Q&A: Roots and Branches – The Second Root
Roots and Branches – The Second Root
Question
Maimonides defines everything derived from the Thirteen Hermeneutical Principles as words of the Sages. The Rabbi elaborated at length in explaining his view.
Should we say, regarding the branches, that in cases of doubt one must rule stringently or leniently? If someone is unsure whether he mentioned the Exodus from Egypt at night, seemingly he repeats it and mentions it again, and mentioning the Exodus from Egypt at night is derived from an inclusion, which is a branch. What is the basic difference between such a doubt and a doubt whether one recited the Shema, where according to the view that it is rabbinic he does not repeat it?
Can Maimonides’ words be linked to the Ran’s words in tractate Nedarim, that “already sworn from Mount Sinai” is said only about what is explicitly written in the Torah?
Answer
In my opinion, in cases of doubt they are treated stringently, and I explained this in my book Ruach HaMishpat and in the article on the second root. There are several kinds of rabbinic laws in Maimonides, and their halakhic definitions are not identical. See there.
As for the Ran in Nedarim, see there as well. It is clear that Maimonides would accept the Ran, but the reverse is not necessary (and probably also not correct). Still, Maimonides could disagree with the Ran by arguing that an oath does not take effect even on laws derived through exposition, since there are opinions that it does not take effect even on genuinely rabbinic laws. I seem to recall that this is discussed at length in the responsa Avnei Milu’im.
Discussion on Answer
No, because if it is derived from “You shall keep My charge,” then it is apparently Torah-level and not rabbinic. Perhaps similar to Torah-level shevut prohibitions in Nachmanides’ view.
So with shevut prohibitions, do we say that a doubt is treated stringently?
Why not? How is it different from any Torah prohibition? A doubt about a half-measure also probably has to be treated stringently.
Thanks, and I’ll try to keep thinking about it.
More power to you!
And since we’ve come to different kinds of rabbinic law, I’ll also ask about Nachmanides on the first root. Nachmanides asks against Maimonides that if all rabbinic commandments are included in “You shall not turn aside,” why do we find differences in severity between rabbinic commandments and Torah-level commandments?
As I recall, Nachmanides himself writes that the secondary prohibitions regarding forbidden relations are derived directly from “You shall keep My charge.” That is, at least protective fences around prohibitions are derived from the verse. So don’t the objections he raised against Maimonides now come back against him himself?