Question

Hello, and all the best.
I read with great interest in the holy book Walking Among Those Who Stand (p. 255 and onward) your explanation of the laws of Rebels, chapter 2, and it seems to me that there is something new here that changes the whole picture completely. Since I know you have dealt with this a great deal, I am writing with trepidation.
In chapter 1, Maimonides notes three categories (not two):
1. Matters learned by tradition — received from Moses.
2. Matters they derived by their own reasoning through one of the hermeneutical principles by which the Torah is expounded.
3. A fence around the Torah — decrees, enactments, and customs.
 
At the beginning of chapter 2, Maimonides refers only to the latter two categories. In halakha 1, Maimonides refers to category 2 (not 1!), and there one does not need a religious court greater in wisdom and number. In halakha 2, Maimonides refers to category 3, and there Maimonides distinguishes between whether it spread or did not spread among all Israel, and between a positive commandment and a prohibition (that is how it seems to me, unlike what was written there in note 10, since in chapter 1 Maimonides explicitly includes decrees, enactments, and customs in the term “fence”).
And here is the main point: in halakha 4, Maimonides makes an a fortiori argument from category 1 and not from category 2, and therefore the matter is simple, and apparently the dialectical analysis on pp. 263–264 is not needed! It follows that laws received from Moses cannot be changed at all, whether the reason has lapsed or not lapsed (see also sacrifices), and the only possibility is uprooting them “temporarily,” which is not a suspension that can remain for generations, like greeting in God’s name or writing down the Oral Torah, but rather a point-specific matter, such as dealing with those who would hurl their wives at a fig tree, “by way of stopping a breach” (Guide of the Perplexed 3:41).
 
It is worth citing the words of Maharatz Chajes in his book Torat Nevi’im, ch. 6: “Our master innovated for us (in Kesef Mishneh, Vows 3:9) a new rule: even though ‘for the sake of making a fence’ is only temporary, nevertheless if the reason that moved the Sages at the beginning of the uprooting still remains in place without interruption, then the result too continues without interruption; see also Rashba responsum no. 127 …”
 
I wrote the above before prayer. At our courtyard prayer service, my library happened to be at hand — the responsa Binyan Av of Rabbi Bakshi-Doron — and in vol. 1, Choshen Mishpat, sec. 69, the late rabbi addresses this topic, and his words led me to a renewed understanding that may emerge from the totality of your remarks in that chapter of the book. The distinction between legislation and interpretation (halakhot 1 and 2) is connected to the criterion of correctness — whether it spread throughout all Israel. In halakha 1, Maimonides is speaking about a derivation from the Torah that is correct and binding in itself, regardless of whether it spread throughout all Israel or not, and therefore if, in the view of the later religious court, its source lies in a mistaken understanding, then it contradicts the rationale. By contrast, with a fence around the Torah, which is supposed to correspond to reality — if the court enacted it and it spread throughout all Israel, then the first court did not err in its fit with reality (-otherwise it would not have spread), and therefore if the later court wants to repeal something that spread, it must be greater in wisdom and number than the first, because repealing something that has spread is something that requires settled judgment, so that the people will not think the Torah is not from God (Guide of the Perplexed there). Maimonides further limits this in halakha 3: in a decree involving a prohibition that spread throughout all Israel, no religious court can repeal it even if it is greater than the first in wisdom and number, perhaps because permitting a prohibition is something the public finds hard to digest.
 
With blessings,