Intangibles

Maimonides’ Presentation in Sefer ha-Miṣvot

Though the first two Principles in Maimonides’ Introduction to Sefer ha-Miṣvot

explicitly draw on the Introduction to his Commentary on the Mishnah, the later work’s

concise formulation made it the focal point of subsequent debates.

Principles One and

Two argue that non-Mosaic laws cannot constitute distinct commandments. Principle

One focuses on post-Sinaitic enactments, such as Purim, Hanukah, and the festive Psalms

recited liturgically on holidays (hallel). Principle Two disentangles midrashim that

contain tafsīr marwī, i.e., a transmitted interpretation, from those midrashim that create

new law.

The overlapping categories of biblical law and enumerated commandments are

central to this discussion. Sefer ha-Miṣvot often cites the term (mi)de-orayta (Aramaic for

“from the Torah”) in rabbinic literature to identify laws that constitute distinct

commandments. In Principle Two, Maimonides claimed that if the Talmud labels a law

“de-orayta,” then it is a distinct commandment.

The same is often true of the phrase

“min ha-torah” (Hebrew for “from the Torah”),

and he often contrasted min ha-torah

with rabbinic law.

The opening Principles likewise distinguish between laws that are

597 _{Maimonides, Sefer ha-Miṣvot, ed. Kafiḥ, 12 (Prin. Two). Ḥananya ben Menaḥem Qazes’}

conjectured that Naḥmanides was unaware of this Introduction because it had not yet been translated; Qinat Sofrim, in Maimonides, Sefer ha-Miṣvot, ed. Hellman, 57 (Prin. Two); compare the critique of Solomon Luria, there, 77 (Prin. Two). On early use of the Commentary, see Kalman Kahana, “Peirush ha-Mishnah

shel ha-Rambam be-Khtav yado?” Ha-Maʿayan 26, no. 1 (1986): 55-56; no. 2: 58; Yaʿaqov Ḥayim Sofer, “ʿAl Sefarim ve-Sofrim,” Ṣefunot 2, no. 3 (1990): 77-80; and Yaʿaqov Shmuel Spiegel, “Ha-Im Raʾu ha- Rashba veha-Rav ha-Magid u-vaʿal Hagahot Maymoniyot et Peirush ha-Mishnayot le-Rambam?” Ṣefunot 3, no. 1 (1991): 82-84; compare above, n422.

598 _{Maimonides, Sefer ha-Miṣvot, ed. Kafiḥ, 13, 15 (Prin. Two).}

599 _{E.g., Maimonides, Sefer ha-Miṣvot, ed. Kafiḥ, 68 (Pos. 19), 162 (Pos. 203).}

600 _{This is explicit in Maimonides, Sefer ha-Miṣvot, ed. Kafiḥ, 87 (Pos. 56), 243 (Neg. 135), and}

implicit eleswhere, e.g., 121 (Pos. 122), 125 (Pos. 130), 276 (Neg. 193). Note that the signs of kosher birds are not mentioned min ha-torah but are “inferred through induction” (ḥuṣṣilat bil-istiqraʾ) from non-kosher

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(mi)de-rabbanan (Aramaic for “[from] the rabbis”)or (mi-)divrei sofrim (Hebrew for

“[from] the words of the scribes”), on the one hand, and biblical law and enumerated

commandments, on the other.

In the enumeration itself, Maimonides cited rabbinic use

of the terms de-orayta or min ha-torah to indicate that a given law constitutes a distinct

commandment; however in all but three cases, those laws are based on what he termed

“clear” verses (see below; on the problem of combining discrete laws into larger

“commandment-units,” see Chapter Four).

birds; there, 133-34. As far as I can tell, Maimonides never used the word istiqraʾ to classify post-Mosaic legal derivations. It appears to be a term borrowed from formal logic for this type of intellectual activity. He used an identical phrase (ḥuṣṣil bi-ʾistiqrʾi) to describe the identification of the signs of kosher fish;

Mishnah ʿim Peirush, ed. Kafiḥ, 6:614 (mNid 6:10). See Efros, “Maimonides’ Treatise on Logic,” 9n6; and

Joshua ben Abraham ha-Nagid, Teshuvot R. Yehoshua ha-Nagid: al-Masāʾil, ed. and trans. Yehuda

Raṣhabi (Jerusalem: Mekhon Moshe, 1989), 109. In chap. 6 of the Treatise on Logic, he termed “induction” istiqraʾ. Compare Levinger’s claim that according to Maimonides, laws deduced from biblical laws are biblical; Darkhei ha-Maḥshavah ha-Hilkhatit, 38-39. This example seems more germane than the one adduced by Levinger.

601 _{Maimonides, Sefer ha-Miṣvot, ed. Kafiḥ, 8-14 passim (Prin. One and Two). For the}

enumeration, see there, 79 (Pos. 37), 240 (Neg. 131), 243 (Neg. 135). For (mi)de-rabbanan as rabbinic laws, see there, e.g., 100 (Pos. 78), 243 (Neg. 135), 290 (Neg. 230).

602 _{Two of these are likely among the “three [or] four” exceptions to Principle Two that}

Maimonides mentioned in his letter to Pinḥas ha-dayan (discussed at length below): the prohibitions against an uncircumcised priest consuming heave offerings (terumah) and against consuming wine used in idolatrous practices (Maimonides, Sefer ha-Miṣvot, 242 [Neg. 135], 276 [Neg. 194]). The third example of a de-orayta law that is not based on an explicit verse is the obligation to mourn for one’s relatives, included in the commandment obligating priests to render themselves impure through involvement with the corpse of a deceased relative: םויב ןכל השע תוצמ הנאואתירואדתוליבאלא םאזתלא ןא ןאב דקפ ...אתירואדןושאר םוי תוליבא טקפ ןושארה; Sefer ha-Miṣvot, ed. Kafiḥ, 79 (Pos 37). Compare Hilkhot Aveil, 1:1; see there, chaps. 1-2, where these prohibitions are closely intertwined. See Moritz Peritz, “Das Buch der Gesetze, nach seiner Anlage und seinem Inhalte untersuchht,” in Moses ben Maimon, 1:456n3; Friedberg, Crafting the 613 Commandments, 123-25 (showing that Maimonides struggled with the source of the obligation to mourn in his later writings); Lawrence Kaplan, “The Unity of Maimonides’ Religious Thought: The Laws of Mourning as a Case Study,” in Judaism and Modernity: The Religious Philosophy of David Hartman, ed. Jonathan W. Malino (Aldershot: Ashgate, 2004), 393-412. Compare Maimonides, Mishnah ʿim Peirush, ed. Kafiḥ, 5:27 (mZev 2:1).

In my view, Maimonides used the phrases min ha-torah and din torah to mean both “distinct, enumerated commandment” and “law of biblical status” in his letter to Pinḥas ha-dayan; Igrot, ed. Shailat, 2:453-54. I hope to expand on this elsewhere.

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Principle One: To Exclude Rabbinic Commandments from the