Lecture from 8 Cheshvan 5767
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 Torah basis of the authority of the sages
- Maimonides’ approach in Sefer HaMitzvot and Hilkhot Mamrim
- The Hanukkah lamp and the blessing “who commanded us” as a source for “do not deviate”
- The prohibition of “do not deviate,” lashes, and the rebellious elder according to Maimonides
- Nachmanides’ critique: erasing the rabbinic category and the rule that in a rabbinic doubt one is lenient
- Implications: women and time-bound rabbinic commandments, with the example of Rashi and Tosafot
- Interpretive authority versus legislative authority: the interpretation of the verses according to Nachmanides
- The Minchat Chinukh and the absurdity of “more severe than an explicit verse because it comes from exposition”
- “Do not deviate” as revealing authority and as secondary legislation: rebellious intent versus the evil inclination
- The problem of the source of validity and the need for an external anchor for a normative system
Summary
General Overview
The text argues that the starting point for discussing the relationship between Jewish law and changing reality is the authority of the sages and the options available to them for responding to reality, and it places the passage “If a matter of judgment is hidden from you” together with “do not deviate” at the center of the issue. Maimonides presents a very broad authority for the Great Court, to the point of grounding decrees, enactments, and customs in the Torah’s command to obey them, while Nachmanides disagrees and argues that this expansion erases the category of rabbinic law and undermines distinctions such as the rule that in a rabbinic doubt one is lenient. The text then proposes an understanding that distinguishes between grounding the authority itself in the verse and the separate question of when someone who violates the sages’ words also violates “do not deviate,” while emphasizing that the main issue is the source of the binding force that obligates obedience to the sages without creating a “double” normative system.
The Torah basis of the authority of the sages
The passage “If a matter of judgment is hidden from you” commands one to go up “to the place that the Lord will choose” and inquire of “the Levitical priests” and “the judge who will be in those days,” and to act “according to the Torah that they instruct you” and “according to the judgment that they tell you you shall do,” with the warning “do not deviate from the matter they tell you, right or left.” The text presents this passage as the foundational basis from which the authority of the sages is “drawn,” and emphasizes that the words “from that place” point specifically to the Great Court sitting in its place, and not necessarily to every sage at every time.
Maimonides’ approach in Sefer HaMitzvot and Hilkhot Mamrim
In Sefer HaMitzvot, commandment 174, Maimonides obligates us to obey the Great Court and do “whatever they command regarding prohibition and permission,” whether the matter is derived by reasoning, by analogy through the interpretive methods by which the Torah is expounded, by what “they agree is the secret of the Torah” in the sense of the Torah’s interpretation, meaning, and spirit, or in matters that in their judgment are “proper and strengthen the Torah.” The text illustrates that innovations such as Hanukkah and Purim are not necessarily interpretations of the Torah or decrees out of fear of transgression, but rather responses that the sages saw fit to enact. In Hilkhot Mamrim, Maimonides rules that the Great Court in Jerusalem is the “essence of the Oral Torah” and the “pillar of instruction,” from whom “statute and judgment go out to all Israel,” and that there is a positive commandment to obey them, while one who does not act according to their rulings violates the prohibition of “do not deviate.”
The Hanukkah lamp and the blessing “who commanded us” as a source for “do not deviate”
The Talmud in tractate Shabbat asks how we recite a blessing over the Hanukkah lamp saying “who sanctified us with His commandments and commanded us,” and answers that according to Rav Avya the source of “commanded us” is “from ‘do not deviate,’” while according to Rav Nehemiah it comes from another source. The text presents this as an apparent proof that “do not deviate” is the basis by virtue of which we obey enactments such as lighting the Hanukkah lamp, but notes that the matter is “not so simple,” and from there the broader discussion develops.
The prohibition of “do not deviate,” lashes, and the rebellious elder according to Maimonides
Maimonides rules that one who does not act according to the ruling of the court violates a prohibition, but “one is not flogged for this prohibition because it was given as a warning for a court-imposed death penalty.” The text explains that the reason is not because this is a rabbinic law, but because of the rule of a prohibition that serves as a warning for a court-imposed death penalty, and it connects this to the law of the rebellious elder, who is liable to death by strangulation when a sage rules against the Great Court. Maimonides lists three domains: matters learned by tradition and the Oral Torah, matters derived through the interpretive principles by which the Torah is expounded and that seem correct to the sages, and matters made as a “fence for the Torah” according to the needs of the time, namely “decrees, enactments, and customs.” In all of them there is a positive commandment to obey, and one who violates them transgresses a prohibition.
Nachmanides’ critique: erasing the rabbinic category and the rule that in a rabbinic doubt one is lenient
Nachmanides sharply disagrees and argues that Maimonides builds a “fortified wall” around the words of the sages in a way that is dangerous, like Eve’s expansion in speaking to the serpent, because expanding beyond the truth causes even the core itself to be lost. The text presents Nachmanides’ difficulty through the example of poultry cooked in milk: according to Nachmanides, if the rabbinic prohibition draws directly from “do not deviate” as a Torah prohibition, then the rule “in a rabbinic doubt one is lenient” loses all meaning, because every rabbinic doubt becomes a Torah-level doubt requiring stringency. Nachmanides raises the possibility that the sages framed the enactment in such a way that in cases of doubt one is lenient, but rejects this as forced, and concludes that Maimonides’ approach turns all rabbinic law into Torah law and erases the conceptual distinction that the Talmud itself treats as lighter.
Implications: women and time-bound rabbinic commandments, with the example of Rashi and Tosafot
The text cites a dispute between Rashi and Tosafot regarding women and positive rabbinic commandments that are time-bound, against the background of the Talmudic statement obligating women in the four cups on Passover because “they too were part of that miracle.” Tosafot concludes that without this special reason, women would be exempt even from rabbinic positive time-bound commandments, while Rashi holds that women are obligated in rabbinic commandments even when they are time-bound. The text presents a common explanation connecting this to Maimonides’ approach, according to which the rabbinic obligation is understood as folded into “do not deviate” as a prohibition, and women are obligated in prohibitions even when they are time-dependent. It emphasizes that this demonstrates the significance, on the conceptual plane, of turning rabbinic law into a Torah-level prohibition.
Interpretive authority versus legislative authority: the interpretation of the verses according to Nachmanides
The text formulates Nachmanides’ view as holding that “do not deviate” applies mainly to the authority of the sages to interpret the Torah and expound it through the thirteen interpretive principles—that is, to determine what the Torah-level law is when the meaning is unclear—and not to establishing decrees and enactments as new legislation. According to this, when the sages function as interpreters, the resulting law is Torah law, and therefore the rule “in cases of doubt one is stringent” poses no problem, whereas enactments and decrees remain within the rabbinic domain that does not lean on “do not deviate” in the same way. The text formulates this in modern language as a distinction between the sages as interpreters in Torah law and the sages as legislators in rabbinic law.
The Minchat Chinukh and the absurdity of “more severe than an explicit verse because it comes from exposition”
The text brings, in the name of the Minchat Chinukh, a conclusion that seems absurd: that violating a law derived by exposition is more severe than violating a law written explicitly in the Torah, because in violating an exposition-based law one also adds the prohibition of “do not deviate,” meaning disobedience to the sages. The text rejects this as “unthinkable,” and frames that rejection as connected to the understanding that “do not deviate” is not a commandment “like any other commandment,” but rather a different kind of verse in terms of its meaning and role within the normative structure.
