One more part of the Oral Torah, according to Maimonides, is "The edicts [gezerot] which were established by the prophets and the Sages in each and every generation, to make a fence around the Torah." These laws are also admittedly not from the Divine, but from the Sages' own minds -- though, Maimonides says, the Sages were authorized to establish these laws by the Torah verse, "Therefore you shall keep My guard" (Leviticus 18:30), the meaning of which is explained by tradition as "Make another guard around My guard [of Torah commandments]," as described in Tractate Yevamot 21a. The explanation of this verse as giving such great authority to the Sages is itself of the kind of "traditional exegesis [perushim mekubalim], received through the tradition from Moses," who, in turn, received it from G-d at Mt. Sinai. Of this Maimonides said, "There is no disagreement concerning these laws, but when one says, 'This is what I received from tradition,' it should not be disputed."
This matter is very peculiar -- why is a statement not disputed just because some individual or group claims to have a tradition about it? We all know that traditions are subject to corruption, forgetfulness, and misrepresentations over the course of generations due to the imperfection of the human mind and memory. I shall expand on this issue below, but meanwhile it is appropriate to recall that even our rabbis knew that traditions may be distorted and forgotten -- see the above-mentioned Gemara and Tosfot in Eiruvin 21b.
But even if we accept Maimonides' approach to tradition, one needs only open the Gemara to Tractate Yevamot 21a to realize that the derivation of the Sages' authority to institute such edicts from the verse "Therefore you shall keep My guard" seems to be completely arbitrary.
The exegesis, "'Therefore you shall keep My guard' -- make another guard around My guard," does not necessarily say anything about the Sages' authority to establish any edict of any kind. It says, most probably, that a Jew should restrain himself from certain actions which are formally permitted by the Torah but the performance of which might put one in danger of violating Torah commandments -- something like what the Mesilat Yesharim (chapter 13) says about the virtue of abstinence [midatha perishut]: "To be abstinent and to take a distance from things -- that is, one who forbids himself something [formally] permitted." This conduct, however, is not established by any edict, but every Jew practices abstinence from different things, all according to his personal considerations and the inclinations of his own heart. That this exegesis provides the Sages with authority to define what all Israel should abstain from is highly questionable.
One might suppose that the Gemara says explicitly that this traditional exegesis gives the Sages the authority to establish such edicts, but the Gemara stubbornly refuses to carry out the mission that Maimonides placed upon it. Here is what the Gemara says on the issue: "Rava said: where does the Torah hint about those [forbidden sexual contacts], which are of the second degree? It is written: 'For all these [ha'el] abominations the men of the land have done' (Leviticus 18:27); 'ha'el' means 'greatly severe' -- from here we learn that there are also less severe [sexual sins]. And what are they? Those of the second degree. From where do we know that 'ha'el' means 'greatly severe'? For it is written, 'And he took the great people of the land [eilei ha'aretz]' (Ezekiel 17:13)... Rav Judah said, here [is the hint about the forbidden sexual contacts of the second degree]: '[The preacher] handled things carefully, and investigated, and set order in many proverbs' (Ecclesiastes 12:9), and it is as Ula said in the name of Rabbi Eleazar: before Solomon came, the Torah was like a pot without handles, until Solomon had come and made handles for it. [Rashi explains: a pot is made with handles so that one will be able to hold it at the handles and thus prevent it from falling down; so did Solomon forbid certain sexual contacts permitted by the Torah, to prevent people from falling into violation of Torah commandments.] Rav Oshaya said, from here [is the hint]: 'Keep distance from it, pass not by it, turn from it, and pass away' (Proverbs 4:15) [That is, one should endeavor to keep distance from borderline issue concerning the Torah commandments, so as not to violate them accidentally (Rashi)]... Rav Cahana said, from here [is the hint]: 'Therefore you shall keep My guard' (Leviticus 18:30) -- make another guard around My guard. Abaye said to Rav Joseph: in this case, they [the forbidden sexual contacts of the second degree] are from the Torah! [Rav Joseph answered:] they are from the Torah, and the Sages had elucidated them. [Abaye:] But the whole Torah did the Sages elucidate! [Rav Joseph:] No, these issues were instituted by the Sages, and the verse is just a parable [asmachtabe'alma]." (Tractate Yevamot 21a)
The following points are to be noted:
The Gemara does not deal at all with the Sages' authority to issue edicts in order to "make a fence around the Torah," thereby obligating the whole of Israel. All the Gemara wants to find is a hint in the Torah about the specific issue of forbidden sexual contacts of the second degree [shniyot le-arayot]. (It is noteworthy that certain sages refer to the books of Ecclesiastes and Proverbs as the Torah -- as I will discuss below, Chazal, at times, seem not to differentiate between the status of the Pentateuch, the Prophets, and the Writings in general and in relation to each other.) Actually, it is clear that Leviticus 18:30 relates to the issue of forbidden sexual contacts only: "Therefore you shall keep My guard, that you shall not commit any of these abominable customs [the sexual contacts forbidden in the verses before] which were committed before you, and that you shall not defile yourselves by them; I am the Lord your G-d."
