Topics in Talmudic Logic, Lecture 17

[Rabbi Michael Abraham] Okay, I’m starting. Last time—we’re in the middle of this from last time—today I want to finish this topic of the methods of midrashic derivation and their status. Last time I basically finished sketching the map, at least as I understand it according to Maimonides, and I’ll briefly describe it here. Maimonides essentially introduces an interpretive innovation, saying that the hermeneutic rules are measures, they are tools that expand the verse and not tools that uncover things already found inside the verse. Then the claim is that according to Maimonides, a Torah-level law is only a law that is in the verse, written in the Torah. Laws learned through derivations are an expansion of what is written in the Torah and are not literally written there, and therefore in his view they do not come out as Torah-level. That was regarding laws derived by midrash. Then I said that Maimonides broadens his innovation concerning what is called Torah-level and what is not; for example, he says that a law given to Moses at Sinai is also called rabbinic law. And I argued that this is a consequence of his view that the term “from the Torah” is interpreted literally. What appears in the Torah is Torah-level, from the Torah. Therefore a law given to Moses at Sinai, which is not written in the Torah, is not Torah-level. Just as derivations are not written in the Torah, because the hermeneutic tools are expansive and not revealing, therefore that too is not Torah-level but rabbinic law. The same goes for reasoning. A law that is innovated by force of reasoning is not Torah-level; it is rabbinic law. Therefore the Talmud in tractate Berakhot—this I’m just adding parenthetically, we didn’t discuss it—the Talmud in Berakhot discusses the question of where we know that one must recite a blessing over food before eating, blessings over enjoyment. And in the end the Talmud concludes that it is from reasoning, that a person may not enjoy this world without a blessing, and this is learned by reasoning. Pnei Yehoshua there asks: if it is from reasoning, and reasoning is Torah-level, then doubt concerning blessings should require stringency, and so on. According to Maimonides, no. Even though it is reasoning, since it does not appear in the Torah, it is not Torah-level. Like a law given to Moses at Sinai, like laws derived through midrashic readings, so too this is not Torah-level. So what is Torah-level? Torah-level is only what is written in the Torah or emerges from it through simple interpretive tools, not through midrashic readings but through simple interpretive tools. I added one more thing: Nachmanides’ objection to Maimonides, that if a law is transmitted by tradition and we bring a derivation to support that law, Maimonides explicitly says that this is Torah-level. Even though tradition alone—a law given to Moses at Sinai—creates a rabbinic law, and a derivation alone also creates a rabbinic law, if there is a derivation supporting a law that came through tradition, that creates a Torah-level law. And I explained this in two ways that can complement each other. First, it may be that if there is a supporting derivation, that basically means that this midrash actually reveals what is inside the Torah; therefore the law transmitted it to us orally, and this is not an expansive derivation but a revealing one, and therefore it is Torah-level. But beyond that I also explained it in another way, and I said as follows: in every commandment or transgression there are two aspects—I brought this from Ramchal. There is the aspect of obedience or rebellion, noncompliance with a command, and there is the essential aspect. The essential aspect is the benefit or harm brought by the commandment or transgression. And when a person performs a commandment, he both fulfills God’s will and also attains the benefit that the commandment is supposed to bring him, to the world. When he commits a transgression, then he both rebels against the command, against God’s will, and also brings some kind of damage because of which that thing is defined as a transgression. And then my claim was the following claim: according to Maimonides, the question that arises here is why the Holy One, blessed be He, chooses different media to convey all these laws to me. There are laws written in the Torah, there are laws that can be uncovered through simple interpretive tools from the Torah, there are laws—there are laws that are written—transmitted to us orally, as a law given to Moses at Sinai. There are laws that are expansions through the hermeneutic tools. The question is why the Holy One, blessed be He, didn’t make one single type of laws—write everything in the Torah and that’s it. Why divide it among all these different channels or different media for conveying the Torah to us? Written Torah, Oral Torah, all these things. So my claim was the following claim: basically, from the second root I showed in various ways that in light of Ramchal, whom I cited before, and in light of the fact that every commandment or transgression has two meanings in it—the command or utterance, and the benefit—a commandment written in the Torah: the fact that it is written in the Torah itself constitutes a command. The moment the Torah wrote it, it commanded me to do or not to do that thing. But if it is written in the Torah, the assumption is that behind it there is also some idea, some content. Why are we commanded to do or not to do something? Apparently because it causes some damage or brings some benefit, and therefore it is defined as a commandment, a positive commandment or a prohibition. So that is what is written in the Torah, and therefore something written in the Torah has both—a command applies to it and it also has content. In a law given to Moses at Sinai, there is a command, because we received a command from the Holy One, blessed be He, that was transmitted to us orally. It is not written in the Torah, but that does not matter; the Holy One, blessed be He, commanded it just as He commands us in the written Torah, He commands it to us through the tradition transmitted orally. He said it to Moses our teacher at Sinai; there He commanded him, and from there it was passed down to us in tradition, but there is a command about it. So why was it said orally and not written in the Torah itself? Because apparently these laws are laws in which there is command but no essence. What does it mean, no essence? Obviously the command is not arbitrary. The meaning is that there is no essential damage or benefit here. For example, safeguards, which are rabbinic laws—say they tell me not to eat poultry with milk lest I come to eat meat with milk. So poultry with milk, in itself, is not problematic. There is logic to forbidding it. The logic in forbidding it is to prevent us from stumbling into meat with milk. But that does not mean that poultry with milk itself—that eating it is something problematic. There is no problem in it. Therefore I would call this command without essence in rabbinic laws. Also a law given to Moses at Sinai has logic, but no essence—let’s say, it’s not in the object itself, okay, in the yeshiva-style terminology. There is a command, and apparently also something it is meant to achieve, but there is no benefit here, no result in reality from the transgression or the commandment, meaning from fulfilling this law or violating it. So that is a law given to Moses at Sinai. A law given to Moses at Sinai is command without essence. Laws derived through midrashic readings are laws that have no command attached to them, as we saw earlier, because they are not written in the Torah. The derivation expands beyond what is written in the verse; it does not reveal what is inside the verse. But these laws do have essence, because the whole idea of midrashic derivation is to expand the essence of the verse. For example, “You shall fear the Lord your God”—to include Torah scholars. What does that mean? When I read the verse “You shall fear the Lord your God,” it does not command me to fear Torah scholars; it commands me regarding fear of God—that is the command. So what is fear of Torah scholars? Fear of Torah scholars is an inclusion from the word “et,” which basically tells me that the same idea present in fear of God also exists in another form in fear of Torah scholars. Therefore fear of Torah scholars is something whose content, in terms of content, does have content. It is the same content that exists in the Torah’s command, only it has no command. So what emerges is really a very complete picture according to Maimonides. Things written in the Torah have content and have a command. A law given to Moses at Sinai has command and no content. Laws that come from derivations have content and no command. Those are the three categories. What about reasoning?

[Speaker B] Can you give an example of a law given to Moses at Sinai that has no content?

[Rabbi Michael Abraham] What do you mean? I don’t know how to explain to you why it has no content or why pork has content. I also don’t know how to explain why pork has content. Why does it? I don’t know. It causes some kind of harm; I have no idea.

[Speaker B] I’m trying to understand how it can be that a law given to Moses at Sinai is something you say the Holy One, blessed be He, told him,

[Rabbi Michael Abraham] So—

[Speaker B] how can one claim that He told him something that has no content at all?

[Rabbi Michael Abraham] Not that it has no content at all. As I said, I gave an example of this from rabbinic laws that prohibit us from eating poultry with milk. When I eat poultry with milk, I haven’t done a problematic act. There’s no problem in it; the Torah does not forbid it. There is only a concern that I may come to eat meat with milk, and that is problematic. So there is a reason for the prohibition; it isn’t a prohibition without reason. But the act in itself is not a problematic act. I didn’t do an action here that caused damage in the world; rather, this is an action that may cause damage in the world, and therefore it is already forbidden here. It’s simply a fence. So that is an example of something that could also exist in laws given to Moses at Sinai. I don’t know how to explain what benefit there is in a commandment, and therefore I also can’t demonstrate to you why there is no benefit in laws given to Moses at Sinai. By the way, there are also very few laws given to Moses at Sinai that are laws introducing a new law, rather than details within an existing law, and we discussed that only about those am I speaking here.

[Speaker B] But according to what we’re saying, only commandments that are Torah-level according to Maimonides have a positive or negative effect on reality?

