Topics in Talmudic Logic, Lecture 15

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[Rabbi Michael Abraham] There are some strange noises here. One second, everyone is muted. I don’t know what that is. Oh, it’s still here. Okay. Fine, I took control myself because I see there are noises here, I muted everyone and didn’t allow interruptions because I see it’s impossible like this. Okay, so the claim is basically that there are cases where the punishment appears in the Torah but no warning is stated. We don’t find it; we looked and we don’t find it. What we do is derive the warning through exposition. Maimonides says that this seemingly contradicts the rule that we do not derive warnings from legal reasoning. Meaning, Maimonides understands that “we do not derive warnings from legal reasoning” means we do not derive warnings by way of midrash. A warning has to be written in the Torah; it is not derived through the interpretive principles of exposition from the Torah, but written explicitly in the Torah. So here we see that apparently one can derive a warning from legal reasoning. By the way, parenthetically, almost all the medieval authorities, or maybe all of them, understand “we do not derive warnings from legal reasoning” not quite like that; they say it refers only to an a fortiori inference. But when Maimonides says “we do not derive warnings from legal reasoning,” he means all the interpretive principles. So Maimonides says this does not contradict the rule that we do not derive warnings from legal reasoning. Why? He explains that we only say “we do not derive warnings from legal reasoning” in order to prohibit something for which no specific prohibition was explained, through analogy. Meaning, if there is something for which we have no source prohibiting it, and we produced a source from exposition, that is called deriving a warning from legal reasoning. For such a thing we do not punish; we do not derive warnings from legal reasoning. But if we find in the Torah a punishment and we are only missing the warning, we don’t find the warning, then if we derive it through exposition, that counts as deriving a warning from legal reasoning. Meaning, then we also punish. That is Maimonides’ claim. And then he says, this is what he writes: “But when a punishment is found explicitly in the Torah for one who does this act, we know necessarily that it is a forbidden act against which one was warned. We then derive by analogy the warning, so that the principle of their statement, ‘Scripture does not punish unless it first warns,’ should be strengthened for us. And once the warning concerning that matter has been established, then one who transgressed and did it becomes liable, whether to excision or death.” Okay, I think—if I may be so bold—in my opinion this is where the fourteenth principle and the introduction end. What starts with “And now I will begin,” the next sentence—that is really the introduction to the enumeration of the commandments. But that doesn’t matter right now. In any case, what I want to prove from Maimonides here—what emerges from Maimonides here? That if the punishment is written in the Torah and I don’t have a warning, I derive the warning through one of the interpretive principles, and I can apply the punishment. But what happens in a case where I have no punishment written in the Torah, and I derived some prohibition by means of an interpretive principle? In such a case, the rule applies that there is no punishment unless there is a warning, right? That is what Maimonides says. That person will not be punished for it. Why? The answer is because this is a rabbinic prohibition, and for a rabbinic prohibition there are no lashes, or no punishment. Maimonides’ position is that a prohibition derived through exposition is a rabbinic prohibition, words of the Sages. And therefore one does not punish for it. Unlike the others—notice, Maimonides’ whole revolution begins with “we do not derive warnings from legal reasoning” and “we do not derive punishments from legal reasoning.” The medieval authorities understand, and this is explicit in the Talmud, that “we do not derive punishments and warnings from legal reasoning” means only from an a fortiori inference. Here there may be some refutation, or some problem; maybe the a fortiori inference is not certainly correct, it doesn’t matter, there are various explanations. But this is a specific rule said only about an a fortiori inference. But things learned from expositions are Torah-level in every respect, of course including punishments and warnings; exposition is like plain interpretation, there is no difference at all. Maimonides explains “legal reasoning”—what does that mean? All exposition, the whole world of exposition, not only an a fortiori inference. “We do not derive punishments and warnings from legal reasoning” means that anything derived through exposition is not punished. Why? Because it is rabbinic. Not because of a concern that maybe it is incorrect, as with an a fortiori inference, but because it is rabbinic; therefore one neither derives warnings nor punishes based on it. When the punishment is written in the Torah and the exposition only gives me the warning, Maimonides says, that is something else; it does not contradict “we do not derive warnings from legal reasoning,” because we know, we have an indication from the Torah that it is forbidden—after all, the Torah gives a punishment. So in such a case, even if the warning comes from exposition, we punish, and this will be considered Torah law, and therefore one punishes for it. And that brings me back to the passage I marked for you in the previous Maimonides we read, that if the Sages say that the law derived from exposition is Torah law, then in that case, says Maimonides, of course the law is Torah law. Only when the Sages said nothing, then it is words of the Sages. Therefore Maimonides’ argument here fits very well with what he says in the second principle, and it follows from this that Nachmanides is right and not the Tashbetz, in my opinion. Maimonides is not talking about the question of the source, but really about the question of validity. When Maimonides says that laws derived from exposition are not Torah law or are words of the Sages, he does not mean only methodology, who created this law; he means to speak about its halakhic status, and the proof is that one does not punish for such a law. One does not punish, because it is a rabbinic law. That, in my opinion, is Maimonides’ claim. Now I want to look with you at one example source that is often brought up in this context, and that is Maimonides at the beginning of the Laws of Marriage. This is a very unusual Maimonides; according to many, it is the only place where he refers to what he says in the second principle. The only place