Authority and Change in Halakha, Lesson 7

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[Rabbi Michael Abraham] Everyone is responsible for something else. The wine, this one, everyone is over something else. That’s polytheism, meaning it’s not one power but many powers. But there’s also a kind of polytheism, mainly in the East, in the Far East, that really is a tolerant polytheism. It’s polytheism not because of a division of areas of responsibility, but rather: okay, you have your god, I have my god. You’ve got a good god? Come on, let’s put yours by me too. Why not? It’s actually nice. I’ll bow to all of them. Why not? Nice guys, right? So there’s actually something very, very interesting here. Okay, anyway, yes, but there is something to what Shmuel said about the flavor of life. I remembered once—I think it was a professor of mine at the Weizmann Institute, Itamar Procaccia. He was a fiery leftist and used to get upset about everything going on here. His former sister-in-law—I mean, his brother is divorced from a judge. So he once told us—we had lots of arguments and fights about all sorts of issues, left-right, religious-secular—he told us that he had once been in Denmark, I think, somewhere in Scandinavia, I don’t remember. He went there; he was kind of a political figure, responsible on behalf of the UN for South America. In other words, he was a very important man in the scientific establishment. A physicist? Yes. And at some point in his travels he was somewhere in Scandinavia, I don’t remember where. He got there for a few days. He told us: I lay on the bed, feet up on the wall, now there’ll be peace and quiet, I’m not interested in the news, let the whole place burn down, what do I care, I have nothing to do with it. There’s a certain kind of leftist like that that I know, who’s comfortable abroad because it’s hard for them here; after all, it comes from caring, it’s not… So he says, after ten minutes I started itching. I was lying there on the bed like that, after half an hour I was already starting to get irritated, after an hour I just couldn’t take it anymore. The next day I simply got on a plane and ran away from there. I couldn’t hold out under that crazy peace and quiet, yes, you can’t live like that. No, there’s something true about that. It gives life flavor when there’s something to fight about—it means there’s something that matters to you. You know, to everybody it looks very pastoral, but the truth is I’m not a great admirer of that outlook, because it means that basically nothing matters to you. What do you care? That one is nice and that one is nice too, everyone is nice and everything is fine—but nothing matters to you. So what are you living for? If there’s nothing worth dying for, as the song says, right. I’m lying here on my back. So as for the second root, there too my claim was that basically there is a kind of branching out. What do I mean? Maimonides writes in the second root that commandments learned from derashot have the status of rabbinic teachings. I mentioned that from the Tashbetz onward, almost all the traditional commentators, Jewish law scholars who explained Maimonides, understood that he did not mean the halakhic status of rabbinic teachings, but rather that the source is from the Scribes—meaning, not that the force of the law is rabbinic, but that the source of the law is rabbinic. In other words, the Scribes or the sages are the ones who created the law, but its force is Torah-level. And why? Because as Nachmanides elaborates at length in his glosses, there are hundreds of proofs, and the whole Talmud is full of this, showing that these are Torah-level laws. Things learned from derashot are treated stringently and regarded in every respect as Torah law.

[Speaker B] Do you get lashes for them?

[Rabbi Michael Abraham] What? Lashes are already more complicated, but Maimonides apparently holds that in practice you do not get lashes for them. For things derived from the Torah? Yes. He writes that in the introduction to Sefer HaMitzvot. Again, I don’t remember right now whether there are explicit proofs from the Talmud on whether one gets lashes for this or not, but Nachmanides certainly thinks yes, or almost all the medieval authorities think yes, but Maimonides thinks not. Maimonides says that we do not derive punishments from legal reasoning, and that applies to all the hermeneutical rules, not only to an a fortiori argument. So no punishments, no lashes, for something learned through a hermeneutical rule. In any case, the difficulties in Maimonides are very great. There are contradictions in his words, and it’s hard conceptually, hard against the Talmud. Conceptually it’s difficult because Nachmanides asks: how can it be that the thirteen hermeneutical rules were transmitted by tradition from Sinai, the Torah text was also transmitted from Sinai, and when you apply the thirteen rules to the text, the result is rabbinic? You received a safe from the Holy One, blessed be He, and a key. Now you open the safe, and what you find inside you say is not from the Holy One, blessed be He? You received the safe with the thing from the Holy One, blessed be He, and you also received the key to open it from the Holy One, blessed be He. You open it, take out the thing, and you say: oh, that’s from me, not from the Holy One, blessed be He. How can that be?

