Authority and Change in Halakha, Lesson 4
This transcript was produced automatically using artificial intelligence. There may be inaccuracies in the transcribed content and in speaker identification.
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Table of Contents
- Authority in relation to facts and beliefs
- Authority over norms: obeying secular law and its justification
- Action versus factual basis in Jewish law: “a louse on the Sabbath” and the laws of doubt
- Public harm caused by obeying a norm based on mistaken facts
- Ashkenazim, Sephardim, Rema and the Mechaber: Sabbath law or the law of customs
- Authority to interpret and legislate: Sanhedrin, Torah-level law and rabbinic law
- Maimonides: “do not deviate” as the source of authority to interpret and legislate
- Nachmanides: the challenge from “in a rabbinic-level doubt one rules leniently” and the distinction between interpretation and legislation
- Attempts to reconcile Maimonides: “they said it and they said it” and treating Torah-level doubt stringency as rabbinic
- The Shema’ata: the distinction between doubt in reality and doubt in a halakhic dispute
- “A short blanket” and Nachmanides’ tangle: a binding source versus preserving rabbinic status
- Reasoning as Torah-level and the difficulty of grounding the authority of the Sages in it
- The force of reasoning: Shevut Yaakov and the continuum between strong and weak reasoning
- Side remarks: the Rogatchover’s writings, the Tzofnat Pa’neach Institute, and an encyclopedia of modes of reasoning
Summary
General Overview
The text argues that authority cannot obligate beliefs or factual determinations, only practical norms, because you cannot command a person to think something he is not convinced of. It justifies obedience to civil law even when one disagrees with its content, out of recognition of the legitimacy of the legal institution and the need for social order, while setting limits such as something being “manifestly illegal” and conscientious objection. It disputes the approach that obligates halakhic actions even when the factual basis is mistaken, and develops a fundamental dispute between Maimonides and Nachmanides about the source of the Sages’ authority to interpret and legislate: Maimonides grounds it in “do not deviate,” while Nachmanides objects that such authority would turn rabbinic law into Torah-level law and undermine the rule that in a rabbinic-level doubt one rules leniently. In the end, the claim of the “short blanket” is raised: according to Nachmanides there is no coherent source that on the one hand obligates obedience to enactments and on the other hand leaves them at rabbinic status, and the possibility of grounding this in reasoning is examined alongside the difficulty that reasoning is itself treated as Torah-level.
Authority in relation to facts and beliefs
The text states that authority is irrelevant to facts, because authority means an obligation to obey even without agreement, and you cannot force a person to hold an opinion he is not convinced of. It interprets Maimonides’ statement that matters not relevant to action are not subject to halakhic ruling not merely as “there is no point in ruling” but as “it is impossible to rule” in the authoritative sense. It argues that at most one can persuade through belief, for example by claiming that the Holy One, blessed be He, knows everything, but there is no meaning to a command such as “you must think this way” or to labels like “heretic” when the person is in fact unconvinced.
Authority over norms: obeying secular law and its justification
The text presents obedience to the laws of the Knesset as a model for recognizing authority even without agreement with the content of the law, not merely out of fear of punishment but out of a desire for a legal system that will prevent chaos. It rejects a conception that presents law as arbitrary force alone, and criticizes Haim Cohn’s statement in his book The Law that there is no “prohibition” against stealing, only punishment, because that portrays the law as a reality in which “it is permitted to steal and they’ll just punish me.” It argues that seeing law as mere force resembles the force exercised by a gang of robbers, whereas he relates to law as an institution that is fundamentally just, even if certain laws are not just. Therefore he also justifies punishment as something I “deserve” when I have committed an offense, such as running a red light at one in the morning. He parallels this to certain models in halakhic interpretation of monarchy that ground authority in power, and argues that authority begins with the justification for power, not with power itself.
Action versus factual basis in Jewish law: “a louse on the Sabbath” and the laws of doubt
The text distinguishes between an obligation to think and an obligation to act, and argues that a law that obligates belief, such as “this wall is black,” cannot be implemented, whereas a practical directive can be given even if there is dispute about the facts. It describes a common approach among halakhic decisors according to which even if the factual basis is mistaken, one must still obey on the practical level; for example, to permit “killing a louse on the Sabbath” because the Sages permitted it, while claiming that Jewish law demands actions, not facts, and no one is requiring a person to change his belief. He disputes this approach and argues that just as any ruling based on an incorrect fact is null, so too this permission is void, by analogy to a mistaken commercial transaction, because in his view if the Sages had known the reality they would not have permitted it. Therefore the enactment was “founded on error” and is invalid. But he defines this as a legal argument, not a logical contradiction in the view of those who disagree. He distinguishes between cases in which a halakhic rule is not really based on statistics, such as “fixed is considered half and half,” which he obeys specifically because it seems to him that the Sages themselves did not intend a statistical consideration but a legal or educational one, and cases of statistical or factual error, which he treats like ordinary error. He defines rules such as presumption and “a doubt does not override a certainty” as behavioral instructions for a state of doubt that do not depend on the facts themselves.
Public harm caused by obeying a norm based on mistaken facts
The text raises the question of what happens when insistence on a norm established on the basis of incorrect facts causes harm to an entire population. He says that in his view he would cancel the norm even without the harm, because it is not binding, but someone who thinks it is binding must decide how severe non-compliance is and whether that severity justifies harming others, and he defines this as a halakhic question that must be discussed on its own merits.
Ashkenazim, Sephardim, Rema and the Mechaber: Sabbath law or the law of customs
The text brings an example of a dispute between the Rema and the Shulchan Arukh in the laws of cooking on the Sabbath, and asks whether an Ashkenazi who follows the Mechaber is guilty of Sabbath desecration or only of violating the laws of communal custom and ethnic affiliation. It argues that one cannot say he desecrated the Sabbath “because according to my view that is what should be done on the Sabbath,” and therefore it seems that this is a violation of the laws of custom, not of the actual laws of the Sabbath. He emphasizes that the practical difference is major for the laws of doubt and for the severity of the offense. He explains that some treat the rule “Ashkenazim follow the Rema and Sephardim follow the Mechaber” as a ruling in the style of the Sanhedrin, to the point that deviating from it would become Sabbath desecration, and he rejects that by arguing that today there is no institution that decides Jewish law in the full sense, only at most “what the common practice in the world is,” and that in practice these are different communities that behave differently. He discusses the possibility of historically split rulings through examples like “in Rabbi Yosei’s place they ate chicken with milk” and through the disputes of Beit Shammai and Beit Hillel, and raises the question whether a split ruling can really be called a halakhic ruling or whether by virtue of its split character it becomes custom; against this it is argued that even when each side thinks its opinion should bind everyone, in practice two patterns of ruling still existed. He discusses claims such as communities being “coerced” in relation to those who rule differently, and compares this to someone who accepts a rabbi as an authority binding upon him on the level of accepting authority, not necessarily as a definition of Sabbath desecration.
Authority to interpret and legislate: Sanhedrin, Torah-level law and rabbinic law
The text presents halakhic authority as the authority to interpret and to legislate, where interpretation creates Torah-level laws and legislation creates rabbinic laws. He attributes to the conventional view the position that scriptural derivations produce Torah-level laws, and cites the Ritva as a source for this, with the reservation “except for Maimonides’ view.” He says that the accepted position is that this authority was given only to the Sanhedrin, “except for the Sefer HaChinukh’s view,” and defines this as the point of departure for understanding the mechanisms of authority.
Maimonides: “do not deviate” as the source of authority to interpret and legislate
The text attributes to Maimonides, in several places—in Sefer HaMitzvot, in the laws of rebels, and in the principles, principle one—the position that the source of authority to interpret and legislate is “do not deviate,” which includes both a positive commandment and a prohibition. It presents Maimonides as understanding “do not deviate” as a genuinely binding obligation and not a mere scriptural support, and brings proof from the fact that Maimonides explains why one is not flogged for violating “do not deviate” by saying that it is “a prohibition given as a warning for a death penalty administered by the religious court,” an explanation that would not fit if this were only a scriptural support.
Nachmanides: the challenge from “in a rabbinic-level doubt one rules leniently” and the distinction between interpretation and legislation
The text attributes to Nachmanides the claim that the authority to interpret is learned from “do not deviate,” but the authority to legislate cannot be learned from there, because then every rabbinic law would become Torah-level law through “do not deviate” and the distinction between rabbinic and Torah-level law would collapse. It presents Nachmanides’ challenge to Maimonides through the argument from doubt: if the obligation to obey decrees and enactments is Torah-level by virtue of “do not deviate,” then even a rabbinic-level doubt should be ruled stringently, contrary to the accepted rule that a rabbinic-level doubt is treated leniently. It notes that Nachmanides himself cites the Talmudic passage in tractate Sabbath about the Hanukkah lamp, which explains “and commanded us” as based on “do not deviate,” and answers that the verse is merely a scriptural support, while claiming that this still does not provide a real source of authority.
Attempts to reconcile Maimonides: “they said it and they said it” and treating Torah-level doubt stringency as rabbinic
The text presents ways to reconcile Maimonides so that even if everything derives from “do not deviate,” one can still understand why a rabbinic-level doubt is treated leniently, because the Sages themselves determine the rules of doubt. It brings Maimonides’ view that the rule “a Torah-level doubt is treated stringently” is itself a rabbinic rule, and explains that the practical difference may appear in a double doubt. It also presents an alternative formulation according to which the Sages can prohibit the certain case without prohibiting the doubtful one, because from the outset they could have chosen not to prohibit it at all. It notes that Nachmanides himself raises such a direction but dismisses it as “not plausible” without explaining why.
The Shema’ata: the distinction between doubt in reality and doubt in a halakhic dispute
The text cites Shema’ata Aleph as offering a possible reason to reject “they said it and they said it”: when the doubt is not in reality but in a halakhic dispute between opinions, every side that prohibits does so with certainty and does not permit a “doubt” within its own view. Therefore one cannot say that the rabbinic prohibition was originally formulated so that its doubtful case would be permitted. In response, it suggests a possible escape through a principled claim that the obligation of “do not deviate” applies only to legislation about which there is no dispute, so that dispute itself removes binding force; but this is presented as a strained solution, dependent on the assumption that the Sages established such a framework rule.
“A short blanket” and Nachmanides’ tangle: a binding source versus preserving rabbinic status
The text formulates a basic problem of a “short blanket”: if one finds a binding source for enactments, they become Torah-level; and if there is no binding source, there is no reason to obey them. He says that even before searching for a verse or a clear mechanism, it is obvious that there cannot be an answer that covers both requirements together. Therefore, Nachmanides seems to place himself in an insoluble problem. He cites Rabbi Elchanan in the booklet Divrei Sofrim in Kovetz Shiurim as deepening the difficulty and arguing that according to Nachmanides there can be no source in the form of any verse, because every verse would again create Torah-level force and bring back the problem of doubts, and rabbinic law also cannot justify itself, because the system cannot justify itself.
