Among Maimonides's many statements about extrascriptural laws in rabbinic literature, none has attracted as much attention as principle 2 in his Book of the Commandments. In that text, Maimonides (1138–1204) distinguished between two types of extrascriptural rules: laws that are known by way of tradition (naql) and laws that the rabbis generated through reasoning (qiyās; lit., analogy).Footnote 1 The Talmud, he asserted, labels the former guf torah (lit., essence of the Torah)Footnote 2 or de-ʾorayta (lit., of the Torah). Maimonides claimed that only these revealed laws should be enumerated among the 613 Sinaitic commandments; whichever laws lack either of these designations are of rabbinic status. Indeed, “most” of Jewish law, Maimonides maintained, is derived by the thirteen modes of inference (middot) by which the Torah is interpreted.Footnote 3 In a later letter to Pinḥas ben Meshullam ha-Dayyan, a Provençal émigré who served as a judge in Alexandria, Maimonides even asserted that the rabbis had only ascribed the labels guf torah or de-ʾorayta to “three or four” nonexplicit laws.Footnote 4 Following Naḥmanides (1194–1270), most modern scholars have understood Maimonides to be claiming that very few of the laws found in rabbinic literature are Sinaitic in origin and of biblical status.
Yet, until the twentieth century, principle 2 was primarily read as a text that distinguished between revealed laws that constitute enumerated commandments and revealed laws that do not.Footnote 5 The overwhelming majority of premodern talmudists thus rendered the terms de-ʾorayta and de-rabbanan (rabbinic) in this text to denote enumerated and nonenumerated commandments respectively. They construed principle 2 to preclude the enumeration of nonexplicit laws among the 613 commandments, not to say that nonenumerated laws are rabbinic in status.Footnote 6 (Reading this text in Hebrew translation, at least two figures mistakenly conjectured that the Aramaic words de-ʾorayta and de-rabbanan are mistranslations from Judeo-Arabic; in reality, these words appear in the original.)Footnote 7 Jacob Neubauer justifiably characterized this reading as interpreting Maimonides's words “against their simple meaning”;Footnote 8 he, Jacob Levinger, Yosef Qafiḥ, and others have therefore concluded that Maimonides held that the preponderance of laws in rabbinic literature are the product of creative application of the middot by the rabbis, not Sinaitic tradition.Footnote 9
The approach championed by Neubauer, Levinger, and Qafiḥ, however, is undermined by other Maimonidean passages. For example, in his letter to Pinḥas, Maimonides explicitly used the term de-ʾorayta to denote a nonenumerated law found only in the Talmud. Beyond this, in his Mishneh Torah, Maimonides identified scores of laws in rabbinic literature as Sinaitic in origin, designating them as received mi-pi ha-shemuʿah (from aural tradition) or mi-pi ha-kabbalah (from tradition), as Gerald Blidstein noted.Footnote 10 The Commentary on the Mishnah reveals a similar phenomenon, deploying terms like naql (tradition) and tafsīr marwī (transmitted interpretation) for this purpose. Lastly, certain (somewhat unclear) references to principle 2 by Maimonides and his son Abraham (1186–1237) suggest that both used this principle to exclude revealed laws from the enumeration of the 613 commandments, not to announce that all nonenumerated laws are of rabbinic status.
In the remarks that follow, I argue that Maimonides's reference to only “three or four” cases in the letter to Pinḥas rests on a distinction between the “principal” (or perhaps, principle) or “root” commandment (aṣl al-miẓvah) on the one hand,Footnote 11 and the “parts” (ajzāʾ; sing., juzʾ) or “instantiations” or “manifestations” (fiqh)Footnote 12 of a commandment on the other. Although the Book of the Commandments never really explains what constitutes a “principal commandment,” whenever he listed multiple laws under the heading of a single commandment in that work, Maimonides almost invariably based what might be considered the primary law on a scriptural verse and ascribed other laws, found not only in Scripture but also in rabbinic literature, to revelation. The latter might be considered “parts” of what Gerald Blidstein termed “commandment-units.”Footnote 13 Maimonides himself used a variety of Arabic terms to refer to these “parts,” and in this essay, I refer to them using words like law and rule. Awareness of Maimonides's attention to such legal “details” in the Book of the Commandments helps clarify the arguments of principle 2, which I contend concerned “principal commandments” and not nonenumerated legal “details.” I therefore reconsider this principle within the context of the Book of the Commandments, and, to a lesser extent, within the broader Maimonidean oeuvre.