“Do not deviate” as revealing authority and as secondary legislation: rebellious intent versus the evil inclination
The text proposes a more nuanced reading according to which we should not say that anyone who eats poultry with milk has violated a Torah prohibition, because a person can violate a rabbinic law for various reasons—such as the evil inclination or error—without denying the authority of the sages. The text states that the violation of “do not deviate” is realized when the rabbinic transgression is committed “out of the view that the sages have no authority,” similar to the structure of the rebellious elder, who rules against the court and is not merely someone who fails in practice. The text cites the Rogatchover in Tzafnat Pa’neach as saying that this distinction resolves Nachmanides’ difficulties about leniency in rabbinic doubt without saying that the sages created special enactments for doubtful cases, because one who is in doubt may be lenient since it remains a rabbinic prohibition, and only rebellion against authority is the Torah-level aspect.
The problem of the source of validity and the need for an external anchor for a normative system
The text raises the question “who gave you the authority?” as a basic question in any legal system, and argues that the justification for obeying a system cannot itself be an internal law of that system, but must be found outside it. The text warns against a picture of “dualism” in which there are supposedly two independent sources of authority—the Holy One, blessed be He, versus the sages—and presents “do not deviate” as the anchor from which the authority of the sages arises within the Torah’s system. It explains this through an analogy to “secondary legislation,” in which a higher authority delegates power to enact regulations with a lower status than foundational laws, and concludes that Maimonides provides a solution to the source of authority but seems to pay prices that Nachmanides highlights, whereas Nachmanides preserves the Torah/rabbinic distinction but still has to explain where the validity of enactments comes from, and the continuation of the discussion is postponed until next time, “with God’s help.”
Full Transcript
[Speaker A] Electronics once.
[Rabbi Michael Abraham] Last time we talked a bit, in general, about the relationship between Jewish law and reality—about the kinds of change that make us need this question of change in Jewish law, kinds of change in Jewish law, kinds of change in reality, and the connection between them. The various mechanisms of change that we discussed—or responses, not necessarily change, but responses to reality that we discussed—of course are grounded in the activity of the sages. Meaning, the halakhic point of departure for this discussion is really the role of the sages, their authority, and from that arise the various possibilities they have for dealing with changing realities, with changes of circumstance of all kinds. So I think an inseparable part of this introduction has to be an orderly discussion of the issue of the sages’ authority. That’s more or less what I want to do today. So it all begins in the Torah: “If a matter of judgment is hidden from you,” source one, “between blood and blood, between law and law, and between lesion and lesion, matters of dispute in your gates, then you shall rise and go up to the place that the Lord your God will choose, and you shall come to the Levitical priests and to the judge who will be in those days, and inquire, and they shall tell you the matter of judgment. And you shall do according to the matter that they tell you from that place which the Lord will choose, and you shall be careful to do according to all that they instruct you. According to the Torah that they instruct you, and according to the judgment that they tell you, you shall do; do not deviate from the matter that they tell you, right or left.” So here we really have the foundational passage from which all the discussions begin and from which the authority of the sages is derived. Maimonides indeed learns from here—I’m moving to source two—commandment 174: “It is that He commanded us,” this is of course from Sefer HaMitzvot, “to obey the Great Court and to do whatever they command regarding prohibition and permission, and there is no difference whether the matter is something they infer, or something they derive by analogy from the methods of analogy by which the Torah is expounded, or something they agree upon as being the secret of the Torah.” “The secret of the Torah” here doesn’t necessarily mean secret in the sense we usually use it; it means the interpretation of the Torah, the meaning of the Torah, or according to some matter which in their judgment is proper and strengthens the Torah. So there are a few things here. First, “something they infer,” meaning reasoning: the sages can innovate things by force of reasoning. Or “something they derive by analogy from the methods by which the Torah is expounded”—that’s exposition through the thirteen hermeneutic principles or methods of exposition. That’s two. Or “something they agree upon as being the secret of the Torah”—what does “the secret of the Torah” mean? In the simple sense it means the spirit of the matter. True, it isn’t written explicitly, but it’s clear. “The secret of the Torah” means the things that stand behind what is written explicitly. Sometimes there are things that the sages tell us: this is what the Torah really wants, this is what lies behind the words, and therefore they tell us to do such and such.
[Speaker A] Why does it say here “they agree upon”? What? Why does it say here “they agree upon”? Where? “The matter they agree upon.”
[Rabbi Michael Abraham] I don’t think the intention is specifically agreement in the sense that everyone has to hold the same opinion. That they decide. “They agree upon” means they decide, in our language, not—
[Speaker A] Conclude.
[Rabbi Michael Abraham] In the sense of—yes, exactly, they rule, yes, exactly.
[Speaker C] Fine, but according to that, “something they infer” isn’t even really an explanation of the Torah.
[Rabbi Michael Abraham] For example Hanukkah and Purim. Hanukkah and Purim are enactments that are not an explanation of the Torah and nothing like that. The sages saw fit to enact that every year we read the Scroll of Esther because it seemed to them to be the proper response to what happened there. No, it’s not an interpretation of the Torah, it’s not a decree lest we come to some transgression or things like that. No. So that’s a third thing, “the secret of the Torah,” or “according to some matter which in their judgment is proper and strengthens the Torah.” Meaning there are other contexts as well in which the sages can innovate laws, if there are things that strengthen the Torah or seem proper to them. We need to understand exactly what the relation is between this and reasoning. What seems right to them by reasoning, in the simple sense, means something that seems proper to them, no? It’s not exactly—
[Speaker C] No, for example, that the whole community has to participate in a study hall for children… well. And that strengthens the Torah.
[Rabbi Michael Abraham] It’s clear what that is.
[Speaker C] And the commandment of the Scroll is “something they infer.” So what is “proper”? “That it is proper and strengthens the Torah” is one criterion. Fine, but—
[Rabbi Michael Abraham] So—
[Speaker C] Proper—
[Rabbi Michael Abraham] Fine, so there isn’t a separate category of “proper.”
[Speaker C] Proper, straight—
[Speaker A] Neither right nor left.
[Speaker C] Straight.
[Rabbi Michael Abraham] “Proper and strengthens”—right, it really does seem that maybe it’s the same thing. And I was wondering about the relation between “proper” and reasoning—maybe it’s the same thing. You know that the book of Genesis is called—we just read the Torah portion of Bereshit a week ago—Rashi’s very first comment at the beginning of the Torah says: why did the Torah begin with “In the beginning” and not with “This month shall be for you the beginning of months” in the portion of Bo? So what’s Rashi’s assumption? That the Torah is supposed to focus on commandments, and all the rest is not exactly unnecessary—but still, why does the Torah begin with Bereshit and not with Parashat Bo? So he says: “He declared to His people the power of His works, to give them the inheritance of the nations.” Meaning that the Holy One, blessed be He, made the world and the land, and gave it to whomever seemed proper in His eyes, so that if the nations come with complaints we’ll have an answer for them. This Rashi is puzzling. It’s puzzling because he asked a much broader question than the answer he gave. The question he asked was why we need the whole book of Genesis, plus another two and a half portions of Exodus. And the answer he gives is why we need chapter one of Genesis: that the Holy One, blessed be He, created the world, and therefore He can do with it whatever He wants. For that, chapter one of Genesis is enough—to tell me that the Holy One, blessed be He, created the world. Why was the rest of Genesis written, and the portions of Shemot and Va’era up to “This month shall be for you”? And later too, of course, the non-halakhic portions about which the same question can be asked.
[Speaker A] It’s not for the nations. What?
