Authority and Change in Halakha, Lesson 6
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
- The authority of the Sages and lo tasur
- Branching-out versus specification, and the example of vows
- Asmachta as an essential concept among medieval authorities (Rishonim)
- A commandment in the Torah versus will, warning, and punishment
- Analogies to civil law and sports fouls
- The Sages suspend commandments through passive omission
- Rabbinic and Torah-level as a non-chronological distinction
- Maimonides’ second root: laws derived from hermeneutical principles as “words of the Sages”
- Halakhic implications in Maimonides: punishments and doubts
- Nachmanides’ challenge to Maimonides and the model of “a branch from the root”
Summary
General overview
The lecture proposes a mechanism that grounds the authority of the Sages to legislate rabbinic law without turning those laws into Torah-level law, and distinguishes between two kinds of connection between a verse and a halakhic result: specification, where the detail is a direct application of the command and therefore has Torah-level status; and branching-out, where the verse reveals or hints at a binding system or the spirit of the matter but does not itself command the specific detail, and therefore the result has a lower level of authority. In that context, the relationship between Maimonides and Nachmanides regarding the prohibition of lo tasur is re-explained, a renewed understanding of the concept of asmachta among the medieval authorities (Rishonim) is presented, and a parallel is drawn to Maimonides’ second root regarding laws derived from hermeneutical principles, where Nachmanides sees the derashot as uncovering the depth of the verse, while Maimonides sees them as an expansion that creates a law of rabbinic status.
The authority of the Sages and lo tasur
The verse lo tasur does not anchor every rabbinic prohibition as a Torah-level prohibition; rather, it reveals that the Torah recognizes another halakhic system whose authority is lower, called rabbinic law. Nachmanides writes that lo tasur is an asmachta so that rabbinic laws will not become Torah-level laws, but it still requires explanation how the Sages have authority to legislate. It is explained that even according to later interpretations of Maimonides, one who violates a rabbinic prohibition does not necessarily violate the Torah prohibition of lo tasur; rather, only someone who fundamentally denies the authority of the Sages violates that prohibition, whereas someone who fails because of temptation violates only a rabbinic prohibition. The claim is that if lo tasur obligates recognition of authority, it must also hint at a binding legal system, because otherwise one could recognize authority in an empty, contentless way while violating all rabbinic laws at will.
Branching-out versus specification, and the example of vows
A distinction is presented between specification and branching-out: in the laws of vows there is a general prohibition and a general positive commandment, and when a person vows a particular thing, it becomes a direct application of the command, so violating it is a Torah-level violation. Nachmanides’ understanding of Maimonides is presented as a model of specification in lo tasur, where every enactment of the Sages is a detail of the Torah’s command, and therefore one who violates a rabbinic law violates the Torah-level lo tasur. Against this, it is argued that Maimonides means branching-out, where lo tasur does not command the details, like “do not eat poultry with milk,” but rather commands non-rebellion against the authority of the Sages, and from that a halakhic layer of rabbinic law is revealed. This distinction determines that one can violate a rabbinic law without violating lo tasur, yet one still cannot empty the authority of the Sages of content, because accepting that authority includes recognizing that, in practice, there is a binding system of commands at a lower level.
Asmachta as an essential concept among medieval authorities (Rishonim)
A possibility is suggested to interpret asmachta not as a technical memory aid, but as an essential connection of hint or “the spirit of the verse,” from which a rabbinic law branches out without being derived as an explicit command. Medieval authorities (Rishonim) such as the Ritva and Tosafot are cited as saying that a rabbinic law that has an asmachta is more severe than an ordinary rabbinic law, and the Ritva explains that the severity stems from the fact that the verse genuinely hints at the law. This connection is not specification, because then one who violated it would be violating Torah law; rather, it is branching-out, expressing that the Torah wants the result without having issued a binding Torah-level command about it.
A commandment in the Torah versus will, warning, and punishment
It is argued that a commandment in the Torah is not a declarative sentence telling us what Hashem “wants,” but a speech act that establishes a prohibition or obligation; therefore, knowledge of divine will alone does not turn something into a commandment. The concept “we have heard the punishment, from where do we know the warning?” is explained as requiring a verse that warns in order to constitute a prohibition, not as a warning given to a specific person in order to distinguish intentional from unintentional sin. Sefer HaChinukh (commandment 69, apparently) is cited as explaining that if there were only a punishment without a warning, one might think it was merely a technical condition of “if you do this, you’ll get hit,” rather than a prohibition expressing binding divine will. The Minchat Chinukh’s attempt to explain the issue of Jonah withholding his prophecy in this way is mentioned, while noting that the explanation is ultimately rejected and still does not fully resolve the concept of “fleeing” from Hashem.
Analogies to civil law and sports fouls
A comparison is drawn between recognizing the authority of the Sages and recognizing the authority of civil law, where a person may commit a specific offense and still accept the authority of the law and understand that he will receive a fine if caught. A distinction is made between viewing an offense as a “price” and viewing it as “not okay,” and a philosophical discussion is mentioned regarding sports fouls, where a foul is part of the tactic and seems like an built-in price. A sense is presented that surveillance and warning without a fine are perceived as a normative statement—“know that this is not okay”—and not merely as technical pricing of a violation.
The Sages suspend commandments through passive omission
It is explained that there is no contradiction in the Torah giving the Sages authority to suspend the fulfillment of a certain commandment by passive omission and temporarily, such as sounding the shofar on Rosh Hashanah that falls on the Sabbath. A distinction is brought regarding someone who sounds it anyway: on the simple level he violates a rabbinic prohibition, and the question is discussed whether he nonetheless fulfilled the Torah-level commandment, with the discussion attributed to Tosafot in Sukkah 3a and to the dispute associated with Magen Avraham and Rabbi Akiva Eiger. A principle is presented that the Sages can even nullify the fulfillment of a commandment when the commandment-act was done against their instruction, and the authority for this derives from the fact that the Torah itself gave them power in relation to the commandment system.
Rabbinic and Torah-level as a non-chronological distinction
It is argued that the distinction between Torah-level and rabbinic law need not be chronological and depends on whether we are dealing with interpretation of Torah or with new legislation. Examples are brought of laws attributed to enactment from the days of Moses our teacher, such as the public reading of the Torah and studying the laws of each festival during that festival, as “rabbinic law from the days of Moses our teacher,” based on Talmudic tradition. A scholarly claim is mentioned that the Torah-level/rabbinic distinction developed later, but the view presented is that there is no principled obstacle to saying there were rabbinic laws even in very early periods, including during the time of the Sanhedrin.
Maimonides’ second root: laws derived from hermeneutical principles as “words of the Sages”
In the second root, Maimonides rules that every law derived through the interpretive principles by which the Torah is expounded is considered “from the words of the Sages,” and it is said that this determination stands against many places throughout the Talmud and rabbinic literature where such derashot are treated as Torah-level. Nachmanides attacks this sharply in his glosses and writes that the book is “sweet delights and altogether precious,” except for this fundamental point, which “uproots great mountains in the Talmud… and for learners of the Talmud the matter is bitter and evil; let the thing be buried and not said.” A trend of interpretation is described, from the Tashbetz onward, to explain that Maimonides distinguishes between source and authority, so that “words of the Sages” refers to a Sages-based source while the law’s authority remains Torah-level; it is said that this solution was also proposed through a linguistic distinction between “words of the Sages” and “rabbinic,” but evidence from the Arabic original does not allow that. It is argued that, simply speaking, Maimonides really does mean rabbinic law, although it is hard to find many demonstrations of this in the Mishneh Torah; still, there are places that show concrete halakhic implications.
Halakhic implications in Maimonides: punishments and doubts
Maimonides writes that one does not punish for something learned through the thirteen hermeneutical principles, and not only in the case of an a fortiori argument, contrary to the accepted view in which “we do not derive punishments from legal reasoning” is said mainly about an a fortiori argument. It is explained that lashes are learned in a general way from every prohibition through the verse “then the judge shall cause him to lie down and strike him,” while other punishments require an explicit source, and Maimonides extends the non-punishment principle to everything learned through the hermeneutical principles. Maimonides also writes that a law given to Moses at Sinai is “from the words of the Sages,” and in his commentary to the Mishnah on Kelim chapter 17 he writes that doubt regarding a law given to Moses at Sinai is ruled leniently when it introduces a new law and is not merely a detail within an existing Torah-level law. It is explained that measures, interpositions, and partitions are laws given to Moses at Sinai, and that doubt about a measure is not treated leniently because the measure is a detail within an existing prohibition; from this it follows that if a law given to Moses at Sinai creates a new prohibition, the doubt would be ruled leniently.
