Commandments and Their Enumeration – Lesson 6

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[Rabbi Michael Abraham] Maimonides, no? No. No. For Maimonides it’s the opposite. I emphasized that Maimonides argues they count as two even if there is no gap whatsoever between them in terms of content. The very fact that one is a prohibition and one is a positive commandment—that’s the whole idea. Because if there were a gap in content, then it wouldn’t be duplication, so there’d be no point devoting a principle to it. You devote a principle only where there are two overlapping commandments and nevertheless they are counted as two. But here they’re not overlapping. Now I’m asking, according to Tosafot, essentially the same question. Tosafot says that in all three examples brought in the Talmud there are situations where there is only the positive commandment and not the prohibition. So our difficulty is resolved, right? Because if it were time-dependent, then in those situations at least women would be exempt. Because there’s no prohibition there, only the positive commandment. And the Talmud says it is not time-dependent, and therefore women are obligated, so there is a reason to say that. What happens with commandments where the positive commandment and the prohibition overlap completely? There are no situations where there is only the positive commandment without the prohibition. What would Tosafot say in such a case? In such a case women would be obligated, right? That’s why he needs to say that there is a gap between the positive commandment and the prohibition. Because if there were no gap, then the question remains. But that’s not precise, or at least not necessary. Because even if there is no gap, you can still say that with regard to the positive commandment women are exempt. They would still be obligated because of the prohibition, but still, if they didn’t do it, they would not have neglected a positive commandment. They would only have violated a prohibition. Say, for example, the commandment of a parapet—suppose there’s no difference, and the positive commandment and prohibition overlap completely. There is no case where there is the positive commandment without the prohibition. Right? “You shall make a parapet for your roof, and you shall not place blood in your house.” Now suppose this were time-dependent. You only have to build a parapet on every even-numbered day. Fine? Let’s assume that for the sake of discussion. So would women be exempt? Tosafot says, what are you talking about? There’s a practical difference because there’s also a prohibition. Not true. If a woman does not build a parapet on an even-numbered day, then true, she violates the prohibition, meaning she has to build the parapet. But she has not neglected the positive commandment. Is there neglect of a positive commandment here? Just one second—so seemingly there is still reason to say, regarding commandments that are not time-dependent, that if they were time-dependent then women would be exempt from them. True, in terms of the positive commandment itself they would have to do it because of the prohibition, but—but—but from the positive commandment they are exempt, so what’s the problem? What is bothering Tosafot? What is the difficulty at all? I don’t see any difficulty in Tosafot’s words. Tosafot apparently understands, either like what you said—I don’t remember the name—Noam, right, like Noam said, that maybe Tosafot really does not accept Maimonides, but rather like Saadia Gaon, what we saw, that when there is overlap between a prohibition and a positive commandment, it is really one commandment. And therefore there is no point—not only in terms of counting the commandments but in terms of obligation either—in saying that women are exempt. They’re not exempt. They are obligated because of the prohibition, and that counts as being obligated; there is no gap here between the prohibition and the positive commandment. But one could also say otherwise, and this by the way is the accepted view among the medieval authorities (Rishonim) and later authorities (Acharonim), that in a place where, as with the Sabbath, “observe” and “remember” were said in one utterance, then the prohibition and the positive commandment were said together in order to say that women are obligated even though it is time-dependent. What does that mean? The simple understanding is that women are oblig- it’s not that the prohibition and the positive commandment are the same commandment. No. There is a prohibition and there is a positive commandment, and their content overlaps, but whoever belongs to the prohibition belongs to the positive commandment as well. Therefore, even though the positive commandment is time-dependent, women are not exempt from it. And again, they are not exempt from even the positive-commandment aspect of it, not just because there is also a prohibition here and therefore they have to keep the Sabbath anyway. That is certainly true. But I’m saying the claim is stronger than that. There is also a positive commandment here, and when a woman does prohibited labor on the Sabbath she has both violated a prohibition and neglected a positive commandment, even though it is a time-dependent positive commandment. Because in a place where the positive commandment and the prohibition have overlapping content, then the definitions are the same definitions. Whoever is obligated on the side of the prohibition is obligated on the side of the positive commandment as well. What’s the idea behind this? It seems to me, at least, that the idea behind it is probably that these are positive commandments where basically there is value in a woman doing them. She is exempt for certain reasons; Jewish law does not obligate her, but it is not that there is no value in the woman doing it. And we know, after all, that according to almost all views, there is value in a woman performing a time-bound positive commandment. Whether she makes the blessing or does not make the blessing. But—but—there is value in her fulfilling a time-bound positive commandment. She is only exempt; she is not obligated, for various reasons. But there is such value. Now, in a case where from the side of the prohibition she is going to have to do it anyway, then what is the point of exempting her from the positive commandment? After all, you exempt her from the positive commandment because you don’t obligate—say, like the Abudarham says—I exempt her from the positive commandment because I don’t want to tie her down; she has to take care of the children, she has to, I don’t know, do all sorts of things like that. Fine, let’s assume that. To me that’s a strange reason, but fine. Let’s assume that’s the reason. What, so basically it’s suspended, not fully permitted, right? Basically I would want her to do it, but I set it aside because of one consideration or another. But if from the side of the prohibition she will have to do it anyway, then here you won’t succeed in exempting her overall, so there’s no reason to exempt her from the positive commandment either. Because basically I want her to fulfill the positive commandment too. I exempt her because I want to free her up; but if in any case she won’t be free even if I exempt her, then why exempt her? It’s like the Rogatchover says in a responsum, Tzafnat Paneach responsa, siman 2. He discusses there what happens if someone cooked on a Jewish holiday that falls on the Sabbath. By accident or

[Speaker D] intentionally?

