Authority and Change in Halakha, Lesson 5

[Rabbi Michael Abraham] We’ve been discussing the method of authority and authority in Jewish law in general. We reached the question of the source of authority. I distinguished conceptually between formal authority and substantive authority. I spoke about authority regarding facts versus authority regarding norms. And the question is: what is the source of authority? And I said that in this matter there is some kind of tangle, a short blanket, where you really can’t cover both the legs and the body. Because on the one hand, if I find some source for authority—I’m talking for a moment, excuse me, before the short blanket—I’m talking about authority regarding rabbinic enactments or decrees. Authority, what I called authority to legislate, not authority to interpret. Authority to interpret is authority to derive interpretations or to interpret the verses, and the result of the interpretation or the derivation is Torah law according to an overwhelming majority of approaches; it is Torah law. But I’m talking now about authority to legislate, to establish decrees or enactments, new laws that the sages establish, and the question is where that comes from. So we saw that Maimonides’ view is that it comes from “do not deviate.” Just like the authority to interpret, the authority to legislate also comes from “do not deviate.” Nachmanides attacks him on this. Nachmanides says that if it comes from “do not deviate,” then essentially violating a rabbinic prohibition is a Torah prohibition—you violate the negative commandment of “do not deviate”—so in a case of doubt it should have to be treated stringently and not leniently like every Torah-level doubt. So then, in rabbinic law they were lenient in a case of doubt? What?

[Speaker B] How can it be that built into the structure of the enactment, the rabbis were lenient in a case of doubt?

[Rabbi Michael Abraham] So I said—I brought these possibilities—that according to Maimonides one could say, “they said it and they said it”; excuse me, according to Nachmanides one could say, “they said it and they said it,” and we spoke about that a bit. Nachmanides attacks that, and he attacks it—it’s not clear why. I brought from Shev Shema’teta that it could be that when there is a dispute among sages in rabbinic law, then each of the two disputants is not in doubt, so there is no reason to assume that when he says something is forbidden he is also qualifying it and saying, but no, no, don’t do it because the other one argues with me. That’s not the case. It could be that even that can be resolved, but we discussed that within Maimonides’ view. In any event, the claim itself—the short blanket—is about the authority of the sages to legislate, regarding decrees and enactments. What’s the problem? That if we find a source, then it will become Torah law, as Nachmanides points out, and if we do not find a source, then why obey them? It’s one or the other. Either there is a source, and only then do you need to obey them, but then it does not remain rabbinic law—it becomes Torah law—or we won’t find a source, and then there is no reason to obey them at all. And therefore, as Rabbi Elchanan Wasserman says in the booklet Divrei Sofrim, the claim is that according to Nachmanides we are really in an a priori tangle with no way out. Meaning, it’s not a matter of searching for this source or that source, checking whether this works or doesn’t work, leafing through Nachmanides to see what he really said. He doesn’t say anything explicit anywhere, because you can’t find it. Meaning, a priori you can determine that you can’t find it. Any kind of source you bring or don’t bring, we’ll end up either with our legs uncovered or with our head uncovered. You can’t solve both problems: both to find a source so that there will be an obligation to obey the sages, and at the same time that it won’t be a Torah prohibition. So I said, how do you spell this out? Rabbi Elchanan Wasserman talks about this. He says: what possible sources could there be? If it’s a source from a verse—not “do not deviate” but another verse—what difference does it make? Bottom line, as long as there is a source from a verse, it will be Torah law, and what Nachmanides attacks in Maimonides will in fact also be difficult for Nachmanides himself. If you have a source from a verse, then it should be Torah law, its doubtful cases should require stringency with all the implications of the law of doubt. If we find a source not from a verse, then where can it come from? If from a derivation, then a derivation too, at least according to Maimonides, is Torah law, and regarding Nachmanides I’ll comment later. If we find a source in logic, then logic too is Torah law—“why do I need a verse? it is logical”—I spoke about this in the previous lecture. So logic too, if I have a source in logic, has the same force as a verse, as the Talmud says in many places—or in a few places—“why do I need a verse? it is logical.” It seems that what comes from logic is the same thing as what comes from a verse, and again, its doubtful cases require stringency. So what will we say—that this is rabbinic law? That the obligation to obey the rabbis is itself rabbinic law? That has no meaning at all. The question then is why obey that very rabbinic law itself, the one that tells me to obey the rabbis. So yes, that can’t be the explanation. And then it turns out that a priori, before we even checked what Nachmanides… on the face of it there cannot be a solution to this question. It’s a question with no solution—that is Rabbi Elchanan Wasserman’s claim. Regarding the last branch I mentioned, that it can’t be rabbinic law, I’ll just make a few remarks. Logically, it’s completely clear that the obligation to obey a system cannot be a norm that belongs to the system itself. For example, the obligation to obey the law cannot itself be founded on a law, on there being a law that says you have to obey the laws. That has no meaning at all, because if I don’t obey laws, then I also won’t obey that law itself. It has to be some principle or some norm that lies outside the system of laws. In legal thought there is an approach called positivism. Positivism is an approach that sees the legal system as a kind of structure of an axiomatic system, a hierarchical structure with a set of axioms from which secondary norms are derived, and really everything is some kind of logical structure, with what Kelsen called the basic norm, the Grundnorm, sitting at the top of the system. What is the basic norm? It is the foundational norm from which all the other norms begin to be derived. For example, in the context of, say, Israeli law, the basic norm is the obligation to obey the laws enacted by the Knesset. There is such an obligation; that is the basic norm. From there all the rest can be derived. If the Knesset enacted something, then from the basic norm the obligation is derived to obey what that particular law established by the Knesset says. If the Knesset delegates authority to a ministry director-general, it doesn’t matter, to a minister, to establish regulations—again, because of the basic law one must obey the Knesset. The Knesset delegates authority to the secondary system and therefore you also have to obey it, so that overall—

[Speaker D] the whole thing creates the basic norm out of nothing.

[Rabbi Michael Abraham] Now the question is of course where the basic norm comes from, but one thing is clear: it cannot come—

[Speaker D] from the Knesset itself, from a law.

[Rabbi Michael Abraham] Meaning, it can’t be a law. It has to be something external. And then—and this is again a big question in jurisprudence, in legal philosophy—they talk a lot about this question: okay, where does this basic norm itself come from? And there are all kinds of explanations here: gratitude, and an obligation to obey the public of which you are a part. And only that behind the legislator there stands an army and police.

[Speaker C] That doesn’t create—

[Rabbi Michael Abraham] an obligation to obey; it creates fear in the citizen. It does not create an obligation to obey. Meaning, the obligation to obey—the basic assumption is that there is an obligation to obey, we may have discussed this last time—and only because of that is the use of force a justified use of force. Otherwise it is the use of force of a band of robbers. I mean, there is also an “obligation” to obey a band of robbers according to that principle, because otherwise they’ll kill you. But that is not called an obligation to obey; it only means that it is worth obeying. Otherwise—if we truly understand that law is a just institution, not a power institution that can force you, rather it can force you, but the fact that it forces you is because there is justification to force you—then there is some philosophical infrastructure behind this that says: yes, one ought to obey this institution, and therefore it is justified in using force. And the question is where that comes from—not where my fear comes from or how it can enforce it on me. How does it justify this in itself, not how does it force me to obey. Let’s put it that way. It’s like people who explain moral obligation by means of evolution. Evolution implanted in us some sort of altruism. Meaning, because in fact this has survival value, because if there is a group whose members’ genes are altruistic genes, meaning they will help one another, that group will survive better. It benefits the survival of the gene. And therefore, in fact, the evolutionary process creates an altruistic gene in different populations. That may be true on the scientific level, but it has no meaning in the substantive context. The fact that evolution created some gene does not mean that I ought to obey it. That can only explain why in practice I do it. It’s a scientific explanation of why people in fact do it. But if I ask the philosophical question, what is the justification for doing it—why should it be done, not why do people do it—what does evolution say here? It says nothing. I mean, evolution didn’t create that gene in me; do you have some issue with me? So I don’t. Now when you come to me with complaints, you assume that this is not just an accidental result of how we happen to be built. I’m not built that way. So what’s the problem? Rather, what you’re actually doing is demanding it of me. After all, I’m built in many other ways too. I’m built in a very egoistic way as well—so am I also obligated to be egoistic? Not everything built into me becomes a binding norm, a norm that is demanded of me. Therefore one has to explain: even if it’s true that it was built into me through evolutionary processes, in the end you still have to explain why we perceive it as a binding norm. Of course, one can say it’s all an illusion, and that it isn’t really a binding norm, but that this too was built into us—the construction that says we also perceive it as a binding norm and don’t just do it, that too is really a product of genetics, of evolution, meaning. Okay, but then really I’m not obligated—

[Speaker E] So—

[Rabbi Michael Abraham] it wasn’t built into me, and I won’t do it, that’s all.

