Lesson 8: Category 3 — The Sixth Root

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This is an AI-generated English translation of a chapter from the book Roots Outstretched (ישלח שרשיו) by Rabbi Michael Avraham. Translated by OpenAI’s GPT-5.4 model with high reasoning effort. Read the original Hebrew (PDF).

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From the book Roots Outstretched by Rabbi Michael Avraham. Translated from Hebrew using gpt-5.4 (reasoning_effort=high, batch API).

With God’s help.

The Sixth Root

That when a commandment contains both a positive commandment and a negative prohibition, the positive element should be counted among the positive commandments and the negative element among the negative commandments

On the Difference Between Negative and Positive Commandments

Chapters in Normative Logic (Logical Relations among Types of Commandments and Norms)

This essay concludes our discussion of the principles that belong to the third of the five categories defined in the introduction: roots dealing with the elimination of duplication. In the previous root we discussed the ninth root, which establishes the basic principle that two commandments with overlapping content are not to be counted separately. Here we deal with the sixth root, in which Maimonides establishes a qualification to the principle that duplication must be avoided: when a positive commandment and a negative prohibition have overlapping content, this is not duplication, and both are to be included in the enumeration of the commandments—the prohibition among the negative commandments and the positive commandment among the positive commandments.

We should recall that this root is the only one of all the roots that establishes a principle of counting; that is, it explains that a certain type of commandment should indeed be counted, even though one might have thought otherwise. All the other roots deal with principles of non-counting.

Although Maimonides states that he knows of no one who erred in this root, we shall see that it was in fact disputed among the medieval authorities. Saadia Gaon and Sefer Mitzvot Katan (Semak) disagree with Maimonides on the basic principle established in this root. As we proceed, we shall see that this dispute touches on extremely fundamental meta-legal issues. It concerns the very understanding of the difference between positive commandments and prohibitions, as well as other categories—such as a prohibition involving no act, a prohibition inferred from a positive commandment, or a positive commandment fulfilled through non-action—that seemingly combine aspects of both positive and negative commandments.

Nahmanides, in his glosses here, does not address Maimonides’ statements in this root, since they are agreed upon both by Halakhot Gedolot (Bahag) and by himself. He does, however, raise a discussion connected to these matters concerning a prohibition inferred from a positive commandment.

The essay is divided into two parts. In Part A we begin with the principle itself and the dispute among the medieval authorities concerning it; from there we move on to clarify the familiar and seemingly obvious distinction between positive commandments and prohibitions, and we shall see that it is anything but simple. Then, in light of the conclusions of the first part, in Part B we examine Nahmanides’ comments and Maimonides’ view regarding a prohibition inferred from a positive commandment.

This week’s essay is somewhat complex, because it deals with fine distinctions between situations that appear, at first glance, to be identical. In order to sharpen the discussion, we have had recourse to several logical distinctions—mainly those concerning the operation of negation—that will accompany us through the major turning points of the argument.¹ We recommend that the learner make use of our definitions at every point where the thread of the argument is lost. To the best of our understanding, these tools are necessary and useful for understanding the different types of commandments and the subtle relations among them.

This is the concern of the field we call here “normative logic,” and we have indicated some preliminary lines of its profile. This field, of course, still requires further development, and to the best of our knowledge it has hardly been treated directly and explicitly until now.

Part A: Between Prohibition and Positive Commandment

Introduction

As noted, in this root Maimonides qualifies the principle established in the ninth root, that duplicate commandments are not to be counted. Here he explains that if the duplication is between a positive commandment and a prohibition, both are certainly to be included in the enumeration of commandments. Yet this determination is apparently not universally accepted, and the dispute surrounding it reflects differing conceptions of the essence of positive commandments and prohibitions.

On this matter, Aharon Shemesh already wrote, in his article “Toward a History of the Meaning of the Concepts Positive Commandment and Negative Commandment” (Tarbiz 72, issues 1-2, 2003; hereafter: Shemesh), that tannaitic literature presents two meanings of the distinction between positive and negative commandments, which he calls “the linguistic meaning” and “the performative meaning.” As we shall see, one might at first think that this distinction continues into the period of the medieval authorities as well; but after probing more deeply into its roots, meanings, and implications, we shall see that Jewish law decided clearly in favor of the approach that underlies the linguistic conception—though not the purely linguistic conception in its simple form.

A. The Basic Dispute

Maimonides’ remarks in this root

This root is fairly short. Therefore, as is our practice in such cases, we shall open with an annotated quotation of Maimonides’ own words in this root. The heading of the root is:

The sixth root is that when a commandment contains both a positive commandment and a negative prohibition, the positive element should be counted among the positive commandments and the negative element among the negative commandments.

Already from the heading we can see that there are two innovations here:

That both commandments are counted.
That the prohibition is counted among the negative commandments and the positive commandment among the positive commandments.

The second innovation, too, is not self-evident, as we shall see below.

Know that one and the same matter may contain both a positive commandment and a negative prohibition in one of three ways:

One possibility is that a certain act is prohibited by a negative commandment, and one who violates it thereby also violates a positive commandment—for example, Shabbat, festivals, and the sabbatical year: doing labor on them is prohibited, while resting on them is a positive commandment, as will be explained. Likewise, fasting on Yom Kippur is a positive commandment, and eating on it is a negative prohibition.

Another possibility is a prohibition preceded by a positive commandment, as in the case of a rapist and one who slanders his wife, regarding whom Scripture says, “She shall be his wife”—and that is a positive commandment—and afterward it says, “He may not send her away all his days,” and that is a negative prohibition.

A third possibility is where a prohibition comes first and is then transformed into a positive commandment, as in the verse, “You shall not take the mother with the young,” followed afterward by, “You shall surely send away the mother.”

Up to this point Maimonides has divided cases of overlap between a positive commandment and a prohibition into three different types. Below we shall examine the significance of this division. He now formulates the principle itself:

Each of these types should be counted such that its positive element is included among the positive commandments and its negative element among the negative commandments. For the Sages explicitly said regarding each of them that they are both a positive commandment and a negative prohibition. And many times they say “the positive element in it” and “the prohibition in it.” It is clear that the matter of command differs from the matter of warning, and they are two distinct matters: He commanded one thing and warned against another. No one has erred in this root.

The proof he brings from the language of the Sages is itself problematic, since he assumes that when the Sages say “the positive element in it” or “the prohibition in it,” they mean that they are to be counted separately. But that assumption is problematic. For example, in the previous essay we saw that in the ninth root Maimonides himself treats the rabbinic expression “to violate two prohibitions by means of it” as language intended to express severity, but certainly not the existence of two actual prohibitions in the enumeration of commandments. Nahmanides remarks in several places in his glosses to the roots that the Sages were not engaged in the enumeration of the commandments at all (see his glosses to the eleventh root and elsewhere).

The concluding sentence as well—according to which no one disputed this root—seems problematic, for as we shall see, there are indeed those who dispute Maimonides here. His assertion that no one erred in this root apparently indicates that he did not know of them.²

The three types of duplication

Maimonides opens his discussion of this root by pointing to three types of combination of a positive commandment and a prohibition to which this principle applies. In all three cases, one might have understood that only one of the two commandments should be counted, and Maimonides innovates that both must be counted. These are the three types he presents:

A prohibition and a positive commandment concerning one and the same act—that is, having overlapping content. For example, in the labors forbidden on Shabbat and festivals, anyone who performs one of them violates a prohibition (“You shall do no labor”) and also nullifies the positive commandment of resting on Shabbat; and anyone who refrains from doing them fulfills a positive commandment and also avoids violating the prohibition. There are other examples of this double combination of prohibition and positive commandment, some of which Maimonides mentions: the parapet, obedience to the Sages, remembering Amalek, affliction on Yom Kippur, and more.
The second type is a prohibition preceded by a positive commandment (see Babylonian Talmud, Makkot 14b-15a). For example, a rapist and one who falsely slanders his wife are obligated to marry the woman, and that is a positive commandment (“She shall be his wife”). After that arises the prohibition against divorcing her (“He may not send her away”). Thus the prohibition becomes operative and relevant only after fulfillment of the positive commandment, and not simultaneously as in the first type.
The third type is a prohibition transformed into a positive commandment. For example, one who takes the mother bird together with the young violates the prohibition (“You shall not take the mother with the young”), and by doing so becomes obligated in the commandment of sending away the mother (“You shall surely send away the mother”) in order to repair the prohibition. This duplication differs from the previous type in that here the prohibition comes first and not the positive commandment. But there is another difference as well: here the positive commandment repairs the prohibition, whereas in the case of a prohibition preceded by a positive commandment, the prohibition may preserve the positive commandment, but it certainly does not repair it.

In all three cases there is a conjunction of a positive commandment and a prohibition concerning one subject. The first type concerns the simultaneous conjunction of a prohibition and a positive commandment with respect to a single act. The second concerns a conjunction in which the positive commandment appears before the prohibition. The third concerns a conjunction in which the prohibition appears before the positive commandment. In the latter two types there is no overlap in the content of the two commandments. Maimonides teaches that in all three kinds of case, each of the two commandments must be included separately in the enumeration of the commandments: the prohibition among the negative commandments, and the positive commandment among the positive commandments.

Maimonides’ proof is that the Sages explicitly said regarding each of these that it is both a positive commandment and a negative prohibition. Likewise, the fact that the Sages very often³ used the expressions “the positive element in it” and “the prohibition in it” proves that there is indeed both a positive commandment and a prohibition here.

Is a prohibition-plus-positive-commandment duplication?

Maimonides continues and justifies his position with what is, in his view, a clear line of reasoning:

It is clear that the matter of command differs from the matter of warning, and the two are two distinct matters: He commanded one and warned against the other.

Maimonides writes here that command is something different from warning, and therefore they must be counted as two commandments. Maimonides’ intention is apparently to fend off the obvious question raised by comparison with what he wrote in the ninth root. There Maimonides determines that two prohibitions or two positive commandments with identical content are not to be counted separately. The enumeration of the commandments deals only with the acts commanded or prohibited, not with the scriptural warnings or commands themselves. If so, the question immediately arises: why does Maimonides here count a prohibition and a positive commandment that have the same content? For example, the prohibition against doing labor on Shabbat and the positive commandment not to do labor on Shabbat ought to be counted as one commandment, since we count acts and not the formulations of command. Below we shall discuss this question in detail. For now, we merely wish to point out that Maimonides himself addresses the question and answers that there is an essential difference between a prohibition and a positive commandment. In his view, then, this is not duplication at all.

One might have suggested that Maimonides counts both commandments in these cases only when there is some practical legal difference between them—that is, only if their contents are not really fully overlapping (see what is written on this root in Pekudei Yesharim). In light of what we have said above, it is clear that this is not Maimonides’ intention. First, he speaks about all cases in which there is such duplication, and therefore also about situations in which the content is overlapping. Second, it is clear that he is not relying on some incidental legal difference, for if that were his point, he would only have had to say that they should be counted as two commandments because of their differences—something that would also have been true of two positive commandments or two prohibitions. In that case there would have been no reason to dedicate a special root to the conjunction of a prohibition and a positive commandment, separately from the ninth root. Third, it is clear that the reason he gives concerns the essential difference between a positive commandment and a prohibition, not some accidental difference between one pair of commandments and another.

What emerges from all this is that Maimonides is speaking here of a conjunction of a prohibition and a positive commandment with overlapping content, and even in such a case he argues that they must be counted as two separate commandments—by virtue of being a prohibition and a positive commandment, and not because of some difference or other in the scope of their legal application. The very fact that one is a prohibition and the other a positive commandment shows that this is not really duplication. Below we shall explain this more fully.

The view of Saadia Gaon and Sefer Mitzvot Katan

As noted, Nahmanides in his glosses does not dispute anything stated in this root (his comments regarding a prohibition inferred from a positive commandment will be discussed below). The one who most likely does dispute this root is Saadia Gaon. Rabbi Yerucham Fishel Perla, in his introduction to Saadia Gaon’s Sefer HaMitzvot, in his comments on this root (and also on the fourth root), explains at length that all the medieval authorities who followed Maimonides and Bahag agreed with this root, but Saadia Gaon’s view is that the above conjunctions should not be counted as two commandments. Saadia Gaon always counts only one of them, choosing the one that more fully reflects the content of the commandment. In his words:

But our master’s method in all this is very far from the method of all the other early authorities. The whole principle of this root before us was entirely unknown to him, and he did not accept it at all. In every commandment that contains both a prohibition and a positive commandment, so long as neither contains some additional new element not included in the other, they are not both counted, but only as one commandment. And whichever of the two expresses the content of the commandment more clearly—that alone is counted in the enumeration of the commandments. If the commandment is expressed more clearly in the prohibition than in the positive commandment, then the prohibition alone is counted among the negative commandments, while the positive commandment is not counted at all. And if the commandment is expressed more clearly in the positive commandment, then only the positive commandment is counted among the positive commandments, while the prohibition is not counted at all. But when one of them includes some new matter that is not included in the other, then only the one that includes more is to be counted… Yet whenever the entire content of the commandment is equally included both in the prohibition and in the positive commandment, and there is no difference between them at all except that one is a positive commandment and one a prohibition, they are to be counted only as one commandment—as Maimonides himself established in the ninth root…

First, Perla restricts the discussion to cases in which the domain of application of the prohibition and the positive commandment is the same—that is, the scope of the two commandments is overlapping, as we explained above. Second, he states that Saadia Gaon disputes Maimonides on this fundamental point and counts only one of the two commandments. Third, he states that the Torah repeated itself only in order to express the severity of the prohibition, not in order to impose an additional prohibition—as we saw in the fourth root in Maimonides’ treatment of general commands. Fourth, he lays down the criterion for choosing which of the two commandments should be counted in the enumeration—whether the positive commandment or the prohibition—namely, the one in which the content of the commandment is “more clearly expressed.”

Later in his discussion (see the passage quoted in the next subsection), Perla notes that Semak also agrees with Saadia Gaon’s view, and likewise does not count overlapping prohibitions and positive commandments as two separate commandments.

It should be noted that Perla’s claim is highly problematic, since Saadia Gaon explicitly counts both a prohibition and a positive commandment regarding rest on Shabbat. See Perla’s own commentary there, on positive commandment 34, where he presses the text to fit his approach.⁴ Below we shall assume Perla’s interpretation as representing Saadia Gaon’s own view, but the matter still requires explanation.

Perla’s arguments

At the end of the above quotation from Perla we already began to see the roots of his argument in favor of Saadia Gaon and against Maimonides. This argument is conducted on two levels:

First, he asks: why should two commandments with identical content be counted as two separate commandments? This is especially so in light of Maimonides’ own words in the ninth root. The commandment to remember what Amalek did to us, and the prohibition against forgetting it, have exactly the same content. How is this different from two prohibitions against forgetting, or two commands to remember?⁵
Second, Perla claims that he does not understand Maimonides’ proof. As noted, Maimonides brought proof from the language of the Sages (“the positive element in it,” or “the prohibition in it”), and from their explicit statement that every such case contains both a positive commandment and a prohibition. Perla argues that this proves nothing at all. The dispute is not about whether there are two commands or prohibitions here, but whether they are to be counted as two separate commandments in the enumeration of the commandments. In his view, even in cases of a double prohibition there are indeed two prohibitions. The technical problem is only that the rules of enumeration say that they are not to be counted separately.

Perla brings proof for his second claim from Maimonides himself, in the ninth root. In our previous essay we cited the example discussed in Babylonian Talmud, Bava Metzia 60b, concerning neshekh and tarbit—the two biblical terms for interest. The Gemara states that there is no difference at all between them, and that the reason the Torah prohibited both neshekh and tarbit is only “so that one may violate two prohibitions by means of it.” We saw that according to most of the medieval authorities, when there are two prohibitions one is also lashed for both of them (see, for example, Tosafot to Bava Metzia 61a). Yet Maimonides, in Mishneh Torah, Laws of Creditor and Debtor 4:1, rules in accordance with that Gemara and states that neshekh and tarbit are two biblical prohibitions. By contrast, one who inspects the enumeration of the commandments will not find both prohibitions listed there. Only one prohibition against taking interest is counted.

We see, then, that even in the case of a double prohibition—which according to the ninth root should not be counted twice in the enumeration of the commandments—Maimonides nevertheless states that there are here two biblical prohibitions, though they are not both counted in the enumeration. If so, Perla is apparently right in arguing against Maimonides’ proof: what difference does it make that the Sages stated that the above conjunctions contain both a positive commandment and a prohibition? No one denies that. The only question is the enumeration of the commandments: whether to count them as two commandments. Therefore those Talmudic expressions provide no proof at all for the principle established by Maimonides.

In any event, we see here that Maimonides’ principle is not a substantive claim but a technical one. Saadia Gaon too agrees that there is a prohibition and a positive commandment here, just as Maimonides agrees that in the case of a double prohibition there are two prohibitions. The question is only technical-exegetical: whether to include them in the enumeration of the commandments as two separate commandments.

Perla summarizes Saadia Gaon’s view as follows:

In any event, it is clear that according to our master the Gaon, the positive commandment and the prohibition in one commandment are certainly one matter and one thing, since the essential content of the commandment is the same in both. Scripture wrote both a positive commandment and a prohibition only to increase the severity of the punishment for one who transgresses it, and that has nothing to do with the enumeration of the commandments at all. In any case, the commandment is only one, for in the enumeration of the commandments we have only the acts we were commanded to do or to refrain from doing. This is unlike all the other enumerators of the commandments, except for Semak, who also, in his enumeration, followed the method of our master the Gaon in this matter, counting the positive commandment and the prohibition within one commandment as only one commandment…

The question now arises in all its force: all the medieval authorities agree with what was said in the ninth root, and yet count a positive commandment and a prohibition separately in cases like these. How are all these authorities to answer Perla’s apparently justified objections? We saw that Maimonides in fact addresses this argument implicitly, and the next chapter will be devoted to explaining his words.

B. Between Positive Commandments and Prohibitions: Initial Phenomenology

Introduction

We have seen that the medieval authorities dispute whether a positive commandment and a prohibition with overlapping content are counted as one commandment (Saadia Gaon and Semak) or as two separate commandments (Maimonides, and also Nahmanides and Bahag). What is the root of this dispute? Is it merely a dispute over a technical rule, or does it conceal differing understandings of positive commandments and prohibitions and their relation to one another? Since there is no clear textual source for this dispute, it is fairly obvious that it rests on differing substantive conceptions. Below we shall see this in greater detail.

Returning to Perla’s account of Saadia Gaon’s position

Let us begin by clarifying Perla’s criterion for selecting which of the two commandments—the positive commandment or the prohibition—should be counted. As noted, he explains that we choose the commandment in which “the content of the commandment is more clearly expressed.” This criterion is not sufficiently clear: how are we to determine where the content of the commandment is more clearly expressed—in the positive commandment or in the prohibition? And in general, what does “more clearly expressed” mean?

It seems that Perla means that we should examine the content of the command and determine whether it is fundamentally positive or negative. For example, the commandment of building a parapet includes a positive commandment, “You shall make a parapet for your roof,” and a prohibition, “You shall not place blood in your house.” The command calls upon us to arise and build a parapet. That is, obedience to both commandments is by means of active commission, and therefore it would seem that their essential content is that of a positive commandment. And indeed, if we look in Saadia Gaon’s Sefer HaMitzvot, we find that the commandment of the parapet is counted as a positive commandment.

It would thus appear that Saadia Gaon understands the essential difference between positive commandments and prohibitions in terms of the physical mode by which one fulfills or violates them. That which is fulfilled by active performance and violated by omission is a positive commandment. And that which is fulfilled by non-performance and violated by active performance is a prohibition.

It seems that on this view the character of the commandment does not depend on the wording the Torah chooses, but on its practical character. According to this conception, rest on Shabbat is a prohibition, since it is fulfilled passively, by refraining from action. Therefore, even if the Torah also states that there is a positive commandment to rest on Shabbat, its real meaning is that of a prohibition; only the wording is misleading. Hence the Shabbat prohibitions will be counted by Saadia Gaon as a prohibition and not as a positive commandment. By the same conception, the prohibition “You shall not place blood in your house” is a concealed positive commandment, since avoiding it requires active performance.

Problems with Saadia Gaon’s and Maimonides’ positions

The conclusion is that according to Saadia Gaon, the difference between positive commandments and prohibitions lies in the physical mode in which one fulfills or violates them—active performance or passive non-action—and not in the Torah’s formulation. This immediately raises the question: if so, what is the significance of those various forms of formulation in the Torah? If the formulation as such has no significance, and only the essential content matters, why does the Torah sometimes formulate positive commandments negatively, and prohibitions positively? Why does the Torah’s formulation sometimes fail to suit the character of the commandment?

Conversely, according to Maimonides and those who follow him, it is difficult to understand what the difference between a positive commandment and a prohibition really is. Is it merely a form of expression with nothing behind it? We have seen that according to this view there are positive commandments fulfilled through passive non-action and violated through active performance (rest on Shabbat, the sabbatical year, and the like), and there are prohibitions violated through passive non-action and avoided through active performance (for example: “You shall not place blood in your house”). What, then, is the essential difference between positive commandments and prohibitions, beyond the Torah’s formulation?

Performative and linguistic conceptions

In the introduction to this part we mentioned Aharon Shemesh’s article, in which he noted two meanings attached to the distinction between positive and negative commandments in rabbinic literature, especially among the tannaim.

His claim is that in earlier literature, including the midrashim of the school of Rabbi Ishmael, the distinction between the two types of commandments is based on the mode of fulfillment of the commandment under discussion. Commandments fulfilled by active performance are positive commandments, and commandments violated by active performance (and fulfilled by passive abstention) are negative commandments. By contrast, in the midrashim of the school of Rabbi Akiva there emerges a linguistic conception that grounds the distinction between the two types of commandments in the formulation of the command in the Torah, and not necessarily in the mode of performance. From this there also arises the possibility of a prohibition that involves no act—that is, a prohibition violated through omission and not by active performance.

As he himself writes, however, this approach did not change the basic law, according to which punishments, as well as offerings, are imposed only for negative prohibitions. Hence the rule was established that no punishment is imposed for a prohibition involving no act—something that in earlier literature would have been called a “positive commandment,” and therefore obviously would not have been punishable.

It should also be noted that according to his claim (see there, in the section “Summary and Conclusions”), these two approaches also imply a different attitude toward repeated biblical commands, which brings us back to our own topic—the ninth and sixth roots. Sources that adopt the performative approach treat such repetitions as superfluous verses (see our previous essay on the ninth root), and count only one commandment. By contrast, those who adopt the linguistic approach treat such repetitions as separate commandments.