[Rabbi Michael Abraham] No, simply the question is what he violated. Whether by accident or intentionally, it doesn’t matter for coercion, but for our purposes I’m asking which prohibitions he violated. On the face of it, on a Jewish holiday you’re allowed to cook, right? It wasn’t prohibited. On the Sabbath it’s prohibited. So he violated the prohibition of cooking on the Sabbath; he did not violate the prohibition of cooking on a Jewish holiday. The Rogatchover argues that he also violated the prohibition of cooking on a Jewish holiday. What stands behind this, I think at least, is that clearly even on a Jewish holiday there is also a value in not cooking; it’s just that Jewish law doesn’t prohibit it. It was permitted. You weren’t able to cook beforehand, so cook on the holiday. Fine? But there is still value in refraining even from that. That’s an assumption—not everyone agrees with it—but it is an assumption. Okay? Now, if that is indeed the conception, then when a Jewish holiday falls on the Sabbath it is very logical that they would not permit you also from the holiday side of the matter, since in any case no one is going to exempt you, no one is going to free you from the need to cook before the holiday, because you will have to do that due to the Sabbath laws involved. So why permit you to cook on the holiday? Okay? So the same thing here. Therefore in Tosafot here it seems that because… Tosafot resolves his difficulty by saying there is a gap in content between the prohibition and the positive commandment. There are situations where there is the positive commandment but no prohibition, and that explains why it is important to point out that this is not time-dependent, because if it were time-dependent then women would again be exempt from the positive commandment, since there is no accompanying prohibition. So I asked: what happens when there is perfect overlap between the prohibition and the positive commandment? When there are no situations where there is a positive commandment but no prohibition. What happens there? There, according to Tosafot, it really is difficult. There would be no point in mentioning that it is not time-dependent, because even if it were time-dependent women would still be obligated. Why? Two explanations. One explanation, what Noam said, is that maybe Tosafot does not accept Maimonides’ idea that these are really two commandments. Where the content is completely overlapping, then even when the overlap is between a prohibition and a positive commandment, according to Tosafot this is one commandment, one entity. And then there is no point in saying that women are exempt from the positive commandment but obligated in the prohibition; there is no positive commandment and prohibition here, it is one commandment and they are obligated in it because of the prohibition aspect. A second possibility, and this is more likely, is that in places where there is an overlapping prohibition and positive commandment, whoever is obligated in the prohibition is also obligated in the positive commandment. There is no exemption from the positive commandment there. Therefore, if it were time-dependent, women would still be obligated, and they would be obligated in the positive-commandment aspect too, not only in the prohibition aspect. As I said before. Okay. Let’s continue reading. He says: “In all of them you can find a case of a positive commandment without a prohibition. And regarding a parapet, ‘you shall not place blood’ applies only when one builds a house from the outset with the intention of not making a parapet. But if he intended to make a parapet, and after building it changed his mind, or he made one and it fell, then there is only the positive commandment of ‘you shall make a parapet.’” And then women would be exempt. Here he has some halakhic claim saying that if from the outset you built the house with the intention not to make a parapet, then you violated “you shall not place blood in your house.” But if not—if you planned to make a parapet and only because of circumstances beyond your control you didn’t do it, or you did it and it fell—then you have not fulfilled the commandment of “you shall make a parapet for your roof,” but you did not violate the prohibition. That is what Tosafot claims. And so because there is a gap between the positive commandment and the prohibition, there is reason to point out that this positive commandment is not time-dependent, because if it were time-dependent then women really would be exempt. The Pnei Yehoshua, for example, comments that if not for Tosafot he would have resolved it differently. He would have said that there is a difference between the positive commandment and the prohibition regarding “it is better to do the commandment oneself than through an agent.” Right, the Talmud at the beginning of chapter 2 of tractate Kiddushin says that with positive commandments, true, they can be performed through an agent, but it is better to do the commandment oneself than through an agent. Meaning, if the person does it himself, it is a greater commandment than if he does it through an agent. So the Pnei Yehoshua says: if so, then it is important to point out that women are obligated in these positive commandments, yes, like parapet or sending away the mother bird, or lost property, because if it were only a prohibition—say, if it were time-dependent—then if it were time-dependent, women would be exempt from the positive commandment and obligated in the prohibition, right? Then they would still have to build the parapet because of the prohibition. Would the rule of “it is better to do the commandment oneself than through an agent” apply? No, because there is no positive commandment. It’s time-dependent, so she is exempt from it. And to avoid violating a prohibition—send an agent to build the parapet and you’re fine, you didn’t violate the prohibition. There is no issue of fulfillment there. With positive commandments there is an issue of fulfillment. And if there is an issue of fulfillment, then fulfilling it yourself is greater than sending someone else and fulfilling it through them. But with not violating a prohibition, what sense is there in saying it is better for him himself to refrain from the prohibition than through his agent? If he didn’t violate the prohibition, then he didn’t violate the prohibition, that’s all. It’s not like fulfilling a commandment, where the question is how he fulfills it in a more choice way. So how does the Pnei Yehoshua understand it? The Pnei Yehoshua of course understands that when there is a positive commandment and a prohibition with overlapping content, it is not one commandment. It is two commandments. It is both a positive commandment and a prohibition. And therefore there is reason to say that women are exempt from the positive commandment even though they are obligated in the prohibition, regarding “it is better to do the commandment oneself than through an agent.” If he understood it as one commandment, then this would not be relevant. It is one commandment; if you decide that this commandment is a prohibition, then there is no “it is better to do it oneself than through an agent” even for men who are obligated in the positive commandment, because it is not really a positive commandment; it is one commandment that is a prohibition. The Pnei Yehoshua understands that even when there is full overlap, these are still two commandments, a positive commandment and a negative commandment. Now I move on in Tosafot. “And some explain”—this is a continuation of Tosafot. So first he said there is a gap between the prohibition and the positive commandment, and therefore there is reason to point out that these positive commandments are not time-dependent and women are obligated in them. Another answer: “And some explain that in any event there is a practical difference when a woman has some positive commandment to fulfill; for if we had said that women are exempt from a positive commandment that is not time-dependent, then likewise they would be exempt from the prohibitions, because one could say that the positive commandment comes and overrides the prohibition. But when they are obligated in a positive commandment that is not time-dependent, then another positive commandment will not come and override it, for a positive commandment does not override a prohibition together with a positive commandment.” Tosafot says: suppose there is no practical difference at all between the positive commandment and the prohibition. There is no gap like he mentioned above. Whenever there is the positive commandment there is also the prohibition, and vice versa. Still, there is definitely room to point out that women are obligated in this positive commandment, even though had they been exempt from it they still would have been obligated on the side of the prohibition. Why? Because if there were a positive commandment—say I had some positive commandment, I don’t know, of charity. Fine? Now I need to give the money to charity, and I don’t have the money to build a parapet. So if the parapet is only a prohibition, then a positive commandment overrides a prohibition, and I give the money to charity even though I won’t build the parapet. For the sake of discussion—I’m not sure this really falls under the definition of a positive commandment overriding a prohibition—but then a positive commandment overrides a prohibition. But if there is both a positive commandment and a prohibition there, then the rule is that a positive commandment overrides a prohibition, but it does not override a prohibition together with a positive commandment. Of course, because then it’s a positive commandment against a positive commandment, so in any event it remains unresolved, and besides you also have the prohibition—why should this positive commandment be preferable to that one? Right? A positive commandment does not override a prohibition together with a positive commandment. A positive commandment overrides a prohibition; it does not override a prohibition together with a positive commandment. Therefore there is reason to say that women are obligated in this positive commandment even though, had they been exempt, they would still have been obligated on the side of the prohibition. True, says Tosafot, but if they were obligated only on the side of the prohibition, a positive commandment would override it. And therefore there is a practical difference—or there is a point, a novelty—in saying that they are obligated also in the positive commandment and not only in the prohibition, in order to tell you that the positive commandment does not override it even for them. And then he brings: “Rabbeinu Yosef of the Land of Israel raised a difficulty against this explanation.” That is later in Tosafot; it’s not about the explanation I just gave now, I’m simply bringing it as a practical difference. Yes.