Nachmanides’ challenge to Maimonides and the “branch from the root” model
Nachmanides challenges how it could be that principles transmitted at Sinai and applied to a text given at Sinai would yield a rabbinic result, and he adds a distinction between an “upholding derashah,” which supports a known law, and a “creative derashah,” which innovates a law. Proof is brought from the aggadic account of Shimon HaAmsuni, who expounded every occurrence of the word et in the Torah until he reached “You shall fear et Hashem your God” and stopped, while Rabbi Akiva expounded it to include Torah scholars, in order to show that the verse and the hermeneutical rule are the trigger for the law and not independent reasoning of the Sages. The concluding claim is that Nachmanides understands derashot as exposing deeper layers already included in the verse, and therefore they are Torah-level, while Maimonides understands the hermeneutical principles as expanding the verse beyond what is written in it, and therefore the result is “branches from the roots” rather than specification of an explicit command. Maimonides emphasizes that the question is not whether the law is “true or untrue,” but whether it is appropriate to count it as a commandment, and he rules that even if Moses himself had derived such branches, it would still not be appropriate to count them. In that way, a direct parallel is built to the branching-out model presented earlier regarding lo tasur.
Full Transcript
[Rabbi Michael Abraham] Last time we were discussing the source of the Sages—the source of their authority or their power to legislate. Meaning, to create rabbinic laws. In the end, I proposed a mechanism that solves both problems, or both sides of the short circuit. On the one hand, it offers a source that gives authority to the Sages, and on the other hand it doesn’t turn everything into Torah law, like Nachmanides’ objection to Maimonides. So what was that source? What I basically wanted to argue was that Nachmanides writes that the verse lo tasur, even though it is not really the source—because otherwise everything would become Torah law—is rather an asmachta. I said that on the face of it this seems irrelevant, because the fact that it’s an asmachta is not what matters; the question is where the real source is. If we say there is a rabbinic law and it merely has an asmachta from a verse, that means it’s basically rabbinic law with scriptural support. But here it can’t mean that, because if it’s rabbinic law and only has an asmachta from a verse, the question still remains: where do the Sages get the authority to legislate? It can’t be that a rabbinic law itself gives the Sages the authority to legislate.
Beyond that, I also asked about the Maimonides side. There are later authorities who explain that according to Maimonides the simplistic interpretation is incorrect—the one Nachmanides understood in Maimonides—that anyone who violates a rabbinic prohibition is actually violating the Torah-level prohibition of lo tasur. Someone who eats poultry with milk, or something like that. Rather, the meaning is that if a person fundamentally does not recognize the authority of the Sages, then he violates a Torah prohibition. But if he violates the rabbinic prohibition because his temptation got the better of him or something like that, then it’s a rabbinic prohibition, not a Torah prohibition. And then I asked: if in fact he violates only a rabbinic prohibition when he eats poultry with milk, while in principle recognizing the authority of the Sages, then the question comes back—what is the source? Why is he required not to eat that poultry? After all, it’s only a rabbinic prohibition; it doesn’t come out of lo tasur. Lo tasur is only the obligation to recognize, in principle, the authority of the Sages. And if in principle I recognize it but I just slipped, then in that case I didn’t violate lo tasur. So if I didn’t violate lo tasur, again the question comes back: what is the source? Why not eat poultry with milk while declaring the whole time that I recognize the authority of the Sages, but keep on eating poultry with milk and violating every rabbinic prohibition I want?
So I said that within Maimonides’ mechanism—and maybe this is also what Nachmanides means by calling it an asmachta—I gave that example from Winnie the Pooh, the sign saying “Criminals will be punished.” “Criminals will be punished,” without defining what it means to be a criminal, what the law is that if you violate it you become a criminal—that has no meaning. I can recognize Piglet’s authority to legislate all the laws and punish all the criminals and still keep doing whatever I want. So obviously, if you tell me “criminals will be punished,” or that there is such a thing as criminals, then implicit in that is also that there is some legal system. That doesn’t mean that every person who violates that law has violated the prohibition of lo tasur, but the prohibition of lo tasur reveals that there is some halakhic layer that we call rabbinic prohibitions. So what that means is that the verse lo tasur does not really anchor every act that is a rabbinic prohibition and turn it into a Torah prohibition. Rather, the verse lo tasur reveals that the Torah recognizes some other halakhic system whose force is lower, called rabbinic law.
And therefore I’m forbidden to eat poultry with milk even though that prohibition is only rabbinic. If I don’t fundamentally recognize the authority of the Sages, then I’ve violated a Torah prohibition. But if I can just keep eating poultry with milk as I please while declaring that I recognize the authority of the Sages, then their authority has no content either. Therefore, the central point that comes out of this is that the emergence of rabbinic prohibition from the prohibition of lo tasur—I called that branching-out, not specification. Specification is like the prohibitions of vows: when the Torah says “he shall do according to whatever came out of his mouth,” or “you shall keep and perform what came out of your lips,” “he shall not violate his word”—that is, there is a general prohibition and a general positive commandment. Now if I vow not to derive benefit from this book, then if I derive benefit from this book after I made the vow, I violate a Torah prohibition. Why? Because the Torah prohibition is a kind of general statement, and this is a particular case that appears as a specific instance of the general case. In the end, when I violated it, I violated the Torah prohibition of “he shall not violate his word.”
Nachmanides’ understanding of Maimonides is that with lo tasur it works the same way. With lo tasur too, this is how it works. It’s really exactly like a vow. The Torah says: whatever the Sages establish is binding. So now the Sages established that one may not eat poultry with milk, and therefore whoever eats poultry with milk has violated lo tasur, exactly like the mechanism of a vow. That is specification. What I argued is that Maimonides means not specification but branching-out. Branching-out means this is not a specific case of the general law. Rather, the command lo tasur reveals—reveals, not commands—something else. It reveals that there exists a system of commands or a system of laws that is binding. In other words, it does not command me not to eat poultry with milk, unlike a vow. In a vow it commands me not to derive benefit from the book if I vowed. But here it does not command me not to eat poultry with milk; it commands me to obey the Sages. As long as I fundamentally obey the Sages, not rebelling against their authority in principle, I have fulfilled the command. But the existence of the command reveals to me indirectly that I need to obey the Sages. Now, obeying the Sages does not mean that every time I don’t obey I violate lo tasur. Not true. But it is true that the verse lo tasur reveals that I’m violating something. What is that something? The Sages defined it as a rabbinic prohibition, a prohibition with lower force, but it still branches out from the verse lo tasur. And maybe this is also what Nachmanides means when he says that lo tasur is an asmachta.
What does it mean that lo tasur is an asmachta? You can understand it in the usual Talmudic sense: there is a rabbinic law and it has an asmachta from a Torah verse. That’s usually what the term asmachta means in the Talmud. But there is another way to understand the concept of asmachta—and by the way it appears among the medieval authorities (Rishonim) in other contexts too—as something that branches out from the verse but is not explicitly derived from it. For example, there is a Ritva on Rosh Hashanah 16, I think, I don’t remember exactly anymore. There is a Ritva and there is Tosafot—several medieval authorities (Rishonim) write that if there is a rabbinic law that has an asmachta in a verse, then it has a more severe status than an ordinary rabbinic law. But really it’s still rabbinic law, so what difference does it make that I have some mnemonic aid from a verse? Why should that change the status of the law? Why should it become a more severe law?