Reasoning as Torah-level and the difficulty of grounding the authority of the Sages in it
The text raises the possibility of reasoning as a source, but argues that reasoning is considered Torah-level based on passages in the Talmud such as “why do I need a verse? It is reasoning” in tractates Ketubot and Bava Kamma regarding “the mouth that prohibited is the mouth that permitted” and “the burden of proof lies on the one seeking to extract from another,” because if reasoning were rabbinic there would be no place for the question “why do I need a verse?” It mentions the dispute between the Pnei Yehoshua and the Tzelach regarding blessings over benefit and the question whether reasoning can ride on an existing commandment, and cites Rabbi Kasher at the beginning of Mefane’ach Tzefunot, in the booklet “Reasoning Is Torah-Level,” with proofs from the medieval authorities (Rishonim), including the Or Zarua. It notes an important limitation: reasoning is not a source for punishments, because “punishments are not imposed unless there is prior warning,” so even if reasoning is binding, one might not punish based on it. But he argues that the relevant problem here is the laws of doubt, and there reasoning obligates stringency, so grounding the authority of the Sages in reasoning also brings back Nachmanides’ challenge from “a rabbinic-level doubt is treated leniently.”
The force of reasoning: Shevut Yaakov and the continuum between strong and weak reasoning
The text cites the responsa Shevut Yaakov as distinguishing that not all reasoning has the same force: there is strong reasoning and weak reasoning, and therefore there is no absolute rule that “reasoning is Torah-level” always at the same level. It illustrates this through the concept of “an unusual manner” on the Sabbath: an extreme expansion of unusual manner to the point of absurdity, such as “standing on one leg,” is not accepted, because there is a continuum of levels of unusualness until the resemblance to the original act breaks down. He suggests an analogy that reasoning, too, moves along a continuum of strengths. He says that the reasoning for obeying the Sages seems to him to be strong reasoning, but returns to argue that Nachmanides is still stuck, because if this is strong reasoning then its doubtful case should be treated stringently, exactly as Nachmanides challenged Maimonides, and Nachmanides gives no answer to this and settles for saying it is merely a scriptural support.
Side remarks: the Rogatchover’s writings, the Tzofnat Pa’neach Institute, and an encyclopedia of modes of reasoning
The text recounts Rabbi Kasher and the rescue of the Rogatchover’s writings, the Rogatchover’s daughter’s trip to Europe in the 1930s to save manuscripts and the fact that she did not return, and that the manuscripts eventually reached the United States and led to the establishment of the Tzofnat Pa’neach Institute and the publication of the Rogatchover’s works on the Torah and on the Talmud. He uses this to present Mefane’ach Tzefunot as an attempt to collect and classify types of learned reasoning, and expresses frustration with the yeshiva world where “information doesn’t accumulate,” asking how one can build a classified “toolbox” for forms of reasoning such as object-status and person-status. He argues that it is difficult to classify reasoning systematically the way Maimonides or the Shulchan Arukh classify laws, and brings as a historical example the language of pilpul, with fixed names for patterns of reconciliation such as “Regensburger,” functioning as solution formulas.
Full Transcript
[Rabbi Michael Abraham] Okay, we’re in the topic of authority. I spoke a bit about how these things developed—both secular authority and religious authority. Last time I talked about authority regarding facts, and I argued that basically the very concept of authority can’t really be relevant to facts. Maimonides writes that matters that don’t pertain to action—there’s no halakhic ruling about them, no binding halakhic ruling. A lot of people understand that as meaning there’s no point in issuing a halakhic ruling, because it doesn’t give us some instruction we need to carry out. But I think it’s more than that. I mean, it’s impossible to issue a halakhic ruling. It’s impossible because to issue a halakhic ruling means basically to determine that this ruling has force, which means you have to obey it even if you don’t agree. That’s really what authority means. But you can’t force someone to think something he doesn’t think. It just—it can’t be done. If I’ve reached the conclusion that I don’t agree with something, you can’t tell me: yes, but you’re obligated to think that. I’m obligated—but that’s not what I think. Maybe I can say that I think it, but what I think is what I think, unless you persuade me. So if you persuade me, no problem. Tell me: the Holy One, blessed be He, knows everything, and He said that you’re wrong, the truth is this way and not that way—fine. If I have that faith, then I’m persuaded. But you can’t tell me that even though I’m not convinced, I still have to think that way because otherwise I’m a heretic, for example—statements of that kind. It has no meaning whatsoever. I mean, okay, fine, then I’m a heretic—so what can I do? Even if I really don’t want to be a heretic, if that’s what I think, that’s what I think. What good does it do to stick labels on it, one way or another? So that’s with regard to authority over facts.
[Speaker B] If you’ve already passed the stage where you say, okay, I’m a heretic, I don’t think that way—then what leads you to carry it out anyway?
[Rabbi Michael Abraham] No—what do you mean, carry it out?
[Speaker B] We’re not talking about an action—we’re talking about an instruction to do something, and nevertheless you comply.
[Rabbi Michael Abraham] Right, because I think I recognize the existence of authority. Say, like the Knesset—why do I obey laws I don’t agree with? In principle I’m supposed to do that. Why? I don’t agree with them. Because I recognize the authority of the Knesset. And is that mainly so as not to be punished?
[Speaker B] No, no, I don’t agree. Again—what does “don’t agree” mean?
[Rabbi Michael Abraham] For me, no. Meaning, I don’t think it’s correct. I think that in the end I do it because I really think I want there to be a legal system here, and I want citizens to obey the law—even at the price that sometimes the law isn’t right and isn’t just. Again, within limits.
[Speaker C] At night, at an intersection, with a red light, and there’s
[Rabbi Michael Abraham] no
[Speaker C] car, no chance there’s police there, absolutely nothing—do you stop or not?
[Rabbi Michael Abraham] No, you’ll say I stop because maybe there’s a camera. Fine, no.
[Speaker C] I know for certain there isn’t.
[Rabbi Michael Abraham] The point is that—it’s like what Haim Cohn writes in his book The Law. He says there’s no prohibition in Israeli law against stealing. It says that whoever steals is punished such-and-such, but it doesn’t say it’s forbidden to steal. I think at root that’s meant to clarify that the state can’t tell you what to do or not do. I’m a sovereign citizen, I do what I decide. The law tells its employees—judges, police officers, and so on—what to do; it’s their employer. In my view, that’s a naive conception.
[Speaker E] No, but criminal laws are also like that,
[Rabbi Michael Abraham] Yes, and they’re formulated that way too. Theft is just an example.
[Speaker E] They say whoever…
[Rabbi Michael Abraham] But I think that, in my opinion, that’s a mistaken view, because it basically presents law as something arbitrary. In other words, for me it really is permitted to steal; it’s just that the judge will punish me. So why am I supposed not to steal? Because I’m afraid of punishment? Not because there’s some real problem in it.
[Speaker B] And there are also other components—for example the moral components of…
[Rabbi Michael Abraham] Never mind, let’s not even talk about moral matters. There’s something in law beyond force—that’s the claim I disagree with. I mean, otherwise this would be the exercise of force by a gang of robbers. They also have force. Do you relate to a gang of robbers the same way you relate to law? I don’t. Maybe you do—again, everyone can decide whatever he decides—but I don’t relate to it that way. I relate to law as a just institution, meaning as an institution that—again, not every law is just—but as an institution, it is a just thing. There has to be law, and people have to obey it, otherwise there’ll be chaos. So yes, the price is that even if I don’t agree, I obey—again, within limits, yes, something manifestly illegal, or conscientious objection, or things like that. But in principle, the justification for the legislator and its agents to punish me is not only that they have power. In my opinion that’s a mistaken view. They punish me, and that’s good, because without it, truly, sometimes I won’t withstand it, others won’t withstand it, whatever. But fundamentally I think they’re also right. They punish me because I deserve punishment—that’s the point. And if I cut corners and run a red light on Shmuel there at one in the morning, then I know that if they catch me I’ll be punished, and I’ll also acknowledge that. I mean, I justify it. For all that I wanted to cut corners and get there fast and everything’s fine, at the same time I understand that if they catch me, I deserve punishment. And therefore I think that the formalists look at law like a gang of robbers. And it has power, like a king. Even models of monarchy—even in halakhic interpretation—there are models of monarchy where people say the king has power, he can kill you, he can do anything, so therefore he can also confiscate property, therefore he can do anything. It can’t start there. Meaning, it’s expressed in power, but first of all there is a justification for that power. In other words, you understand that without these institutions, people would swallow each other alive. And therefore, on a basic level, you grant them authority because they deserve it, because it’s just that they should have it. Okay? And then the price is that even if they aren’t right, there’s nothing to do—I accept upon myself to listen to them. I’ll try to change the law as much as I can. If I didn’t succeed, fine, I didn’t succeed, then I’ll obey even though I disagree. But all of that is about norms. If the law comes to obligate me to think something—not to do something, but to think something—that’s undefined. I mean, even if I really wanted to obey, I couldn’t obey. As long as they don’t persuade me, that’s not what I think. Suppose the law were to determine that this wall is black. Okay? Now if I think this wall is white, then I’m violating the law. Fine. So what am I supposed to do now? Say the wall is black? I can say it, but what I think, I know for myself. Maybe I’m wrong, but what I think is that this wall is white. So what good does that do? That law can’t be obeyed. Meaning, you can’t expect me to obey it, you can’t demand that I obey it, and it can’t be obeyed.
[Speaker B] And acting on that basis—that’s something else?
[Rabbi Michael Abraham] That’s something else.
[Speaker B] No, what you’re convinced of—I mean, you’re not convinced. Objectively this wall is white, not black, and then they come and tell you to do something.
[Rabbi Michael Abraham] Every white wall has to have a green flower painted on it. Okay? Now the question is—and I think this is a white wall—
[Speaker B] even though you know, because there are objective facts. Right, okay, that’s like the example you gave with the louse and everything.
[Rabbi Michael Abraham] Exactly. Here we start getting into the question, and on that most halakhic decisors say that still, on the practical level, you have to obey. Even though the factual basis is wrong, you still have to obey, because authority applies to norms. I don’t agree with that, but it is a consistent approach. I mean, you can’t say it’s absurd. You can say, look, it’s permitted to kill a louse on the Sabbath because the Sages permitted it, period—even though at the base of that permission lies a fact that in my opinion is not correct. Fine. They tell you: but Jewish law requires actions, not facts. Think whatever you really think—nobody is obligating you to think otherwise—but as for what you do, do what Jewish law says. I personally think that’s wrong, but again, I’m not saying it’s absurd, I mean logically impossible. I think it’s wrong because, like any other fact, like any other ruling based on an incorrect fact, this ruling too is invalid. It’s like a mistaken transaction. If the Sages had known that a louse was generated the way it actually is generated, they would not have permitted it. So it’s quite clear to me that their prohibition—or permission—was founded on error, and if so, it isn’t valid. But that’s a legal argument, not a logical one. In other words, someone who says otherwise is not in a logical contradiction. He isn’t. You can make such a demand. At the logical level it’s a coherent approach.
[Speaker F] What about the laws of doubt, where many of them are founded on a statistical understanding that today might be more advanced? For example, “fixed is considered half and half.”
[Rabbi Michael Abraham] “Fixed is considered half and half”—there specifically, I don’t think so. It’s so statistically wrong that in my opinion, even without being a modern statistician, anyone understands that it doesn’t work by statistical tests. I think the Sages understood that too. And specifically because of that, I do obey it. I obey it because it’s quite clear that something stood behind it that wasn’t a statistical consideration. It was a legal consideration, maybe an educational one, I don’t know exactly what. There are some suggestions, none of which I found really convincing. But it’s so incompatible with statistical thinking that you don’t need to be an expert—any child understands it.