This study's contextual reading of principle 2 spotlights Maimonides's distinction between cases where in his view the rabbis actively created law and cases where they found exegetical support for laws that they knew by way of tradition. This distinction enabled Maimonides to sort laws in rabbinic literature into two classes, God-given and man-made. Teasing apart the categories of enumerated commandments and nonenumerated divine rules enables me to account for both the “three or four” exceptional cases that Maimonides mentioned to Pinḥas and for the divine authority behind nonenumerated “details” included in “tradition” or the “transmitted interpretation” in Maimonidean thought.Footnote 14
I treat five themes in order to reassess Maimonides's approach to extrascriptural law. I first explore the consequences of Maimonides's twice-stated preference to base the 613 commandments on scriptural verses. I then tease out tensions between principle 2 and the claims about revelation in Maimonides's earlier Commentary on the Mishnah. Next, I show that Maimonides's letter to Pinḥas blurs the line between enumerated commandments and nonenumerated “details” of commandments. Fourth, I draw attention to cases in the Book of the Commandments where Maimonides identified extrascriptural laws that were not included in the count of the 613 commandments but were known through revelation. Having emphasized the distinction between those revealed laws that constitute enumerated commandments and those that do not, I argue that both Maimonides and his son Abraham understood principle 2 to be concerned only with enumerated commandments and not with extrascriptural law as a whole. I conclude by offering preliminary thoughts about the ways that Maimonides ascertained Sinaitic traditions in rabbinic literature.
The Place of Scripture in Maimonides's Enumeration of the Commandments
Maimonides emphasized that Scripture was the source of the enumerated commandments in two brief passages near the outset of the methodological prologue of the Book of the Commandments. In the introduction to this work, he asserted, “the sum of the commandments [jumlat al-miẓvot] that are contained in the Torah [yashtamil ʿalayhā sefer ha-torah] … is 613.”Footnote 15 And in principle 1, he wrote that the 613 commandments are “comprised entirely of pentateuchal verses [nuṣūṣ torah]; there is nothing in [this count] that is rabbinic in status [mi-de-rabbanan].”Footnote 16
Yet, as mentioned, principle 2 concedes that some enumerated commandments are based on extrascriptural tradition and not on Scripture, and many of the 613 “commandment-units” list rules that are not found in Scripture. As I understand it, the above statements constitute Maimonides's guiding rule, and principle 2 addresses exceptions, that is, those enumerated commandments that lack scriptural support. Furthermore, Maimonides's preference for scriptural proof texts must be limited to the so-called “principal commandments,” not to Sinaitic “details”; otherwise, the claim that principle 2 applies to “three or four” commandments would be a wild underestimation, as I show below.
Problematic Statements in Principle 2
Twelve of the fourteen principles in the Book of the Commandments begin with unequivocal statements about the categories of laws to be included in or excluded from the enumeration of the 613 commandments. (To name two examples: principle 1 excludes rabbinic “commandments” from the count and principle 3 excludes temporary commandments from the count.) By contrast, principle 2 opens with this circuitous heading:Footnote 17 “It is not proper to count everything known through one of the thirteen modes of inference by which the Torah is interpreted or by a redundancy [ribbuy].”Footnote 18 Although formulated in the negative, this statement implies that some laws found only in rabbinic literature (and not in the Bible) may, in fact, constitute discrete commandments. In other words, Maimonides did not regard the entire body of laws found in rabbinic literature as a homogenous unit. From his perspective, certain middot-based laws constitute commandments to be enumerated among the 613, others nonenumerated divine law, and others still rabbinic law.
Invoking the introduction to the Commentary on the Mishnah, composed in the previous decade, Maimonides explained that “most” of Jewish law is derived (yustakhraj) by means of the middot. He declared, however, that a reference to the middot in rabbinic literature does not prove that the rabbis had generated a given law because, he maintained, the rabbis had employed the middot not only to produce new law but also to discover hints to the interpretation of Scripture that were “transmitted” by Moses himself. In his earlier work, Maimonides had stated that the tafsīr marwī consists of “meanings of ambiguous expressions” (jumal maʿānin)Footnote 19 in Scripture. As a prototypical example, he mentioned the requirement to “dwell” in booths (Lev 23:42). According to Maimonides, when God revealed this command to Moses, He also explained who is required to dwell in the booth, how it should be constructed, and what “dwelling” entails. Maimonides posited that this procedure occurred for each of the 613 commandments.Footnote 20 These interpretations of Sinaitic origin were never subject to debate, he wrote, but the rabbis could disagree about their hints in Scripture. For this reason, a given law in rabbinic literature may be either of divine or rabbinic origin.Footnote 21