in the entire Mishneh Torah. Only here, at the beginning of the Laws of Marriage. So it says as follows. Yes, law 1 is a description of what existed and what the Torah innovated regarding betrothal, that betrothal must precede marriage. Law 2: “These acquisitions are a positive commandment of the Torah, and a woman is acquired by one of three things: by money, or by a document, or by intercourse. By intercourse and by document are from the Torah, and by money from the words of the Sages.” Here is the problem. Intercourse and document are Torah law, money is words of the Sages. So the Raavad—look at his gloss here at the end of the law—“Abraham said: this is mistaken, and a faulty interpretation misled him.” Incidentally, this is just a known fact: the Raavad did not know Arabic. He was from Provence. Therefore the Raavad did not know Maimonides’ principles and introductions, and he did not know what Maimonides writes in the second principle. So the Raavad jumps in in several places where Maimonides says about things that they are from the words of the Sages; he says this is simply mistaken. He did not know that Maimonides has an unusual method in this matter in the second principle. The commentators around this passage—the Kesef Mishneh and all of them—bring the second principle in order to explain Maimonides here. We see here that intercourse and document, which are written explicitly in the Torah, are Torah law, and money is words of the Sages. That is Maimonides’ claim. Now, the big difficulty in this matter is law 3. Look at Maimonides here: “Once the woman is acquired and becomes betrothed, even though intercourse has not occurred and she has not entered her husband’s house, she is a married woman, and one who has intercourse with her other than her husband is liable to death by the religious court. And if he wishes to divorce her, she requires a bill of divorce.” Maimonides does not distinguish here between intercourse and document on the one hand and money on the other. It seems that this law applies for all methods of betrothal. And if I betrothed the woman through monetary betrothal, which I remind you according to Maimonides is from the words of the Sages, if someone has intercourse with her he is liable to death by the religious court. Why? She is only betrothed rabbinically. Maimonides does not distinguish here between whether he betrothed her by intercourse and document or by money. It implies that monetary betrothal too is Torah law. Likewise I’ll bring another Maimonides. Maimonides in chapter 3, look—chapter 3, law 20. “One who betroths through intercourse, this is Torah betrothal, and likewise by a document she is betrothed by it according to Torah law. Just as the document completes and divorces, the document completes and brings in, as it says, ‘And he shall write her a bill of severance,’ so too it completes and brings in. But money is from the words of the Sages.” Again he repeats the same point—I’m skipping the parenthetical for a moment—“as it says, ‘When a man takes a woman,’ and the Sages said: this taking shall be by money, as it says, ‘I gave the money for the field; take it from me’—taking, taking, from the field of Ephron.” So money is words of the Sages. Meaning, this didn’t just slip out of Maimonides in law 2; Maimonides repeats it again, that intercourse and document are Torah law and money is words of the Sages. And the Raavad, of course, does not get confused and again comments here: “Abraham said: there is no greater breach than this, and some faulty interpretation he heard in his childhood misled him, that he betrothed with money. What I brought in Ketubot on page 3—he erred in this. And nevertheless he should not have erred and should not have written it.” In short, Maimonides got confused here and some interpretation misled him. Because clearly money too is Torah law. But Maimonides repeats this twice, and there is a huge debate here from Maimonides’ commentators all the way to contemporary scholars, including Rabbi Kapach and Rabbi Rabinovitch and Rabbi Shilat. Everyone dealt here with the versions of Maimonides, the question whether Maimonides retracted or did not retract. Apparently it seems he did not retract, because there is a very famous responsum of his to Rabbi Pinchas the judge of Alexandria in which he explains explicitly—and this is the only place in Maimonides’ writings where Maimonides explains explicitly—that the law at the beginning of the Laws of Marriage which says that money is from the words of the Sages is based on the principle of the second principle, that things derived from exposition are words of the Sages. Meaning, Maimonides also did not retract in the responsum he wrote after the book, and it does not seem there is any textual corruption here. So how should this nevertheless be understood? Notice what seems to emerge from here. The only place, almost the only place or the only place, where Maimonides himself notes that this is an implication of what he said in the second principle, a halakhic implication, where it is written that monetary betrothal is betrothal from the words of the Sages, is a source that has been emptied of halakhic implications. Because one law later Maimonides says that there is liability for death for one who has intercourse with her in all forms of betrothal. Meaning, the only place where a halakhic implication is brought for this novel principle of the second principle is itself stripped of halakhic implications. It says it is from the words of the Sages, but in terms of halakhic implications there is nothing here. One who has intercourse with the woman is liable to death. So superficially this is an excellent proof for the Tashbetz, who says that whenever Maimonides calls something “from the words of the Sages,” he means only the question of the source—that the Sages created this law of monetary betrothal—but in terms of status it is Torah law. But as I said, in the introduction to Sefer HaMitzvot it says explicitly that there is a halakhic implication to this principle. Before I bring more, I want to suggest a proposal. I want to argue that Nachmanides is correct in Maimonides’ view, that Maimonides really means the question of validity and not only the question of source. Maimonides really means to say that laws derived from exposition are rabbinic laws, laws from the words of the Sages. And this has halakhic implications, for example that one does not punish for them, as we saw in Maimonides’ introduction to Sefer HaMitzvot. So why, in monetary betrothal, which Maimonides defines as a law from the words of the Sages, is the status here still Torah status? My suggestion relates to the parenthetical that I skipped when I read this. Did you see the parenthetical? I marked it here. So let’s read the law again, and now I won’t skip