So the Ritva explains that this is not like those who mistakenly think it is merely a memory aid or something like that. Rather, when I say that a certain law is supported by a verse, that it has an asmachta from a verse, that means there is some hint in the verse, or the spirit of the verse, or something like that, from which this rabbinic law emerges. Now, you can’t say that this rabbinic law is specified by the verse—not that the verse commands it. If that were so, then when you violated the rabbinic law you would be violating a Torah prohibition. But it does mean that the spirit of the matter—you understand from the verse that the Torah wants you to do this, or not to do something else. And because of that, the asmachta is really an essential connection to the verse. It’s not just some technical memory device; it really does come out of the verse. But it is not specified by it; it branches out from it. It’s some broader sort of thing. It’s not an explicit application of the verse. But you still understand from the verse that this is what the Torah wanted. Since there is no command, it is not a Torah prohibition, because for a Torah prohibition you need a command.
[Speaker C] But this mechanism of branching-out goes a bit against logic, because the whole is made up of the sum of its parts. So the parts can’t be essentially different from the whole. I mean, you’re saying the whole is some kind of Torah-level thing, and the parts that make it up are rabbinic? In lo tasur you’re talking? In lo tasur?
[Rabbi Michael Abraham] No, but it’s not a whole and parts. Lo tasur is when you don’t fundamentally recognize the authority of the Sages. It’s not the whole made up of all the rabbinic laws together.
[Speaker C] Right, but when I recognize the authority of the Sages, and I can still violate all the commandments of the Sages—then recognizing the authority is kind of made up of the sum of the commandments you need to keep.
[Rabbi Michael Abraham] No. Recognizing authority means that you’re not violating it because you think what they say doesn’t obligate you. But I might violate it because my temptation overcomes me. I can violate Torah law too because my temptation overcomes me. That happens. So the point is, this does still restrain me from something. It’s not just a sum. The collection of rabbinic laws is not summed up by lo tasur; it is summed up in a rabbinic layer that lo tasur hints to. The prohibition of lo tasur is violated only if one directly rebels against the authority of the Sages.
[Speaker C] But how do I rebel against the authority of the Sages?
[Rabbi Michael Abraham] If you tell me that in fact you’re saying: I’m violating a rabbinic prohibition because in my eyes what the Sages say does not obligate me—not because my temptation got the better of me.
[Speaker C] No, I’ll say that in order to avoid the prohibition—I’ll say it’s binding, and then I’ll violate everything rabbinic.
[Rabbi Michael Abraham] You’re dealing with the Holy One, blessed be He—there are no cheats there.
[Speaker C] Fine, so you’re saying it’s something in the heart.
[Rabbi Michael Abraham] Exactly. And the Holy One, blessed be He, takes you into account—He knows why you violated it. This isn’t a problem in the laws of a religious court. True, sometimes there are disciplinary lashes, but in principle that’s not the issue. Disciplinary lashes you get anyway for a rabbinic prohibition. Torah-level lashes, certainly not, according to all opinions. So you have nothing to explain to a religious court. But disciplinary lashes apply one way or the other for the rabbinic prohibition you violated.
[Speaker C] Is this like the authority of the Knesset? Is it something similar—that usually you say you need to obey the law, but here and there committing an offense is okay under the law?
[Rabbi Michael Abraham] If in principle you recognize it, then yes, in that sense it’s similar. It’s parallel. I fundamentally recognize the authority of the law, but fine, I’m not going to be such a stickler; sometimes I’ll let myself slide. But still—and I also understand that if they catch me, I’m done for. I mean, I have no claims against the police officer who caught me and gave me a fine if I ran a red light at two in the morning on an empty road. So maybe I violate it—fine—because I’m not going to be such a stiff. But if the police officer catches me, I understand: okay, I got what I deserved. Meaning, I do accept the authority of the law. Here too I’m saying: lo tasur is not the sum of the rabbinic prohibitions. That’s not right. There’s a more fundamental layer here.
[Speaker B] Maybe this isn’t some bug that developed along the way. I mean, lo tasur means lo tasur, period, and everyone who violated lo tasur violated Torah law. The whole story of rabbinic versus Torah-level only arose after the Sanhedrin was dismantled. Like, when there was a Sanhedrin, you had a question, they told you to do A, and if you violated it—you were done for. What do you mean? Where do you have rabbinic law when there was a Sanhedrin? Where is that distinction? Where do you have it? It seems to me like that’s some kind of later thing.
[Rabbi Michael Abraham] There’s no shortage of rabbinic laws from periods when there was a Sanhedrin. Secondary incest prohibitions are rabbinic law from the time of King Solomon, much earlier than the end of the Sanhedrin.
[Speaker B] But there, specifically—if you violated secondary incest prohibitions, you violated a Torah law.
[Rabbi Michael Abraham] What? Of course not. Why all of a sudden? It’s rabbinic law—secondary incest prohibitions.
[Speaker B] No, it’s rabbinic law, but what was the disagreement there? I mean, would he have had to wonder about it? Was there anyone who, when there was a Sanhedrin, was allowed to do it?
[Rabbi Michael Abraham] What does that have to do with it? It’s not about disagreement. It has nothing to do with disagreement. But it is rabbinic law. You don’t get lashes for it, you aren’t executed for it. What do you mean? It’s rabbinic law in every sense. That doesn’t mean there’s a disagreement or no disagreement; that’s not the difference between rabbinic and Torah-level law.
[Speaker B] No, I’m saying it seems like only later, when it was on the way, you even had a hesitation whether to do it or not—
[Rabbi Michael Abraham] Because what practical difference does that make?
[Speaker B] The practical difference is whether you get punished for it, what do you mean?
[Rabbi Michael Abraham] But they decided not to punish for it. But that’s within lo tasur. Not they decided—the Torah decided. You don’t punish for a rabbinic prohibition.
[Speaker E] You do punish—with disciplinary lashes. The Sages added more.
[Speaker B] That they—
[Speaker E] Added more—
[Speaker B] You’re forbidden to violate it. Right, but the Torah says you’re not to violate it.
[Rabbi Michael Abraham] You’re not liable to punishment.
[Speaker B] One hundred percent, because only because the Torah told you that they will tell you whether to violate this or not violate this, I understand that you violated lo tasur. But if you violated it or not, then yes, you violated a law—
[Rabbi Michael Abraham] Meaning, yes, a rabbinic law, of course. I didn’t say it’s permitted. Not a Torah prohibition—a rabbinic prohibition. Obviously it’s binding, because they said so.
[Speaker B] But what practical difference does it make?
[Rabbi Michael Abraham] Doubt goes leniently or stringently. A doubt regarding secondary incest prohibitions.
[Speaker B] They didn’t decide that that’s how it works—it’s all—
[Rabbi Michael Abraham] They did decide. Now I’m asking you—you ask what the practical difference is? There’s the practical difference. If it’s Torah-level, then a Torah-level doubt is ruled stringently; a rabbinic doubt is ruled leniently. What?
[Speaker F] He’s proposing what Nachmanides proposes and doesn’t accept. Namely, that all the practical differences are because the Sages decreed that this is how it would be with rabbinic law—that was the definition.
[Rabbi Michael Abraham] No, but the very fact that the Sages can determine that—the Torah-level they can’t determine. Even if the Sages said that a rabbinic doubt is ruled leniently, they can’t determine for Torah law that doubt is ruled stringently. I’m speaking within Nachmanides’ approach. Maimonides is different. But they can’t determine that, because the Torah determined it. The very fact that they can determine it is itself a consequence of the fact that we’re dealing with rabbinic law. There are, by the way, claims among scholars that this distinction between rabbinic and Torah-level is a late development in the history of Jewish law.
[Speaker B] I was just about to tell him—Moses—
[Rabbi Michael Abraham] Our teacher told Solomon—
[Speaker B] This is what you do, that’s it.
[Rabbi Michael Abraham] Why the facts are what they are today—that’s an interesting research question.
[Speaker B] But conceptually, or as a necessity—rabbinic laws—why wouldn’t they have existed before? Rabbinic laws—I mean, I’m talking just a little after him.
[Rabbi Michael Abraham] But I’m saying again—we talked about this—the distinction between Torah-level and rabbinic is not chronological. It’s not a chronological question. The question is whether Moses our teacher interpreted or legislated. If Moses our teacher legislated, it’s rabbinic law; if he interpreted, it’s Torah-level law. Again, I’m not getting into the historical question of what actually happened. That’s an interesting research question. I don’t know; I have no position on that. But in our conceptual framework today there is no problem at all in saying that there were Torah-level laws and rabbinic laws even in the time of Moses our teacher. What’s the difference? The question is whether you’re legislating or interpreting. It’s not a chronological question at all.