[Speaker D] A positive commandment overriding a prohibition—that’s when there are two actions that just happen to meet in one case, but they’re not really connected?

[Rabbi Michael Abraham] What do you mean?

[Speaker D] I mean, the way I understand a positive commandment overriding a prohibition is that it’s in that very same action itself, in one single act, so to speak.

[Rabbi Michael Abraham] Yes, correct, therefore

[Speaker D] I said that I—therefore

[Rabbi Michael Abraham] I commented—I said I’m not sure this really falls under the category of a positive commandment overriding a prohibition; I was just bringing it as an illustration. Here, this is better. Now we’ll see a better example. Tosafot itself brings one. Later on, Tosafot raises a difficulty on some explanation there, and it says as follows: If so, regarding the rule that we do not light with burning-oil on a Jewish holiday—burning-oil means terumah oil that became impure and must be burned. Right? Because a Jewish holiday involves a positive commandment and a prohibition, while the burning of consecrated items is only a positive commandment. Right? Basically, there is a commandment to burn the burning-oil—to burn that impure terumah oil. Okay. What happens on a Jewish holiday? My terumah oil became impure on a Jewish holiday. Should I burn it on the holiday? They say no. Why? Because burning consecrated items is only a positive commandment, and on a Jewish holiday, kindling something is a positive commandment plus a prohibition. And a positive commandment does not override both a prohibition and a positive commandment together. A positive commandment overrides a prohibition, but it does not override a prohibition plus a positive commandment together. Okay?

Now he says: burning the burning-oil—there’s a positive commandment to burn it. On a Jewish holiday, is there only a prohibition? No. On a Jewish holiday there is a commandment, like on the Sabbath. There is a commandment to desist, and there is a positive commandment and a prohibition regarding doing labor. It’s not stoning as on the Sabbath; it’s only lashes, but still the structure is the same structure. Tosafot says: the burning of consecrated items is only a positive commandment. A woman, who is not obligated in the positive commandment of a Jewish holiday, since it is time-bound—could she then light with burning-oil on a Jewish holiday? And if you say yes, indeed—maybe really yes? Then why did no Tanna ever happen to say so? So why does no Tanna say this?

In other words, the claim is that with burning-oil on a Jewish holiday we’re stuck—there’s no way to burn it, despite the fact that there is a commandment to burn it, because there is a positive commandment plus a prohibition. But what do you mean? There’s a very simple solution: let a woman burn it. After all, a woman is exempt from the positive commandment of the holiday because it is time-dependent. So for her there is only the prohibition of the holiday. So from the woman’s perspective, she has the commandment to burn the burning-oil, and opposing that commandment stands only a prohibition—there is no positive commandment. So there’s no problem; the woman can burn it because a positive commandment overrides a prohibition.

Tosafot takes it for granted that this cannot be. Meaning, it is obvious that even a woman is forbidden to burn it on a Jewish holiday. Why not? First of all, this has practical significance for what we saw above. As we saw above, there is nevertheless a practical difference for a woman in fulfilling positive commandments, right? If they are exempt from the positive commandment, then a positive commandment should override the prohibition, right? We asked what the case would be. So here it is. Fine?

If we assume that when there is a positive commandment and a prohibition with overlapping content—after all, what did the answer we just read say, that “and there are those who explain,” the one marked here? What did it say? It said: leave it, I don’t need to get to the point that there’s a difference between the positive commandment and the prohibition, like the first answer in Tosafot. Even if there is no difference, right? there is still practical significance in saying that a woman is obligated in the positive commandment with regard to being overridden by another positive commandment. If the woman is exempt from the positive commandment, then another positive commandment will override the prohibition. If the woman also has the positive commandment and the prohibition, then another positive commandment will not override it, right? Where is the practical difference? Here—in burning-oil on a Jewish holiday. That’s exactly the practical difference. Because with burning-oil on a Jewish holiday, the holiday commandments—the cessation from labor on the holiday, the positive commandment and the prohibition—overlap. There’s no difference between them. It’s not like what he said regarding the parapet. There they overlap. And the fact is that regarding women, nowhere do we find, says Tosafot, that they are permitted to burn burning-oil on a Jewish holiday, even though apparently they are exempt from the positive commandment of the holiday and obligated only in the prohibition. So what’s the problem? The positive commandment of burning the burning-oil should override the prohibition of the holiday. So why is it forbidden for women? Proof from here that even when there is a prohibition and a positive commandment with overlapping content—there is no gap between them—still a woman is obligated in the positive commandment and not only in the prohibition. Okay?