[Speaker F] But if there were a statistical mistake?
[Rabbi Michael Abraham] If there were a statistical mistake, that’s the same as a factual mistake in every respect. I mean, that’s obvious.
[Speaker G] A child born in seven months, in nine, in eight?
[Rabbi Michael Abraham] Yes, for example, in things like that, it really could be.
[Speaker F] Or, say, “a doubt does not override a certainty,” for example?
[Rabbi Michael Abraham] What do you mean?
[Speaker F] To say that if you have doubt and certainty, then you remain with the certainty.
[Rabbi Michael Abraham] Yes, but what’s the question?
[Speaker F] I mean, seemingly that’s a doubt in statistics.
[Rabbi Michael Abraham] “A doubt does not override a certainty” is a halakhic rule. What’s bad about that rule? It’s a very sensible rule. Why don’t you agree with it?
[Speaker F] Meaning, you ignore the doubt completely?
[Rabbi Michael Abraham] What does it mean to ignore the doubt? I mean, I’m in doubt, and they tell me: even though you’re in doubt, this is what you need to do. Like the rule of presumption. The rule of presumption doesn’t say you’re not in doubt. It instructs you how to behave when you are in doubt. It’s purely behavioral teaching. Unless you show me that in such a case there really is no doubt, then we can argue whether one should obey the Sages or not. But assuming it is a doubt, the instruction of what to do in a state of doubt is a completely normative instruction. It has nothing to do with facts at all.
[Speaker B] And if carrying out the norm, when you know explicitly that it’s based on incorrect facts, causes harm to an entire population?
[Rabbi Michael Abraham] Certainly, yes indeed—that’s a big question. The halakhic decisor will have to consider whether he is certain enough that still the whole move…
[Speaker B] And you, as an individual, have no opinion on the matter? You just…
[Rabbi Michael Abraham] No—the halakhic decisor, the individual—it doesn’t matter. A person has to decide for himself what he thinks. I’m saying: I would cancel it even without the harm caused to others, because I think it’s wrong; it isn’t binding. But someone who does think it’s binding—and I said, that’s a coherent approach—someone who thinks it’s binding now has to decide for himself what the level of prohibition is if he doesn’t obey it. And then the question is whether that level of prohibition justifies harming others or not. A halakhic question that each time has to be discussed on its own merits. Maybe I’ll give an example to sharpen this. It’s commonly assumed in Jewish law that Ashkenazim are obligated by the rulings of the Rema, and Sephardim are obligated by the rulings of the Mechaber, the Shulchan Arukh. Okay? I don’t agree with that, but that’s the common assumption. Now I ask: suppose there is a dispute between the Rema and the Shulchan Arukh in the laws of cooking on the Sabbath. And I think like the Mechaber. I’m Ashkenazi. Now—and I acted like the Rema because I’m Ashkenazi, or I acted like the Mechaber because I think like him, it doesn’t matter—suppose I acted like the Mechaber because I think like him, but I’m Ashkenazi. Now those who say that an Ashkenazi should follow the Rema—what are they claiming? That I violated the laws of the Sabbath, desecrated the Sabbath? Or that I violated the laws of customs? Meaning, that on the level of practical conduct an Ashkenazi is supposed to go after the Rema and a Sephardi after the Mechaber. So that—I didn’t do. But you can’t say I desecrated the Sabbath, because according to my view that’s what is correct to do on the Sabbath. That’s the same question. So in both cases, did I desecrate the Sabbath, or did I violate…
[Speaker C] an instruction in the laws of customs?
[Rabbi Michael Abraham] Yes, the laws of customs. That the custom of Ashkenazim is to go with the Rema. So I’m saying, the practical difference is very large, because if you violate the laws of the Sabbath, that’s a death penalty, let’s say, if there are witnesses and warning. Or it’s a Torah-level doubt, and a Torah-level doubt is treated stringently. What happens if I’m in doubt about that law? If it’s a matter of custom, then it’s a doubt about custom. But if it’s a matter of the laws of the Sabbath, then a Torah-level doubt is treated stringently, so you have to be strict. Right? There are all kinds of implications here. I think it’s the second, not the first. Meaning, this is the laws of custom, not the laws of the Sabbath. That’s how it seems to me. Simple reasoning tells me that. I don’t know—I don’t have…
[Speaker H] It seems to me that in a case of doubt you could permit it even without that. Because even on the side that we rule like the Rema—whether because of communal identity or even because in practice all communities followed a certain side—that doesn’t completely cancel the ruling that was rejected. It still remains defined, at least on the face of it, as a doubt.
[Rabbi Michael Abraham] But there’s a Torah prohibition, and a Torah-level doubt is treated stringently. Why not?
[Speaker H] And then maybe, if there’s another doubt here, it would be a double doubt.
[Rabbi Michael Abraham] But it’s not a double doubt, because Jewish law has already been decided. If it hadn’t been decided, then even out of doubt I’d have to be strict. So there—but if there were doubt, then it would be a double doubt. But if the first doubt has been decided, then that’s not really a doubt; plainly it’s just one doubt. Now—
[Speaker B] Would you have come on Yom Kippur with your walking stick and your money pouch to Rabbi Yehoshua?
[Rabbi Michael Abraham] That’s not an example at all, because there the president of the Sanhedrin has mandatory authority. In setting the calendar, it says, “These are the appointed times of the Lord, which you shall proclaim,” meaning, “you”—even if mistaken, even if deliberate. Meaning, whatever the president of the Sanhedrin determines is binding—that is the calendar. Meaning, even if he made a mistake. So there that demand was entirely justified. And that’s why when people bring the case of Rabbi Yehoshua, who came with his stick and his pouch, and Rabban Gamliel himself praises him—“Peace upon you, my rabbi and my student”—but really there it’s no great novelty. It’s simple there, because whatever the president of the Sanhedrin determines is the calendar. That’s not the same as every halakhic issue. Fine—but if Rabbi Yehoshua disputed that point too, then you’re right. But if Rabbi Yehoshua accepted that the president of the Sanhedrin is the one who determines it, he argued with him about whether it was correct, he tried to persuade him not to set it that way, but he also accepted that whatever the president of the Sanhedrin determines is binding. Assuming that is so, there’s nothing so remarkable about it. That’s what he was supposed to do.
[Speaker E] It’s interesting whether there’s something here that distinguishes between the Rema and the Mechaber. What do you mean? I mean, this isn’t the same Torah? I mean, here it’s Sabbath desecration and here it isn’t?
[Speaker C] Disputes.
[Rabbi Michael Abraham] There are disputes about everything.
[Speaker E] Yes, true. Right, but if you act like the other one? You say there’s someone to rely on.
[Rabbi Michael Abraham] So I’m saying again—
[Speaker E] It depends on what.
[Rabbi Michael Abraham] If Jewish law were decided in the Sanhedrin like one of the sides. More than that, the other opinions wouldn’t be persuaded either; they’d remain in their position, fine. But the ruling is a ruling. The problem today is that there’s no institution that can decide Jewish law. So the question is how you relate to this rule that people commonly say, that Ashkenazim follow the Rema and Sephardim follow the Mechaber. There are people who relate to that as if it were a ruling of the Sanhedrin. In other words, now that you go by the Rema, if you didn’t do that you desecrated the Sabbath. I think that’s wrong. Again, if there were a Sanhedrin that ruled like him, then yes, obviously. But since today there is no Sanhedrin and no halakhic ruling in the original, full sense of the term—there is halakhic ruling in some sense of “what the common sugya of the world is,” what the world…
[Speaker C] And more than that, it isn’t really a halakhic ruling about whether the Rema is right or whether the Shulchan Arukh is right. Rather, there are Jews who do it this way and Jews who… and each group of Jews… so…
[Rabbi Michael Abraham] Yes, but a ruling can follow the majority. That doesn’t mean the majority is right—the majority determines. And there it isn’t necessarily about truth.
[Speaker C] No, but it’s obvious that someone who acts like the Shulchan Arukh did not desecrate the Sabbath, and someone who acts like—well, the reverse—but like the Rema also did not desecrate the Sabbath.
[Rabbi Michael Abraham] Why is that obvious?
[Speaker C] No, because that’s it—an Ashkenazi follows the Rema.
[Rabbi Michael Abraham] An Ashkenazi? Fine—and a Sephardi who acts like the Rema? Maybe he did desecrate the Sabbath. That’s the question.
[Speaker C] No, that’s a question, but obviously in the end the law is for all… there isn’t one law for type-A Jews and another law for type-B Jews.
[Rabbi Michael Abraham] Of course—
[Speaker E] there is, that’s—
[Rabbi Michael Abraham] Their claim is that there is.
[Speaker C] Two Torahs, two Torahs, two decisors who rule… yes, but that’s not like something under dispute where Jewish law was then decided.
[Rabbi Michael Abraham] Clearly. But I’m saying that those who claim the laws of custom bind you and turn this into Sabbath desecration—not a violation of customs—they claim that the Sephardic ruling like the Shulchan Arukh is like the Sanhedrin. The claim is that now you are bound by the rulings of the Shulchan Arukh.
[Speaker C] No, then that would bind all Jews.
[Rabbi Michael Abraham] No, no, only Sephardim, because Jewish law was decided that Sephardim should act this way and Ashkenazim that way. Suppose the Sanhedrin had ruled that way, theoretically, okay? That Sephardim should act this way and Ashkenazim that way.
[Speaker C] We get this throughout the Mishnah, Talmud, and so on—that they ruled one way for type-A Jews… where? It says that in Rabbi Yosei’s place they ate chicken with milk.
[Rabbi Michael Abraham] That’s what it says. I don’t know whether that was a decision—
[Speaker E] of the Sanhedrin or not, but in his time there was a dispute among tannaim, and one followed one tanna.
[Rabbi Michael Abraham] No, that certainly existed. No, that certainly existed—“in Rabbi Yosei’s place they ate chicken with milk”—but the question is whether there was a split Sanhedrin ruling. That I don’t know of.
[Speaker E] Today it’s obvious there is no Sanhedrin ruling.
[Rabbi Michael Abraham] No, but when there was a Sanhedrin—he’s saying that if when there was a Sanhedrin there was no split ruling, then today too, even if you treat this as though it were really a halakhic ruling, how can it be a split ruling? If it’s split, that means it isn’t a ruling. Right, you can’t compare it to the Sanhedrin.
[Speaker D] Meaning, if someone travels to South America, would he have a problem with the prohibition of the new grain?
[Rabbi Michael Abraham] What do you mean?
[Speaker D] Because for Ashkenazim… for Sephardim, if I’m not mistaken, it’s a Torah prohibition? No, fine, it’s the same question. There’s one position that you need to get to.
[Rabbi Michael Abraham] There’s the same question when there is a dispute among halakhic decisors, where it’s already Torah-level as opposed to… there are many disputes among halakhic decisors about Torah-level law.
[Speaker E] What do we think—that this is custom?
[Rabbi Michael Abraham] Yes, okay.