[Speaker G] So could it be that some things we call Torah-level are really rabbinic? Because maybe Moses legislated them?
[Rabbi Michael Abraham] There are things we know Moses legislated. Public Torah reading, for example, Moses legislated. Or studying the laws of each festival during that festival—Moses legislated that. That’s rabbinic law from the days of Moses our teacher. What do you mean? The Talmud says that. I don’t know how the Talmud knew; I don’t know. But that is the Talmudic tradition.
[Speaker D] Was there a Sanhedrin in Moses’ time?
[Rabbi Michael Abraham] Yes. So I’m saying—we know such things. Okay, so now what I want to show is that this phenomenon of branching-out, as opposed to specification, appears there too. Until now we spoke about rabbinic laws—the authority of the Sages to legislate. It turns out that it also appears in the second authority, the authority to interpret. There too a very, very similar mechanism appears. But before I move to the second mechanism, which is basically Maimonides’ first root and second root—before I move to the second application—yes, one second—
[Speaker F] If basically the obligation of lo tasur is acceptance of the fundamental authority of the Sages, then someone who accepted the authority of the Sages and committed some offense because his temptation got the better of him—not as provocation, just a person who genuinely slipped—what did he violate?
[Rabbi Michael Abraham] Rabbinic law. A rabbinic prohibition.
[Speaker F] But what is a rabbinic prohibition if the source of everything is lo tasur?
[Rabbi Michael Abraham] I said: it’s not the source—it’s not a command. It reveals that there is such a system of rabbinic prohibition. So it’s not—if a certain prohibition is to be Torah-level, the Torah has to command not to do it. “Guard,” “lest,” and “do not”—that’s the language of the Sages. Meaning, there has to be language of command in the Torah. Now the verse lo tasur does not command me not to eat poultry with milk; it commands me not to deviate. And “to deviate” in this interpretation means to rebel against the authority of the Sages. There is no command in the Torah not to eat poultry with milk, so it is also not a specification of the Torah’s command, as in the case of a vow. But it does reveal to you indirectly that there is some valid system of prohibitions at a lower level, because otherwise the authority of the Sages would have no meaning. That’s exactly the point: it doesn’t command that; it reveals its existence.
And here you have to pay close attention, because what this is really saying, in subtext, is that a command in the Torah is not telling me what the Holy One, blessed be He, wants or doesn’t want. A command is not a declarative sentence. When the Torah says not to eat pork, it’s not telling me a story: the Holy One, blessed be He, doesn’t want you to eat pork. The Torah commands. That is not the same linguistic function. To command does not mean to tell you what the Holy One, blessed be He, wants. Because what the Holy One, blessed be He, wants is a nice thing, and of course it is proper to fulfill it—but that is not a prohibition and not a positive commandment. A prohibition and a positive commandment exist when the Holy One, blessed be He, commands. That’s not the same thing. If I say, for example, that the legislator would very much like you not to use tricks to get around tax laws—that may be so, nice, but the law does not prohibit it. If the law does not prohibit it, then it is not prohibited. Maybe you’ll get a medal from the president for not doing it, I don’t know. But the legislator wants—that is one thing; the legislator commands—that is another. And with the Holy One, blessed be He, it’s the same. So even if I somehow come to know that the Holy One, blessed be He, wants me to do something, that does not turn it into a positive commandment. A positive commandment is when He commands me to do something. You need a command.
That’s why, for example, it says: “We have heard the punishment; from where do we know the warning?” The Talmud asks: “We have heard the punishment; from where do we know the warning?” What does that mean? If there is punishment—say, for the stubborn and rebellious son—if they punish the stubborn and rebellious son, then is there really a question whether the Holy One, blessed be He, does not want him to do what he did? They punish him with death by stoning. It’s not just death—obviously He doesn’t want it. And still a warning is required. Why is a warning required?
[Speaker B] To distinguish between intentional and unintentional?
[Rabbi Michael Abraham] Not for that. And the Talmud says no—not to distinguish between intentional and unintentional. That’s a question of what it does with respect to the specific person. But the Talmud asks in a general way: why is it not enough, everywhere there is a punishment, in order to punish? You also need a verse that warns. Not in terms of warning the person, but in order to constitute a prohibition you need a verse that warns. Because otherwise I can fill in the missing piece myself. What’s the problem? I can say that the stubborn and rebellious son is punished, and therefore obviously it’s forbidden. Any child should understand that; he’s already been warned—I warned him. No. You need a verse.
[Speaker B] No, that’s how I understood it—I thought it was to distinguish between intentional and unintentional, in the sense that you need it like formal prior warning.
[Rabbi Michael Abraham] But that’s it—warning and formal prior warning are not the same thing. Formal prior warning is warning the person, and you need to make sure he’s acting intentionally and not unintentionally. “Warning” here means—this is just another name for a prohibition. It means there has to be a verse in the Torah that warns. This is not a warning to that specific person, because otherwise you could arrange that even without it. There is a punishment; I know it’s forbidden; so I, as his witness, will warn him: know that there is a punishment here. He becomes intentional; he knows it’s forbidden. But no: if there is no warning, there is no prohibition.
And this may indeed connect to Sefer HaChinukh. If I’m not mistaken, in commandment 69—
[Speaker B] Or somewhere there—I brought this in some lecture. It’s in the sense that if there were only punishment without warning, then you could say: okay, I’m willing to accept the punishment.
[Rabbi Michael Abraham] That’s the Chinukh—exactly. That’s what I’m about to say now. Okay. The Chinukh, in commandment 69 I think, on “cursing God means judges”—that one may not curse judges—explains there why in every place the Talmud looks, beyond the punishment, also for a warning. After all, the punishment already shows you that it’s forbidden, so why do you need a verse that prohibits it? So he says: because if not for the verse that prohibits it, you would think it is only some kind of conditional arrangement. The Holy One, blessed be He, doesn’t care whether you do it or don’t do it—just know that if you do it, you’ll get hit. So it’s a kind of technical condition, but not a sanction in the sense that you violated the will of God; rather, some kind of transactional arrangement, and therefore you could accept the punishment and do it, and from the standpoint of the Holy One, blessed be He, everything is fine.
The Minchat Chinukh even brings this up—he tries to explain this way the law of Jonah. The Talmud in Sanhedrin asks regarding one who suppresses his prophecy: from where do we know the warning? A prophet who received prophecy. Now the Talmud does bring some sort of warning there in Tosafot, I think—or maybe Tosafot asks, I no longer remember the sugya exactly now. And the Minchat Chinukh wants to argue that this explains what happened with Jonah. Jonah received prophecy from the Holy One, blessed be He, and he decided not to go to Nineveh and not to prophesy to it, and he fled—fled from the Holy One, blessed be He. Now what does that mean, he fled? Are you kidding? We’re talking about a prophet, not some ordinary person. What is this, acting like a child? So he says no—the meaning is that Jonah thought that for one who suppresses his prophecy there is no warning. If there is no warning, he understands that the Holy One, blessed be He, will reckon with him, but he also understands that it’s his right. Meaning, it’s some kind of condition like that; it’s not that he violated the will of God. But in the end he says that’s not reasonable, so he rejects it.
[Speaker F] And that still doesn’t explain what the concept is of fleeing from the Holy One, blessed be He. What? It still doesn’t explain the whole idea of fleeing from the Holy One, blessed be He.
[Rabbi Michael Abraham] Stay there and just don’t do it. Yes—what sort of sin is that, joined to—no, I wasn’t asking about the fleeing, I was asking about the refusal to prophesy. The fleeing is only a descriptive image of the problem.
[Speaker F] No, but that’s a problem in itself.
[Rabbi Michael Abraham] Fine, another question. But the point is that what stands behind all this, I think, is more than what the Chinukh says. It’s not only that the Holy One, blessed be He, needs the warning in order to show you that He also doesn’t want this. I think he may even say that there. If the Holy One, blessed be He, punishes, then He presumably doesn’t want it. What is this, some technical matter—that He kills me for some reason, though He doesn’t care whether I desecrate the Sabbath, but He decided to kill me by stoning? Meaning, even though He doesn’t care if I desecrate the Sabbath. That’s not reasonable. I don’t know whether that’s what the Chinukh means, but it seems to me the more reasonable explanation. The point is: even if the Holy One, blessed be He, wants something, that is not the same as what the Holy One, blessed be He, prohibits. They are two different things.