How, then, can one distinguish the Sinaitic material from the non-Sinaitic material in rabbinic literature? In principle 2, Maimonides linked the discernment process to the enumeration of the commandments:
This is the correct procedure [fal-wajh]Footnote 22 whenever you find that a matter is not a verse [naṣṣ; or, explicit text] in the Torah, yet the Talmud deduces it [taʿallamahu] through one of the thirteen middot. If they [i.e., the sages] themselves clarified and said that this [matter] is guf torah or de-ʾorayta, then it is proper to count it, since the transmitters [al-rāwīyīn; i.e., the rabbis] said that it is de-ʾorayta. But if they did not clarify this or did not state it expressly, then it is of rabbinic status [de-rabbanan], since there is no verse indicating [yadullu] it.Footnote 23
Similarly, at the end of principle 2, he asserted:
This clarifies for you that even [derived laws of] Moses's day are termed scribal specifications [dikduke sofrim], because anything that was not explicitly heard [bi-bayān] at SinaiFootnote 24 is mi-divre sofrim [lit., from the words/matters of the scribes]. This clarifies that the 613 commandments that were said to Moses at Sinai did not include among them all that was deduced through one of the thirteen middot, even in his [i.e., Moses's] time,Footnote 25 not to mention counting anything that was derived [ustukhrija] later. Rather, anything that is a transmitted interpretation [tafsīr marwī] is counted [among the 613 commandments], that is, if the transmitters [nāqilīn] clarify and say that performing this matter is forbidden and that its prohibition is mi-de-ʾorayta. Or they say that it is guf torah. [Then] it is counted [among the 613 commandments] because it is known by means of tradition [bil-naql] and not by means of reasoning [bil-qiyās]. However, reasoning and deriving proofs [al-istidlāl] [for a nonexplicit commandment] through one of the thirteen middot were mentioned regarding it [i.e., this transmitted interpretation] in order to demonstrate the wisdom of Scripture [al-naṣṣ].Footnote 26
These programmatic statements clarify (or may even modify) Maimonides's assertions in the Commentary on the Mishnah in three ways: (1) The only laws that are biblical in status are those that are based on Scripture or the tafsīr marwī;Footnote 27 (2) when the rabbis used the middot to create a new law, that law is of rabbinic status; and (3) only Scripture or the tafsīr marwī may serve as the basis for an enumerated commandment.Footnote 28
Maimonides's equation of the enumerated commandments with biblical law does not account for the archetypal instance of laws based on the tafsīr marwī, that is, the claim that God disclosed how to construct the booth of Leviticus 23:42. In fact, his enumeration of the commandments only includes one overarching commandment to dwell in the booth.Footnote 29 And although the rabbis did not label the laws covering the construction of the booth guf torah or de-ʾorayta, there is no evidence that Maimonides believed these rules to be rabbinic in status. The difficulty of matching the programmatic statements of principle 2 with his definition of the tafsīr marwī in the Commentary on the Mishnah highlights that principle 2 offers a polarity that renders every law either an enumerated commandment and biblical in status or a nonenumerated law and rabbinic in status. Where do extrascriptural laws based on the tafsīr marwī fit into this categorization?
In addition, many of the principles in the Book of the Commandments distinguish enumerated commandments from nonenumerated “details,” for example, principle 7 excludes “instantiations” or “manifestations” of commandments from the 613 commandments and principle 11 excludes “parts” of commandments from the enumeration. Maimonides mostly focused on explicit scriptural mandates that do not constitute discrete commandments in these principles, for example, each of the four species (Lev 23:40) constitutes “part” of a larger commandment.Footnote 30 But these principles also exclude certain tafsīr-based “parts” from the enumeration.Footnote 31 If principle 2 had already removed all revealed laws from the enumeration, as Neubauer and others would have it, why would Maimonides need to mention such rules in later principles? In short, a nonenumerated law may be based on the tafsīr marwī or even Scripture itself, so the nonenumeration of a rule can hardly establish its rabbinic origin.
If so, why did Maimonides state that nonenumerated laws are of rabbinic status in principle 2? As is evident from his use of the Arabic words fiqh and ajzāʾ, he deployed a specialized Arabic vocabulary to denote nonenumerated laws of biblical status. He did not develop comparable Hebrew or Aramaic terms, however, in part because he was less anxious to distinguish between enumerated and nonenumerated Sinaitic laws in his Hebrew Mishneh Torah.Footnote 32 Perhaps the focus on the Aramaic word de-ʾorayta in principle 2 led Maimonides to use the opposing term, de-rabbanan, to denote nonenumerated laws, even if the rabbis’ failure to label a law guf torah or de-ʾorayta is insufficient evidence to determine whether that rule is Sinaitic. In fact, Maimonides referred to both enumerated commandments and one law that is neither an enumerated commandment nor found in Scripture as “from the Torah” (min ha-torah) in his letter to Pinḥas, underscoring the inadequacy (or maybe, inconsistency) of his Hebrew lexicon.