The Gemara itself states that "'Therefore you shall keep My guard' -- make another guard around My guard" is not a real exegesis [drasha] of the Torah verse, but only an expression by means of parable [asmachta] -- that is, a didactical method Chazal used to find symbolic expression of certain rules and laws in Scriptural verses so that people would remember them better. Or, as Maimonides himself defined it, "For that commandment, a parable was found in that verse as a sign, to make it known and remembered, but the commandment has no actual connection to the verse. And this is what they [Chazal] meant by the term 'just a parable [asmachta be'alma]' wherever they used it" (Foreword to the Mishnah commentary). Therefore it is clear that this parable cannot be an obligatory exegesis giving the Sages comprehensive authority to issue edicts upon the whole of Israel.
So it seems that there was neither traditional exegesis given by G-d to Moses, and clearly nothing in the plain meaning of the verses about the Sages' authority "to make a fence around the Torah." Rather the Sages themselves introduced it for their own reasons. And be those reasons whatever they may be, they are the deductions and considerations of flesh and blood, not from the Divine -- so why are they more authoritative or binding than any other human laws?
The next part of the Oral Torah, according to Maimonides, is "traditional exegesis [perushim mekubalim], received through tradition from Moses." Maimonides also gives an essential characteristic of these laws:
"The [laws derived by the] exegesis received from tradition which starts from Moses are never disagreed with in any way. From those times until nowadays, in any period from Moses until Rav Ashei, we have not found any disagreement among the Sages." (Foreword to the Mishnah commentary)
From this statement by Maimonides it is unclear whether he thought this criterion was exhaustive (that is, the laws belonging to the category of "traditional exegesis" are those and only those laws which are based on the Torah text and concerning which there is no disagreement) or non-exhaustive (that is, the laws belonging to the category of "traditional exegesis" are not the subjects of disagreement, but there may be laws belonging to other categories which are based on the Torah text and concerning which there is no disagreement). In the first case the "no disagreement" criterion does not hold up: how can the fact that none of Chazal disputed a certain exegesis of a Torah verse be an argument that this exegesis was given by G-d to Moses at Sinai and transmitted through generations, without change or error, until it was written in Mishnaic, Talmudic, or Midrashic sources? Maimonides himself wrote that "there are hints to these laws in the Scripture, and they may be derived rationally" -- maybe the Sages all simply accepted the rational bases of these laws and did not dispute them for that reason, not because they had a tradition from Moses? In the second case, the criterion is insufficient: it does not actually allow us to tell which of the laws derived by the exegesis of the Torah text were transmitted through tradition from Sinai and which were instituted by the Sages themselves, based on their understanding of the Torah (category 3 in Maimonides's division).
I agree with you that the meaning that Maimonides gives the verse ‘Therefore you shall keep My guard’, is not one that, on its own, can be compelled onto it, as you have shown. However, according to Maimonides, the reason why this verse is explained in this manner, is because this is the tradition that we received from Moses regarding this verse. As Maimonides writes in his introduction to the Mishne Torah: “From them [the Talmuds, Tosefta, Sifra and Sifri] it is explained the things that the Sages and Prophets in each generation decreed to create a fence around the Torah, as they explicitly heard [in this regard] from Moses, as it says, ‘Therefore you shall keep My guard’ – make another guard around My guard.’”
As to your question about if the criterion for the traditional exegesis is exhaustive or non-exhaustive, I disagree with the way you have understood Maimonides’ intentions. To me, it would seem that whether or not there is a disagreement with regard to the traditions, is irrelevant to its classification. Rather, something is considered as traditional exegesis if it was received from tradition (category 1), while laws that were derived rationally are considered exegesis derived from logic (category 3). Maimonides is just pointing out that the reality is that we find no disagreement with laws that are in the first category (to use one of his examples, there is no disagreement about the Etrog we use on Sukkot). I would assume that although there is often disagreement between the Sages with regard to the laws in the third category, there can sometimes be agreement as well – but whether there is disagreement or not has no bearing if that means that the tradition originates from Moses or not.
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