[Speaker E] Why not say that the state is the owner of the land, of this whole territory, and you’re here—if you want to stay here you have to accept the conditions, and if you don’t want to, then just leave?

[Rabbi Michael Abraham] Well, first of all, you have to agree that the state is the owner of the land. You have the classic dilemma, yes, of Neturei Karta. They’re simply right. You Zionists came at some stage, put a sovereign umbrella over us; we were here beforehand. You put some sovereign umbrella over us, and now suddenly we became a neighborhood of Jerusalem, the capital city of the State of Israel. We don’t want you—go away, that’s all.

[Speaker E] No, but I understand that the law of the kingdom is law.

[Rabbi Michael Abraham] What does that mean, the law of the kingdom is law? They don’t concede that at all. In the Land of Israel they don’t concede it. There is a Ran that says in the Land of Israel there is no “law of the kingdom is law,” for argument’s sake.

[Speaker E] No, but—

[Rabbi Michael Abraham] There is something substantive here. “The law of the kingdom is law” is itself a halakhic principle. It says: without Jewish law, what is “the law of the kingdom”? It’s the law of theft, it’s the law of violence, as the medieval authorities (Rishonim) say. Meaning, the fact that the king has power, does that mean he gets to decide? I was here first, now someone comes and puts an umbrella over me. By the way, that’s also the Palestinian claim—that the State of Israel came at some stage, put some sovereign umbrella here over residents who were here beforehand, and now demands that they be loyal citizens or recognize the state. What do you mean? Go away—we don’t want you. So what, that’s a valid claim; it’s a claim that has force. What? Yes, does the fact that you put an umbrella mean I now have to listen to you? That’s a forceful move. What is the justification for it?

[Speaker F] There’s some global norm that says that if the UN recognized it, then it’s—

[Rabbi Michael Abraham] A global norm? So the UN joins the robbers—what can I do?

[Speaker F] Like the mentally ill person who thinks that because they’re the minority they’re not wrong. No, but the fact that I’m the minority—on the other hand, the fact that I’m—

[Rabbi Michael Abraham] being the minority does not necessarily mean I’m wrong. The mentally ill person thinks, “I’m sane,” you know—he’s the only sane one and all the crazies around him are crazy.

[Speaker F] So that’s one side—

[Rabbi Michael Abraham] of the story, and the other side of the story says that just because I’m in the minority doesn’t yet mean I’m mentally ill, and the minority may be right. We once talked about the fact that in my opinion the minority is usually right.

[Speaker B] One of the minorities is right.

[Rabbi Michael Abraham] Well, that already depends on the situation.

[Speaker E] But isn’t there an intuitive understanding that all our property law is between human beings and not between animals, but ownership of land belongs to the collective and not the individual? Meaning, there’s no reality in which one person—

[Speaker C] No, no, no. I own my land and you own the land next to me, and that’s it.

[Speaker E] Meaning, someone who can’t maintain a functioning state—army, police, and so on—we don’t recognize his ownership. Meaning, he can’t make that transition.

[Rabbi Michael Abraham] That’s not enforceable, it’s not effective. Fine, that’s again already a somewhat more force-based question than one of substantive justification, but it’s already starting to become one of the explanations. Because without it, you also won’t succeed in running your private life. “People would swallow one another alive,” as the sages say. Meaning, “were it not for fear of the government, people would swallow one another alive.” So fine, that’s already a justification—on the one hand a force-based justification, but on the other hand I need that force because otherwise I won’t survive here. So that’s already one of the justifications people raise. But on the principled level it’s clear that the justification cannot itself be a law. Rather, there is some basic norm—thank you very much—there is some basic norm here that has to come from outside, from some external system, not from the legal system itself. Now the question is where it comes from, and each person answers for himself what he answers, but it’s basically clear that it has to be some external source. Our problem is that this external source is blocked off to us. That’s true in every normative system: every normative system needs some external source to explain why one should obey it. Okay? But in the case of rabbinic laws that’s a problem, because in the case of rabbinic laws, what could that source be? A verse from the Torah? If it is a verse from the Torah, then you’ve turned rabbinic laws into Torah laws. That’s the other side of the short blanket. There’s some kind of problem here that you won’t manage to solve. So we are in a big tangle, because the same question could be asked about Torah law. Why obey Torah law? Leave rabbinic law aside for a moment—why obey the laws of the Torah? That too requires justification. Fine, so there are people who will say: because there is some obligation to fulfill what the Holy One, blessed be He, says. If someone thinks that, then from his point of view that is a sufficient justification. And someone else who doesn’t think that may indeed not observe it. But here I stop. Meaning, if for someone this is fine—there is such an obligation to obey what the Holy One, blessed be He, says—then there’s no problem; that doesn’t get him stuck in some issue. But regarding rabbinic laws, it is an issue. Because if there were an obligation from logic or from a verse or from whatever it may be, however it may come, that would elevate, would upgrade the status of rabbinic laws and turn them into Torah laws. And we know that that’s not true. These laws are laws of a lower status. So how does that happen? How can there be a source on the one hand and a lower status on the other? In this context I’ll take it to an extreme through two examples. One example is a blind person. Right, so a blind person is exempt from commandments. That’s the law. Now the question is—but rabbinically he is obligated. That’s what it says: rabbinically he is obligated. There are some who say maybe in any case, maybe—there are a few views about this, but we won’t go into the details now. Now the question is how—how can you obligate him? Why should he obey the sages? After all, it says “do not deviate.” Now let’s go with Maimonides. There is a verse, it says “do not deviate,” but he is not obligated to obey verses, because he is not obligated in Torah laws. So how do rabbinic laws generate themselves? Meaning, how does rabbinic authority—and here it’s really problematic. If with regard to a regular person you can hang it on a Torah verse, you’ll have a problem of how it comes out that this is rabbinic law, after all there is a Torah verse. Fine, I don’t know, we’ll have to solve that somehow. Here you don’t even have that option, because even if you find a verse, it doesn’t obligate him; he is not obligated in Torah laws. He is only obligated in rabbinic laws. So how can you even begin this whole thing? The same with a minor. There is a dispute between Rashi and Tosafot regarding the law of educating minors. Both in blessings and in Megillah, Rashi and Tosafot disagree on how to understand the law of educating minors. Tosafot’s view is that the law of educating minors is basically a commandment on the father to educate the child. Meaning, the father has a rabbinic commandment—education now is rabbinic—the father has a rabbinic obligation to educate the child so that he will know what to do when he grows up. But Rashi’s view is that the commandment of education is a rabbinic obligation on the child himself to perform the commandment. It is not imposed on the father; it is imposed on the child. The father is obligated to make sure that the child does it, but the fundamental obligation is on the child. Where is the practical difference? What happens if a minor wants to discharge my obligation in Grace after Meals? That’s really the dispute between Rashi and Tosafot. I am obligated in Grace after Meals on the rabbinic level—I did not eat to satisfaction, or whatever, certain conditions are not met, and I am only rabbinically obligated in Grace after Meals—and the minor too is rabbinically obligated in Grace after Meals by the law of educating minors; he ate to satisfaction, so he is rabbinically obligated in the commandment of Grace after Meals. The question is whether he can discharge my obligation. According to Tosafot, no, because he isn’t obligated at all. His father is obligated to see to it that he blesses; he himself is not obligated. And one who is not obligated in the matter cannot discharge others of their obligation. But according to Rashi, yes, because he himself is rabbinically obligated in the matter. The father has to make sure that he fulfills his role. So if that’s the case, then he can discharge my obligation. He’s rabbinically obligated and I’m rabbinically obligated, so he can discharge my obligation. And once again the question arises: how is this minor obligated in rabbinic commandments if he is not obligated in Torah commandments? The same question I asked about the blind person. By the way, Rabbi Elchanan asks this too; the blind person is Rabbi Elchanan’s question. There is Rabbi Akiva Eiger and the Magen Avraham regarding the minor, but the blind person is Rabbi Elchanan. How is this force created with respect to a minor according to Rashi, who is obligated in rabbinic commandments? After all, what is the source of rabbinic law? “Do not deviate.” But he is not obligated in Torah commandments. It’s the same question I asked about the blind person.

[Speaker D] But why can’t one say that the authority of the sages to legislate really is the authority given by the Torah, but from the moment they begin exercising their authority, the implementation of that authority is indeed on a lower level, just like secondary legislation? They grant authority to the government, but what the government determines is not like a law of the Knesset; it has a lower status.