In our previous essay we pointed out that these two conceptions also survived into the medieval period: Maimonides maintains that repeated commands constitute one commandment and incur only one set of lashes, and certainly are counted as only one commandment, whereas the overwhelming majority of the other medieval authorities maintain that if the repeated verses contain no special new element, they teach an additional set of lashes—though there is agreement regarding the enumeration of the commandments. There we pointed out that the root of the accepted determination regarding the enumeration of the commandments lies in the fact that commandments have purposes and are not mere blind obedience, as emerges from Maimonides’ discussion of the “weak-minded” in Guide of the Perplexed III:31. If so, Shemesh’s explanation is only a reflection of the dispute over the reasons for the commandments.

In the present essay we shall focus on the first half of his discussion, namely, the distinction between positive commandments and prohibitions itself. We shall see that here too there is a clear connection to the level of the reasons and purposes of the commandments. Yet in this matter the law clearly decided in favor of an approach that underlies the conception based on formulation, and against the purely performative approach.

The inadequacy of the above description

As we wrote in the previous section, it is highly implausible that there is an approach holding that the distinction between positive commandments and prohibitions is nothing more than a matter of formulation. In other words, it is unlikely that this distinction reflects no substantive level whatsoever that differentiates the two kinds of commandment. We must ask ourselves: why does the Torah formulate them differently? If the practical content of the two commandments is the same, why are there cases in which the Torah commands us in an active form, and cases in which it chooses the language of prohibition—”beware,” “lest,” and “do not”?

Moreover, there are various legal rules concerning positive commandments and prohibitions. For example, a positive commandment overrides a prohibition; for a positive commandment one need spend up to one-fifth of one’s wealth, whereas to avoid violating a prohibition one must spend all one’s wealth; human dignity yields before prohibitions but not before positive commandments; and so forth. Are all these rules devoid of substantive basis? Is there no principled difference between a positive commandment and a prohibition from which all these legal consequences derive? It is very difficult to accept that.

Phenomenologically, Shemesh is right to say that there are sources that do not see a consistent difference between prohibitions and positive commandments on the performative plane, and he is probably also right that the primary indication of the distinction lies on the linguistic plane—that is, in the Torah’s formulation. But his conclusion—that there is no difference other than the linguistic one—is entirely unwarranted.⁶

These difficulties seem to lead us toward the second conception, which sees the distinction between prohibition and positive commandment as concerning primarily the practical plane. But this distinction too is problematic, as we saw above. First, it does not fit the actual legal data, at least according to Maimonides and most of the medieval authorities, since in practice it is certainly difficult to deny the existence of prohibitions involving no act. The law recognizes such prohibitions and establishes separate rules concerning them.

Moreover, if the distinction really lies on the practical plane, then again it is not clear why the Torah sometimes uses active wording even for prohibitions, and vice versa. There is something in both levels under discussion—the level of performance and the level of formulation—and especially in the relation between them, that demands deeper and more basic clarification. What is the relation between the form of wording the Torah chooses and the mode of performance of the commandment? Is there no relation at all between them? That seems unlikely. But if there is a relation, why is it not airtight? That is, why are there exceptions? Do these exceptions not undermine the very distinction itself?⁷

Our conclusion is that the linguistic difference is only a phenomenological description of the differing character of these two types of commandments. But, as we noted, it is highly likely that this phenomenology expresses another principled difference, even if not necessarily on the performative plane. Shemesh assumes that if there is no performative difference, then there is no substantive plane on which such a difference can remain, and therefore feels compelled to confine the distinction to the linguistic plane only. But this assumption is incorrect, since there may be another substantive plane, non-performative, that distinguishes between these two types of commandments. Below we shall propose such a plane.

In any event, his article presents two approaches: the first locates the distinction on the performative plane; the second locates it on another plane, expressed linguistically. Both approaches are connected to the medieval dispute we presented above. They clarify why that dispute is not merely technical, but touches conceptions of the nature of the various commandments. The questions we raised here also underlie that dispute, and especially the objections raised by Perla against the approach of Maimonides and most of the medieval authorities.

It is now clear that we need a substantive definition that distinguishes between a prohibition and a positive commandment, independently of the form of wording and the mode of performance. Once we find such a definition, we can return and ask what the non-airtight relation is between it and the Torah’s various modes of formulation and the different modes of performance of the commandments.

In fact, what is missing for us is the logic that underlies the linguistic considerations. As is accepted also in the analysis of ordinary languages, it is impossible to analyze language—through its syntax, that is, its formal structure—without recourse to the logic that underlies it and to the meanings it expresses, that is, its semantics. What was done in the distinction between the linguistic plane and the performative plane is essentially a linguistic diagnosis that deals with syntax while ignoring semantics.⁸

A substantive distinction between prohibition and positive commandment: Maimonides and his school

The answer we propose to the basic dilemma arises naturally if we view the commandments from a slightly different angle: a positive commandment is a verse that points to a state desirable to God, that is, a state the Torah commands us to attain. The Torah commands us to build a parapet because it wants the house to have a parapet. By contrast, a prohibition points to a state undesirable to God, that is, a state from which the Torah commands us to keep away. For example, the Torah commands us not to eat creeping creatures because it does not want us to be in a state in which we are eating creeping creatures.

The positive commandment to erect a parapet means that the Torah wants the roof of a person’s house to be protected by a parapet. In this definition, the Torah does not directly condemn the state in which the roof lacks a parapet. The Torah demands that the roof have a parapet, and the problem with the absence of a parapet follows of itself. In such a case, active performance is usually required in order to reach that desired state, one in which we are not presently situated. Therefore a positive commandment usually requires active performance. But this is not always so. For example, the commandment to rest on Shabbat is also a positive commandment, yet it does not require active performance, but specifically refraining from action. Its definition as a positive commandment does not stem from the fact that it requires action, but from the fact that the Torah points to rest as a state desirable in its eyes, rather than defining non-rest as an undesirable state.

By contrast, the prohibition against doing labor on Shabbat is a classic negative prohibition, because the Torah is not commanding rest but prohibiting a state of doing labor. It points to the undesirable state, not the desirable one. From the standpoint of the prohibition, there is no independent interest in our resting on Shabbat; the interest is only that we not be in a state of doing labor. By contrast, from the standpoint of the positive commandment there is indeed interest in our being in a state of rest, and the prohibition against doing labor is only indirect, emerging from that.

Therefore a prohibition usually does not require action, because it demands avoidance of an undesirable state and not arrival at a desirable one. But this too is not always the case. For example, the prohibition “You shall not place blood in your house” requires me to arise and make a parapet—that is, it requires active performance—yet it is a prohibition because the Torah is pointing here to the state of a roof without a parapet as an undesirable state, rather than defining the making of the parapet as a desirable state.

The question of the Torah’s intention—whether it is requiring a desirable state or preventing an undesirable one—is learned from the wording of the command. Positive wording indicates a demand to attain a desirable state, whereas negative wording indicates a demand to prevent deterioration into a negative state. Therefore specifically the wording of the Torah is the precise criterion for defining a commandment as a positive commandment or as a prohibition, and not the mode of performance. But that does not mean that the wording itself is the cause of the definition. The wording reveals to me what the Torah expects of me in this commandment. It shows me whether the Torah is pointing to a desirable state or to an undesirable one, and from that it becomes clear whether the commandment here is a positive commandment or a prohibition.

A substantive distinction between prohibition and positive commandment: Saadia Gaon and Semak

At first glance it seems that Saadia Gaon disagrees with this conception. As we saw above, according to Saadia Gaon the Torah’s formulation has no significance with respect to the essence of the command, and what determines things is the commandment in which the matter is “more clearly expressed.” Above we suggested that what he means is that the type of commandment depends on the mode in which it is fulfilled or violated—active performance or passive non-action. If so, the Torah’s formulation still remains unexplained in his view: why does the Torah choose active or passive wording irrespective of the essential content of the commandment?

It therefore seems that Saadia Gaon, too, must agree that the nature of the commandment depends on the Torah’s formulation, and not necessarily on its mode of performance. Indeed, closer inspection shows that our earlier assumption—that Saadia Gaon makes everything depend on the physical mode of violating or fulfilling the commandment—is incorrect. For example, with respect to the obligation of affliction on Yom Kippur, Saadia Gaon counts only a positive commandment and not a prohibition, even though in this case the obligation is passive—not to eat, not to do labor—exactly as on Shabbat. Perla passes over this point without comment, addressing only the duplication with the prohibition, and not the passive character of this positive commandment.⁹ True, here too Saadia Gaon counts only one commandment and not two, as Maimonides does, but the criterion for deciding which of the two commandments to count is not the performative criterion.

It should be noted that Semak apparently does preserve the performative criterion, for he counts on Shabbat only one commandment, namely a prohibition. Likewise, regarding affliction on Yom Kippur he counts only a prohibition. But Saadia Gaon sometimes counts a passive positive commandment, and so it is clear that he does not accept the performative criterion. We thus learn that although Saadia Gaon and Semak both disagree with Maimonides regarding the duplication of prohibition and positive commandment, Saadia Gaon agrees with him that the distinction between a prohibition and a positive commandment is not necessarily on the performative plane, whereas Semak apparently upholds a performative distinction.

Saadia Gaon’s criterion

What, then, is Saadia Gaon’s criterion? We saw that Perla formulates it as follows:

Whichever of the two expresses the content of the commandment more clearly—that alone is counted in the enumeration of the commandments. If the commandment is expressed more clearly in the prohibition than in the positive commandment, then the prohibition alone is counted among the negative commandments, while the positive commandment is not counted at all. And if the commandment is expressed more clearly in the positive commandment, then only the positive commandment is counted among the positive commandments, while the prohibition is not counted at all.

Above we assumed that “the content of the commandment is more clearly expressed” meant the mode of action, but that does not appear here. He explains only that we count the commandment according to its primary contents. In our present formulation, we may say that we count the commandment according to the goal it is meant to achieve—attaining a desirable state or fleeing an undesirable state—exactly as Maimonides maintains. What, then, is the dispute between Maimonides and Saadia Gaon? The dispute exists only in cases where the Torah commands us by means of both a prohibition and a positive commandment that have the same practical content.

Maimonides sees this as two different commands, one defining state A as positive and the other defining state B—the opposite of A—as negative. For example, the commandment to rest on Shabbat defines the state of rest as a positive state, whereas the prohibition against doing labor defines the state in which a Jew does labor as a negative state. In such a case there are here two different commandments, since their contents differ from one another. Therefore, according to Maimonides, they are counted separately.

By contrast, Saadia Gaon holds that even in such a case there is only one commandment, and the second formulation was added merely for reinforcement, just as we saw in the fourth and ninth roots even according to Maimonides. In his view, it is implausible that two commandments dealing with the same subject should command different things. If the Torah commands us to rest on Shabbat and also forbids us to do labor on Shabbat, then clearly there is only one basic point: either the Torah is pointing to rest as a positive state, or it is pointing to labor as negative. It is unlikely that it is doing both simultaneously.

How do we identify which of the two is the basic commandment? According to the essential content of the commandment. For example, Saadia Gaon sees, based on logic and various exegetical considerations, that on Yom Kippur the primary matter is apparently affliction. That is, the Torah does not fundamentally object to our eating or drinking; the main problem is that if we eat, we are not afflicting ourselves. Thus the essence of the Yom Kippur commandment is being in a positive state and not fleeing a negative state.¹⁰ If so, why was an additional prohibition written regarding Yom Kippur? It may have been done in order to reinforce the positive commandment, and perhaps even to enable punishment. But the essence of the commandment is the positive commandment and not the prohibition.

As we saw in the essay on the ninth root, according to most of the medieval authorities the Torah’s repetition of a commandment is meant to enable a doubling of punishment for its violation. That is, in their view the reinforcement of a prohibition must always find expression on the plane of punishment. Maimonides does not accept that there, because in his view the reinforcement is on the declarative plane—the repetition indicates that the offense in question is severe, and is not necessarily intended to deter potential sinners. Here too Maimonides continues to hold that repetition is not necessarily intended to impose punishment, but rather expresses a different desire of the Torah, and therefore is counted as a separate commandment.

The conclusion is that Saadia Gaon agrees with Maimonides regarding the understanding of the basic distinction between positive commandments and prohibitions. Both agree that the basic distinction stems from the Torah’s will and from the purpose of the commandment, and that the differences in formulation are only expressions of that distinction. Both agree that the practical expression, namely the mode of performance, is not necessarily connected to the character of the commandment, even though there is a correlation between them. The dispute concerns only how to treat the duplication of a prohibition and a positive commandment: whether it can be interpreted as two different divine desires that coexist side by side, as Maimonides holds, or whether we must decide which of the two is the real desire and which merely serves to reinforce the other, as Saadia Gaon maintains.

In the next chapter we shall sharpen the distinction between positive commandments and prohibitions further and give it more concrete content, also on the legal plane.

C. Between Positive Commandments and Prohibitions: A Chapter in the Logic of Norms¹¹

A logical problem

Until now we have dealt with the substantive distinction between positive commandments and prohibitions. Our claim was that a positive commandment points to a desirable state, whereas a negative prohibition points to an undesirable state.

But this distinction gives rise to a strong sense of a logical problem. Why is the statement that it is forbidden for a roof to be without a parapet different from the statement that the roof ought to have a parapet? Apparently a double negation is logically equivalent to a positive statement. The command “It is forbidden to be without a parapet” seems logically equivalent to the command “The roof must have a parapet.” If so, it again becomes unclear whether the distinction we proposed between positive commandments and prohibitions has any real basis. Put differently: overlap between a prohibition and a positive commandment is also overlap, just as when there is overlap between two prohibitions or two positive commandments.

Stick and carrot

But this logical treatment is incorrect. To illustrate the difference between the definition of a positive commandment and a prohibition, let us define them as “stick” and “carrot.” When a person is sitting and not making a parapet for his dangerous roof, we may motivate him in two ways. We can tell him that we expect him to build a parapet, and that is the “carrot” approach. We explain to him that that state—the one in which he does not presently stand—is a better state, and thereby encourage him to attain it. Alternatively, we can tell him that his remaining as he is, without making a parapet, is an unacceptable state in our eyes, and therefore he must leave that state—namely, arise and make a parapet. That is the “stick” approach. We strike him with the stick that shows that his present state is a bad one, and thereby cause him to rise from his chair and act—that is, to arrive at another state.

From idea to implementation

There is a difference between these two formulations, and it lies on the plane of the command’s substantive content, or its purpose. The question is what the Torah really wants: does it want the roof to have a parapet, or does it not want it to be without a parapet? Are these two formulations not equivalent? In the latter formulation, our intuition suggests that they are not. Is there a difference between them in implementation? On the practical plane, both commands seem to make the same demand: to arise and make a parapet. Hence it seems that there is no practical difference between them. This is why such a prohibition is, in essence, a prohibition involving no act. But we shall now see that the difference between them also finds expression on the practical plane.

From idea to implementation: a practical difference in result

One might have tried to adduce legal consequences simply from the distinction between a positive commandment and a prohibition. For example, if there were a positive commandment to make a parapet and I did not fulfill it, then there would be no punishment for me, for there is no punishment for neglect of a positive commandment. By contrast, if there were a prohibition against the state of being without a parapet, then if I failed to erect a parapet I would be liable to lashes. Similarly, one might have cited consequences regarding the overriding of the commandment by human dignity—since a positive commandment yields before it whereas a prohibition does not—and so forth.

But this is not the sort of difference we are looking for here, since those are consequences of the difference, and not the difference itself. If there were really no essential difference between a positive commandment and a prohibition, but only legal consequences arising from the wording chosen by the Torah, we would be returning to the linguistic-formulational approach described above, with all its problems. These legal consequences are supposed to reflect a difference that exists between the commandments, but they are not the root of the difference itself. Because there is some difference between a prohibition and a positive commandment, legal consequences arise—these and others. But if we found no difference beyond the legal consequences themselves, then we would also have to challenge those consequences: why indeed is there no punishment for neglect of a positive commandment? And why does human dignity not override a prohibition? As we have already made clear, we are looking for the root of these legal differences. There must be something different between a positive commandment and a prohibition, simply by virtue of their being what they are, from which these differences follow.

In the next subsection we shall present one distinction that sharpens the principled differentiation, and then return to explain from it the legal differences presented here.

From idea to implementation: situations of compulsion and doubt

Let us give one example that sharpens the principled difference. Suppose a person was prevented by circumstances beyond his control from making a parapet for his roof. If there were here a positive commandment to erect a parapet, he certainly did not fulfill it. True, he would not be punished, but that would also be the case even if he had not been compelled, since no punishments are imposed for neglect of a positive commandment. By contrast, if this were only a prohibition, then he certainly did not violate it, since he was compelled. The basis of the difference is the principle that compulsion does not count as if one had acted. A state of compulsion can render an action that was done as though it had not been done. But compulsion cannot render an action that was not done as though it had been done.¹²

Here, then, we have a practical difference between two commands whose content is apparently overlapping. If the duplication were between two positive commandments or two prohibitions, there would be no room for such a distinction. The distinction here does not stem from a substantive difference in the content of the commands, but from the fact that one is a positive commandment and the other is a prohibition. This is a sufficient basis for Maimonides’ determination that when the duplication is between a positive commandment and a prohibition, both should be counted. Here we see that there is also a practical consequence to the addition of the positive commandment. Below we shall see further, more indirect consequences.

Another example is a situation in which a person does not have a house at all. Is there any value in buying a house in order to become obligated in the commandment to erect a parapet?¹³ If there were only a prohibition, there would be no value in that at all. But if this is a positive commandment, there is certainly room to see value in buying a house in order to build a parapet for it and thereby merit the commandment. This is so even if we regard the commandment of the parapet as a conditional commandment—that is, one imposed only on someone who has a house.¹⁴ Still, if he buys a house, a positive commandment is credited to him. He has fulfilled the divine will, and not merely avoided violating it.

Alternatively, suppose we have property whose status is unclear: is it a house or not? A doubt may arise whether we are required to erect a parapet for it. If there were here only a positive commandment, then the burden of proof would lie on the one who claims that I am obligated—namely, that this object counts as a house for this purpose. In order to impose an obligation, some argument is needed. The default is that there is no obligation until it is proven. But if there were only a prohibition here, then out of doubt I would have to be stringent and make a parapet. Of course, even if I did not make one, no punishment could be imposed on me, since punishment too requires proof. But the obligation to erect the parapet would still exist even in a case of doubt.

Clarification concerning the nature of negation: logical relations among norms

How is the existence of such a difference compatible with the logical overlap we saw above between a prohibition and a positive commandment? Apparently the prohibition is nothing more than a double negation of the positive commandment, and therefore there should be no difference between them.¹⁵ We shall try to explain this here, at least in outline.

Consider the following claim—that is, a positive commandment:

(A) “I command you to lay tefillin.”

What is the logical negation of this claim? At first glance, it would seem to be the following claim—that is, a prohibition:

(B) “I command you to be without tefillin.”

But further reflection shows that (B) is not the precise logical negation of (A). The more exact logical negation is:

What kind of command is this?

In mathematical terminology borrowed from operator theory, we may say that negation and command are not commutative operators. Applying negation before a statement of command is not equivalent to applying command to the negation of the original statement. One may not interchange the position, or order, of the command and the negation.

Incidentally, this is not unique to commands. Even in a simple factual statement, negation is not so simple (see the discussion in Two Wagons and a Hot-Air Balloon, Gate 12). For example, the negation of the statement:

“Moses is wearing tefillin”

is not the statement:

“Moses is not wearing tefillin.”

The more exact negation is:

“It is not true that Moses is wearing tefillin.”

The distinction between these two formulations of negation becomes clear if we consider a situation in which there is no person named Moses in the world at all. In that case statement 1 is not true, but statement 2 is not true either. If there is a state of affairs in which two statements are both untrue together—or both true together—then one cannot be the negation of the other. In other words, between the two extreme states, which we may denote 1 and -1, there stands an intermediate state 0 separating them. The negation of 1 is 0 and not -1, or perhaps the combination of both—that is, the set of all states that are not 1.

To what may this be compared? Suppose we want to prove the claim that the present king of France is bald, and we do so by negation: we look at the set of people with hair and discover that none of them is the king of France. Does that really prove our claim? The answer is no. At present there is no king of France at all, and therefore clearly we shall not find him among the bald either. It follows that bald is not the exact negation of hairy.

The liar paradox is another example of a similar fallacy, and we can illustrate our point by means of it. When we consider the following sentence uttered by a resident of Crete—”All Cretans are liars”—it is customary to think that this is a paradox because of the infinite loop of its truth values, but that is not correct. The negation of the sentence “All Cretans are liars” (state 1) is not “All Cretans are truth-tellers” (state -1), but rather “It is not true that all Cretans are liars” (state 0). That negation includes two possibilities: either they are all truth-tellers, or only some of them are truth-tellers—in another formulation, there exists at least one who tells the truth. State 0 stands between the two opposed states, and it is this that prevents us from treating state -1 as the negation of state 1. Below we shall see the significance of this discussion.

Let us now return to the question of normative negation. The last formulation, namely formulation (C), allows for another intermediate state (state 0) between the first two formulations, and therefore it differs from formulation (B). For example, when someone has no hands on which to place tefillin—or has no house, in the case of the commandment of the parapet—or in situations of compulsion, or in situations of doubt. In all three cases there is a difference between formulations (B) and (C), which shows that they are not logically equivalent. We pointed this out in the body of our discussion above, in the previous subsection.

We can now see that the positive commandment

I. “I command you to lay tefillin”

is not equivalent to the prohibition

II. “I forbid you to be without tefillin.”

The reason is that this is not a double negation, and therefore we are not returning to the original formulation. If we define (B) as normative negation—turning a positive commandment into a prohibition—and (3) as logical negation, then the transition from I to II contains one logical negation and one normative negation, and therefore they do not cancel one another out and do not bring us back to the original formulation. Hence instruction I differs from instruction II.

It should be noted that formulation II is neither a positive commandment nor a prohibition. There is no commandment here at all, because the sentence contains no normative instruction, but merely points to a fact. Maimonides calls such a formulation “negation of obligation” (see also positive commandment 129 for an interesting example related to our logical discussion here), and it is the subject of discussion in the eighth root.

We saw another example of such a treatment in our essay on the third root, where we pointed out that there are verses that appear to be commandments but are in fact only factual statements. The root there dealt with commandments given for their own time, such as placing manna in a jar, which are apparently normative instructions. But since the addressee of the instruction is not every reader at every time, as in eternal commandments, but Moses at that specific moment, we must add before the normative instruction two more words: “At that time God said to Moses: Take some manna and place it…” This prefatory addition removes the sentence with its normative character from the normative sphere and turns it into a factual statement—historical, in that case. It is a description of a fact, namely that one person gave an instruction to another. That itself is not a sentence instructing us regarding some norm, but a sentence stating a fact. By the same token, the sentence “It is not true that there is such-and-such a commandment” is not a normative sentence but a factual statement.