[Rabbi Michael Abraham] Not for the nations. That’s already a close reading of the verse: “He declared to His people the power of His works,” and not to others, “to give them the inheritance of the nations.” But that’s homiletic. Really, what’s the plain meaning here? What’s the answer to the question? He asked a broad question and answered only one little grain of it. The answer lies in the continuation of his words, which is why it reminds me of this Maimonides here. He wrote—he says: why was this written? To tell us that the Holy One, blessed be He, made the world and made the land and gave it to whomever was proper in His eyes. That’s the key phrase. What does it mean, “gave it to whomever was proper in His eyes”? He gave it not to whoever He felt like, in our language, but to the one who deserved it, to the one proper in His eyes. How do you know who is proper in His eyes?
[Speaker E] No, it doesn’t necessarily mean the one who deserves it. What? Because “it is not because of your righteousness that you are coming to inherit this land.”
[Rabbi Michael Abraham] “To whomever was proper in His eyes”—that doesn’t necessarily mean deserving.
[Speaker E] Fine, let’s leave that. “Proper in His eyes” is—
[Speaker C] Something weighty.
[Rabbi Michael Abraham] Yes, and I’m also saying, you can go in several directions. But in the simple reading, first of all, what does Rashi say? Rashi says “whomever was proper in His eyes.” “Proper in His eyes” means the one who deserves it, the one whom the Holy One, blessed be He, finds it right to give it to—not some arbitrary decision, but the one proper in His eyes. And indeed, what do the sages call the book of Genesis? The Book of the Upright. Meaning that the first chapter comes to teach us that the Holy One, blessed be He, made the land and can do with it whatever He wants. The rest of the Torah—or the rest of the non-halakhic parts of the Torah—comes to teach us why the Holy One, blessed be He, decided specifically to give this to the people of Israel. And for that you have to show what is proper and to whom it is fitting to give. So all this comes from what Maimonides says here, that the sages decided about something that it is proper and strengthens the Torah. “All of it we are obligated to observe and do and stand by their word; we shall not deviate from it.” And he says, “As the Exalted One said: ‘According to the Torah that they instruct you’”—and the language of Sifrei is: “and according to the judgment that they tell you, you shall do”—this is a positive commandment. And the laws of this commandment have already been explained at the end of tractate Sanhedrin. So there’s both a positive and a negative commandment here. “Do not deviate” is the negative commandment, and “the judgment that they tell you, you shall do” is the positive commandment. So Maimonides learns from these verses a very broad obligation on us to obey the sages in almost everything they do. Aside from nonsense, of course, but whatever the sages find it reasonable to establish, we are obligated to obey by force of these verses. And this is indeed the source for Maimonides’ words, found in source three, a short Talmudic passage from tractate Shabbat. “What blessing does one recite over the Hanukkah lamp? He recites: ‘who sanctified us with His commandments and commanded us to light the Hanukkah lamp.’ And where did He command us?” What do you mean, “who sanctified us with His commandments and commanded us”? Did the Holy One, blessed be He, command us to light the Hanukkah lamp? He didn’t command us anything. This is rabbinic law. Rav Avya said—the Talmud says—Rav Avya said: from “do not deviate”; Rav Nehemiah said: from “Ask your father and he will tell you”—the difference between them doesn’t matter right now. So what does Rav Avya say? By force of “do not deviate.” Meaning, what do we see from the Talmud here? That the verse “do not deviate from all that they instruct you” is basically the foundation for why we are supposed to obey the sages when they tell us, for example, to light the Hanukkah lamp. And that seems explicit in the Talmud. We’ll see that it’s not so simple. That’s why I’m bringing this Talmudic passage. Maimonides repeats this also in Hilkhot Mamrim, source four, in Sefer Shoftim: “The Great Court in Jerusalem are the essence of the Oral Torah and the pillar of instruction, and from them statute and judgment go out to all Israel.” By the way, notice: this is talking about the Great Court in Jerusalem. Maimonides hints at this too; in the verses themselves it already appears: “and you shall do according to the matter that they tell you from that place.” What do the words “from that place” mean? This isn’t necessarily talking about every sage at every time; it’s speaking specifically about the Great Court. That’s the position of most of the medieval authorities (Rishonim): the Great Court when it sits in the Chamber of Hewn Stone in Jerusalem has the full authority of “do not deviate.” Beyond that, things become a bit more problematic. What authority do sages today have, or a court today, or even the great Torah leaders of the generation, if there were such a clearly defined thing? Even so, it’s not clear at all that their authority can be learned from the verse “do not deviate.” That verse speaks about the Great Court in Jerusalem.
[Speaker A] Was Purim also the Great Court? What? Purim? Was that also the Great Court, and not in Media and Persia?
[Rabbi Michael Abraham] No, Esther sent to the sages, “write me for future generations,” and by that time Nehemiah had already returned to the land, so I assume—anyway it received support afterward, that’s fairly clear in the Second Temple period, so even if it wasn’t in that very generation, by the next year already there was praise and thanksgiving—it happened later. So Maimonides says, yes: the Great Court in Jerusalem is the essence of the Oral Torah, the pillar of instruction, from them statute and judgment go out to all Israel, and “upon them the Torah gave assurance.” What does “the Torah gave assurance” mean? It means the Torah stands securely upon them, that is, the Torah rests on them. That’s the meaning, not that it promised us something. It’s from the language of security. Meaning, upon them the Torah is made secure, yes? “As it is said: ‘According to the Torah that they instruct you, and according to the judgment that they tell you, you shall do’—this is a positive commandment. And everyone who believes in Moses our teacher and his Torah is obligated to base the practice of religion upon them and to rely on them. Anyone who does not act according to their instruction transgresses a negative commandment, as it is said: ‘Do not deviate from all the matter that they tell you.’ And one is not flogged for this prohibition because it was given as a warning for a court-imposed death penalty.” What does that mean? If someone now doesn’t obey the sages, he has violated the Torah prohibition of “do not deviate,” right? That’s what Maimonides writes. He violated the Torah prohibition of “do not deviate.” Someone who violates a Torah negative commandment is liable for lashes. Maimonides says: why is he not flogged for this prohibition? He isn’t flogged. Someone who violates a Torah prohibition is not flogged—why isn’t he flogged? Notice, he does not say: because this is a rabbinic law, therefore he is not flogged. That’s not what he says. This really is a Torah-level transgression. So why no lashes? There’s a technical issue. There are all kinds of negative commandments for which lashes are not given: a prohibition without an action, a prohibition linked to a positive commandment, things like that. One of those rules is a prohibition that was given as a warning for a court-imposed death penalty. If there is a prohibition in the Torah for which in some situation one can incur the death penalty, then in every other situation too—even if there is no death penalty—there are no lashes. That’s the rule: a prohibition given as a warning for a court-imposed death penalty. So Maimonides says, why are there no lashes for someone who violates a rabbinic law and as a result violates the Torah prohibition of “do not deviate”? Why no lashes? A technical matter, because it was given as a warning for a court-imposed death penalty. Where? Where is one liable to death for this prohibition? Who said? In what situation? So Maimonides says that any sage who rules against their words is punishable by death through strangulation, as it says: “the man who acts intentionally so as not to listen…” Here we’re dealing with the passage of the rebellious elder. This is someone who is a Torah scholar, who meets certain criteria and has reached the level of legal ruling, and nevertheless rules against the words of the Great Court—he is liable to death, not only to lashes.
[Speaker C] That’s ruling against them, not just not observing.
[Rabbi Michael Abraham] Fine, but it’s still the same prohibition. The prohibition is the prohibition of “do not deviate.” And once in some situation that prohibition incurs death, then in all the other situations there are no lashes for it. That’s the rule.