And therefore only when there is a command that warns, or commands, or warns—yes, a prohibition or a positive commandment—only then does it become binding law. Otherwise it is a divine will, and one who loves Him and wants to fulfill His will should of course do it. But the function of a command is not to reveal—when I command someone, say, in the army, when the commander tells someone to do something, he isn’t revealing what he expects him to do. He’s not telling him, “Just so you know, I’d be very happy if you circled the building in 30 seconds.” He says, “Listen—circle the building in 30 seconds, and if not, you’ve committed a military offense, you didn’t obey an order.” Meaning, it’s not the same thing. There is a difference between the function of a command verse and the function of a verse of indication. A command verse does not merely indicate to me, gesture to me, yes, gesture—
[Speaker B] Or maybe it does gesture in a certain sense, Rabbi. Let’s say—I don’t know—I’ve parked more than once in a place where you’re not allowed to, and I took into account that for me the fine was cheaper than wasting an hour driving around Tel Aviv. I said, a 100-shekel parking fine works for me, I’ll pay it here—and I got 100 shekels more than once. Fine. So what did I violate? It’s not okay, and the essence of the law is to create order. Right.
[Rabbi Michael Abraham] And in the United States, I think, if you are convicted three times—doesn’t matter of what offense, I think, though maybe I’m wrong, I don’t remember—you go to prison.
[Speaker F] No, that’s in a certain state in the United States.
[Rabbi Michael Abraham] Really? I thought I understood it was throughout the United States, but maybe I’m mistaken, I’d have to check.
[Speaker B] Because there’s some idea behind the law, some kind of—it really is about will.
[Rabbi Michael Abraham] Exactly. On the contrary. What you’re saying is that it’s not that there’s no idea—just pay the fine and everything’s okay. No. They’re telling him: you were not okay. So what if you paid the fine? I think I once told you this—that I was in some pub in Tel Aviv, there was some—oh, thanks a lot, you’re fueling—
[Speaker B] Me up—a Torah scholar through and through.
[Rabbi Michael Abraham] There was—no—there was some philosophy lecture there by two lecturers from the Open University. And it was during the World Cup, the previous World Cup. During the previous World Cup, on the philosophy of football. A couple of friends and I went to hear it; it was actually really interesting. Among other things—they had several lectures there—they spoke about the concept of a foul in football. What is a foul in football? Or basketball, same thing. Basically, part of your tactic is when to commit a foul and when not to. But what is that? It’s a foul—you’re not allowed to do it. It’s all out in the open. So what do you mean, “Why didn’t you foul?” The coach yells at the player. The coach yells at the player: why didn’t you foul? And the whole crowd too—that’s the expectation. It’s part of the tactic—when to commit a foul—
[Speaker B] And when not to commit a foul. I’ll tell you something new: on the way here I heard on Army Radio that Japan advanced to the next stage because of yellow cards—because of the yellow cards.
[Rabbi Michael Abraham] Yes, right.
[Speaker B] So isn’t that part of the tactic?
[Rabbi Michael Abraham] No—and it still is part of the tactic, and now you also have to take into account that you may not advance.
[Speaker B] You didn’t protect the goal—there’s some law of fouls. Fine, but that’s the goal of fouls. About that it was said: a transgression extinguishes a commandment.
[Rabbi Michael Abraham] Now it’s starting to get closer—exactly about that it was said: a transgression extinguishes a commandment. But it’s still not exactly that, because now it is part of the tactic to accumulate yellow cards in a way that sometimes makes it worth your while to get the yellow card if—
[Speaker E] Because Israelis don’t commit fouls.
[Rabbi Michael Abraham] Israelis don’t commit fouls?
[Speaker B] Israelis are righteous.
[Rabbi Michael Abraham] That was big news to me—I didn’t know such a thing existed. No, that only just got invented.
[Speaker B] Yes, now there’s great news that hell exists.
[Rabbi Michael Abraham] Yes, “who in His goodness renews…” No, no, no, no, no. In any case, what I’m saying is, I just want to say that there really, in the context of soccer, this is an interesting question. Meaning, on the face of it at least, the accepted view is that a foul in soccer is exactly the educational initial assumption. The point is, you know you’re going to get hit with it, and that’s okay, you accept that you’re going to get hit with it, but it’s part of your tactic. Meaning, there’s nothing here where you were simply in the wrong and deserve a sanction. The sanction there is not really a sanction; it’s a price. Meaning, it’s not a sanction in the criminal sense. In the criminal sense, the view is not: so you stole, no problem, pay with ten years in prison and everything is fine. So what’s my problem? That’s not okay. So what’s the problem? Parking is also an offense. What do you mean?
[Speaker B] Fine, but it’s a sanction, it’s not…
[Rabbi Michael Abraham] No, that’s what I’m saying, no, that’s the point. An offense in law is not—it’s not a price. At least conceptually, philosophically. I think the usual view is that in law, when the law defines something as an offense, that doesn’t mean it merely attaches a price tag to it. Obviously there’s always a price too, but that doesn’t exhaust the issue. First of all, it’s wrong, and because of that you pay a price. And justly, you…
[Speaker G] You’re harming the social order, that’s why…
[Rabbi Michael Abraham] It’s not okay.
[Speaker B] No, but fine, okay, but for me, fine, but that’s the price. He paid, he paid his debt to society, I paid one hundred shekels. The price is only for deterrence, so why is there a cooling-off period?
[Rabbi Michael Abraham] Why is there a seven-year cooling-off period after he paid his debt to society? Because he was not okay, he’s a criminal. That’s part of the punishment. We don’t leave… No, we don’t leave him—an offense involving moral turpitude and one not involving moral turpitude—that isn’t punishment, that’s the issue, that’s really today the convention, today it looks like it’s part of the punishment. The court decides whether there is moral turpitude or not based on whether he deserves to… Instead of discussing whether there is moral turpitude here or not, it’s really become part of the punishment, because all this bargaining has become technical. But in essence, no, that’s not how it is. The idea is: you impose punishment because it is justified. You don’t impose punishment just because there are rules. It’s not part of the rules of the game, as in soccer. In law, the offense is not part of the rules of the game. The offense is: whoever violates the rules of the game will get hit. But it’s not that part of the rules of the game is: do this, get hit like that, and everything will be fine, carry on as usual. It doesn’t work like that. The conception—again, it’s a philosophical question, someone else might say…
[Speaker B] You know that today with cameras at intersections, I got a nice picture in Tel Aviv, that I entered a busy intersection. I didn’t know, it was crowded, kind of. Okay. So I got a warning, I looked for where to pay, and automatically, as soon as you see a picture like that of the car and there’s no fine—you should know, not okay. They warn you. No, they didn’t warn me, it was: you should know, not okay. Honestly, I took that much harder, really, more than a fine. A fine I’d throw in the trash, pay it and that’s that. And it wasn’t like that.
[Rabbi Michael Abraham] Right. It could be that maybe the second time, third time, or something like that there’ll be a fine, I don’t know. You got lucky?
[Speaker B] It could be there’s some kind of…
[Rabbi Michael Abraham] They remember your number or something like that.
[Speaker F] He’s in the system.
[Speaker C] By the way, why can the rabbis nullify Torah commandments through passive omission? According to the mechanism you described, it comes out as some kind of race of authorities, where they have no authority at all regarding Torah law, because all they derive their authority from Torah law—they can’t nullify it.
[Rabbi Michael Abraham] No, why? The question is whether they nullify a prohibition. But otherwise, the Torah itself gives them authority even to nullify its other instructions. What’s the problem? But only through passive omission, and temporarily.