[Rabbi Michael Abraham] Yes—on the person, on reality, yes. Besides the command, there is also some result. Okay? Now, we showed this from various sources, from the ninth root and other places. Now my claim is the following claim: let’s try to see what this picture says regarding the laws of doubt, which I didn’t say last time. Or maybe just before I finish—I just want us to have the summary in mind. When Maimonides says that some law is of rabbinic origin, he still hasn’t told us unambiguously what he means, because there are all sorts of kinds of rabbinic law. So far I’ve counted at least four kinds. One kind is ordinary rabbinic law—enactments, decrees, okay, legislation of the sages. A second kind is reasoning; it has no command, so it is rabbinic law. A third kind is laws learned through derivations; these also have no command, even though they do have content, therefore they are rabbinic law. A fourth kind is a law given to Moses at Sinai, where in fact there is no content but there is a command, and every time either content or command is missing, it is not Torah-level, it is rabbinic law. So when Maimonides tells me “rabbinic law,” unlike what the other medieval authorities (Rishonim) understand, there isn’t one distinct and clearly defined category here. “Rabbinic law” is a general label for a great many kinds of laws, whose common denominator is that they are not Torah-level. What are they then? Various kinds—content without command, command without content, whatever you want, all sorts of things like that. Therefore it is important to understand that when we say a rabbinic law, we’ve mentioned some heading under which all sorts of different kinds are gathered. It is not one thing. Therefore, for example, when I speak about the implications of rabbinic law, the implications will not necessarily be the same for all kinds of rabbinic law. For example, the laws of doubt. We’re used to saying that if a law is rabbinic, then doubt is treated leniently. In Maimonides that is not necessarily so. I don’t know whether that applies to all kinds of rabbinic laws. It has to be examined, but it may be that for some rabbinic laws it will be lenient, and for others not. Okay? Once I understand that the concept of rabbinic law is an umbrella concept, meaning underneath it there are all sorts of different concepts whose common denominator is that they are not Torah-level, but still there are differences among them, then that means there may also be halakhic differences among them. Yes, I think I once gave this example. There is an Avnei Nezer who wants to say, regarding the prohibited labor of building on the Sabbath—he says: when we build a house, what do we do? We basically take bricks, build some structure, and that structure creates a space meant for use, for dwelling, for storage, for use. Meaning that building, the ultimate building, yes, the classical building, the complete building, is composed of two elements. There is a cavity, the creation of a space, by gathering parts together—cement and bricks, I connect them, and thus create a usable space. That is the primary category of the prohibited labor of building. What are the subcategories? It turns out there are two kinds of subcategories, says Avnei Nezer. One subcategory is curdling cheese. What do you have in curdling cheese? I gather many parts of the cheese and stick them together. In that sense it resembles building. What is missing in curdling cheese so that it isn’t a primary category? There is no space there meant for use. The purpose of gathering the parts is not to create a usable space, as when you build a structure. Therefore it is a subcategory, because it is gathering parts but not for creating a space. What is the subcategory that is creating a space without gathering parts? Making a tent, right? Making a tent means I create a space, but I don’t do it by building bricks with mortar and plaster; rather, I simply make a space all at once. It is not gathering parts. I put a blanket over myself and I’ve created a space. Therefore that too is a subcategory. But that subcategory and the subcategory of curdling cheese have nothing whatsoever in common. When you look at them, you will discover nothing in common. Both are subcategories of building. They have nothing in common. Why? Because building is defined by two components, let’s say A and B. Something missing one of the components is a subcategory. So one subcategory has component A and not B. The second subcategory has B and not A. When you look at the two subcategories opposite each other, nothing resembles anything. This one has only A, that one has only B. So how are they related to one another? Only through the primary category above them. There is no connection between them at all. This is very interesting, because we are usually used to thinking that similarity is a transitive relation. Meaning, if A resembles B and B resembles C, then A resembles C. So here is an example showing that this is not true. Curdling cheese resembles building a house, and a tent resembles building a house, but a tent and curdling cheese do not resemble each other. Why? Because the similarity between curdling cheese and a house is in parameter A. The similarity between a tent and a house is in parameter B. Therefore there is no similarity between curdling cheese and a tent. And nevertheless, both are subcategories of the same primary category. That is exactly what happens here in Maimonides’ logic. The primary thing, so to speak—the Torah-level prohibition or Torah-level commandment—is something that has a command and also has content. One subcategory is a law given to Moses at Sinai—and reasoning, sorry—a law given to Moses at Sinai, which has no content and has a command. Other subcategories are both reasoning and laws derived through derivations, which have content but have no command. What is similar between a law given to Moses at Sinai and a law derived through a derivation? Nothing. Both are rabbinic laws, but there is nothing similar. In one there is only content; in the other there is only command. Nothing similar. But both are subcategories of Torah-level law, because in each of them there is some resemblance to Torah-level law and a deficiency in another parameter—only in each case it is the opposite parameter. Therefore there is in themselves no similarity between them, although both fall under the category of rabbinic law. And I would have expected these to be laws that resemble one another in some sense, with the same rules applying to both, but no. Once that is the logic, and here we arrive—today we arrive—at gathering all the logical fruit from everything I did throughout this whole move, because we are dealing with Talmudic logic. So here are the logical conclusions. One logical conclusion is that similarity is not a transitive rule; it is not a transitive relation. When A resembles B and B resembles C, it does not mean that A and C resemble one another. They may not resemble one another. This is our case, as in building. Consequently, what follows? That the laws of those two things do not have to be similar either. Now I’m going to argue this regarding the laws of doubt. I’ll show it in more detail. Let’s see how this works with the laws of doubt. After all, many of the objections to Maimonides were: you say that laws derived through derivations are rabbinic law, so why is their doubtful case treated stringently? There is much evidence that in laws derived through a derivation, doubt is treated stringently. So that’s difficult for Maimonides. I say no—Maimonides does not say that every law of rabbinic origin is treated leniently in cases of doubt. There are various kinds of laws; each has to be checked separately. I claim that doubt regarding a law derived through a derivation is treated stringently. And more than that, I claim—and we already saw this explicitly in Maimonides in his commentary to the Mishnah in tractate Kelim—that doubt regarding a law given to Moses at Sinai is treated leniently. And doubt regarding laws that are decrees and enactments—what among all the other medieval authorities (Rishonim) is called rabbinic law—is also treated leniently. That is clear; it is explicit in the Talmud. How does that fit with the picture I described? It fits perfectly. And now I’ll explain how this whole thing works. So let’s begin perhaps with the basic rule. I’m going to do screen sharing for a moment. Laws of Defilement by the Dead, chapter 9, law 12. “It is a known matter that all these impurities and the like, which are because of doubt, are of rabbinic origin, and one is not impure by Torah law except one who became definitely impure.” Yes, every matter of doubtful impurity is rabbinic. Every matter of impurity that is Torah-level is only definite impurity. Maimonides now continues and generalizes this rule. He says: “But all doubts, whether in impurities, whether in forbidden foods, whether in forbidden sexual relations and Sabbaths, are only of rabbinic origin, as we explained in the Laws of Forbidden Relations and in several places.” I skipped the parentheses. What is this? What is Maimonides saying here? Every law involving doubt—the rule that Torah-level doubt requires stringency—this rule is of rabbinic origin. The rule itself is not Torah-level; it is rabbinic law. It is a rabbinic rule that tells me that in doubt concerning Torah-level laws I must go stringently, and in doubt concerning rabbinic laws I may go leniently. That is what Maimonides says. At the end of the law—actually in the middle of the law—there are parentheses that I skipped. So let’s read them now. “And nevertheless, anything for whose intentional violation one is liable to karet, its doubtful case is forbidden by Torah law, since one who does it is liable to bring a provisional guilt-offering.” In other words, Maimonides qualifies this. Not all laws are such that the doubtful case is treated stringently only rabbinically and not by Torah law. There are certain doubtful cases that are also forbidden by Torah law. What is his