[Speaker C] No, but when I say that, I mean it shows that this…
[Speaker E] to treat…
[Speaker C] as custom and not as…
[Rabbi Michael Abraham] Yes, the very fact that it’s split—and because we haven’t found… I’m not sure that’s such a crushing argument, because the Sanhedrin, as we said, was a body for all the Jewish people, and therefore naturally there were no split rulings there. That doesn’t mean such an institution couldn’t exist in principle; rather, in the Sanhedrin it didn’t happen because there was one institution responsible for the entire public. The public was one unit, and whatever the Sanhedrin decided bound everyone. So why would they set something split? They simply didn’t… they didn’t see fit to do that. But that doesn’t mean they couldn’t. Meaning, suppose they had decided to do it after all—you’re claiming they couldn’t, that they had no authority to do that. About that I’m not so sure.
[Speaker E] There were towns where in this town they practiced one way and in another town…
[Rabbi Michael Abraham] No, again, customs certainly can be split. The question is whether there is a halakhic ruling that is split. Meaning, either anything split is by definition not a halakhic ruling but only custom, say…
[Speaker C] A ruling that is split between type-A Jews and type-B Jews. Yes, yes, I think by definition that cannot be.
[Rabbi Michael Abraham] Look, say in the period of Beit Shammai and Beit Hillel, okay? There was a dispute. It wasn’t decided in the Sanhedrin because they didn’t succeed in reaching a decision.
[Speaker C] If someone in a Beit Hillel community acted like Beit Shammai, then what?
[Rabbi Michael Abraham] I don’t know. There are places where it says they married one another, right? And in other places it says in the Jerusalem Talmud that they would kill one another. Kill means there are Sabbath desecrators here according to
[Speaker C] the opinion of the religious court…
[Rabbi Michael Abraham] No, they killed them. There was no religious court, because the court of Beit Shammai wasn’t accepted by Beit Hillel and vice versa. They killed them because they desecrated the Sabbath.
[Speaker C] What’s the claim here? There, their claim was that Beit Shammai—what they say binds everyone, right? Right. And Beit Hillel said that they bind everyone. Right. But here we’re saying something else. What the Shulchan Arukh says is binding—
[Rabbi Michael Abraham] No, no, no. I understand the distinction, but I’m still saying that your proof—that there cannot be a split ruling—I’m not sure it’s correct. Maybe. He’s not sure. Because it could be that in the period of Beit Shammai and Beit Hillel, with all the differences involved, Beit Shammai think this is right for everyone and Beit Hillel think this is right for everyone, but still in practice Beit Shammai acted this way and Beit Hillel acted that way. So now—is that Jewish law or not Jewish law? One step further, I’ll say: okay, and what if Beit Shammai themselves say, we will do it this way, but you, Beit Hillel, should do it differently?
[Speaker C] Then why did they kill each other? Today the Sephardim accept that the Ashkenazim should
[Rabbi Michael Abraham] follow the Rema,
ema,
[Speaker C] And the Ashkenazim accept that the Sephardim need to act this way—they accept that they need to act that way. Okay, this wasn’t Beit Shammai and Beit Hillel.
[Rabbi Michael Abraham] First, first, it could be that if you ask people, in certain places they won’t accept it. Second, I accept the distinction—I said that earlier too. I’m only claiming that I’m bringing an example that’s weaker, but still an example that contradicts this conception that something split cannot be Jewish law. Something split of the kind where each side thinks what it says is correct for everyone—that can still be Jewish law. On that we agree. Okay, now I’m taking one further step. I accept the distinction—that maybe even when each one says what’s right for me is right for me and for you something else is right, maybe even that can be considered Jewish law? I don’t know; I think in principle it can’t.
[Speaker C] There was no ruling
[Rabbi Michael Abraham] split between the Land of Israel and Babylonia, for example? At the root, everything that was…
[Speaker C] No, there’s a matter of laws,
[Rabbi Michael Abraham] There is a ruling that ordination exists only in the Land of Israel, but everyone agreed to that, everyone agreed.
[Speaker C] There isn’t, that’s not…
[Speaker E] No, but like you just said, that’s self-contradictory. What? Self-contradictory.
[Rabbi Michael Abraham] No, it’s not self-contradictory. You rule that you need to do this and you need to do this—in principle that could be. I’m saying again, I’m not sure, I don’t have a clear position, but I’m not one hundred percent sure.
[Speaker I] That’s an interesting question.
[Rabbi Michael Abraham] What would happen if—you’re claiming that if the Sanhedrin sat, an ordained Sanhedrin sat and said the northern hemisphere has to do this and the southern hemisphere has to do that? And if someone in the northern hemisphere does it that way, he’s liable to death?
[Speaker C] I’m claiming the Sanhedrin would never rule such a thing.
[Rabbi Michael Abraham] Fine, but if it did rule that.
[Speaker C] Okay, so is that authorized or not? If the Sanhedrin rules that from today one must
[Rabbi Michael Abraham] desecrate the Sabbath, is that authorized or unauthorized? Is it valid or not valid? That’s what I’m asking.
[Speaker C] The Torah is nullified; the Sanhedrin ruled.
[Rabbi Michael Abraham] No, the Torah is nullified, but that’s not a ruling that the Torah is nullified. You’re bringing extreme examples; I’m not talking about the extreme examples.
[Speaker E] Like changing the thirty-nine categories of labor?
[Speaker C] Fine, but that’s for everyone.
[Speaker E] For everyone? But suddenly what was forbidden becomes permitted—they make
[Speaker C] an interpretation, they make an interpretation, and that’s fine.
[Speaker E] And what about one strict kosher certification and another strict kosher certification? Meaning, someone who doesn’t go with…
[Speaker C] Those are stringencies, those are stringencies.
[Speaker E] That’s not even law.
[Speaker C] I’m stricter.
[Speaker E] There are
[Rabbi Michael Abraham] rulings about towns adjacent to the border, for example. So you’ll say that’s because of circumstances. Fine, Ashkenazim and Sephardim are also circumstances. Someone who lives in a Sephardic community is in different circumstances from someone who lives in an Ashkenazic community. You can also relate to that as circumstances.
[Speaker C] Ashkenazim are not going to kill those who eat glatt, and Sephardim are not going to kill those who don’t eat it. And if they did?
[Rabbi Michael Abraham] But they
[Speaker I] explicitly think it’s a halakhic / of Jewish law mistake.
[Rabbi Michael Abraham] So you wouldn’t agree with them.
[Speaker I] They don’t think it’s a stringency.
[Speaker C] They think it’s a halakhic / of Jewish law mistake.
[Rabbi Michael Abraham] But don’t they think Ashkenazim should eat glatt?
[Speaker C] No, they do think so.
[Rabbi Michael Abraham] They do think so. They only say… they do think so.
[Speaker C] They think Ashkenazim too need to eat it; they’re just mistaken.
[Rabbi Michael Abraham] No, that’s something else. Exactly, no.
[Speaker C] Why is that something else? It’s the same dispute.
[Rabbi Michael Abraham] No, no, it’s the same thing. So Ashkenazim aren’t liable to death because they’re acting under compulsion? What can you do—their halakhic decisors are mistaken and are confusing them, so you can’t kill them because they’re acting under compulsion. But still they should eat glatt. Ask Rabbi Ovadia, for example—on many things he said that. But if an Ashkenazi became convinced… Ashkenazim are confused, okay, what can you do. The other side is the same. No, so what happens if an Ashkenazi became convinced and ate like… Did he commit a transgression? Who? An Ashkenazi? That’s what I’m saying. There are those who will tell you that the Ashkenazim are simply mistaken, that’s all. So they also wouldn’t kill the Ashkenazim because they’re mistaken, not because it isn’t Jewish law, but because when they violated the Jewish law they were acting under compulsion or unwittingly or something like that.
[Speaker E] What about the law of tithes?
[Speaker F] I don’t want to compare this to someone who accepts a rabbi upon himself.
[Rabbi Michael Abraham] So just as he accepts a rabbi upon himself, and that rabbi has authority over him, maybe one could also compare it to Ashkenazim having accepted the Rema upon themselves as a community. No, I understand, but even when someone accepts a rabbi upon himself, you can discuss what happens now. If his rabbi instructs him to act in a certain way on the Sabbath, but there are other rabbis or other opinions in Jewish law—when he doesn’t do it, did he desecrate the Sabbath, or did he violate… the acceptance of the rabbi that he made? Simply speaking, I think he violated—I don’t know exactly what that authority is, but never mind—he violated the rabbi’s authority. No, he didn’t desecrate the Sabbath. And from there I’d say the same thing. Interesting. Okay, so I want to move on. So really now I want to focus more on the mechanisms of authority themselves—where they come from, what their meaning is. As I said, authority is basically authority to interpret and to legislate. Authority to interpret—authority was given to the Sanhedrin, we said, aside from the Sefer HaChinukh’s view. But the accepted view is that authority was given only to the Sanhedrin, and the authority given to them is to interpret and to legislate. To interpret is basically to create Torah-level / of biblical origin laws—that is, interpretation or exegetical derivations, it doesn’t matter, aside from Maimonides’ view. But derivations, according to the accepted view, are Torah-level / of biblical origin law; that’s also what the Ritva writes. And to legislate is to produce rabbinic / of rabbinic origin laws. Fine, everyone agrees that the sages have authority to do these two things. The question is: where does the authority of the sages to do these two things come from? Maimonides’ view in several places—in the Book of Commandments, in the Laws of Rebels, and in the principles, in the first principle—is that the authority comes from “do not deviate.” There is a positive commandment and a prohibition; it doesn’t matter, we call it “do not deviate,” but there is both a positive commandment and a prohibition there. And that gives authority both to legislate and to interpret. Nachmanides argues that the authority to interpret is indeed learned from “do not deviate,” but the authority to legislate cannot be learned from “do not deviate.” Why? Because if it were learned from “do not deviate,” then every rabbinic / of rabbinic origin law would be a Torah-level / of biblical origin law. Because if when the sages enacted some law, then it’s a rabbinic / of rabbinic origin law, and the reason one must obey them is because of the prohibition of “do not deviate,” then if I’m in doubt whether this is poultry with milk and I ate it, then I violated “do not deviate,” which is a Torah-level prohibition. If it’s soy with milk, then there’s no problem. Okay, so basically I’m in a Torah-level doubt, not a rabbinic-level doubt. Nachmanides asks Maimonides: according to your view, even a rabbinic-level doubt should have to be treated stringently. That is Nachmanides’ claim, and therefore it is impossible that the authority to legislate, or the authority for rabbinic / of rabbinic origin laws—decrees, enactments, safeguards—comes from “do not deviate.” And that is Nachmanides’ argument.
[Speaker E] Because if not, then there’s no difference between rabbinic / of rabbinic origin and Torah-level / of biblical origin.
[Rabbi Michael Abraham] Exactly. There should have been no difference between rabbinic / of rabbinic origin laws and Torah-level / of biblical origin laws. That’s his argument against Maimonides.
[Speaker C] He said that rabbinic / of rabbinic origin laws wouldn’t be rabbinic / of rabbinic origin; they’d be Torah-level / of biblical origin.