[Rabbi Michael Abraham] Here one needs to distinguish between two possibilities. First of all, that is the accepted view in the legal world. In the legal world, when there is secondary legislation—after all, rabbinic legislation is basically secondary legislation. Secondary legislation. The verse “do not deviate” delegated authority to another body to legislate additional laws, like a minister, a ministry director-general, and the like, and now this is in fact secondary legislation. Now, in the legal world this is enough to explain the difference. Why? Because in the legal world there isn’t really a principled difference between the two. Except that clearly, if there is some conflict between primary legislation and secondary legislation, I assume that the secondary legislation will be overridden by the primary law. There is some hierarchy in which one overrides the other. But the legislator himself determined this. Meaning, he created the authority to legislate secondary legislation and he also said: as long as it doesn’t contradict what I myself say, no problem. But in the case of rabbinic laws, I need a source from the verse that tells me that doubtful cases of what you legislate will be rabbinic, will be lenient—sorry, not will be rabbinic—that there will be a lighter status here. In regular halakhic thinking, it doesn’t work like that. In regular halakhic thinking, if you eat poultry with milk, you violated “do not deviate,” because “do not deviate” said to obey the sages, and the sages said it is forbidden to eat poultry with milk. Meat and milk is Torah law; poultry with milk is rabbinic law. So if the verse “do not deviate” said obey the sages, and the sages said not to eat poultry with milk, then if you ate poultry with milk, you violated “do not deviate.” So you violated primary legislation, not secondary legislation. “Do not deviate” is primary legislation. If in the verse “do not deviate” itself it had said in some way, yes, but the products—when the sages determine something, it will be of lower status—fine, I understand. But where is that written? So here the question is unresolved. How does it become rabbinic law? Seemingly you violated Torah law; you violated “do not deviate.”

[Speaker F] Who determined that a rabbinic doubt is treated leniently?

[Rabbi Michael Abraham] That is the Jewish law.

[Speaker F] Fine, נכון, but who determined it?

[Rabbi Michael Abraham] I don’t know, but I’m asking: assuming that is the Jewish law, what underlies that law? I’m asking questions; I’m not challenging a halakhic determination right now, I’m trying to understand what it presupposes. Who determined it? It appears in the Talmud. Are you asking who personally determined it?

[Speaker C] Whether it is a law given to Moses at Sinai.

[Rabbi Michael Abraham] I’m saying: if that were so, then everything would be fine. Meaning, if Torah law itself had said—as in primary legislation—had said that if the secondary legislator says something, then its doubtful cases are treated leniently, or that human dignity overrides it, all the differences between Torah law and rabbinic law, that would be perfectly fine. No problem—the primary legislator can determine everything. The problem is that he didn’t do that. Especially according to Maimonides, there is no source for it.

[Speaker B] Nachmanides says that perhaps there was a tradition about this.

[Rabbi Michael Abraham] But I’m saying, especially in Maimonides’ view, that certainly cannot be right. Because Maimonides’ view is that even treating a Torah-level doubt stringently is only a rabbinic rule. Treating a Torah-level doubt stringently, and treating a rabbinic doubt leniently, are all determinations of the sages. It is not a law given to Moses at Sinai, it does not come from a verse, it is not a tradition. The laws of doubt are basically determinations of the sages.

[Speaker B] Even a Torah-level doubt treated stringently—certainly a rabbinic doubt treated leniently. Fine, if so, then there is no question.

[Rabbi Michael Abraham] The base assumption is that doubt should have been treated leniently, and the sages enacted otherwise. That returns us to what Nachmanides himself proposes in understanding Maimonides: “they said it and they said it.” “They said it and they said it”—there’s no contradiction. He says, that’s the basis. Look at the contradiction. They said it and they said it. Since they said that a Torah-level doubt is treated stringently, they could also say that a rabbinic doubt is treated leniently. Nachmanides himself raises that possibility, and Nachmanides rejects it, and we discussed there why he rejects it, although there are still commentators who remain with it; it’s not something absurd.

[Speaker B] All the reasoning here starts from the assumption that a system needs some basic norm that comes and says—but it never ends, you’ll always keep searching.

[Rabbi Michael Abraham] No, the question is always: where does it end?

[Speaker B] So you could say that Maimonides simply… I accept upon myself the yoke of the commandments, and within that, after I have already accepted it upon myself, then I already begin—

[Rabbi Michael Abraham] No problem, I accepted the yoke of the commandments, but where does the rabbinic commandment come from?

[Speaker B] But I also accept the rabbinic commandment. Why? By choice.

[Rabbi Michael Abraham] No problem, but I don’t want there to be no claim against me.

[Speaker B] Before the choice.

[Rabbi Michael Abraham] You’re asking whether there is a claim against me. We return to the same example as in morality. I do not accept upon myself the rabbinic laws. Am I somehow in the wrong? What is the problem?

[Speaker B] The problem is that this never ends. If you go according to the method of the basic norm, then you’ll never find the basic norm.

[Rabbi Michael Abraham] What do you mean I won’t find it? We’ll find it. The basic norm itself is supposed to be… maybe I should add one more sentence on this point. It’s clear that in every chain of reasoning, if we don’t want to reach infinite regression, infinite regress, then there has to be a stage where we stop. A stage where we say: this stage is the basic stage. And then the question will always arise: okay, and why is it true? Or why obey it, if this is… And the answer will be: because that’s how it is. That’s how it is, that’s how it is. Did you just declare a choice here? No, but the answer will be: because that’s how it is. I’ll explain what I mean in a moment. The fact that I choose is itself interpreted in two ways, so it doesn’t solve any problem. Because if I choose in an arbitrary way, then fine, that explains why I do it; it does not explain why I ought to do it. Exactly like with evolution.

[Speaker B] But you’re not obligated?

[Rabbi Michael Abraham] No, you’re not obligated to do anything; you chose it. Tomorrow morning you’ll choose not to do it. You’re your own friend; you didn’t sign a contract. Fine. Now I’m asking whether one ought to choose, not whether you chose. Again you’re going back to the same point I talked about earlier. You’re presenting it as something arbitrary, like the coerciveness of the law. I’m asking why it’s justified, not why people do it. Why do people do it? If I decided to do it, there’s no question why I’ll do it, because I decided. The question is why they demand that I do it, why it’s right, why if I don’t do it people will have claims against me. That’s the question. If in fact they will have claims against me. You can say they won’t have claims against me, it’s an arbitrary decision. Everyone does whatever they want. But that’s exactly the point: if that’s really so, then you’re saying there is no authority. You’re not answering the question. That there really is no authority; rather, if I decide, then I’ll do it. Okay. So the point is this: this really is a question in logic. How, in the end, do we believe in axioms? Let’s formulate it that way. Why are axioms true? We have no proof for them; they’re not based on any more fundamental principles. So why are they true? And the answer is: that’s not even a question. It’s not a question because the truth of something can only be in that sense. Meaning, take geometry. Why is the theorem that the sum of the angles in a triangle is one hundred and eighty degrees true? Because it follows from the axioms. Right? Because you can prove it on the basis of the axioms. And the axioms—why are they true? Just because. Meaning, “just because” isn’t an answer, like children say. “Just because” is the definition of axioms. “Just because” isn’t an answer. So I say: if “just because” isn’t an answer, then not only are the axioms not true, the statement that the sum of the angles in a triangle is one hundred and eighty degrees also isn’t true. Because its truth is derived from the axioms, so the whole concept of “true” goes in the trash. There is no such thing as true, really. That’s what you’re saying. The only way to retain the concept of truth is to accept the truth of things that are true in and of themselves, that don’t need a more fundamental justification. And when I say “just because,” when someone asks me why two parallel lines do not meet, or why exactly one straight line passes through two points, the answer is: just because. What does that mean? Not “just because” in the arbitrary sense—because I decided so, because I have power, or because I just arbitrarily decided, or accepted it upon myself, or chose it. That’s nonsense. It’s “just because” because it’s true, because whoever says otherwise is mistaken. How do you know? I know. Without proofs—I simply know; it’s true in and of itself. Okay? So understand that when I say “just because” here, the concept can be understood in two ways. There’s “just because” in the arbitrary sense—because that’s what I decided, because I have the power, or even if I don’t have power, I just arbitrarily decided for myself; whatever, but it’s an arbitrary matter. That’s no answer to anything. You just decided—good for you. But when you ask why it’s true—not why you decided, or why one has to do it, not why you do it—that’s a normative question, not a factual one, okay? So here the answer “just because” takes on a different meaning. “Just because” isn’t arbitrary; it’s because it’s true in and of itself. You have to understand it; whoever looks at it sees that it’s true.

[Speaker F] But without proof.

[Rabbi Michael Abraham] Without proofs, yes—that’s exactly the point. More than that: the entire concept of proof is based on the validity of “just because.” Because if you didn’t accept the validity of “just because,” then what is a proof? A proof is reducing a proposition to axioms. But if you don’t accept the truth of the axioms, what good does that reduction do me? What good does it do me to ground the proposition in assumptions if you don’t accept the truth of the assumptions? Therefore the entire concept of correctness, or the concept of truth, or the concept of obligation in the normative context, assumes that there is some foundation that is binding in its own right, or true in its own right. The term “just because” here represents something that is necessarily true in itself, not something that is true because I have a proof for it.

[Speaker F] And who decides? The truth decides.