[Speaker A] But he still violates “do not deviate”?
[Rabbi Michael Abraham] He violates “do not deviate.” The rebellious elder’s prohibition is “do not deviate.” One of the things he now details—what he did in Sefer HaMitzvot—“matters that they learned by oral tradition, and these are the Oral Torah,” meaning things received by tradition, “or things they learned through the thirteen interpretive principles.” There are debates about what exactly Maimonides means by the expression “by oral tradition.” “And matters they learned by their own reasoning through one of the interpretive principles by which the Torah is expounded, and it appears to them that the law in this matter is such. And matters they made as a fence for the Torah according to what the time requires, and these are decrees, enactments, and customs.” In each and every one of these three categories there is a positive commandment to obey them, and one who violates any one of them violates a negative commandment. So there is both a positive and a negative commandment. “And thus it says: ‘According to the Torah that they instruct you’—these are the decrees, enactments, and customs that they instruct the public in, in order to strengthen the religion and repair the world. ‘And according to the judgment that they tell you, you shall do’—this is…” In short, Maimonides creates a very sweeping scope for the prohibition of “do not deviate.” “Do not deviate” serves as the source of the sages’ authority in all areas: enactments, decrees, customs, tradition, expositions, interpretations of the Torah, the spirit of the Torah—whatever it may be. Everything. Everything the sages do gets authority from the Torah through “do not deviate.” That is Maimonides’ position. Nachmanides, in source five—which is a bit long, though it’s much longer than this; here I photographed only a small part, and it’s all that line there indicated by the arrow from source five—goes on at length disputing Maimonides. Nachmanides says that Maimonides intends to build a fortified wall around the words of the sages, but in truth it becomes the opposite—it makes the thing collapse—like Eve with the serpent. Because someone who expands too much beyond the truth ends up losing even the true thing itself. Right, the story where Eve told the serpent that the Holy One, blessed be He, forbade touching the tree, but really what was forbidden was only eating from it. So what did the serpent do? He pushed her into the tree. He said: look, you touched the tree—did anything happen to you? Nothing happened. And that’s how he convinced her to eat, and eating was indeed forbidden. Meaning, someone who expands prohibitions too much beyond what they really are will ultimately fail even to preserve the core that does have to be preserved. So it’s a very thin line. It isn’t always right to be stringent; it also isn’t always wrong not to be stringent. It’s a thin line and you have to know how to walk it. In any case, Nachmanides says here too: Maimonides is apparently being stringent, in quotation marks—meaning, he creates a very strong foundation that gives force to everything the sages do—but it’s too strong. It’s something that in the end is not correct, and therefore it also won’t hold. Why is it too strong? So Nachmanides says as follows: let’s take what Maimonides wrote earlier. Maimonides is basically saying that anyone who violates a rabbinic prohibition—say someone ate poultry with milk. Poultry with milk is a rabbinic prohibition. Meat and milk is written in the Torah: “Do not cook a kid in its mother’s milk.” But poultry with milk is permitted by Torah law; it is forbidden only rabbinically. If someone ate poultry with milk, what prohibition did he violate? Usually we say he violated the rabbinic prohibition of poultry with milk. According to Maimonides, no: he violated the Torah prohibition of “do not deviate,” because he did not obey the sages. Now what if I have a doubt? I have some food in front of me and I’m not sure whether it’s poultry with milk or kosher food. What am I supposed to do in that case? If it were just ordinary rabbinic law, we know: in a rabbinic doubt one is lenient; in a Torah-level doubt one is stringent. Right? But Maimonides says that every rabbinic prohibition, if I violate it, ultimately means I violate the Torah-level “do not deviate.” So if I’m in doubt, what should I have to do? Be stringent. So Nachmanides says that according to Maimonides, the rule that in a rabbinic doubt one is lenient has no meaning at all. The rabbinic category has no meaning at all—that’s basically Nachmanides’ claim.
[Speaker A] Sometimes the Talmud says that the sages enacted something, they enacted the law in such-and-such a way. So when the sages said that meat and milk is forbidden, they said in a doubtful case to be lenient.
[Rabbi Michael Abraham] So Nachmanides himself raises that possibility to explain Maimonides, and he says it’s forced. It’s not entirely clear why he thinks it’s forced, but he himself raises that possibility and rejects it. Meaning, he says—he doesn’t reject it with arguments, he just says it doesn’t seem plausible to him. Look, in any case, Nachmanides argues that Maimonides created such a strong foundation for the sages’ authority—which on the face of it is a very positive thing—but in the end, because the foundation is so strong, we have completely lost the category of what is called rabbinic law, what is called the words of the sages. Basically everything has become Torah law. Every rabbinic transgression we commit is really a Torah transgression of “do not deviate.”
[Speaker A] But from what I understand in Maimonides, if they establish some commandment that isn’t written in the Torah—for example reading the Scroll or things like that—that’s a Torah-level matter. But if it’s distancing measures, Maimonides says that’s “do not deviate.”
[Rabbi Michael Abraham] Maimonides spells it out: customs, decrees, enactments—everything. Everything comes under “do not deviate,” no distinction. All rabbinic laws.
[Speaker C] Yes, but once someone is lenient in rabbinic law according to rules they themselves gave you, then there’s no—
[Rabbi Michael Abraham] That’s what Moshe suggested earlier, basically.
[Speaker C] It doesn’t have to be—it’s not necessary.
[Rabbi Michael Abraham] Nachmanides thinks that’s forced. I’m not getting into the question of why right now, but that’s what he claims against Maimonides: the wall he built is so strong that in practice he erased from Jewish law this category called rabbinic law. There’s no such thing as rabbinic law anymore. Every rabbinic law that we observe is basically refraining from violating a Torah prohibition and fulfilling a Torah positive commandment. There’s a positive commandment to obey the sages, and a prohibition not to obey the sages. So every time I refrain from eating poultry with milk or when I read the Scroll, I’m fulfilling a positive commandment and refraining from violating a prohibition. If I violate the words of the sages, I neglect a positive commandment and violate a Torah prohibition. So for example, one immediate implication is that doubtful cases should be treated stringently even in rabbinic matters, since there’s really no such thing as a rabbinic doubt. Every rabbinic doubt is really a Torah-level doubt, says Nachmanides. He then goes on to ask many more questions against Maimonides, bringing proofs from the Talmud—and really, a great many proofs.
[Speaker A] And in the end, even non-performance becomes—there’s a category that if you don’t do something that you’re—
[Rabbi Michael Abraham] Obligated in—here—
[Speaker A] If I don’t do something the sages said, then I violate “do not deviate”?
[Rabbi Michael Abraham] Yes, and that’s even more severe.
[Speaker A] That makes the sages’ enactments more severe than positive commandments from the Torah.