proof? Because in fact one who does them is liable for a guilt-offering; one who violates doubtful prohibitions brings a sacrifice, a provisional guilt-offering. Now if violating a doubtful prohibition is only a rabbinic prohibition, then how can they bring a sacrifice for it? That would be non-sacred slaughter in the Temple courtyard. Therefore, those transgressions for whose doubtful cases there is liability for a provisional guilt-offering—clearly the obligation to be stringent in cases of doubt is a Torah obligation. That parenthetical addition makes no sense. It cannot be correct. Look three words earlier. Where does he define the rule? See here, right up to the parentheses. “All doubts, whether in impurities, whether in forbidden foods, whether in forbidden sexual relations, whether in Sabbaths, are only of rabbinic origin.” Forbidden sexual relations and Sabbaths are prohibitions carrying stoning. A matter whose intentional violation incurs karet and whose unintentional violation incurs a sin-offering—that is the sort of matter for which one brings a provisional guilt-offering in a doubtful case. And about that Maimonides says that its doubtful case is of rabbinic origin. So how can he add in parentheses that something for which one is liable to a provisional guilt-offering, its doubtful case is forbidden by Torah law? Obviously that isn’t true. According to Maimonides, all Torah-level doubtful cases are lenient by Torah law, and the obligation to be stringent is rabbinic. That is the first introduction. So why do they bring a provisional guilt-offering? The question is a good one, and therefore many later authorities interpret Maimonides this way even apart from those parentheses, because otherwise—how do you bring a provisional guilt-offering for something that is only a rabbinic prohibition? So that is not difficult at all, and I once wrote an article about this in Magal, a journal the institute once had. Maybe I’ll get to it later. But my claim is that a guilt-offering sacrifice does not require a command in order to become obligatory. Therefore, the fact that there is no command requiring me to be stringent in cases of doubt does not mean that if I violated a doubtful prohibition I do not have to bring a provisional guilt-offering. You do not need a command in order to have to bring a provisional guilt-offering, so this is no difficulty on Maimonides at all. But for our purposes, this is the rule in Maimonides. What does it actually mean? That according to Maimonides, Torah-level doubt is lenient by Torah law. Only the rabbis impose stringency on us. Now, what does it mean that the rabbis impose stringency on us? That needs discussion. It is “of rabbinic origin.” But what kind of rabbinic origin? Is it rabbinic in the sense of enactments and decrees, or is it rabbinic simply because there is no explicit command in the Torah telling me to be stringent in doubtful cases? Yes, it could be—it could be that what Maimonides here calls rabbinic law, he doesn’t really mean rabbinic in the sense accepted by the other medieval authorities (Rishonim). He means rabbinic in his own sense, namely “rabbinic law.” It is not Torah-level, but not necessarily enactments or decrees. It could be derivations, it could be a law given to Moses at Sinai. Because after all, we know there is no source in the Torah from which we learn that we must be stringent in doubtful cases. Everyone agrees on that; there is no source from the Torah for it. So how do we know? I don’t know—either a law given to Moses at Sinai, or a derivation, or reasoning, or whatever. All these are rabbinic law. But “rabbinic law” not necessarily in the sense of enactments and decrees, rather rabbinic law in the sense Maimonides defined here: it is not Torah-level in the sense of being written explicitly in the Torah, and therefore it is rabbinic law. Now I want to explain this matter a bit. Look, the principle of Torah-level doubt—let’s now take the map I sketched earlier: a law given to Moses at Sinai, a law from a derivation, a law written in the Torah with command and essence, and so on—and try to apply the laws of doubt to it. And we’ll see how it works. And I’ll show you. Let’s start with the question why in rabbinic law we don’t have to be stringent. Rabbinic doubt is treated leniently. Right? Now many already among the medieval authorities (Rishonim)—Nachmanides also asks this on the first root—ask against Maimonides, and many later authorities ask against Maimonides: according to Maimonides in the first root, the whole authority of the sages to establish enactments and decrees is learned from “do not deviate.” And on that Nachmanides asks: if so, according to Maimonides, doubt regarding rabbinic law should be treated stringently. Why? Because the moment I violate the rabbinic law, I have violated the verse of “do not deviate,” so I have violated Torah law. Doubt regarding rabbinic law is essentially Torah-level doubt, and therefore it should have required stringency. Now there are those who want to say: true, but since the rabbis are the ones who instituted the whole law of doubt in the first place—because after all this is what we saw in Maimonides here, that Torah-level doubt requiring stringency is also a rabbinic law—so the rabbis can say, okay, that applies only to Torah-level laws; for rabbinic laws we do not obligate you to be stringent. But if I am right in what I said earlier, then you cannot say that. Because if I am right in what I said earlier, then this is not rabbinic law in the sense that they enacted it. It is the result of a derivation, of reasoning, of a law given to Moses at Sinai; so it is Torah-level in the ordinary sense used by the other medieval authorities (Rishonim). So then why does it not apply to rabbinic laws whose basis is “do not deviate”? There too I violate “do not deviate”; why is there no need to be stringent in cases of rabbinic doubt? Good question. So here Rabbi Shlomo Zalman has notes on Shev Shema‘teta, the first section of the book Shev Shema‘teta, and there he wants to make the following claim. I’ll preface it and say this: Netivot HaMishpat, in section 234, writes that if someone violates a rabbinic prohibition unintentionally, he does not need atonement at all. An unintentional Torah prohibition requires atonement. There is no punishment because it is unintentional, but atonement is needed. But if you violated a rabbinic prohibition unintentionally, you don’t need atonement at all. Why not? He brings proof from a Talmudic passage; it doesn’t matter. But the explanation is that in rabbinic law, basically, there is no essence; there is only—in my language—there is no essence, only command. For example, poultry with milk. Poultry with milk was the example I gave before. When I ate poultry with milk, I did not do anything problematic. Why did the sages forbid it? To prevent concern that I may stumble into meat with milk, which is a problematic act because it is written in the Torah. But poultry with milk is not problematic in itself; there is only concern that I may come to eat meat with milk. So why am I forbidden to eat poultry with milk? Because the sages commanded, and the Torah said, “do not deviate from all that they instruct you.” Meaning, even if I accept that a rabbinic prohibition is a prohibition whose basis is in “do not deviate,” that basis in “do not deviate” only means that there is a command attached to it, but there is no essence. Because there is no problem in eating poultry with milk; the problem is the command of “do not deviate.” So if I ate poultry with milk, I violated the command. Even according to Maimonides, for whom this comes from “do not deviate” and apparently should be Torah-level, but it would be a kind of Torah-level law that has only command without essence, because the essence is absent. Poultry with milk is not problematic; it is only a concern lest I come to eat meat with milk. Rabbi Shlomo Zalman says: therefore its doubtful case is treated leniently. Because what happens when there is doubt? When there is doubt—say I have before me something mixed with milk; I don’t know whether it is poultry or soy. I am in doubt whether there is a prohibition of poultry with milk here or not. In rabbinic doubt I can be lenient. Poultry with milk is a rabbinic prohibition, I can be lenient. Let’s say I ate the poultry with soy, this mixture, and it turned out that it really was poultry with milk and not soy with milk. So did I violate a rabbinic prohibition? Yes. Was it a problematic act? No. I violated only the command that told me to keep away and not eat poultry with milk. I violated “do not deviate,” the command, but the act in itself is not problematic; no spiritual damage was caused to the world or anything like that. If I am in doubt whether it is poultry with milk or soy with milk, then there certainly is no essential problem here, right? As for the command, from my perspective there is none either—I am not sure there is any command at all. Rabbi Shlomo Zalman wants to say: a doubtful rebellion is not rebellion. Therefore rabbinic doubt may be treated leniently. Because if you have rabbinic doubt, then there is no essence because it’s rabbinic, and you also don’t know whether there is a command because it’s doubtful. In such a case you don’t need to worry; you can be lenient. That is his explanation of why according to Maimonides rabbinic doubt is treated leniently. Now let’s take this explanation one step further. Why, according to this, in Torah-level doubt do we go stringently? In Torah-level doubt, we said, there is both essence and command, right? It’s Torah-level; it says explicitly in the Torah, for example, “You shall not plow with an ox and a donkey together.” So I violate both—if I do it, I violate both essence and command. Now I am in doubt; I don’t know whether this is an ox and a donkey or an ox and an ox. Fine? So I am in doubt. In such a situation, why must one be stringent? I’m asking: why must one be stringent? Because of the command, or because of the essence? What do you say?