Maimonides's Letter to Pinḥas ben Meshullam ha-Dayyan
What might be called the “most authentic commentary” on principle 2 appears in Maimonides's Hebrew letter to Pinḥas ha-Dayyan.Footnote 33 Among other queries, Pinḥas had posed two questions to Maimonides concerning the Mishneh Torah's rulings on the effectuation of marriage. First, why did Maimonides classify the ability to transact marriage through the exchange of money as mi-divre sofrim, “from the words/matters of the scribes”? (Both Pinḥas and Maimonides understood this term to designate laws of rabbinic status.) And second, why did Maimonides consider marriages executed through a legal document (shetar) to be of biblical status (min ha-torah), given that, in Pinḥas's reading, the Talmud derives both mechanisms from the Torah (yalfinan min ha-torah)?Footnote 34 Addressing the first question, Maimonides wrote:
The response, in brief, is that I have an Arabic composition about the enumeration of the commandments. … In its introduction are fourteen chapters, which contain important principles about the fundamentals of the enumeration. … In those chapters I explained that not every matter [ʾein kol davar] that is derived by analogy [hekkesh], a fortiori argument [kal va-ḥomer], analogy from verbal congruity [gezerah shavah], or any of the thirteen modes of inference [middot] by which the Torah is interpreted is biblical law [din torah], unless the sages explicitly say that it is of biblical status [min ha-torah]. … And there I clarified … that even a matter designated “a law given to Moses at Sinai” [halakhah le-Moshe mi-Sinai] is termed “from the words/matters of the scribes” [mi-divre sofrim]. Nothing is of biblical status except for what is explicit [meforash] in the Torah, such as mixtures of linen and wool, intermixing of species, the Sabbath, and forbidden sexual unions, or something that the sages said is from the Torah—and these are only three [or] four things.Footnote 35
At first glance, Maimonides's contrast between “explicit” laws and middot-based laws in order to explain that the transaction of marriage through the exchange of money is of divre sofrim status gives the impression that he held all nonenumerated laws to be of rabbinic status.Footnote 36 However, closer analysis leads to a finer understanding of his reference to the opening principles in the Book of the Commandments. Maimonides's use of the classification mi-divre sofrim to describe marriage effected through the exchange of money may relate to one of three assertions in principle 2: (1) only explicit, enumerated laws are biblical in status; (2) nonexplicit, nonenumerated laws are rabbinic in status; or (3) “anything that was not explicitly heard at Sinai is mi-divre sofrim.” Emphasis on the phrase mi-divre sofrim in this letter points to the third claim as the most likely candidate. Moreover, even if this legal mechanism was based on an explicit verse, it would probably only constitute “part” of a larger commandment-unit to enter into marriage, much like the ability to execute marriage through document exchange that Maimonides subsumed under the heading of this commandment. (Perhaps this is what he neglected in this “brief” answer.)Footnote 37 Accordingly, this letter does not reiterate the problematic idea that nonenumerated laws are necessarily of rabbinic status.
Maimonides's letter to Pinḥas provides the crucial information that only “three or four” laws for which there is no scriptural verse are nonetheless biblical in status. Is this phrase intended to convey a rough estimate? If not, does it refer to a set of discrete commandments or to a set of nonenumerated laws, that is, details of commandments? Maimonides's explanation for his distinction between the effectuation of marriage through monetary exchange and the effectuation of marriage through legal documents does not shed light on these problems. He wrote that although the sages had derived both legal instruments, the second of these must be biblical in status (min ha-torah), given the talmudic ruling that an adulteress whose marriage was effected by a document is liable for capital punishment (B. Kiddushin 9a). That being the case, he reasoned, such a marriage must be biblical in status since capital punishment is only imposed for the violation of biblical laws.Footnote 38
Assuming, against at least one scholar,Footnote 39 that Maimonides used the phrase “three or four” with some degree of precision, this letter does not clarify whether the ability to transact marriage through document exchange constitutes one of the “three or four things.” Several scholars have identified three commandments that lack scriptural support in the Book of the Commandments.Footnote 40 In one case, Maimonides wrote that although the Talmud precludes an uncircumcised priest from eating heave offerings (terumah) based on a gezerah shavah, the “transmitters” (nāqilīn) labeled this law de-ʾorayta (B. Yevamot 72a).Footnote 41 In a second, he noted that the prohibition against drinking wine used in idolatrous worship lacks a “plain, explicit verse” (naṣṣ jalī bi-bayān),Footnote 42 yet the Talmud lists this law among the biblical prohibitions (ʾissurim she-ba-torah; B. Avodah Zarah 73b).Footnote 43 And in a third, he wrote that while “Scripture was silent” about the prohibition against father-daughter incest as it is “clear … and self-evident,” this prohibition may be derived through a gezerah shavah and the Talmud considers it one of the gufe torah (B. Keritot 5a).Footnote 44 If Maimonides was thinking of a fourth commandment, it was probably the ruling that an impure priest who has undergone ritual immersion but was still awaiting full purification at sunset (tevul yom) is prohibited from serving in the Temple. He explained that the scriptural source (Lev 21:6) for this prohibition is not “clear” (bayyin) and that it is, in fact, taught by the tafsīr marwī and that the rabbis counted it among the laws whose violation incurs capital punishment.Footnote 45 (This latter case might explain Maimonides's tentative formulation, “three or four,” because understanding its supporting verse requires the Sinaitic tafsīr marwī.) It is probably not coincidental that these exceptional cases are all negative commandments, because Maimonides insisted that there is a one-to-one correspondence between the number of punishments that a sinner incurs and the number of negative commandments that he violates.Footnote 46 If so, Maimonides needed to enumerate these prohibitions as distinct commandments in order to account for the fact that the rabbis imposed biblically mandated punishment for violation of these nonexplicit laws.
This analysis precludes the possibility that the ability to transact marriage through document exchange constitutes one of the “three or four things.” Indeed, neither the Book of the Commandments nor rabbinic literature labels this law de-ʾorayta, guf torah, or anything similar. Yet Maimonides considered this legal mechanism to be of biblical status, despite its lack of explicit scriptural support and his choice not to count it as a distinct commandment; these were the very criteria that he set forth in principle 2 as evidence of a law's rabbinic status!Footnote 47 As it turns out, the neat division between explicit, enumerated commandments of biblical status and nonexplicit, nonenumerated laws of rabbinic status cannot be sustained, for it is undermined by cases in the Book of the Commandments where Maimonides ascribed nonenumerated, nonexplicit laws (i.e., details) to Sinaitic tradition.
