Albert D. Friedberg’s Crafting the Commandments has just appeared. The Seforim Blog is happy to present the following excerpt from the book’s conclusion.

Scholars have ascribed far too much importance to Maimonides’ enumeration of the commandments and far too little to the motivations that lay behind his appropriation of R. Simlai’s aggadah as the basis for the enumeration and to the significance that Maimonides attached to this aggadah. The proximate reason for creating an enumeration was his need to have a reasoned and methodical outline of all Torah legislation in front of him, a reminder of topics to guide his preparation of the upcoming code of law, a massive and unique undertaking. Thus we find him saying in the introduction to the ShM [Sefer ha-Mitzvot]:

All this [I would do] in order to guard against omitting any topic [emphasis added] from discussion, for only by including them in the enumeration of the commandments [heading the various treatises] would I insure against such omission.

This sense is reinforced by some of the Rules, especially Rules 7 and 10-14, which are essentially taxonomic rules rather than definitions of what constitutes a mitsvah. I posited that the logically unnecessary identification of this outline with R. Simlai’s count of 613 commandments owed its existence to Maimonides’ desire to incorporate the two fundamental beliefs of the Jewish faith, God’s existence and His oneness, into the legal realm, and thus transform their intellection into obligations, a dramatic departure from the preceding geonic paradigm. I inferred this conclusion from a dispassionate and unapologetic assessment of the mitsvah count. Maimonides stretched the meaning of mitsvat ‘aseh well beyond its common rabbinic usage, relying uncharacteristically on an aggadah of questionable legal worth, a homiletic creation with didactic aims and no pretensions of being precise, and resorted to a contrived and hardly compelling logic to arrive at the numerical target, likely fully aware of the variant results that could be legitimately obtained.

The enumeration, qua a reasoned list of commandments, has diverted the attention of the countless students of his works ever since the ShM left his hands. But I posit that it was not R. Simlai’s dictum that 613 commandments were given to Moses at Sinai that was significant, but rather R. Hamnuna’s accompanying exegesis. Maimonides used R. Hamnuna’s midrashic exegesis that the verses I am the Lord thy God and Thou shalt have no other God before Me specifically formed part of the count of 613 commandments to prove that to intellect the existence of God and His oneness constituted a positive, performative obligation. The credibility of R. Hamnuna’s exegesis was even more firmly established when Maimonides inferred from its language what he believed was a theological truth: the nature of the commandments to believe in the existence of God and to believe in His oneness was categorically distinct from the nature and motivation underlying the rest of the commandments. He explained this distinction by averring that the former were philosophically demonstrable truths, capable of being apprehended without the medium of revelation, while the latter were only conventions, necessitating the mediation of a lawgiver and prophet.

The two articles of faith occupy the most prominent position in the MT, appearing in the opening lines of the Sefer ha-Madda’. In a letter to his disciple, Joseph b. Judah, Maimonides wrote that he undertook to compile a code of law in his zeal for the glory of God, “in seeing a nation bereft of a truly comprehensive book (diwan) of law, and bereft of clear and correct [theological] notions.”  Only the inclusion of these two beliefs in the canon of law could have satisfied the requirements of “a truly comprehensive book (diwan)” containing “correct theological notions.”  In sum, the unequivocal and unique statement found in R. Simlai’s aggadah, that the beliefs in God’s existence and His oneness constituted positive obligations, led Maimonides to appropriate the aggadah, adopt its numerical value of 613, and conflate it with the outline that he was preparing—all despite the constraints that it imposed.

In the second half of the book, I turned my attention to the sub-section of positive commandments and drew some conclusions from the way they are described and defined in the Halakhot. While my readings hinged on what Maimonides actually wrote, I recognized that, being human, Maimonides was bound to make the occasional mistake. That said, the exceptional (but more than occasional) omission of the formulaic phrase “X is a mitsvat ‘aseh” at the start of a topical discussion held my special attention because of the implausibility of it being forgotten: the phrase is rich, bold, highly informative, and consistent with Maimonides’ sustained interest for making categorical distinctions. Additionally, and just as importantly, my readings focused on how Maimonides expressed himself. The rhetoric, the literary presentation of his ideas, and the logic of composition mattered as much to me as the slight inferences one could arrive at by noting the absence or presence of a particular term, elements which have constituted the more traditional way of studying his works.