[Speaker B] It seems because of both of them. No—

[Rabbi Michael Abraham] It can’t be both, because as for the command, I have doubt, and we saw in rabbinic laws that doubtful command is not considered command for this purpose, right? Meaning that from the side of the command in the matter, I really shouldn’t have had to be stringent at all, because command also exists in rabbinic law, and yet there in doubtful cases we are not stringent. What is the difference between Torah-level and rabbinic law? That in Torah-level law there is also essence. That is what does not exist in rabbinic law. And what that means is that in Torah-level law, if I am in doubt whether a certain piece is pork or not pork, why do I need to be stringent and why may I not eat it? Not because of the command. A doubtful rebellion is not rebellion. I don’t know whether there is a command here, because maybe it isn’t pork. I need to be stringent because maybe there is pork here and the damage will occur. If I eat this thing and in the end it really was pork, then I caused damage. The obligation to keep away from doubtful cases is because of concern over the spiritual harm, not because of the command. Doubt about a command should not trouble me, as you see in rabbinic law.

[Speaker B] But in the example of poultry with milk, if you’re not stringent, then you can cause damage by what you’re saying—by violating “do not deviate,” no?

[Rabbi Michael Abraham] No, because there is no damage in it. There is only command.

[Speaker B] Even though it’s Torah-level?

[Rabbi Michael Abraham] That’s what I’m saying. Poultry with milk—so then why did the rabbis need to enact it? What’s the difference between a Torah-level law and a rabbinic law? If everything is just “do not deviate,” then what is… in what sense is a rabbinic law not Torah-level? The claim is that “do not deviate” is, all in all, just a commandment-verse. When you ate something prohibited by rabbinic law, you didn’t violate two prohibitions—both the rabbinic prohibition of poultry with milk and also “do not deviate.” You violated only the rabbinic prohibition of poultry with milk. So where do I know that such a prohibition exists? Because the Torah commanded me to obey the sages when it said “do not deviate.” And then it turns out that from the standpoint of Torah law, what we have here is only a command. There’s no essence here. Poultry with milk is not inherently problematic. By the way, in parentheses—I’m remembering now something strange that the Minchat Chinukh writes. He says: if you have to desecrate the Sabbath for a sick person, and you have two options—either give him something prohibited that is written explicitly in the Torah, or a prohibition derived through interpretation—give him the prohibition written explicitly in the Torah. Why? Because if you give him a prohibition derived through interpretation, then you cause him to stumble in both that prohibition and also in “do not deviate”; he violates two prohibitions. But if you give him a prohibition explicitly written in the Torah, then that’s the lighter prohibition—it’s only a Torah prohibition, that’s all. And that is of course nonsense. Clearly that’s not true. “Do not deviate” is not a prohibition; “do not deviate” is an act of authorization—what jurists call delegation. I authorize the sages to establish prohibitions. But when I violated it, I didn’t violate “do not deviate”; I violated the prohibition of poultry with milk. Only where do I get the prohibition of poultry with milk from? Because the Torah said that what the sages say is binding. And it said that in “do not deviate.” There aren’t two prohibitions that I’m violating here. So therefore rabbinic prohibitions are only command without essence. The command is “do not deviate,” but there’s no essence in it. And that is the novelty of “do not deviate.” So in an ordinary Torah prohibition, where there is both command and essence, if I’m in a case of doubt, why do I have to be stringent? Obviously because of the essence, not because of the command. Because from the standpoint of the command, if I’m in doubt, then a doubtful command shouldn’t bother me; we see that in the case of rabbinic doubt. So why is a Torah-level doubt different? Because in Torah law there is also essence. And if I’m in doubt about the essence, obviously I need to be careful. Why? Because there is concern that the damage I need to avoid may occur. After all, if I ate pork, some kind of damage was created—in my soul, in the world, whatever. Now I don’t know whether this is pork or not. Fine, but if it is pork, then that damage will be there. Right? You don’t know, so be careful, be stringent. That’s all. That’s what they tell you in the rule that a Torah-level doubt is treated stringently. Not because of the command—there is no command here—it’s because of the damage, because of the essence. Now, if I understand it this way, then look how the whole map falls beautifully into place. Everything works out wonderfully. Why? Let’s now go through the whole rabbinic-law topic according to Maimonides. Rabbinic laws of enactments and decrees by the sages, which are grounded in “do not deviate”—their cases of doubt are treated leniently, as I just explained, because there is only command here without essence. But in exactly the same way, rabbinic laws of the type of a law given to Moses at Sinai—what would the rule be in a case of doubt about a law given to Moses at Sinai, according to this? What do you say?

[Speaker C] Also leniently.

[Rabbi Michael Abraham] Also leniently, right. Because a law given to Moses at Sinai is only command without essence. It’s not an enactment of the sages, not legislation by the sages, but it is command without essence. And doubtful command, as Rabbi Shlomo Zalman explained with regard to rabbinic law, doesn’t bother me. So here too it’s only doubtful command; if I’m in doubt about a law given to Moses at Sinai, we go leniently. That’s what Maimonides writes in his commentary to the Mishnah in Kelim, which we saw—that doubt about a law given to Moses at Sinai is treated leniently. Simple. But everyone asks about Maimonides: what about doubt concerning a law that comes from interpretation? There is lots of evidence that there one must be stringent in a case of doubt. Very simple. So what if it is “the words of the scribes”? But what sort of “words of the scribes” are there? It’s essence without command, right? In one sense it resembles Torah law: there’s no command, but it resembles Torah law in that there is essence. And in Torah-level doubt too, what makes me stringent is only the essence, not the command. So if there is this kind of rabbinic law that has essence but no command, then certainly its doubt will be treated stringently—so what if it’s rabbinic? Therefore doubt about laws that emerge from interpretation will be treated stringently. Okay? And then something interesting comes out. What comes out of this is a very interesting map. Basically what follows is that the concept “words of the scribes” includes under it many different types of rabbinic law, and now suddenly we see that there are also different laws with respect to each of those types. There are certain types where doubt is treated leniently; there are other types where doubt is treated stringently. You can no longer just say, “rabbinic doubt is treated leniently.” In Maimonides that doesn’t work; there is no such general rule as “rabbinic doubt is treated leniently.” It depends what kind of rabbinic law. The classic rabbinic law, which is legislation by the sages—its doubt is treated leniently. But other rabbinic laws—their doubt is treated stringently. It depends which ones. Rabbinic laws that are essence without command—their doubt is treated stringently. Rabbinic laws that are command without essence—their doubt is treated leniently. Okay? That, for example, is one of the implications of the map I described here, and it removes many of the difficulties with Maimonides—both contradictions in his words, in that on the one hand, I mean maybe one thing: that we see in many places laws derived through interpretation where in cases of doubt one goes stringently, seemingly against what should follow from Maimonides, who says that this is rabbinic. I explained: no, that’s a kind of rabbinic law that has essence, so its doubt is treated stringently. And they also asked about contradictions in Maimonides: how can a law given to Moses at Sinai be treated leniently in doubt, while laws derived through interpretation are treated stringently in doubt? If both are rabbinic, then it should be the same thing. Not true. These are two different types of rabbinic law. In a law given to Moses at Sinai, doubt is treated leniently; in a law that emerges from interpretation, doubt is treated stringently. So that’s regarding the laws of doubt, and through the laws of doubt I tried to show you that there is actually a halakhic difference too, not only a categorical one, between the different types of rabbinic commandments. And in fact, if you now look at it from a slightly different angle, I’ll redraw the map now—what I drew at the beginning of the class, but this time in a complete way. My claim is that the degree of severity of a law—we saw in Maimonides that a Torah-level law is a law that is found in the text, right? It is a law found in the Torah itself; that is a Torah-level law. He says this in many places; he connects the difference between Torah-level and rabbinic law to the difference between the Written Torah and the Oral Torah. So I’m saying: according to Maimonides, what is Torah-level is what is written in the Torah. How are the different kinds of rabbinic law distinguished from one another? So I say: one of two things. If it is found within the Torah, then it is Torah-level. If it is not found within the Torah, then it is rabbinic. Why are there different types, with different severities, of rabbinic laws? And my answer to that—and I think I spoke about this one of the previous times—is that the connection between a law and the Torah is not just one or zero; it’s not black and white. There is a continuum of levels, and here’s another logical aspect of the matter: there is a continuum of levels of connection between a law and what is written in the Torah. The stronger the connection, the closer it is to Torah-level. The weaker the connection, the farther it is from Torah-level. I’ll explain this a little, although I think I talked about it once, and then I’ll show the point. I spoke about a paradox—I think I spoke about the heap paradox. I said that one pebble is not a heap. If I have a pile of stones that is not a heap, and I add one stone, that doesn’t change the status. But if I have a thousand pebbles, that is a heap. Three claims—