It should be noted that in this section we have answered the basic question addressed by the essay: why assume that there is any difference between a positive commandment and a prohibition? If every positive commandment can be reformulated as a prohibition and vice versa, perhaps there is in fact no difference between them beyond the linguistic plane. The answer is that a positive commandment cannot be reformulated as a double negation of a prohibition, nor the reverse.

The conclusion is that there is no logical way to move from the formulation of a positive commandment to the formulation of a prohibition in a manner that is truly equivalent in content, and vice versa. The worlds of prohibition and positive commandment are two different worlds, which do not “speak” to one another and cannot be translated into one another. There is no logical operation that can transfer us from the formulation of a positive commandment to that of a prohibition; that is, there is no purely logical route from one to the other. It follows that these are indeed two commands of differing character, since it is impossible to reduce all commandments solely to positive commandments or solely to prohibitions.¹⁶

In another formulation, one may say that between the world of positive commandments and the world of prohibitions there stands a “wall,” namely the neutral states (state 0). As we saw, a situation in which a person has no house is a state that stands between the positive commandment and the prohibition, and it prevents us from translating one into the other. Negation does not succeed in carrying us across it. The various practical-difference cases we surveyed above are like a wall standing between these worlds.

This “wall” may also be seen in another, perhaps simpler, way. What is the opposite of “one is obligated to do something”—that is, commandment? The answer is: “one is not obligated to do it.” The state of “not obligated” breaks down into two sub-states included within it: “permitted” and “forbidden.” And what is the opposite of “it is forbidden to do something”? Here too the answer is “there is no prohibition against doing it,” which breaks down into either permitted or commanded. Thus forbidden and commanded are opposites of the 1/−1 type, and between them stands the state of permission. But the true opposite—the annihilating negation—of obligation is that there is no obligation, namely either permitted or forbidden. Here too we see the same wall separating commandment from prohibition, namely the state of permission. As we saw, the neutral state is one that does not belong to the normative sphere. Its principal meaning is that there is no norm here, neither positive nor negative. The negation of a norm—whether positive commandment or prohibition—takes us outside the normative sphere. It is not itself a norm.

We can now turn to the words of Nahmanides, who gives more concrete content to this distinction between the worlds of positive commandments and prohibitions.

Nahmanides on the portion Yitro: the relation between the basic and the elevated

The relation between positive commandments and prohibitions in Jewish law appears puzzling. On the one hand, a positive commandment overrides a prohibition, meaning that the positive commandment is more important. On the other hand, the prohibition is more severe in several respects: one must spend all his wealth in order not to violate it, unlike a positive commandment, for which one spends only up to one-fifth; a prohibition carries punishment whereas a positive commandment does not; and so forth.

Let us now bring a passage from Nahmanides’ commentary to the Ten Commandments, on the command to observe Shabbat, where he touches on the relation between positive commandments and prohibitions and also clarifies this point:

It is also true that the quality of “remember” is hinted at in a positive commandment, and it proceeds from the quality of love and belongs to the quality of mercy. For one who performs his master’s commandments is beloved by him, and his master has mercy on him. The quality of “observe” is in a negative prohibition, and it belongs to the quality of judgment and proceeds from the quality of fear.

For one who guards himself from doing what is evil in his master’s eyes fears him. Therefore a positive commandment is greater than a negative prohibition, just as love is greater than fear. For one who fulfills and does his master’s will with his body and his wealth is greater than one who merely guards himself from doing what is evil in his eyes. Therefore they said that a positive commandment comes and overrides a negative prohibition.

Up to this point Nahmanides is saying exactly what we have seen so far: a positive commandment is fulfillment of the divine will, whereas fulfillment of a prohibition is refraining from doing what is evil in His eyes. Again, the distinction is not between action and inaction on the physical plane, but between the divine will and the states deemed fitting in His eyes.

Nahmanides also gives interesting content to the claim we encountered above, that the world of positive commandments and the world of prohibitions are different worlds that do not speak to one another and cannot be reduced to one another. Here we see that the world of positive commandments is connected to the concepts of love, whereas the world of prohibitions is connected to the concepts of fear. These are two different conceptual worlds, and therefore there is no possibility of translating one into the other. He gives concrete content to those disconnected worlds we defined above.

Immediately afterward Nahmanides adds:

For this reason the punishment for negative prohibitions is greater, and legal penalties are administered for them, such as lashes and death. But no such legal penalty is administered for positive commandments at all, except in the case of open rebels—for example: “I will not make a lulav, I will not make fringes, I will not make a sukkah”—for the Sanhedrin would beat him until he accepted upon himself to perform it, or until his soul departed.

Nahmanides says that just as love is greater than fear, so positive commandments are greater than prohibitions. From this he concludes that a positive commandment overrides a prohibition. On the other hand, he adds, the punishment for violating a prohibition is greater than the punishment for neglecting a positive commandment—in fact, there is no court-imposed punishment at all for neglect of a positive commandment.

This last passage is not clear. If the positive commandment is greater than the prohibition, why is there punishment for a prohibition but not for a positive commandment? The author of Sdei Chemed, in the entry “A positive commandment overrides a negative prohibition,” cites these words of Nahmanides and explains that his intention was to say that fulfillment of a positive commandment is greater than refraining from violating a prohibition; but conversely the relation is reversed: violating a prohibition is far worse than neglecting a positive commandment.

The explanation is that although fulfillment of a positive commandment is service of God on a higher plane than refraining from violating a prohibition, precisely for that reason failure to fulfill the positive commandment is a lighter offense. At most the person is not standing on a high level, but the claim against him is weaker than in the case of violating a prohibition, which is contempt for something more basic, and is therefore more severe. By contrast, when a person fulfills the positive commandment, he ascends to a higher level, and that is of course of greater value than merely avoiding failure, which is what exists in relation to a prohibition.

In our essay on the weekly portion Vayetze, in 2007, we saw, in a more general formulation, that a positive commandment is a higher and more important form of divine service, whereas refraining from a prohibition is more basic. This is a relation between the basic and the elevated. Violating what is basic is more severe precisely because it is a basic demand, but fulfillment of what is elevated is more important than fulfillment of what is merely basic.¹⁷

A note from the author of the Tanya in Igeret HaTeshuvah

The author of the Tanya, in chapter 1 of Igeret HaTeshuvah, also addresses this question and writes as follows:

It is taught at the end of tractate Yoma that there are three categories of atonement, and repentance accompanies each one. If one transgressed a positive commandment and repented, he does not move from there until he is forgiven. If one transgressed a negative prohibition and repented, repentance suspends the punishment and Yom Kippur atones.

That is to say: although with respect to the fulfillment of a positive commandment, the positive commandment is greater because it overrides the negative prohibition, this is because through fulfilling a positive commandment one draws light and effluence into the upper worlds from the radiance of the Infinite Light, blessed be He—as explained in the Zohar, that the 248 positive commandments are the 248 limbs of the King—and also into one’s divine soul, as we say, “Who sanctified us with His commandments.” But with respect to repentance, although one is forgiven the punishment for rebelling against His kingship and not performing the King’s command, the light is nevertheless absent, and so the Sages said on the verse “What is crooked cannot be made straight”—this refers to one who neglected the evening recitation of the Shema, and so on. For even if from now on he is careful to recite the evening and morning Shema forever, his repentance does not help to repair what he neglected once.

By contrast, one who violates a negative prohibition, through the evil attaching itself to his soul, causes a blemish above in his root and source. Therefore there is no atonement for his soul, nor above, until Yom Kippur, as it says, “And he shall atone for the sanctuary from the impurities of the children of Israel and from their transgressions… before the Lord you shall be purified”—specifically before the Lord.

Therefore no leniency, Heaven forbid, should be derived from this regarding positive commandments, especially Torah study. On the contrary, the Sages said that the Holy One, blessed be He, overlooked idolatry and the like, even though they incur excision and court-imposed death, but did not overlook neglect of Torah study.

If one transgressed offenses punishable by excision or court-imposed death, repentance and Yom Kippur suspend, and suffering completes the atonement—that is, it completes the cleansing, in the sense of polishing and washing the soul. For atonement means wiping away, cleansing the filth of sin.

The author of the Tanya argues that although there is no punishment for a positive commandment and there is punishment for a prohibition, the reason is not that the positive commandment is lighter, but the opposite: punishment cannot repair the neglect of a positive commandment, for the absence of light caused by neglect of the positive commandment remains in place. Punishment can atone only for a prohibition, since it acts by cleansing the filth of sin. A sin of prohibition produces a certain spiritual pollution, and punishment cleanses it. But neglect of a positive commandment causes absence of light, and therefore no punishment can repair it. It thus appears that in his view the positive commandment is more serious than the prohibition across the entire front, and not as we saw in Nahmanides above.

The relation to the divine will

We now continue and examine the difference between a positive commandment and a prohibition from another angle. When there is a positive commandment to make a parapet, one who does not make it is not acting directly against the divine will. He is merely not acting with that will, or in accordance with it. He does not rise to a higher level, but this is not transgression in the full sense of the term. In another formulation, this is state 0, which is neither commandment (state 1) nor transgression (state -1). This state stands between them. By contrast, when there is a prohibition against leaving the roof without a parapet, one who sits and does not build a parapet is thereby acting directly against the divine will. Not only does he fail to rise; he also declines—he stands in state -1.

Here we see the other side of the previous coin. Above we distinguished between stick and carrot as characterizing the essence of the command itself. Here we characterize the essence of violating the command: is it direct action against the divine will, or only failure to act in accordance with that will? There is a clear difference between one who does not do what I want and one who does something against what I want.

We again emphasize that this distinction does not overlap with the distinction between active performance and passive non-action. The commandment to rest on Shabbat is a positive commandment fulfilled by refraining from action. And yet rest is active fulfillment of the divine will, and therefore one who does labor on Shabbat is not directly violating the divine will from the standpoint of the positive commandment. There is also, of course, a prohibition against doing labor on Shabbat, and from that standpoint this is indeed direct violation of the divine will. But from the standpoint of the positive commandment, he is not in the positive state, yet neither is he in a state that is negative in and of itself, were it not for the existence of the prohibition.

The two distinctions we brought above—compulsion and doubt—derive from this distinction. Since violating a prohibition is direct action against the divine will, one who does so is punished. By contrast, one who does not act against the divine will, but merely fails to do His will, does not deserve punishment; he stands in state 0, that is, in the neutral state. Of course, he also does not receive reward, for there is nothing for which to reward him; he is not in state 1.

D. Duplication of Prohibition and Positive Commandment: The Kiddushin Passage

Introduction: the connection to the ninth root

Up to this point we have seen the difference between a positive commandment and a prohibition. We may now examine what this means for cases of overlap between a prohibition and a positive commandment. As noted, that is the subject of this root, whose main point was to qualify the principle of the ninth root, which states that repeated commandments with overlapping content are not to be counted.

In the ninth root we saw that a situation in which the Torah repeats the same command several times is problematic. Even according to Maimonides, who allows such a situation, it is only a last resort—when we find no way to expound the additional verse, as the Gemara states in Babylonian Talmud, Pesahim 24b. According to Nahmanides, such a situation simply does not exist, since every repetition comes to add something: either another forty lashes or some legal detail. As we saw, according to Nahmanides there is no room at all for additional repetition in positive commandments, except for the sake of some new legal detail.

What is the situation in the case of duplication between a prohibition and a positive commandment? At first glance, the addition of the prohibition is clear to everyone, since it adds liability to lashes that would not exist if there were only a positive commandment. But the opposite question arises: why does the Torah not suffice with the prohibition and omit the positive commandment? At first glance the positive commandment adds nothing.

The question is especially difficult according to Nahmanides, but even according to Maimonides it is appropriate to ask: why does the Torah not add another prohibition rather than a positive commandment? If it wished to reinforce the original prohibition, it should have added another prohibition. What characterizes the situations in which the Torah chooses to add specifically a positive commandment? How are they different from situations in which the Torah imposes two prohibitions?

In light of what we have said here, the matter becomes very clear. For example, in the context of the parapet, the Torah commands us both with a positive commandment—”You shall make a parapet for your roof”—and with a prohibition—”You shall not place blood in your house.” This is not a mere double command, but an attempt to motivate a person to make a parapet. A person who was commanded only by way of a positive commandment might perhaps permit himself not to do it, for that would not be a direct violation of the divine will. He simply does not wish to be that great a saint, and so he is not careful to fulfill what God commands him. But when there is also a prohibition here, that option no longer exists. Sitting and failing to make a parapet is direct, active action against the divine will—something that such a person may not necessarily want to do. Therefore the Torah added a prohibition alongside the positive commandment.

Conversely, if there were only a prohibition here, a person might think that making the parapet is merely a matter of fleeing a hazard, but has no positive value in itself. The Torah therefore adds a positive commandment as well, in order to tell us that making the parapet is also positive fulfillment of the divine will. Thus the prohibition sharpens the meaning of the transgression—failing to make a parapet is direct offense against the divine will and not merely a failure to fulfill it, that is, a failure to advance—while the positive commandment sharpens the meaning of the mitzvah—one who does it has fulfilled the divine will and risen, and has not merely avoided decline.

The Kiddushin discussion of duplication between a prohibition and a positive commandment

Above we saw Nahmanides’ remarks on the relation between a positive commandment and a prohibition. There is another source in which Nahmanides addresses directly the topic of duplication between a prohibition and a positive commandment, and it too will be well understood in light of what we have said above, and will even support it. In this sugya additional early authorities also appear, and they too touch on this topic, so we shall discuss it in greater detail.

The Gemara in Babylonian Talmud, Kiddushin 34a enumerates those positive commandments that are time-bound and those that are not:

Our Rabbis taught: Which are the positive commandments dependent on time? Sukkah, lulav, shofar, fringes, and tefillin. And which are the positive commandments not dependent on time? Mezuzah, parapet, lost property, and sending away the mother bird.

Tosafot, on the words “parapet,” and other early commentators there, raise the following difficulty:

Parapet, lost property, and sending away the mother bird—Rabbi is puzzled, for in all of these a prohibition is written. In the case of the parapet it is written, “You shall not place blood in your house.” Although we interpret that in Babylonian Talmud, Bava Kamma 15b, as referring to one who raises a dangerous dog or leaves a dangerous ladder—namely, placing danger there actively—it nevertheless also applies to the parapet, for the Sifrei expounds: “You shall make”—this is a positive commandment; “You shall not place blood”—this is a negative prohibition. Likewise, in lost property it is written, “You may not hide yourself,” and in sending away the mother it is written, “You shall not take the mother with the young.” If so, how could women be exempt even if these were time-bound commandments? After all, Scripture equated woman to man regarding all punishments in the Torah.

The difficulty is why parapet is included in the list at all, since this commandment—and several others on the list—also contains a prohibition. Therefore women would be obligated in it even if it were time-dependent.

Among the medieval authorities we find several answers to this question, each reflecting a different conception of the relation between positive commandments and prohibitions. We shall now examine several of them.

Tosafot’s approach

Tosafot answers as follows:

Rabbi Isaac says that in all of them one can find a positive commandment without a prohibition. In the case of the parapet, “You shall not place blood” applies only when one builds the house from the outset with the intention not to make a parapet. But if his intention was to make a parapet, and after building he changed his mind, or he made one and it fell, there remains only the positive commandment, “You shall make a parapet,” and then women would be exempt.

That is, Tosafot indeed finds itself compelled to distinguish between the positive commandment and the prohibition, and to show that their practical and normative content is different. At first glance this seems to contradict the picture we have drawn thus far, according to which one need not find a specific legal distinction between the prohibition and the positive commandment; the distinction lies simply in the fact that one is defined as a prohibition and the other as a positive commandment.

On closer inspection, however, we see that the reason Tosafot seeks a legal difference between the prohibition and the positive commandment is not the logical problem we raised above, but a technical reason—namely, the exemption of women. If so, it appears on the face of it that Tosafot is not troubled by the duplication itself between a positive commandment and a prohibition, that is, by the fact that both have the same practical content. It seems that the mere existence of a positive commandment and a prohibition with overlapping content does not appear problematic to Tosafot. The conclusion is that one cannot infer from Tosafot that it rejects what we said above.

Again: a practical difference in result

There is an interesting comment here by the author of Penei Yehoshua, who says that were it not for Tosafot’s words, he would have explained that there is a difference between the positive commandment and the prohibition in that, with respect to the positive commandment, doing it oneself is preferable to doing it through an agent. That is, if making the parapet is a positive commandment, then there is value in doing it ourselves. But if it were only a prohibition, then there would be no intrinsic value in making the parapet, certainly not by oneself. What is incumbent upon us is only to ensure that the roof not remain without a parapet, and there is no objection to securing that through an agent.

His intention is to say that even if there is no substantive difference between the content of the positive commandment and that of the prohibition, there are legal consequences to their being defined as a positive commandment or as a prohibition. Therefore Tosafot’s difficulty need not arise, for if the parapet were a time-bound commandment, women would indeed have had to ensure that the roof not remain without a parapet, but they would not have been obligated to do it themselves. And that is what the Gemara means when it says that the parapet is not a time-bound commandment: to tell us that women too are obligated to make the parapet themselves.

It should be noted that Penei Yehoshua assumes there is no practical distinction at all between the content of the positive commandment and that of the prohibition, and nevertheless argues that there is a legal consequence to defining the commandment as a positive commandment or as a prohibition. This of course sharpens very the difficulties we raised above, and we already noted that legal consequences that are merely a result of defining a commandment as a positive commandment or as a prohibition cannot constitute a substantive solution to the problem. Penei Yehoshua proposes precisely such a consequence. Clearly, this too is only an expression of the distinction we made above between a prohibition and a positive commandment.

Rabbi Yosef of the Land of Israel

Further on, Tosafot cites another explanation of the difficulty:

Some explain that there is still a practical difference when a woman has to fulfill another positive commandment. For if we had said that women are exempt from positive commandments not dependent on time, then they would likewise be exempt from the prohibitions involved there, because one might say that the positive commandment overrides the prohibition. But once they are obligated in positive commandments not dependent on time, then another positive commandment will not override them, because a positive commandment does not override a prohibition plus a positive commandment.

Tosafot raises the possibility that although the parapet contains a prohibition, it is still important to teach that women are not exempt from the positive commandment. The legal consequence, according to this view, arises when another positive commandment stands in tension with the commandment of the parapet. In that case, if women were exempt from the positive commandment—because time causes it—only the prohibition would remain. If so, the competing positive commandment ought to override it. But with respect to men, the positive commandment would not override the commandment of the parapet, because in their case both a prohibition and a positive commandment are present.¹⁸

This is similar to the observation of Penei Yehoshua cited above, except that according to this opinion in Tosafot there is no need for any legal difference in scope between the positive commandment and the prohibition. The difference will arise in situations where this commandment stands against another positive commandment, and the question is whether it will be overridden or not.

The situation in which this position would find expression is described further in Tosafot, in the objection raised by Rabbi Yosef of the Land of Israel to the approach just described:

But Rabbi Yosef of the Land of Israel objected to this interpretation: if so, with regard to the rule that one may not kindle with burning sacred oil on a festival, because the festival contains both a positive commandment and a prohibition, whereas the burning of consecrated things is only a positive commandment, would a woman—who is not obligated in the festival’s positive commandment because it is time-dependent—be allowed to kindle with burning sacred oil on a festival? And if you say yes, why did no tanna ever mention this?

The case of burning defiled terumah on a festival is exactly the situation described above. There is a positive commandment to burn the terumah, and opposite it stands the prohibition of labor on a festival, which consists of both a prohibition and a positive commandment. According to the Tosafot just cited, it should follow that women would be allowed to burn sacred items such as defiled terumah on a festival, for labor on a festival is forbidden to women only by prohibition and not by positive commandment, since the positive commandment is time-dependent and women are exempt from it. Rabbi Yosef objects that we find no authority, in the Talmud or afterward, who permits this to women. Therefore he rejects this explanation, saying:

Rather, what must you say? That when a prohibition is accompanied by a positive commandment, the prohibition itself becomes stronger and is not overridden by a positive commandment. So too here, the prohibition becomes stronger.

Rabbi Yosef argues that when a prohibition is accompanied by a positive commandment overlapping in content, the prohibition itself becomes more severe. Such a prohibition is not overridden by a positive commandment. That is his explanation of why women too are forbidden to burn defiled terumah on a festival. He continues and says that this rejects the above suggestion in Tosafot, for even if the prohibition and the positive commandment in the parapet overlap in content, the presence of the positive commandment strengthens the force of the prohibition, and therefore no other positive commandment would override it.

How are we to understand the claim that the presence of the positive commandment strengthens the prohibition? Why should that happen? At first glance, the opposite would seem true: if the Torah needed to add a positive commandment, it would seem that the prohibition by itself is weaker than an ordinary prohibition.

It would seem that Rabbi Yosef holds that the prohibition and the positive commandment are not counted as two separate commandments. The mere presence of both such commands in the Torah indicates that the Torah regards this prohibition as especially severe. It is counted only as a prohibition, but it is a severe prohibition because it was emphasized twice, and therefore it is not overridden by another positive commandment. If so, Rabbi Yosef’s assumption seems to be that a prohibition together with a positive commandment is indeed ordinary duplication, like two prohibitions or two positive commandments; and as we saw in the ninth root, for Maimonides ordinary duplication indicates only additional severity, but is certainly not counted as two commandments. According to this view, there really seems to be no essential difference between a positive commandment and a prohibition apart from the linguistic plane, in Shemesh’s language.

Still, it remains unclear why the Torah chooses here to add a positive commandment and not two prohibitions or two positive commandments. Does Rabbi Yosef see no significance in that at all? According to him, the second explanation in Tosafot is rejected, and therefore we are forced to return to the first explanation, namely that there is a practical difference in content between the prohibition and the positive commandment. But for Tosafot the basis of that explanation was technical—to explain the exemption of women—whereas for Rabbi Yosef it seems that we arrive at that conception on principled grounds: if there were full overlap in content, then there would not be two commandments here at all, but one severe commandment. If so, it appears that he truly sees no principled difference between a prohibition and a positive commandment beyond the Torah’s formulation. Yet on that reading it is unclear why he sees such a case as only one strengthened commandment, for two formulations ought to be counted as two commandments. His words therefore require very careful analysis.