[Rabbi Michael Abraham] Why is there a wall here? Who decides? Because there’s a wall here. What do you mean, why? Whoever doesn’t see it is blind. Meaning it’s the same thing in the moral context as well. Meaning: who decides that murder is forbidden? Nobody decides, but whoever doesn’t understand that is an idiot. Meaning it’s obvious that murder is forbidden; it’s self-evident. Again—unless you’re a relativist, someone who believes in moral relativism. But if you understand that morality is binding, then there’s no question of who decides, because that’s what morality says. What do you mean? Whoever doesn’t see it is simply blind.

[Speaker E] Could one say that the Holy One, blessed be He, established these primary intuitions?

[Rabbi Michael Abraham] You can; I say that too. But that’s not the issue right now—that’s already the metaphysics behind the matter. But on the phenomenological level, meaning: how does it work? You understand that it’s true. And why is it true? Later you can give some account that the Holy One, blessed be He, said it, or things like that, but that’s already a different cause. So really—take Torah-level commandments, for example. If you ask me why keep them, I say: because there is a principle—I don’t know, moral, religious, however you want to formulate it—that says that if God, who created the world and us, commands something, then it should be done. Yes, that’s obvious. You’ll ask me why? Just because. What do you mean, why? Because it’s obvious: if God says so, then that’s what needs to be done. By the way, this clears up a lot of confusion. Ask people why they keep commandments. You’ll hear all kinds of made-up answers from here and there—gratitude, and God knows everything, therefore it’s the truest and most just and all the rest—nonsense. I mean nonsense in the empirical sense. That’s not really the reason they keep the commandments. Aside from the fact that it’s also not true—that’s already a personal question; someone can say, fine, you think it’s not true, I think it is true. I don’t believe you. Meaning: that’s not why you keep commandments. Rather, you keep commandments just because. A person with religious consciousness understands that when you stand before the Holy One, blessed be He, and He says something, you have to do it. Period. And it’s not a matter of some other principle that grounds why one must obey the Holy One, blessed be He. I’ll ask you about that principle too: why? In the end it has to stop somewhere. The obligation to obey a divine command is the basic principle; it doesn’t need to be grounded in something more fundamental. The search for “why” assumes a mistaken premise—that there is some more fundamental principle that is self-evident, while this one is not self-evident. No—this itself is self-evident.

[Speaker F] But how do we know that God said this?

[Rabbi Michael Abraham] That’s a different question; that’s already a factual question. It’s in the law book.

[Speaker F] No, that’s already a factual question.

[Rabbi Michael Abraham] That’s already a factual question. The question is whether you believe that what is written in the law book was really given by the Holy One, blessed be He, or not. Law. Like law. No, that’s not law. It’s a factual question, and therefore it’s not normative. Meaning: the question of the law’s authority is a normative question. There is a law—but why should one obey it? The factual question is: who said there is a law? Meaning: who said that this is what the legislator said? That’s a factual question. So if you’re persuaded by tradition and the revelation at Mount Sinai, then you’re persuaded; and if not, then you have a factual dispute. But that doesn’t bother me at the moment. So if I return to our issue: basically this means that in every normative system there must be some supreme principle, a basic norm, or a principle outside the system, that gives it validity. And what you asked earlier—yes, and who gives that principle itself validity? The answer is: it is valid in its own right.

[Speaker B] Why are we obligated—why is it that we’re trying to give a reason that will create obligation? Why is there obligation at all?

[Rabbi Michael Abraham] I said: if there is no obligation, then there is no question.

[Speaker B] We do it because we want to, because we think it’s right.

[Rabbi Michael Abraham] No, no. We do it because we think it’s right—so the question is: why do you make claims against someone who doesn’t do it? The halakhic system assumes that people are obligated to do it. If you leave it as something voluntary, up to each individual’s discretion, that’s not called authority. Our topic here is authority. Authority means that you are supposed to accept it whether you want to or not. And the question is—and again, “supposed to,” not in a coercive sense; “supposed to” because it is justified, right? The question is: why? So if on your own you accept it even though it’s not right, then fine, no problem. But the concept of authority is applied to rabbinic laws. The question is what it says, what its source is. Okay, so that’s really the question. And of course this question exists mainly in Nachmanides’ approach. In Maimonides’ approach the question is why this is rabbinic, because after all there is a verse. In Nachmanides’ approach the question is why obey at all, because there can’t be a verse, otherwise according to him it would be Torah-level law. If there is no verse, why obey? So in Nachmanides’ approach I’ve seen various places where people try to offer suggestions; none of them really pleased me. I’ll suggest some; I’ll bring a few possibilities here. In Nachmanides himself, some wanted to infer that according to Nachmanides it is a positive commandment to obey the sages, and not the prohibition of “do not turn aside.” “And you shall keep My charge,” or some other source like that, which basically makes it a positive commandment. In principle that’s possible, because there is a dispute among the later authorities over whether a doubt regarding a positive commandment is treated stringently or leniently. In principle, a Torah-level doubt is treated stringently. Now, if this were a positive commandment, then according to Nachmanides it still wouldn’t solve the problem, because if it’s a positive commandment, then in a case of doubt we would still have to be stringent; a positive commandment is also Torah-level. And if I have a doubt, I have to be stringent. But there are later authorities who want to claim that “a Torah-level doubt is treated stringently” applies only to prohibitions; with positive commandments, a Torah-level doubt is different. Then maybe one could explain that according to Nachmanides it is a positive commandment, and his question against Maimonides is that if there is a source in the Torah, then in a case of doubt we should have to be stringent, which would basically turn it into Torah law—and that objection would fall away. Because no: its doubt would be treated leniently even though it is Torah law, because it is a positive commandment and not a prohibition. But I don’t think that’s right. First, from Maimonides’ wording it’s clear that it’s not right. Second, when the later authorities say that a doubt regarding a positive commandment is treated leniently, they don’t mean this. They mean, say, if I have the commandment of tekhelet. Let’s say there is a commandment of tekhelet. Okay? Now I have a snail—they’ve supposedly identified a snail, right? There are different views regarding the tekhelet. And they claim this is the tekhelet the Torah intended. Yes, it has been accepted for many years that we don’t know the tekhelet and we wear fringes without tekhelet. But in the nineteenth century, the Radzin Rebbe proposed a suggestion. And now there is a new proposal that seems more credible—at least to me, or to many people. Some kind of spiny dye-murex, whatever it is, not important. They identified some snail and claim that this is the tekhelet. Now suppose I’m in doubt; I don’t know whether this is the tekhelet or not. So the Radzin Rebbe himself, in his book on tekhelet, brings Rabbi Akiva Eiger’s claim, where Rabbi Akiva Eiger argues that in such a case there is no rule of doubt requiring stringency. He wanted to claim that even someone who isn’t certain, who is only in doubt whether this is the tekhelet, even though this is a Torah-level doubt because there is a Torah-level positive commandment to put on tekhelet—about that he says: Rabbi Akiva Eiger argues no. Why not? Because doubt, apparently, is always in a situation where you need to satisfy all possibilities. Meaning, say I have doubtful pork, doubtful kosher meat—then don’t eat. Why? Because if you don’t eat, then you’re definitely fine. Right? If you eat, you don’t know; maybe you sinned, maybe not. But if you don’t eat, then you’re definitely fine. But with fringes, if it’s not the tekhelet, then even if you put it on, you still haven’t fulfilled the positive commandment. It works the opposite of prohibitions. Right? With fringes, even if you put it on just to be safe, despite not being sure that this is the tekhelet, you have not fulfilled all possibilities. On the possibility that it isn’t tekhelet, you did not fulfill the positive commandment. So what did you gain? Fifty percent instead of zero. Here the two possibilities are either you definitely did not fulfill it, or there is a fifty percent chance that you did. Who says that in such a case there is a rule that a Torah-level doubt is treated stringently? A Torah-level doubt is treated stringently where one option means a fifty percent chance of transgression and the other means zero percent chance of transgression—that is, you’re definitely okay. So in that case, go with the path where you’re definitely okay. But that doesn’t mean always choosing fifty percent gain over the alternative. Therefore Rabbi Akiva Eiger says in a situation like what?

