Because what matters is not the label, whether it is rabbinic or Torah-level. What matters is whether there is essence there. If there is essence, the doubt is treated stringently. At the end of the day, maybe you’re eating pork—you have to be careful about that. You have a doubt whether you’re eating pork. What difference does it make whether there is a command or there isn’t?

This also explains why the Holy One, blessed be He, chooses four different channels through which to transmit laws to us. He is saying to us: look, this is a law that has essence and has command. This law has essence, but look—there is no command. As for a law given to Moses at Sinai, know that it has no essence; it has only command, and therefore it is left oral. And enactments are of course simply an innovation of the Sages.

And this also explains why there need to be four different categories, different halakhic categories, at all. Because according to the approach of the medieval authorities who disagree with Maimonides, all the laws are basically Torah-level except for enactments and decrees. So why, then, is it divided into three categories? Why are some laws transmitted orally, some produced by scriptural derivations, and some written explicitly in the Torah? Why weren’t they all transmitted in the same way—everything orally, everything in writing, everything through derivations, whatever? Why? What does this division mean? There is nothing fundamental that distinguishes these laws from those laws. Was it just random—some lottery deciding what would be transmitted orally and what would be transmitted in writing? That sounds implausible. According to Maimonides we see that it is not just random. There is an idea behind it. Each category transmits to us laws of a different character.

Okay, so for our purposes I’ll summarize, and here I’ll stop, because I can’t continue into the next topic. So I’ll just summarize. Basically what emerges here, continuing from what we saw in the first root, is that the definition of a Torah commandment is a commandment that is written in a verse. Or one that can be extracted from the verse by straightforward interpretation, which for our purposes is also considered written in the verse. There are laws that are completely unrelated to a verse—that is, enactments or decrees, yes, legislation, laws created by the Sages. Those are rabbinic laws according to everyone.

Maimonides’ innovation is that there are laws with an intermediate status, where the connection between them and the written text is not one or zero—not Torah-level and not ordinary rabbinic in the usual sense. Rather, an intermediate connection: 0.3, 0.5, 0.6, and so on. Regarding these intermediate states, I called it branching rather than specification, so their status is an intermediate status. Regarding the laws of doubt, we saw that there are differences between them; punishments are not administered for any of them, and so on—meaning, each thing has to be considered on its own.

For example: “You shall fear the Lord your God”—to include Torah scholars. Is that specified by the verse, or does it branch out from the verse? What do you say? It branches out, right? It is not specified by it. And what is specified from that verse? For example, “You shall fear the Lord your God”—fear of God might include, I don’t know, not committing a desecration of God’s name, okay? That is simply a particular case of this general rule of “You shall fear the Lord your God”; that is specification. Therefore, when I do that, I have in fact violated “You shall fear the Lord your God”; I have violated a Torah prohibition. Because that is specification; it is just a particular case of the general law written in the Torah.

Branching out is not a particular case of the general law; it is an analogy. It is similar to what is written in the general law, but it is not specified by it—like we say in analogy or induction, as opposed to deduction. Therefore, laws that emerge from scriptural derivations are laws that branch out from the written text and are not specified by it. So regarding punishment, we do not punish, because it is not written; one does not punish unless one has first warned, and if it does not appear in the verse, we were not warned. The verse did not warn us. But essence is present here, because in fact we expanded it from the verse; the same thing that exists in the verse, the same idea, exists here too. So there is essence here, and therefore its doubt is treated stringently. Okay?

So we have found that there are intermediate states between legislation and specification—between legislation and Torah law. There are commands here, but there is no explicit warning, because if it does not appear in the verse, we were not warned. The verse did not warn them. But essence is present here. Because in fact we expanded it from the verse; the same thing that exists in the verse, the same idea, exists here too. So there is essence here, and therefore the doubt is treated stringently. Okay, so we found that there are intermediate states between legislation and specification, between that and Torah-level law. And according to Maimonides these are not counted in the enumeration of the commandments, and they have a different halakhic status. Okay, we’ll stop here.