[Rabbi Michael Abraham] Right, right. Meaning—for example, since you mention it, I’ll give an example. It’s not directly connected right now, but in parentheses: there’s a dispute between Rashi and Tosafot about what happens with time-bound rabbinic laws in relation to women. The Talmud says in several places that women are obligated in the four cups. Why? On Passover—why? Because they too were part of that miracle. Tosafot asks: why do we need the reason that “they too were part of that miracle”? Why shouldn’t they be obligated anyway? So Tosafot says: apparently because it is a positive commandment dependent on time—but the four cups are a rabbinic law. Tosafot says we see from here that because the Talmud needs a special reason, the Talmud assumes that without such special reasons, if there is a rabbinic positive time-bound commandment, women would be exempt from that too. Rashi in several places does not write that. People indeed ask against him from these Talmudic passages, but Rashi writes otherwise. Rashi writes that in rabbinic commandments women are obligated even if they are time-bound. And the question is why? What’s the difference? The rule is: whatever the sages enacted, they enacted parallel to Torah law. As much as the sages enact, it is done in the patterns of Torah law. So why here did the sages depart from the Torah pattern? Why did they obligate women even in positive time-bound commandments? The most common answer to this is to bring our Maimonides. Namely what? What are rabbinic positive commandments? A positive commandment—say, to read the Scroll—is a rabbinic positive commandment. So why are women indeed obligated in rabbinic positive commandments? Because it’s not really a rabbinic positive commandment; it’s a Torah negative commandment of “do not deviate.” And in negative commandments women are obligated even if they are time-bound. Meaning, the whole rule that women are exempt from time-bound commandments applies only to positive commandments. But in negative commandments, even if they are time-dependent, women are obligated. Like on the Sabbath, for example. Sabbath prohibitions are time-dependent negative commandments. Only on the Sabbath is labor forbidden. Why are women obligated?
[Speaker A] Because it’s a negative commandment that turns—
[Rabbi Michael Abraham] Into a positive one.
[Speaker A] What? Is that the only case where a negative commandment turns into a positive one?
[Rabbi Michael Abraham] Not the only one, there are others. Not the only one, there are others, but it’s an interesting case. True, it’s an interesting case, but it’s not the only one. There’s also the Sabbatical year, besides this.
[Speaker A] So really according to Maimonides, rabbinic commandments will be—
[Rabbi Michael Abraham] No, that’s the question I still haven’t answered, but I’m just illustrating here what it means to turn every rabbinic law into a Torah-level negative commandment. Meaning, it’s not only that we upgrade the halakhic status from rabbinic to Torah-level; we also turn it from a positive commandment into a prohibition. Every commandment—even though the sages basically instructed us to do something, to read the Scroll, to recite Hallel on Hanukkah, and so on—even though on the face of it this looks like a positive commandment, no: it is a negative commandment not to fail to do it. And one who doesn’t do it violates a negative commandment. And as a result, one implication for example is that Rashi holds that women would be obligated even in time-bound rabbinic commandments. So this is Nachmanides’ question. And with the force of all these questions, in the end all his questions and examples and proofs converge on one point: Maimonides erases from Jewish law the concept of rabbinic law. That is Nachmanides’ claim. Everything becomes Torah law. And actually, if you remember, last year we saw that in Maimonides the situation is just the opposite. Maimonides almost erases from Jewish law the concept of Torah law. Almost all laws for him are not Torah law, even things derived through the thirteen interpretive principles. So this is Nachmanides’ question, and it’s really a hard question. The immediate answer that suggests itself—and as I said, Nachmanides himself already raises it—is that this is true in principle, but the sages can, when they enact some enactment, shape it however they want. The sages established that we need to read the Scroll. If they had not said anything about the laws of doubt, Maimonides would tell us that in a doubtful case we would have to be stringent, because this is really a Torah negative commandment. But the sages themselves can tell us: listen, if you are in doubt, then be lenient. What’s the problem? They established this law in the first place; they could have chosen not to establish it at all. So they also established it in a particular way—they established it in such a way that someone in doubt need not be stringent. They can establish such a thing. And therefore it could be that Maimonides really does remain with his position that every rabbinic law in practice stems from “do not deviate” and really contains a Torah-level negative commandment, and still it’s possible to understand why doubtful rabbinic cases are lenient and things of that sort. Nachmanides himself says this is forced; he doesn’t explain why. I think the problem that arises here is a conceptual problem—that’s the root of the difficulty. But in the end we’re left with a halakhic system that has only Torah-level laws. A halakhic system in which there really are no rabbinic laws. What are called rabbinic enactments are not called that because their halakhic status is lighter. Not because rabbinic law is really lighter, but because just as the sages established that we should read the Scroll, they also established that if we are in doubt then we should be lenient. And they can establish that. But what comes out of this conception? What comes out is that in the end, really, there is no such thing as rabbinic law—there are only Torah laws. I don’t know, that’s not the picture you get when you go through the sources. I think in this matter there’s no doubt that Nachmanides is right. In the sense that specific difficulties can be resolved here and there, but it’s pretty clear from many places that you can see the Talmud treats rabbinic law as lighter even before any practical consequences. The way Maimonides says it is simply not correct. It isn’t lighter, and even the leniency in doubtful cases is not because it is lighter, but because the sages so defined it. But it’s not because it is lighter. One can bring a number of proofs that the attitude is that it is lighter. It’s not just that they’re lenient in doubtful cases. Rather, why are the sages lenient in doubtful cases? Where is the root of the problem? What exactly drives Maimonides to make this revolutionary move that basically erases an entire halakhic category? There are no rabbinic laws at all. Why does he do that? What is bothering him? What is he trying to solve? Maybe—
[Speaker A] Maybe his concern is that people won’t value rabbinic law like the commandments?
[Rabbi Michael Abraham] Yes, but concern is not an interpretive consideration. What does that mean, concern? Even if I’m concerned—that’s what we talked about last time—even if I’m concerned, I can’t now make an interpretive decision. I can enact a regulation, but I can’t decide that something is true conceptually just because I’m concerned.
[Speaker A] What is the binding force of the sages?
[Rabbi Michael Abraham] Oh, that’s really the question. Why should I obey the Sages? Why should I obey the Sages? The Sages come and tell me, sir, the Torah says it’s forbidden to eat meat cooked with milk. We’re telling you: don’t eat poultry with milk either. Why the coercion? You don’t like it? Then you don’t eat poultry with milk. What does that have to do with me? Why should I care what you say? Who are you? What, did I accept you as my God? Why exactly do I have to listen to you? What’s the point? For Maimonides, what was troubling was the source of authority. That’s a classic question in any legal system. We talked about this right at the beginning of last year. How does the source of authority of a system begin? When we come to obligate someone to obey some normative system, some legal system. Israeli law—why am I bound by Israeli law? We talked about that too. The answer can never be: because the law says you have to obey the law, right? That’s an absurd answer. Because about that law itself I’ll ask: who says I have to obey it? Right? The obligation to obey the law can never itself be one of the laws. It always has to be something prior to the legal system, something outside the legal system we’re discussing, right? So with the obligation to obey the Holy One Blessed be He, to keep Torah-level laws, there are all kinds of explanations: He is our God, He created us, He gave us the Torah, He demanded it of us, gratitude, everyone with whatever reason he invents for himself—they’re all wrong in my opinion, but never mind, we talked about that at the beginning of last year, doesn’t matter—something or other. But why do I have to listen to what they say? The reasoning, or basis, or source of validity of a normative system always has to lie outside it. Meaning: if the basic system is the Torah system of Torah-level laws, then there has to be something in the Torah that grants validity to the Sages. By that power the Sages can come and tell me: do such-and-such, and I’m obligated to obey them. Why? Who appointed you? They’ll tell me: the Holy One Blessed be He. It says, “do not turn aside,” “according to all that they instruct you,” all those verses. Then we’re set: we have a source of validity, we have authority. What we say must be observed. Without that, if there is no source in the Torah, then this is really dualism, yes? Two gods. Meaning, the Holy One Blessed be He commands us in His Torah, and the Sages command us in their Torah, and we have to keep the sayings of these people just like the sayings of that One. There’s no such thing. There is one source of authority: the Holy One Blessed be He. Where does the authority of the Sages come from? That’s what troubled Maimonides, and therefore Maimonides found it necessary to say that the source is the verse in the Torah, “do not turn aside from all that they instruct you,” or the positive commandment—both. Now you have to pay close attention; I’ll sharpen this further.