[Speaker B] That’s also true in a prohibition—meaning, if there is an option not to do something that is certainly forbidden, or to do something that is only doubtfully forbidden—

[Rabbi Michael Abraham] Then there will be no obligation—no obligation to do the doubtfully forbidden thing, yes. That’s the claim. And therefore Rabbi Akiva Eiger basically says that this isn’t exactly a rule about doubt regarding positive commandments; it’s a rule in a situation where you can definitely come out okay. Then you have to be stringent. Okay? Now, suppose I have poultry cooked with milk, and suppose there is a positive commandment to obey the sages. Okay? Now I don’t know whether this is poultry or soy mixed with milk here. So I have a rabbinic doubt. What comes out according to Rabbi Akiva Eiger? I can be lenient—and there is a positive commandment to obey the sages. That’s the positive commandment; it’s not a prohibition. Okay? What does that positive commandment say? It says that poultry with milk is forbidden to eat, right? Most rabbinic commandments, by the way, are prohibitions. There are few rabbinic positive commandments. Most are rabbinic prohibitions. Okay? So in most cases the positive commandment actually imposes on me an obligation of omission, an obligation not to act. Okay? Now, if I don’t eat this poultry with milk, then I have definitely fulfilled my obligation, right? So I definitely have not violated that positive commandment. If I do eat this poultry with milk—this doubtful poultry with milk—then either I violated the positive commandment or I didn’t. In such a case, even Rabbi Akiva Eiger says I must be stringent. Because if I am stringent, I definitely come out okay. Okay? Here we cannot say that the rule is that a doubt regarding a positive commandment is not treated stringently. Even Rabbi Akiva Eiger admits that in such a case I do have to be stringent, because at the conceptual level this is basically a prohibition—it is a positive commandment expressed in the form of a prohibition. Okay? Therefore here the doubt will be treated stringently, and so the claim that one can explain Nachmanides by grounding the obligation to obey the sages in a positive commandment rather than a prohibition—I don’t think that solves the problem for us. Good. Another possibility… another possibility is the claim that speaks of the acceptance of the collective of Israel. Rabbi Kook speaks about this; Rabbi Shlomo Fisher speaks about it in Beit Yishai—that what the entire public accepted upon itself is binding. So of course here too I can ask: where does that binding force come from? From reason. So if it’s from reason, why do I need a verse? Reason becomes Torah law. That’s what I’ve been asking all along. So if it’s Torah law, then a case of doubt should be treated stringently.

[Speaker E] But earlier you said that a Torah-level doubt is treated leniently by Torah law—that Maimonides… You’re talking about Nachmanides now.

[Rabbi Michael Abraham] So I’m saying, maybe if you combine—

[Speaker E] these two lines of reasoning, could that solve the whole tangle?

[Rabbi Michael Abraham] That’s according to Nachmanides. That’s why I said: according to Nachmanides I’m in trouble, because Nachmanides says that a Torah-level doubt is treated stringently by Torah law. Therefore the discussion is basically mainly in Nachmanides’ approach at the moment. Afterwards we’ll see what to do with Maimonides. So I’m saying: the acceptance of the collective of Israel—maybe that could work—but it’s still not entirely clear that it solves the problem. Because if there is some reasoning that says a contract is binding—that is, if you accepted something upon yourself, you have to do it, or what the public accepted upon itself, you have to do—why shouldn’t that reasoning itself become a Torah-level source obligating you to be stringent in cases of doubt and all the other issues? Of course here there opens up the possibility of saying: we accepted it upon ourselves, but we also accepted that in cases of doubt, no. After all, we are the ones deciding. We accepted it. The question is what the contract we accepted upon ourselves says. We’re shaping the contract, if it’s us and not the Torah. So maybe.

[Speaker B] It would still be the same forced answer that Nachmanides saw in Maimonides.

[Rabbi Michael Abraham] Right, it wouldn’t be fundamentally different from what Nachmanides attacks in Maimonides.

[Speaker B] But that’s an edge case. My understanding was that what bothered him wasn’t only the edge case of doubt touching on a dispute among sages, in which case what exactly did the verse mean if opinions differed, but that there was something strange in the whole idea.

[Rabbi Michael Abraham] Although I don’t really see what’s so strange in the idea. The fact is that many later authorities really explain Maimonides this way. I don’t see why it’s so strange. Nachmanides himself doesn’t accept it—you are right that according to that it also makes this direction within Nachmanides somewhat difficult. Another possibility—and maybe it’s a continuation of the same principle. When you talk about the acceptance of the collective of Israel, you’re basically saying that what the public accepted upon itself binds me. I’ll formulate the same thing a bit differently. One could say it’s the same thing, but in a slightly different form. When we talk about the authority of the sages, we’re basically assuming that there is a situation of authority here. And in the opening lectures, when I explained what authority is, I said that it’s basically some factor standing opposite me, and I need to do things simply because that’s what it says. Right? That’s what is called authority. Because if I do it because it’s right, then it’s not authority. So I do it because of the very fact that it said so. And the more fundamental assumption is that here there is some standing of mine opposite an authoritative factor. Meaning: there are two parties standing opposite one another, and one has authority over the other. One is the authority, and the other is the subject, the obligated one, the one upon whom the authority is exercised. But maybe this description itself is lacking. Maybe it’s not correct to see it as me standing opposite the sages, while they are some authoritative factor and I need to ask, wait a second, why do I have to obey you? I’m not standing opposite them; figuratively speaking, I’m standing behind them. It’s not that they stand opposite me and command me. We’re standing in a line. Meaning, I’m standing behind them. When they say something, I said it. They are simply my representatives. Once I accepted, together with the public as a whole, that this is what should be done, then I am supposed to carry out what I said. Right? That’s why I said it’s somewhat similar to the previous formulation, but I still think it’s a slightly different formulation. And it seems to me that, if I go back to the question of why obey the law, I think at bottom this is the explanation of why obey the law—not all the various explanations people offer.

[Speaker E] But if it’s you who said it, then say something else. What?

[Rabbi Michael Abraham] Say now that you’ve changed your mind. No, because you’re part of the public. The public said it. You can’t say that you’re… that’s exactly the point. There is an authoritative dimension here in the sense that, say, you can claim: I disconnected from the public. The question is whether one can do such a thing. It’s like saying, “I’m not me.” What do you mean, “I’m not me”? You signed the contract. So tomorrow morning can you say, no, that’s not me, that’s someone else, I decided to change my identity?

[Speaker B] Okay, now I’m something else. You can’t always do everything. Who is “I”?

[Speaker F] Yes,

[Rabbi Michael Abraham] But I said you signed the contract.

[Speaker F] No—

[Rabbi Michael Abraham] You yourself signed the contract. “Now I’m something else, I repented, I became secular”—that doesn’t exist.

[Speaker F] The public is an amorphous body.

[Rabbi Michael Abraham] Then this becomes a whole series in itself. But the point is, if this is clear, then it assumes—not like that. The claim is that you belong to the public. When the public, or the public’s representatives—the Torah scholars—determined something, you are not standing opposite them; you are standing behind them. Meaning: this isn’t some authoritative factor standing opposite you and you asking yourself why obey it. Rather, once the public determined something, then you, as part of the public, also determined it. Meaning: your representatives essentially spoke on your behalf, on behalf of everyone. It follows that of course you also have to do it. Now “have to do it” not in the sense that you decided and can also decide not to—no. There is a claim against you that you ought to do it. Of course someone can come and deny this very thing. I’m not saying it’s impossible to deny it. I’m only claiming that I can see here a mechanism that has validity. Meaning, I can understand a person who says that this is a valid mechanism.

[Speaker D] Even when the public accepts something upon itself, in fact it accepts it because the Torah gave authority to the sages, and therefore it is willing to accept it upon itself.

[Rabbi Michael Abraham] Again—the Torah established… no, according to this approach, the Torah did not give authority to the sages; it only established that when the sages speak, they speak in the name of this public called the collective of Israel.

[Speaker B] So now—

[Rabbi Michael Abraham] Once the public decided something, you have to do it. Many times you’ll ask someone, why not run a red light? You’ll hear all kinds of explanations—because it’s dangerous, because this, because that. That’s nonsense; those are not the explanations. It’s not entirely clear. Why is it forbidden to run a red light? Because the law said you’re not allowed to run a red light. And what do you mean “forbidden to run it”? And if the law said so, then what? And then he always gets stuck and starts looking for all kinds of explanations. Again, none of those explanations are convincing; it’s nonsense. Let’s say that tomorrow morning you’ll cross in a place where it’s safe, and tomorrow morning someone else will cross in a situation where it isn’t safe, so I’ll make sure nobody finds out. So what? That’s the question; it’s an essential question. Don’t tell me stories. Meaning: why do I have to obey it?

[Speaker F] Speed limits, speed limits.

[Rabbi Michael Abraham] What? Speed limits or red lights—it doesn’t matter, all kinds of things like that. The answer is: because the law said so. That’s all. Meaning: because the law said so. And that’s what every person will tell you. Now when rational people look at the ordinary person on the street who says, “because that’s what the law says,” they laugh at him. What do you mean, because that’s what the law says? I’m asking you, though, why obey the law? What does “because that’s what the law says” mean?

[Speaker B] And there are people who would say that there really is no problem running a red light if you see there is nobody there.

[Rabbi Michael Abraham] I disagree. I think most people would not say that. They would say, listen, I’m cutting corners. They wouldn’t say I’m in the right. They wouldn’t complain about a police officer who catches me and gives me a ticket. They understand that he’s right. Rather, they’re cutting corners. Fine, what happened? It’s more important to me to get there fast than to obey the law—but that doesn’t mean there is no value in obeying the law. It just means getting there fast matters more to me.