[Speaker B] each one

[Rabbi Michael Abraham] sounds very reasonable, but they don’t fit together. Because if one pebble is not a heap, and adding one stone doesn’t change the status, then two is also not a heap. And if two is not a heap, add another stone and you get three, which also is not a heap. And if three is not a heap and you add one, you get four, which also is not a heap. Keep going until a thousand, and then a thousand is also not a heap. So how do we say that a thousand is a heap? I also spoke about the bald-man paradox; I brought a whole collection of paradoxes around this issue. In philosophy they usually call it the heap paradox. What is the solution to this paradox? So if I remember correctly, I spoke about this: the solution is that the concept “heap” is not binary. You can’t look at a pile of stones and say either it is a heap or it is not a heap. There is a whole continuum of degrees of heap-ness. That is, there is a certain pile that is not a heap at all; there is a pile that is a little bit of a heap; there is a pile that is a bit more of a heap; there is a pile that is quite a heap; there is a pile that is very much a heap; there is a pile that is almost completely a heap; and there is a pile that is a heap. And the more pebbles you add, the more you move from not-a-heap toward heap. The failure underlying the paradox was that dichotomous assumption that says every thing can only be either a heap or not a heap. Not true. Stones can be in a pile, and piles can have different levels or different measures of heap-ness. It’s not one or zero, not black or white; there is gray, many shades of gray between white and black. And every everyday concept is like this—every everyday concept without exception. I don’t remember whether I gave the examples; there are many examples. Say, for instance, doing labor in an unusual manner—doing labor on the Sabbath in an unusual manner is rabbinic. Okay, now what counts as an unusual manner? How close does it have to be to the Torah-level form? You understand that if it is very far from the Torah-level form, then it will already be completely permitted; I won’t call it doing labor in an unusual manner. It’s so far removed that it’s no longer that labor at all. Where exactly is the line? I don’t know where the line is, but it’s clear that there are different degrees of unusualness, and at one end it’s such a great change that it won’t be prohibited even rabbinically; it simply won’t be that labor. And once again there is the heap paradox—where to draw the line, I don’t know. But it’s clear that there is some kind of continuum here, at the end of which there is a case that isn’t unusual at all. Or direct force and indirect force. For direct force I’m liable; for indirect force I’m exempt—when I do labor through my force but not through indirect force, or cause damage through my force and not through indirect force. Now if I’m liable for direct force, then indirect force is after all just the force of something for which I am liable—of my force—so why shouldn’t I be liable for that too? Because it’s not one or zero. Direct force is eighty percent of my body; indirect force is already sixty-four percent, and for sixty-four percent one is not liable, for eighty percent one is liable. Fine. It’s not one or zero; you don’t move from one to zero. There is a continuum, and on that continuum we can draw lines in different ways depending on what Jewish law says, but it’s a full continuum. It is not checked in binary concepts of black or white, one or zero, true or false. If I return to our example—how much something is connected to a verse. We usually assume that what is written in the verse is in the verse, and what is not there is not there. So it is either rabbinic or Torah-level. What is not found in the verse is rabbinic; what is found in the verse is Torah-level. I claim that being found in the verse has a whole continuum of levels. It depends how much you are in the verse. There is something fully found in the verse, and that is Torah-level. There is something very connected to the verse but not entirely, and that will be a severe rabbinic law; its doubt will be treated stringently. There is something not found in the verse, and its doubt will be treated leniently. There is also an intermediate level, by the way: something not found in the verse, but which has a hint in the verse. It will be somewhat more severe. Now let’s translate this into the map I described before. What is closest to Torah-level? Not fully found in the verse, but still rooted in the verse. Laws that emerge from interpretation, right? Because interpretation basically tells me that those things found in the verse—I expand that and say that this is also found there. “You shall fear the Lord your God,” so apparently one must also fear Torah scholars. That is an expansion of the law written in the verse. Therefore you can’t really say it has no connection to the verse. It has a connection to the verse. It is not written in the verse. We saw in Maimonides: these are branches that come out of the roots. The roots produced those branches. There is something in the branches that they received from the roots. It’s not disconnected. If we take as an antithesis the rabbinic laws—poultry with milk, the fact that it is prohibited, or simply Purim, Hanukkah, whatever, things the sages established—those rabbinic enactments. This is not connected to any verse. The sages legislated it as a new law. It has no connection to a verse at all. Therefore it is rabbinic.

[Speaker D] But there is also a law that uproots Scripture, which is even more so.

[Rabbi Michael Abraham] That’s something else. Yes, that’s an antithesis to the verse. But I’m saying, that’s something else. Right now I’m talking about a continuum of levels of connection to the verse. So a law that emerges from interpretation is definitely connected to the verse. The content of the verse is found there too; only the command is not, right? So that means it is connected to the verse; it is the spirit of the verse. You can certainly extend it to this law that comes out of interpretation. Therefore that law is the most severe law among the rabbinic laws; among rabbinic laws, this is the most severe one. Its doubt is treated stringently. A law given to Moses at Sinai—what connection does it have to a verse? None.

[Speaker B] No connection.

[Rabbi Michael Abraham] Right? Therefore it is exactly like a rabbinic law, like a rabbinic decree or enactment. No connection whatsoever to a verse. So in terms of the laws of doubt, that is as lenient as it gets. Its doubt is treated leniently. Okay? Now what happens? Medieval authorities (Rishonim) write regarding a number of things—there is Tosafot, there is the Ritva, there are several medieval authorities (Rishonim) who write that if there is a rabbinic law that has a textual support in a verse, then it is more severe in various respects. And everyone doesn’t understand: what do you mean, a textual support in a verse? But it’s not Torah-level, it’s not written in the verse. So why is it more severe? Because we managed to find some interesting linguistic link in the verse that gives me a textual support for that law? So what? Why is that interesting? It’s a word game. So the Ritva in tractate Rosh Hashanah says that this is not the correct understanding of the concept of textual support. When I say that something has textual support in Scripture, what that means is that it has some connection to what is written in the verse. It’s not enough of a connection to define it as a Torah-level law—it isn’t written in the verse—but still there is something in the spirit of the verse that says this too. If so, then you can understand what the medieval authorities (Rishonim) say. There is the Ran, there is Tosafot, there are various medieval authorities (Rishonim) who write that a rabbinic law that is supported by the text has more severity than an ordinary rabbinic law. Why? Because it has some connection to the text, a weak one. It’s not even an interpretation, because it’s only textual support. But textual support is a weak connection to the text. Okay? And therefore, actually, that is a lighter law. A rabbinic law that has no connection to the text—that is the lightest kind of law. It has no connection at all to the text. So basically we have a continuum of levels of connection to the text. By the way, the same goes for a law that emerges from reasoning—it’s like a law given to Moses at Sinai. It has no connection to the text. I’m not talking about interpretive reasoning, reasoning by which I interpret verses, but reasoning that generates a new law. Okay? So that is a lighter rabbinic law, because it really has no connection at all to the text. Okay? So what comes out here is that it is possible to place all the types of rabbinic laws on a single axis, and that axis is basically the degree of connection between them and the written text. And that is a continuation of Maimonides’ approach, which defines the concept of Torah-level and rabbinic law on this axis of how much you are found in the Torah. What is found in the Torah is Torah-level; what is not found in the Torah is rabbinic. Now, what I added here is only that being found in the Torah is measured on a continuum of levels. It is not either you are found there or you are not found there; there is a whole continuum of levels on which this is measured. And on that basis you can arrange all these rabbinic laws on one axis. And what we saw earlier is, for example, the laws of doubt.

[Speaker B] Now, Rabbi, can I ask a question? Yes. The example we gave about fearing Torah scholars—that’s an interpretation, right?

[Rabbi Michael Abraham] Yes. So—

[Speaker B] in one of the classes you told me that it looks like some kind of attempt to promote an agenda of fearing Torah scholars, and you said that for that you don’t need this; you could simply give a reasoning.

[Rabbi Michael Abraham] Either a reasoning or an enactment.

[Speaker B] Yes, and now it comes out that דווקא through the interpretation it gives this thing stronger force.