Nonexplicit and Nonenumerated Laws in the Book of the Commandments
The classification of numerous nonexplicit, nonenumerated laws in the Book of the Commandments as Sinaitic traditions supports my conclusion that principle 2 deals solely with discrete commandments that are exceptions to Maimonides's rule that all of the 613 commandments must be based on Scripture. Maimonides used the overlapping terms tafsīr marwī, transmitted interpretation, and naql, tradition, to denote extrascriptural interpretations of revelation or nonexplicit, revealed legal details that he deemed to be of Sinaitic origin.Footnote 48 Each of the following examples are rules that he based on revelation but do not constitute distinct commandments: (1) Based on naql, one must refrain from washing, anointing, wearing shoes, and marital relations on the Day of Atonement; Maimonides included these rules in the commandment-unit to fast on that day.Footnote 49 (2) Naql teaches that a sage may facilitate the release from vows (hatarat nedarim); he included this in the commandment-unit pertaining to the nullification of vows (hafarat nedarim).Footnote 50 (3) The tafsīr includes a rule that a priest who offers a sacrifice without wearing priestly garments desecrates it; Maimonides concluded that this rule—which he placed with the commandment to wear the priestly garments—lacks a corroborating verse.Footnote 51 (4) Naql includes a requirement to set apart all impure individuals; Maimonides grouped this requirement under the scriptural mandate to separate one afflicted with ẓaraʿat (“skin disease”; Lev 13:45).Footnote 52 (5) Naql and tafsīr teach that the consecration of new months is effective even if the court errs regarding the date of the new moon's appearance; this rule appears as part of the commandment to consecrate new months.Footnote 53 (6) Tafsīr glosses the word “over yourself” (ʿalekha) in the verse commanding the appointment of a king (Deut 17:15; “You shall set a king over yourself”), adding a requirement to fear the sovereign; Maimonides placed this law with the commandment to appoint a king.Footnote 54 (7) Tafsīr marwī explains that particular sins merit certain types of capital punishment, but principle 14 excludes these traditions from the enumeration of the 613 commandments.Footnote 55
The fact that the above-mentioned legal “details” appear in rabbinic literature, yet in the Book of the Commandments Maimonides considered them to be revealed underlines that a sharp division between biblical, enumerated commandments on the one hand and rabbinic, nonenumerated rules on the other must be discarded. As each of the above nonscriptural laws appears in this work, it might be argued that Maimonides did not consider them to be “nonenumerated.” However, this perspective does not account for the idea that there are only “three or four” nonexplicit commandments or for Maimonides's preference to base all of the commandments on Scripture. Taken together, these cases indicate that principle 2's claim that all nonenumerated rules are rabbinic in status does not even hold true for the Book of the Commandments itself!
The Earliest References to Principle 2
Although the few references to principle 2 in writings by Maimonides and his son Abraham are tricky to parse, it is evident that both understood this principle to address exceptional cases in which nonscriptural rules constitute discrete commandments. In addition to his indirect invocation of this principle in the letter to Pinḥas, Maimonides cited principle 2 while discussing certain aspects of priestly behavior in the Book of the Commandments. On the one hand, he counted as two distinct commandments the warning that a high priest must not render himself impure by either touching a corpse or by entering a structure that contains a corpse. Yet he listed the prohibitions forbidding a regular priest from contracting impurity by touching a corpse of a nonfamily member or by entering a building containing a corpse of a nonfamily member as a single commandment. Explaining why, in fact, there was no inconsistency in counting two commandments pertaining to the high priest but just one pertaining to the regular priest, Maimonides wrote: “They [i.e., the rabbis] imposed a duty on [alzamū] a regular priest [prohibiting his entry into an edifice that contains the corpse of a nonfamily member] based on an analogy from verbal congruity [be-din gezerah shavah] … but we did not count [this prohibition among the 613 commandments] due to the reason that we explained in principle 2. However, we counted these two negative commandments [lavin] [regarding a high priest] due to the two explicit [scriptural] statements [naṣṣayn], ‘Do not enter’ and ‘Do not impurify’ [Lev 21:11].”Footnote 56 In this passage, Maimonides ascribed the prohibition against a regular priest entering a structure holding such a corpse to rabbinic reasoning through one of the thirteen rabbinic modes of inference, yet in the Mishneh Torah he described this prohibition as biblical