[Speaker D] But excuse me—even if we accept, against Maimonides, that there’s another level, rabbinic-level, that still fits the Torah; that’s what the Torah itself says. If we have some doubt, you have to listen to what the Sages say, and it doesn’t matter whether it’s Torah-level or rabbinic-level.
[Rabbi Michael Abraham] If it’s written in the Torah, then it’s Torah-level, no? What? If it’s written in the Torah, then it’s Torah-level. What do you mean it doesn’t matter?
[Speaker D] I don’t understand what bothered Maimonides, why the common-sense approach doesn’t satisfy him.
[Rabbi Michael Abraham] What’s the common-sense approach? That what’s written in the Torah is not Torah-level?
[Speaker D] That you can say such a thing? No—that we are obligated to listen to the Sages. Why? Because that’s what the Torah says.
[Rabbi Michael Abraham] So if it’s written in the Torah, then it’s Torah-level.
[Speaker D] But what they say is not Torah-level.
[Rabbi Michael Abraham] No, wait, you’re going all the way—you’re already moving one step further. I’ll get to that in a moment. That’s not a common-sense approach at all. But first of all, what is written in the Torah in the straightforward sense is Torah-level. If the Torah says to obey the Sages, then there is a Torah-level law to obey the Sages.
[Speaker D] The Torah says go to the judge. Yes. The Torah says go to the judge, so—
[Rabbi Michael Abraham] The obligation to obey the judge is a Torah-level obligation, the Torah says so, right?
[Speaker D] But not what he says.
[Rabbi Michael Abraham] Fine, but the obligation to obey that is Torah-level. So if I didn’t obey, what did I violate? Seemingly I violated a Torah prohibition. The obligation to obey is a Torah-level obligation. In a moment I’ll get there—you’re going in the right direction—but I’ll sharpen the point.
[Speaker E] It’s a bit more like—before I get there—contempt of court is one level below, say, treason against the state, so here too, not listening—
[Rabbi Michael Abraham] There are very categorical distinctions. What is written in the Torah is Torah-level; what isn’t written in the Torah is not Torah-level. This is written in the Torah. If it’s written in the Torah, it’s Torah-level.
[Speaker A] Contempt of court and treason against the state are exactly the same in the sense that you’re violating the law; the punishment here is such-and-such and there it’s such-and-such.
[Rabbi Michael Abraham] Yes, only in civil law there really are somewhat blurrier concepts than in Jewish law, actually, because in Jewish law there’s a very clear categorical division between Torah-level and rabbinic. What appears in the Torah is Torah-level; what doesn’t appear in the Torah is rabbinic. In law you can talk about secondary legislation, you can talk about all kinds of intermediate elements—which perhaps exist in Jewish law too, but maybe we’ll get to that. Now, someone could come and say that Maimonides’ consideration had nothing to do with constraints or anything of the sort; it was an interpretive consideration. The Torah says that one must obey the Sages—what do you mean? Why am I asking, regarding Maimonides, what caused you to interpret the Torah itself as giving authority to the Sages because you were looking for the source of their authority? What caused him? The fact that the Torah wrote it—that’s what caused him. In other words: what does Nachmanides do with those verses? Didn’t Nachmanides read those verses? It says in the verses: “If a matter is too difficult for you, between blood and blood, between lesion and lesion, you shall go up there,” and whatever they tell you, you must obey; “do not turn aside from all that they instruct you.” Didn’t Nachmanides read those verses? Why am I looking for reasons for what Maimonides says? It’s written in the verses, so that’s what he says, that’s how he rules—what’s the problem? It’s not written in the verses.
[Speaker C] Maybe “that they instruct you” means only if you came to ask? What? Maybe “that they instruct you” is only when you came to ask?
[Rabbi Michael Abraham] No, that’s a legitimate claim. Seemingly it says here, “If a matter is too difficult for you”—if it’s too difficult and you came to ask, and they gave you a certain ruling. But if they now tell me to read the Megillah—did I ask you whether to read the Megillah? I didn’t ask, so who said you have authority in that? There really are those who make that distinction. Nachmanides starts from the last formulation: what does Nachmanides do with these verses? Nachmanides says something that is actually accepted by all the medieval authorities (Rishonim), among those who agree with Maimonides as well—and Maimonides agrees with this too. First and foremost, what these verses do is give power to the Sages. They certainly do give power to the Sages. But power for what? Nachmanides says: only to interpret the Torah or derive from it through one of the thirteen hermeneutic principles. Not for decrees. Rabbinic enactments, where the Sages institute an enactment—that does not come from “do not turn aside.” Why? Because if it did come from “do not turn aside,” then once again, Nachmanides assumes that in cases of doubt one would have to be stringent, and there would be no such thing as rabbinic law at all—it would become Torah-level law. But we know there is such a category as rabbinic law. So apparently, with regard to what falls under the category of rabbinic law, the verse “do not turn aside” is not speaking. The verse “do not turn aside” does not give validity to the Sages to institute enactments, issue decrees—that’s something else, not from there.
[Speaker A] So how do they enact?
[Rabbi Michael Abraham] I don’t know; we’d have to examine it. But not from there. Because if it were from there, it wouldn’t be rabbinic law; it would be Torah-level law. That’s his claim against Maimonides, right? So what is the verse talking about? Nachmanides says: obviously there is a verse, and obviously this verse gives power to the Sages. What is it talking about? It is talking about a place where the Sages interpret or derive, through the principles of exposition, a Torah-level law. In those places—who says they are the interpretive authority, and I interpret the verse differently? We’re talking about Torah-level laws, not authority to enact a decree but authority to interpret. Who says they are the authorized interpretive body? I interpret differently. Why am I obligated to obey your interpretation specifically? So it is written in the Torah that yes: “do not turn aside from all that they instruct you.” “If a matter is too difficult for you”—and maybe that connects to “if a matter is too difficult for you,” difficult in the interpretive sense. When you don’t know what a verse means, when there are disputes about what a verse means, the authorized body to determine what the verse means is the Great Court. And regarding that: “do not turn aside.” That’s what Nachmanides says. But only regarding that. Here none of the difficulties arise, because the law from the outset—when I interpret the Torah or derive from it through one of the principles of exposition—the law produced by that process is a Torah-level law. Right? It’s interpretation of the Torah or derivation from the Torah; it isn’t legislation, it isn’t a new enactment, it’s Torah-level law. With Torah-level law there’s no problem. True, its validity comes from “do not turn aside,” and doubt indeed is treated stringently, and nothing is difficult. So that really is what emerges from the verse of “do not turn aside.” And now we come back and ask: so why does Maimonides expand this further? Meaning, the verses can be understood even without Maimonides’ very sweeping thesis. One could say that the verses speak only about the activity of the Sages as interpreters, not as legislators. Let’s now speak in a slightly more modern language: not about rabbinic laws but only about Torah-level laws. Torah-level laws are when the Sages function as interpreters; rabbinic laws are when the Sages function as legislators. When they legislate a new law, that is rabbinic law. When they interpret the Torah, that is Torah-level law, because what they say is basically, from our standpoint, what the Torah says.
[Speaker E] So in practice there isn’t a fit between Sefer HaMitzvot and Hilkhot Mamrim. In what sense? In Hilkhot Mamrim it seems that he really is within this area of interpreting the Torah and within the realm of Torah-level law. Whereas in Sefer HaMitzvot the statements are also things that are straight enactments and reinforcements for the Torah.