[Speaker C] You said that a rabbinic prohibition has lower force than a Torah prohibition—or the opposite, than a commandment…
[Rabbi Michael Abraham] Certainly. If they have authority to do it, then they have authority to do it. Say, what happens if I blew the shofar on Rosh Hashanah that falls on the Sabbath? The rabbis essentially nullified the commandment, right? On Rosh Hashanah that falls on the Sabbath, we do not blow the shofar. Now suppose I blew the shofar anyway, okay? So here you can discuss what exactly I violated. On the simple level, clearly I violated a rabbinic law, but the question is… did I fulfill the Torah commandment? That’s the question. The Magen Avraham and Rabbi Akiva—people generally think this is a dispute between the Magen Avraham and Rabbi Akiva Eiger, although I don’t think that’s correct, but it’s commonly thought to be a dispute. Meaning, did you fulfill the Torah law or not? And this depends on Tosafot in tractate Sukkah, who says that if not…
[Speaker F] If you fulfilled the Torah law, it could be that overall you came out okay.
[Rabbi Michael Abraham] Right, that’s exactly what’s discussed there. So the claim is—there’s a Tosafot in tractate Sukkah 3a that says: if not, if you sat… “you never fulfilled the commandment of sukkah in your life,” there, in the dispute between Beit Shammai and Beit Hillel. So they say there that if you fulfill the commandment of sukkah not according to the way the sages determined, you violated a rabbinic law, and you also did not fulfill the Torah commandment. A Torah commandment fulfilled in a way that is not according to the sages’ instructions—even though those are rabbinic instructions—is not a commandment at all. Even on the Torah level it doesn’t count. What? A sinner profits? It’s not exactly a sinner profiting, because he didn’t commit a prohibition. He just didn’t fulfill—say, in sukkah, he sat with his table outside the sukkah, so there is a decree lest he be drawn after it. Don’t sit outside the sukkah. It’s not—you understand, it’s not worse than someone who didn’t eat in the sukkah at all; he failed to fulfill a positive commandment, he didn’t violate a prohibition. So someone who sat with his table in the house, there is concern he’ll be drawn outward, so the sages said not to do that.
[Speaker F] But it seems to me that in the Talmud with Rosh Hashanah it’s the opposite. What? Meaning, even according to the side that someone who ate in the sukkah in a way forbidden rabbinically still fulfilled the commandment of sukkah, the Talmud still says that one who blew the shofar on Rosh Hashanah did not fulfill the commandment of shofar. Why? Because there the sages prohibited doing it.
[Rabbi Michael Abraham] That’s not merely nullifying a positive commandment; it’s a prohibition.
[Speaker F] No, not only that, because there it’s the opposite side—that according to the enactments of the sages it is invalid.
[Rabbi Michael Abraham] So therefore he violated a rabbinic prohibition.
[Speaker F] The sages also uprooted the commandment.
[Rabbi Michael Abraham] So if the sages can already uproot it, then now you can argue where they uprooted it and where they used that power, but in principle you see that they have authority to uproot. Still, only the sages uprooted it.
[Speaker C] But I can refuse entirely to recognize the authority of the sages and fulfill the positive commandment, and if, say, a positive commandment overrides a prohibition, then all the more so.
[Rabbi Michael Abraham] Even if you don’t recognize their authority, they have authority, so they uprooted your commandment. The fact that you don’t recognize it—that’s a question of what the Holy One, blessed be He, thinks, not what you think.
[Speaker C] So you’re saying that this command basically created some kind of power over other commands.
[Rabbi Michael Abraham] If the Torah gave someone authority to uproot its commands, then there’s no problem with that, it’s permitted. What’s the issue?
[Speaker C] It’s like the Knesset authorizing some body…
[Rabbi Michael Abraham] A minister, to cancel regulations…
[Speaker C] And it authorizes him to repeal Knesset laws…
[Rabbi Michael Abraham] If he received permission from it. What’s the problem with that? Regulations. There are even more interesting loops. There’s the Turei Even at the beginning of tractate Chagigah, and Rashash on Aggadah, his commentary on the Talmud. He discusses there what happens if the sages diminish the prohibition of “do not diminish,” or diminish the prohibition of “do not add.” He has those kinds of loops there. I don’t remember exactly what his situation is, but he gets into some discussion like that there. That’s really a loop.
[Speaker D] Did you think about Aaron?
[Rabbi Michael Abraham] Did you think about Aaron. Okay, so the point basically—what lies behind this mechanism—is that the connection between a verse and a halakhic result derived from that verse can exist on several levels. I would even say on a continuum of levels. There can be a hermetic connection—what I called specification. Where the result is simply a particular case, like in deduction. Like: all human beings are mortal, Socrates is a human being, Socrates is mortal. So the statement that Socrates is mortal is a specification of the statement that all human beings are mortal. It’s simply a particular case of the general statement, like with vows, what we saw. Okay? That’s what I call specification. In specification, obviously the particular has the same status as the general. It is simply a particular case of the general; there’s nothing special about it, it’s no less important. It’s a particular case with the same importance. But there are ramifications. There is a softer derivation of a halakhic result from the verse, where the product is a product with lower force. And it may be that there are even several levels of connection to the verse, and it’s simply a question of how closely this result is tied to the content of the verse. If it is really what the verse commands or prohibits, then it is specification and the result is a Torah prohibition or a Torah commandment. If it only branches off at one level or another, then it can already be a lighter prohibition. And therefore there is basically a continuum of levels of connection between the Jewish law and the verse from which the Jewish law emerges. And we find this logic also regarding interpretation, not only regarding legislation. Up to now we saw it regarding legislation—how the authority to legislate emerges from “do not deviate.” Now I’ll show it regarding interpretation. Maimonides, in his second principle, says that every Jewish law or commandment derived through one of the hermeneutic principles by which the Torah is expounded is of rabbinic origin. It is not Torah law; it is of rabbinic origin. And there is a major dispute among the commentators on Maimonides about what exactly he means.
[Speaker I] Is there a difference between rabbinic law and “words of the Scribes”?
[Rabbi Michael Abraham] No, no. Some wanted to argue—there was a Yemenite commentator who wanted to claim that Maimonides really uses the term “words of the Scribes” and “rabbinic” with different meanings. And here he means “words of the Scribes,” and it’s not the same thing as rabbinic. But they already showed that this isn’t correct. In the Arabic original it’s written with the same…
[Speaker F] Right, the Arabic original is the key that…
[Rabbi Michael Abraham] It was specifically him—Rabbi Yahya Ibn Tam, that’s what happened. But after him many followed, and that’s why I mention him; it’s not just obscure trivia. Many followed him because of the great difficulty in Maimonides’ words here, so people latched onto this as a possible way out. Why? Because this Maimonides stands against dozens, hundreds of places. Meaning, Nachmanides in his glosses to the second principle says that—he has a very nice expression there.
[Speaker D] He let him have it.