Comparison with Saadia Gaon’s view

Rabbi Yosef’s words suggest that this single commandment would be counted by him as a prohibition and not as a positive commandment, since he calls it a “strengthened prohibition.” Why does he choose to count it specifically as a prohibition? It seems that he thinks like Saadia Gaon, that one should count the commandment that fits the substantive character of the command. But note that with regard to a festival—where in his view the contents really overlap—he counts specifically the prohibition and not the positive commandment. That is unlike Saadia Gaon, who, as we saw above, counts specifically the positive commandment for Shabbat and festivals.

What emerges is a position similar to Saadia Gaon in one respect and different from him in another: Rabbi Yosef agrees with Saadia Gaon that a positive commandment and a prohibition with overlapping content constitute ordinary duplication, contrary to Maimonides’ view, and therefore only one of them should be counted. But according to Saadia Gaon, as we saw, the choice is not determined specifically by the practical content of the commandment, for on Shabbat the practical content is passive non-action and nevertheless Saadia Gaon counts it as a positive commandment. On that point Rabbi Yosef disagrees, and in his opinion what determines the matter is solely the practical character of the commandment: for him, a positive commandment is one of active performance, and a prohibition is one of passive non-action. Below we shall return to the question of the relation between the distinction active performance/passive non-action and the distinction positive commandment/prohibition.

Nahmanides’ approach: a prohibition that supports a positive commandment

Nahmanides, in his novellae to the Kiddushin sugya (and likewise Ritva there), brings Tosafot’s difficulty and rejects their answer. He finally proposes his own alternative:

It seems to me that the essential commandment here is the positive commandment, and the prohibition is only there to uphold the positive commandment. For Scripture first wrote, “You shall make a parapet,” and only afterward, “You shall not place blood in your house”—that is, do not refrain from performing this commandment. This is a prohibition that has no independent act other than fulfillment of the positive commandment contained within it. Therefore, if women had been exempt from the positive commandment, they would also have been exempt from the prohibition, for the prohibition is only the fulfillment of the positive commandment. But in other positive commandments that contain both a prohibition and a positive commandment, women are obligated in both, as we say in Babylonian Talmud, Shabbat 24b and Beitzah 8b: “Shabbaton” is a positive commandment, and a positive commandment does not override a prohibition plus a positive commandment. And men and women are equal in that matter.

Nahmanides explains that if the parapet were a time-bound positive commandment, women would be exempt from it despite the parallel prohibition. The reason is that in the case of the parapet the duplication is substantive, unlike Shabbat and festivals. With respect to Shabbat and festivals, we saw that the positive commandment and the prohibition have different contents: the positive commandment shows that rest is a desirable state, whereas the prohibition shows that doing labor is an undesirable state. There the duplication is deliberate, and each side—the positive commandment and the prohibition—retains its unique character.

In the case of the parapet, however, as Nahmanides argues, the prohibition is only a support wall for the positive commandment. The prohibition does not come to say that the state of failing to make a parapet is intrinsically objectionable; it comes only to reinforce the positive commandment so as to ensure that we perform it.

It seems that Nahmanides, too, agrees with the distinction we made between a prohibition and a positive commandment. His claim is that in the case of the parapet an exceptional prohibition appears. Here the prohibition does not point to an undesirable state, as a prohibition ordinarily does, but merely reinforces a positive commandment. Given such a definition, it is clear that if women had been exempt from the positive commandment, they would also have been exempt from the prohibition. Were this an ordinary prohibition, then even if it depended on time, exemption from the positive commandment would not amount to exemption from the prohibition. The exemption would be only from ascending to a higher level; there is no exemption from avoiding decline and failure, even if those are time-bound.¹⁹

Two possible understandings of Nahmanides

Nahmanides argues that when there is an exceptional prohibition whose entire function is to support and reinforce a parallel positive commandment, then if they are time-bound women would be exempt from both the positive commandment and the prohibition. These words of Nahmanides can be understood in two ways:

When a prohibition supports a positive commandment, the prohibition takes on the status of a positive commandment. According to this, in principle one should not punish for such a prohibition, since no punishment is imposed for a positive obligation. As we explained above, there is no punishment for failure to rise, only for decline. If this prohibition does not point us to a negative state but merely reinforces a positive one, there should be no punishment for it.

But as we saw in the previous essay, Nahmanides himself, in the ninth root, is unwilling to accept the existence of a repeated command that comes only for reinforcement and has no practical consequence whatsoever. Therefore he argues, like most medieval authorities other than Maimonides, that every repeated prohibition adds another forty lashes.

It therefore seems that his words here should be understood differently:

A prohibition and a positive commandment are indeed two commandments. A prohibition that supports a positive commandment is still a prohibition, and its support for the positive commandment consists in imposing punishment for failure to fulfill the positive commandment. In other words: the prohibition transforms ascent in level into a basic obligation, and refraining from it into failure. Consequently, one who “fails” in this way must also be punished.

If so, why would women be exempt from the prohibition as well in a case where both the prohibition and the positive commandment were time-bound? At first glance, this is a prohibition like any other, and women are obligated in prohibitions. What difference does it make whether the failure is “real” or only failure as formally defined?

The answer is very simple. If women were exempt from the positive commandment, there would be no logic in obligating them in the prohibition. After all, the whole purpose of the prohibition is to ensure that whoever is obligated in the positive commandment fulfills it. If so, where there is no obligation in the positive commandment, there is clearly nothing for the prohibition to support. Therefore, if women had been exempt from the positive commandment, they would of course have been exempt from the prohibition as well. Not because of its dependence on time—for it is itself an ordinary prohibition, and there is no exemption from time-bound prohibitions—but because of the specific content of this prohibition, which is not relevant to them.

There is room to discuss, regarding all the differences between prohibitions and positive commandments, which of them apply to this prohibition and which do not. For example, how much money would we have to spend in order not to violate the commandment of the parapet? At first glance, only one-fifth, since the aim is to fulfill the positive commandment, and the prohibition is only meant to ensure that we do so. One might, however, argue that precisely for this reason the Torah added a prohibition here, in order to tell us that for a parapet one must spend all one’s wealth. But from the standpoint of the essence of the prohibition it is difficult to accept that, since here the prohibition is essentially a positive commandment, or support for a positive commandment, and it is unlikely that it would broaden the scope of the obligation of the positive commandment. It should only deepen the obligation, not broaden it. Therefore there may indeed be punishment for it, but there will not be obligations beyond whatever and whoever is obligated in the positive commandment.

Application to feeding minors on Yom Kippur and to charity

It should be noted that later authorities apply this striking remark of Nahmanides in several contexts. Many commentators ask how it is permitted to feed minors on Yom Kippur, since there is a prohibition against directly causing a minor to consume forbidden food—derived from “Do not eat them”: do not feed them, as in Babylonian Talmud, Yevamot 113a.²⁰ Some explain this because of danger to life, but that is puzzling.

The author of Divrei Yehezkel, section 15, subsection 18, cites authorities who hold that the prohibition against directly feeding a minor forbidden food applies only to a prohibition and not to a positive commandment. He then argues that the prohibition—namely, the ban on eating—on Yom Kippur is meant to support the positive commandment—the duty of affliction—and therefore in this case it is permitted to feed the minors and to violate even the prohibition. One who is not obligated in the positive commandment is likewise not obligated in the prohibition.

Similarly, several later authorities asked with regard to charity:²¹ why is one not obligated, when necessary, to give all one’s wealth to charity? One who does not give charity violates a prohibition—”Do not harden your heart” or “Do not shut your hand”—and in order not to violate a prohibition one must spend all one’s wealth.

A possible answer to this question is in light of Nahmanides’ remarks here.²² The prohibition in charity is meant to ensure that we fulfill the positive commandment. Once a person has already given one-fifth of his wealth to charity, he is under no further obligation to give more. Consequently, the prohibition is no longer relevant to him either.

Further reflection on Nahmanides: the connection between active performance and positive commandments

In the end, we must ask ourselves why Nahmanides decided that in the case of the parapet this is a positive commandment and not a prohibition. Why did he not determine that the positive commandment is what was meant to support the prohibition? We may add: why does he not say something similar regarding Shabbat? Why, there, are women obligated?

Regarding Shabbat and festivals, we already noted that the duplication between prohibition and positive commandment is normal, and therefore the prohibition and the positive commandment each have independent standing. The prohibition indicates that doing labor is problematic, and the positive commandment indicates that rest is positive. Therefore there is no necessary dependence between the two sides.²³ By contrast, in our present case the prohibition has no independent content. Its entire purpose is support and reinforcement of the positive commandment. Therefore here it follows after the positive commandment.

Still, one may ask why Nahmanides understands specifically the positive commandment as primary and the prohibition as supportive, and not the reverse. But that is a local exegetical question and does not touch the general principle. Perhaps the reason is that the commandment to erect a parapet is, in essence, a commandment fulfilled by means of an act, and therefore its content is expressed more strongly in the positive commandment than in the prohibition. That is, Nahmanides decides according to the character of the actual fulfillment. Of course, as we saw above with Saadia Gaon, Nahmanides too agrees that there are prohibitions involving no act; that is, he does not tie the distinction between positive commandment and prohibition to the distinction between active performance and passive non-action, as seems to emerge from Semak.

The meaning of “reinforcement” according to Maimonides and according to Nahmanides

According to Maimonides, it seems easier to understand why the Torah adds a prohibition on top of a positive commandment, or vice versa. In our essay on the ninth root we saw that for Maimonides there is no problem with verses in the Torah whose whole purpose is simply to reinforce some commandment, positive or negative. Not every verse must introduce something new, whether a legal detail or a punishment, as Nahmanides writes there. Only according to Nahmanides must reinforcement express itself in increased punishment.

If so, in the case of duplicate prohibition and positive commandment there is certainly no problem with the Torah’s adding a prohibition on top of a positive commandment or vice versa, since here it not only reinforces the first commandment but also introduces an additional aspect. If the positive commandment tells us that state A is desirable, the prohibition tells us that state B—its opposite—is undesirable.

According to Maimonides in the ninth root, reinforcement need not express itself in increased punishment. Even the addition of another verse that prohibits the act is reinforcement. If so, the addition of a substantive aspect explaining that there is also positive value beyond the negative one, or vice versa, is certainly reinforcement. One who does not wish to do something that constitutes ascent may still shrink from failure and decline. And one who is prepared to decline and wants to engage only in service motivated by love—a phenomenon that perhaps in earlier times would have been incomprehensible, but has become quite common in our generation—can find reinforcement in the fact that a given act also constitutes service out of love and not only out of fear. In the formulation we suggested above, there is here both stick and carrot; some are strengthened by the stick and some by the carrot.

On this matter Nahmanides can agree with Maimonides. For example, with respect to Shabbat, Nahmanides sees no obstacle to the existence of a prohibition and a positive commandment with overlapping content. He does not see the prohibition as superfluous—that is obvious, since the prohibition adds punishment—but neither does he see the positive commandment as superfluous, even though it adds no punishment. And the reason is that this is not like the addition of one prohibition to another. Here there is a new element, namely a dimension of love and fear, and therefore there is room for both commands.

Resolving Perla’s objections

We have already seen how to answer Perla’s question: what is the difference between duplication of a prohibition and a positive commandment, and duplication of two positive commandments or two prohibitions? In light of what we have said up to this point, the answer is that a prohibition and a positive commandment have different contents, even if the acts that follow from them appear identical. The distinction derives from the fact that they are a prohibition and a positive commandment, and that is precisely what Maimonides means in his remarks in this root.

Perla did, however, raise another question, concerning Maimonides’ proof from the fact that the Sages sometimes use the expressions “the positive element in it” and “the prohibition in it.” From this Maimonides inferred that the positive commandment and the prohibition are two commandments. Perla objected that the mere existence of two commandments does not necessarily imply that they are counted separately, as we saw in the ninth root. If so, what exactly is Maimonides proving from these expressions?

Now, after understanding the substantive difference between a prohibition and a positive commandment, we can also understand this proof of Maimonides. According to Perla’s own approach, the Sages ought to have said that there are here two prohibitions or two commandments, but not a prohibition and a positive commandment. On his view, a prohibition and a positive commandment in one matter is impossible, since the essence of the commandment is determined by its principal content, even if not necessarily by its physical mode of fulfillment. The parapet, for example, is a positive commandment, and therefore even the prohibition “You shall not place blood in your house” is understood essentially as a positive command. Therefore, argues Maimonides, if Saadia Gaon were really correct, the Sages should have said in these cases that there are two commands of the same type, not “the positive element in it” and “the prohibition in it.”

Maimonides’ proof from the language of the Sages does not come to prove that these two are counted as two separate commandments in the enumeration of the commandments, for that really cannot be proven from here, as Perla rightly explained. Maimonides’ proof is based on the fact that the two are treated as a prohibition and a positive commandment, and not as two prohibitions or two positive commandments. His proof is intended only to show the very possibility of understanding a command of one practical character both as a prohibition and as a positive commandment. The proof rules out the claim that the essential character of the commandment dictates that it must be either a positive commandment or a prohibition.

That claim is indeed refuted by these rabbinic expressions, and thereby Maimonides rejects Saadia Gaon’s position, which understands the two as commandments of the same type. Once Maimonides has shown that there is here both a positive commandment and a prohibition, the decision to count them as two separate commandments does not derive from these rabbinic expressions, but from the very understanding that these are indeed two separate commandments and that their contents are not truly overlapping. As such, they are not subject to what was said in the ninth root, which applies only to commandments of the same type.

We already saw that Saadia Gaon does not dispute the distinction between a prohibition and a positive commandment as expressions of the demand to avoid a negative state or attain a positive one. Saadia Gaon, unlike Maimonides and his school, apparently understands the expressions “the positive element in it” and “the prohibition in it” as expressing the conceptual understanding that underlies these commandments, and not their legal classification as such. It may be that Saadia Gaon would agree that a positive commandment expresses a demand to approach a desirable state and a prohibition expresses distance from an undesirable state, but in his view the legal classification into prohibitions and positive commandments is not based on that theoretical distinction, but rather on formulation and the practical and essential character of the various demands. According to his conception, the law is a system of practical commands and not the system of ideas that stands behind them, and therefore the classification into legal categories, such as prohibitions and positive commandments, must likewise operate on the plane of practical actions.

A note on Maimonides’ second innovation

We saw above that in the heading to this root there are two determinations by Maimonides:

In a case of duplication between a prohibition and a positive commandment, both commandments are to be counted separately.
The positive commandment is to be counted among the positive commandments and the prohibition among the prohibitions.

The novelty of the first determination is clear. Unlike other duplications discussed in the ninth root, here both commandments are to be included in the enumeration. Is there also any novelty in the second determination? In light of our discussion here, perhaps yes. When there is duplication between a prohibition and a positive commandment, Nahmanides too agrees that both are to be counted separately—that is, he accepts the first innovation. On the other hand, at least in certain cases of such duplication, the prohibition may be considered similar to a positive commandment or vice versa. Thus one might have thought that the prohibition should not be included among the prohibitions but among the positive commandments—for example, the prohibition “You shall not place blood in your house,” as we saw above in Nahmanides. Maimonides determines that even in such cases the prohibition remains a prohibition and the positive commandment remains a positive commandment. It is important to note, however, that Nahmanides agrees with this too, and in his own enumeration of the commandments he also treats the prohibition “You shall not place blood in your house” as a prohibition, even though in terms of its legal standing and parameters it appears very close to a positive commandment, as explained above.

Summary of the medieval positions on the distinction between prohibition and positive commandment and on the question of duplication

From what we have seen so far, four fundamental positions among the medieval authorities emerge on this issue:

Semak understands the distinction between prohibition and positive commandment as depending only on the performative plane. Clearly, duplication between a prohibition and a positive commandment will then be counted as one commandment, according to the performative character of the obligation involved.
Rabbi Yosef of the Land of Israel sees the distinction as based only on the linguistic plane, and we have found no substantive root for it. The difficulties therefore remain in place, as we noted regarding Aharon Shemesh’s discussion. According to this view, one would apparently conclude that if there is duplication between a prohibition and a positive commandment, he should count two separate commandments because of the linguistic difference. In practice, however, it seems that when there is duplication he interprets it only as reinforcement, and therefore counts one prohibition. It may be that the criterion for counting is performative, but the matter requires further study.
Maimonides sees the distinction as based on the character of the Torah’s will—whether it points to a positive state or negates a negative state. In a case of duplication between a prohibition and a positive commandment, Maimonides counts two commandments because of the difference in their substantive content.
Saadia Gaon also sees the distinction between prohibition and positive commandment as based on the character of the Torah’s will, exactly like Maimonides. But when there is duplication, he counts only one commandment, like Semak. The commandment to be counted, however, is chosen not according to its performative character but according to the essence of the Torah’s will in that context.

E. The relation between the distinction active performance/passive non-action and the distinction positive commandment/prohibition

Introduction

Up to this point we have seen the basic definition of positive commandments and prohibitions, and explained by means of it why the distinction between them does not entirely parallel the distinction between active performance and passive non-action. We saw that a positive commandment points us to a desirable state, whereas a negative prohibition points to an undesirable state. Arrival at a desirable state is not always by means of a physical act, and avoidance of an undesirable state can sometimes be achieved by means of an act.

Yet at least according to Semak—and perhaps also according to Rabbi Yosef of the Land of Israel—the identification of these two distinctions seems to remain. Our own initial intuition also tends to connect them. Is there anything to that intuition? Is there really no connection at all between the two distinctions?

We already pointed out that there is certainly some correlation, even if not absolute. Usually, positive commandments are fulfilled by action and prohibitions are violated by action. The contrary examples are exceptions. That is, there is some connection, but it is not necessary. We shall now point out that despite everything said thus far, in an essential sense this connection always exists.

Further abstraction: active performance and passive non-action in a broader sense

According to the definition we proposed, violation of a positive commandment always consists in being in a neutral state; that is, the problem lies in not being in the desired state. Once we view matters in this way, it becomes clear that this is, in essence, exactly passive non-action. Such a violation seems lighter because it does not involve direct action against the divine will. We are now refining the definition and saying that it does not involve being in a state that directly opposes the divine will, but only not being in a state that is positive. The clash with the divine will is indirect and not direct. In this sense, there is here indeed a violation of passive non-action. In other words, this is refraining from doing His will and not transgressing His will.

The same applies to prohibitions. Violation of a prohibition, according to this definition, is always active performance. Not always in the physical sense—that is, not every such violation involves a physical act—but the clash with the divine will is always frontal. The person is in a state that is itself defined as negative, and therefore stands in direct opposition to the divine will, and not merely outside the desired state, as in neglect of a positive commandment.

What we have proposed here is, in fact, a different definition of the legal concepts “passive non-action” and “active performance.” We regard the physical expression of the standard definitions as secondary. Clearly, the main reason a violation by passive non-action is considered lighter is that there is no active action against the divine will. Therefore, the physicality of the act is only an indication of leniency. According to our proposal, even an omission whose meaning is being in a negative state—and not merely failure to be in a positive one—counts as active performance in every substantive sense.

This definition of the concepts “passive non-action” and “active performance” is based not on the physical mode of action—active doing or passive refraining—but on the substantive meaning of the act in relation to the divine will: frontal or indirect clash, direct or indirect fulfillment. In this way we preserve the initial intuition regarding the relation between neglect of a positive commandment and passive non-action—that is, passive violation—and between violation of a prohibition and active performance—that is, active violation. So too the connection is preserved on the positive side, between fulfillment of a positive commandment as active performance—that is, active fulfillment—and refraining from a prohibition as fulfillment of the divine will through passive non-action—that is, passive fulfillment.

We shall now see several legal and exegetical consequences of this abstraction.

Consequences

The distinction between active performance and passive non-action appears in various contexts throughout the Talmud. The Sages uproot a Torah law by passive non-action but not by active performance (see Babylonian Talmud, Yevamot 89b-90a). Human dignity overrides a Torah prohibition in a case of passive non-action but not in a case of active performance (see Babylonian Talmud, Berakhot 19b-20a), and so forth.

Medieval and later authorities disagreed in some of these contexts as to what exactly is meant by active performance and passive non-action. Some understood it as the distinction between positive commandments and prohibitions—that is, that human dignity permits neglect of a positive commandment but not violation of a prohibition, and so on. Others understood it differently: human dignity overrides even a prohibition if it is violated by passive non-action, as with the prohibition “You shall not place blood in your house,” and does not override even a positive commandment if it is violated by active performance, as with rest on Shabbat.²⁴

After presenting the various disputes, we shall return and see that at the root of several of those positions lies precisely the abstraction of the concepts “passive non-action” and “active performance” that we proposed above.

Uprooting a Torah law: proof from Rashba on Rosh Hashanah

We mentioned that the Gemara in Yevamot states that the Sages can uproot a Torah law by passive non-action. Let us now consider a dispute over the meaning of the term “passive non-action” in that context.

The Gemara in Babylonian Talmud, Rosh Hashanah 16a-b discusses why the shofar is sounded both while the congregation is seated and while it is standing:

Why do we sound and blast while they are sitting, and then sound and blast while they are standing? In order to confuse the Accuser. And Rabbi Isaac said: Any year in which the shofar is not sounded at its beginning will be marked by misfortune at its end. What is the reason? Because the Accuser was not confused.

The early authorities there ask how the Sages could institute such an enactment, namely to fulfill the commandment twice, since this would seem to violate the prohibition of adding to the Torah. Tosafot there, on the words “and they sound,” writes:

And they sound and blast while they are standing—this is puzzling, for does one not thereby transgress the prohibition of adding? And if you say that since he has already fulfilled his obligation, it is now out of its appointed time and therefore he does not transgress, we say at the end of the chapter “The court saw it” regarding the priestly blessing that a priest may not add a blessing of his own, because its time has not yet passed, since if another congregation happened to come before him he would bless them again. So too here, if another congregation happened to come before him, he would sound for them again. One may answer that the prohibition of adding does not apply to performing one commandment twice—for example, if a priest blesses and then blesses that same congregation again, or if one takes the lulav and then takes it again, or sounds and then sounds again. Similarly, with regard to the blood placements of the firstborn offering, if he places blood twice on one corner, this is not adding.