the parenthetical. “One who betroths through intercourse—this is Torah betrothal. And likewise by a document she is betrothed by it according to Torah law. Just as the document completes and divorces, as it says ‘and he shall write her a bill of severance,’ so too it completes and brings in. But money is from the words of the Sages. And likewise the law of money is Torah law, while its interpretation is from the words of the Sages.” I think that this parenthetical is supposed to replace the phrase “but money is from the words of the Sages.” Rather, one should read: just as a bill of severance completes and brings in—that is with regard to intercourse and document—so too the law of money is Torah law, although its interpretation is from the words of the Sages. What does that mean? Meaning, its interpretation is from the words of the Sages, yet the law of money is Torah law. At first glance this is the Tashbetz: in terms of source, this law came from the words of the Sages, from the Sages, but in terms of halakhic status it is Torah law. I want to argue not so. I want to argue that with monetary betrothal, with betrothal in general, the Torah itself says, after all, “When a man takes a woman and has relations with her.” So the Torah itself speaks about taking, about betrothal that must be done before marriage. That is Torah law; it appears explicitly in the Torah. Now the question is how one does it. So how one does it: there is intercourse and document, which are written in the Torah in one way or another, and money is learned from “taking, taking” from the field of Ephron. So the Scribes or the Sages introduced that there are not two methods of betrothal, intercourse and document, but three methods of betrothal. But because the very concept of betrothal itself was introduced in the Torah, then even if the Sages add another way, rabbinically so to speak, or from the words of the Sages, to carry out the act of betrothal, it will still be Torah law. Because here the role of the Sages is to interpret the concept of betrothal that appears in the Torah. This is not similar, for example, to “You shall fear the Lord your God,” which is taken to include Torah scholars. Because there, when I include Torah scholars, I am not interpreting some Torah law and the Sages are giving an interpretation. There is no general law of fearing Torah scholars that the rabbis are learning some further detail within that law. So that really could have been Torah law. Rather, here the whole law of fearing Torah scholars is introduced through exposition. That is a rabbinic law; it is not a Torah law. In betrothal, even though the Sages introduced monetary betrothal, since the concept of betrothal appears in the Torah, then if the Sages say that betrothal can also be done with money, the Sages are merely clarifying the concept that appears in the Torah. Therefore monetary betrothal, in its halakhic status, is Torah law, even though the law of money is Torah law although its interpretation is from the words of the Sages. That is exactly what Maimonides wants to say here. I’ll show you this in another place in Maimonides’ Sefer HaMitzvot. Positive commandment 213, which deals with betrothal. “The 213th commandment is that we were commanded to have relations by way of betrothal, and to give something into the woman’s hand, or by document or by intercourse.” You see? Again, only document and intercourse—there is no money. “And this is the commandment of betrothal, and the indication to it is His saying, ‘When a man takes a woman and has relations with her.’ This teaches that he acquires by intercourse.” So that is betrothal by intercourse. “And it says, ‘and she goes out and becomes another man’s,’ and just as going out is by a document, so becoming is by a document”—that is the verbal analogy of the document. So thus far we have learned intercourse and document. “And we also learned that she is acquired by money from His statement.” But betrothal is Torah law; however, it is explained through intercourse, as explained in the places in Ketubot and Kiddushin and Niddah, and so on. Meaning, the concept of betrothal is Torah law. What is explicitly clarified in the Torah as betrothal is only intercourse. Document is a verbal analogy that compares becoming to leaving, from a bill of divorce to a betrothal document, and money is some derivation from exposition: “there is no money for this master, but there is money for another master.” So in the end, is it Torah law or not Torah law? Maimonides says: “that we were commanded to have relations by way of betrothal, to give something into the woman’s hand, or by document or by intercourse.” What does that mean? I think “to give something into the woman’s hand” means by money, or by document, or by intercourse. Those are the three methods of betrothal. But when he spells it out, he says that what appears explicitly in the Torah is intercourse. Document is a verbal analogy, money is a derivation from exposition. And in the end he continues: “But betrothal is Torah law. But betrothal is Torah law; however, it is explained through intercourse.” Do you see? “But betrothal is Torah law; however, it is explained through intercourse.” What does that mean? It means that the concept of betrothal is a Torah concept. The modes of betrothal depend: two of them are written in the Torah in one way or another, and the third is introduced by the Sages through this exposition. But because the concept of betrothal appears explicitly in the Torah—“When a man takes a woman”—then even if the Sages introduce an additional mode of betrothal, it will not be a rabbinic mode; it will be a Torah mode. Because when the Sages derive that one can also perform betrothal with money, they are clarifying the concept of betrothal that appears in the Torah; they did not introduce a new concept by force of that exposition. So this is a clarifying exposition. An exposition—notice, this is not an exposition that merely supports. This exposition created a new law. Before they expounded this exposition there was betrothal only by document and intercourse; there was no monetary betrothal. Only once the Sages came and expounded this exposition, “there is no money for this master, but there is money for another master,” did the mechanism of monetary betrothal come into being. But even though this is a creative exposition and not merely a supportive exposition, this creation is a creation that clarifies a concept that appears in the Torah, the concept of betrothal. And a clarifying exposition is a Torah-level exposition. Because it clarifies a concept that is Torah-level. You cannot say that betrothal is rabbinic. Betrothal is a Torah concept. The exposition only tells me how it is done. So it clarifies the Torah concept for me, and therefore it is Torah law. I