[Rabbi Michael Abraham] What? He says that the delights are sweet and the whole book is lovely, but because of this one thing alone the whole book was not worth writing. “And this is what I intended to write on this principle with the utmost brevity”—you saw how much I leafed through, right?—”and this is what I intended to write on this principle with the utmost brevity, though I know that many more passages in the Talmud contradict his position,” apart from the hundreds he brought, yes? “For this book of the rabbi, of blessed memory, is full of delights and altogether lovely except for this one principle, for it uproots great mountains in the Talmud and casts down fortified walls in the Talmudic text, and for students of the Talmud the matter is evil and bitter; let the matter be buried and not spoken of.” That’s what he writes explicitly, what I said—that because of this one thing the whole enterprise wasn’t worth it—but somehow it comes out: this book is wonderful, but what is this doing here? Meaning, what is this statement doing here? “Let the matter be buried and not spoken of.” Such a thing is unthinkable. Nachmanides attacks him with tremendous sharpness. And why? Because indeed there are many, many places where you see, both in the Talmud and elsewhere, throughout the literature of the sages, that something derived from exposition is Torah law, not rabbinic law. So Nachmanides understood Maimonides to mean that when he says “words of the Scribes” he means ordinary rabbinic law. But beginning with the Tashbetz, at the end of the period of the medieval authorities (Rishonim), from the sages of Algeria and onward, almost all the commentators on Maimonides were really drawn to the Tashbetz’s approach, and they argue that Maimonides does not mean to say it is rabbinic law, but rather that it is Torah law: its force is Torah-level force, but the source is rabbinic. Maimonides, when he calls it “words of the Scribes,” is speaking about the question of the source, not the question of force, and therefore the force is Torah-level. And in truth, I’m saying, there are hundreds of difficulties with Maimonides on this; it comes from every direction: contradictions within Maimonides himself, contradictions with various Talmudic sources, it makes no sense conceptually. Meaning, there are several kinds of difficulties, and in each of them there are dozens and hundreds of sources you can point to against this Maimonides. And therefore, most traditional commentators on Maimonides were ultimately drawn after the Tashbetz and were very happy—just like with this “words of the Scribes” issue and the Yemenite who anchored it in terminology. What is “words of the Scribes”? It’s a different category; it’s not rabbinic, it’s Torah law, only the source is from the words of the Scribes. But it’s pretty clear that Maimonides doesn’t mean that. Maimonides means actual rabbinic law. I spoke about this at the conference in Jerusalem on the “Principles,” the book that just came out, and I spoke there about the difference between Maimonides and Nachmanides in their basic approach to the count of the commandments, and maybe in general. Maimonides was a rationalist and Nachmanides was an empiricist. Meaning, Nachmanides goes with the facts. Whatever is written in the Talmud—he sticks to that, period. And Maimonides says: don’t confuse me with facts. Meaning, Maimonides has ideas that he brings from home; it is obvious to him that he is right; he has very strong confidence in his reasoning, and with the Talmud he manages. Meaning, he gives all kinds of answers, other explanations, these explanations—but he forces the Talmud into the conceptual frameworks he brought with him from home. That’s what is called a rationalist; he thinks reason can tell us things about the world. You don’t need observation in order to learn what happens in the world; reason also teaches us. And if you see a fact that doesn’t fit—creative interpretation. So that’s exceptional, this is that, here or there, because you’re not willing to give up the a priori logic with which you arrived. And Nachmanides attacks him all the time on this issue. You’re against the Talmud here, you’re against the Talmud there, you just do whatever you want—what kind of thing is that? In any case, this dispute around Maimonides’ words has another point that makes Maimonides hard to understand, because Maimonides himself hardly brings practical consequences of this very far-reaching claim. Everything derived through a hermeneutic principle—and that is dozens and hundreds of many Jewish laws, not only the thirteen principles of Rabbi Yishmael, but in general everything that comes through exposition, yes?—that is dozens and hundreds of laws. You would expect the Mishneh Torah to be full of laws that Maimonides defines as rabbinic laws, and all the commentaries to cry out that this contradicts the Talmud because it says there that it’s Torah law. There are almost no such places. There are a few here and there, and even about each of those there is major dispute whether it really is or really isn’t. And therefore this is one of the things that strengthens the common interpretation of Maimonides, that he really did not mean it is rabbinic law but meant it is Torah law. Still, there are several places where you see that he does mean it seriously, and therefore you can’t say that he doesn’t. True, they are few places, but the very fact that there are such places already shows that this is not just a theoretical question. It has halakhic consequences. One source is after the fourteenth principle here in the introduction to Sefer HaMitzvot. Maimonides writes that something learned from the thirteen principles is not punishable—meaning, for example, you don’t receive lashes for it—as opposed to something written explicitly in the Torah. And all punishments in the Torah—there are several kinds of punishments. There are the four death penalties of the religious court, there are lashes, there are fines, ransom payments, all kinds of things like that. Now, all punishments need to be written explicitly in the Torah except for lashes. Lashes is written, “then the judge shall cause him to lie down and strike him”—from there they derive lashes for every prohibition. From there on, every prohibition: once there is a prohibition, there are lashes, unless there is no action in it or it is linked to a positive commandment, meaning, certain rules that exempt you from the punishment, but in principle with lashes there is such a rule that it does not need to be written explicitly. All the other punishments—death, burning, stoning, those things—need to be written explicitly. Okay? Now, if I learn something by an a fortiori argument, or I learn it from logical derivation, then we do not impose punishments based on logical derivation, so there are no lashes. What happens if I learn it through one of the other principles? Then, simply speaking, yes, you do punish.
[Speaker C] Why? Isn’t that worse? Not an a fortiori? What? If for the principle…
[Rabbi Michael Abraham] A fortiori is the weakest principle. You…
[Speaker C] You can say that “logical derivation” means a principle by which the Torah is expounded…
[Rabbi Michael Abraham] “Logical derivation,” Maimonides said, but in the accepted understanding, “logical derivation” means a fortiori. When the Talmud says, “is this not a matter of logic,” if it is like this and this…
[Speaker C] A fortiori is the weakest?
[Rabbi Michael Abraham] Yes. A fortiori is the thing from which we learn that we do not punish; all the other principles, yes. Okay? Except for Maimonides’ view—Maimonides’ view is that this is true of all the principles.
[Speaker B] Rabbi, isn’t that the opposite of reason? I mean, a fortiori is the strongest principle of all the others, the most understandable…
[Rabbi Michael Abraham] Strongest in terms of plain reasoning… yes, but what difference does the reasoning make? Do you have an analogy of terms that you received from Sinai—an exegetical equivalence? Fine. You use the analogy of terms. What difference does it make that I don’t understand why it’s logical? The Holy One, blessed be He, said that analogy of terms is a tool by which you can draw conclusions. A fortiori is more understandable, but once you were given the thirteen rules, why assume it is stronger? Do you understand? True, I would use a fortiori even if it hadn’t been given from Sinai, in that sense, because it is more understandable to me.
[Speaker B] It’s the strongest…
[Rabbi Michael Abraham] No, it’s not the strongest. Because if the Torah tells you that if you have a Sinaitic tradition…
[Speaker B] With analogy of terms you have one word, the same word here and there, so you can compare—so why is that less strong? The fact that you don’t understand doesn’t matter. They told you that that’s how it is; that’s how the Torah is encoded.
[Rabbi Michael Abraham] So now…
[Speaker B] Once they told you that, it’s completely strong.
[Rabbi Michael Abraham] On the contrary, precisely a fortiori, which comes from reason—who knows, maybe the reasoning is right and maybe it’s not right.
[Speaker F] Here they tell you that this is how it is. A fortiori is more understandable, not necessarily stronger. But there’s also a dispute over whether there are thirteen principles or thirty-two principles; it doesn’t end with thirteen. According to Rabbi Yishmael there are thirteen principles, and even about them there is dispute, unlike a fortiori where there is no dispute. So what if there is dispute? Still, according to Rabbi Yishmael these are the principles, and this is what we received from Sinai, and this is how we are supposed to work. Seemingly, if there are different lists of principles, that shows it wasn’t transmitted from Sinai in a clear way.
[Rabbi Michael Abraham] The dispute over Rabbi Yishmael’s thirteen principles is only Rabbi Akiva—that Rabbi Yishmael expounds by general and particular, while Rabbi Akiva expounds by inclusion and exclusion. Which is basically the same thing, except that the only question is what to do with a chance occurrence of general and particular. So it’s basically an interpretive dispute. But that such a principle was given from Sinai—everyone agrees on that.
[Speaker F] And the fact that there are thirty-two principles—the thirty-two principles are…
[Rabbi Michael Abraham] Not a dispute. It’s the addition of more principles, and not only that—even the thirty-two doesn’t include everything; the medieval authorities (Rishonim) already noted that. Rabbi Yishmael’s list doesn’t include all the principles, and the thirty-two doesn’t include everything either. There are more. Maimonides wrote that with Hillel there were only seven.
[Speaker B] So the addition is not a dispute.