[Speaker D] That’s how Nachmanides asks it. There’s a degree of freedom here in how you turn the key and how you apply the a fortiori reasoning.

[Rabbi Michael Abraham] Okay. What I argued is that Maimonides writes—

[Speaker B] But according to that approach they’re rabbinic? What? Everything is inside the safe.

[Rabbi Michael Abraham] No, no. I’m talking about interpretation, not legislation.

[Speaker B] Okay, not legislation, not enactments.

[Rabbi Michael Abraham] Maimonides writes: “And perhaps you may think that I refrain from counting them because they are not true. But whether the law derived by that rule is true or not true—that is not the reason. Rather, the reason is that whatever a person derives as branches from the roots that were said to Moses at Sinai in explanation, and they are the 613 commandments—even if the one deriving them were Moses himself—it is not fitting to count them.” What is he saying? That the laws that emerge from derashot are actually branches that emerge from the roots. What does that mean? What does this metaphor actually say? Maimonides says it’s not unreal—that’s not the point. Rather, the point is that this is an expansion of what is written in the verse, not an exposure of what is written in the verse. Or in other words, we were not given a safe with something inside it and a key. That’s Nachmanides’ model. Nachmanides sees derashot as if we are flowerpots.

[Speaker B] What? We got a safe with us inside it—

[Rabbi Michael Abraham] We planted, we watered, we worked, we put it in the right place, and then what came out came out. But it wasn’t really inside the safe. And therefore these are branches emerging from the roots. And Maimonides says: since the law learned from a derashah is an expansion of what is written in the verse, not an exposure of something hidden inside the verse, like what’s inside the safe, therefore it is “from the Scribes.” Then the safe question is no longer difficult. And again, what comes out of this? What comes out is that just as we saw with respect to the authority to legislate—that the authority to legislate branches out from the verse “do not turn aside” and is not specified by it—my claim is that the authority to expound, or the derashah itself, is also a means whose product branches out from the verse rather than being specified within it. Say you say, “You shall fear the Lord your God”—to include Torah scholars. That’s the example Maimonides brings here. I don’t think it’s accidental that he brought it. In a moment I’ll comment on that, maybe I already did. The claim is that it is not true that inside the verse there is also hidden the law or obligation to fear Torah scholars. The verse says to fear the Holy One, blessed be He. Fearing Torah scholars is an expansion of the idea written in the verse, because the assumption is that the word “et” comes to expand and include, and we include what is similar, and we say that there is also an obligation to fear Torah scholars. But we did not uncover a hidden layer buried in the verse; rather, we expanded the idea of the verse. So now someone who does not fear Torah scholars—but does fear “the Lord your God”—has not violated “You shall fear the Lord your God,” because that is not written inside “You shall fear the Lord your God.” He violated the expansion, the spirit of the verse “You shall fear the Lord your God,” and therefore Maimonides says this is rabbinic teaching. It branches out: from the verse you can understand that this too is not something the Holy One, blessed be He, wants. But not that this is what the Holy One, blessed be He, commanded—this is not included in the command. What the Holy One, blessed be He, commanded is what is included in the command of the verse; this is not included there. But from the spirit of the verse I understand that the Holy One, blessed be He, also wants this—exactly what I said about rabbinic law. Therefore I claim that “do not turn aside,” on the plane of legislation and on the plane of interpretation, works in a fairly similar way, but you have to notice the difference. On the plane of legislation, “do not turn aside,” the authority to legislate itself branches out from “do not turn aside.” The authority to interpret also branches out from “do not turn aside,” but here I was talking about a third thing: the law itself, a specific law—how it emerges through derashah from the verse. My claim is that the derashah is a branching out of the law from the verse and not a specification, meaning not something already inside the verse.

[Speaker C] According to your approach, if we take this example specifically, suppose I were to say: okay, the Holy One, blessed be He, meant by “You shall fear the Lord your God” to include everything that branches out from that.

[Rabbi Michael Abraham] But that’s not the Talmud’s view—not to include everything that branches out from that. The Holy One’s intent is to fear Him Himself.

[Speaker C] Fine, okay, and now the sages: learn from this everything that branches out from it. But it’s not like that, because according to the Talmud, from the word “et” in “You shall fear the Lord your God” I can derive only one derivation. Right. But why? Why? If it’s everything that branches out, then I can derive everything that branches out.