[Rabbi Michael Abraham] Correct. You’re presenting this as though it were an antithesis. It’s the continuation of what I said. That is exactly the point. Since there is an interpretation here, then it is not just reasoning. The interpretation tells me that it’s not that they simply decided on something from their own reasoning, period, but that it is rooted in the text. I showed this from the Talmud in Pesachim regarding “You shall fear the Lord your God,” exactly on this interpretation. I said there—through the sugya there, Shimon HaAmsuni and Rabbi Akiva—through that sugya I showed that it could not have been merely reasoning. On the contrary, the reasoning caused Shimon HaAmsuni to reject it and say there cannot be such a law. But then Rabbi Akiva comes and says to him: yes, but what will you do with the word “et”? You have to include something by means of it. There is no choice except to reach the conclusion that one must fear Torah scholars. So you see that the whole direction is the opposite. If I had wanted to establish the law that one must fear Torah scholars, I would not have used interpretation. I would have established some reasoning, or enacted a rabbinic enactment. But they, on the contrary, did not want to establish this law. They argued that it is idolatry to fear Torah scholars. One should fear only the Holy One, blessed be He. Essentially they were revolting against this law, but they were compelled by the wording, because there is “et,” and from the word “et” you have to include something. The only conclusion is that one must fear Torah scholars. So you see that the whole direction is the opposite. If I had wanted to establish the law that one must fear Torah scholars, I would not have used interpretation. I would have established some reasoning, or enacted a rabbinic enactment. But they, on the contrary, did not want to establish this law. They argued that it is idolatry to fear Torah scholars. One should fear only the Holy One, blessed be He. Essentially they were revolting against this law, but they were compelled by the wording, because there is “et,” and from the word “et” you have to include something. The interpretation twisted their arm and forced them to establish this law even though in their eyes there was no reasoning in it at all. The interpretation showed them that the Torah wants us to fear Torah scholars—or really, the spirit of the Torah, an extension of the spirit of the Torah, says that one must fear Torah scholars. And that is exactly the sign that this works the opposite of what people usually say—that the sages just dress up whatever they want. The opposite: here the whole game shows you that the sages did not want to do this, and found themselves forced to do it, because there was no choice—otherwise what will we include from the word “et”?

[Speaker B] And in fact we saw that one of them gave it up.

[Rabbi Michael Abraham] Right, Shimon HaAmsuni gave up. And when Rabbi Akiva presents it, he presents it as a compromise. He says: I also agree with you logically, but what can you do, there’s the word “et,” what inclusive derivation are we supposed to make from it? Meaning, even the other way around—I’m now speaking within Rabbi Akiva’s view. Shimon HaAmsuni said you don’t need to fear Torah scholars at all. But Rabbi Akiva, who says that you do need to fear Torah scholars, says it only because he’s compelled, because the word “et” obligates him to include something, even though in principle he agrees with Shimon HaAmsuni that it would not really have been correct to establish that Jewish law based on his own reasoning. Okay? Yes, thank you. So the claim, basically, is that okay, this is the map I drew earlier. What I want to say now is that what this thing means—what I want to show—is to talk a bit about what this means, a few implications of this picture, including logical implications. Look, I mentioned earlier the rabbinic laws, which derive from “do not deviate.” Maimonides says that the authority of the Sages to establish some law, like poultry with milk, or Hanukkah, Purim, and so on, derives from “do not deviate.” Nachmanides asks against him: if it derives from “do not deviate,” then whenever you violate a rabbinic prohibition, you are really violating “do not deviate.” So in a case of doubt it should always be treated stringently; every prohibition… there are no rabbinic prohibitions at all. All rabbinic prohibitions are really Torah-level prohibitions for all practical consequences, including cases of doubt, but also for all the other consequences. That’s his argument against Maimonides.

Now I want to make the following claim. When Maimonides says that rabbinic laws derive from “do not deviate,” does he mean to say that someone who violated that law violated the Torah-level prohibition of “do not deviate”? No. Obviously not. That can’t be right. When does he violate the prohibition of “do not deviate”? When he essentially rebels against the authority of the Sages. When he says, “I’m eating poultry with milk because I do not recognize the authority of the Sages to establish laws.” Then he is rebelling against the authority of the Sages, and then he violates it. Then he really does violate a Torah prohibition. In that case, if he does that, he violates the prohibition of poultry with milk, which is a rabbinic prohibition, and he also violates the rebellion involved in “do not deviate”; he also violates the Torah prohibition of “do not deviate.” But if someone eats poultry with milk not because he rejects the authority of the Sages, but because he has an evil inclination—I’m not talking about doing it unintentionally, I’m talking about intentionally—he intentionally eats poultry with milk, but it’s not because he doesn’t recognize the authority of the Sages, just as with Torah prohibitions we sometimes intentionally violate them because we have an evil inclination. That doesn’t mean we don’t recognize the validity of the Torah. Desires—what can you do? The desires overcame us. Okay? So too with rabbinic laws that the Sages established: in principle I recognize their authority, but I had an evil inclination and I intentionally ate poultry with milk. Okay? I did not violate “do not deviate.” I violated only the prohibition of poultry with milk, which is a rabbinic prohibition. That’s the claim, and many later authorities (Acharonim) say this.

Now I ask: what is the connection between the prohibition of poultry with milk and “do not deviate”? After all, when Maimonides said that everything derives from “do not deviate,” he came to explain to me why I need to obey this at all. The Sages established that one should eat poultry with milk—why should I listen to them? I also decided that people should stand on one leg, so are you all standing on one leg now? Listen, anyone can decide all kinds of things—so what if the Sages decided? There has to be some delegation of authority from the Torah telling us that we must obey the Sages, right? And that’s what Maimonides says, which is why he uses the verse “do not deviate.” The verse “do not deviate” is what gives the Sages the power to establish law, and now I have to obey them, because I’m obligated to the Torah. The Torah is the word of God, and the Torah delegated authority to the Sages, and now what the Sages say is Torah-level. But if so, then when I ate poultry with milk, why didn’t I violate a Torah prohibition? After all, once the Torah delegated authority to the Sages, then when the Sages established that it’s forbidden to eat poultry with milk, that prohibition is really the Torah prohibition of “do not deviate.” So why, if I eat poultry with milk, did I not violate a Torah prohibition? Except only if I’m rebelling? Or alternatively, if when I ate poultry with milk without rebellion I did not violate a Torah prohibition, then why do I have to obey at all? If it derives from “do not deviate,” then I violated a Torah prohibition. If it does not derive from “do not deviate,” then why do I have to obey it at all? After all, the whole reason Maimonides brings “do not deviate” is to explain why one must obey rabbinic laws. The moment we make this distinction I just described, we gain nothing. Because if I violate “do not deviate,” then it’s Torah-level. If I don’t violate “do not deviate,” then you haven’t explained to me at all why I need to obey here. “Do not deviate” doesn’t apply to it, so why should I obey?

My claim—and this depends on how far one is willing to go with this pilpul, I don’t know how deeply I’ll get into it here—but my claim is that… just one second, before I forget, allow me, I’m just marking attendance, I always forget this at the end. Just a second. One second. Okay, all right. Sorry about that.

So what I actually want to argue is that there are several types of relationship between a result and the text. Exactly what I said about laws derived by midrashic interpretation, I now want to say about classical rabbinic laws, the kind Maimonides deals with in the first root. Nachmanides assumes that if I ate poultry with milk, then according to Maimonides I violated “do not deviate,” and seemingly he is right, because if “do not deviate” is the source obligating me to obey the Sages, then the moment I did not obey, I violated “do not deviate,” which is a Torah prohibition.

I’ll give an analogy so you can better understand what he is really saying. Suppose the Torah said, regarding vows, “he shall not profane his word.” Fine? So the Torah tells me that if I make a vow and then violate it, I have violated “he shall not profane his word”; I’ve violated a Torah prohibition. Of course, if I vowed not to eat a piece of bread, okay, it’s not that the Torah prohibited that bread—I prohibited it. But the Torah said that if I prohibit something, I may not violate that, and if I did violate it, I violated “he shall not profane his word.” So when I eat that piece, I violated the Torah prohibition of “he shall not profane his word.” Clearly, even a doubt in such a case would be treated stringently, right? It’s a Torah prohibition, even though the Torah never dreamed of prohibiting that bread—I prohibited it. But the Torah said that whatever I prohibit, I must obey.

Nachmanides understands the same thing regarding the connection between “do not deviate” and poultry with milk. “Do not deviate” is basically a general command saying that whatever the Sages say is binding. Now the Sages said not to eat poultry with milk; it’s a particular case, and therefore if I ate poultry with milk I violated “do not deviate,” just like “he shall not profane his word” with a vow, right? Same thing. Where does Maimonides disagree? After all, Maimonides says that’s not true, because otherwise everything would become Torah law. So why are these rabbinic laws? This is Nachmanides’ attack on Maimonides, and Maimonides disagrees with it.