[Rabbi Michael Abraham] The general-and-particular that existed with Hillel as one principle, with Rabbi Yishmael becomes three: general and particular, particular and general, general and particular and general. It just gets more detailed, more and more detailed. And other things were added too, but that’s not a dispute. The dispute is between Rabbi Akiva and Rabbi Yishmael: this one expounds by general and particular, that one by inclusion and exclusion. But again, that is a relatively minor dispute. So in short, Maimonides’ view is that things learned through the thirteen principles—through all the principles, not only a fortiori—one does not punish for them. There are no lashes for such a thing. And that is already a halakhic consequence of what he said, that it is of rabbinic origin, that it is not Torah law—you don’t punish for it. There is another consequence. Maimonides writes, for example, in his commentary on the Mishnah in tractate Kelim chapter 17—before that Maimonides writes that even a law given to Moses at Sinai is of rabbinic origin. Not only things learned by exposition—even a law given to Moses at Sinai is of rabbinic origin. And Maimonides in his commentary on the Mishnah, and in one or two other places, writes that doubt regarding a law given to Moses at Sinai is ruled leniently. Meaning, when he says “words of the Scribes” he doesn’t mean, this is not Torah, the sages just told me so; he means rabbinic law—doubt is ruled leniently. This is a halakhic statement, not only a statement about the source. True, this is very rare, because most laws given to Moses at Sinai are laws that add details to an existing commandment; they are not laws that innovate a wholly new law. And there the doubt will be ruled stringently, because if a law given to Moses at Sinai specifies some law in the Torah, it is an ordinary Torah law; the law merely interpreted it. Now if you have doubt, it is a Torah-level doubt, even according to Maimonides. But in a place where there is a novel law given to Moses at Sinai that creates a new law, not merely a detail within an existing law, there the doubt will be ruled leniently. That’s what Maimonides writes in the commentary on the Mishnah in tractate Kelim. He brings there: measures, interpositions, and partitions are laws given to Moses at Sinai. One of the laws given to Moses at Sinai is the measurements—an olive’s bulk for prohibitions, and various such measures. Maimonides says: and perhaps you will ask, so why is doubt regarding a measure not ruled leniently? So he says: because essentially the measures are a detail within existing commandments. Say, the prohibition against eating pork—the law given to Moses at Sinai says that the measure is an olive’s bulk. It adds a detail within an existing prohibition; it does not create an entirely new prohibition. But from Maimonides’ words we learn that if there is a law given to Moses at Sinai that does create a prohibition and is not merely a detail within an existing law, then indeed the doubt would be ruled leniently. Meaning, when he says “words of the Scribes,” he means a halakhic statement. And then that basically means that something learned by exposition really is of rabbinic origin. And this raises the question: how can that be? Nachmanides asks: how can it be that a system of rules—which Maimonides himself writes was given as a law to Moses at Sinai, the hermeneutic principles—is applied to a text that was also given at Sinai, and the product, when you apply those rules to the verses, is rabbinic? The Holy One, blessed be He, said: take these rules and apply them to the verses. The Holy One, blessed be He, gave me both the verses and the rules. I apply the rules to the verses, and the result is rabbinic law? Nachmanides says: how can that be? More than that, Nachmanides also says: an exposition that anchors a known law, what is called supportive exposition, as opposed to creative exposition—supportive exposition is exposition that doesn’t innovate a law; the law was already known and the exposition anchors it in a verse. Creative exposition is exposition that generates a new law that I didn’t know before. Okay? Maimonides says that in supportive exposition the result is Torah law. In creative exposition the result is rabbinic law. Creative exposition is basically like legislation. What? It’s like legislation. Creative exposition is like legislation, although again, in essence it is different from legislation. Because legislation is—this is what I talked about regarding the difference between Torah law and rabbinic law—legislation is something not connected to the verses at all, but rather to the sages’ own reasoning. They understand that this is right, and they establish a new law. Interpretation always has a relation to a verse. They extract it from the verse. The sages do this, but they interpret the verse and hew more laws out of it, not because they think it is right, not necessarily because they think it is right, but because in their eyes that is the meaning of the verse. In that sense, exposition is more similar to interpretation than to legislation. And the exposition—the sages generate the law because of something in the text, in the verses, not because that’s what they think is right. I think I brought this example of the Talmud in tractate Pesachim, where it brings: Shimon HaAmsuni would expound every occurrence of “et” in the Torah, until he came to “The Lord your God shall you fear,” and he stopped. And he said: just as I receive reward for the exposition, so I will receive reward for stopping. So his students asked him: what about all the expositions you made until now? He said: just as I receive reward for the exposition, so I will receive reward for stopping. He gives up all the expositions he made until then. What is meant here? When Shimon HaAmsuni came to the phrase “The Lord your God shall you fear,” he had nothing to include. Because what could possibly be compared to the Holy One, blessed be He, such that one should fear it as one fears the Holy One, blessed be He? Here that cannot be. Apparently one has to give up the whole rule that every “et” comes to include something—one must give up all the laws that came out of all the “ets” I expounded until now. Meaning, you see that the source of a law that comes from exposition—the source is the verse. I am not establishing the law because I think it is correct; I am establishing the law because the verse compels me. This time through exposition, but the verse is the trigger of the matter. Then Rabbi Akiva comes and answers Shimon HaAmsuni. He says to him: it includes Torah scholars. What does it mean, “it includes Torah scholars”? Because that’s logical? If that were logical, that would be legislation, an ordinary rabbinic law. It’s not that it’s logical; rather, the point is that it is the least illogical. Meaning, there is the word “et,” and the “et” obligates me to include. That is a rule of exposition. Now what should I include? So Shimon HaAmsuni says: I can’t find anything that makes sense to include. Rabbi Akiva says to him: true—but what can you do, there is a rule of exposition saying that from the word “et” we include. So choose what, in your eyes, is least implausible. Torah scholars are the least far from the Holy One, blessed be He. Still, it could be that to fear Torah scholars is idolatry in Rabbi Akiva’s eyes. What do you mean, to fear scholars? Only the Holy One, blessed be He, may be feared. So he would not have said this on the basis of reasoning; he would have opposed it, perhaps revolted against it. Maybe—I’m just sharpening and intensifying the point. Yes? But because there is the word “et,” and “et” comes to include, he has no choice and so he innovates this law. So here you see very strongly the difference between this and ordinary rabbinic law. Ordinary rabbinic law, you establish because you think this is the right thing to do. Here you are attached to the verse, which forces you to do it even though you don’t really think so. You use reason to see what is least implausible, but you do not establish it because that is what makes sense; rather, you establish it because that is what the verse requires you to do, or what the exegetical rule requires you to do. In that sense this is like interpretation, not like legislation. But Maimonides calls it “words of the Scribes.” Why? I’ll say it briefly because I don’t have enough time; I’ll complete it next time. My claim is that Maimonides basically sees the expositions as an expansion of what is written in the verse, not as exposure of what is written in the verse. When one says, “The Lord your God shall you fear,” and this comes to include Torah scholars—that is Rabbi Akiva’s conclusion. Does that mean that inside the verse “The Lord your God shall you fear” it is also written, indirectly, however you want, but it is also written there, to fear Torah scholars? Nachmanides argues yes. That the expositions are really additional layers of depth that are uncovered within the verse. Nachmanides? Nachmanides, yes. Therefore the hermeneutic principles are another tool of uncovering; besides the ordinary interpretive tools, the hermeneutic principles help me uncover more and more layers within the verse. Maimonides apparently understands that no. Maimonides claims that the hermeneutic principles are means that expand what is in the verse, not uncover what is inside it. Therefore, says Maimonides, from my perspective Torah law is what is written in the verse—you remember the specification from the first principle? Same thing here—what is written. Not something that can be deduced from the verse; that is rabbinic law. That is “words of the Scribes.” The metaphor he uses is: and perhaps you think that I refrain from counting them because I consider them unreal. You think I do not count commandments derived from exposition because expositions are not real in my eyes? “And is the law that emerges through a principle true or untrue?” That is not the discussion. It is not a discussion about whether this law is true or not true. That is not the reason. Obviously it is true. I too accept the expositions; they are a law given to Moses at Sinai, says Maimonides. But the reason is that “everything a person derives are branches from the roots that were said to Moses at Sinai in explanation, and they are the 613 commandments. And even if the one deriving them were Moses himself, it would not be proper to count them.” What is he saying? The metaphor is a branch that comes out of a root. What does that mean? The branch is an expansion of what is in the root. The expositions, when a person derives them from the verse, do not uncover something that is in the verse. They expand the idea of the verse into something beyond what is written there. That is the spirit of the matter, but it is not really what the verse commands. In other words, this is ramification and not specification. And therefore it is rabbinic law. Very parallel to what we saw in the first principle regarding legislation. Here it comes out regarding interpretation. In interpretation too, there is interpretation that uncovers what is inside the verse—that is absolute interpretation—and there is interpretation that expands the spirit of the verse, understands the spirit of the verse and expands it, and then the product is only a rabbinic product, “words of the Scribes,” and not Torah law. There are a few more points; I’ll complete this a bit more next time and then we’ll move on, because this is not our main topic here. I just want this in order to complete the understanding.