[Rabbi Michael Abraham] No, I didn’t say everything that branches out. All the hermeneutical rules tell me what I’m supposed to do in each textual occurrence. Say it’s a verbal analogy, a word here and a word there, then you can compare the two contexts in every respect. But when you make an inclusion from the word “et,” then they tell you that you need to include one derivative. How? Okay, include the one that is closest, so you include that. But you still include it.

[Speaker C] Actually I would say that if the Torah, in the word “et,” intended only one inclusion, then it intended not merely one inclusion—it intended—

[Rabbi Michael Abraham] It intended—

[Speaker C] to reveal what that inclusion is.

[Rabbi Michael Abraham] I understand, but I’m saying that by the same token, if the Torah intended that you include everything you think of, then it intended everything you think of—what’s the difference? Then in any case it’s Torah-level. I claim that the Torah did not intend either this or that. The Torah wrote “et,” and that allows you to include. Include what? One thing that you find appropriate.

[Speaker C] So why include specifically one thing? Why include specifically one thing? I mean, if the Torah gave you—okay, that you should give—

[Rabbi Michael Abraham] Because that’s what the word “et” does. If you want to include more than one thing, there are other hermeneutical rules that do that—for example, a general statement, a specification, and then another general statement. Why did the Torah choose to write this—to teach you this inclusion through the word “et” rather than through a general-specification-general formulation, or to phrase this verse in that way? Because it wanted to tell you that here you need to include one thing. Okay.

[Speaker D] So because the freedom regarding the choice of that one thing is what defines branching out as opposed to specification—there’s no necessity.

[Rabbi Michael Abraham] Not that the Torah intended in advance what you chose. It gave you the possibility to expand; now you expand according to what you understand. By the way, if you have nothing to expand to, then maybe don’t expand. I don’t know—there’s room to discuss that. As a permission to expand. As for whether it’s an obligation, obviously—that’s why I said it’s no accident that Maimonides brought here the example of “You shall fear the Lord your God,” because after all the Talmud there with Shimon HaAmsuni—

[Speaker C] After the whole method of expounding all the “ets” collapsed. Exactly—so it’s obligatory to expound.

[Rabbi Michael Abraham] That’s what I’m saying. From there it does imply an obligation. Because the whole give-and-take between Shimon HaAmsuni and Rabbi Akiva—Shimon HaAmsuni wanted to give up all the “ets” because he couldn’t find what to include from this one. Why give them all up? Here you didn’t find anything—so don’t include anything here; in places where you did find something, do include. We see that no, if there is such a rule then you must include; it’s not merely that you may include. All right? And Rabbi Akiva too in the end said, fine, if we have to include, then we will perforce include Torah scholars, even though he too was aware of the difficulty in this, namely that you are likening Torah scholars to the Holy One, blessed be He. So here too it does imply that there is an obligation to include and not merely permission to include. Okay. So basically we see that here too there is some mechanism of branching out from the verse. There is a very interesting place here, even though I found only one such case, where I see an implication—I mean I need more—here. Let me add one more thing first. Maimonides writes, and Nachmanides attacks him on this point. Here. He says, disagreeing with the Behag in the second root—and I’m reading from Maimonides’ second root—that he disagrees with the Behag and says: “Their ignorance has already reached something even more severe than this,” he attacks the Behag, “namely that when they find a derashah in a verse from which one must perform some act or avoid some matter, and all of these are undoubtedly rabbinic, they count them among the commandments, even though the plain meaning of the verse does not indicate any of those matters, despite the principle handed down to us by them, peace be upon them, and that is their saying of blessed memory: ‘A verse does not depart from its plain meaning.’ And the Talmud asks everywhere: ‘What is the plain meaning of the verse speaking about here?’—for they found one verse and learn from it many things by way of explanation and proof.” What does that mean? Maimonides says that what caused the Behag to count commandments learned from derashot is what the sages said, that “a verse does not depart from its plain meaning,” and they say, “What is the plain meaning of the verse speaking about?” and so on. Meaning, there are several interpretations here: there is peshat and there is derash, and they are all interpretations of the verse. And Maimonides here feels that the root of the Behag’s view is that he understands derash as an additional interpretation of the verse: besides peshat there is also derash, two interpretations of the verse. But Maimonides argues that this is not correct. Maimonides argues that when it says “a verse does not depart from its plain meaning,” it does not mean that after you have said a derashah, don’t forget there is also peshat. Rather, “a verse does not depart from its plain meaning” means: only peshat is an interpretation of the verse. Derash is not an interpretation of the verse; derash is an expansion. And that is what he says afterward, that it is like branches emerging from roots. And therefore this is a novel interpretation. What “a verse does not depart from its plain meaning” says is, in his words, also to be taken literally. Meaning that there is only one interpretation for each verse, only one: the plain meaning. And all the Pardes and the seventy faces of Torah and all that—that’s not interpretation, that’s expansion. There is only one interpretation. And Nachmanides feels that here lies the root of the matter, and he attacks him on this forcefully. Nachmanides says: what are you talking about? This reminds one of “apples in settings of silver”—Nachmanides himself brings from the introduction to Guide for the Perplexed—I had this on the site—that there are several possible interpretations for every verse, seventy faces of Torah and Pardes and things like that. But Maimonides says no: there is only one interpretation of a verse. Everything else is an expansion. The derashot, what we learn from derashot, is expansion and not interpretation.