[Speaker E] I’ll show you an example

[Rabbi Michael Abraham] …for this kind of consideration in another context. Just one more second. Look at Maimonides in his Commentary on the Mishnah, in tractate Keilim. One second. There are many discussions here about measures in various contexts in the Torah. Here it is. Here Maimonides is talking about… yes, this is Mishnah 12. Here Maimonides is talking about the Torah’s prescribed measures. “And I must mention here an important and useful principle, and that is what they said in the Tosefta to Mikvaot: an olive-bulk from a corpse and a lentil-bulk from a creeping creature—if there is doubt whether they contain the required measure or doubt whether they do not contain the required measure, in cases of doubt they are impure. For anything whose basic law is from the Torah and whose measure is from the words of the Sages, cases of doubt are impure. And remember this principle, because by it you will know in every case where you have doubt about any measure whether to act stringently or leniently. And let this not mislead you…” What is Maimonides saying? Maimonides says the following: you might get confused and think—we know that measures, interpositions, and partitions are a law given to Moses at Sinai. All Torah measures—an olive-bulk, an egg-bulk, a dried fig-bulk, and so on—that’s all a law given to Moses at Sinai. What happens if I have a doubt about the measure? I don’t know whether a certain thing contains an olive-bulk or not. Seemingly, a Torah-level doubt should be ruled stringently; I should be stringent even if I’m unsure whether there is the required measure, whether it is an olive-bulk or not. But Maimonides says: measures are a law given to Moses at Sinai, and a law given to Moses at Sinai is “words of the Sages”—that is what Maimonides says. Because every—look, now I’ll read you the key sentence: “For everything not explicitly stated in the language of the Torah is called ‘words of the Sages,’ even things that are a law given to Moses at Sinai.” Everything that is not written in the Torah, but either comes from an exposition or is a law given to Moses at Sinai—notice, a law given to Moses at Sinai was indeed given by the Holy One, blessed be He, but it is not written in the Torah, it was transmitted orally—all of these are called “words of the Sages” according to Maimonides. But I’ll say more than that: not only are they called “words of the Sages,” which is what it says here in Maimonides, but Maimonides here argues that this is called “words of the Sages” and is in fact rabbinic. It’s not only a question of source; it’s also a question of force, and its doubt should be ruled leniently. Therefore, Maimonides says, seemingly a doubt regarding a measure should be ruled leniently. Why? Because measures are a law given to Moses at Sinai, and a law given to Moses at Sinai is words of the Sages, so a doubt whether there is the required measure or not—we ought to be lenient. Maimonides says no. I need to explain to you an important principle so you won’t come to be lenient in a doubtful case—for example, if I have pork and I’m unsure whether it contains an olive-bulk or not, seemingly I should be lenient, because the olive-bulk regarding pork is a law given to Moses at Sinai, and therefore this is really a doubt in a rabbinic matter, because it is words of the Sages, a law given to Moses at Sinai, and with a rabbinic doubt we rule leniently. Maimonides says no. Why not? Because the measure established by the words of the Sages comes to explain the prohibition of pork that appears in the Torah. If the law given to Moses at Sinai had created the prohibition of pork, then indeed its doubt would be ruled leniently. But if the prohibition of pork appears in the Torah, it has its basis in the Torah, and only its measure comes from the words of the Sages—there, if I have a doubt about the measure, I have to rule stringently and not leniently. Why? Here this is exactly the principle that I suggested earlier regarding kiddushin. What is Maimonides saying? He says that where a law given to Moses at Sinai only explains a law written in the Torah, then of course the result is a Torah-level law. Because when a law given to Moses at Sinai says—the Torah says it is forbidden to eat pork, okay? Now I ask myself: how much do I have to eat in order to violate the prohibition? It’s not written in the Torah. Then the law given to Moses at Sinai comes and says: an olive-bulk. You have to eat an olive-bulk in order to violate the prohibition. Now I ask myself: is this law a Torah-level law or a rabbinic law? Obviously it is a Torah-level law. Because here the law given to Moses at Sinai—true, when a law given to Moses at Sinai creates a law, that is a law from the words of the Sages—but here the law given to Moses at Sinai explains a law that is written in the Torah: the prohibition of eating pork, or what imparts impurity in a lentil-bulk, or things like that. So the prohibition is written in the Torah, and all I am missing is the measure; the law given to Moses at Sinai only supplies the missing measure, and in doing so it is basically telling me what the Torah means. That is an explanatory law; it is not a law that creates a novel law. For example, the willow ritual and the water libation are a law given to Moses at Sinai—so it says according to one opinion in the Talmud. These laws—beating the willow on Sukkot, or the water libation—are laws given to Moses at Sinai; these are laws that the law given to Moses at Sinai created ex nihilo. There, Maimonides says, their doubt is ruled leniently. Here, with measures, even though it is a law given to Moses at Sinai, the doubt is ruled stringently—not because doubt about a law given to Moses at Sinai is stringent; on the contrary, in the ordinary case doubt about a law given to Moses at Sinai is lenient, like any rabbinic law. Here specifically, with measures, this is a law given to Moses at Sinai that explains Torah-level laws, and therefore here the result is of course a Torah-level law and its doubt is ruled stringently. Exactly the same distinction that I wanted to suggest in the context of kiddushin. In kiddushin too, I want to make the following claim. “You shall fear the Lord your God”—to include Torah scholars. That is a law that the exposition creates out of nothing; reverence for Torah scholars has no source anywhere except this exposition. According to Maimonides, that will be a law from the words of the Sages. Rabbinic, an actual rabbinic law. Why? Because that is a law created by the exposition. But betrothal by money—the concept of kiddushin appears in the Torah: “when a man takes a woman.” The exposition that the Sages use to teach us that kiddushin can also be effected by money, not only by document and intercourse, is an exposition that explains the concept of kiddushin that appears in the Torah. Therefore here, because it is an explanatory exposition, the result is a Torah-level law. Because in the end, once it has explained to me the concept of kiddushin, now I know that this is the concept of kiddushin the Torah is speaking about. So if that is the case, kiddushin by money is Torah-level. And therefore Maimonides says that one who has relations with the woman—even if she was betrothed by money—is liable to death. Because the kiddushin are Torah-level, even though we learned it from the words of the Sages. Because this exposition is explanatory, not an exposition that creates a new law. And that’s the parenthetical remark I read earlier where Maimonides says: the law of money is Torah-level, but its interpretation is from the words of the Sages. Why? Because kiddushin is written in the Torah, and the interpretation that the Sages derive regarding kiddushin by money is only an interpretation explaining the concept of kiddushin that appears in the Torah. Therefore here this is an exposition whose result is a Torah-level law. Just like with a law given to Moses at Sinai: if it is a law that explains a law with a basis in the Torah—yes, that is what he says here, I’ll mark it for you again—“anything whose basic law is from the Torah and whose measure is from the words of the Sages, in a doubtful case it is impure.” When the law given to Moses at Sinai creates a new law, then its doubt will be ruled leniently. But if it explains something in a law written in the Torah, then that is an explanatory law, so it is a