[Rabbi Michael Abraham] The claim is that this
[Speaker F] in the Diaspora, that these are prohibitions whose doubt is treated leniently.
[Rabbi Michael Abraham] But then you need a source for that. Maybe there is a source there—an oral law given to Moses at Sinai regarding orlah or a mamzer. In the glosses? Yes, the glosses to the first principle, and also on the Torah in some place he writes this, and also, I think, in the Book of Commandments on the commandment of “do not deviate.” Now regarding Nachmanides’ argument against Maimonides, he himself already raises a possible answer—Nachmanides does—but he says one cannot say that, without explaining why one cannot say that. He says maybe “they said it and they said it.” What does “they said it and they said it” mean? Here one must distinguish. According to Maimonides, what are we actually asking? Why is a rabbinic-level doubt treated leniently? That’s the question. Because basically a rabbinic-level doubt is a doubt regarding the prohibition of “do not deviate,” so it should have to be treated stringently. But Maimonides’ view is that a Torah-level doubt is treated stringently—that itself is a rabbinic / of rabbinic origin law. That is Maimonides’ view. Meaning, the rule that a Torah-level doubt is treated stringently is itself a rabbinic / of rabbinic origin rule. Fine? So if that’s the case—no, no—the rule is that a Torah-level doubt is treated stringently, but the determination that one must go stringently is a rabbinic determination. One still has to go stringently; one also has to listen to rabbinic / of rabbinic origin law. But the fact that one has to go stringently—the practical difference will be in a double doubt. Meaning, if you have a doubt about a Torah-level doubt, then there are those who claim that this is the reason we are lenient in a double doubt according to Maimonides.
[Speaker C] Because it’s basically a rabbinic-level doubt.
[Rabbi Michael Abraham] There are those who say that’s so; there are those who say even in Maimonides that’s not true. In Rashba it’s certainly not true, but that’s the claim. But an ordinary simple doubt—for sure one goes stringently, and the obligation to go stringently is a rabbinic obligation. According to this, Nachmanides’ difficulty with Maimonides is not so difficult. Because if the rabbis are the ones who determined that one must go stringently in cases of doubt, then they can also determine that regarding “do not deviate,” regarding the prohibition of “do not deviate,” we do not say to go stringently, and therefore a rabbinic-level doubt is treated leniently. After all, they established the rule that a Torah-level doubt is treated stringently, so they can also qualify it. So even though every rabbinic / of rabbinic origin law is basically a Torah-level / of biblical origin law—violating it itself raises the concern that you are violating “do not deviate”—apparently I should have had to be stringent, but what I should have had
[Speaker I] to be stringent about is only a rabbinic / of rabbinic origin rule. Fine, but it doesn’t have to start from the fact that a Torah-level doubt is treated stringently. You can also start just like this: everything the sages say—the sages now say a certain law. Here, these are the details of the law, and one of the details of the law is that if you have a doubt, be lenient. So it’s lenient; go leniently.
[Rabbi Michael Abraham] So that’s a second formulation, and I completely agree. A second formulation can reconcile Maimonides without needing Maimonides’ view that a Torah-level doubt is treated stringently only rabbinically. One could say that a Torah-level doubt is treated stringently by Torah law, like Rashba’s view. Still, after all, the rabbis could have simply not forbidden poultry with milk, right? Then it would have been entirely permitted. Only after they forbade poultry with milk did it become forbidden, and then there is also “do not deviate.” So can’t they say: we forbid poultry with milk, but we don’t forbid its doubtful case? After all, they could have not forbidden it at all, so if they could have not forbidden it at all, then certainly they can forbid it in a certain way and say: we forbid it, but not its doubtful case. Therefore even if we say that a Torah-level doubt is treated stringently by Torah law, unlike Maimonides’ view, still Nachmanides’ difficulty is not so difficult. What raises the question even more is: then why does Nachmanides reject Maimonides’ view because of this difficulty? He himself notes this point. One could have said, “they said it and they said it,” but that isn’t plausible, and therefore he says it’s not correct. He doesn’t say why it isn’t plausible. In Shema’ata, in the first Shema’ata, he offers a suggestion for explaining why it isn’t plausible in Nachmanides’ eyes. He argues: what happens when there is doubt between two opinions? It’s not factual doubt, but halakhic / of Jewish law doubt, doubt between two opinions. In such a situation, let’s say there is, I don’t know, meat and milk, but one kind of meat—one says it is permitted with milk and one says it is forbidden to eat it with milk. A dispute over Torah law. Fine? Now, that one who says it is forbidden—
[Speaker D] The Sephardim forbid fish with milk.
[Rabbi Michael Abraham] Yes, but that’s not Torah-level / of biblical origin. I’m talking about a dispute over Torah law. Now, if I ask the one who forbids it, he’ll say it is definitely forbidden, not doubtfully forbidden. The one who disagrees with him disagrees, but he will say it is definitely forbidden. So he definitely says it is forbidden, and its doubtful case is also forbidden, right? And the one who permits says of course it is permitted, and its doubtful case is permitted too. Here you can no longer say that the one who forbade, forbade the definite case but not the doubtful one. In a case where you are uncertain about the facts—you don’t know whether it is meat with milk or not—then you tell me, fine… sorry, poultry with milk. Yes, poultry with milk. If you say it’s poultry with milk—sorry, if it’s a rabbinic-level doubt, not a Torah-level doubt. Sorry, you were right with the poultry… with the fish. The discussion was a rabbinic-level doubt. So there indeed I can say: if I don’t know whether it’s fish or not fish, fine? Then you tell me: since you are in doubt, even on the side that fish with milk is forbidden, doubtful fish was not forbidden. Even those who forbid do not forbid doubtful fish. They themselves say that in a case of doubt you can be lenient. Why? Because they themselves, when they forbid it, claim that it is only a rabbinic prohibition. So this we decreed and this we did not decree; we do not say that this is forbidden. But if the doubt is not factual doubt but legal doubt—there’s a dispute—not just legal doubt, it’s a personal doubt… meaning, there’s doubt between two halakhic decisors or two… two opinions, two schools of study, it doesn’t matter, Ashkenazim, Sephardim, whatever you want—whether this thing is forbidden or permitted. Then those who say it is forbidden say it is entirely forbidden, and its doubtful case is also forbidden, right? They did not permit it. And those who say it is permitted say that it and its doubtful case are both permitted. So it still remains a Torah-level doubt, and you should have had to go stringently. Here you can’t say, “they said it and they said it.” If it’s factual doubt, you say to me: whoever forbade, forbade—but not in the case of doubt. But here, whoever forbids, forbids entirely; the definite case he certainly forbade. The fact that you’re uncertain because there’s another halakhic decisor—so what? I forbade it with certainty. I am not permitting you to do it. So there is… and on the side that I’m right, you are violating “do not deviate.” You are essentially in a Torah-level doubt; you should have had to go stringently. That is what the Shema’ata argues. I don’t think that’s necessary; even that is not necessary. Why? Because after all, the entire force of the rabbis is basically established by the power of “do not deviate.” Fine? One could have said that those same sages who established that by the power of “do not deviate” there would be authority—and this is sages, the whole paradox we spoke about—by the power of “do not deviate” there is authority for the sages to legislate, they themselves also established that every such law is only a law when there is no dispute over it, or a law that is not doubtful. But another law is not included in “do not deviate.” We ourselves as sages determine that all future legislation involving a rabbinic prohibition—legislation, yes—if there is a dispute over it, it is not binding.
[Speaker H] If they established that, it’s like something strange.
[Rabbi Michael Abraham] Why? Because when they established that a rabbinic-level doubt is treated leniently, that’s what they said.
[Speaker H] But they established… maybe they interpreted “do not deviate.”
[Rabbi Michael Abraham] They didn’t interpret “do not deviate.” They said: every rabbinic piece of legislation is valid unless there is a dispute over it. If there is a dispute over it, then it is simply not valid. The Sanhedrin of that time said it is not valid.
[Speaker H] But why does that bind the Sanhedrin and the later sages because it’s a majority in number?
[Rabbi Michael Abraham] If they are not a Sanhedrin, yes, it binds—unless they change the rule itself that a rabbinic-level doubt is treated leniently, and then according to the rules for changing Jewish law maybe they can do that. But as long as it has not been changed, that is what this rule says.
[Speaker H] So that means this is basically an enactment?
[Rabbi Michael Abraham] Either an enactment or an interpretation of “do not deviate” or whatever you want to call it. Simply speaking, it seems more—it doesn’t look like an interpretation of “do not deviate”; it looks more like some kind of determination or instruction to future generations: know that every rabbinic ruling is valid only if there is no dispute over it. If there is a dispute over it, then it is not binding. Whoever wants may obey, but whoever does not obey has not violated “do not deviate.” Fine? And then of course it can still work out. But bottom line, Nachmanides does not accept Maimonides’ view because of this difficulty, and therefore he argues that “do not deviate” only gives the authority to legislate and not to interpret and not to legislate—sorry, yes. To resolve this difficulty on Maimonides, some wanted to argue that true, there is basically “do not deviate” here, but you are not really violating a Torah-level prohibition; rather it is somehow learned in some way from “do not deviate.” Nachmanides himself, by the way, somewhere in a note writes that “do not deviate” is merely a textual support, because he asks against himself: the Talmud in tractate Shabbat, in the passage about the Hanukkah lamp, asks there: we recite the blessing, “who sanctified us with His commandments and commanded us to light the Hanukkah lamp.” The Talmud asks: and where did He command us? After all, this is a rabbinic / of rabbinic origin law. And it answers: in “do not deviate.” So what do we see from the Talmud? That “do not deviate” also applies to legislation, not only to interpretation. Rabbinic / of rabbinic origin laws also emerge from “do not deviate.” Nachmanides himself notes this. Fine? So he says: no, this is merely a textual support. The verse is merely a textual support. So it is “do not deviate,” but you are not really violating a Torah-level prohibition. So maybe Maimonides too, when he says “do not deviate,” means merely a textual support, because he also agrees that a rabbinic-level doubt is treated leniently? Fine? But that can’t be, because Maimonides in the Laws of Rebels writes: why don’t we administer lashes for this prohibition of “do not deviate”? He says: because it is a prohibition given as a warning for an offense punishable by death by the religious court.
[Speaker C] And if it were just a textual support, then no, right?
[Rabbi Michael Abraham] And he says, why don’t we administer lashes for it? Because there is a rule in Jewish law that if there is a prohibition for which under certain possibilities or circumstances one is punished by death, then even in other circumstances where it would only be lashes, one does not receive lashes. I think—if I may suggest an idea—I don’t know, I haven’t found a source for this, but the logic behind it may say that since death pertains to this prohibition, the sages didn’t want to blur the force of the prohibition. Precisely because of that they say: don’t flog, don’t turn this into an ordinary prohibition. Know that this is a prohibition that can definitely lead to death, meaning this is something much more fundamental. And if you flog for it, the price will be that people will think, fine, it’s an ordinary prohibition, it’s not really all that important. They wanted to preserve the significance of the prohibition, the fundamental character of this prohibition. Maybe. Anyway. But practically, there is such a rule: a prohibition given as a warning for an offense punishable by death by the religious court is not punished by lashes. Fine? Maimonides says: why don’t we administer lashes when one commits a transgression, when one violates “do not deviate”? Because it is a prohibition given as a warning for an offense punishable by death by the religious court. And if it were only a textual support, then there would be no need to arrive at the explanation that it is a prohibition given as a warning for an offense punishable by death by the religious court. It wouldn’t be a prohibition at all; it would just be a textual support. Why would one even think lashes apply? It’s a rabbinic prohibition. Fine? Therefore specifically in Maimonides it seems that he really means seriously that this is learned from “do not deviate.” It is a real prohibition. So basically there is a dispute here between Maimonides and Nachmanides.