in status, writing, “Any priest who defiles himself for a corpse … is subject to the penalty of flagellation. … This holds true [ve-ʾeḥad] whether he touches the body, overshadows it [ha-maʾahil], or carries it … as it is written, ‘None shall defile himself for the dead among his people’ [Lev 21:4]. … In like manner, if he enters a house where uncleanness penetrated … he is subject to flogging.”Footnote 57 It is unlikely that Maimonides changed his mind about the status of the prohibition against a regular priest impurifying himself by entering a structure containing a corpse between writing the Book of the Commandments and the Mishneh Torah. This is because the spread of impurity in a structure occurs no matter who it renders impure (Num 19:14–15; Mishneh Torah, hilkhot tumʾat met 1:10–11). In the case of a regular priest, Maimonides's reference to “the reason that we explained in principle 2” indicates, then, that he neglected to enumerate a separate negative commandment concerning the transmission of impurity within a building because it lacks a supporting verse, not because this prohibition is of rabbinic status. For Maimonides, the upshot is that a regular priest who becomes impure in this manner violates a divine prohibition but only incurs a single set of lashes, while a high priest incurs two (as can be seen in Mishneh Torah, hilkhot ʾavel 3:1–4, 6–7). If so, the third-person plural verb at the outset of the above passage in the Book of the Commandments (alzamū) probably refers either to the rabbinic transmission of this Sinaitic law or to their use of the middot to identify it.Footnote 58
Abraham Maimonides frequently referred to the nature and scope of revelation in his responses to the challenges that Daniel ben Saʿadiah (fl. 13th century) posed to the Book of the Commandments. Abraham asserted that the list of enumerated commandments includes only express scriptural passages (manṣūṣ) and what is “entailed by” (yalḥaq) them.Footnote 59 Like his father, Abraham accepted that some rabbinic dicta constitute Sinaitic traditions but do not qualify as distinct commandments. He thus explained that a given “commentary” (sharḥ) on revelation may not constitute a distinct commandment, even though it may be “a verse [naṣṣ] of the Torah, a verse stated [by] a prophet, a tafsīr marwī, or [was] extracted [mustanbaṭ] through reasoning [qiyās].”Footnote 60 Similarly, he contended that a certain rabbinic gloss should not be enumerated as a distinct commandment, “even if it is conceded [sullima] that [the gloss] is a verified interpretation [sharḥ muḥaqqaq] and not a [conclusion reached merely] on the basis of its support [isnād].”Footnote 61
Among Abraham's responses to Daniel, two passages confirm that Abraham understood principle 2 as a guideline that accounts for the omission of nonexplicit rules of biblical status from the enumeration of the 613 commandments, not as a claim that nonenumeration of a law indicates its rabbinic status. Daniel had noted an apparent inconsistency in that Maimonides had counted as distinct commandments the obligation to offer the paschal sacrifice and the supplemental opportunity to offer that sacrifice if the initial obligatory date was missed (known as pesaḥ sheni), yet he omitted from his enumeration the commandments pertaining to the consumption of this sacrifice with respect to pesaḥ sheni (e.g., not to eat it raw). Abraham accepted that these prohibitions apply in both cases; after all, it is clear from Numbers 9:12 that the second sacrifice is to be treated identically to the first. But Abraham suggested that his father excluded these rules from the enumerated commandments because the Talmud (B. Pesaḥim 95a) identifies them by means of reasoning (qiyās). In keeping with principle 2, he asserted that the enumeration only includes “explicit” (mafṣūḥ) laws, not laws known by qiyās that the rabbis did not label guf ha-torah,Footnote 62 whether they are of biblical or rabbinic status.
In a second instance, Abraham wrote that although the rabbis interpreted “Do not eat upon the blood” (Lev 19:26) to prohibit a variety of unrelated acts,Footnote 63 at least some of which are of biblical status, this phrase only generates a single enumerated commandment, in line with principle 2's insistence that “a biblical verse does not leave the realm of [yoẓe mi-yede] its peshat.”Footnote 64 In this context, peshat probably denotes an explicit verse, along the lines of the Arabic terms manṣūṣ and mafṣūḥ that Abraham used in this context.Footnote 65
To sum up, the three references to principle 2 in writings by Maimonides and his son Abraham confirm that this principle excludes rules that lack explicit scriptural support from the enumeration of the commandments. Neither of these figures cited it to assert that a nonenumerated law is of rabbinic status. Rather, laws may be omitted from the enumeration either because they were derived by the rabbis or because they are revealed legal “details” included in larger commandment-units.