[Speaker B] I think most people would appreciate a person who stops—

[Rabbi Michael Abraham] As a pedestrian—

[Speaker B] let’s say in a place with almost no traffic.

[Rabbi Michael Abraham] I think so. I think so. Most people would tell you that it’s not—no, no—even in Israel. In my opinion, absolutely.

[Speaker B] Most what? Again—

[Rabbi Michael Abraham] Again, I didn’t do a survey, I mean—

[Speaker B] They’d say, what are you doing, what a waste of time. Not true, not true, not true. But—

[Speaker E] There’s a difference. Traffic law has force that’s not—not criminal, I mean. Also someone who is a traffic offender and runs a red light isn’t seen as a criminal offender. That’s not true; it is criminal. Running a red light is a criminal offense.

[Rabbi Michael Abraham] Traffic laws—

[Speaker C] Traffic laws—what difference does it make whether it’s criminal or not?

[Speaker F] No, but it’s—

[Rabbi Michael Abraham] It doesn’t matter. The law said so—what difference does it make whether it’s criminal or not? That’s not important. The law said so, and that binds. It doesn’t matter right now what category of law it is. And the point is: what does it mean, “because the law said so”? What lies behind that statement of the ordinary person on the street? Because basically that’s what he’ll tell you. Why obey the law? Because the law said so. And then you always come to him with the complaint: wait, but you’re acting against the law. Okay, so I’m acting against the law—so what happened? Is “the law” some kind of magic word? So what if I’m acting against the law? As if that counts as a reason: but you’re acting against the law. Why is that? So the sober rationalists, the philosophers, laugh at this, but there’s nothing to laugh at. I think what stands behind it is a conception that says: if I am a citizen of this state, and the legislator duly elected established something, then I myself established it. He said it as my representative. If I said it, then I need to stand behind what I say. That’s what lies behind this conception, in my opinion. And I think the same thing exists regarding the authority of the sages as well. But what this mechanism actually says is that I’m not talking at all about the authority of the sages. That’s not the point—that they have authority over me or that they stand opposite me. Rather, what I say, obviously I need to stand behind. If I determined it, and all of us determined it together, then we need to do what we determined. It’s like some kind of first principle like that. You can always ask why. And my answer is: just because.

[Speaker D] But who determines who the sages are? Us too? By our agreement?

[Rabbi Michael Abraham] The Torah determined the mechanism of ordination. Maimonides argues that it can also be renewed from below. We talked a bit about the whole issue of ordination, but the Torah determined it. And that can be discussed. Of course you can argue and say, listen, the Torah determined that my representatives are such-and-such, but that doesn’t make them my representatives. That’s another issue. But I’m saying: I’m not proposing a mechanism that will certainly convince everyone. I’m trying to propose a mechanism that, at least for me, is satisfactory. Not in order to convince someone who doesn’t accept it, but so that I can give myself an account and say: if I think this way, then it sounds reasonable to me, it’s fine. So I can understand why, over time, I do this. And why I think this should be done—meaning, someone who doesn’t do it is not acting properly. That’s the point. Not an explanation of why I do it. Why do I do it? Because I decided. That’s not the… So here it’s a somewhat radical approach, because it’s an approach that basically says the sages have no authority. It’s not that they are an authority. Rather, if you said it, then do what you said. Meaning, you’re the one speaking here—not the sages.

[Speaker E] But you can say that they don’t represent me, for example.

[Rabbi Michael Abraham] What? Yes. So that’s why I said: you can make such a claim, and I won’t be able to justify to you why it’s not true. But I do think I can claim against you that you’re acting improperly. Meaning, I think you’re acting improperly. I don’t know how to give you reasons why, but if you think otherwise, I understand that we won’t reach common ground. But I can explain to myself why I see an obligation here, why someone who does otherwise seems to me not okay. For me that’s enough. I can’t reach a conclusion that will be accepted by everyone. Whoever doesn’t agree with my basic assumptions—there’s nothing I can do with him. Like someone who doesn’t agree that exactly one straight line passes through two points—how are you going to convince him? You won’t succeed. But to me it’s obvious that he’s mistaken.

[Speaker B] But there are other axioms.

[Rabbi Michael Abraham] No—with axioms you won’t be able to do anything. You can show him that there is one straight line, but you won’t be able to show him that there aren’t two. How will you show him? So far we haven’t found a way.

[Speaker B] You could accept it mathematically. No—it wouldn’t convince him in the same way, at the same level of absoluteness.

[Rabbi Michael Abraham] So far we haven’t found it, fine. But I still think there’s some hidden line that we just haven’t found. Empirically you won’t get there; this issue—that one straight line passes through two points—is not an empirical finding. Or take parallel lines: take the theory to the end and you’ll see that they meet at infinity. Fine—I’m claiming that if you continue all the way. In mathematics they say they do meet, only they meet at infinity. That’s just a slightly different formulation of the fact that they don’t meet, because infinity is a potential concept. So he says, fine, if I go all the way to infinity they’ll meet somewhere. Meaning, then you still won’t convince me. Lead me as far as you want, and I’ll always say, fine, we haven’t gotten there yet, but later there will still be that historic meeting between the two parallels. Okay. You won’t succeed in convincing me empirically. But that still doesn’t mean that if I can’t convince someone, then he’s as right as I am—which is the postmodern approach. I don’t agree. Meaning, it’s obvious that he’s mistaken. The fact that I can’t convince him—fine, what can I do? He’s still mistaken.

[Speaker E] But the model you used with the Holy One, blessed be He, sounds more convincing—when you say you replace the Holy One, blessed be He, with an authority like the Knesset or the sages, and then instead of saying there is no “I,” I say that they are something else, separate from me, but intuitively I understand that I need to do what they say.

[Rabbi Michael Abraham] Meaning, one must obey them at the Torah level. When I speak about the Holy One, blessed be He—why do I need to obey Him?

[Speaker E] But with rabbinic law it’s the same thing. Just as you understand that you need to obey the Holy One, blessed be He, you understand that you need to obey the sages. Why?

[Rabbi Michael Abraham] What do you mean? Just some group of people that need to be obeyed? So what? Why obey them? No—God has a different status than a few wise people. In the end they’re just human beings, flesh and blood. Why should one obey them? That’s just a line of reasoning. If someone thinks that, fine. Maybe that’s what he thinks, maybe that satisfies him. I don’t feel that it satisfies me. I mean, here are a few wise people, as wise as they may be—where does their authority come from? Meaning—

[Speaker C] But let’s take the model of law. So say a law in Israel—does it have the same authority as a rabbinic enactment?

[Rabbi Michael Abraham] Not the same authority, but parallel authority. Yes, obviously. This binds, and that binds too.

[Speaker C] And why isn’t it exactly the same authority?

[Rabbi Michael Abraham] Because it’s a different factor. One grants authority to this factor, and one grants authority to that factor, but it’s the same mechanism of authority. Yes, obviously—the same mechanism. Say there were two groups of sages, and with respect to each one separately I would make this calculation and conclude that they have authority—then both would have authority. They are different factors, but both have authority in relation to me. That’s basically the situation here. Yes. Now the question is what happens when there are conflicts. That’s a good question; it has to be discussed. It’s not simple at all. The law of the kingdom is law can indeed, in certain situations, override halakhot, depending on the context. But it’s not simple what happens in cases of conflict. But in principle, both directions have authority; it’s a parallel mechanism.

[Speaker B] The understanding you suggested—seeing the authority of the sages as some sort of assumption in its own right—besides the problematic axiomatic aspect, there’s also a problem from the explanatory side. Because where do the sages get perceived and learned as something such that if you violate their words, you commit a sin—that is, you rebel against God in some way? Therefore, if we still want to explain the accepted approach, in the end it has to funnel into—it can’t be a basic norm like the previous norm. Why not?

[Rabbi Michael Abraham] Why can’t it be a basic norm? That as far as I’m concerned, the Holy One, blessed be He, expects me to obey it.

[Speaker B] No problem, but then it’s not a basic norm, because the basic norm is to fulfill—

[Rabbi Michael Abraham] No, it’s like “do not murder.” I also observe “do not murder” because the Holy One, blessed be He, expects me not to murder.

[Speaker B] Fine, but all that still—maps it again to the category of reasoning that ought to count as Torah-level law.

[Rabbi Michael Abraham] No, that’s what I said earlier: once you start talking about reasoning, you run the risk of entering the loop again.

[Speaker B] Because reasoning isn’t an independent thing; it’s not something independent, something I just decided to do, what I accepted upon myself to do.

[Rabbi Michael Abraham] Authority by definition is not something I wanted to do, because otherwise it’s not the concept of authority. We’re talking here about concepts of authority. If we accepted it upon ourselves, then there is some situation in which they receive authority from the Torah. Right? They receive authority from the Torah. From the Torah they receive ordination, not authority. Authority, no—because Nachmanides does not accept that there is a source in the Torah that gives the sages authority to legislate. Okay? The ordination—when you become an ordained sage—that mechanism was defined by the Torah.