[Speaker H] And what is the source for the sages’ ability to enact enactments according to Nachmanides?
[Rabbi Michael Abraham] Great question. It’s a tremendous riddle with no answer in Nachmanides’ words except for that statement about textual support, which of course answers nothing—and we’ll get to that in a moment or later on.
[Speaker I] Isn’t it reasoning?
[Rabbi Michael Abraham] If it’s reasoning, that won’t help, because reasoning is Torah-level / of biblical origin. So the question is—no, reasoning—
[Speaker I] reasoning that the Torah was not given—it doesn’t contain everything; one can’t
[Rabbi Michael Abraham] live—no, just reasoning, reasoning is Torah-level / of biblical origin. I’ll get to that, I’ll get to that in a moment. Doron is right to point that out. But first I want to explain a bit what underlies the dispute, because basically this is not a dispute that arose accidentally. There is some dispute here whose foundation is that we are dealing with a short blanket. You can’t cover both the head and the feet. Meaning, if you cover the head, you uncover the feet; if you cover the feet, you uncover the head. There is no way to cover both. Why? Because on the one hand, I’m proceeding on the assumption that I accept Nachmanides’ difficulty. On the one hand, if indeed everything comes out of “do not deviate,” then everything is Torah-level / of biblical origin, so there is no such category as rabbinic / of rabbinic origin laws. On the other hand, if it doesn’t come out of “do not deviate,” then why obey at all? So really, why obey? Then what is the source? And because of that, basically before I even look for answers, I can already see here—there will be no answer. There cannot be an answer that addresses both questions. If you found a source, then it becomes Torah-level / of biblical origin. If you didn’t find a source, then there is no reason to observe it. So it’s not binding. So what happens—is there a source or isn’t there a source? Meaning, even before looking for which verse gives the source or exactly how, it doesn’t matter. Because whichever way you take it: if that source is from Torah law, it will be a Torah-level law. If it is not from Torah law, then your source itself needs a source. So why obey it? After all, the assumption is that only Torah law is a binding source. So basically there is some problem here. Rabbi Elchanan, in Kuntres Divrei Sofrim, when he discusses this question—by the way, not all that many discuss this question, even though it’s a very very fundamental one. These somewhat meta-halakhic questions, commentators generally don’t deal with so much. But Rabbi Elchanan does discuss this question. He has Kuntres Divrei Sofrim in the second part of Kovetz Shiurim, and there he says—he deepens the question even further. Meaning, he basically argues that according to Nachmanides there cannot be a source of any kind for rabbinic / of rabbinic origin laws. Why? Because say that according to Nachmanides the source is not “do not deviate” but “In the beginning God created the heavens and the earth,” I don’t know—from some other verse. The question will be the same question. You still—some other verse? So what? It is still Torah-level / of biblical origin, and why is its doubt treated leniently? Therefore it cannot be a verse. What else can it be besides a verse? After all, it can’t be a rabbinic / of rabbinic origin law. A rabbinic / of rabbinic origin law that one must obey rabbinic / of rabbinic origin laws—meaning I’m looking for the force, why rabbinic / of rabbinic origin laws
[Speaker C] one has to obey this rabbinic / of rabbinic origin law.
[Rabbi Michael Abraham] Yes. Meaning, a system cannot justify itself. There has to be something outside the rabbinic system. So what remains? Tradition? That too is Torah-level / of biblical origin. Reasoning? According to Maimonides an exegetical derivation is rabbinic / of rabbinic origin.
[Speaker H] What? According to Maimonides really yes, but according to Nachmanides no.
[Rabbi Michael Abraham] We’re looking for a source according to Nachmanides. Even with Maimonides, I said there are those who say not so; I do think it’s rabbinic / of rabbinic origin, but most—almost all commentators on Maimonides—don’t think so; they think it’s Torah-level / of biblical origin. Nachmanides thought that in Maimonides it was rabbinic / of rabbinic origin, and therefore attacked him. So what remains? Reasoning. And on that we know that reasoning too is Torah-level / of biblical origin. The Talmud in several places, when it brings—for example, the Talmud in Ketubot, in Bava Kamma 46, there they discuss “the mouth that forbade is the mouth that permitted”—that’s in Ketubot—or in Bava Kamma they discuss: from where do we know that the burden of proof is on the claimant? The Talmud brings a source: “the owner of the matter shall approach them.” Meaning, let someone come forward, bring his proofs, and we’ll talk to him. The burden of proof is on the claimant. Then the Talmud says: why do I need a verse? It is reasoning. Whoever has a pain goes to the doctor. Meaning, if you want the religious court to do something, give them a reason to act. If you don’t give them a reason to act, why should they act? So what does that mean? That as far as the Talmud is concerned, if there is reasoning then you don’t need a verse. Because if something derived from reasoning were a rabbinic law and something derived from a verse were a Torah law, then what sense would the question “why do I need a verse? It is reasoning” make? Why do I need a verse? I need a verse in order for it to be Torah-level / of biblical origin; otherwise, if it came from reasoning, it would be rabbinic / of rabbinic origin. In the subtext of that question, it’s obvious that the Talmud understands that something derived from reasoning has the status of Torah law.
[Speaker F] When it connects to another verse or another commandment? No. Why? Who says? Because the Rabbi taught us in grace after meals that the Tzelach and the Pnei Yehoshua disagree—not in grace after meals, in blessings over enjoyment.
[Rabbi Michael Abraham] Grace after meals is Torah-level / of biblical origin.
[Speaker F] Sorry—that reasoning too still needs to ride on some commandment.
[Rabbi Michael Abraham] But according to Pnei Yehoshua, no. According to Pnei Yehoshua, no; according to the Tzelach, that’s true. So let’s leave that for the moment; maybe I’ll come back to it in a minute. So for now at least, in the accepted conception, as Rabbi Elchanan says, as Pnei Yehoshua says there in Berakhot, reasoning is Torah-level / of biblical origin. There is a booklet by Rabbi Kasher at the beginning of Mefane’ach Tzefunot; he has a kind of encyclopedia to the Rogatchover. Do you know the story of Rabbi Kasher? He has a very interesting story; I once read it.
[Speaker C] About—I have Mefane’ach Tzefunot at home; you need a decoder for the decoder. Yes, why? Actually it’s written pretty clearly, no?
[Rabbi Michael Abraham] His goal is to clarify the Rogatchover’s mess a bit. Interesting story—he still managed, in short, he still managed to study a bit with the Rogatchover in Europe before he came to the United States. Rabbi Kasher, yes, that’s my grandfather. Kasher? Kasher is grandfather or father? I think it’s his father, I think—it seems to me it’s his father, no? It seems to me—not sure—maybe grandfather, I don’t know. In any case, so you know what happened with the Rogatchover’s manuscripts. The Rogatchover apparently had sacks full of manuscripts, lots of manuscripts. Why is there almost nothing? There are lots of correspondences, yes. So—but he had sacks of manuscripts, also commentaries on the Torah and on the Talmud, and these sacks—he had already died earlier—but before the Holocaust, let’s say when the Nazis came to power, apparently sometime in the 1930s, the Rogatchover’s daughter, who was married to the rabbi of Petah Tikva, Rabbi…
[Speaker C] Was it Gitron?
[Rabbi Michael Abraham] I don’t remember anymore, I don’t remember who it was. Maybe Kitron, I don’t know. Someone from—the Ashkenazi rabbi of Petah Tikva. She was married to him, and she decided to travel to Europe to save her father’s manuscripts. And he had already died before that. She went there and didn’t come back. Meaning, they killed her. They told her, don’t go, there’s turmoil there, don’t go. She went and didn’t come back. Fine, no one knew what happened with it—no manuscripts, nothing. Rabbi Kasher says that sometime in the 1960s he came to some dinner in the United States—this is just by the way. He came to some dinner in the United States, and some woman he didn’t know approached him and said, listen, I have some manuscripts, something with sacred writings on halakhic matters. I understand nothing about it, I have it at home, maybe you’ll see if there’s anything you can do with it, I don’t know, take a look there. And she gave him the Rogatchover’s manuscripts, which the Rogatchover’s daughter apparently had somehow managed to send from Europe before they caught her, apparently managed to send them to the United States—and from those manuscripts the Tzafnat Paneach Institute was founded. Rabbi Kasher established the Tzafnat Paneach Institute, and from these manuscripts he published—there is Rogatchover on the Torah, Rogatchover on the Talmud, there are several tractates from these manuscripts.
[Speaker C] Tzafnat Paneach isn’t—Tzafnat Paneach is the name of the book. Tzafnat Paneach, there is Tzafnat Paneach…
[Rabbi Michael Abraham] on Maimonides and there is responsa Tzafnat Paneach.
[Speaker C] Those are books
[Rabbi Michael Abraham] that came from him, but the Tzafnat Paneach Institute now publishes all sorts of other books on the Talmud, and there are, I believe, additions on Maimonides, I think; there are various other things.
[Speaker E] Are they still publishing? What? Are they still publishing?
[Rabbi Michael Abraham] I don’t know if it’s still operating or not. There is Rabbi Shlomo Kasher, probably really his grandson; Rabbi Shlomo Kasher, his son, managed the Tzafnat Paneach Institute afterward in Jerusalem. And they published the Rogatchover on the Torah. I don’t know whether he is Yitzhak Kasher’s father or uncle or brother or—I don’t know exactly. In any case, how did we get to him?
[Speaker E] Interesting story, but about the reasonings.