[Speaker D] What does he do with “an eye for an eye”? What? There the derash uprooted the plain meaning; it’s not an expansion of it.

[Rabbi Michael Abraham] In a place where the derash uprooted the plain meaning, then the derash says that this is the plain meaning. But never two things. So the plain meaning is only that.

[Speaker D] But he says that a verse does not depart from its plain meaning, and he says that this is the root, and then he says that the derash—

[Rabbi Michael Abraham] “A verse does not depart from its plain meaning” applies where there is no contradiction between the plain meaning and the derash. Where there is a contradiction between the plain meaning and the derash, then the derash becomes the true plain meaning, and by the way there it will be Torah law and not rabbinic law according to Maimonides. Because that is the plain meaning—it doesn’t matter that we arrived at it with the tools of derash. The derash only revealed to us what the verse says. And in that sense this is a derash that reveals. There is a derash that creates, a derash that supports, and a derash that reveals. The derash that reveals shows that the verse is not as you read it in the simple way, because in the simple way it is difficult for some reason or it contradicts the derash, and therefore in most cases the derash is parallel to the plain meaning, it does not contradict it. It adds another law on top of it, one not related to the plain meaning. But there are very rare cases, by the way—people think there are many, but there aren’t—very rare cases where the derash contradicts the plain meaning. “An eye for an eye” is one of them. Now, what happens here is actually something very interesting. Because the beginning of the discussion between Maimonides—this is really in parentheses, but it’s an interesting parenthesis so I’m saying it anyway—the beginning of the dispute between Maimonides and the Behag is not in Jewish law. It’s in the interpretive world, the realm of exegesis. The Behag understands that there are several possible interpretations of one verse. Derash and peshat are both interpretations of the verse. And Maimonides argues that there can be only one correct interpretation of a verse. Everything else—what we call interpretations or midrashim—are expansions, not interpretations. Now, as a result of this interpretive dispute, a halakhic dispute also emerges. Because Maimonides argues that something that is an expansion of the verse does not have Torah-level force. And it may be that the Behag agrees with that too; it’s just that the Behag says that derash exposes what is in the verse, it does not expand it. So their dispute is on the interpretive level. The halakhic level is a derivative of the interpretive level. Now I’ll say more than that: there are medieval authorities from whom it seems that they agree with Maimonides’ interpretive method but do not agree with his halakhic method. For example, the Ran in tractate Nedarim 8a—I mentioned him once—says that an oath can take effect on something learned from a derashah. An oath cannot take effect on something one is already commanded to fulfill or not to violate, because he is already sworn from Mount Sinai. But if you learn something from a derashah, then an oath can take effect on it. Now, the Ran does not say that something derived from a derashah is rabbinic. More than that, there are opinions according to which even on a rabbinic law an oath does not take effect, so that certainly isn’t the point. This is a special rule regarding something that comes out of a derashah. Why? In my opinion, the Ran agrees with Maimonides’ interpretive conception. He holds that something that emerges from a derashah is an expansion and not an exposure. So what? Then on that we were not sworn from Mount Sinai. Because what we were sworn to at Mount Sinai is what is written in the verse, and this is an expansion—it is not written in the verse. Therefore you can swear concerning it; the oath takes effect on it. Half a measure, for example? What? Half a measure? Maybe yes, because it is learned from “all fat” by inclusion, right. And therefore, or Torah study beyond reciting the Shema morning and evening—that is what the Ran is talking about there, that is his topic there. So I claim that the Ran agrees with Maimonides’ interpretive view, that derashot only expand and do not expose, but he does not agree with the halakhic implication of that. Meaning, he does not agree that if something is only an expansion and not an interpretation, then it is rabbinic and not Torah-level. On that he disagrees with Maimonides and joins all the other medieval authorities. On the other hand, with the Behag it may work the other way. The Behag may also agree that something that is an expansion would be rabbinic law; he just claims that something derived from a derashah is not an expansion but an exposure. Meaning, he disputes Maimonides on the interpretive level but not necessarily—maybe yes, maybe no, I don’t know—but not necessarily on the halakhic level. So Maimonides has two independent innovations here, and each can be disputed separately. The interpretive innovation: whether what emerges from a derashah is—