If so, then Tosafot’s question returns. Because what Tosafot asked above was: why are you bringing me the parapet, lost property, and sending away the nest? There too there is also a prohibition. And if the woman is obligated in the prohibition, then she is also obligated in the positive commandment, even if it is time-bound. That brings us back to the first answer. Right—but the second answer in Tosafot does not accept the first answer. So now they challenge the second answer, and the question comes back. Right—if you like, this is a proof for the first answer. Okay? That is basically the difficulty he raises.

Rather, what can you say? That a positive commandment accompanied by a prohibition—even the prohibition there is stronger, and a positive commandment does not override it. So here too the prohibition is stronger. What can you say? That if there is a positive commandment together with a prohibition, then the positive commandment is more… sorry, the prohibition is more severe. Fine? And therefore even if the prohibition remains by itself and the woman is exempt from the positive commandment involved, another positive commandment still will not override that prohibition. Because it is a more severe prohibition than an ordinary prohibition. Okay? That is basically the claim.

Now, just as a matter of reasoning, that sounds backwards to me—exactly what Nachmanides said above, if you remember. The whole idea of such a prohibition is not that it is more severe; on the contrary. At most you could say that it is sort of half a prohibition—it only comes to make sure that you fulfill the positive commandment, right? Why is it more severe? The opposite. If it were more severe, they should have made do with the prohibition alone; why need both a positive commandment and a prohibition? If there is both a positive commandment and a prohibition, then I would say—well, I don’t know, but I would say, if anything, that precisely this prohibition is less severe. And if it comes only to support the positive commandment, then there’s nothing to discuss—it’s certainly less severe.

But Tosafot understands that if it is a prohibition alongside a positive commandment, that hints that the prohibition itself is more severe. I would say: if it is a prohibition alongside a positive commandment, then the positive commandment is more severe. That I could understand. Why? Because in order to support this positive commandment, the Torah adds a prohibition as well. Right? The Torah adds a prohibition in order to make sure you fulfill the positive commandment. It doesn’t suffice with there being a positive commandment and your recoiling from neglecting a positive commandment. So here one could understand that from the Torah’s perspective this positive commandment is more severe; therefore it wants to ensure more strongly that you fulfill it, and it adds a prohibition too.

But how do you conclude from here that the prohibition is more severe when there is a positive commandment alongside it? Unless he is saying the opposite of Nachmanides: that in this case the positive commandment comes to support observance of the prohibition, and not the prohibition to support fulfillment of the positive commandment. Now, could there be such a thing? If Tosafot understands it that way—say, on a Jewish holiday, okay? What do they say regarding a Jewish holiday? On a Jewish holiday, fundamentally it is a prohibition: “Do not do any labor.” Fine? Why did they also make it a positive commandment of ceasing on the holiday? To strengthen the prohibition. To say that if you—if you refrain from labor, then it’s not just that you’re not wicked; you’re even righteous, because you also fulfilled a positive commandment. So that strengthens a person more not to do labor. It’s a strengthening by way of a carrot, not a stick.

That is the opposite strengthening from the one Nachmanides proposed. Nachmanides’ strengthening says: not only are you not righteous—you are also wicked. That is when the prohibition comes to strengthen the positive commandment. And when the positive commandment comes to strengthen the prohibition, it strengthens the fulfillment. That’s all. It means: if basically the commandment is a prohibition, and the Torah wants you not to do labor—fine, doing labor is a negative state—but it wants to strengthen that, so it says: look, if you refrain from labor, it’s not only that you are not wicked; know that you will have great reward—you are also righteous. Not only are you not wicked. That is strengthening by way of a carrot, not by way of a stick. And that too is strengthening.

Now if I understand it this way—that it is the opposite of Nachmanides, or a reverse mechanism from Nachmanides—I might even agree in this case; perhaps in the case of the parapet he understands it differently, but with burning-oil on a Jewish holiday, with the prohibition of labor on a holiday, maybe he understands it this way. Then perhaps Tosafot can also be understood to mean that the prohibition is stronger, because in fact they make it a positive commandment—they add a positive commandment in order to strengthen observance of the prohibition. So that is a hint that the prohibition really is more severe in this context.

If it matters what is mentioned first—the positive commandment or the prohibition in the Torah—then from Nachmanides it seems that it does. What is mentioned first is the primary thing. That’s what follows from the Nachmanides we saw last time. I’m not sure that always holds, but that is what Nachmanides says.

Maybe one more comment—again on what you said earlier, Noam. Perhaps one can also understand Tosafot’s remark here in the way Noam suggested earlier. It could be that Tosafot here says that when there is a prohibition and a positive commandment together, that is one commandment, not two. It does not accept Maimonides’ principle. Then it says: fine, so that is a more severe commandment. There is both a prohibition and a positive commandment; the Torah repeats it twice to tell you that this commandment is more severe. And therefore a positive commandment will not override even the prohibition, even if there is someone exempt from the positive commandment for some reason or other; the positive commandment will not override the prohibition, because this is essentially more severe. Okay? So perhaps that too is a way to understand Tosafot’s remark.

Okay, that’s it for Tosafot. I want to make one more comment. I’m now returning to the principle we saw—that the distinction between a prohibition and a positive commandment really rests on a certain abstraction of the concepts of passive omission and positive action. The concepts of passive omission and positive action are, in their simple definition, performative concepts. Positive action means: do an act. Passive omission means: refrain from doing an act—that is, desist, yes? It is a command regarding inaction.

And I said that in the normative definition, the basic idea is preserved, but it undergoes abstraction. In the normative definition, a positive commandment is positive action—but normative positive action, not performative positive action. Meaning: be in a positive state that the Torah wants you to be in. And a prohibition is basically: do not be in a negative state that the Torah does not want. So if you transgressed it, then in essence you transgressed by positive action. Why? Because you directly collided with the will of the Torah. You are in a negative place—not simply failing to be in a positive place. On the conceptual level, this is really a transgression by positive action. Okay? That is basically the claim.