[Rabbi Michael Abraham] No, not at all. “The secrets of the Torah as the Torah is expounded through them”—there is both interpretation and exposition here. Meaning, “the secrets of the Torah” is interpretation, and the analogies are the exposition. “The secrets of the Torah” means not things explicitly written in the Torah; for that, according to the Sages, you need—
[Speaker E] Interpretation of meaning—the rabbi said interpretation of meaning—meaning there are additional things here. Whereas Hilkhot Mamrim seems more restrictive.
[Rabbi Michael Abraham] I’m not sure about that. It’s open to discussion. The terms are a little different, but I don’t think that—I wouldn’t make that into a distinction. In any case, what comes out for us here? It comes out that the verses themselves can be interpreted as referring only to Torah-level laws. And still there is a novelty in that the Torah gives authority to the Sages. It gives authority to the Sages as the authorized interpreters. What they say is, for us, what the Torah says. That is certainly what is written in these verses; everyone agrees about that. Maimonides takes it one step further and says that from those same verses themselves comes also the authority to institute enactments and issue decrees. Meaning, rabbinic laws too are anchored in the verse “do not turn aside,” not only Torah-level laws. That is already Maimonides’ innovation; Nachmanides does not accept that. And he also asks: after all, doubt should then be treated stringently, and so on. That is what the dispute revolves around. To such an extent that the author of Sefer HaChinukh reaches a conclusion that is really absurd—with all due respect, it is simply an absurd conclusion. He claims that when a person violates a law learned through one of the thirteen hermeneutic principles, that is a more severe transgression than violating something explicitly written in the Torah. Why? Because if I violate, say, Sabbath observance, it is explicit in the Torah, so I violated a Torah prohibition. But if I violate fear of God—sorry, honoring Torah scholars—“You shall fear the Lord your God,” which is expounded to include Torah scholars, that is a derivation. What he did is not explicitly written in the Torah. So if I violated that—if I did not honor Torah scholars, did not stand in awe of them—what did I violate? Seemingly I violated two things, says the Minchat Chinukh. I violated both the commandment to revere Torah scholars, which the Sages derive from the Torah, and I also violated “do not turn aside,” because after all I did not obey the Sages, their interpretation, the derivation they proposed. So what comes out? That if a person faces a dilemma whether to violate an explicit Torah law or a law that only comes from derivation, then he should violate the explicit law and not the derived one. That is what he says as a matter of Jewish law. It’s inconceivable—that can’t be. It’s obviously not true. And why it isn’t true is a great secret that I want to discuss; I think it is the foundation of this whole topic. The Minchat Chinukh understands that the verses of “do not turn aside” are a command like any other command. Just as there is a prohibition of wearing wool and linen together, and a prohibition, I don’t know, on eating pork, so too there is an obligation to obey the Sages. And in fact when I honor Torah scholars I am fulfilling a Torah-level positive commandment of honoring Torah scholars and also a Torah-level positive commandment of obeying the Sages, the ones who established this law. But it seems to me that this is not how these verses should be read. These verses are somewhat different verses, and here I come to what you presented earlier. These verses function more as a disclosure of intent than as a command. That is, these verses do not say—and Maimonides, I don’t think he would even dream of saying—that everyone who ate poultry with milk violated a Torah prohibition. That’s at least how Nachmanides understands him, and many others understand him that way too. It’s very hard to say such a thing. This is rabbinic law, not Torah-level law. When do you violate a Torah prohibition? When you eat poultry with milk because you do not recognize the authority of the Sages. After all, one can eat poultry with milk for many reasons. A person eats poultry with milk because he has an evil inclination and doesn’t overcome it, or because he doesn’t know it’s poultry with milk by mistake, or because he doesn’t recognize the authority of the Sages to determine that poultry with milk is forbidden. Three different motivations for committing this transgression. The third motivation—eating poultry with milk because I deny the authority of the Sages—there you violate the Torah-level “do not turn aside.” But it is not correct to say that eating poultry with milk is a Torah prohibition, meaning that everyone who eats poultry with milk has in effect violated a Torah prohibition. Why? Because the verse “do not turn aside from all that they instruct you” does not command me about poultry with milk; it commands me not to rebel against the authority of the Sages. Therefore only if I rebel against the authority of the Sages have I violated this prohibition of “do not turn aside.” If I simply ate poultry with milk because I had an evil inclination—that can happen with Torah-level laws too. There are people who violate Torah-level prohibitions, maybe because of desire; they didn’t manage to overcome it. It can happen. So with rabbinic laws too it can happen. There is no heresy here, no rebellion against authority. I understand that I’m a sinner; I understand that the Sages have authority. But what can you do—the leaven in the dough holds me back. Meaning, I just didn’t manage to overcome it. That is not rebellion against the authority of the Sages. Here I did not violate the prohibition of “do not turn aside from all that they instruct you.” To violate “do not turn aside from all that they instruct you” is only when the rabbinic transgression I commit comes from the conception that the Sages have no authority. And here I connect this to the rebellious elder—you asked about this earlier, I don’t remember who asked first—that the rebellious elder also violates “do not turn aside” and therefore is liable to death, but he has to issue a ruling against the Sages. That doesn’t seem similar to someone who eats poultry with milk. So here we already see that it’s getting very close. Because even someone who eats poultry with milk doesn’t violate “do not turn aside” unless his act itself contains a ruling, some sort of conception that says the Sages have no authority, and then he eats poultry with milk. That is a Torah prohibition. Meaning, “do not turn aside” is really not simply a verse commanding us; rather it is a verse revealing to us that the Sages have authority. The Rogatchover, for example, writes at the beginning of Tzafnat Pa’aneach on Maimonides—he indeed says this distinction as something obvious: that Maimonides does not think that one who eats poultry with milk violates a Torah prohibition. And all of Nachmanides’ questions—that doubt should be treated stringently, and so on—are incorrect; they are simply not true. Obviously rabbinic doubt is treated leniently, and this is not a Torah-level doubt, and there is no need to get to the claim that the Sages enacted, “they said and they said,” what I mentioned earlier—there’s no need to get there. When someone eats poultry with milk, he violates a rabbinic prohibition. When he is in doubt, he can be lenient because it is a rabbinic prohibition. But if someone eats poultry with milk because he is rebelling against the Sages, then he violates a Torah prohibition. Only then does he violate a Torah prohibition. It’s not as though we erased the category of rabbinic prohibitions from Jewish law. No, there is such a category. It’s only when I commit the rabbinic transgression out of—Maimonides, after all, read the Talmud.
[Speaker A] So Nachmanides didn’t understand that?