[Speaker B] exposed—

[Rabbi Michael Abraham] whether it was already inside the verse, or whether it is an expansion. And the halakhic level: that something which is an expansion and not an exposure is only rabbinic law and not Torah law. Now the interesting question is whether there is some implication to the interpretive dispute in itself. Say someone accepts Maimonides’ interpretive view but not his halakhic thesis—does that have any halakhic implication? So we already saw one that it does. The Ran says that an oath takes effect on this thing even though it is Torah-level, because interpretively it is not written in the verse, and therefore regarding that you are not already sworn from Mount Sinai. Now I looked in Maimonides for a halakhic implication of his interpretive thesis. And I found one. And it’s very interesting. There is a verse in Parashat Pekudei: “They made the tunics of fine linen, the work of a weaver, for Aaron and for his sons; and the turban of fine linen, and the decorated caps of fine linen, and the linen breeches of twisted fine linen; and the sash of twisted fine linen, and blue, purple, and scarlet yarns, the work of an embroiderer, as the Lord commanded Moses.” So the Talmud in tractate Yoma 71a learns from this verse as follows: “The sages taught: things concerning which ‘fine linen’ is stated—their thread is sixfold; twisted means eightfold; the robe, twelve; the curtain, twenty-four; the breastplate and ephod, twenty-eight.” Meaning, it depends on how many strands you twist together into the thread from which you weave. So in all the things in the Torah that appear under the word “shesh,” the thread is made of six strands. You twist the six strands and spin them into the thread, okay? Afterward you weave the fabric from that thread. And when you spin the thread, from how many strands do you spin it? So all the garments the Torah refers to and says are made of “shesh,” the meaning is sixfold in strands. That is not the simple meaning of the Torah. The simple meaning of “shesh” is that it is made of linen. So it’s not that six means six strands. It’s a type of material, okay? It’s not that “six” means made from six strands.

[Speaker B] So—

[Rabbi Michael Abraham] The Talmud says as follows: From where do we know that their thread is sixfold? How do we know that the thread needs to be sixfold? Because the Talmud itself understands that “shesh” does not mean the number six. So the Talmud says this: because the verse says, “They made the tunics of fine linen, and the turban of fine linen, and the decorated caps of fine linen, and the linen breeches of twisted fine linen.” Five verses—meaning five occurrences—are written. One for itself, to teach that they are of linen. Meaning that you should make it from linen, from that type of material, okay? And one to teach that their thread is sixfold—which is of course a derashah. The word “shesh” here of course means linen, but we expound it: why didn’t it say linen? Why did it say “shesh”? To hint that it is made of six strands. And one that they must be twisted, and one for the other garments where “shesh” is not stated, and one to make it indispensable. Okay? So one teaches that the thread must be sixfold, one that they need to be twisted, one that even garments where it doesn’t say “shesh” but just says “garment”—there too you must make them sixfold and all the rest, and one more time that all these rules are indispensable. All right?

[Speaker D] But “twisted” is written there already. What? As for “twisted,” it’s already written.

[Rabbi Michael Abraham] But when it says “shesh,” then no. If it says only “shesh” and not “twisted fine linen,” you still have to twist them. All right? So Maimonides says—Maimonides says as follows: “Every place in the Torah where ‘shesh’ or ‘twisted fine linen’ is stated, the thread must be sixfold. And where ‘bad’ is stated, if it was one single thread alone, it is valid; and it is a preferred commandment that it be sixfold.” Which means a preferred—

[Speaker C] preferred commandment—that’s not a commandment. What? A preferred commandment, but it’s not indispensable.