Torah-level law. And if so, it seems to me that nothing is difficult in Maimonides—not from kiddushin, not from the Commentary on the Mishnah in tractate Keilim here, and not from anywhere else. On the contrary. What emerges from Maimonides’ words everywhere is the following claim; I’ll summarize what we’ve arrived at so far. When Maimonides says that laws derived from expositions are laws from the words of the Sages, he means to speak about the question of force, not only the question of source. He claims that these are rabbinic laws. But the halakhic applications depend on the question of whether the exposition is explanatory or creative—not supportive or creative, but explanatory or creative. If the exposition is an explanatory exposition—let’s say it this way: a supportive exposition is a case where I have a tradition from Sinai that there is kiddushin by money, and I found an exposition that supports the law I had already received earlier. A creative exposition is if the exposition were creating the law of kiddushin by money out of nothing; I had not received it earlier. An explanatory exposition is an exposition that says the following: it is indeed creating a new law—there was no kiddushin by money before the exposition—but once the exposition appears, then the law of kiddushin by money integrates into the laws of kiddushin that do appear in the Torah. It explains what appears in the Torah in the concept of kiddushin. It’s not that we received the law from Sinai; the law was created in a later generation, but once it was created, it explained a concept that appears in the Torah, the concept of kiddushin. And therefore here too Maimonides says this is a Torah-level law. Even though its interpretation is from the words of the Sages, because this is a creative exposition, its halakhic status is the status of a Torah-level law. That is to say, so far we have learned that Maimonides really does mean an actual rabbinic halakhic status for laws derived by exposition, but we also learned that Maimonides distinguishes between laws that the exposition explains and laws that the exposition creates. If the exposition explains—sorry, if the exposition explains or supports—then the law is Torah-level. If the exposition creates, then the law is rabbinic. With halakhic consequences—not only in terms of source, but also of force. But we also suddenly learned something else from looking at the Commentary on the Mishnah in the last source we just saw. For Maimonides, a law given to Moses at Sinai is also words of the Sages. Not only laws derived from expositions—also a law from Sinai. And Maimonides also explains his criterion. What is the criterion? Because it is not written in the Torah. Right, we just saw that. Because a law given to Moses at Sinai is not written in the Torah. Yes, but it was given to Moses our teacher by the Holy One, blessed be He. Anything not written in the Torah—not anything not transmitted by the Holy One, blessed be He, but anything not written in the Torah—is words of the Sages. Only something written in the Torah is Torah-level. Maimonides, by the way, repeats this in dozens of places—people don’t notice it—but he repeats it in dozens of places, including the second root that we read last time. Everywhere Maimonides repeats: the Halakhot Gedolot writes that this is Torah-level even though there is no verse at all that says it. So what do I care that there is no verse—what does it matter if there is no verse? Because for Maimonides, the criterion is that Torah-level means what is written. Not what was transmitted by the Holy One, blessed be He, but what is written. If there is something that was transmitted by the Holy One, blessed be He, but it is not written, that is words of the Sages. For example: a law given to Moses at Sinai. It was transmitted by the Holy One, blessed be He, and it is not written, because it was transmitted orally. That is words of the Sages. Expositions—why are they words of the Sages? They were not transmitted orally. But they are not from the Holy One, blessed be He. They are not written in the Torah. They emerge from the Torah through exegetical tools, but they are not written in the Torah. Therefore they too do not meet the criterion of being written in the Torah, and therefore they too are words of the Sages. That is basically Maimonides’ claim, and I claim that if you accept this picture together with the qualifications that I mentioned—what Maimonides himself writes in the Commentary on the Mishnah in Keilim, and I applied the same qualification to expositions as well, namely, to distinguish between an exposition or law that explains and an exposition or law that creates—if you accept both that qualification and that picture, not a single difficulty remains against Maimonides out of the thousands of difficulties. Everything that the later authorities and the medieval authorities ask against Maimonides—thousands of questions, thousands—everything collapses. Everything collapses if you understand the picture in this way. But what I’ve said so far isn’t enough; I’ll have to add a few more supplements. To understand this matter better, I would say as follows. Basically, Maimonides identifies a Torah-level law with what is written in the Torah. Does that remind you of anything? Since you are muted, I’ll answer for you. It reminds us of the distinction between the Written Torah and the Oral Torah that I discussed earlier. Although I said in the introduction that the distinction between Torah-level and rabbinic, and the distinction between Written Torah and Oral Torah, are two independent distinctions. The distinction between Written Torah and Oral Torah exists entirely within the category of Torah-level laws. There are Torah-level laws that are written in the Torah—that is the Written Torah. Torah-level laws learned from expositions or a law given to Moses at Sinai—that is the Oral Torah. But all of it is Torah-level. And rabbinic laws are a category of their own. That is how the other medieval authorities understand it. Maimonides says no. And this is the basis of Maimonides’ innovation, which in my opinion nobody understood, and therefore everyone raises difficulties against him. Maimonides identifies the two distinctions. The distinction between Torah-level and rabbinic, and the distinction between Written Torah and Oral Torah—he identifies them. For Maimonides, the criterion for Torah-level laws is laws that belong to the Written Torah, that appear in the Torah. The criterion for rabbinic laws is what belongs to the Oral Torah, what is not written in the Written Torah. That includes laws given to Moses at Sinai, even though they were transmitted by the Holy One, blessed be He, but they are not written in the Torah. And it also includes laws learned from expositions, because they are not written in the Torah; we derive them from the Torah with exegetical tools, but they are not written in the Torah. Therefore both of them are laws from the words of the Sages according to Maimonides. Because Maimonides is basically identifying—now I return to what I said earlier, notice: I made a distinction between Torah-level and rabbinic, a distinction between Written Torah and Oral Torah, and a distinction between the question of force and the question of source. For Maimonides, these three distinctions are one. They are all the same distinction. The fundamental distinction is the distinction between Written Torah and Oral Torah, which is a distinction on the plane of source. Right? The question whether it comes from the Sages, Oral Torah, or whether it comes from the Written Torah—Written Torah and Oral Torah. Anything that is Oral Torah is words of the Sages. Anything that is Written Torah is Torah-level. And therefore the question of source determines the question of force. Or in short, the three distinctions I made are basically mapped onto each other according to Maimonides: Written Torah and Oral Torah, Torah-level and rabbinic, source and force. Maimonides says there is no distinction between the question of source and the question of force. There is no such distinction. The source determines the force. If something comes out of the Torah, then it is Torah-level. If it does not come out of the Torah, then it is rabbinic, even if it comes from the Holy One, blessed be He—it is words of the Sages. And therefore, once I understand that there is no difference between