Now someone asked earlier whether this has practical significance. Okay, so—for example, in several places in Jewish law distinctions are made between positive action and passive omission. By the way, this is the article I use—I already uploaded it to the model in the previous lecture—an article on Maimonides’ sixth root; you can see everything there, and more. There are several distinctions in a number of places between passive omission and positive action. For example: the Sages uproot something from the Torah by passive omission, but not by positive action. Or: human dignity is so great that it overrides a Torah prohibition, but only when that is by passive omission and not by positive action. Okay? And so on. So there are various places where we make a distinction between passive omission and positive action.

What is that distinction talking about? In the literal sense, the distinction between passive omission and positive action is a performative distinction. That is, say, the Sages can obligate me to do something that the Torah—or not to do something that the Torah tells me to do—but they cannot obligate me to do something the Torah forbids. Right? That means that the Sages can uproot something from the Torah by passive omission but not by positive action. Fine? For example, the Sages tell me not to blow the shofar on Rosh Hashanah that falls on the Sabbath, lest one carry it four cubits in the public domain. Okay? Or not to take the lulav on the Sabbath. Now there, that is basically uprooting by passive omission, right? Because the Torah tells me to do something, and the Sages say: don’t do it. So the uprooting is by passive omission. But if they were to tell me to eat pork every Tuesday morning, that they cannot do. Because that would be uprooting by positive action. That’s the rule.

Now, incidentally, the medieval authorities (Rishonim) already noted that the Sages can sometimes also uproot by positive action when the times require it; you can see in various places that the Sages uprooted even by positive action. But the definition—the ordinary rule—is that they cannot. Meaning, one uproots only by passive omission and not by positive action.

There is a dispute among the medieval authorities (Rishonim) and later authorities (Acharonim) whether the distinction between passive omission and positive action in these contexts—human dignity or rabbinic uprooting—is a distinction between positive commandments and prohibitions, or a distinction between modes of performance. Right? For example, what happens if there is a prohibition that is transgressed by passive omission? Usually prohibitions are transgressed by positive action—say, doing labor on the Sabbath or something like that. Okay? Take “do not stand idly by your neighbor’s blood.” A person is drowning in the river, and the Torah says to me, “do not stand idly by your neighbor’s blood.” That is a prohibition—a negative commandment. But of course what it requires of me is action: to do something to save him, right?

Now suppose the Sages want to uproot this for some reason, under certain circumstances, it doesn’t matter. Can they or can’t they? So they cannot uproot something from the Torah except by passive omission, and not by positive action—sorry, by passive omission they can, by positive action they cannot. So what are they basically telling me? They are telling me: don’t save him. Sorry—by passive omission they can, by positive action they cannot. So what are they telling me? Don’t save him; leave him to drown in the river. Apparently they can, right? Because uprooting something from the Torah by passive omission, they can do. But there are medieval and later authorities who argue that no, they cannot. Why? Because what they are telling me here is to transgress a prohibition, not merely to neglect a positive commandment, and they cannot tell me, instruct me, to transgress a prohibition.

Why? Where in the Gemara, when it says that the Sages can uproot something from the Torah by passive omission but not by positive action, did it ever talk about prohibitions and positive commandments? The assumption, of course, is that positive action and passive omission do not overlap with the distinction between prohibition and positive commandment, because the distinction is not performative but normative, right? As we saw in Maimonides. And so almost all the medieval authorities understand it.

So how do the medieval and later authorities understand that the Sages cannot uproot prohibitions, even though the uprooting is by passive omission? Because apparently they understand that any instruction to transgress a prohibition is essentially a transgression by positive action, even if in practice, performatively, it is done passively. But essentially it is a transgression by positive action. Why? Because the Torah basically says that when you refrain and do not save him while he is drowning in the river, you have transgressed a prohibition. Not that the rescue is a positive act; non-rescue is a negative act. So the Sages cannot tell me: be in a state that, in the eyes of the Torah, is negative. That is the meaning of their not being able to uproot something from the Torah by positive action, even if physically it is done passively.

Here, for example, is one implication. And here it is very clear: not only is this an implication of the difference between a positive commandment and a prohibition, it is also an implication of what I said earlier, that this distinction does not erase the link between positive commandment and positive action, and between prohibition and passive omission. My claim is that the concepts of positive action and passive omission remain; they have simply undergone abstraction. Because the fact that those medieval authorities interpret the Gemara, when it says passive omission, to mean neglect of a positive commandment and not transgression of a prohibition—even though neglect of a positive commandment can happen through an act. For example, neglect of the positive commandment of resting on the Sabbath happens through an act: you do labor. So is that basically the normative criterion and not the performative one? Yes—but almost all the medieval authorities accept the normative criterion, not the performative one.

There is almost no one… Whoever accepts the performative criterion, if such a person exists… What is the source? For what? No, I’m claiming not. Because for almost all the medieval authorities, the Gemaras are explicit in practice that the criterion is not performative according to Jewish law. Rabbi Yerucham Fishel Perla wants to claim this in Rav Saadia Gaon, and even in Rav Saadia Gaon himself it is not at all clear that this is true. That is an esoteric view; it’s not a thing.

Now medieval and later authorities discuss it and they do not feel there is any problem here. It is quite clear—they do not revert to the performative criterion. Rather, their claim is that there is something… transgressing a prohibition is by its essence always positive action, even when you transgress it passively, because it is positive action on the conceptual level, on the normative level, even though it is not positive action on the physical level. Okay? So that is one example.

Let’s see another example. There is a Gemara in Rosh Hashanah: Why do we blow and sound the teruah while sitting, and blow and sound the teruah while standing? The sitting blasts and the standing blasts on Rosh Hashanah—we add another thirty blasts in order to confuse Satan. And Rabbi Yitzhak said: Any year in which they do not blow at its beginning, they are made to cry out at its end. What is the reason? In order not to confuse Satan. Fine? It is in order to confuse Satan.