[Rabbi Michael Abraham] It’s a commandment, but not indispensable.

[Speaker C] But the fifth one said they are indispensable—that all of them are indispensable. Exactly. So everyone asks, the Kesef Mishneh and everyone else: that goes against the Talmud. Right? Where does Maimonides get this distinction between garments regarding which it says “shesh” and garments regarding which it says “bad”?

[Rabbi Michael Abraham] What’s the difference? After all, the garments regarding which it says “bad” are also included here, and all these laws apply to them too, and all these laws are also indispensable.

[Speaker C] So—

[Rabbi Michael Abraham] I thought this is connected exactly to Maimonides’ position about interpretation. That’s what I think. What do I mean? We have to remember that according to Maimonides, the derashah is an expansion of what is written in the verse, not an exposure, okay? Now let’s go through the verse and see. It says “shesh” five times. So it says that their thread is sixfold. Right? One for itself, yes. One for itself, one that the thread is sixfold, one that they be twisted, one for the other garments where “shesh” is not stated, and one to make it indispensable. Okay? Now my claim is that with the other garments, these laws are not written there; they come out of derashah. Right? Now what is written here, that the word “shesh” comes to make indispensable—what does it make indispensable? Everything in the verse. But the “other garments” do not appear in the verse, because “other garments” is a derashah; it is an expansion of what appears in the verse. So the rule of indispensability does not apply to the other garments. Because “indispensable” tells you that everything in this verse is indispensable. Now according to Nachmanides, the other garments also appear in this verse, because from one of the occurrences of “shesh” we expounded also the other garments, those where it says “bad” and not “shesh.” But according to Maimonides, derashah does not expose, it expands. So even after I learned all the laws concerning the other garments, I learned that through derashah. It is not that the other garments are also written here in the verse. Now when the next derashah comes and says that the last word “shesh” means that everything written in this verse is indispensable, that applies to what is written in the verse—but not to what was expounded from somewhere else and appears somewhere else; that is not related to the verse. On that the matter of indispensability was not said. Therefore Maimonides says that in garments where “shesh” is stated, making the threads sixfold is also indispensable—not only that you have to make them sixfold. But in garments where it says “bad” and not “shesh,” then you still need to do it that way, but it is not indispensable. Because the derashah is true, as Maimonides says—it’s not that it isn’t true—but it is not written in the verse. So everything the derashot teach about the other garments, do it—but it is from the Scribes, it is not written in the verse. Even if it’s not from the Scribes, it is not written in the verse. So when we say that it is indispensable, that everything in the verse is indispensable, this is not included in what is indispensable, because it is not written in the verse. But notice carefully: this is a halakhic implication—that it is not indispensable—of Maimonides’ interpretive conception, not of his halakhic conception. And even if Maimonides had been like Nachmanides, and had thought that what is not written in the verse is still Torah-level, this implication would remain, because this implication stems from his interpretive view and not from his halakhic view. This is an implication that comes not from the fact that it is rabbinic teaching—even if it were Torah-level—but from the fact that it is not considered to be inside the verse. So this is a halakhic implication of Maimonides’ interpretive conception, not of his halakhic conception.

[Speaker C] Because it’s a derashah? What?