Tosafot argues that fulfilling a commandment twice does not violate the prohibition of adding. Rashba there, near the bottom of 16a, asks the same question, and after citing Tosafot writes:

They—the Tosafists—labored to uphold this approach, but it did not come out well. It seems to me that there is no difficulty at all, for they said there that the prohibition of adding applies only where one adds of his own accord—for example, a priest who adds a blessing of his own, or one who sleeps in the sukkah on the eighth day with intent for the commandment, or where in an accidental case one blood placement became mixed with a case requiring four placements, and so forth. But when the Sages arose and instituted something for a need, there is no prohibition of adding here, for the Torah already said, “According to the instruction which they shall teach you.” And you can prove this, for the eighth day of Sukkot in our time is a rabbinic commandment, and we sleep and eat in the sukkah for the sake of the commandment, even though we now know the calendar. And Rabbi Yohanan declared that where the messengers of Nisan arrived but the messengers of Tishrei did not arrive, they should observe two days as a decree regarding Nisan because of Tishrei. Thus whenever there is need, the court may legislate additions, and authority is in their hands. The same applies to subtracting where there is need, as when Rosh Hashanah falls on Shabbat: even though the Torah says “sound the shofar,” they arose and decreed not to sound. All this is for a need. So too here, for a need they saw fit to sound and sound again, and it is a commandment to heed the words of the Sages, based on “Do not turn aside.” So it seems to me.

He argues that when the Sages act for the sake of a fence or some other need, they are not subject at all to the prohibition of adding. He proves this from the fact that the Sages can add commandments and subtract commandments by passive non-action, even though this would seemingly violate the prohibition against subtracting.

The author of Turei Even there objected to Rashba’s proof: just as the Sages uprooted the body of the commandment, they can also uproot the prohibition against subtracting, since both are done by passive non-action. Therefore, no proof can be brought from the prohibition against subtracting to our case, for adding a commandment violates the prohibition against adding by active performance.

In Kuntres Divrei Soferim, by Rabbi Elhanan Wasserman, section 3, subsections 10-11, Rashba’s words are explained as follows: according to Rashba, the distinction between active performance and passive non-action does not depend on whether the offense is committed by a physical act or not, but on whether it is a prohibition or a positive commandment. When the rule says that the Sages cannot uproot a Torah law by active performance, the meaning is that they cannot permit us to violate a prohibition. If so, the prohibition against subtracting is also a prohibition, even though it is usually violated without a physical act, and therefore the Sages cannot uproot it. Of course, the author of Turei Even holds that the distinction is not between prohibition and positive commandment, but between two physical modes of violation—through act or through omission.

Let us emphasize that both appear to agree that the distinction between prohibition and positive commandment does not depend on whether the violation is done by action or without action, since for both of them the prohibition against subtracting is indeed a prohibition, despite the fact that it ordinarily involves no act. The question is rather how to define the Sages’ permission to uproot a Torah law by passive non-action: does it mean, literally, a transgression without an act, or does it mean neglect of a positive commandment rather than violation of a prohibition? The consequence concerns uprooting a prohibition involving no act, such as the prohibition against subtracting.

Human dignity: Kuntres Divrei Soferim and Kehillot Yaakov

We mentioned above that the sugya in Berakhot states that human dignity overrides a Torah prohibition in a case of passive non-action. The author of Kehillot Yaakov, Berakhot, section 10 (see also Kuntres Divrei Soferim, section 3, at its beginning concerning uprooting a Torah law, and subsections 28-31, where he discusses the matter regarding human dignity), raises two possibilities for understanding the statement that some value, such as human dignity, overrides a Torah prohibition in cases of passive non-action but not active performance:

The straightforward understanding: violating a prohibition by passive non-action is lighter, and therefore it yields before the value in question. A violation by active performance is severe, and therefore it does not yield.

Beyond the proofs, this distinction seems problematic on its face, because on that reading one should distinguish between lighter and more severe prohibitions. At first glance, violating a severe prohibition by passive non-action would seem more severe than violating a light prohibition by active performance.

Another possibility: there is no difference in the severity of violating Torah law between passive non-action and active performance. The rule is that the value under discussion—in this case human dignity—is equal in standing to Torah commandments, and therefore, as in every case of conflict between values of equal standing, the decision is “better to remain passive and refrain from acting.”

According to this understanding, when human dignity conflicts with a prohibition by active performance, such as wearing forbidden mixtures, application of the rule that passivity is preferable means: one should remain seated and not wear the forbidden mixture. In practice, that means the prohibition is not overridden by human dignity. By contrast, when there is a conflict between that value and a prohibition involving passive non-action, such as failure to return lost property—for example, when returning it would be beneath the dignity of an elderly scholar—then again the conflict is evenly balanced, and therefore we again rule that passivity is preferable. But in this case the practical meaning of that decision is that one is permitted to remain seated and not return the lost property. Thus in this case the commandment to return lost property is effectively overridden, and there is no obligation to fulfill it.

This mechanism holds that there is no difference in severity between violating Torah law by passive non-action and by active performance. The difference in legal decision derives from the factual significance of applying the rule that passivity is preferable. In the case of passive non-action, it is interpreted as transgressing the offense; in the case of active performance, it is interpreted as refraining from the offense. It is not a rule of overriding at all, but a different practical expression of the instruction to remain passive when values of equal standing collide.

Both sources cited above discuss opinions that take sides in this dispute. For example, Tosafot, on the words “but,” in Babylonian Talmud, Shevuot 30b, writes in its second answer that although every person is obligated to testify, if he is a Torah scholar and cannot testify before a court inferior to him, he is exempt, because human dignity overrides a prohibition in a case of passive non-action. Yet if another person is committing a transgression in his presence, then he may not refrain from testifying, because the other person’s violation will count as his own active-performance violation.

According to the second understanding, which grounds the override in the principle that passivity is preferable, this is unintelligible. For here, passivity for the witness means not testifying. We are therefore forced to say that this answer in Tosafot holds that the override is based on the greater severity of active-performance violation, and therefore it determines that even another person’s violation turns my own offense into something severe like active performance, and hence I have no permission to refrain from testifying.

Kehillot Yaakov cites a dispute between Maimonides and the Rosh regarding one who finds forbidden mixtures in another person’s garment: is he obligated to strip it off him, thereby humiliating him, or not? Maimonides says yes, and from this it follows that although the omission would have been passive non-action from the perspective of the one doing the stripping, since the other person is violating by active performance, this counts as active performance on the first person’s part as well. Maimonides therefore apparently agrees with Tosafot and with the first understanding above: the override exists because passive non-action is a lighter offense. By contrast, the Rosh holds that this obligation exists only when one finds forbidden mixtures in one’s own garment. He may disagree with Maimonides and Tosafot, holding that the override is due to the principle that passivity is preferable, as in the second possibility above. But with respect to the Rosh this is not certain, for he may agree with the first understanding and yet disagree with the reasoning that another person’s active-performance violation can be treated as my own active-performance violation, even if I myself participate only by passive non-action. In his view, my passive-non-action violation is still lighter, even if another person thereby finds himself violating through active performance.

The connection between the two questions, and between them and our topic

We have seen two questions concerning overrides in cases of active performance and passive non-action:

Does the distinction concern a physical act or a prohibition?
Is the principle of override based on the greater severity of active-performance violation, or on the principle that passivity is preferable?

There is a connection between these two questions. If the principle of override is understood according to the second possibility—namely, that the override is not due to severity but because passivity is preferable—then it is obvious that the distinction between active performance and passive non-action concerns whether the offense is committed through a physical act, and not whether it is a prohibition or a positive commandment. But if the override is understood as stemming from the greater severity of the offense, then both possibilities remain open. The question is whether the severity of an offense is determined by the physical character of the offense or by its legal definition—positive commandment or prohibition.

How are these two questions connected, if at all, to our topic here, namely to the very definition of prohibition and positive commandment? Clearly, if the definition were essentially physical, as Semak holds, then the first question would not really be relevant at all, since the two suggested possibilities would amount to the same thing. The second question would still remain open even then. But if the correct understanding is that of Maimonides, Nahmanides, Saadia Gaon, and most of the medieval authorities—that the definition of positive commandment and prohibition is not necessarily connected to the physical character of the offense—then both questions remain open for discussion.

According to our proposal above, Maimonides’ and Nahmanides’ conception is that positive commandments and prohibitions are determined by their relation to the divine will—pointing to a desirable state or negating an undesirable state—and not by the physical character of the offense or commandment. We saw from Nahmanides on the portion Yitro that a prohibition is more severe because it constitutes direct collision with the divine will, that is, being in a negative state. If so, both possibilities remain open: one might understand the override of an offense by passive non-action as referring to overriding a positive commandment, and one might also understand it as referring to overriding an offense that is physically committed by passive non-action. The second question too remains open, since a prohibition is more severe, and therefore it is possible that a positive commandment is overridden because it is lighter.

In any event, one thing does emerge from this analysis: there seems to be a connection between the two questions. If the override is due to the rule that passivity is preferable, then clearly the meaning must be physical action and not legal standing. But if the override is because active-performance violation is more severe, then it is plausible that what is meant is specifically a prohibition, for that is what defines severity, not the physical character of the act. In other words, violation of a prohibition is active-performance violation in the substantive sense—not necessarily the physical one—and therefore it is more severe, since it involves direct collision with the divine will.

We can now see that the Maimonides cited by Kehillot Yaakov holds that the override is due to the greater severity of the offense. We are thus forced to say that what is overridden is a positive commandment and not simply an omission—that is, not merely a case without physical action. The Rosh may disagree, as noted above.

The abstraction of the concepts passive non-action and active performance

In any case, it is clear that we have here an illustration of our earlier claim that the concepts “passive non-action” and “active performance” themselves—and not only the openly normative concepts “prohibition” and “positive commandment”—undergo abstraction and become non-physical concepts. In both of these contexts, the distinction employed by the Gemara is between passive non-action and active performance. And yet some commentators see this as an expression of the distinction between prohibitions and positive commandments, even though the distinction prohibition/positive commandment does not necessarily overlap with the distinction passive non-action/active performance. We are therefore forced to say that these concepts themselves undergo abstraction, so that every neglect of a positive commandment appears to them as passive non-action and every violation of a prohibition appears as active performance. That is precisely the abstract definition we proposed above for the concepts passive non-action and active performance.

A brief note on our discussion in the essay on the fourth root

In our essay on the fourth root we discussed Nahmanides’ claim that a general prohibition does not overlap with the other commandments, because it adds a prohibition on top of the individual positive commandments. Therefore, in his view, Bahag counts the prohibition “Do not turn aside from all that I command you today” in his enumeration, since this is a non-duplicative addition to the individual positive commandments. The basis for this claim is Maimonides’ statement in the present root that duplication between a positive commandment and a prohibition is not duplication.

We noted there that the commentators disagreed as to whether Nahmanides means that the addition of the prohibition matters because of its severity—that is, because adding a prohibition increases the severity of the offense, and therefore an added general positive commandment would have no significance—or whether the addition of the prohibition matters because there is something unique in a prohibition that is not present in a positive commandment. That is, the addition is not because of severity as such, but simply because there is no duplication between a prohibition and a positive commandment. This is exactly what we have said here: a prohibition expresses a different directive than a positive commandment, and therefore there is no duplication between them despite their apparent overlap.

According to the second approach, however, the question immediately arises: why not count a general positive commandment that would add something to the individual prohibitions? We suggested there that there is a difference between a general prohibition and a general positive commandment. A general prohibition adds something to the individual positive commandments because it says, in effect, that there is a prohibition against not fulfilling the positive commandment. For example, from the general prohibition we learn that there is a prohibition on the state in which we do not put on tefillin, beyond the mere neglect of the positive commandment of tefillin. By contrast, we suggested there, a general positive commandment has no similar meaning. If there is a prohibition against eating pork, then one who eats pork cannot be defined as violating a positive commandment not to eat pork.

In the terms of the present essay, we can now understand this better. Refraining from eating pork cannot be defined as a positive state. It is an instruction not to be in a negative state—namely, the state of eating pork. By contrast, being without tefillin can be defined as a negative state in itself, and not merely as the absence of a positive state. Therefore there is room for a general prohibition, but not for a general positive commandment.

Indeed, we see here that Nahmanides regards the prohibition of the parapet as subordinate to the positive commandment. Why indeed does he not explain the opposite—that the positive commandment to erect a parapet is meant to reinforce the instruction not to violate the prohibition “You shall not place blood in your house”? There may be a general principle here, according to which in a situation of duplication the positive commandment is always primary and the prohibition comes to reinforce it. The reason is that a positive commandment cannot reinforce a prohibition. Not because the positive commandment is not more severe—for Perla already noted, and we cited his words there, that a positive commandment together with a prohibition is certainly more severe than a solitary prohibition. The reason is substantive: in general it is implausible to define a passive state as a positive state that the Torah wants. Therefore it is impossible to define the state of not violating a prohibition as fulfillment of a positive commandment.

There are, however, exceptions, such as the commandment of resting on Shabbat or the affliction of Yom Kippur. The reason is that there the absence can indeed be conceived as a positive state in its own right, and not merely as negation of a negative state. The best proof of this is that the Torah gave these states of absence their own special terms: “rest” and “affliction.” These are not terms with merely negative content, but also positive content. We already saw that at least regarding affliction, some take it to be the very essence of Yom Kippur, and the prohibitions to be secondary. That is, affliction is not merely the absence of eating and enjoyment; on the contrary, the absence of eating is meant not to interfere with affliction. The same applies to rest from labor on Shabbat and festivals. These exceptional states are therefore the exception that proves the rule: usually there is no room to add a positive commandment on top of a prohibition, and therefore when there is duplication of a positive commandment and a prohibition, the assumption is that the positive commandment is the primary one and the prohibition comes to reinforce it.

F. Obligatory and Existential Commandments

Introduction

We have seen that according to most medieval authorities, the distinction between a positive commandment and a prohibition is not based on the physical character of the offense, but on its legal and principled character. In effect, we are replacing the usual physical meanings of the terms “passive non-action” and “active performance” with a substantive meaning—the mode of fulfilling or colliding with the divine will: direct or indirect.

According to our proposal, a command that points to a desirable state is a positive commandment, and it is violated by substantive passive non-action—not attaining the desired state, that is, being in another state—and fulfilled by substantive active performance—attaining the desired state. A command that points to an undesirable state is a prohibition, and it is violated by substantive active performance—being in the negative state—and fulfilled by substantive passive non-action—not being in that negative state, but in another one. As noted, active performance and passive non-action in their physical sense play no real role here.

These definitions raise a serious difficulty with respect to a common legal distinction between existential commandments and obligatory commandments. At first glance, it would seem that this distinction does not exist at all within the conceptual framework we have proposed.

Obligatory and existential commandments

The distinction between these sorts of commandments has occupied us in several essays in the past, and so we shall not repeat the entire discussion here. In general terms, an obligatory commandment is one that imposes an active duty on us, and one who does not fulfill that duty commits an offense. For example, there is an obligatory commandment to put on tefillin every day. There is no possibility of escaping this obligation, and each person must do whatever lies within his power to fulfill it. One who did not fulfill his duty thereby committed an offense, and will be punished for it—by Heaven, since human courts do not punish for neglect of a positive commandment.

By contrast, there are commandments that may be called existential. These commandments impose no obligation on us, and therefore one who does not fulfill them has committed no offense and incurs no punishment, not even by Heaven.²⁵ Yet one who chooses to fulfill them receives reward for a commandment. For example, the commandment to study Torah, beyond one chapter in the morning and one in the evening—which according to all views is obligatory—is, according to at least some of the medieval authorities, an existential commandment (see, for example, the Rosh’s commentary to Nedarim 8a, and compare Ran there). Hence one who did not do so committed no offense, but one who studied receives reward for the existential commandment of Torah study.

The difficulty

We can now see the difficulty that arises in light of what we said above. We presented the distinction between prohibition and positive commandment on two planes. Regarding fulfillment of the two types of commandment, the difference was described as the difference between stick and carrot. Regarding violation of the two types, the difference was described by saying that failure to fulfill a positive commandment is not direct action against the divine will, whereas violating a prohibition is direct action against the divine will.

What, then, is really the difference between violating a positive commandment and violating a prohibition? In violating a positive commandment, one has indeed failed to do something positive—one has not risen higher—but there is nothing negative in that failure in itself, that is, no decline. In these terms, the positive commandments we have been discussing up to this point would seem to be only existential positive commandments. An obligatory positive commandment differs from an existential one precisely in that failure to fulfill it is itself an offense, and not merely the absence of positive gain. If so, even within positive commandments there exists a case in which non-performance is decline and not merely failure to rise. Our discussion above would thus seem to fit only existential positive commandments and not obligatory positive commandments.

But within the framework of the enumeration of the commandments, the overwhelming majority of positive commandments are obligatory ones. Moreover, there is no significant distinction there between these two kinds of positive commandments, and therefore in explaining the dispute between Saadia Gaon and Maimonides we must address both kinds.

Another aspect of the distinction between prohibition and positive commandment: halakha and law

Clearly, even failure to fulfill an obligatory positive commandment is not like violating a prohibition. It is a different kind of offense. An example of this is Nahmanides’ comment on Leviticus 1:4, where he states that the burnt offering, which atones for positive commandments, is not really atonement, because there is nothing to atone for. It is rather a gift to appease the Master for not having done His will.²⁶ Failure to fulfill a positive commandment is not a transgression in the ordinary sense, one that needs atonement. There is thus a conception according to which obligatory positive commandments certainly exist—and Nahmanides is of course aware of them—and yet failure to fulfill them is not a transgression like violation of a prohibition. These are presumably still positive commandments in character, and as such they point to a desirable state rather than preventing an undesirable one; but with respect to some of these states the Torah sees fit to place an obligation on every person to attain them.

We can explain this by introducing another dimension relevant to the distinction between positive commandments and prohibitions. A positive commandment is a demand that a person rise higher, whereas a prohibition is a demand not to fail. Therefore there is no punishment for one who does not rise, whereas there is punishment for one who declines. More than that: one might say that demands of elevation are not addressed equally to everyone, but only to someone capable of them. It is difficult to direct a demand to every person that he elevate himself. The more basic demand is not to fail. See above the words of Nahmanides on the portion Yitro, regarding the distinction between the basic and the elevated.

An example is the legal system of a modern state. All laws in such legal systems are conceived as prohibitions and not as positive commandments. The law does not impose positive commandments; it only forbids certain actions or states. Even legal provisions that look like positive commandments—that is, such that one fulfills them by action and violates them by omission rather than by action—are, in principle, prohibitions and not positive commandments. For example, the requirement to pay taxes or to serve in the army seems, at first glance, like a positive commandment. But does the law give reward to one who pays his taxes properly? Of course not. The law only punishes one who does not do so. Why indeed is there only punishment and no reward? Because paying taxes is a prohibition and not a positive commandment. There is no fulfillment of a commandment here that deserves reward; only the failure is a negative act deserving punishment.

Its formulation as a positive requirement arises from the fact that the positive state is attained by means of action—physically active performance—and not by passive non-action. But in essence what we have here is a prohibition. It is a prohibition involving no act, yet still a prohibition. This is another example of the distinction between the performative plane and the normative status of the law. Here the performative character resembles that of positive commandments, but the normative status resembles that of a prohibition.

What distinguishes between these two situations? The concept of fulfillment. Performing a commandment has the meaning of fulfilling a commandment, and therefore carries reward. A prohibition cannot be fulfilled; one can only avoid violating it. An act that we are required to do in order not to fail, rather than in order to rise, is not a commandment-act and does not constitute fulfillment of a commandment. At most, it is active avoidance of failure.

It would seem that secular law limits itself only to prohibitory instructions and not to positive commandments, because it does not regard positive commandments as duties that can be imposed as a basic demand on every citizen. The law contains only what can be demanded of every citizen, and therefore also backed by sanction for noncompliance. Positive commandments related to spiritual elevation and the like are not seen as sufficiently basic demands, and therefore the law does not allow itself to demand them of every citizen—it does not see itself as an educator. By contrast, the halakhic system allows itself to demand from every Jew even demands of elevation. True, it too does not impose sanctions, at least not in a human court, for failure to fulfill such a demand, but it certainly does demand it. Sanctions are imposed only on one who fails to meet the more basic demands—that is, one who violates a prohibition. This brings us back again to Nahmanides’ distinction between the basic and the elevated.

The character of such laws—paying taxes and military service—and whether they are prohibitions inferred from positive commandments or prohibitions involving no act, will be discussed below, at the end of Part B.

The difference between obligatory and existential positive commandments

We can now understand the standing and essence of an obligatory positive commandment. On the one hand, it still presents us with a demand to attain a desirable state—that is, a demand for elevation—and not with a prohibition against an undesirable state, that is, decline or failure. In that sense it is fully a positive commandment. But the fact that this particular positive commandment is obligatory and not existential means that it constitutes an elementary demand required of everyone, and not merely an instruction of elevation left to each individual’s discretion. The Torah sees the neglect of such a positive commandment, even though it is only failure to rise, as a sufficiently basic problem to define it as an offense and not merely as the absence of a commandment. The heavenly court too will punish for it.

Thus an existential commandment is one that places before us a higher demand, such that one who fulfills it reaches a higher spiritual level, but precisely for that reason its non-fulfillment does not amount to an offense. By contrast, an obligatory positive commandment is indeed also a demand for elevation, but it is a more elementary demand. Nevertheless, since we are still dealing with failure to rise, no punishment is imposed for it. Prohibitions are demands not to decline, and therefore one who violates them—and thereby collides directly with the divine will—is punished.

As we saw in the previous section, secular law too contains only elementary demands, and therefore it is fundamentally composed only of prohibitions. Even its active requirements, such as paying taxes, are demands of an elementary kind, and that is why we find no reward for those who fulfill them. This is not “elevation” but a demand not to fail—or, one might say, not to act directly against the will of the legislator.

This leads us to the question of the relation between an obligatory positive commandment and a prohibition inferred from a positive commandment. A prohibition inferred from a positive commandment is a prohibition that appears in the Torah in the form of a positive commandment, from which we derive a prohibition against its non-fulfillment. We shall touch on this point in the second part of our essay.²⁷

Is there a parallel distinction between existential and obligatory prohibitions?

We conclude this chapter with a question that again touches on the asymmetry between prohibition and positive commandment. We saw that there is a distinction between obligatory and existential positive commandments. Is there a parallel distinction in the realm of prohibitions? Is there room to distinguish between an obligatory prohibition and an existential prohibition?

On grounds of symmetry, an obligatory prohibition would be a prohibition whose non-violation itself constitutes a commandment. An existential prohibition would be a prohibition whose violation is an offense, but whose observance is not itself a commandment. To the best of our understanding, we do not find such a distinction in halakhic literature. Generally, refraining from violating a prohibition is not considered a commandment; that is, all prohibitions are existential rather than obligatory.²⁸

There are, however, statements in rabbinic literature—and even more so in the literature of Jewish mysticism, such as the writings of Rabbi Isaac Luria—about one who intended to commit a transgression and did not do so, and receives reward for that.²⁹ Here there is a certain parallel—though not in the sense of formal legal significance—to the concept of an “obligatory prohibition.” Of course there is no room to speak of reward at every moment that someone is not murdering. The reward is given when the transgression presents itself to a person and there is a real possibility that he will commit it, yet he overcomes the impulse and does not do so. In such a case there are sources that speak as though that person had, in a certain sense, fulfilled a commandment. That is a topic we shall not address here, since it does not appear with formal legal implications.