the question of source and the question of force, all that remains is to examine the question of source, and that will determine the question of force. So the distinction in the area of source between laws connected to the Oral Torah and those connected to the Written Torah determines the distinction on the plane of force between Torah-level and rabbinic. And everything disappears. From Maimonides’ perspective, the picture is seemingly very, very simple. Notice that the term “Torah-level,” literally—what is the literal meaning of the term? “From the Torah,” right? “Torah-level” means from the Torah. Maimonides interprets this literally. Torah-level means something written in the Torah—that is called Torah-level. What is not written in the Torah is not Torah-level. Or in other words, the literal meaning of Torah-level pertains to source, right? What is the source of this—whether it is from the Torah. But Maimonides says: wait a second, the Sages use this on the plane of force—to say that something is Torah-level means it is a Torah-level law, its doubt is ruled stringently; this is a matter of force. Maimonides says: we see from this that the source determines the force. And therefore he identifies all of these distinctions, maps all of these divisions onto each other. And if so, then in my opinion Nachmanides is right in his interpretation of Maimonides. Maimonides intends to discuss both the question of source and the question of force. Both the Tashbetz and Nachmanides are right. They are only wrong in distinguishing between the questions. In Maimonides’ eyes, it is the same question. When Maimonides says this is words of the Sages, he is speaking about the question of source, but from that the question of force is also derived. How is it derived? Like this. What appears in the Torah is Torah-level. What does not appear in the Torah—that is, either a law given to Moses at Sinai or a law derived from an exposition—neither of them appears in the Torah, so in principle they are words of the Sages. But if the law or the exposition is explanatory—that is, it relates to some law that appears in the Torah and explains it—then it will be Torah-level. If the exposition supports a law that appears in tradition, that too is Torah-level. We saw this in Maimonides in the second root. An explanatory exposition and a supportive exposition are Torah-level. A creative exposition is rabbinic. An explanatory law given to Moses at Sinai is Torah-level; a creative law given to Moses at Sinai is rabbinic. That is to say, beyond… in order to know whether a law is rabbinic or Torah-level, first you have to know its source: is it written in the Torah or is it not written in the Torah? But that is not enough. If it is written in the Torah, then it is certainly Torah-level, yes? That is clear. If it is not written in the Torah, we still have to ask ourselves: so how did it come about? If it is a creative exposition or a creative law given to Moses at Sinai, it is a rabbinic law. If it is an exposition or a law given to Moses at Sinai that explains a concept or law appearing in the Torah, it is Torah-level. If it is a supportive exposition—that is, we have a law transmitted by tradition and the exposition anchors it in a verse—that too will be a Torah-level law. The last category that appears in the second root requires explanation. And this is already asked by Nachmanides—I think I mentioned it in the previous lecture. Notice what is written in the last category. The last category basically says that if something comes to me by tradition, a law given to Moses at Sinai, and I found an exposition for it that anchors it in a verse, then it will be Torah-level. Right? That is called a supportive exposition. What is a supportive exposition? It means that a law comes to me by tradition—it is a law given to Moses at Sinai, it is not written in the Torah, it comes by oral tradition—and I found an exposition that anchors that law in a verse; the result is Torah-level. Nachmanides asks: I don’t understand you, Maimonides. You are telling me that tradition does not create Torah-level laws, right? After all, for Maimonides a law given to Moses at Sinai is words of the Sages. And you are also telling me in the second root that expositions too do not create Torah-level law, right? A law derived from exposition is a law from the words of the Sages. So why, if there is both tradition and exposition, is it Torah-level? Does zero plus zero make one? That is where I ended the previous lecture. You tell me that exposition is a rabbinic tool; a law given to Moses at Sinai is also a rabbinic tool. So why, when these two rabbinic tools join together, is the resulting law Torah-level? How does that happen? A law derived from exposition is rabbinic; a law derived from a law given to Moses at Sinai is also rabbinic; but if there is a law given to Moses at Sinai that… if we also have an exposition for it, then it is Torah-level. So at the end of last time I talked about the paradox of the heap. I said that Nachmanides treats this as if zero plus zero makes one. But maybe it is not zero; maybe it is one-half. A law given to Moses at Sinai is half Torah-level—not fully Torah-level, but half Torah-level. A law derived by exposition is also half Torah-level. And a half plus a half is one. Zero plus zero stays zero, but a half plus a half can make one. But of course this is a simplistic arithmetic model, because it doesn’t explain what is really happening here. And I’ll tell you what I think is happening here. And here I’ll end the lecture; this will give us some kind of picture, and I’ll spell it out more next time. My claim is that Rabbi Elchanan Wasserman, in an essay called “Teshuvah,” in his Explanations of Aggadah according to the plain meaning there, I think, or in essays, in his collected essays, draws a distinction between two laws that exist in every commandment. He brings it in the name of the Ramchal. Every person who fulfills a commandment has two aspects in it. One aspect: he obeys the Holy One, blessed be He. The Holy One, blessed be He, commanded, and he responded—he fulfilled the command. The second aspect: since the Holy One, blessed be He, commanded it, apparently it also helps in some way. So if you performed the commandment, you brought about the spiritual benefit that this commandment is meant to achieve. So there is the essential aspect of the commandment, and there is the aspect of obedience. What the commandment comes to accomplish, its benefit, and obedience to the command of the Holy One, blessed be He. When I commit a transgression, there are also two aspects. First of all, that transgression is disobedience to the command of the Holy One, blessed be He, rebellion against the command. And the additional thing is that this transgression is of course a transgression because apparently there is some spiritual damage in violating it. So one who violates the transgression has two problems. First, he defied the command, he rebelled against the command. Second, he created some kind of spiritual damage. In every commandment or transgression there are two aspects: the aspect of command—obedience or rebellion in relation to the command—and the substantive aspect, the essential content, what the commandment comes to achieve and what the transgression comes to prevent. These are the two aspects that exist in every commandment and every transgression. By the way, both Tosafot HaRosh and the Ritva, when they explain the Talmud—the Talmud says, “Greater is one who is commanded and does than one who is not commanded and does.” And then all of us have all kinds of interpretations and ideas—why is that so? After all, the first intuition is that greater is the one who is not commanded and does—he volunteers, he does it voluntarily, he is greater. So the Sages tell us that greater is the one who is commanded and does. And Tosafot HaRosh and the Ritva present it in the simplest possible way. They say: because one who is commanded and does has two positive aspects in what he did. He both responded to the command and also performed the commandment and attained the spiritual benefit of the commandment. That is greater than one who is not commanded and does, because he indeed attained the spiritual benefit, but he did not fulfill the command, because he was not commanded. Mathematics. Therefore greater is one who is commanded and does. And this is another