[Rabbi Michael Abraham] No, Nachmanides apparently read Maimonides differently. But in Maimonides it’s pretty clear that this is what he means. What does this actually mean? It means that when I eat poultry with milk not out of denial of the authority of the Sages, but because of evil inclination, I couldn’t overcome it, then I violated only a rabbinic prohibition, right? I did not violate “do not turn aside.” Now I return to the question: so why listen to them? After all, “do not turn aside” wasn’t said about that, right? If Maimonides is looking for a source that will anchor the authority of the Sages, that will obligate me to obey them, that won’t allow me to rebel against them, and he finds it in “do not turn aside,” and now we’ve found that I can violate all rabbinic laws without violating “do not turn aside”—well then, he didn’t solve the problem he came to solve. Clear? Is the question clear? Yes. Fine, once again. If I eat poultry with milk not out of denial of the authority of the Sages, but because I have an evil inclination that I couldn’t overcome, then in that situation we said I did not violate the Torah prohibition of “do not turn aside,” right? Only a rabbinic prohibition. I did not violate “do not turn aside,” meaning the verse doesn’t speak about that. But if the verse “do not turn aside” doesn’t speak about that, then why do I have to listen? Why do I really need not to eat this poultry with milk? After all, Maimonides says that the only source that can anchor the authority of the Sages is the verse “do not turn aside.” But if the verse “do not turn aside” doesn’t speak about this prohibition, then why indeed do I have to obey them? What authority do the Sages have? So the answer is very simple: the verse does speak about it. What—what does the verse speak about? The verse tells me: listen, you are obligated to obey the Sages, right? That’s what the verse says: “do not turn aside from all that they instruct you”; you are obligated to obey the Sages. Now, I eat poultry with milk because of desire, not because I deny the authority of the Sages. So I say: I violated a rabbinic prohibition. If the verse weren’t speaking about this, then this would be a kind of liar’s paradox. Because if the verse weren’t speaking about this, then what would be written here? There is a verse that says, listen, you are obligated to obey the Sages—and what? In what matter? In the matter that one must obey the Sages. Meaning, only in that. Because in every other matter, the verse isn’t speaking. Meaning, the verse says you are obligated to obey the Sages, but this only— the verse is empty of content. You can’t understand it that way; that’s obvious, right? You can’t understand this verse as speaking only about a situation where you deny the authority. A verse that says, folks, it is forbidden to deny authority, period—that’s what the verse says. And this verse speaks only about someone who denies that very principle itself, because someone who commits a rabbinic transgression—no problem, right? So authority for what do the Sages have? They have no authority over anything. After all, I can do whatever I want from the Torah-level perspective, except to say that I’m not obeying the Sages. In what am I not obeying the Sages? After all, I can do everything even without that. The only thing I’m forbidden to do is not obey the Sages—so I’ll do it without saying so.
[Speaker A] It’s not only what he says; it’s what he thinks inside.
[Rabbi Michael Abraham] Fine, it doesn’t matter whether I think it or say it; it’s the same thing. The logical problem remains. It doesn’t matter whether I think it or say it. So I won’t think it either. I eat poultry with milk because of evil inclination, not because I deny the authority of the Sages. So what does the verse forbid me to do? There cannot be a verse that only establishes authority while that authority has no field of application at all. Obviously, if there is authority, and we are commanded to preserve it, then that authority has some content. What is the content? Not to eat poultry with milk. So does someone who eats poultry with milk have to be violating the Torah prohibition of “do not turn aside”? No, because this verse only says that there is authority to establish prohibitions. The Sages establish the prohibition: it is forbidden to eat poultry with milk. If I eat poultry with milk, I violated a rabbinic prohibition, not a Torah one, because the Torah said there is such a thing as rabbinic prohibitions. The fact is: the Sages have authority. When did I violate the Torah prohibition of “do not turn aside”? When I denied the authority. But it is not correct to understand—and this is a very subtle point, I hope— it is not correct to say that “do not turn aside” speaks only about such a situation, because then it is empty of content. “Do not turn aside” speaks about every rabbinic enactment. Every rabbinic enactment is anchored in the authority of the Sages to enact, and our obligation to obey stems from the verse “do not turn aside.” But that does not mean that everyone who violates a rabbinic enactment has violated a Torah prohibition. That is not true. Only one who violated it with rebellious intent, rebellion against the Sages, violated a Torah prohibition. So why do I really have to refrain from eating poultry with milk at all? Because the verse says that the Sages have authority. When I ask why in principle I have to—there, I’ve violated “do not turn aside.” If I violate because I’m a sinner, because I have an evil inclination—that’s different. Sinners exist; there are sinners regarding Torah laws too. But when I ask, who says, why should there be any obligation here at all—that is where I have already violated “do not turn aside.” So this verse does indirectly speak about every rabbinic enactment. You cannot limit this verse only to the bare content of authority. Authority whose whole meaning is just that I have authority—that is empty. Authority has to be over actual matters; I have authority to do various things. Then you can say to me: listen, one must preserve authority or obey authority. But if the authority has no force except that I am the authority-holder, that’s like the king in The Little Prince, right? He commands the stars to move and counts how many stars he has because he is the boss of the whole world and all that—that’s that kind of king. Meaning, it’s a king whose whole possession is authority for the sake of authority; it says nothing. He can’t do anything, can’t command anyone anything, but he has authority, he’s the king. So that’s the kind of thing this would be, and that can’t be. Obviously the verse “do not turn aside,” in what today is called in more modern legal language, establishes secondary legislation. Meaning, the verse “do not turn aside” tells me that the Sages can legislate laws whose status will indeed be lower. And one who violates them will not violate the Torah-level “do not turn aside.” “Do not turn aside” only reveals that the Sages have authority to legislate laws that will be called rabbinic laws. The verse does not say that everyone who violates a rabbinic law has immediately violated the Torah-level “do not turn aside.” That is what is called secondary legislation. Sometimes the Knesset delegates some of its authority to a minister or a ministry director-general, allowing him to issue regulations in a certain area. Those regulations have a lower legal status than a law passed by the Knesset. Why? But someone who does not obey that director-general or that minister has violated a Knesset law, because the Knesset gave the minister the authority. So if I violated that, then I basically violated a Knesset law, no? The Knesset gave him the authority to legislate, and now when he legislates, that law is a lower law that draws its force from the legislator. Exactly the same thing here.
[Speaker A] So from here you’re saying that in fact reading the Megillah and—
[Speaker C] That in fact the blessing over reading the Megillah or lighting Hanukkah candles has the same status as poultry with milk?
[Rabbi Michael Abraham] Yes. The Talmud says it’s from “do not turn aside.”
[Speaker A] The question is whether it’s intentional or unintentional. Meaning, in Jewish law there’s supposedly a difference between Maimonides and Nachmanides in what rabbinic laws are. If he ate poultry with milk as a denial of the Sages—
[Rabbi Michael Abraham] That—I’m actually not at all sure in the end that there’s even a disagreement between them, by the way.
[Speaker A] I think Nachmanides means this too.
[Rabbi Michael Abraham] I think Maimonides means this too. Yes—he just didn’t understand that Maimonides also means what he himself means. That’s what it seems to me. But in a moment we’ll get there; let me just finish with the bottom line. On the one hand, Maimonides solved a very big problem here: what is the source of the authority of the Sages? Because a system cannot begin out of nothing. It needs an anchor. Where does it come from? Why, by what power, are you coming to me? Right? That is the question Maimonides is dealing with. So he solved it with “do not turn aside,” and paid the price in the difficulties Nachmanides raises against it. But Nachmanides is also in trouble. Because for Nachmanides, okay, now it’s clear: there is a rabbinic category and there is a Torah-level category. But why must one obey the Sages? That Nachmanides did not solve. Why do you have to obey the Sages? So what Maimonides comes to explain, and Nachmanides rejects—fine, then what do you say? You too have to explain to me why one should obey the Sages. What is the authority of the Sages if it does not come from “do not turn aside”? I’m talking about enactments. If it doesn’t come by the force of “do not turn aside,” then where does it come from? What is the authority of the Sages?
[Speaker A] Okay.
[Rabbi Michael Abraham] We’ll continue next time, God willing.
[Speaker A] Does Nachmanides answer that?
[Rabbi Michael Abraham] No, no—but people answer on his behalf. Take these pages; next time we’ll continue with them. Okay.