So the medieval authorities there ask—look at Tosafot—“and they blow and sound the teruah while standing.” A difficulty: but doesn’t that violate “do not add”? How can the Sages add another thirty standing blasts beyond the sitting blasts? There is an issue of adding to the commandment. And if you say that once he has already fulfilled his obligation it is considered outside its time, and one does not transgress? Right? If it is not in its proper time, then one does not violate adding to the commandment. After, say, I have fulfilled my obligation, if I perform the commandment again, that is not adding to the commandment, or if I do something more, that is not adding to the commandment. Adding to the commandment is only really during the performance of the commandment, when I add something extra that I did not need. That is Tosafot’s view; not everyone agrees.

For we say at the end of “The Court Saw,” regarding the priestly blessing, that one may not add one blessing of his own because he does not thereby transgress… anyway, in short, that doesn’t work. So one can say that adding to the commandment does not apply when one performs one commandment twice, such as a priest who blesses and then blesses that same congregation again, or someone who takes the lulav and then takes it again, and likewise one who blows and then blows again; and regarding the gifts of a firstborn animal too, if he gives at one corner twice, that is not adding to the commandment.

In short, if you do the commandment twice, there is no adding to the commandment here. So when the Sages told you to blow again, that is not adding to the commandment. Adding to the commandment is when, say, you add another passage to phylacteries. That is not performing the commandment twice; rather, you are adding an element that should not have been there according to Torah law. That is called adding to the commandment. Again, this is Tosafot’s position; not everyone agrees with it. But this is how Tosafot resolves how the Sages could add the standing blasts. Because those are rabbinic. What? Because those are rabbinic. Of course—it’s explicit in the Gemara that this is rabbinic.

So what defines the division between times? I need to do the commandment, wait, and then do the commandment again? Because here we add the thirty blasts immediately—why is that not… Yes, but you are doing the commandment again; you are not adding another type of blast. If you were adding another type of blast within the regular blasts, that would be adding to the commandment. But on the Sabbath, if we extend the Sabbath into Sunday, would we then say there is adding to the commandment? If you continue the Sabbath into the next day—so what? Is there no problem with that? No. Who said there is any problem? No. By the way, there is a commandment to add to the Sabbath—there is a commandment of adding onto the Sabbath.

In any event, the Rashba there says: “And they, the Tosafists, labored to uphold this approach, but it did not come out well in their hands.” The Rashba does not like Tosafot’s answer. “And it seems to me that there is no difficulty at all.” The Rashba disagrees with Tosafot and says it is not difficult. “For they only said there that there is an issue of adding to the commandment when one adds on his own initiative, such as a priest who adds a blessing of his own, or if one sleeps on the eighth day in the sukkah intentionally as a commandment, or in a case that happened accidentally where one type of sprinkling became mixed with another type,” and so on. “But where the Sages arose and instituted something for a need, there is no adding to the commandment here, for the Torah already said: according to the Torah that they instruct you.”

In short, the Sages are exempt from the prohibition of adding to the commandment. Adding to the commandment was said about the ordinary individual: if you do a commandment again, you have transgressed adding to the commandment. But if the Sages tell you to do something else, or to do the commandment again, or whatever, there is no adding to the commandment here. Why? Because the Torah itself said that the Sages are allowed to add further enactments and decrees for us, and the like. It says, “do not deviate.” Fine? So since that is so, the prohibition of adding to the commandment does not apply to them. And through that, the Torah revealed that the Sages are not subject to the prohibition of adding to the commandment. That is the Rashba’s claim.

There are those who add another passage to phylacteries. What? So the Sages can add another passage to phylacteries, right—rabbinically they can tell you to add another passage to phylacteries, right. This is a dispute between the Rashba and Tosafot.

Now the Turei Even—it doesn’t matter—asks against the Rashba’s proof. The Rashba brings some proof there. He says the Sages can uproot the prohibition of diminishing itself. If the Sages can change Torah law—to add, uproot, whatever—they can uproot adding to the commandment and diminishing from it themselves. And then the prohibition of adding to the commandment and diminishing from it would not apply to them—not because the Torah does not apply it to them, but because they can uproot these prohibitions themselves as well. The prohibitions of “do not add” and “do not diminish”—that too they can basically uproot. Yes, that is what he says on the Rashba.

If the Sages are basically exempt from adding to the commandment and diminishing from it, then you don’t need to reach the point that they are exempt from those prohibitions—they can remove or add to the very prohibitions of adding and diminishing themselves. The claim in the pamphlet Divrei Sofrim of Rabbi Elchanan Wasserman, in the second part of Kovetz Shiurim there, is that according to the Rashba, the distinction between positive action and passive omission does not depend on whether this is a transgression done by passive omission. What are you saying to him? Let’s diminish from “do not diminish.” Meaning, let’s uproot “do not diminish,” right? What does it mean to uproot “do not diminish”? It means I am permitted to diminish. In other words, I tell people not to blow on Rosh Hashanah that falls on the Sabbath. Now apparently that is diminishing from the commandment—you are removing a commandment from the Torah.

So the Turei Even says the Sages can uproot “do not diminish” because this is done by passive omission—they tell you not to blow. Right? The pamphlet Divrei Sofrim says: not true. “Do not diminish” is a prohibition. When you uproot a prohibition, that is always by positive action. Even if you do it passively, the moment what you uprooted is a prohibition, it is an active uprooting. The Turei Even held that whenever they uproot… No, he understands that they uproot “do not diminish”; he only claims that this uprooting is done by passive omission. Why? Because what they tell me is not to blow the shofar—that is passive omission. True, not blowing the shofar is diminishing from the commandment, but I transgress that prohibition passively; I am merely not blowing. So Divrei Sofrim says in response: as long as you transgressed “do not diminish,” you transgressed a prohibition. Once you transgressed a prohibition, that is not passive, it is active. So here is another example of a practical implication.

Another example, perhaps the most famous one, concerns human dignity. The Gemara says that human dignity is so great that it overrides a Torah prohibition. On the face of it, this means only the prohibition of “do not deviate,” so it permits only rabbinic prohibitions. But the Gemara in Berakhot says that it applies even to Torah prohibitions when it is by passive omission. The Sages, because of human dignity, can uproot—no, not the Sages can uproot, sorry—human dignity overrides a Torah prohibition, fine? It overrides by passive omission.