[Speaker D] Fine, but by our human agreement, we agreed, and by means of that agreement we lower authorities that were given by the Torah—we turn them into a lower level. That is, by our own power we can suddenly start lowering the level of the commandment or of the Jewish law.

[Rabbi Michael Abraham] That’s no problem, because once it’s our decision, and the sages speaking are speaking in our name, then as part of that decision we can also determine that it has a lower status. We determine it. So that opens a huge door to all kinds of public agreements that could completely change things. Right, right—and that is basically the same question as the one about law. Because we also agreed to the law, and if the whole point is our agreement, then the law too is our agreement. So who says that this overrides that? It’s basically the same question—a very similar question. Yes, right. Now I want to go one step further and try a bit to connect Maimonides and Nachmanides. Nachmanides, in one place in his glosses on the First Principle—

[Speaker B] I wanted to suggest maybe another thought: why not say that the authority of the sages is grounded in reasoning? Then one could ask: if it’s reasoning, why is it not Torah-level? And the answer would be that the reasoning is that there should be authority for the sages, but that its status should be lower than actual Torah law itself.

[Rabbi Michael Abraham] To say that… I’m not sure. Because to say that… after all, even the rule that a Torah-level doubt is treated stringently is itself reasoning, and what lies behind it is that you don’t want to get into a situation where maybe you’ll commit a transgression. So if the rabbinic transgression is also a Torah-level transgression of “do not turn aside,” why shouldn’t the same reasoning apply here?

[Speaker B] I didn’t say it’s a Torah-level transgression of “do not turn aside.” It’s not a transgression; it’s reasoning. The transgression follows from reasoning.

[Rabbi Michael Abraham] Fine, reasoning—doesn’t matter.

[Speaker B] But the fact that it is reasoning—not all reasoning is… I’m not saying it’s weaker reasoning.

[Rabbi Michael Abraham] To that I already responded earlier. But that still doesn’t mean it seems to him—

[Speaker B] weaker reasoning than the other reasoning. The point is not that the reasoning is weak in the sense that, generally speaking, it doesn’t seem so important. Rather, the reasoning is—let’s say the reasoning is strong, perhaps, in some overall sense, but weak with respect to each particular detail. That is, the reasoning is that as a whole there needs to be such authority, but not that it should have so much authority that each individual detail of it should be like a Torah law.

[Rabbi Michael Abraham] Okay, okay. That formulation I’m willing to accept.

[Speaker B] Or let’s say from a slightly different direction: the reasoning is that indeed there needs to be authority to enact, but it’s not reasonable—

[Rabbi Michael Abraham] that every specific rabbinic norm should have the full force of the general reasoning that there needs to be authority for the sages—though of course the question is, once you undermine detail after detail, what remains of the general authority? But I’ll get to that from another direction.

[Speaker B] No, because I’m not undermining detail after detail. I’m saying there is room for leniency, and leniency.

[Rabbi Michael Abraham] In the end, what remains of the general authority if each instance of authority is weaker than any one of the particulars? I’ll present something similar from a somewhat different angle. Nachmanides says in his glosses to the first shoresh that the only place, as far as I know, where he cites a source for the obligation to obey the sages is from “do not turn aside,” but he claims that this is only an asmachta. I mentioned this in the previous lecture. I said that the Talmud in tractate Sabbath, when it asks about the Hanukkah candle, says: “Where did He command us?” After all, we recite the blessing, “Who sanctified us with His commandments and commanded us to light the Hanukkah candle,” so the Talmud asks: where did He command us? After all, the Hanukkah candle is a rabbinic commandment. And the Talmud answers: from “do not turn aside.” Seemingly, that is proof for Maimonides against Nachmanides, that the source of the sages’ authority is “do not turn aside.” For Nachmanides, it’s only an asmachta. But if it’s an asmachta, there is still some statement here that the authority to obey the sages is somehow connected to the verse “do not turn aside.” And in the usual understanding of asmachta, that’s not exactly how it works. In the usual understanding of asmachta, what is asmachta in its standard appearance? It is basically a rabbinic law for which we bring some verse. It kind of resembles it, something like that; we hang it on the verse, but it’s not really derived from the verse. It just loosely echoes the verse and somehow connects to the verse. It reminds us a bit of the matter—asmachta—but in essence it is a rabbinic enactment. Here that can’t be the meaning, because it can’t be that Maimonides says that the obligation itself to obey the sages is itself a rabbinic obligation. How can you say that “do not turn aside” is an asmachta in the ordinary sense of asmachta? That can’t be. So it is clear that when Nachmanides speaks about “do not turn aside” as an asmachta, he is using the term asmachta differently from the accepted meaning. Right? In Nachmanides that is obvious on its face.

Now I want to suggest an explanation of how he uses it, and in my view this explanation is also correct for Nachmanides. I want to propose a mechanism in Maimonides, and it will also explain this Nachmanides. With Maimonides, our problem is the opposite one. We know why we have to obey the sages, because it says “do not turn aside.” The only question is: why is this rabbinic law and not Torah law? Why is doubt treated leniently? What I want to argue is the following. Maybe I’ll first add another introduction regarding Maimonides. There are several later authorities who want to say that Maimonides does not really mean that every time I eat chicken with milk I violate “do not turn aside.” Maimonides means that if I eat chicken with milk because I do not recognize, in principle, the authority of the sages, then I violate “do not turn aside.” I simply do not see the sages’ ruling as binding, so I violated “do not turn aside” because I do not accept their fundamental authority. But if I ate chicken with milk just because my impulse overcame me—just as one may commit even Torah-level transgressions because his impulse overcomes him, even though he accepts the authority of the Holy One, blessed be He, but he sins because he has an impulse and did not withstand the test—then with a rabbinic law, if I sinned because of impulse and did not withstand it, I do in principle recognize their authority, so I did not “turn aside.” Therefore that would not be called violating “do not turn aside.” And that is how they explain why according to Maimonides this is not really a Torah-level transgression, because you did not violate “do not turn aside.” But truly, if you transgress out of a principled refusal to recognize the sages’ authority, that would be a Torah-level transgression—that’s what Maimonides means. But if you transgress because you failed, or because your impulse got the better of you, then it is not a Torah-level transgression. That is what many later authorities say.

I think that is the simple straightforward meaning of Maimonides. But then the question is whether this really solves the problem. It does not solve the problem. Because now I ask: why obey the sages if I do in principle recognize their authority? In other words, why not eat this pork when my impulse overcomes me? I recognize the sages’ authority in principle, but my impulse overcomes me—this is only a rabbinic transgression. If I violate it here, I won’t commit the Torah-level prohibition; I won’t violate “do not turn aside.” So then why really not do it? You return to the same problem; you have not solved anything. After all, if we have something here that is only a rabbinic prohibition, then why obey it? If it is Torah law, then it is Torah law, and a doubt must be treated stringently. You split it into two categories: if you do it this way it’s a Torah-level transgression, if you do it that way it’s a rabbinic transgression. So what have you gained? Now you have two problems. The Torah-level transgression—I understand. But why do I need to obey it? And if I do need to, then why is it only a rabbinic transgression?

[Speaker F] Except that the mode here is no longer “your impulse overcomes you,” but rather you’re saying: I’m not obeying.

[Rabbi Michael Abraham] Okay, because of my impulse?

[Speaker F] Not because of your impulse. If you’re already saying, you’re deciding—you decided, why am I not eating?

[Rabbi Michael Abraham] Right.

[Speaker F] Not because of my impulse. Not because there is an impulse, but because you tell yourself consciously.

[Rabbi Michael Abraham] You’re basically saying that someone who transgresses in that way, in practice, does not really accept the authority of the sages—that’s what you’re saying. Yes. I completely agree, and I’ll give an example for it. In the book Winnie-the-Pooh, it says there on Piglet’s hut: “Offenders will be punished.” What does it say? You arrive there—fine—“Offenders will be punished,” but what is an offender? Meaning, what are you supposed to do in order to be an offender? It doesn’t say. It says, “Offenders will be punished.” Okay. Ask yourself what such a statement means. As long as you have not determined what an offense is, there is no meaning at all to determining who is an offender. In other words, you can’t legislate about offenders without there being content to the concept of offending.