[Rabbi Michael Abraham] Ah, yes. At the beginning of Tzafnat Paneach he published an encyclopedia to the Rogatchover. Meaning, it’s divided according to types of reasoning. The Rogatchover—since we’re already talking, one more sentence—the Rogatchover did something that has long been a dream of mine to do. You know, it’s a dream with a built-in logical flaw. The frustration in the yeshiva world is that information doesn’t accumulate. Meaning, every learner starts from the beginning. There isn’t something cumulative where you can already start from floor A, floor B, floor C—the information accumulates like in every scientific field. So why in the Torah world doesn’t information accumulate? Every learner starts anew, has new innovations, of course also repeats the innovations of his predecessors—it doesn’t matter—but the information doesn’t accumulate. How do you accumulate information? Usually you make encyclopedias or textbooks that accumulate information. The problem is that you can accumulate factual or halakhic information. But how do you accumulate analytic learning information? Meaning, how do you accumulate information about types of reasoning? Okay? That’s a fascinating question. Now think about it—it’s a fascinating question on the logical level. Why? I can collect all the reasonings, go through all the books of the later authorities and the medieval authorities, collect all types of reasoning—not the arguments in their place, but the types of reasoning, types of distinctions and so on—and write them in a big book, write all the types of reasoning, somehow conceptualize them, define them, and write them down. Okay? How would I classify it? Have you ever thought about that? There’s no way to classify it. Because I now need to publish this book, and an ordinary learner gets stuck on a difficulty. Now he’s looking for what reasoning will help him, he goes to the toolbox I built for him and wants to search—flip through—where in the encyclopedia do I find the reasoning that will help me? So how will it be arranged? Alphabetically? There’s no way to classify it. In the Talmudic Encyclopedia it’s arranged by concepts; you look for the explanation of a concept alphabetically; an encyclopedia you build alphabetically, like a dictionary. Databases are arranged alphabetically. Halakhic databases can be arranged by topics, like Maimonides or the Shulchan Arukh. If you’re looking for something in the laws of the Sabbath, you go to the laws of the Sabbath. There are labors on the Sabbath, there are rabbinic restrictions on the Sabbath, there are even internal divisions. There is Orach Chayim generally, so it’s not only Sabbath; it’s Orach Chayim generally; within that there are the laws of the Sabbath; within that there are the laws of labor; within that the laws of sorting; the rabbinic rules of sorting—you can, there is a classification tree of the laws. Maimonides, for example, built such a tree. He built a new tree from nothing. Rabbi Yehudah HaNasi also made some kind of tree, but less detailed than Maimonides and less systematic. The Shulchan Arukh also made some kind of tree, but—but—but all that is for facts, for—I’m looking for a law in the laws of the Sabbath, so I go to Maimonides; the classification is simple. I go to the laws of the Sabbath, look where he talks about the laws of sorting, where he talks about the rabbinic rules of sorting, and I know what the law is, if there is such a law. Okay? But how do you classify an encyclopedia of reasonings?
[Speaker H] Wait, can the Rabbi give an example of the content of such an encyclopedia?
[Rabbi Michael Abraham] Yes—object versus person, for example: is the law about the object or about the person? That’s a kind of reasoning tool, an analytic tool, where when you’re stuck on a difficulty or want to distinguish between things, one of the tools you can use is that this is a law in the object and this is a law in the person. Or that this is a result and that is an action, or—it doesn’t matter—all kinds of Brisker distinctions, all kinds of things. Ah, but then—an analytic encyclopedia—not how—you don’t know, you don’t recognize the reasoning “object versus person.” If you know it, you don’t need the encyclopedia. If you don’t know it, now you have an encyclopedia written by the world champion in analytical learning, okay? Now you don’t know that it’s called object versus person, and you’re searching under O. If you know there is such a thing as object versus person, you don’t need the encyclopedia—you already know, you already understood the
[Speaker H] idea; you want to clarify the details.
[Rabbi Michael Abraham] No, that’s fine. I’m talking about searching for the ideas themselves, I understand. So how do you classify it? Meaning, there’s no way to do it. I can’t think of it. I’ve been dealing with this, thinking about it, for years already. Someone asked me if I had an idea for a project—one of the editors of Otzar Mefarshei HaTalmud. Do you know those green books? So one of the people there is really a walking treasury—there’s nothing he doesn’t know, really, in philosophy, in Gemara, in everything, truly a special creature. The son of Rabbi Avidor HaKohen—he’s amazing. So he asked me once, we’re somewhat friendly, and he said to me: I’m looking for some project, do you have an idea? I said, here is the idea. Think of an idea like this. In my opinion this is the task of the generation. If you solve this logical problem, then all learning changes, understand? Because what happens is, you no longer need all those years of yeshiva skill, of getting the knack of passages—
[Speaker I] It’s not a Chop situation—fine, never mind.
[Rabbi Michael Abraham] learn the encyclopedia of reasonings, and then basically once you master it—and by the way, it’s not so much, it’s not so
[Speaker I] much—
[Rabbi Michael Abraham] fine, types of reasoning—then you have a toolbox. Every difficulty you have, you leaf through the toolbox and know how to distinguish it.
[Speaker I] First of all, we can start small. Let’s try—
[Rabbi Michael Abraham] simply to collect it.
[Speaker I] collect object versus person—what passages does it appear in? After you collected it, then how to classify it—then they’ll already find the method. So no, no, here, here—
[Rabbi Michael Abraham] I’ll give you an example—the collecting even—
[Speaker I] no one has done that either, no?
[Rabbi Michael Abraham] Yes they did—that’s Rabbi Kasher. That’s why this whole introduction—because Rabbi Kasher in Mefane’ach Tzefunot is exactly what he did. Now true, he did it only on the Rogatchover, but there you basically have all the types of reasoning. Is Mefane’ach Tzefunot arranged according to types of reasoning? Yes, Mefane’ach Tzefunot is arranged according to types of reasoning. Meaning, it’s a fascinating project. Each chapter deals with a different kind of distinction and goes through all the Rogatchover’s writings and the whole Talmud to show where this kind of distinction appears, and sub-distinctions within that type, and so on. But of course, you understand—there are twenty-something, thirty chapters there, I don’t know, something like that—I’m just throwing out an order of magnitude, okay? But fine, you can go through it. There are thirty types of reasoning. There is no classification there. He didn’t come up with a new classification method; he really just collected them all, collected them all and divided it into thirty chapters. Fine, but that’s not rich enough if—
[Speaker I] If he is collecting, then apparently other reasonings he doesn’t count, maybe.
[Rabbi Michael Abraham] Or he didn’t find them in the Rogatchover. He—
[Speaker I] went through the Rogatchover. It could be that the Rogatchover himself says: when I come to learning I can use thirty possible reasonings. What are you telling me about more reasonings? I don’t count them.
[Rabbi Michael Abraham] And who says you don’t count them? That’s the question. The Rogatchover maybe didn’t use them because that was his method, but Rabbi Chaim has other distinctions. Now, I’m saying: I’m neither the Rogatchover nor Rabbi Chaim. I want to equip myself with all the tools. After that I’ll decide who seems right to me and who doesn’t. And generally, by the way, they’re all valid. The whole question is only under what circumstances—where you use one and where you don’t. But when a distinction is logical, then it’s logical. Usually it’s just a matter of inventing distinctions; once you invent them, everybody accepts it. You know, there was once a period—I’m digressing a bit, but I think it’s a very interesting topic—during the era when pilpul ruled in Eastern Europe, in Poland-Lithuania. Well, Poland and Lithuania were basically the same thing, it was all Poland, say in the fifteenth-sixteenth century, the period of pilpul, Rabbi Shalom Shachna and all those people. So there, let’s say—and it remained even afterward, we know this from later writings, the Shelah, Maharam Schiff, all of them—you can sometimes see that he asks a question and says, “That’s a Regensburger,” and moves on. What’s that, “that’s a Regensburger”? What is a Regensburger? It’s a type of reasoning. That kind of question gets solved with a distinction called a Regensburger. That’s all. Now he doesn’t need to write how you solve it, because everyone understands that a Regensburger means to say that the first clause of the Mishnah goes one way and the latter clause goes another way, and therefore there’s no difficulty, no contradiction. It’s like a quadratic equation. Exactly. Sometimes there’s some formula—just tell me which formula you use, and you don’t need to spell it out, because that’s basically the meaning of classifying lines of reasoning. In the method of pilpul they did that, but of course it was too pilpulistic, and these were very incomplete reasonings. There were altogether four, five, maybe six such names, not more than that, I think. At least in the writings of those later authorities you don’t see more than that. There’s a book by Dov Rappel called The Debate over Pilpul, a little booklet, The Debate over Pilpul, and there he brings examples of this, he collected some. In any case, how did we get to all this? So the Rogatchover—ah yes. The Rogatchover, at the beginning of Mefa’ane’ach Tzefunot, the encyclopedia of conceptual distinctions—I’m closing all the parentheses I opened—so the Rogatchover there has a pamphlet called Torah-Level Reasoning. And there he brings from the medieval authorities (Rishonim) and from the Talmudic texts this whole idea that reasoning is actually Torah-level / of biblical origin; those are the proofs he brings. He cites the Or Zarua and other medieval authorities (Rishonim) who held that something derived from reasoning has the status of Torah-level / of biblical origin. Now, does that mean every line of reasoning? Seemingly, that’s what… that’s the claim. I’ll comment on that in a moment. And then what that means is that I go back to Nachmanides. After all, we were looking for what could be, according to Nachmanides, the source for the authority of the sages to legislate—not to interpret, but rabbinic / of rabbinic origin laws. A verse can’t be it. A derivation, according to Nachmanides himself, also can’t be it. What? A rabbinic / of rabbinic origin law can’t be it, because that’s circular; the rabbis can’t give authority to themselves. What’s left? Reasoning. That also can’t be, because reasoning too is Torah-level / of biblical origin. So if it were reasoning, then Nachmanides should fall into the same trap that he claims Maimonides fell into—namely that it’s a Torah-level law and therefore in case of doubt one should rule stringently, and that’s it. So what’s left? Nothing is left. I’m saying, even without looking a priori, I can prove that there cannot be a source for rabbinic / of rabbinic origin laws according to Nachmanides. But then the short blanket exposes the head; it covered the feet, but it exposes the head. Because if so, then why obey? And if there is a way to obey because there’s a source, then why is it rabbinic / of rabbinic origin? And about Nachmanides himself I’m saying: Maimonides can manage with this, because Maimonides will say “they said and they said,” or all those tricks, but Nachmanides himself doesn’t accept that. Nachmanides argues that it’s impossible that ruling leniently in a rabbinic-level doubt is because of an interpretation of “do not deviate” or some protective enactment of the sages, right? That’s why he attacked Maimonides. So now I’m asking about Nachmanides, not about the dispute between Nachmanides and Maimonides. Nachmanides himself—what does he hold? Does this have a source? Then why doesn’t he himself fall into what, according to him, Maimonides fell into? It has no source? Then why obey? Nachmanides himself put himself into a problem with no way out.
[Speaker I] Meaning, this is… that is, here I think there are two concepts of reasoning: Torah-based reasoning and plain common-sense reasoning.
[Rabbi Michael Abraham] There is Torah-based reasoning—
[Speaker J] Reasoning—
[Speaker I] —of common sense. Wait, I’ll explain. Suppose, for example, in Rabbi Shimon Shkop’s Sha’arei Yosher, we asked: what is the basis for property law? So he says property law is law; we don’t learn it from the Torah. Property law is something that exists. If you have—if this is my phone, whether I bought it or not, it doesn’t belong to anyone else here, it belongs to me. You don’t need to explain that from anything. Exactly the same with every judicial system, every legal system: there has to be some world that administers judgment, that legislates, secondary legislation. In every legal system, even in the laws of Hammurabi, suppose there is a law that was valid when they enacted the first law, still in every generation there is legislation.
[Rabbi Michael Abraham] Now what is its authority? Exactly. No, that’s not… no, you’re pushing the question under the rug, but it’s still there. You haven’t solved it. Look at Israeli law. By virtue of what does someone legislate secondary legislation—a ministry director-general or something like that? Because the Knesset authorized him. It has to have a source in the principal law, in primary legislation. So Maimonides proposes a source; he has “do not deviate.” But Nachmanides claims there’s no source in primary legislation. So where did the authority to enact secondary legislation come from? So what will you tell me? It’s reasoning. But that’s exactly the question about Nachmanides—reasoning is Torah-level / of biblical origin, like having a source in primary legislation, right? So if that counts as a source in primary legislation because reasoning too is a source in primary legislation, then the question comes back again: why rule leniently in cases of doubt? You’re not solving the problem, you’re only explaining why to obey. So now you covered the head, okay, but the feet were exposed. Because you explained why to obey; once you explained why to obey, then there is a source; if there’s a source, then in a case of doubt you should rule stringently.