G. The connection between the three kinds of conjunction of positive commandment and prohibition brought by Maimonides

Introduction

As noted, in his discussion Maimonides presents three kinds of conjunction of a positive commandment and a prohibition that must be counted as two different commandments in the enumeration of the commandments. In this chapter we shall discuss the significance of the definitions we have proposed here with respect to those three kinds.

The first type

This type is a simultaneous conjunction of a positive commandment and a prohibition regarding a single act. The clearest example of such a conjunction is the prohibition against labor and the commandment of rest on Shabbat. It is this conjunction that we have been discussing until now. Maimonides counts both commandments because they have different contents, and these contents also have practical expressions.

The second type

This type is a positive commandment that comes before the prohibition, or in Maimonides’ terminology, “a prohibition preceded by a positive commandment.” The example of such a conjunction is the rapist and the slanderer, where there is a positive commandment to marry the injured woman, and afterward a prohibition against sending her away, that is, divorcing her. Are there other such examples? The return of lost property may perhaps be an example, but that depends on the differing understandings of the commandments and prohibitions relating to returning lost property, and this is not the place for it.

Here, at first glance, there is no overlap in the content of the two commandments, for the positive commandment requires him to marry her, and the prohibition forbids him to send her away afterward. There is also a relation of chronological priority between them, since the prohibition is not relevant until the positive commandment has been fulfilled. What, then, is the relation between these two commandments? Why does Maimonides see here any sort of duplication between a prohibition and a positive commandment? At most there is coordinated functioning of the positive commandment and the prohibition, intended to ensure that the two spouses remain married forever, but there is certainly no overlap in content.

It is clear that the alternative Maimonides is rejecting is to count these two commandments as one commandment, but that one commandment would not be identical with either of them, as in the alternative rejected in the first type. Rather, it would be a combination of both together. There would be one commandment: that the rapist and the seducer must marry the woman and remain married to her forever. This commandment would have two elements: the duty to marry her and the prohibition against divorcing her. Something like this appears in the eleventh root, where Maimonides discusses the combination of different parts into one commandment, such as the commandment of taking the four species on Sukkot.³⁰

And yet Maimonides sees even such a case as duplication between a prohibition and a positive commandment, and counts them as two different commandments and not as two details within one commandment. One might perhaps say that there is here identity with what was said in the first type: these too are two commandments whose contents overlap. If we understand the obligation to marry her not as an obligation concerning the act of marriage, but concerning the state in which they are married—a command concerning the result and not the act—then it is clear that the prohibition too serves to ensure precisely the existence of that same marital state between them. On that understanding there is overlap in the content of the prohibition and the positive commandment, similar to the situation in the first type. One can see here a resemblance to Nahmanides’ treatment of the prohibition and positive commandment regarding the parapet, where we saw that the prohibition is merely a detail within the positive commandment, intended to ensure the fulfillment of the positive commandment—though even there it is counted separately, as noted above. Here too, the prohibition points to the undesirable state—that they not be married—while the positive commandment points to the desirable state—that they be married. We can now see a full parallel to the first type.

The third type

This kind of duplication is a prohibition that comes before the positive commandment, with the positive commandment repairing the damage created by the prohibition. In rabbinic terminology, such a case is called “a prohibition transformed into a positive commandment.” The two earlier types do not have a special term in rabbinic literature. Examples are the commandment to send away the mother bird after violating the prohibition against taking the mother with the young, the commandment to return stolen property after violating the prohibition of theft, or the commandment to burn the flesh of the Paschal sacrifice that remained until morning, which repairs the prohibition of “You shall not leave any of it until morning.”

Do the two commandments here have overlapping content? On the face of it, they do not. The positive commandment breaks the force of the prohibition—meaning, repairs it—and comes only after it. As long as the prohibition has not been violated, the positive commandment has no meaning or force.

Yet here too one may see the two as two aspects of a single instruction. For example, the Torah does not want the meat of the Paschal sacrifice to remain until morning, and it commands this by two commandments: the positive commandment tells us to burn it if such meat remains, while the prohibition tells us not to leave meat until morning. The prohibition prevents the flaw, and the positive commandment removes it. The same applies to theft and the like.

In this case, however, it seems more plausible to understand the positive commandment as a detail within the prohibition, rather than saying that both serve a common goal. A prohibition transformed into a positive commandment means that the positive commandment repairs the prohibition. Thus the picture is of a negative prohibition, and if one violates it there is an additional legal detail saying that the matter must be repaired by means of the positive commandment. In practice, one does not receive lashes for a prohibition transformed into a positive commandment, precisely because the positive commandment is the repair for the prohibition, and therefore punishment is unnecessary. It is therefore clear that in this case the positive commandment is secondary, unlike the previous type.

It should be noted that the very conception that the positive commandment repairs the prohibition also assumes that the nature of the prohibition is a prohibition concerning the result and not the act, exactly as we saw in the previous case. If it were a prohibition on the act, the positive commandment could not repair it. If a person took the mother bird together with the young, and the offense is defined as the act of taking and not the state of having them in his possession, then sending away the mother does not repair an offense that has already been committed. The same is true regarding the act of theft, and so forth.³¹

Summary

The upshot of all our discussion is that the three types brought by Maimonides do in fact all express the same type of duplication we saw in the first type: overlap between a prohibition and a positive commandment. We should emphasize that this fits the account we proposed of the distinction between a prohibition and a positive commandment, for had we adopted the naive conception that distinguishes them on the performative plane, it would not be clear why the additional two types are relevant to the discussion of this root at all. Only an approach focused on the aims of the commandment—the positive and negative states, the direct and indirect pointing to the Torah’s will—can bring all three under one heading.

So far we have dealt with several types of commandments, all of them related to the relation between prohibition and positive commandment. We distinguished the existence of a prohibition involving no act, and saw in it an indication that the performative plane does not underlie the distinction between prohibition and positive commandment. The same applies to positive commandments whose fulfillment is passive—in terms of physical non-action. Rabbinic literature has no special name for them. We also distinguished between obligatory and existential positive commandments, and even discussed the question whether there are obligatory and existential prohibitions.

In the second part we shall deal with another type of ambiguity concerning the boundary between prohibition and positive commandment, a type that appears explicitly in rabbinic literature: a prohibition inferred from a positive commandment. The topic arises extensively in Nahmanides’ glosses to Maimonides’ words in this root. As noted, he does not address Maimonides’ own remarks in the root at all, since both he and Bahag agree with them.

Part B: A Prohibition Inferred from a Positive Commandment

Introduction

As noted, Nahmanides in his glosses to this root raises the sugya of a prohibition inferred from a positive commandment. At first glance, this discussion seems detached from the previous part, which dealt with the dispute between Maimonides and Saadia Gaon—there Nahmanides was fully identified with Maimonides. Yet we shall see, as expected, that the present discussion contains additional implications of all that was said above, namely regarding the very distinction between prohibition and positive commandment.

A. The Positions of the Medieval Authorities Regarding a Prohibition Inferred from a Positive Commandment

Introduction

A prohibition inferred from a positive commandment is a prohibition learned from a verse that appears in the Torah in the language of a positive command, apparently a positive commandment. For example: “These are the animals that you may eat,” from which the prohibition against eating an impure animal is derived; “Every pure bird you may eat,” similarly with respect to impure birds; “To the foreigner you may lend on interest,” from which is learned the prohibition against taking interest from a Jew; “He shall take a wife in her virginity,” from which is learned the prohibition against a high priest marrying a non-virgin; and so on.

The Sages disputed whether a prohibition inferred from a positive commandment is a prohibition or a positive commandment (see Babylonian Talmud, Zevahim 34a and parallels). The accepted ruling in practice is that a prohibition inferred from a positive commandment counts as a positive commandment. As we shall see, however, the medieval authorities differed regarding the meaning of that position.

Saadia Gaon’s approach

According to Perla’s explanation of Saadia Gaon,³² a prohibition inferred from a positive commandment is essentially a prohibition, and the fact that the Torah writes it in the form of a positive commandment serves only to teach us that it is lighter—namely, that one is not lashed for it. He interprets the law that a prohibition inferred from a positive commandment is a positive commandment as meaning that it is a lighter prohibition, not that in essence it is actually a positive commandment. Such a position is quite expected if the distinction between prohibitions and positive commandments is based on their physical mode of fulfillment. A prohibition inferred from a positive commandment is a restraint, and therefore it makes sense to classify it as a prohibition. But in Saadia Gaon’s actual position, as we saw, that is not the whole story, and therefore there is no necessity to explain it thus—though it may still be possible.

Maimonides’ approach

In Maimonides, who classifies prohibitions and positive commandments according to a different criterion, the possibility opens up of explaining a prohibition inferred from a positive commandment as a genuine positive commandment. And indeed Maimonides’ position in several places is that a prohibition inferred from a positive commandment is literally a positive commandment. As Nahmanides notes in his glosses to this root, Maimonides counts prohibitions inferred from positive commandments among the positive commandments themselves—for example, positive commandments 38, 60, 149-152, and others. For example, Maimonides counts as positive commandments the requirement to examine the signs of purity in animals, fish, and locusts, and the rule that a high priest must marry a virgin.³³

Nahmanides’ approach

Nahmanides’ position is more complex. He discusses prohibitions inferred from positive commandments in several places in his glosses to the roots, mainly in the first root, the fourth root, and the sixth root. In examining his words, we must consider the picture that emerges from all of them together, since at times they appear, at first glance, to contradict one another.

From his remarks in the glosses to this root, it appears at first glance that he understands the distinction between prohibition and positive commandment as based on the performative plane. Nahmanides advances two arguments in defense of Bahag’s position and against that of Maimonides:

The author of the Halakhot did not count them because they contain no active performance; and refraining from forbidden things has already been counted among the prohibitions, so a prohibition expressed in the language of a positive commandment adds nothing to the count.

This argument explains that if a given command contains no instruction of active performance, it must necessarily be a prohibition.

The second argument is drawn from Midrash Tanhuma, which accompanies the whole discussion of the roots from Maimonides’ introduction onward, and in several other places as well:

And the statement cited by the master, that every limb in a human being says, as it were, “Perform a commandment through me”—which comes from Midrash Tanhuma on the portion Ki Tetze—is also proof that their number consists of commandments whose performance is obligatory, not those that consist in refraining. For in the case of prohibitions they are counted by the number of the days, each saying: “Do not commit a transgression through me.”

Here Nahmanides offers an exegetical reason from the midrash, which determines that positive commandments are commandments fulfilled by active performance. Again, the criterion seems performative.

From these two arguments it would appear that a prohibition inferred from a positive commandment, since it is not fulfilled by active performance, cannot be counted among the positive commandments. These arguments therefore suggest that, according to Nahmanides, a prohibition inferred from a positive commandment ought to be treated as a prohibition.

But this picture is problematic for at least two main reasons:

Elsewhere it is clear that this is not his conception. There are several proofs that Nahmanides consistently holds that a prohibition inferred from a positive commandment is indeed a positive commandment, like Maimonides, and not a prohibition, as Perla thought regarding Saadia Gaon. This can be seen from Nahmanides’ own enumeration of the positive commandments. Nahmanides agrees with Maimonides’ counting of the following prohibitions inferred from positive commandments among the positive commandments: the prohibition of an offering that is too young and the prohibition of a non-virgin to a high priest. In addition, in his supplements to the positive commandments omitted by Maimonides, he adds his own tenth positive commandment, which is a prohibition inferred from a positive commandment, as Nahmanides himself notes there: “We were commanded that every offering we bring be from the three kinds of animals that Scripture mentioned—from cattle, sheep, and goats.”³⁴ It therefore seems that Nahmanides fully agrees with Maimonides that a prohibition inferred from a positive commandment is a positive commandment.
The conception that distinguishes between prohibition and positive commandment on the performative plane also does not seem correct for Nahmanides. In nearly all the duplicate commandments discussed by Maimonides in the sixth root—such as rest on Shabbat, the sabbatical year, and so on—Nahmanides agrees with Maimonides’ enumeration. Yet according to a performative criterion he ought to have counted the Shabbat prohibitions as prohibitions rather than as positive commandments.

Comparison with parallel sources

If we look at Nahmanides’ glosses to the first and fourth roots, we see that his intention is not to say that a prohibition inferred from a positive commandment is a prohibition, but rather that when such a prohibition appears in the Torah in addition to an ordinary prohibition, only the ordinary prohibition should be counted, and not the prohibition inferred from the positive commandment. In those cases, the prohibition inferred from a positive commandment adds nothing to the ordinary prohibition.

This is his wording in the glosses to the present root:

And the author of the Halakhot did not count them because they contain no active performance, and the restraint from forbidden things has already been counted among the prohibitions. A prohibition stated in the language of a positive commandment adds nothing to the count, just as a second complete prohibition would not add, as when one says, with regard to some prohibition, two or three prohibitions, all of which are counted as one negative commandment. This view of the author of the Halakhot reduces his total number.

For example, there is already an explicit prohibition on eating impure animals, or on taking interest from a Jew, and therefore these prohibitions inferred from positive commandments come in addition to the ordinary prohibitions that appear in these matters. When a prohibition inferred from a positive commandment appears in addition to an ordinary prohibition, Nahmanides holds that it is not counted. This is also explicit in Nahmanides’ remarks at the end of the first root, and similarly in the fourth root.

By contrast, when a prohibition inferred from a positive commandment appears alone, it is indeed counted as a positive commandment, even according to him.

B. The Problems in Understanding the Various Positions Regarding a Prohibition Inferred from a Positive Commandment

Summary

The positions of the medieval authorities may be summarized as follows: according to Perla’s explanation of Saadia Gaon, every prohibition inferred from a positive commandment is a prohibition. According to Maimonides, every such prohibition is a positive commandment. According to Nahmanides, a prohibition inferred from a positive commandment that appears on its own is a positive commandment, but if it appears in addition to an ordinary prohibition, it should not be counted in the enumeration of the commandments at all. In such a case, only the ordinary prohibition is counted.

With regard to the Sages, we see that Maimonides rules, like most of the medieval authorities, according to the view that a prohibition inferred from a positive commandment is a positive commandment. Saadia Gaon, according to Perla, rules in accordance with the other view. Nahmanides rules that a prohibition inferred from a positive commandment is a positive commandment, like Maimonides; but in his view, when there is duplication between it and an ordinary prohibition, one should not treat the case by means of the tools of the present root, which says that duplication between a prohibition and a positive commandment is not duplication. Here only one of them is counted, just as in the case of two prohibitions.

The problem in Nahmanides’ position

Of course, Nahmanides’ position is the one that especially requires explanation. Saadia Gaon follows the performative direction: since a prohibition inferred from a positive commandment does not instruct us to perform some active act, it is a prohibition. Maimonides follows his own general approach, according to which everything depends on the essential character of the commandment, and therefore sees a prohibition inferred from a positive commandment as a type of positive commandment. Even according to him, however, we shall have to understand what nevertheless distinguishes this from an ordinary positive commandment, why the Torah chooses so indirect a formulation, and why we refer to it at all with the term “prohibition.” Nahmanides, by contrast, agrees with Maimonides that the distinction is not performative but essential, and yet does not draw from this the seemingly necessary conclusion regarding duplication.

At first glance there is an easy possible way out in Nahmanides’ position, if we adopt the determination of the author of Pekudei Yesharim, according to which Nahmanides himself does not agree with the position of Bahag that he is defending against Maimonides. This happens not infrequently in the roots.

He supports this reading from Nahmanides’ commentary to Leviticus 25:3, where Nahmanides writes:

According to our Rabbis: “Six years you shall sow your field”—and not in the seventh; this is a prohibition inferred from a positive commandment, which is a positive commandment, and it follows that one who sows in the seventh year violates both this positive commandment and a negative prohibition.

Nahmanides states that one who sows in the seventh year transgresses, in addition to the usual prohibition, also a prohibition inferred from a positive commandment which counts as a positive commandment. From this, the author of Pekudei Yesharim argues that according to Nahmanides one also counts a prohibition inferred from a positive commandment in addition to a positive commandment, like Maimonides and unlike Bahag. If so, Nahmanides would apparently hold exactly like Maimonides that a prohibition inferred from a positive commandment is always a positive commandment, and his contrary statements in the case where it appears alongside an ordinary prohibition would merely be a defense of Bahag and not Nahmanides’ own view.

This is admittedly a convenient solution, but it is not possible. First, the difficulty would still remain with Bahag’s position, for at least according to Nahmanides’ explanation of Bahag, Bahag holds that prohibition and positive commandment are not duplication, and yet a prohibition inferred from a positive commandment is a positive commandment; still, it is not counted when it duplicates an ordinary prohibition. Thus the difficulty we raised above regarding Nahmanides’ position remains a difficulty in the position of Bahag.

Second, it is also implausible regarding Nahmanides himself. Nahmanides opens his discussion in the present root with the emphatic assertion that Maimonides is mistaken, not with a defense of Bahag. In this root there is no attack by Maimonides on Bahag’s position,³⁵ and the whole discussion is Nahmanides’ own initiative, in which he forcefully argues that Maimonides is mistaken at this point and states categorically: a prohibition inferred from a positive commandment is not to be counted in addition to an ordinary prohibition.

Moreover, if we inspect Nahmanides’ own enumeration of the commandments, we will not find this prohibition inferred from a positive commandment—namely, sowing in the seventh year—counted among the positive commandments. Indeed, it is not counted at all. See also the end of Nahmanides’ remarks in the commandments he added to Maimonides’ enumeration, where he omits all prohibitions inferred from positive commandments that appear in addition to an ordinary prohibition, and leaves only those prohibitions inferred from positive commandments that appear alone. This is also how the author of Mishneh LaMelekh explains Nahmanides in his work Derekh Mitzvoteikha.

Let us recall here Perla’s observation, cited in the previous chapters. Perla argued that there is no doubt that the two commandments really are two, and one who violates them really violates two commandments. The dispute between Saadia Gaon and Maimonides concerns only the apparently technical question whether these commandments should be counted as two separate commandments in the enumeration. He brought proof from the example of neshekh and tarbit, which was also discussed in our essay on the ninth root.

It seems that this is precisely the explanation of the phenomenon now before us in Nahmanides. On the one hand, Nahmanides points to a prohibition inferred from a positive commandment that applies to sowing in the sabbatical year in addition to the ordinary prohibition. On the other hand, in his own enumeration of the commandments this inferred prohibition does not appear, only the prohibition itself. The reason is that there are indeed two prohibitions here, but they are not counted in the enumeration of the commandments as two separate commandments. Hence Nahmanides does indeed hold that a prohibition inferred from a positive commandment is not to be counted in addition to a prohibition, as explained.

The point that can certainly be learned from Nahmanides’ words there is that a prohibition inferred from a positive commandment is indeed a positive commandment, and not a prohibition as Perla thought.³⁶ If so, the difficulty—why it is not counted when it duplicates a prohibition—remains in force, both with respect to Bahag and to Nahmanides.

A more general problem

There is a basic problem in understanding the very idea of a prohibition inferred from a positive commandment, a problem that exists for all the various medieval approaches. At first glance, every such command can be read as an ordinary positive commandment. For example, “To the foreigner you may lend on interest” would seemingly be a positive commandment to lend to a foreigner at interest. Or “These are the animals that you may eat” would seemingly be a positive commandment to eat pure animals. On the face of it, there is no evident textual reason to read these commandments differently from any ordinary positive commandment. Why, then, do the Sages and the medieval authorities treat such commands as prohibitions inferred from positive commandments, rather than as ordinary positive commandments?

Is there a similar problem in Maimonides’ position?

At a superficial glance, it might seem as though this problem does not exist according to Maimonides. Maimonides in fact counts prohibitions inferred from positive commandments as ordinary positive commandments. We saw that he counts, for example, a positive commandment to lend to a foreigner at interest, and a positive commandment to inspect the signs of purity in animals, birds, and fish, as Nahmanides notes in his glosses to this root. If that is indeed the picture, then the Talmudic discussion whether a prohibition inferred from a positive commandment counts as a positive commandment or as a prohibition would, according to Maimonides just as according to Saadia Gaon, mean a discussion whether we are dealing with an ordinary positive commandment or an ordinary prohibition. Maimonides, on this picture, rules that it is a positive commandment, and so it indeed seems that there is here an ordinary positive commandment—to eat pure animals and to lend to a foreigner at interest.

But it appears quite clearly that this cannot be how Maimonides should be understood. In a number of places Maimonides goes out of his way to explain that he counts a given command as a positive commandment because the accepted rule is that a prohibition inferred from a positive commandment counts as a positive commandment—for example, positive commandments 38, 60, 149, 152, and others. If this were simply an ordinary positive commandment, he would have needed no explanation at all. In the legal parameters of some of these commandments as well, one can see that their content is in fact negative rather than positive. For example, there is a prohibition against trading in sabbatical-year produce, learned from the commandment “And the produce of the land shall be for you for food,” from which the Sages derive: “for food”—and not for commerce. Does Maimonides see such a commandment as an ordinary positive commandment, as clearly appears to be the case for Nahmanides? In his view, is there truly a positive commandment to eat sabbatical-year produce, or is this only an indirect formulation of the prohibition against trading in it? In Mishneh Torah, Laws of the Sabbatical Year 6:1, Maimonides explicitly rules that there is a prohibition against trading, but nowhere does he write that there is a positive commandment to eat sabbatical-year produce.

The same is true of positive commandments 60, 38, 152, and others. We shall discuss them in greater detail below. It is therefore clear that Maimonides too understands these as essentially prohibitions, except that in practice they are to be counted among the positive commandments.

We thus find that even according to Maimonides these commandments are prohibitions inferred from positive commandments, and not ordinary positive commandments. The conclusion is that our basic question exists even according to Maimonides: why do we not interpret these commands as ordinary positive commandments? And if not, then in what are they different from an ordinary prohibition?

A note on Maimonides’ wording

It should be noted that although these commandments are counted by Maimonides among the positive commandments and are considered prohibitions inferred from positive commandments, his wording suggests that he relates to them in different ways. In positive commandment 38, which forbids a high priest to marry a non-virgin, he speaks of a prohibition inferred from a positive commandment that counts as a positive commandment. By contrast, in positive commandment 60, which forbids offering an animal that is too young, his wording is that of a warning for which one is not lashed.