Now the claim these later authorities make in Maimonides seemingly says the same thing. The sages have authority in principle; it is forbidden to dispute their authority, except that nothing they actually say is binding. Because if I do it only because my impulse overcomes me, then that’s fine—it’s only a rabbinic prohibition; I did not violate “do not turn aside.” When do I violate “do not turn aside”? Only when I do not recognize their authority in principle. But what does it mean to recognize their authority? No specific statement of theirs really binds me; only the general recognition of their authority. So that is exactly Winnie-the-Pooh’s “Offenders will be punished.” It is exactly the same thing. You are basically saying that anyone who does not recognize the sages’ authority in principle is an offender—but do whatever you want; it’s not a Torah-level prohibition. So then what content is there to recognizing their authority? That is exactly what Yitzhak basically said earlier. In practice this is not true; the distinction is artificial. If you say, look, the moment my impulse overcomes me, then… then I can do it because I recognize their authority in principle—but you are doing it because you do not recognize their authority. You’re saying that if my impulse overcomes me then I do it, so you do not really recognize their authority. One cannot commit a transgression and recognize the authority in principle, yet violate this particular law and still regard oneself as someone who recognizes their authority, because then that basically means that you recognize an authority devoid of content. Here the offenders exist without offending. In other words, you are supposed in principle to recognize the sages’ authority and then do whatever you want—so in what sense do you recognize their authority?

But what emerges from this, from this consideration? What basically emerges is the following. Now look, this is an interesting logical exercise. What emerges from this is that when you say “do not turn aside,” the Torah is saying that the sages have authority. Okay. Now if the Torah tells me that the sages have authority, then clearly one must obey them, because otherwise that authority is like “Offenders will be punished”—it is empty of content. So one must obey them, right? Still, if you eat because your impulse overpowered you, you violate only a rabbinic prohibition. You did not violate “do not turn aside.” Why? Because you do recognize their authority in principle; you simply yielded to impulse. But obviously you cannot do that as a policy. You cannot say: ah, since “do not turn aside” is not at issue here, therefore I’ll do it. Because if you do that as a policy, then you have violated “do not turn aside,” and then it becomes Torah-level.

So what comes out here? We gain both ways, and that is perfectly fine; there is no logical contradiction. You are basically saying: the Torah says there is “do not turn aside”; that is a Torah-level prohibition. Fine? The Torah also says that if the sages have authority, that means that the specific norms they enacted have force; one must obey them. But on the other hand, that does not contradict the fact that if I transgressed because of impulse, then I violated only a rabbinic prohibition; I did not violate “do not turn aside.” And that is not written there. Why? Because the fact that one must not eat chicken with milk is not written in the verse “do not turn aside”; it branches out from the verse “do not turn aside.” What is written in the verse “do not turn aside”? That the sages have principled authority—that is what is written in the verse. It is not written in the verse that whatever the sages determine, if I violate it I violate “do not turn aside”—that is not written.

I’ll give an example. If the Torah says that a vow must be kept—“you shall keep what comes from your lips,” “he shall not break his word”—that means there is both a prohibition and a positive commandment to comply with what I vowed. Fine? Now here, if I vowed to refrain from benefit from this book, then if I used this book I violated a Torah-level prohibition, both a prohibition and a positive commandment, right? That is what I call specification, and this is a particular case of the general prohibition. The general prohibition is to keep vows, and every specific vow is a particular case such that if you violated it, you in fact violated the prohibition to keep your vows.

With “do not turn aside,” the relationship is different. I call it a relationship of branching-out, not specification. In other words, from the rule “do not turn aside” branches out the understanding that there is such a mechanism as rabbinic prohibitions, because if there were no such mechanism there would be no content to the sages’ Torah-level authority; it would be like “Offenders will be punished,” it would remain an empty authority. But that does not mean that everyone who eats chicken with milk has violated “do not turn aside.” This is not specification. Rather, from the fact that there is “do not turn aside,” I learn indirectly that the Torah apparently recognizes some authority of secondary legislation, because otherwise it would have no meaning. Otherwise I could do whatever I want, merely declaring that I recognize the sages’ authority, and that would not count as recognizing the sages’ authority. But that does not mean that every time I eat chicken with milk I have violated “do not turn aside,” because the verse “do not turn aside” tells me only that if you do not recognize their authority, you have violated that verse. Okay?

Rather, from that verse branches out the conclusion that one must obey the sages. It is not specified there; it is not a particular case of the general principle. Rather, it branches out. From the whole setup I understand that the Torah in fact recognizes another layer of Jewish law, called rabbinic law. And then what comes out? In my opinion, this is what Nachmanides means—and first of all, what Maimonides says. Therefore, when Maimonides says that “do not turn aside” is the source for the sages’ legislation, he does not mean that every case of chicken with milk is a Torah-level violation. Rather, what he means is that from the Torah’s demand that I obey, there branches out the understanding that secondary legislation has validity. But that does not mean it has the same status, because you do not violate “do not turn aside” when you eat chicken with milk—unless you do not recognize their authority. And then, if you had a doubt whether to recognize their authority or not, in that you would have to be stringent. If you have a doubt whether this is chicken or not chicken, what is the problem? That is a rabbinic doubt, and one may be lenient. Okay? That is the point.

Now I am saying: this is also what Nachmanides means when he speaks about asmachta. When Nachmanides speaks of an asmachta from “do not turn aside,” he does not mean asmachta in the sense of a mnemonic aid, where in fact it is rabbinic but there is a verse. That cannot be, because if it is rabbinic, then it is a loop. Right? How can the obligation to obey the sages itself be a rabbinic law? No. He means: it comes out of the verse, but it comes out of the verse not directly. That is, it comes out of the verse in the sense that the verse teaches me that such a thing exists. The verse does not command me. The verse does not command me: do not eat chicken with milk. It is not like a vow. In a vow, after I vowed to prohibit this book to myself, the verse itself tells me: do not use this book, because that is simply a particular case of the general prohibition of vows. But in “do not turn aside” it is not like that. Eating chicken with milk is not a particular case of a prohibition stated by the sages. Because if I do in principle recognize their authority, then that is fine; I simply yielded to impulse because I did not withstand the test. But obviously that is not fine as a policy. I cannot decide that I am yielding to impulse. If I decide that I am yielding to impulse, then I did not accept the authority—I simply yielded to impulse. So what happens? I violated a rabbinic prohibition. But there is such a prohibition, because if there were no such prohibition, then there would also be no Torah-level “do not turn aside.” So “do not turn aside” reveals to me that such a prohibition exists; it does not itself command me. In a vow, it is a command: “he shall do according to whatever proceeds from his mouth,” or “he shall not break his word.” But here it only reveals to me that there is such a category of prohibitions.

Therefore this is an entirely different layer, and here what you are saying is correct: this is just an easier kind of doubt, a rabbinic doubt, and one may go leniently. And if so, it may be that Maimonides and Nachmanides are not saying different things at all; they are saying the same thing. Both of them are basically saying that it comes from “do not turn aside,” but a principled refusal to recognize their authority means you are actually violating a Torah prohibition, and in principle you should even receive lashes for that, were it not for the fact that it is not a prohibition given as a warning for a capital offense adjudicated by a religious court—I mentioned what Maimonides writes about this. But if you eat chicken with milk because you did not withstand the test, because you have an impulse, then you violated a rabbinic prohibition.

If you ask me why this is not a doubt, because you did not violate “do not turn aside.” It is not a doubt regarding the prohibition of “do not turn aside”; it is only a doubt concerning a prohibition whose existence became known to me from the verse “do not turn aside.” And this is an important point, because usually prohibitions in the Torah are the result of a command. The Torah does not tell me that there is a prohibition; the Torah commands me. Do you understand the concept of command? The concept of command does not mean that they tell me, “Do not eat pork,” merely revealing to me that eating pork is bad. It may also be that I think eating pork is bad, but that is not the point. This is exactly the concept of authority. I am commanded: do not eat pork. You do not eat pork because there is a command, not because it is bad or harmful or something like that. Maybe it is also bad and harmful, but that is not the point. The point is: there is a command, that’s all. And the assumption, of course, is that this command is the command of one who has authority, of someone who binds. Okay, that is the foundation; without that there are no commands. Okay, that is the concept of command.

In this context, “do not turn aside” is not a command. It is a command only in the context of one who does not recognize their authority in principle; it is the command that there is principled authority for the sages. But regarding chicken with milk specifically, it is not a command; it is a revelation. It reveals to me the fact that there is such a thing as this sort of rabbinic prohibition against eating chicken with milk. It does not command me: do not eat the chicken with milk, unlike a vow, which commands me not to use the book if I vowed. Okay? Therefore, on the one hand, it does come out of the verse “do not turn aside,” but it comes out not by way of specification, rather by way of branching out. Therefore its halakhic status is lighter, because not every time I did it did I violate “do not turn aside”; I violated a rabbinic prohibition. Therefore, in cases of doubt, one is lenient. This is basically the mechanism that explains the logic of secondary legislation.

By the way, secondary legislation is the point here. One could ask the same thing there as well. Every person who violates a law established by a minister—say the Knesset delegated authority and the minister can establish secondary legislation, or some ministry director-general—then has he in effect violated a Knesset law? That would be Torah-level, not rabbinic-level, because the Knesset said that he has authority. The same logical problem would arise there too. Fine, so the claim is that perhaps one can solve it in the same way: basically what we have here is branching out and not specification. We’ll dwell a bit more on—