Now the later authorities, including Divrei Sofrim and Kehillot Yaakov and others, raise two possibilities for why human dignity overrides only in passive omission and not in positive action. Fine? Say a priest is in a cemetery, okay? Or an elder for whom it is beneath his dignity—so he has to deal with lost property. The Gemara says: if it is beneath his dignity to start taking that goat he found and so on, we waive the commandment of returning lost property for him. So he does not return the lost property—that is passive omission. Got it? It is passive omission because he does not return the lost property, okay? And you can already see that returning lost property also has a prohibition in it. Never mind—the definition is treated as if this is passive omission, and since it is passive omission, human dignity overrides it. It is permitted for an elder for whom it is beneath his dignity not to return lost property. Okay?

Now the question is why. You can say: because human dignity is more severe, more important, than a transgression by passive omission. That is one possibility. Human dignity is a greater value than a transgression by passive omission. A transgression by positive action is a more severe transgression; the assumption is that there is a gap in severity—if it is a transgression by passive omission, that is a lighter transgression; if it is a transgression by positive action, that is a more severe transgression—and human dignity overrides lighter transgressions, not severe ones. That is one possibility.

A second possibility is to say: no, what are you talking about? A transgression by passive omission and one by positive action are of the same severity. There is no difference. The difference is only in whether you do it by passive omission or by positive action. So what then? When there is a clash between human dignity and a prohibition, that clash is balanced. Human dignity is on a par with the prohibition. What do we do when there is a balanced clash? Right—say a positive commandment overrides a prohibition. But what happens when there is one positive commandment against another positive commandment? There is no one side overriding the other; both are positive commandments. Or one prohibition against another prohibition—what do you do? In that situation, you just have this conflict. You do nothing. Passive omission is preferable, right? Basically, when there is a clash between two equal values, the solution is not to do anything—that is, to remain passive, because you need a reason in order to act. Since I have no reason in order to act, I do not act. You do not need a reason not to act. You need a reason in order to do something. That is the halakhic rule that passive omission is preferable.

When there is a clash between two equal values, the solution is always that passive omission is preferable. Okay? There are many examples of this. Now it may be that when human dignity stands against a prohibition, it is not that human dignity overrides the prohibition, but rather that they are entirely balanced, and therefore passive omission is always preferable. But what does that mean in practice? When the clash is between human dignity and a prohibition that is transgressed by passive omission, what do they tell me? Passive omission, right? In other words: transgress the prohibition by passive omission—but do transgress the prohibition. Therefore human dignity overrides prohibitions transgressed by passive omission.

By contrast, if you are facing a prohibition that is transgressed by positive action, once again the solution is passive omission. And in that case, passive omission means not to transgress the prohibition, but rather to transgress human dignity. Right? Because passive omission means not to transgress the prohibition, since that prohibition is transgressed by positive action. So even if prohibitions transgressed by passive omission and by positive action are on the same level of severity, I can still understand why human dignity overrides only a prohibition of passive omission and not a prohibition of positive action. The override is not because one is more severe than the other; it is simply because of the technical setup. Technically, the instruction is always, in relation to any prohibition: passive omission. De facto that comes out once as going with the prohibition and once as going with human dignity. That is just how it comes out. Okay?

So the question is how to explain the distinction the Gemara makes regarding human dignity—that it overrides only by passive omission and not by positive action. Is it because passive omission is less severe, or simply because the instruction is always that passive omission is preferable, and human dignity is on a par with all prohibitions? All prohibitions are on the same level of severity, human dignity is on a par with all prohibitions, and because there is a balanced clash here, the instruction is that passive omission is preferable. And de facto that means that when the prohibition is by passive omission, “passive omission is preferable” means transgress the prohibition; and when the prohibition is transgressed by positive action, “passive omission is preferable” means do not transgress the prohibition. Okay? So those are the two possibilities for understanding it.

Now, for example, Tosafot in Shevuot 30 discusses the following question. Someone has to come to court to testify on behalf of someone else. In monetary law, say—doesn’t matter—there is some case being heard there, and I know testimony relevant to one of the sides. I have an obligation to go testify. Okay? Now suppose I am a great Torah scholar, and the judges there are not exactly something special. They gathered three cattle-herders. Fine? If we accepted them upon ourselves, even three cattle-herders can judge. Now then it is beneath my dignity to stand before them, because the witness has to stand before the judges; they sit, they are the more honored ones. It is beneath my dignity to appear before these inferior judges and stand before them and testify. Can I exempt myself from testifying? Fine?

So Tosafot says there that if he is a Torah scholar who should not testify, then he is exempt; he does not need to go testify. Why? Because human dignity overrides a prohibition by passive omission. Passive omission—don’t go testify—so human dignity overrides a prohibition by passive omission. But what happens if my testimony would prevent someone else’s prohibition? If by my going to testify, someone would be prevented from sinning—for example, they are about to permit a woman to the marketplace, and I know her husband is alive. So do I go testify in order to prevent her from marrying, because she is a married woman, or not?

There are two answers in Tosafot that disagree about this. Fine? The question is—the answer—Tosafot says there… no, it’s not two answers in Tosafot. Yes, it is two answers in Tosafot. So according to one answer in Tosafot… Now notice: I would be violating this by passive omission, while the woman would be violating it by positive action, right? How did Tosafot understand the difference between human dignity against passive omission and against positive action? According to the understanding that passive omission is less severe than positive action, or according to the understanding that passive omission is always preferable? Right? It has to be.

If it understood that the instruction is always that passive omission is preferable, then obviously passive omission here means not going to testify. It has nothing to do with more severe or less severe; the instruction is simply always: don’t do anything. If you have no reason, don’t act, right? Then its answer here should have been: don’t go testify, even if that woman will marry. You are entitled not to go testify—not that you are obligated, but you are entitled not to go testify and not to have your dignity harmed in order to save that woman from a prohibition. Passive omission is preferable.

Okay, apparently Tosafot did not understand it that way. Why not? Because Tosafot understood that a prohibition transgressed by positive action is more severe than one transgressed by passive omission. And since here a severe prohibition is going to be transgressed, your human dignity does not allow you to let that woman transgress a severe prohibition. Tosafot certainly understood it that way.