I argue that Maimonides says about rabbinic laws the same thing I said earlier about laws derived from midrashic interpretations. Rabbinic laws branch out from the verse “do not deviate”; they are not a specification of it. These are two different types of relationship to the text. In vows, it’s a specification. What does that mean? The Torah said in general, “he shall not profane his word,” okay? But I spoke and said that this piece of bread is forbidden to me. That is a detail that in fact realizes the general prohibition the Torah established. When I eat it, I have actually committed the prohibition of a vow. Likewise, if someone else vowed not to benefit from some house, I don’t know, some house, and then he entered the house, then he too violated “he shall not profane his word,” because this is another particular case in which that general rule the Torah prohibited is realized—the general rule that one must obey what one prohibited upon oneself. Okay? There is a general rule and particulars that are particulars within the rule—what we previously called deduction. Deduction: all human beings are mortal, Socrates is a human being, conclusion: Socrates is mortal. Right? Meaning, it’s a detail within… deduction is specification. I derive a conclusion from the general to a particular included within it; it’s a necessary conclusion. Okay? It’s simply an application of the general rule. The same thing with the understanding of vows. Vows say that whatever you vow, you are obligated to obey. In particular, if you vowed concerning some piece of bread, then that is one of the examples you must obey. Right? It’s one example within the general rule the Torah states.

Nachmanides understands that “do not deviate” works the same way. “Do not deviate” is a general statement: whatever the Sages establish must be obeyed. The Sages established poultry with milk as forbidden, which is a specific case, so this is a specific case in which the general rule the Torah established is specified. That’s what I call specification. Okay? Specification means that the Torah established a rule, and every concrete case that comes before me, which is simply an expression of that rule, then of course I violated the prohibition the Torah established. Right? That is what’s called specification.

I claim that with “do not deviate,” Maimonides learns it differently: this is branching, not specification. If you violate the prohibition of poultry with milk, you did not violate “do not deviate.” “Do not deviate” teaches that there is something wrong with eating poultry with milk, but it is not true that if you ate poultry with milk, you violated “do not deviate.” The connection between poultry with milk and “do not deviate” is not a relationship of one; it is a relationship of 0.7. There are different levels of connection between the law and the text from which that law derives. Okay? And those levels of connection determine, as we saw regarding midrashic interpretations, the severity of the matter. In rabbinic law, the connection between the law and “do not deviate” is not a full connection. This is not deduction; it is not specification. It is a weaker connection, and therefore it is a rabbinic law.

How is this built? I once thought to explain it like this. You know the Winnie-the-Pooh stories—are you familiar with Winnie-the-Pooh? By Milne. So Pooh there comes to Piglet’s little house, and there’s a sign above the hut: “Trespassers Will Be Prosecuted.” Okay? What does that mean, “Trespassers Will Be Prosecuted”? But who is a trespasser? What law is there that if you don’t keep it, you’re a trespasser? It’s not specified anywhere. It just says “Trespassers Will Be Prosecuted” without saying what law this refers to. My claim is that according to Maimonides, “do not deviate” is exactly the same thing.

In Maimonides, it says: “do not deviate from all that they instruct you.” What does that mean? The Sages have authority. If I eat poultry with milk out of a refusal in principle to recognize the authority of the Sages, then I violated the Torah prohibition. Because I did not recognize their authority in principle, and that is what the Torah said—that one must recognize their authority. So here I really violated what the Torah said. That is the Torah prohibition.

But now I ask you something else. If indeed, when I ate poultry with milk—not out of disobedience to the Sages—I would not be violating any prohibition at all, then what authority do the Sages have? Everything they say I can just ignore with no problem, right? As long as I accept their authority in principle. So I won’t read the Megillah on Purim, I’ll eat poultry with milk, I’ll violate all the rabbinic prohibitions you want, I won’t fulfill the rabbinic commandments—but all while recognizing their authority. Okay? Then I did not violate the Torah-level “do not deviate,” because I did not do it out of rebellion against their fundamental authority. So is that permitted? I’m now speaking in a world with no rabbinic enactments, only Torah law for the moment. Okay? Is what I just did permitted? It can’t be permitted. Because if it were permitted, then “do not deviate” would become like Pooh’s sign, “Trespassers Will Be Prosecuted.” It would establish a prohibition with no content at all. Because everything the Sages say I’m allowed not to obey, as long as in principle I accept their authority. So what does it mean to accept their authority in principle if I’m allowed to violate every command of theirs? What kind of acceptance is that? What does it even mean? That obviously can’t be.

From here we learn that anyone who violates a rabbinic prohibition clearly did something problematic. He violated a prohibition. It’s not that he violated “do not deviate.” Yes—it’s not that he violated “do not deviate.” He did not violate “do not deviate.” But the verse “do not deviate” reveals to me that even if I violate poultry with milk not out of a principled refusal to recognize the authority of the Sages, but simply because of an evil inclination, it still must be a forbidden act. Because if it were not a forbidden act, then the verse “do not deviate” itself would lose its content.

So look, there’s a balancing act going on here. On the one hand I say that the verse “do not deviate” is the source that teaches me that eating poultry with milk is forbidden. On the other hand, this is not specification. It is not that if I ate poultry with milk I violated “do not deviate.” No, I didn’t. You violate “do not deviate” only if you rebel in principle against the authority of the Sages. But if I ate poultry with milk simply because I had an evil inclination, I did not violate “do not deviate,” but I did violate a prohibition. How do I know that? Because if there were no prohibition, then the verse “do not deviate” would be emptied of content. Meaning, the verse “do not deviate” revealed to me the existence of another halakhic category. It does not command it; it reveals its very existence. Therefore from here the rabbinic prohibition emerges according to Maimonides. Someone who ate poultry with milk violated a rabbinic prohibition; he did not violate “do not deviate,” because it derives from “do not deviate,” it branches from “do not deviate,” but it is not a specification of “do not deviate.” It is not that when you violate this, you violated “do not deviate.” Rather, from the very existence of the verse “do not deviate” I can infer a conclusion, as in a midrashic interpretation. I can infer the conclusion that there cannot be such a verse without some binding force in its command. What is Pooh’s “Trespassers Will Be Prosecuted”? That can’t be. Therefore it is clear to me—I can prove from the existence of the verse—that it is forbidden to do all the acts that are rabbinic prohibitions. But these are rabbinic prohibitions. It is not that I violate “do not deviate.” “Do not deviate” only proves the existence of these prohibitions; it does not command them. What it commands is only not to rebel in principle against the authority of the Sages. Whoever does that violates the Torah-level “do not deviate.” Okay?

This is a bit tricky, but I think there is a structure here very similar to what we saw in laws derived from midrashic interpretations. Because here too something derives from the verse, but it is not really the content of the verse itself. Rather, I can learn through a process like a midrashic derivation that from this verse I actually learn that there is a halakhic category called rabbinic prohibitions. And therefore I must obey it, because from the verse one can infer the existence of such a category. That’s why I obey—not because the verse commands it. It does not command it. In order to violate the verse, I have to eat poultry with milk while rebelling against the basic authority of the Sages. But from the logical argument I made earlier, which is a kind of midrash, I learn that there cannot be such a command of “do not deviate” if the acts themselves are permitted to me, as long as I recognize in principle the authority of the Sages. I recognize in principle the authority of the Sages but do nothing they said. Is that called recognizing their authority? What does that acceptance mean? What is it saying? That obviously can’t be. There cannot be a prohibition instructing me to recognize the authority of the Sages without also forbidding me to do the acts themselves. “As for the acts themselves, do whatever you want.” We learn from the Torah that there is such a thing as a rabbinic prohibition. It is not an invention of the Sages. From this logical argument it follows that there is a category called rabbinic laws. And that category branches out from the verse “do not deviate”; it is not a specification of it. It is not the same thing as specific vows in relation to the general prohibition of “he shall not profane his word.” Here it is branching, not specification, not deduction. It is analogy, an expansive line of reasoning. Okay?

I want to finish with one more point that is really current. Actually—maybe before I get to that point—just to place this in context. In fact, the picture I described here, if you remember, in one of the previous classes I distinguished between two roles of the Sages when they legislate and when they interpret. When they legislate a new law, that is rabbinic law—decrees, enactments, and so on. When they interpret the Torah, the product is Torah law. What happens when they expound? When they expound, that is something between legislation and interpretation, right? Because legislation does not need a text at all. They decide that in their view this is proper, so they establish that law. It is a binding law. They don’t need a verse, don’t need to rely on a verse, nothing. That is called legislation. Interpretation is when they uncover something written in the verse. Midrashic derivation is half legislation and half interpretation. Right? Because midrashic derivation tells me: I derive this from the verse, but I cannot say that this is what the verse means. Exactly as we just saw now regarding rabbinic laws in relation to “do not deviate.” So it’s the same with laws derived through midrashic interpretation in relation to verses. I derive it from the spirit of the verse; it is connected to the verse; it doesn’t simply come from my own reasoning. I am not functioning here as a legislator; I am functioning as an interpreter. But it is not an interpreter who exposes what is inside the law; rather, he expands the law beyond what is in the law. So there is nourishment from the law, but there is also added value coming from the interpreter himself. It’s not that this is what is written in the law.