[Rabbi Michael Abraham] Because it’s a derashah, yes. So the claim that derashah has only the status of rabbinic teaching—that’s a result. And what is the basis for that result? Why is it rabbinic teaching? It’s Maimonides’ interpretive approach that derash is not interpretation but expansion. This is a halakhic implication of Maimonides’ interpretive approach, not of his halakhic approach. And I didn’t find another example of this. It’s a bit hard to search—you need to know at least where to search. I tried to look in various places where it says “indispensable,” but I didn’t find additional examples of this matter. I also didn’t find contrary examples. I didn’t do a comprehensive and broad search; it needs a more precise search. Anyway, for our purposes, to summarize this section: the claim is basically that the authority of the sages is learned from “do not turn aside,” while with respect to Torah laws—sorry—while with respect to Torah laws there isn’t the problem that it comes out Torah-level, right? The question Nachmanides asked on the first root, about rabbinic laws, that they would then have Torah force. According to Maimonides, Nachmanides’ question would apply here too. Because how can Maimonides say that something derived from derashah has the force of rabbinic teaching? After all, it is learned from “do not turn aside,” and if it is learned from “do not turn aside,” exactly as he asked regarding rabbinic laws. And generally speaking, were it not for Maimonides’ position in the second root, there would be no problem at all with the sages’ authority to legislate. According to Nachmanides there is no problem at all, because what does Nachmanides think? That it is actually specified by “do not turn aside.” Everything the sages interpreted is literally “do not turn aside”—that is what is written in the verse. The same with everything the sages legislated: if it emerged from “do not turn aside,” then it would be Torah law. Therefore Nachmanides says it does not emerge from “do not turn aside.” All right? But according to Maimonides there is a clear difference between the authority to legislate and the authority to interpret. According to Maimonides, the authority to legislate and the authority to interpret actually work in exactly the same way, because according to Maimonides both the authority to legislate and the authority to interpret are based on a mechanism of branching out and not of specification. Essentially “do not turn aside” reveals to me that the sage has authority, but what is the halakhic force of the law that comes out of that? Only rabbinic law. Unless in principle you do not recognize the authority of the sages to legislate or interpret, in which case of course you have violated the Torah-level “do not turn aside.” But then, as I said, the Minchat Chinukh is also right that you would violate two prohibitions. You would violate both the prohibition itself and also the fact that you turned aside from the words of the sages—meaning, also with respect to “do not turn aside,” you would violate two prohibitions. And therefore the mechanism is basically this: the mechanism of “do not turn aside” in general is a mechanism of branching out. From it branch both the authority to legislate and the authority to interpret or expound; both branch out from “do not turn aside” in the same way I explained in the previous class concerning the authority to legislate. And from the fact that there is “do not turn aside,” I understand that what the sages determine, whether in legislation or in interpretation, has some status in itself. True, I am not directly commanded about it, but it has a status in itself, and since that’s so I have to obey it—just that it is rabbinic law. And since it is not included inside the verse itself, it cannot be Torah-level, as Maimonides thinks—because according to Maimonides, if it were included in the verse itself, then that would simply be what the verse says, and then it would also be a command and therefore Torah-level. But Maimonides says that this is an expansion of the verse. And if the Torah gave sages authority to expand, that means their expansions have force—but rabbinic force, because that is the force of expansions of the verse. It is not an interpretation of what the verse itself commands. Do you see? This really runs parallel to what we saw regarding rabbinic laws in the first root. So that’s enough for now regarding the source of the sages’ authority. The source of the sages’ authority—I’m now closing the big parenthesis of the last two classes, right?—is learned from “do not turn aside” in any case. I claim that according to both Maimonides and Nachmanides it is learned from “do not turn aside,” except that for Maimonides, both in rabbinic laws and in Torah laws, it belongs to branching out, and therefore both categories create rabbinic laws—both legislation and interpretation, or derash, yes? But according to Nachmanides, in Torah laws it is specification, and in rabbinic laws it is branching out. Why does he question Maimonides? Wait, I also—he says, like Maimonides, that it is branching out, because he didn’t understand that that is what Maimonides means. He thinks Maimonides says it is specification, because from Maimonides’ point of view this is the same as the authority to interpret. So he didn’t understand that even in the context of rabbinic laws Maimonides also agrees that it is branching out. That is my claim, and in fact Maimonides too is saying what Nachmanides says.

[Speaker D] What about doubt—leniently or stringently? That was the question we started from. What’s the issue?

[Rabbi Michael Abraham] It’s rabbinic, therefore in cases of doubt we rule leniently.

[Speaker D] Also in derashot according to Maimonides?