In this context one may note a third formulation found in Maimonides—for example, concerning the commandment of eating pure animals, where he states that there is a commandment to inspect the signs of pure animals; similarly regarding fish and birds. There is here no commandment to eat them, but only a commandment to inspect their signs. Perhaps this is only a permissive condition, like ritual slaughter, and not really a commandment. In this case the character of a prohibition inferred from a positive commandment is clearer, though this is not the wording in all places, as already noted. Below we shall discuss these types within Maimonides’ view.

Summary of the questions requiring clarification

Exegetical: Why should these commands be interpreted as prohibitions inferred from positive commandments, and not as ordinary positive commandments? As we have seen, this problem exists according to all the medieval approaches.
Substantive: What does it mean that these commands are classified as prohibitions inferred from positive commandments? What is the difference between them and an ordinary prohibition? And why did the Torah choose to formulate them as though they were positive commandments? In other words: if these are indeed prohibitions and not commands, why are they counted among the positive commandments and not among the prohibitions? This problem of course does not exist in Saadia Gaon’s view, since he holds that these are prohibitions.

It is unlikely that these are ordinary prohibitions and that their special form of writing serves only to teach us that one is not lashed for them. The absence of lashes is a consequence of the difference; it cannot itself constitute the difference, as we discussed above regarding Shemesh’s claim.

An apparent contradiction in Nahmanides’ position: If, as we saw in Nahmanides, a prohibition inferred from a positive commandment is indeed a positive commandment, why is it not counted separately when it appears in addition to an ordinary prohibition? From Nahmanides’ explanations in his glosses to this root it appears that in such a case he treats a prohibition inferred from a positive commandment as a prohibition and not as a positive commandment. It is unclear how his treatment of such prohibitions can change according to context.

To sharpen the point, consider the command “To the foreigner you may lend on interest.” If Nahmanides refuses to see this as a positive command to lend at interest to a foreigner—as Maimonides indeed counts it—then it is in fact a prohibition. Why should the treatment of this command as a prohibition depend on the existence of the parallel command “To your brother you shall not lend on interest,” which is an ordinary prohibition against lending at interest to a Jew? If there is not really a positive command here, that would seemingly be true even if there were no ordinary prohibition alongside it.

C. What Is a Prohibition Inferred from a Positive Commandment? A Phenomenological Characterization

Explaining the exegetical aspect

As noted, the first question is common to all the approaches, and therefore we begin with it. For this purpose let us again consider the command that says: “To the foreigner you may lend on interest.” At first glance, this looks like an ordinary positive commandment to take interest from a foreigner. We asked: why is this command defined as a prohibition inferred from a positive commandment, and not as an ordinary positive commandment?

At first glance, one might say that this formulation is nevertheless different. Had it been an ordinary positive commandment, we would have expected something like: “When you have money, lend it at interest to a foreigner.” The formulation “To the foreigner you may lend on interest” sounds like “only to the foreigner may you lend on interest,” even though the word “only” is not actually present. Perhaps, then, the Sages interpret this verse as a prohibition inferred from a positive commandment. The same applies to “He shall take a wife in her virginity,” which appears to mean “only a wife in her virginity shall he take.” Again, the word “only” is missing. This is thus a question of formulation.

In other cases, merely textual considerations may indeed suffice to explain why certain commands are classified as prohibitions inferred from positive commandments. For example, “These are the animals that you may eat from among the animals” may textually be understood as granting permission, not as issuing a command. It is permission to eat pure animals and not a positive commandment to eat them. It is admittedly difficult to define such textual considerations in a clear and decisive way, and therefore it is likely that other considerations are involved as well.

One such consideration may be not textual but based on an assumption embedded in the content of the command. The claim that we have here a prohibition inferred from a positive commandment may rest on an a priori understanding that such a positive commandment cannot exist. Such an understanding may derive from a moral-value conception according to which it is impossible that we were commanded to lend on interest even to a foreigner; at most the Torah permits us to do so.³⁷ Such a conclusion may also arise from parallel sources in the biblical text itself, and not merely from a priori reasoning, which teach us that such a commandment cannot exist.

Beyond these considerations, an exegetical tradition may also stand in the background of this interpretation. That is, the Oral Torah, transmitted alongside the Written Torah, tells us to interpret these verses as prohibitions inferred from positive commandments and not as ordinary positive commandments. For example, with regard to the commandment “These are the animals that you may eat,” or “He shall take a wife in her virginity,” there seems to be no particular moral or value problem.³⁸ It therefore seems likely that, at least in some cases like these, the determination that these are prohibitions inferred from positive commandments, rather than plain positive commandments, rests on tradition—or at least on a more complex textual consideration, perhaps one based on other verses in addition to the verse under discussion.

It is important to note here that Maimonides counts the commandments to lend at interest to, and to press for repayment from, a foreigner as absolute positive commandments. In his view they are not prohibitions inferred from positive commandments at all, but ordinary positive commandments. If so, it seems that for Maimonides the textual consideration that “hears” the need to insert the word “only” in such verses is probably not operative. The other possibilities, of course, remain.

Up to this point we have explained how, on the exegetical level, the Sages arrive at the conclusion that these are prohibitions inferred from positive commandments and not ordinary positive commandments. We must now move on to clarify the various medieval views, especially in light of the two remaining difficulties.

Saadia Gaon’s approach

Saadia Gaon’s position is entirely intelligible and seems the simplest. Saadia Gaon understands these commandments as prohibitions inferred from positive commandments on the basis of the considerations just described, and classifies every prohibition inferred from a positive commandment as a prohibition. The classification of these commandments as prohibitions rather than positive commandments rests on the same reasons that show that this is a prohibition inferred from a positive commandment and not an ordinary positive commandment. Saadia Gaon classifies such a prohibition as a prohibition because, according to the a priori conception just described, such a command does not contain an instruction of active performance, even though it appears to. Therefore, according to Saadia Gaon’s own definitions as explained in the previous chapters, at least according to Perla, it is a prohibition. The fact that the Torah writes such a command in the form of a positive commandment serves, according to Saadia Gaon, only as a way of hinting to us that one is not lashed for it.

It follows that according to Saadia Gaon, such a prohibition, if it came alongside a prohibition or a positive commandment, would not be counted separately. The reason is that according to Saadia Gaon even duplication of a prohibition and a positive commandment is duplication, and in all cases he counts only one commandment.

The second problem still remains, however: why does the Torah write these commandments in such a strange way—as though they were positive commandments, and not as ordinary prohibitions? Is there any legal significance to that? We shall answer this below, after clarifying Maimonides’ position.

Preliminary remarks toward understanding Maimonides

Maimonides’ position, as stated, is that in every case these commandments are classified as positive commandments, and he in fact counts them as such. At first glance he appears to rely on the simple conception that there is here a genuine command—to lend to a foreigner at interest, that a high priest should take a virgin, and so forth. According to Maimonides’ approach, as explained in the previous chapters, this means that such a command points to a desirable state and does not merely prevent an undesirable one. Therefore, according to Maimonides, these are positive commandments—directly contrary to Saadia Gaon’s approach.

If so, we must understand, according to Maimonides, what it means to say that these are prohibitions inferred from positive commandments and not ordinary positive commandments. Beyond that, the first question returns as well, for the a priori considerations we raised above in answer to it are of no help at all according to Maimonides. If he really holds that there are positive commandments to lend at interest and to press foreigners for repayment, then such a conception is obviously not impossible according to the Torah. If so, even on the exegetical plane it is unclear how he knows that this is a prohibition inferred from a positive commandment and not simply an ordinary positive commandment.

What follows is that we must understand two points in Maimonides:

How do we know that these commands are prohibitions inferred from positive commandments and not ordinary positive commandments?
What is the meaning, if there is one, of their being prohibitions inferred from positive commandments?

Should different types of prohibitions inferred from positive commandments be distinguished?

As we already noted above, Maimonides uses several formulations regarding prohibitions inferred from positive commandments. Some are formulated as a warning for which one is not lashed; some are formulated as ordinary positive commandments; some do not seem at all like prohibitions inferred from positive commandments; and some are formulated as a permissive condition. It may therefore be impossible to find one general formulation of Maimonides’ position regarding all types of prohibition inferred from a positive commandment. It is important, however, that all of them are counted among the positive commandments, and therefore it is likely that we are dealing only with a collection of particular manifestations of the same underlying category.

The disputes over prohibitions inferred from positive commandments also do not distinguish among these various types. One who classifies them as positive commandments—Maimonides—does so with respect to all of them. One who classifies them as prohibitions—Saadia Gaon—likewise does so with respect to all of them. The Talmudic discussion itself does not distinguish among the different types either.

Therefore, in the following analysis of Maimonides we shall assume that all types of prohibition inferred from a positive commandment rest on a single principle, though its expressions and manifestations may vary in accordance with circumstances. We now turn to survey the various types of prohibition inferred from a positive commandment in Maimonides. We shall see that there are three such types, plus a fourth that, apparently according to Maimonides, does not belong to this category at all.

Type 1: a warning for which one is not lashed

Positive commandment 60 is the clearest example of this. There Maimonides forbids offering an animal that is too young—less than eight days old—and writes as follows:

The sixtieth commandment is that we were commanded that every animal offering we bring must be eight days old or older, and not younger than that. This is the commandment regarding an animal lacking the required age. This is what He said, may He be exalted: “And it shall remain with its mother seven days, and from the eighth day onward it shall be accepted as an offering.” This command was repeated in another form: “Seven days it shall be with its mother…” This commandment includes all offerings. The phrase “from the eighth day onward it shall be accepted” is proof that before that it is not accepted. Thus the warning against offering one that lacks the required age is established. But it is a prohibition inferred from a positive commandment, and therefore one is not lashed for it. One who offers one that lacks the required age is not lashed, as explained in the chapter “It and its offspring,” where it says: Leave aside one lacking the required age, for Scripture transformed it into a positive commandment. The laws of this commandment are explained in Sifra and at the end of tractate Zevahim.

Throughout this discussion one sees that Maimonides treats this commandment very much like an actual prohibition. At the outset he does not write that there is a positive commandment to offer an animal that has reached eight days, but rather that “every offering we bring must be eight days old”—a description of the offering rather than a command directed to the person. Moreover, later on Maimonides says that there is here a warning against offering one lacking the required age, language very close to that of an ordinary prohibition. He also writes that one would have expected lashes for violating it, were it not for the technical rule that one is not lashed for a prohibition inferred from a positive commandment. Again, this sounds exactly like a prohibition whose violator would ordinarily deserve lashes.

The overall picture therefore seems quite similar to that of Saadia Gaon. This is an ordinary prohibition, and its being written as a positive commandment serves only to teach that one is not lashed. At the end of his remarks Maimonides even connects this commandment to a prohibition transformed into a positive commandment, which is a full prohibition except that one is not lashed because it can be repaired by fulfilling a positive commandment, as in theft and the commandment of restitution. This is another indication that Maimonides sees this commandment as a prohibition.

The only question is why this commandment is counted among the positive commandments at all. If it really is simply a prohibition, and its positive form teaches only that one is not lashed for it, then it ought to have been counted among the prohibitions, exactly like the prohibition of theft or the prohibition of leaving over sacrificial meat, which are likewise transformed into positive commandments and nevertheless are counted among the prohibitions.

Therefore it is clear that even here we are not dealing with a plain prohibition, but with what might be called a “positive-command prohibition.” The meaning of the command is that if one offered an animal lacking the required age, he also violated this positive commandment. By contrast, if one offered an animal of the proper age, there is no fulfillment here of a positive commandment as such. Below we shall try to clarify this further.

Type 2: a prohibition inferred from a positive commandment formulated like an ordinary positive commandment

In positive commandment 38, Maimonides deals with the commandment that a high priest marry a virgin, and writes:

The thirty-eighth commandment is that the High Priest is commanded to marry a virgin, as it says: “He shall take a wife in her virginity.” And it is explained that Rabbi Akiva would treat even those liable only for violation of a positive commandment as producing a mamzer. They explained that this refers to a High Priest who had relations with a woman who was not a virgin, which is forbidden to him by a positive commandment. For the principle in our case is that a prohibition inferred from a positive commandment counts as a positive commandment. Thus it has been clarified that this is a positive commandment. They also said: “He is commanded concerning the virgin.” The laws of this commandment are explained in the sixth chapter of tractate Yevamot and in various places in Ketubot and Kiddushin.

Here Maimonides opens by saying there is a commandment incumbent on the High Priest to marry—that is, there seems to be a real command on the person himself, unlike the wording in commandment 60 cited above. Immediately afterward he explains why a child in such a case is a mamzer even though this is only a positive commandment; again, language suggesting that it is a positive commandment and not a prohibition.

Later he explains that this is a prohibition inferred from a positive commandment, but note the emphasis: his purpose is not to explain why one is not lashed, for that is obvious if it is a positive commandment. His purpose is to show that although the Sages say there is a prohibition if the High Priest marries a non-virgin, this is nevertheless indeed a positive commandment: “Thus it has been clarified that this is a positive commandment”—something he does not say in the earlier commandment, even though it too is counted as a positive commandment.

Thus the direction here is opposite to what we saw above. There he proved that this is indeed a prohibition, except that one is not lashed for it; here he proves that although it is a prohibition, the commandment is nevertheless a positive commandment.

What emerges is that a High Priest who married a non-virgin violated a positive-command prohibition; but it is not clear whether a High Priest who married a virgin thereby fulfilled a positive commandment. The opening words suggest yes, but the course of the discussion suggests no.³⁹

Type 3: a permissive condition

In positive commandments 149-152 Maimonides deals with the signs of purity in animals. The wording is similar in all these commandments, and Maimonides himself notes that the same structure is involved in animals, birds, locusts, and fish. We shall therefore cite here his wording in the first of them, positive commandment 149:

The one hundred and forty-ninth commandment is that we were commanded to inspect the signs of animals and beasts—namely, that they chew the cud and have split hooves; then they are permitted to be eaten. Our being commanded to inspect them by these signs is a positive commandment, as it says: “These are the animals that you may eat.” The language of Sifra is: “These you may eat”—these are for eating, but an impure animal is not for eating. That is, the animal that has these signs is permitted to be eaten. This indicates that an animal lacking these signs is not permitted to be eaten. And this is a prohibition inferred from a positive commandment, which counts as a positive commandment, as is our established principle. Therefore they said after this statement: I have derived only a positive commandment; from where do I derive a negative prohibition? The verse therefore says, “the camel…” as we shall explain in the negative commandment. Thus it has been clarified that the phrase “these you may eat” is a positive commandment. And the meaning of this commandment is what I have told you: namely, that we are commanded to inspect these signs in every animal and beast, and then it is permitted to eat them; and this rule is the commandment. The laws of this commandment are explained in tractate Bekhorot and tractate Hullin.

Here too, the command is to inspect, and that seems like a positive commandment, similar to commandment 38. Yet later Maimonides makes clear that his intention is not that there is a commandment to inspect, but that the content of the commandment is that inspection makes the eating permitted, and without inspection the eating is forbidden.

It is not entirely clear whether the inspection itself is indispensable, or whether the inspection merely verifies purity—in other words, if someone ate without inspection but it later became clear that the animal was kosher, did he violate this positive commandment or not?⁴⁰ On the face of it, there is no commandment at all to inspect, and if he ate something kosher he did not violate any positive commandment. A simple proof may be brought from the next commandment, which deals with the signs of pure birds, where Maimonides writes:

The one hundred and fiftieth commandment is that we were commanded to inspect the signs of birds as well, for only some species of them are permitted. The signs of birds are not stated in the Torah, but by investigation we arrived at the fact that when we examined all the species whose prohibition is written one by one, we found characteristics that encompass them, and these are the signs of an impure bird. And our being commanded likewise to judge among birds, saying this one is impure and this one is pure, is a positive commandment. The language of Sifrei is: “Every pure bird you may eat”—this is a positive commandment. Thus what we hinted at has been clarified. The laws of this commandment are explained in tractate Hullin.

Maimonides states here that the signs of purity for birds were not given to us at all in the Torah; rather, the Sages inferred them inductively by examining the species that were permitted to us for eating. If so, it is clear that there is no way to interpret this as a commandment to inspect signs, since the Torah did not provide us with signs at all. Only the Sages provided signs in order to help us avoid eating impure birds. From this we should learn with respect to all four commandments that there is no commandment at all to inspect the signs; this is only Maimonides’ mode of expression.

Thus, according to Maimonides, there is no commandment to inspect. Rather, the commandment is to determine the purity of the animal according to the presence of the relevant signs. How are we to understand the word “commandment” in this context? These “commandments” resemble positive commandments 95-96, which we have encountered several times in the past, where Maimonides defines the word “commandment” in his book not necessarily as indicating the existence of an obligation, but rather what we would today call a legal provision. Just as there are laws of purity and impurity, so there are laws of animal purity that instruct us what to eat and what not to eat. In the absence of another category, these laws are defined in Jewish law as positive commandments.

Now, although we have seen that there is no obligation to inspect these signs, there is certainly a possibility of violating this commandment—namely, when we eat impure animals. As Maimonides himself cites from Sifra, when one eats impure animals one violates not only a prohibition but also a positive commandment, namely this one. Thus, although this positive commandment cannot be fulfilled, it can certainly be violated.

As noted, Maimonides repeats similar remarks in the next three commandments as well.

We might call this type a “permissive condition.” The signs of purity are a condition that permits eating, and without them there is no permission to eat. What about the other two types we have seen? It seems that one may similarly say that a woman’s virginity is what permits the High Priest to marry her, and likewise that an animal being older than eight days is what permits its offering.

This is a permissive condition that is not itself imposed upon us. We do not have to do anything, but there is a factual condition that permits us to do some other act. The act thereby permitted may itself be a commandment, as in bringing an offering, or a matter of permission, as in eating meat.⁴¹

Type 4: a positive commandment that introduces a new element into a prohibition

In positive commandment 92 Maimonides deals with the prohibition against cutting a nazirite’s hair, and writes:

The ninety-second commandment is that the nazirite is commanded to let his hair grow, as it says, “He shall let the locks of the hair of his head grow long.” The language of the Mekhilta is: “Holy shall he be”—he shall grow in holiness; “He shall let the locks grow”—this is a positive commandment. And from where do we derive a negative prohibition? “A razor shall not pass over his head.” There it is also said: what does the positive commandment add? It adds the case of one who rubs the earth upon it and one who applies depilatory substances. That is, when the nazirite places on his head a remedy that causes the hair to fall out, he does not thereby violate the negative prohibition, for he did not remove it by means similar to a razor; but he did violate the positive commandment, as it says: “He shall let the locks grow”—and this one did not let them grow. A prohibition inferred from a positive commandment counts as a positive commandment, as is our established principle.

Here Maimonides begins as though there were a positive commandment to grow one’s hair. Of course, in practice this is fulfilled through passive non-action, namely not cutting the hair.

But here the Mekhilta itself already addresses the question of the relation between this commandment and the prohibition against haircutting, and explains that this commandment comes to add that haircutting is forbidden even where the person does not perform an active act of haircutting—for example, he merely applies a depilatory substance, and so forth. In such a case he nullifies the positive commandment, since in the end he did not let the hair of his head grow.

Here too the innovation is that there is a prohibition and not merely a commandment, and in that sense this commandment resembles type 2. But here, unlike the earlier cases, there is a difference between the content of the prohibition and the content of the prohibition inferred from a positive commandment. More than that: the Sages in the Mekhilta take this for granted, for they ask what this commandment comes to add, and apparently assume from the outset that there is no substantive overlap with the prohibition. In the Mekhilta’s answer this is certainly so.

Thus in this case there is a prohibition, and this commandment adds another prohibition parallel to it. Therefore there must be a difference in content between them if the addition is not to be superfluous. Perhaps the same is true of all the other cases as well, in which case this would not really be a separate type. This is not the place to pursue that.

Ordinary prohibitions

In negative commandment 89 Maimonides explains that the prohibition against offering sacrifices outside the Temple courtyard is fundamentally a prohibition inferred from a positive commandment, at least with regard to offerings other than burnt offerings. But there is an analogy from burnt offerings that teaches that there too this inferred prohibition counts as an ordinary prohibition and not only as a prohibition inferred from a positive commandment, and therefore one is punished for it. Thus in the end it is a regular prohibition. See there for the detailed explanation.

A similar picture appears in negative commandment 182, where from the camel, the hyrax, the hare, and the pig, one derives with respect to the other impure animals and beasts that the prohibition inferred from a positive commandment involved in eating them is in fact an ordinary prohibition, and is punishable as such.

Ordinary positive commandments

There is another type of commandment that many treat as a prohibition inferred from a positive commandment. For example, the commandments relating to lending to foreigners. In Maimonides, however, we find a different conception of such commandments.

Thus Maimonides writes in commandment 142:

The one hundred and forty-second commandment is that we were commanded to press the foreigner and compel him to repay his debt, just as we were commanded to show compassion to a Jew and were warned not to press him. This is what He said: “The foreigner you may press.” The language of Sifrei is: “The foreigner you may press”—this is a positive commandment.

Here there is a positive commandment to demand repayment from the foreigner to whom we lent money, unlike the Jew whom one is forbidden to press.

A similar wording appears in commandment 198, which deals with lending at interest:

The one hundred and ninety-eighth commandment is that we were commanded to demand interest from the foreigner, and then we may lend to him without benefiting him or helping him; rather, we may even harm him by means of the loan, just as we were warned not to do so to a Jew. This is what He said: “To the foreigner you may lend on interest.” We have received the accepted interpretation that this is a commandment and not merely permission. Thus they said in Sifrei: “To the foreigner you may lend on interest”—this is a positive commandment; “To your brother you shall not lend on interest”—this is a negative prohibition. This commandment too has rabbinic conditions, and this explanation is laid out in tractate Bava Metzia.

Here there is a positive commandment to lend at interest to a foreigner, unlike the case of a Jew, to whom it is forbidden to lend at interest.

One might have understood the second commandment as a prohibition inferred from a positive commandment, and this in two different ways:

The fact that the borrower is a foreigner is a condition for lending at interest—that is, a qualification of the prohibition against lending at interest to a Jew.
Taking interest is a condition for permission to lend to a foreigner—that is, a condition qualifying some prohibition against lending to a foreigner.

There is a difference between these two possibilities. In the first, which is the usual interpretation, the prohibition inferred from a positive commandment joins an ordinary prohibition stated regarding lending at interest to a Jew. In the second, there is no other prohibition against lending to a foreigner; true, the commandment of benevolence does not apply to him, but lending to a foreigner is not itself a prohibition.