Now the Rosh disagrees with Tosafot. The Rosh argues that one may refrain. Fine? And for what reason? Now in the medieval authorities it is not formulated this way, so only the later authorities give these kinds of formulations. And this is how he writes. He says that this is my passive omission, and therefore it is permitted for me. He does not go into the question of how to understand human dignity against passive omission, but basically he says: this is passive omission, therefore it is permitted for me.

Now here it can be understood in two ways. It can be understood that he really disagrees, and he claims that he understands the second way the overriding of human dignity. He says that the instruction is always that passive omission is preferable; it does not depend on… there is no greater severity in a transgression by positive action than in one by passive omission; it is the same level of severity. The instruction is simply always that passive omission is preferable—remain passive.

But one can also say not so. One can also say that he simply does not accept Tosafot’s idea that if someone else commits an active transgression, that is considered my active transgression. Then it could be that he remains like Tosafot—he too understands that it is only a question of severity. He says: fine, but when I have to pay with my dignity, why should I care about the severity of the transgression that you are committing? I am talking about the transgressions I commit, and the transgression I commit is one by passive omission, which is a lighter transgression. The fact that you would commit a severe transgression—I am not obligated to pay with my dignity so that you do not commit a transgression. Why should I have to be harmed so that you do not sin? Therefore it could be that the Rosh—in Tosafot this is pretty clear. In the Rosh it remains open. Fine? That is the claim.

Now in this context too, if we understand that passive omission is more severe than positive action—or that they are the same level of severity and the whole issue is that passive omission… the instruction is always passive omission. Yes. Wait a second—what happens in testimony when dignity is involved? What? Why would a witness feel that it’s not… I said: if the judges are such inferior judges—three cattle-herders that we accepted upon ourselves as judges—and I am the leading Torah scholar of the generation, a great Torah scholar, then I would stand before them while they sit and I stand before them and testify before them—that harms my dignity. Fine?

And second, in a case where apparently every failure to testify causes a problem of positive action—that they cannot judge justly. No, that is passive omission. What… They are not judging justly—what can you do? And that is still considered passive? Again, in any case it causes something to others, where it was never clear at all that this matters. But even if you accept that what you cause others is as though you yourself did it, it is still passive omission. Yes.

The distinction—I think this also connects to our discussion—because if you say that a transgression by positive action is more severe than a transgression by passive omission, then on the face of it I would think that this is really a distinction between positive commandment and prohibition, and not between doing an act and not doing an act. If you say that the difference between positive action and passive omission is a difference in severity, then it seems to me that it can’t be that way, because there are prohibitions that are passive and carry karet. Positive commandments—fine, you did not perform circumcision. That transgression is by passive omission—you did not perform circumcision, right? And likewise with Passover. So that means I do not think one can speak categorically of a transgression by passive omission as less severe than a transgression by positive action.

But a prohibition, categorically, is more severe than a positive commandment, regardless of whether one transgresses it by action or omission, right? Therefore there is a punishment for it, whereas for a positive commandment there is no punishment. So I think that anyone who claims that human dignity overrides a prohibition only by passive omission and not by positive action because of a question of severity is probably not talking about passive omission and positive action on the physical level, but about prohibition versus positive commandment. And someone who speaks about passive omission and positive action on the physical level, and not on the level of severity, will of course say: okay, then the instruction is that passive omission is preferable—not because one is more severe or less severe, but simply: don’t act, that’s all. The instruction is to remain passive. Fine? So this too is really an expression of that same abstraction we made of the concepts of positive action and passive omission.

Okay. Actually, I’ve more or less finished here; I see I have almost no time left. The next stage—I just want to present the question, perhaps, and then we’ll see. I already presented it earlier. If I summarize the difference between a prohibition and a positive commandment as we have seen it up to this point, then the difference really lies in the question whether the Torah points to a desired state or points to an undesired state. Okay? Therefore the claim is that if you fulfill a positive commandment, you are righteous; if you do not fulfill a positive commandment, you are intermediate. You didn’t commit a transgression, but you also didn’t fulfill a commandment. If you transgress a prohibition, you are wicked; if you do not transgress a prohibition, you are intermediate. Right? That is basically the claim. You are not going head-on against the will of God.

The question is how this picture fits with the distinction between an obligatory positive commandment and an existential positive commandment. Because if you look at the distinction: an obligatory positive commandment is a positive commandment that one must do, and if I did not do it, I have the transgression of neglecting a positive commandment. An existential positive commandment is a commandment such that if I did it, I have fulfilled a positive commandment; if I did not do it, that is not a transgression. If I did it, I have fulfillment; if I did not do it, it’s not a big deal. Okay? I’ll clarify this more in the next lecture, I’ll explain it more—that’s our next topic—but I’m just putting the question on the table.

Now everything I’ve said up to this point fits very well with an existential positive commandment. Because an existential positive commandment basically says: if you did the commandment, you are righteous; and if you did not, nothing happened. You are intermediate; you are not righteous, but nothing happened. But most positive commandments are obligatory positive commandments, not existential ones. And with an obligatory positive commandment, if you did it, you have a positive commandment; if you didn’t do it, then you committed a transgression—you are some kind of wrongdoer. Now how are you a wrongdoer? You are merely not righteous. So in what sense… True, there is no punishment for it; neglecting a positive commandment carries no punishment. So the implications we talked about still exist here. But on the conceptual level we need to understand how a person can be wicked just by not being righteous—not because the state he is in was defined as problematic. That state is not problematic; only the other state is positive. And the fact that you are not in the positive state already turns you into some kind of wicked person. The question is how that fits with the picture I described earlier of plus one, minus one, and zero.

I already mentioned earlier that there is also a half. Meaning—that is basically where I’m heading. But that is essentially the question that takes us from the discussion of what the difference is between a prohibition and a positive commandment; and from the next lecture on, I will begin discussing what a positive commandment is, what types of positive commandments there are, obligatory positive commandments and existential positive commandments, what that means, what the differences are between them, and in the end we will also return to define more clearly the wickedness involved in neglecting an obligatory positive commandment. Okay? In light of the picture I described here. Okay, that’s it, up to here.