expression of this statement of the Ramchal and Rabbi Elchanan Wasserman, that in every commandment and transgression there is an aspect of command and there is the substantive aspect, the content of things, the benefit or damage expected from that commandment or transgression. Now I want to make the following claim: a Torah-level law has to be written in the Torah, says Maimonides. Why? Why is it specifically what is written in the Torah that has some other kind of status? After all, a law given to Moses at Sinai was also transmitted to Moses directly by the Holy One, blessed be He. So what if it comes orally and is not written in the Torah—why is it lighter? Why is it words of the Sages whose doubt is ruled leniently? Why? Maimonides says: let us ask ourselves a more basic question. Why did the Holy One, blessed be He, leave laws to be transmitted orally? Why didn’t He write them explicitly in the Torah? There really are not that many laws given to Moses at Sinai, by the way. They could have been written in the Torah. What’s the problem? Write the measures in the Torah. Why did He choose to transmit certain laws as oral tradition? Maimonides says: because what is written in the Torah is not only an expression of will, that the Holy One, blessed be He, tells me “I want you to do such and such” or “I command you to do such and such,” but what is written in the Torah apparently also contains some spiritual benefit or damage in the commandment and the transgression. And therefore only what is written in the Torah is Torah-level, because what is written in the Torah contains both aspects. It contains command and it has essence. If things are transmitted orally—a law given to Moses at Sinai—why did the Holy One, blessed be He, not write them? Because He wanted to tell us that these things—there is certainly command in them from the law given to Moses at Sinai. The Holy One, blessed be He, commanded them to us, only orally. It is exactly the same as in the Torah, except that the command was transmitted orally. So there is command also in a law given to Moses at Sinai, but there is no essence. A law given to Moses at Sinai is command: I want you to do this. For example, the measures. Why specifically an olive-bulk? That is not an essential matter; it could also have been an olive-and-a-half. But you have to draw the line somewhere, right? There is no essential issue here. But still, you have to draw the line, so the Holy One, blessed be He, commands an olive-bulk. Therefore it was transmitted as a law given to Moses at Sinai. Since in a law given to Moses at Sinai what passes down to us is a command, but it is not written in the Torah because it has no essence—it is a detached command, it has no essence—that is a law given to Moses at Sinai. Therefore it is not Torah-level, because for something to be Torah-level it needs both command and essence, and in a law given to Moses at Sinai there is only command, there is no essence. In expositions the situation is the opposite. Expositions have only essence and no command. Remember the Maimonides in the introduction to Sefer HaMitzvot that I brought? Maimonides says an exposition is a warning derived by reasoning. It is not considered that I was warned; punishment is imposed only if there was a warning. If a law comes from exposition, they cannot punish me. Why not? Because I was not warned. What does it mean that I was not warned? Because something is not written in the Torah, and it was also not a tradition passed down orally as a law given to Moses at Sinai; the Sages derived it through expositions. So there is no command of the Holy One, blessed be He, concerning this matter, right? It is not in the Torah and it was not passed down orally as a law given to Moses at Sinai, so there is no command. So what is there? What is there is essence without command. And that is a law derived from exposition. Let me show you—what is “You shall fear the Lord your God”—to include Torah scholars? The Sages come and say—we learned this in the previous lecture, Shimon HaAmsuni, the Talmud in Pesachim—the Sages come and say: the idea of fearing the Holy One, blessed be He, also exists in reverence for Torah scholars. The essence, the idea, the spirit of the matter tells me to revere Torah scholars as well because there is—yes, “those foolish Babylonians who stand for a Torah scroll and do not stand for a Torah scholar.” A Torah scholar has something of the Torah in him, something of the Holy One, blessed be He. Therefore, just as one fears the Holy One, blessed be He, one should fear a Torah scholar. But there is no command for this; it is not written in the Torah. So what is the exposition? The exposition only says that the spirit of the matter exists there too. Know that the spiritual benefit that comes from fear of God is also attained through reverence for Torah scholars. So what does that mean? It means that exposition is essence, even though there is no command attached to it. And a law given to Moses at Sinai is command without essence. And something written in the Torah contains both command and essence. In order for a law to be Torah-level, it has to contain both command and essence. Anything lacking one of them is words of the Sages. But it is words of the Sages of a different type. Expositions are words of the Sages because they lack command. A law given to Moses at Sinai is words of the Sages because it lacks essence; it has only command. And we will see later that this has halakhic implications. There is a halakhic difference between these two kinds of rabbinic laws in Maimonides—law given to Moses at Sinai and exegetical laws. There is a halakhic difference. And I will also still have to explain how this answers Nachmanides’ question against Maimonides—why, and actually I can already explain that. Nachmanides asked Maimonides: if you tell me that expositions do not create Torah-level law, and oral tradition, a law given to Moses at Sinai, also does not create Torah-level law, then why do the two of them together create Torah-level law? Right? That is what Nachmanides asks. Now it is very clear according to what I am saying, right? Because a Torah-level law means—why does it have to be written in the Torah? Because only what is written in the Torah contains command and essence. Right? In a law given to Moses at Sinai there is command but no essence; in a law derived by exposition there is essence but no command. But if I have a law given to Moses at Sinai for which I also found an exposition, what does that mean? That there is command, because it is a law given to Moses at Sinai, and there is essence, because I found an exposition. Well then, that is a Torah-level law. Later I will also show you that according to Maimonides, doubt about a law given to Moses at Sinai is ruled leniently. We already saw this in the Commentary on the Mishnah in Keilim, right? That is what Maimonides says: since it is words of the Sages, its doubt is ruled leniently. With expositions, one of the big difficulties against Maimonides is: why do we not find anywhere that with laws derived by exposition Maimonides says their doubt is ruled leniently? On the contrary, in many places in the Talmud we see that in laws derived by exposition, their doubts are ruled stringently. Everyone asks: so how can you say it is rabbinic? The answer is: according to Maimonides, this is a kind of rabbinic law whose doubt is ruled stringently. The rule that a rabbinic doubt is ruled leniently was said only about rabbinic laws that contain command without essence—not rabbinic laws that contain essence without command. There, their doubts are ruled stringently. And I will explain well why that is so. Everything falls into place; it is one picture that explains everything. So what still remains for me to explain? Fine, so I have basically explained all the details of the picture. Now we have to go back and understand how this whole business grows from below—how Maimonides conceives exposition from an interpretive standpoint, and from that derive everything I said, and then also see the implications that emerge from this—but that we will already do next time. I’m unmuting your microphones. One second. Not unmuting—I’m just giving you control of the microphone, but wait, let me just do one more thing here. Wait. I just need to collect attendance here and I want to—and I want to—how do I do this? Wait. Well done—