[Speaker B] Isn’t it possible—why call reasoning… to give it another interpretation and say, why call… why do I need a verse when there is reasoning, and when there is reasoning, why do I need to bring everything up to Torah-level / of biblical origin, to make it like… because I can leave it at rabbinic / of rabbinic origin. No, but then I’ll give—
[Rabbi Michael Abraham] I’ll give you an answer: “Why do I need a verse? It is reasoning”—because a verse is Torah-level / of biblical origin and reasoning is rabbinic / of rabbinic origin. Let’s say, “the same mouth that prohibited is the mouth that permitted,” right? So I bring reasoning.
[Speaker B] So the Talmud says, why do you need a verse? It’s reasoning. What do you mean? The verse comes to tell you that it’s Torah-level / of biblical origin.
[Rabbi Michael Abraham] If you had left it to reasoning, then it would have remained rabbinic / of rabbinic origin. That itself is what the Torah wanted to tell you. I’m saying: if the Torah wanted to leave it—
[Speaker I] —at rabbinic level, I have no—
[Rabbi Michael Abraham] —problem, but then don’t ask me questions if the Torah did not leave it at rabbinic level, because it wants to tell you: this is Torah-level / of biblical origin. So what kind of question is “Why do I need a verse? It is reasoning”? Rather, you see that they are truly interchangeable—that is, verse and reasoning. Otherwise this question makes no sense. Therefore I’m saying that Nachmanides, on his own terms, gets himself into a kind of tangle that apparently has no way out; there’s no way to answer it.
[Speaker F] And you mentioned the rational laws, where that too is not Torah-level / of biblical origin.
[Rabbi Michael Abraham] Why? It is Torah-level / of biblical origin. It’s Torah-level in every respect.
[Speaker F] Why? We talked about stealing from a gentile.
[Rabbi Michael Abraham] Yes, that’s Torah-level / of biblical origin. In every stringent respect.
[Speaker F] In every stringent respect. Okay. From where? What?
[Rabbi Michael Abraham] That’s what Rabbi Shimon himself says: in a case of doubt one rules stringently because it is Torah-level / of biblical origin. Its force is like Torah-level / of biblical origin—not literally from the Torah, but its force is like Torah-level / of biblical origin, because otherwise what does “Why do I need a verse? It is reasoning” mean? That is, therefore its halakhic / of Jewish law force has to be the force of Torah-level / of biblical origin: in doubts one rules stringently, everything. Okay? Now, that’s not entirely precise. And here I really get into the question of reasoning. We once did a whole series on reasoning, and there I mentioned—we discussed the Pnei Yehoshua and the Tzelach—and there I said that, for example, with regard to punishment, reasoning is not Torah-level / of biblical origin. That’s clear. Something not learned from a verse, obviously you don’t punish for it. That’s completely clear. Even though the reasoning forbids it, and even if reasoning is Torah-level / of biblical origin, it is Torah-level / of biblical origin with respect to maybe ruling stringently in cases of doubt, but not with respect to punishment.
[Speaker C] So then what is the question—why is reasoning like that? What? Or—
[Rabbi Michael Abraham] So in all the places where the Talmud says, “Why do I need a verse? It is reasoning,” these are places where punishment is not relevant.
[Speaker C] It’s—
[Rabbi Michael Abraham] A detail within a law. For example, “the same mouth that prohibited is the mouth that permitted”—that’s not some transgression where if you violate it… rather, it’s in the laws of evidence. “The same mouth that prohibited is the mouth that permitted,” “the burden of proof lies on the claimant”—those are basically the two main places where it appears. What?
[Speaker E] Has it been checked that all the places are like that? Yes, yes, I checked.
[Rabbi Michael Abraham] Ah, you checked. So only in those places. Okay? That’s what the Tzelach basically argues against the Pnei Yehoshua. The Tzelach argues that there are only two such places: “the same mouth that prohibited…” and “Why do I need a verse? It is reasoning.” And then that means that if, for example, like what the Pnei Yehoshua says there in the Talmudic passage in Berakhot, if you derive from reasoning some novel law—say, for example, that it is a commandment to recite a blessing before you eat, blessings over enjoyment are derived from reasoning, “whoever benefits from this world without a blessing is as if he committed sacrilege.” Fine? So that comes from reasoning. About that the Tzelach claims: obviously you would not punish for such a thing. Why? Because there is no punishment unless there is prior warning, and there is no warning for that, there is no verse; it comes from reasoning. So it obligates you, but there will be no punishment for it. The Tzelach wants to argue that it would even be rabbinic / of rabbinic origin, because it is not a detail within an existing commandment, like “the same mouth that prohibited is the mouth that permitted,” which is a detail in the laws of evidence; it does not create a new obligation. Something that creates a new obligation, says the Tzelach, is rabbinic / of rabbinic origin. But even the Pnei Yehoshua, who says it is Torah-level / of biblical origin—even he would not say that one punishes for it. So that’s clear. But for our purposes it makes no difference, because I did not ask why there is no punishment. There Maimonides said: there’s no punishment because it was given over to the discretion of the religious court. So you have another answer for why there is no punishment, fine, another answer: because there is no warning. But I’m asking a different question. I’m asking because it comes from reasoning, but I’m asking a different question: why rule leniently in a case of doubt? And a doubtful law that comes from reasoning is ruled stringently. That’s my claim, and we discussed this then. Because I argue that the rule that a Torah-level doubt is treated stringently is because of the dimension of reasoning in the matter, not because of the dimension of command in the matter. That’s what I discussed then, and therefore I say that a law derived from reasoning—even if regarding punishment it would not be considered Torah-level / of biblical origin, and they would not punish for it—still regarding the laws of doubt I would indeed go stringently. And therefore the question that Nachmanides asks against Maimonides still remains difficult against Nachmanides himself. Let’s say he derives the obligation to obey the sages in their legislation from reasoning—still the question is why in a case of doubt one rules leniently and not stringently. Now here I’ll add one more remark. We really need to finish, but just one more point. It’s not so terribly difficult, because with reasonings there is—and this is written in the responsa Shevut Yaakov—he once writes in a responsum to a question: someone wanted to argue that reasoning is rabbinic / of rabbinic origin. So he wanted to argue: after all, it says, “Why do I need a verse? It is reasoning,” so from the Talmud you see that reasoning is Torah-level / of biblical origin. What does it mean that reasoning is Torah-level / of biblical origin? The question is: what is the force of the reasoning? There is strong reasoning and weak reasoning. For example, I’ll give you an example. Suppose there is a rule in the laws of the Sabbath that if you do labor in an unusual manner, then it is a rabbinic prohibition. There is no Torah prohibition, but the rabbis forbade it even in an unusual manner. How unusual? If you stand on one foot, is that selecting in an unusual way? You can go through a whole chain of steps and get from selecting with the proper conditions—some metamorphosis like that—and arrive at selecting while standing on one foot. Suppose he is selecting, but now he is selecting not with a utensil but only with his hands. Then he also isn’t using his hands—but he is still standing. Right? Not standing on two feet, standing only on one foot. So really, standing on one foot is selecting, but only selecting in an unusual way. There are several differences between it and ordinary selecting, and there’s also something shared. Okay? So what, will it be rabbinically forbidden to stand on one foot? Obviously not, that’s nonsense. Meaning, what does that mean? Obviously when you talk about acting in an unusual manner, you mean something that is still of the same type as the original thing, just not exactly the same thing—different. But if the difference is significant enough, then of course it won’t be a rabbinic prohibition; it will be completely permitted. Right? And when you talk about the concept of unusualness, that’s a concept that can appear on many levels. There’s a big difference, a small difference, a meaningful difference; there’s a whole continuum of levels of difference. Reasonings also form a continuum. There’s a continuum of reasonings: is the thing absolute in your eyes, is it clear that it’s true? Never mind, maybe not one hundred percent, but ninety-five percent; maybe it’s eighty percent; maybe seventy percent; maybe forty percent. Tell me: forty-percent reasoning is completely permitted. Sixty-percent reasoning is a rabbinic law. Ninety-percent reasoning is a Torah-level law. I don’t know exactly where the line is, but say that. Okay? So it’s nonsense to say there is some sort of rule like “reasoning is Torah-level / of biblical origin.” It depends on the strength of the reasoning. It’s not some rule that you just apply mechanically. On the other hand, the reasoning that one should listen to the sages sounds like strong reasoning. Just conceptually, I mean; logically. Right? It’s stronger reasoning than, say, I don’t know, reciting a blessing before eating, in my opinion. Stronger. If you had to decide which reasoning is stronger, this is stronger reasoning. As you said before, it is impossible that there should not be a body with authority for secondary legislation, and so on. And if you can’t find it—because Nachmanides can’t find it, after all; he says it does not come from “do not deviate”—then it is a very strong reasoning that there nevertheless has to be such a body. But on the other hand, I ask about Nachmanides: according to your own approach, if this is such strong reasoning, then in case of doubt it should be treated stringently. Exactly what you asked about Maimonides. And therefore Nachmanides is really caught in a tangle. Okay?
[Speaker B] Fine, and he doesn’t address this at all?
[Rabbi Michael Abraham] No. He says it is an asmakhta from “do not deviate,” but he doesn’t address it. An asmakhta of course solves nothing. So what are you saying—that it’s rabbinic / of rabbinic origin, they just attached it to a verse? Okay, but the rabbis can’t determine that one should listen to themselves. So practically speaking, what is the real source of authority? Not where the asmakhta comes from. Asmakhtot are made after I already have a rabbinic enactment; I attach it to a verse. But here it cannot be that the source is a rabbinic enactment. So what is the real source? The asmakhtot are irrelevant.
[Speaker F] You’re referring to the distinction between doubt about whether there is a command and doubt about whether there is a prohibition. Yes.
[Rabbi Michael Abraham] That’s what I said before: when there is a prohibition that is only reasoning without a command, in a case of doubt it is treated stringently. And therefore Nachmanides cannot escape. Even if the source is reasoning, still in a case of doubt it should be treated stringently.
[Speaker F] But doubt about a command is treated leniently. Right.
[Rabbi Michael Abraham] But if there is something that has both command and reasoning, then in doubt you still have to be stringent because of the reasoning in it, not because of the command in it.
[Speaker F] But in rabbinic / of rabbinic origin law there is no reasoning.
[Rabbi Michael Abraham] But there is reasoning—there is reasoning to obey the sages.
[Speaker F] No, but specific legislation—say, to prohibit eating chicken with milk—
[Rabbi Michael Abraham] So—
[Speaker F] —specifically, there’s no reasoning in that.
[Rabbi Michael Abraham] There is: the reasoning to obey the sages, not the reasoning that chicken with milk is forbidden. That too is reasoning. So that reasoning, apparently, should require stringency. Okay, we’ll talk more.