Towards a New Understanding of Maimonides's Approach to Extrascriptural Law
As is clear from the above analysis, Maimonides determined rabbinic literature to be a corpus that contains not only laws generated by the rabbis but Sinaitic traditions as well. Those of the latter category include far more than the “three or four things” that lack scriptural support. This observation should put to rest the claim that Maimonides approached rules in rabbinic literature in a uniform manner.Footnote 66 Blidstein captured the subtleties of Maimonides's views when he wrote that, for him, “midrash does not produce Torah-law. … It will produce rabbinic law, and it will confirm revealed interpretation.”Footnote 67
Several scholars have expressed frustration with Maimonides's failure to provide guidelines for determining when rabbinic literature upholds Sinaitic tradition and when it creates new law.Footnote 68 Maimonides's seeming silence on this problem has generated conflicting conjectures. While Neubauer speculated that interpretations that violate Scripture's peshat must be received traditions for Maimonides,Footnote 69 Shimshon Ettinger concluded that Maimonides considered Sinaitic traditions to be those that are based on “clear … logic” and “the plain meaning of the text.” In Ettinger's opinion, any interpretation that violates Scripture's apparent meaning must be an “allusion” to a law generated by the rabbis.Footnote 70 Similarly, Mordechai Cohen deduced that Maimonides identified as “received traditions” those elements of rabbinic literature that “adhere as closely as possible to the principles of philological-contextual analysis.”Footnote 71
As the above review of the extrascriptural traditions in the Book of the Commandments reveals, none of these programmatic statements captures Maimonides's understanding of the rules found in rabbinic literature that appear in this work. Scripture's plain sense has little to do with the abovementioned rules adding extrascriptural prohibitions to the Day of Atonement or rendering the day identified as the new month sanctified even when it was based on an error. One might suggest that Maimonides's claim that the tafsīr marwī contains “meanings of ambiguous expressions” was intended to cover legal data that Scripture “should” have addressed, whether the manner in which the booth should be constructed or the identity of “the fruit of the goodly tree” (Lev 23:40), to mention two of his parade examples.Footnote 72 Similarly, several rulings that Maimonides ascribed to the tafsīr marwī have significant bearing on laws of biblical status; these include a sage's ability to release a person from vows and the identification of the precise punishment incurred by a given sin. The clear exception to this pattern is Maimonides's designation of the transaction of marriage through money as an act of rabbinic status (at least at one point, as discussed above), showing that rulings that impact biblical law are not necessarily included in the tafsīr marwī.
It seems that Maimonides regarded at least two features of rabbinic literature as marking the presence or the absence of received Sinaitic traditions.Footnote 73 The feature that he applied most consistently is instances of biblically mandated punishment (i.e., lashes, excision, or the death penalty) for the violation of laws found in rabbinic literature.Footnote 74 While I have not uncovered any explicit claim linking such punishments to biblical prohibitions,Footnote 75 Maimonides did declare a particular prohibition to be rabbinic in status because it does not appear in Scripture's peshat and its violation does not incur capital punishment.Footnote 76 By the same token, the Book of the Commandments cites rabbinic lists of sins whose violation incurs capital punishment or excision, and these verdicts are understood as confirming the biblical status of a prohibition.Footnote 77 Indeed, in one responsum, Maimonides asserted that the punishment of biblically prescribed flogging constitutes evidence that the prohibition in question was of biblical status.Footnote 78 When understood in this light, Maimonides's designation of the effectuation of marriage through document exchange as an act of biblical status becomes clear, as in the letter to Pinḥas he highlighted the Talmud's imposition of capital punishment for adultery following such a transaction.
A second criterion that Maimonides may have regarded as a marker of the presence or absence of Sinaitic law in rabbinic literature is more subjective. In several passages in the Book of the Commandments, Maimonides inferred that a given law is of rabbinic status because of the sages’ explicit use of the middot.Footnote 79 Indeed, although he maintained that the middot can both create and uphold law in principle 2, the default assumption of this work appears to be that the middot denote rabbinic law until proven otherwise. However, in the Commentary on the Mishnah, Maimonides was inconsistent about the status of laws linked with the middot. In some cases, he considered such laws to have been known by means of naql, tradition, while in other cases, he identified these laws as the product of qiyās, reasoning, or naẓar, speculation.Footnote 80 Yet, the fact that he regarded certain middot-linked laws to be of biblical status in the Book of the Commandments suggests that, guided by rabbinic literature, he alone determined when midrash creates new law and when it upholds received law,Footnote 81 and that he cited and manipulated rabbinic texts in order to support his positions.
The blanket statements about the rabbinic status of nonenumerated laws in principle 2 cannot be taken as Maimonides's final word, as they neither accord with the place of extrascriptural traditions in the remainder of the Book of the Commandments nor with the portrayal of revelation in the Commentary on the Mishnah and Mishneh Torah. My interpretation of principle 2—that it addresses only the enumeration of nonscriptural laws, not their status—suggests that Maimonides's claims about rabbinic law in that text are not decisive for him. I believe that this construal makes better sense of the data than competing interpretations, as it accounts for the “three or four” unique commandments in Maimonides's count of the 613 and for the many tradition-based laws in his writings. What is more, reading principle 2 as a passage intended to clarify nothing but Maimonides's enumeration of the commandments makes it possible to explore his approach to rules found in rabbinic literature without certain encumbrances. Maimonides thus sought to navigate between the competing assertions that revelation contained many “laws” and that Jewish law comprises exactly 613 commandments. To my mind, principle 2 seeks to associate as many commandments as possible with written revelation and cannot be taken to deem nonenumerated rules as necessarily rabbinic.