[Speaker C] Great strength.

[Rabbi Michael Abraham] Okay, anyone who doesn’t need attendance can of course leave already. Just one second. How do I get everyone onto one screen? I don’t know. Well done,

[Speaker F] Goodbye.

[Rabbi Michael Abraham] Goodbye. Wait. Is there anyone else who doesn’t need attendance? Yes.

[Speaker E] Yeshayahu? Yes, I’m leaving.

[Rabbi Michael Abraham] So wait, if you—do you still want to ask something, or can you leave already? Because I’m trying to fit all those present onto the screen.

[Speaker E] What? I wanted to ask—I don’t remember exactly how Maimonides counts Hanukkah and Purim. That’s rabbinic.

[Rabbi Michael Abraham] He counts them as rabbinic?

[Speaker E] He doesn’t count them as Torah-level?

[Rabbi Michael Abraham] Obviously—the opposite, he attacks the Halakhot Gedolot for counting them as Torah-level.

[Speaker E] He doesn’t count them as Torah-level. Okay, well done, goodbye. Okay, goodbye.

[Rabbi Michael Abraham] So wait—so you’re leaving, Yeshayahu? Yes, I’m leaving. Yes, sorry, I just want to photograph the screen. Yes, yes, perfectly fine. Okay. Fine, I took the picture, thank you all and goodbye.

[Speaker B] Thank you very much,

[Speaker F] Thank you very much, goodbye.