If this reminds you of something about current disputes in the State of Israel today—these very days there are also such disputes. These are disputes about what is called judicial legislation. Usually in the legal world they distinguish between legislator and interpreter. The legislator is the Knesset. Only it can establish laws, or someone authorized by it. A ministry director-general can issue regulations in his domain, it doesn’t matter, or a minister can issue regulations in his domain. Why? Because the Knesset authorized him. The Knesset is the legislative institution, or whoever acts by its power. What is the role of judges? Judges cannot legislate. Judges are interpreters of the law. A case comes before them, and they rule on it according to the law established by the Knesset. Therefore, in the basic conceptual definition, there is a very sharp distinction. The Knesset establishes the laws, and the judges apply them. Judges can function only as interpreters; they cannot function as legislators. If a judge decides on a new law, he has exceeded his authority. He cannot establish a new law.

Now many judges—and Aharon Barak is the most prominent among them—argue that this dichotomous division does not hold water. There are intermediate levels between legislation and interpretation. There are situations where the judge sees that the spirit of the law actually requires forbidding what is before him as well. I can’t say that the legislator explicitly forbade it, but on the other hand what the legislator said requires interpretation. And in that interpretation maybe I think one way and my fellow judge thinks another way, but there’s no choice—the legislator did not state his position on this case. Some interpretation has to be made, sometimes broad interpretation, sometimes narrow interpretation. But there is interpretation here, and into that interpretation enters the judge’s reasoning. So people accuse the judge: “You actually created a new law here, you set aside the existing law. You decided, based on your own reasoning, on a new law.” What do you mean? You’re exceeding your authority. The legislator is only the Knesset. You can’t determine things that are new laws; you can interpret the laws.

Yes? This whole discussion around Bibi and the new coalition, all of it revolves around this issue. The question is whether the court here is acting as an interpreter or as a legislator. If the court had decided to disqualify Bibi, the big claim of those who criticized it would have been that the court here was acting as a legislator and not as an interpreter. Because according to the law, even if he has an indictment, a prime minister is allowed to remain in office. So how can the court decide otherwise? By contrast, the left, which asked the court to do this, was essentially claiming that the court can do it. Why? They know the law too. They claim that the court can engage in judicial legislation, can make an interpretive expansion of the law where there are rules that qualify this, but in principle—even though this comes from the judges’ own reasoning, and it’s not written in the law—it is still an expansion of the law that is binding, even though the one who made it is not the legislator but the interpreter. That is the dispute about interpretive legislation, and it is a difficult dispute, and it usually gets conducted as though it were black and white: either you are a legislator or you are an interpreter.

And therefore many of the critics on the right do not understand the left that asks the court to legislate. But that is a mistake. There is no such thing—this black-and-white division does not exist. There is no interpretation of law in the world that does not contain at least something from the interpreter himself, from the judge, from the judge’s reasoning. Yes, there are dozens of examples of this. The supermarkets case in the High Court, right? There Miriam Naor, who was then the president of the court—when she retired she read out the ruling in the supermarkets case, opening supermarkets on the Sabbath. Her opening sentence when she read out the ruling was that this ruling is legal and objective, unrelated to worldviews. Do you know what happened at the end? At the end, at the bottom of the ruling, there were five judges: three secular and two religious. The three secular judges ruled that supermarkets may be opened, and the two religious judges ruled that they may not. By the way, the same thing with Hendel’s ruling just now—what was it? Leavened food, bringing leavened food into hospitals. There was a panel of two secular judges and one religious judge, Neil Hendel. What do you think happened there? The two secular judges said to allow leavened food into the hospital, and the religious judge said not to allow it. Now by the way, in that ruling I support the secular judges; I think people should not be coerced. But just notice the correlation. The secular judge rules as you would expect of a secular judge; the religious judge—and I assume they are all professionals. What does that mean? It means that Miriam Naor is talking nonsense. There is no such thing, in these cases, as a legal objective ruling independent of worldview; it depends on the judge’s worldview.

On the other hand, assuming they are good professionals, then I assume they are all making legitimate interpretations of the law. I don’t assume any of them is simply lying. Okay? Which means that clearly the law cannot stand on its own. The interpreter always brings in something from his worldview, from his understanding, from his moral and logical intuitions and whatever else you want, when he interprets the law. And you can always accuse him: wait, you’re not authorized—you’re only supposed to tell me what is written in the law. If you add something, make an interpretation that depends on your own reasoning, you have no authority to do that. Anyone who only says what is written in the law without any interpretation of his own can keep silent from now until the end of his days. There is no such interpretation. Every interpretation has some subjective element of the judge in it. There is no completely objective interpretation. Therefore it is demagoguery to say that judges cannot legislate and can only interpret. The question of how far this goes is a good question, because there is a continuum, as we saw also in Jewish law, and that continuum is the continuum of judicial legislation. That is exactly what the Sages are doing there. When they make a midrashic derivation, that is judicial legislation that is very close to the spirit of the basic law; it is almost Torah-level, it is the most severe. When they make a rabbinic law that has a textual support, then they are already making legislation that is farther from the law; they are doing more far-reaching judicial legislation. When they make rabbinic enactments and decrees, there they are legislating completely. That is something only the Knesset can do. There they function in their role as legislators, not in their role as interpreters.

And the same is true regarding our subject. People think there is a dispute over whether judicial legislation is possible. There is no dispute about that. Every judicial interpretation is judicial legislation in a certain sense. You can argue about how close it is to the law, how much of it comes from the judge and how much of it comes from the law itself, and draw boundaries as to where it is reasonable to do this and where it is not. But those are boundaries one can argue about within the gray area. It is not a black-and-white question.

And this follows from the analysis we have done here in this series. Here I tried to show that when I interpret a text, that does not necessarily mean that I have uncovered what is inside the text. Maimonides can certainly say that it may be that I expanded the text beyond itself, and sometimes I expanded it a lot and then it will be fully rabbinic with a textual support, and sometimes I expanded it just a little and stayed close to the text and then it will be a law derived from midrashic interpretation. But there are different levels of expansion, and those are different levels of legislation—judicial legislation. And there is no such thing as interpretation without introducing anything at all from the interpreter. Plain, simple interpretation is always accepted; it is objective; it is obvious that this is what the Torah says. And there is a difference between what is written in the Torah—which the Sadducees also admit is written in the Torah, “you shall not plow with an ox and a donkey together”—and Torah-level laws that even Maimonides agrees are Torah-level, even though they are the result of plain interpretation, over which there can be disputes, but it is not midrashic exposition; it is Torah law.

Meaning, even in Maimonides’ categories, within Torah law there are also laws into which the Sages bring their own reasoning. As long as, after applying your reasoning, you understand that this is what the verse said, that is called Torah law. In a midrashic derivation, even I, the one making the derivation, do not claim that the result of the derivation is what the verse says. Therefore it is not Torah law. Do you understand the difference? Meaning, if I make a plain interpretation, even if someone argues with me, according to my own view I claim that this is what the verse said. But he argues with me; he thinks the verse says something else. Therefore according to me it is Torah law, and according to him it is not, so we have a dispute. But in a midrashic derivation, even if I myself am making the derivation, I do not claim that the result of the derivation is written in the verse. Even I understand that I expanded the verse. Therefore even according to me it is not Torah law, not merely because there is disagreement about it. Meaning, plain interpretation is Torah law not because it contains no subjective element, but because even after the subjective element I still claim that in the final analysis I uncovered what the verse itself says. Therefore it is Torah law. Here I did not function as a legislator at all. By contrast, in a midrashic derivation, even I myself, who makes this derivation, understand that here I acted somewhat as a legislator and not only as an interpreter. And therefore according to Maimonides this is rabbinic teaching. This is exactly the dispute over judicial legislation. The dispute between Maimonides and Nachmanides in the second root, and also in the first root in my opinion, is simply the dispute over judicial legislation.

And anyone who wants to see these things in greater detail need only read my book The Spirit of the Law. What we did here was only to say, very briefly, what that book says. It’s a thick book. Okay? Fine, I’ll stop here, and I’ll send you the next topic already, but that will be a different topic. Okay? That’s it, thank you.

[Speaker C] Thank you very much. Thank you very much. May you merit commandments. Goodbye.