The Place of Peshat in Principle 2
This essay pays little attention to the term peshat in principle 2 and in Maimonides's other writings, a subject that is the focus of a learned monograph by Mordechai Cohen. Cohen homed in on a discussion within this principle where Maimonides deployed the notion of peshat in order to deride earlier counts of the 613 commandments. In the passage in question, Maimonides reflected on the status of laws that are included in the Sinaitic tafsīr marwī, and not in Scripture, and went on to disparage earlier enumerators of the commandments for having enumerated laws identified by rabbinic interpretation (derash). Asserting that these laws are “rabbinic without a doubt,” he claimed that they do not constitute commandments because Scripture's peshat (peshateh di-kera) does not indicate (yadull) them. Including such laws in the enumeration of the commandments, he explained, violates the rule that “a biblical verse does not leave the realm of its peshat.”Footnote 82 Maimonides further declared that his own exclusion of these laws from the enumeration of the 613 commandments was not because they are “uncertain” (ghayr mutayaqqina)Footnote 83 or “untrue” (laysa bi-ṣaḥīḥ; or, unsound).Footnote 84 Rather, he asserted, laws derived using the middot constitute branches (furūʿ) of the Sinaitic roots (uṣūl; or, principles); Maimonides considered the 613 commandments to be these principles.Footnote 85
Naḥmanides was apparently the first to criticize Maimonides's invocation of the notion of peshat in this context. He understood Maimonides to claim that only Scripture's peshat is “true,” notwithstanding the latter's assertion that derived laws are not “untrue.”Footnote 86 Naḥmanides further argued that Maimonides had departed from Scripture's peshat when he cited received tradition (what Naḥmanides termed kabbalah) as support for the interpretation of particular verses that underlie several of the 613 commandments; among these was the prohibition against carrying out capital punishment on the Sabbath, a commandment based on a verse that makes no mention of such penalties (Ex 35:3).Footnote 87 Associating Maimonides's view with the views of the “Sadducees” (i.e., Karaites), Naḥmanides maintained that in general midrash does not contravene Scripture's peshat, but both midrash and peshat are included (nikhlalim) in Scripture.Footnote 88
Although principle 2's discussion of peshat only appears as part of a polemic against earlier enumeratorsFootnote 89 and not in Maimonides's more programmatic presentations of the terms de-ʾorayta and guf torah, Mordechai Cohen contended that Maimonides's understanding of peshat constitutes the conceptual foundation of this principle. Cohen suggested that Maimonides regarded only those laws that emerge from the peshateh di-kera to be biblical in status and claimed that Maimonides carefully distinguished between Scripture's “apparent” or “basic” meaning, which he designated using the Arabic phrase ẓāhir al-naṣṣ, and Scripture's peshat. According to Cohen, Maimonides used peshat in order to denote “what is known … to be the meaning of the text, either because the text is explicit or because it is an interpretation from Sinai.”Footnote 90 Borrowing language from Islamic law, he concluded that Maimonides treated any “explicitly stated” (manṣūṣ) text as biblical in status; for Maimonides, claimed Cohen, the category of “biblical” law includes both scriptural verses and their authentic Sinaitic interpretations.Footnote 91
Cohen himself inferred that peshat carries a different denotation in the Book of the Commandments than it does in Maimonides's other writings.Footnote 92 I therefore find it unlikely that Maimonides employed the word peshat as a technical term in a consistent sense in this work. Three of the nine interpretations of Scripture that Maimonides designated as peshateh di-kera in the Book of the Commandments are not based on rabbinic literature and therefore cannot be equated with the tafsīr marwī. In another three cases, Maimonides could have equally described the peshateh di-kera with the term ẓāhir al-naṣṣ because the rabbinic interpretation accords with a philologically sound reading of Scripture. (Cohen attempted to account for these two points by claiming that peshat denotes any correct reading of Scripture, but this interpretation may make this category too broad to be of use.)Footnote 93 Cohen laudably demonstrated that Maimonides understood that the tafsīr marwī controls Scripture's meaning in matters of Jewish law, but, in my assessment, he exaggerated the role of peshat in the Book of the Commandments.Footnote 94 All that can be said is that in that work and across Maimonides's writings peshat sometimes denotes Scripture as rendered by the tafsīr marwī and sometimes does not.
Having claimed that principle 2 sets forth the “cardinal”Footnote 95 rule that only peshat-based laws may be enumerated, Cohen must adopt what I consider to be a mischaracterization of the letter to Pinḥas. Given that principle 1 asserts that only scriptural laws, and not rabbinic laws, may be enumerated in the count of the 613 commandments, and that Cohen construed principle 2 to convey what he called “the rule of peshat primacy,”Footnote 96 he is forced to treat the “three or four” nonexplicit commandments mentioned in Maimonides's letter to Pinḥas as “exceptions” to principle 2.Footnote 97 In my view, principle 2's sustained discussion of the claim that the terms de-ʾorayta and guf torah signal the presence of commandments that are Sinaitic though not explicit in Scripture belies the idea that the “three or four things” are “exceptions” to principle 2. I understand principle 2 to address the rare commandments that are inconsistent with the rule stated in principle 1 that only scriptural laws may be counted among the 613. For these reasons, I refrain from analyzing peshat in my consideration of Maimonides's scriptural hermeneutics in favor of the more persistent phrase tafsīr marwī. For Maimonides, the tafsīr marwī serves as the authoritative guide to Scripture, as Cohen emphasized. It also teaches numerous nonscriptural laws, some of which constitute discrete commandments. These exceptional commandments are the subject of principle 2.