[Rabbi Michael Abraham] Now, in derashot—yes, with derashot the rule is stringently. No, with derashot the rule is stringently. According to Maimonides? With derashot the rule is stringently. I explained this once; maybe I’ll explain it now, because I really can’t get into the next topic anymore, so I’ll explain it. We spoke about this once before; I’ll do it briefly. My claim is that the laws of doubt require two aspects that exist in every commandment and transgression. There is the aspect of command and rebellion—obedience to a commandment or rebellion—and there is the essential aspect, meaning the rectification or defect created by the act itself. Okay. Now, if we know that a Torah-level doubt is treated stringently and a rabbinic-level doubt leniently, then Nachmanides asks Maimonides: why is a rabbinic doubt treated leniently? A doubt regarding “do not turn aside” is itself a Torah-level doubt. Several later authorities explain this—Rabbi Shlomo Zalman, Rabbi Shimon Shkop, in slightly different but very similar formulations. They say that since the rabbinic law comes out of “do not turn aside,” what we really have here is only a duty of obedience and not an essential issue. Take poultry with milk. That is not intrinsically problematic; otherwise the Torah would have forbidden it. Why is it forbidden? So that you won’t come to eat meat with milk. Poultry with milk in itself is not problematic, right? So why do you have to avoid it? Because the sages commanded it, by authority. They have a reason, but not because the act itself is problematic. Okay? So here there is really no intrinsic significance in the act itself—there is of course prevention of future harm—but there is no intrinsic significance in the act itself; there is, however, a duty of obedience. Okay? And they claim that if you are in a state of doubt, doubtful rebellion is not rebellion. If you are in doubt whether the sages commanded or did not command, and you decided to go with the side that they did not command, that is not considered rebelling against their authority. Maybe you were sloppy, but it’s not rebellion. Rebellion means to go against the authority, to refuse to recognize it. Therefore a doubtful command is not a command, let’s call it that, for purposes of transgression. Okay? That’s how they explain why rabbinic doubt is treated leniently. And now let’s go to the other side of the equation. So why is Torah-level doubt treated stringently? It can’t be because of the command aspect of Torah law, because we already saw that a doubtful command is not a command, just as with rabbinic law. We are forced to conclude that the reason Torah-level doubt is treated stringently is only because of the essential dimension and not because of the command dimension, which is also what common sense says. After all, why do you have to be strict if it’s doubtful pork and doubtful not? Because maybe there really is pork here—you need to guard against the actual harm caused by this act, right? Meaning, it stems from the essence, not from obedience. Okay. Now the claim is that within rabbinic law there are several types. Torah law has to be something that has both essence and command. Rabbinic law is where one of them is missing—either command or essence. Now, Maimonides says that a law given to Moses at Sinai is also rabbinic law, “from the Scribes.” I mentioned that. Now, in a law given to Moses at Sinai there is certainly command, because we received a command from the Holy One, blessed be He—just orally, not from the written Torah. But certainly there is command. Why wasn’t this command written in the Torah? Apparently because it is a command without intrinsic essence. It comes to achieve something else, but the act in itself—of course it has a reason—but the act in itself is like poultry with milk: it comes to achieve something else, but in itself it is not something with intrinsic content. Therefore the Holy One, blessed be He, taught it to us orally and not as a verse in the Torah. A verse in the Torah, which is Torah-level, is only something that both has a command and is essential. Something that has command without essence is a law given to Moses at Sinai. Something that has essence without command is derashah. Why? Simple. What does derashah do? Derashah says that the idea of the verse, the essence of the verse, is found here too. There is no command, because this is an expansion of the verse, not the verse itself. So there is no command, but there is essence. The practical difference will be in the laws of doubt. In a doubtful law given to Moses at Sinai, Maimonides writes explicitly that we rule leniently. There is one place where he says not, but I can explain why. He writes explicitly in two or three places that we rule leniently. Why? Because it is a doubtful command. A doubtful command, like a rabbinic doubt, is ruled leniently. True, derashot are also rabbinic laws, but their doubts are ruled stringently. Why? Because this is a rabbinic law with Torah essence but lacking command. In Torah law you have both. Now where you have the essence and you are in doubt, doubtful essence requires stringency—because maybe you are in fact violating the prohibition itself, maybe you will cause the harm, so you need to be strict. According to Maimonides there is no blanket rule that every rabbinic doubt is ruled leniently. A doubtful enactment is lenient, or a doubtful command is lenient, but a rabbinic law of this kind, which is basically Torah essence without command—in that case the doubt is ruled stringently. Consequently, all of Nachmanides’ questions against Maimonides, and all the places in the Talmud where we see that in laws derived from derashot cases of doubt are treated stringently, are no difficulty for Maimonides, because Maimonides too agrees that their doubts are ruled stringently. The practical difference is that we do not punish for them or something like that, but their doubts are ruled stringently. In a law given to Moses at Sinai, truly the doubt is ruled leniently, and he writes that. Maimonides writes explicitly in his commentary to the Mishnah on Kelim chapter 17 that doubt regarding a law given to Moses at Sinai is ruled leniently.

[Speaker D] That also parallels the reasoning you gave—that this is essence without command.

[Rabbi Michael Abraham] Right. Doubt based on logic, according to this thesis, should also be ruled stringently, because at the end of the day, as to the essence, you have to be concerned that maybe there is something here. All right? Okay.