I began the book’s second section by noting that in the Halakhot, Maimonides moves away from the contrived artificiality adopted in the ShM of using the term mitsvat ‘aseh to designate all types of legal themes: here he applies the term to a very specific case, that of an absolute and unconditional obligation. Combing scriptural and rabbinic sources, Maimonides searches for clear indications of unconditional commands and imperatives to perform well-defined acts. These he designates boldly and prominently at the commencement of each topical
discussion, with a formulaic phrase that states that the directive at hand is a mitsvat ‘aseh. Where Maimonides withholds the mitsvat ‘aseh designation, I theorized that he must have done so because the scriptural and/or rabbinic evidence was insufficient to make such a determination. I tested for this evidentiary insufficiency, and when confirmed, I theorized further that under the influence of reigning Islamic legal theory (which was also heavily if not wholly influenced by rabbinic thinking), Maimonides opts for a softer definition. As a result, certain scriptural directives are categorized as recommendations rather than orders, wise pieces of advice rather than commands. Supporting these with scriptural proof texts, he labels them with the solo term mitsvah, a label that he also uses to designate rabbinical directives. The scriptural mitsvot include such prominent directives as to love and fear God, to imitate Him, to appoint a king, to heed the call of a prophet, to rebuke the sinner, to honor the wise, to testify in court, and a few others.

I conjectured further that Maimonides deliberately withheld the scriptural designation from certain commandments that had been labeled as scriptural in the ShM when the plain reading of the scriptural text did not appear to provide sufficient evidence for them, even when rabbinic interpretation suggested otherwise. To this end, he chose an artful but somewhat concealed literary device to designate them as such, the participle of correct practice. This is the case with such prominent practices as the recitation of the Shema, the binding of the tefillin, the writing and placing of the mezuzah and the study of Torah.

In the heavily politicized atmosphere of Cairo, where Rabbanites were both assiduously courted and continuously attacked by sectarian groups (largely Karaites) over the role of the oral law in interpreting Scripture, Maimonides chose to keep his radical opinions hidden yet recoverable. When applied to the legal sections of the Torah, Maimonides’ peshateh di-qera hermeneutics would likely raise hackles among his own co-religionists and, worse yet, give comfort to the deniers of the oral law. His carefully planted literary cues could lead the reader who is familiar with rabbinic terminology and unburdened by popular and superficial conclusions to discover the Master’s true opinion or at the very least sense his ambivalence.

Maimonides was informed by a hermeneutics of peshateh di-qera that was firmly and demonstrably anchored in the Andalusian tradition. His insistence on presumed philological validity, however, left him uneasily placed, uncomfortably close to sectarian investigation and interpretation. Ironically, this led him at times to mount a struggling defense of his own traditional Rabbanite views, well aware that the plain sense of Scripture did not lend convincing support for such a stance.

Consciously or unconsciously, Maimonides navigated his legal system between the Rabbanites and the Karaites, upholding the former’s respect for authoritative tradition and the latter’s insistence on relying only on philologically informed readings. Maimonides’ extraordinarily novel application of peshateh di-qera to the halakhic corpus threatened the very foundations of a Rabbanism, one that was intimately intertwined with the Talmud and its authority. Nahmanides understood this too well when he criticized Rule 2:

[F]or this book of the master, its content is delightful, full of love [based on Song of Songs 5:16] except for this principle, which uproots great mountains of the Talmud and throws down fortified walls of the Gemara. For the students of the Gemara, this notion is evil and bitter. Let it be forgotten and not said.

Of course, Maimonides would not have conceded this point: he would have maintained that his paradigm flowed quite naturally from the pages of the Talmud. Did not the Talmud’s quest for peshateh di-qera support the distinction between divine and man-made law? Did not the rabbis of the Talmud acknowledge that explicitly stipulated scriptural laws enjoyed an epistemic advantage over and a distinction from man-made laws? To Maimonides the answer to these two questions was a resounding yes.

Thanks to his remarkable codification, Maimonides left an indelible mark on Jewish law. Unfortunately, an important part of his jurisprudence, the exquisitely fine distinctions he made between divine and human law and between command and advice, was never fully appreciated, perhaps because of its radical import—or perhaps because Maimonides, for his own good reasons, hid many of these contributions behind formulaic omissions, terminological nuances, and subtle literary devices. It is this rich and layered nuancing that in some modest way I have tried to recover.