And indeed some of the medieval authorities understood this as a prohibition inferred from a positive commandment—for example, Nahmanides and others. But Maimonides is careful to stress that this is not a prohibition inferred from a positive commandment, even though he does not use that term. He says: “We have received the accepted interpretation that this is a commandment and not merely permission.” If so, he rejects the conclusion that would arise from either of the above suggestions, namely that lending at interest to a foreigner is only optional, and insists that there is indeed a genuine positive commandment—whether existential or obligatory is not clear—to lend to a foreigner at interest.

Thus the basis of the two commandments discussed here is not to qualify the parallel prohibitions stated regarding Jews, but to instruct us in a separate and pressing stance toward foreigners.⁴²

In his glosses to this root, Nahmanides points out that these are prohibitions inferred from positive commandments, though they should not be counted because there are also other prohibitions alongside them—namely, the prohibition against lending at interest to, or pressing for repayment from, a Jew. He understands that according to Maimonides these are ordinary positive commandments, and therefore says explicitly that this is an entirely different dispute from the dispute over prohibitions inferred from positive commandments, and he addresses it in the second part of his glosses.

There is room, however, to interpret Maimonides as agreeing that this is a prohibition inferred from a positive commandment, except that he would interpret it according to the second possibility above rather than as Nahmanides did according to the first. But that does not seem to be the meaning of his wording.

Maimonides’ summary in the Laws of the Sanhedrin: yet another type?

In Mishneh Torah, Laws of the Sanhedrin, chapter 19, Maimonides surveys the various categories of prohibitions and the punishments attached to them. In section 3 he writes:

But one who serves in the Temple without sanctifying his hands and feet, although liable to death, is not lashed, because this is a positive commandment. So too a prophet who suppresses his prophecy, or transgresses his own words, and one who transgresses the words of a prophet—although all three are liable to death, they are not lashed, because they come from a positive commandment, as it says, “To him you shall hearken.” A prohibition inferred from a positive commandment counts as a positive commandment, and one is not lashed for it.

It is not clear why he does not bring the other prohibitions inferred from positive commandments as well. And why, with respect to these prohibitions, does he not mention anywhere in Sefer HaMitzvot that they are prohibitions inferred from positive commandments? There they seem to be ordinary positive commandments.

At first glance, this would suggest that a prohibition inferred from a positive commandment is nothing more than an obligatory positive commandment whose neglect constitutes violation of a positive commandment, and for which one is nevertheless not lashed. Here Maimonides is speaking about ordinary positive commandments, and yet one who violates them is treated by him as one who violates a prohibition inferred from a positive commandment. It would follow that a prohibition inferred from a positive commandment is simply an ordinary obligatory positive commandment, and one who neglects it merely violates a positive commandment. Apparently there is no special category at all here.

But this conclusion does not fit what we have seen until now. There is a substantive difference between a prohibition inferred from a positive commandment and an ordinary positive commandment, since in the former one who fulfills it does not thereby fulfill a positive commandment. It is therefore not an ordinary positive commandment.

If we look at the context of that chapter, we see that it deals with ranking prohibitions according to severity. In section 2 Maimonides lists all those liable to death at the hands of Heaven who nevertheless receive lashes. Against that background, he brings further examples of those liable to death at the hands of Heaven who do not receive lashes, and explains this by saying that these are not ordinary prohibitions but prohibitions inferred from positive commandments. From the context, and from comparison with Sefer HaMitzvot, it appears that although he uses here the expression “prohibition inferred from a positive commandment,” his intention is only to clarify why one does not receive lashes for these offenses. His point is simply that these are positive commandments and not prohibitions. To reinforce this, he adds that even if one has a prohibition inferred from a positive commandment, one is not lashed for it; all the more so in these cases one is not lashed.

If so, one should not infer from here that a prohibition inferred from a positive commandment is just an ordinary positive commandment. These are indeed ordinary positive commandments, and in Sefer HaMitzvot they are not treated as prohibitions inferred from positive commandments. By contrast, the commandments that are explicitly described in Sefer HaMitzvot as prohibitions inferred from positive commandments really are a category different from ordinary positive commandments and from ordinary prohibitions. Clarifying the nature of this category is the subject of the next chapter.

General summary

In the final analysis, although Maimonides uses a number of different formulations for commandments that are prohibitions inferred from positive commandments, on closer inspection it appears that the meaning of the term remains stable in all of them, except where we are dealing with ordinary positive commandments or ordinary prohibitions.

D. What Is a Prohibition Inferred from a Positive Commandment? A Substantive Explanation

Introduction

We saw that Perla explains Saadia Gaon’s position as holding that a prohibition inferred from a positive commandment is essentially an ordinary prohibition. Its indirect way of being written—as though it were a positive commandment—serves only to teach us that the offense here is lighter. In his view there is no substantive difference between an ordinary prohibition and a prohibition inferred from a positive commandment. The comparison to a positive commandment serves only to tell us that one is not punished for such a prohibition; in that respect it resembles a positive commandment. But in essence it is a prohibition in every respect.

By contrast, everything we have seen until now clearly indicates that Maimonides thinks one cannot understand a prohibition inferred from a positive commandment as a prohibition, and certainly not as an ordinary positive commandment, apparently for the reasons described above. He therefore reaches the conclusion that prohibitions inferred from positive commandments occupy a special status. In this chapter we shall try to define that status more clearly.

The connection to the exegetical discussion: the meaning of the added “only”

The general picture emerging from all these types is that in all the cases there is no true positive commandment here, apart from the commands regarding lending at interest to and pressing a foreigner, which are simply ordinary positive commandments. The command does not really command us to do something; rather, it expresses a qualification of another law. A prohibition inferred from a positive commandment is always a qualification, or permissive condition, of another law or state of affairs.

Hence the term “only,” on which we focused in the exegetical discussion, is essential to a prohibition inferred from a positive commandment. We saw there that every verse interpreted as such a prohibition must be read with the word “only.” When we are commanded to offer one eight days old, the meaning is “only one eight days old.” When the High Priest is commanded to take a virgin, the meaning is “only a virgin,” and so on. Every such law is therefore a kind of qualification or condition placed on another law, limiting it to a particular state.

Between a prohibition inferred from a positive commandment and a positive commandment: fulfillment and violation

Another feature we discover is that although every prohibition inferred from a positive commandment counts as a positive commandment, this positive commandment can only be violated and not fulfilled. For example, one who offered an animal more than eight days old did not thereby fulfill any positive commandment—true, he fulfilled the commandment of offering, but not the commandment that the animal be more than eight days old. By contrast, one who offered a younger animal violated an offense which, though not a prohibition, is still neglect of a positive commandment, since a prohibition inferred from a positive commandment counts as a positive commandment.

Thus these commandments are positive commandments of an unusual sort. In an ordinary positive commandment, when we fulfill it there is fulfillment of a commandment, and with it reward; and when we do not fulfill it, then if it is obligatory we have neglected a positive commandment, whereas if it is existential there is no problem in neglecting it, at least strictly speaking. In an ordinary positive commandment, then, there is fundamentally fulfillment, and not always violation. In a prohibition inferred from a positive commandment, by contrast, fulfillment has no value in itself, but violation has negative value. In that sense these may be called “positive-command prohibitions” rather than positive commandments. We must now ask, however, in what this prohibition differs from an ordinary prohibition.

More generally, we must examine how these definitions connect with the distinction presented in Part A between prohibition and positive commandment. What is the status of a prohibition inferred from a positive commandment on the axis drawn there between prohibitions and positive commandments? In more precise terms: how are we to understand the meaning of a prohibition inferred from a positive commandment in terms of pointing to a worthy state, as in an ordinary positive commandment, or distancing from a negative state, as in an ordinary prohibition? Alternatively: how does violating a prohibition inferred from a positive commandment stand in relation to the divine will? Is the clash with the divine will in such a case direct or indirect?

A substantive definition of a prohibition inferred from a positive commandment: first possibility

The meaning of the picture we saw above is that a prohibition inferred from a positive commandment is a positive commandment that has violation but no fulfillment. On the other hand, the violation is not prohibition in the ordinary sense, since it constitutes only an indirect clash with the divine will and not a frontal one. It is not the case that God wants us to offer only animals older than eight days—that would be an ordinary positive commandment, pointing to a desirable state. Nor is it the case that God does not want us to offer those younger than eight days—that would be an ordinary prohibition, negating an undesirable state. But nor is this a mere negation of obligation—a statement of the sort we called type II above—since such a pattern is not a commandment at all. We shall discuss that in our essay on the eighth root.

A first possible way to define a prohibition inferred from a positive commandment is this: there is indeed here an indication of a positive state, exactly as in a positive commandment, but the Torah does not define this desire as a formal commandment. It is a desire that is not included within formal law, and therefore is not a commandment. On the other hand, one who does not do it is treated as having neglected a positive commandment, and that neglect is a formal legal offense, though a lighter one.

According to this definition, there is certainly value in doing what the Torah commands according to its plain wording, but the fulfillment is not formal commandment-fulfillment. It does not cross the threshold required to enter the sphere of formal law. In its essence, therefore, it resembles a positive commandment, since the basis is indication of a positive state, but it is weaker, because the Torah does not see this duty as an elementary enough demand to include it within binding law. The violation of this commandment does cross the threshold, and therefore it does enter the law.

Rejecting this possibility

Such a definition is, however, highly problematic. Above we saw that neglect of a positive commandment counts as an offense, at least in the case of an obligatory positive commandment, but it is a lighter offense, as Nahmanides explained regarding the portion Yitro, since the obligation is less basic than an obligatory positive commandment, and certainly less basic than the duty not to violate a prohibition. We saw in Nahmanides that the severity of the offense involved in neglecting a positive commandment is inversely related to the importance of fulfilling it: the higher the fulfillment, the less basic and less prohibited its neglect.

From this it immediately follows that if we try to rank the level of obligation to fulfill the commandment, we get the following hierarchy: obligatory positive commandment, existential positive commandment, prohibition inferred from a positive commandment. An obligatory positive commandment is a full obligation, and therefore its neglect is an offense, though less severe than violating a prohibition. An existential positive commandment is no obligation at all, though fulfilling it is a commandment, and therefore its neglect is not an offense at all. A prohibition inferred from a positive commandment is not even a commandment in the sense that one who “fulfills” it does not fulfill a commandment—at most he has done the divine will. If so, we would expect the prohibition involved in violating such a commandment to be lower than the prohibition involved in neglecting an existential commandment. But neglect of an existential commandment is not an offense at all, whereas here the matter is defined as a full-fledged legal offense.

The conclusion is that one cannot place a prohibition inferred from a positive commandment somewhere between prohibition and positive commandment on a scale of severity or spiritual level. The difference does not lie in the intensity of the desire or command, but in its type. We must look for a definition that identifies in such a commandment a different kind of desire or command than the kind expressed either in an ordinary positive commandment or in an ordinary prohibition. But is there such a type? What additional kind of command can there be beyond a command directing us to be in a positive state—an ordinary positive commandment—or a command forbidding us to be in a negative state—an ordinary prohibition?

A substantive definition of a prohibition inferred from a positive commandment: second possibility

We saw above that there is a “wall” separating the world of prohibitions—the world of fear—from the world of positive commandments—the world of love. This wall is expressed by the existence of neutral states to which neither the prohibition nor the positive commandment speaks. For example, the positive commandment to erect a parapet is a command to be in the positive state that my house have a parapet. The prohibition is a command that forbids me to be in the negative state that my house not have a parapet. We saw that there are neutral states, such as a person having no house at all. If I am in such a state, I have not fulfilled the positive commandment, but I have fulfilled the prohibition—in the sense that I have not violated it. On the other hand, with respect to the positive commandment there is certainly no neglect here; that is, the negative aspect does not appear in such a state even in relation to the positive commandment. The difference between positive commandment and prohibition appears only in relation to their fulfillment, not in relation to their violation.⁴³

How, then, could we define a prohibition inferred from a positive commandment to erect a parapet? From what we saw above, such a commandment would not command us to erect a parapet, and therefore one who erects a parapet would not thereby fulfill any commandment. In that respect, the situation resembles a prohibition. On the other hand, it would also not directly forbid being in a state in which the house lacks a parapet. If the house lacked a parapet, I would count only as neglecting a positive commandment. In that respect, the situation resembles a positive commandment. The conclusion is that a prohibition inferred from a positive commandment resembles a positive commandment on the side of violation, and resembles a prohibition on the side of fulfillment.

A necessary assumption in the background of this is that the two sides of a prohibition—its fulfillment and its violation—and likewise the two sides of a positive commandment, are not dependent on each other. Therefore there can be a commandment that resembles a prohibition, or a positive commandment, only on one side and not on the other. In other words, the two sides within each of these types of commandment can be separated.

It seems that the substantive definition of a prohibition inferred from a positive commandment can only be this: the Torah imposes on us an obligation to strive not to be in the negative state. Being in the negative state is not itself directly problematic; it is problematic only insofar as it expresses lack of effort to escape that state. On the other hand, being in the opposite state is not itself positive, except insofar as it expresses escape from the negative state. This commandment is defined as a positive commandment because it imposes an obligation and does not forbid something. Again, this is irrespective of whether the obligation is fulfilled by passive non-action or by active performance. But the obligation it imposes is not to be in a certain state, but to flee from a state. In an ordinary prohibition, that flight is not itself the legal obligation, but only a means of not being in the negative state. Here, the flight itself is the obligation. Yet one need not necessarily perform an act; if it is already clear that I will not reach the negative state, there is no obstacle to my sitting still and doing nothing, and thus “fulfilling” this commandment.

In the example of the parapet, if we were to treat the command to make a parapet as a prohibition inferred from a positive commandment, then the state of a house with a parapet would not be positive in itself, and in that respect there would be a difference from an ordinary positive commandment. On the other hand, being without a parapet would also not be negative in itself, except insofar as it indicates lack of effort—and in that respect there would be a difference from an ordinary prohibition.

The indication for this distinction is the neutral state, state 0—namely, when a person has no house at all. Such a person has not fulfilled a positive commandment, but certainly has not violated the prohibition; that is, he has “fulfilled” it in the sense of not violating it. But what about a prohibition inferred from a positive commandment? Here one might hesitate. True, he made no effort, and at first glance the commandment was not fulfilled. On the other hand, the effort is required only in order that I not be in the negative state—without a parapet—and here indeed that is the case. There is no duty to act, but only to ensure, even through passive non-action if that suffices, that I not be found in the negative state.

Thus, from the standpoint of fulfillment—that is, one who makes a parapet—this resembles a prohibition, meaning that there is no positive value in this in itself. As we saw, a prohibition inferred from a positive commandment has no fulfillment; otherwise it would have been an ordinary positive commandment. From the standpoint of violation—that is, one who does not make a parapet for his house—it resembles a positive commandment, since what he has is neglect of a positive commandment rather than violation of a prohibition. The reason is that the problem is not that he is in the negative state, but only that he is not making an effort to escape it. Therefore this is only neglect of a positive commandment and not violation of a prohibition.

Explaining Maimonides’ wording in positive commandments 149-152

As we saw above, Maimonides’ language in these commandments seems very confusing. On the one hand, they are phrased as ordinary positive commandments—”a commandment to inspect the signs of animals,” and so forth. On the other hand, Maimonides himself states that these are prohibitions inferred from positive commandments. It is therefore no wonder that many of his commentators, including Nahmanides, treated this wording as denoting ordinary positive commandments and ignored Maimonides’ own statement that these are prohibitions inferred from positive commandments.

This is Nahmanides’ wording at the beginning of his glosses here:

I see here a great dispute, and one of the opinions is certainly mistaken: namely, that there is yet another prohibition and positive commandment in one matter, except that both are not commandments, as in the case of pure and impure animals, fish, and birds. Scripture said regarding them in positive form, “These are the animals that you may eat,” and they interpreted this as a positive commandment. So too, “Every pure bird you may eat” was made into a positive commandment; likewise, “This you may eat of all that are in the waters.” Yet it is obvious that the intention is not to say that when we eat an animal or fish possessing the signs of purity we thereby perform a commandment, and if we catch them and do not eat them we violate it. Rather, the intention is only that Scripture said: only these shall you eat, and not the impure ones. This is a prohibition inferred from a positive commandment with regard to impure creatures, so that one who eats impure ones violates both a full prohibition and a prohibition inferred from a positive commandment, which counts as a positive commandment, according to our accepted tradition.

Maimonides counted these and the like among the 248 positive commandments. He said: to inspect the signs of animals, as it says, “These are the animals that you may eat”; to inspect the signs of birds; to inspect the signs of locusts; to inspect the signs of fish. But the author of the Halakhot did not count them, because they contain no active performance, and refraining from the forbidden things has already been counted among the prohibitions. A prohibition expressed in the language of a positive commandment adds nothing to the count, just as a second full prohibition would not add, as when one states two or three prohibitions concerning some restraint, all of which are counted as one negative commandment. This is the view of the author of the Halakhot, and it reduces his total number.

From his wording it appears that he reads Maimonides as positing a full positive commandment to inspect the signs of purity, and he bases on that the decision of Maimonides to count these commandments in addition to the parallel prohibitions. After all, these commandments would add a positive obligation to the existing prohibition against eating impure creatures. Nahmanides himself argues, including in his explanation of Bahag, that there is here only an additional restraint against eating impure animals, and therefore they should not be counted in addition to the prohibition that already exists on that matter.

But in light of what we have said in defining a prohibition inferred from a positive commandment, it seems that Maimonides’ intention here can be understood very well. If the definition of such a prohibition is indeed an obligation to make an effort not to be in a given state, without saying that the state itself is problematic in itself, then that is exactly the right way to formulate it. There is no obligation not to eat impure animals—that is what follows from the ordinary prohibition, but we are now dealing with the prohibition inferred from the positive commandment—and certainly no obligation to eat pure animals. Maimonides’ wording expresses exactly the character of these commandments: an obligation to inspect the signs of animals in order to avoid eating them. The obligation of effort is itself the positive commandment, without defining the act of eating as itself the violation. That is what the ordinary prohibition, which also exists here, does.

Still, our earlier conclusion remains in force: even this effort is not fulfillment of a positive commandment, and one can only violate this commandment, not fulfill it. Therefore when one eats impure animals, he is liable both for the prohibition that forbids it and for the fact that he did not inspect the signs. But it is not correct to say that inspecting the signs is an ordinary positive commandment that can be fulfilled.

The formulations Maimonides uses in positive commandments 38 and 60, which are less one-sided on this point, because from them it seems a bit more as though these were ordinary positive commandments, can now also be interpreted in exactly the same manner. This accords with our earlier conclusion that all types of prohibition inferred from a positive commandment ultimately converge upon one and the same category.

A note on symmetry

At this point, of course, a question arises: can one split the matter the other way? That is, is there some type of commandment that on the side of fulfillment would be like a positive commandment and on the side of violation would be like a prohibition?

If a prohibition inferred from a positive commandment is a minor kind of commandment—for it is characterized on the side of violation like a positive commandment and on the side of fulfillment like a prohibition, and those are the milder sides of the positive commandment and the prohibition—then such a commandment would be an especially extreme and severe one: on the side of fulfillment it would be like a positive commandment and on the side of violation like a prohibition. Every move made would then be direct and significant, either active and direct fulfillment of the divine will—ascending the levels of love, in Nahmanides’ terms—or active and direct transgression of His will—declining down the slope of the absence of fear. Such a case would apparently arise if we had a positive commandment inferred from a prohibition, but we are not familiar with such a type of commandment. The question of why no such type exists is very interesting and deserves independent investigation, but this is not the place for it.

Explaining Nahmanides’ position

We saw above that Nahmanides argues that a prohibition inferred from a positive commandment counts as a positive commandment, and yet when it appears alongside a prohibition it is not to be counted separately. We asked how these two determinations can be reconciled. If it is a positive commandment, then its duplication with a prohibition is not duplication. But if its duplication with a prohibition is duplication, then it should be a prohibition and not a positive commandment.

In light of what we have said above, the matter becomes simple and clear. Let us again take the example of the parapet, and suppose that the prohibition “You shall not place blood in your house” existed alongside the command “You shall make a parapet for your roof,” which for purposes of illustration we shall now interpret as a prohibition inferred from a positive commandment—though of course this is not actually the case. The prohibition tells us that the state of a house without a parapet is a negative state. The prohibition inferred from a positive commandment imposes a duty to strive to escape that state, even if the state itself is not, in formal legal terms, negative. Nahmanides says that there is no point in counting the duty to flee this state in addition to the prohibition, because the prohibition itself tells us that the state is negative, and therefore there is no point in separately counting the duty to avoid it. There is reason to count a prohibition inferred from a positive commandment only when the state from which one flees is not legally defined as a negative state.

It should be noted that if a prohibition inferred from a positive commandment were paired not with a prohibition but with a positive commandment, the situation would be more interesting. There, at first glance, there would specifically be room to count both, even though the prohibition inferred from a positive commandment counts as a positive commandment. The previous reasoning does not apply in such a case.

It seems, however, that such a case cannot arise, and it is therefore no wonder that, to the best of our knowledge, such a case does not exist in Jewish law. If the first command is interpreted as an ordinary positive commandment, then there is no obstacle to interpreting the second command likewise as an ordinary positive commandment. As we saw, a prohibition inferred from a positive commandment is phrased exactly like a positive commandment, and only some exegetical or logical pressure causes us to interpret it as a prohibition inferred from a positive commandment rather than as an ordinary positive commandment. If so, when there is an ordinary positive commandment overlapping with a prohibition inferred from a positive commandment, either we would interpret both as prohibitions inferred from positive commandments, or we would interpret both as ordinary and overlapping positive commandments—cases already discussed in the ninth root.

It should be noted that the absence of duplication of this type is itself something of a proof for our proposal here. If a prohibition inferred from a positive commandment were really an ordinary prohibition, and its indirect form of writing were intended only to teach us that the offense is lighter, as Perla and others explain, then there would be no obstacle at all to the existence of such duplicate cases.

Perhaps this also explains the opinion in the Talmud that a prohibition inferred from a positive commandment is a prohibition. According to that view, the duty to flee a negative state necessarily arises from the fact that the state is defined as negative, and therefore there is in truth a prohibition here. Only the formulation is in terms of the action imposed upon us—the duty to avoid it—rather than in terms of the result—that it is forbidden to be in it, as in an ordinary prohibition.

A prohibition inferred from a positive commandment that does not parallel an ordinary prohibition

We have seen that a prohibition inferred from a positive commandment does not add anything beyond an ordinary prohibition, and therefore when they appear together one does not count the positive commandment but only the prohibition. But what happens when a prohibition inferred from a positive commandment stands alone? In practice, it counts as a positive commandment. Above we said that here the state is not defined as negative; only a duty to avoid it is imposed. But this is strange: if the state is not negative, why is there a duty to avoid it?

One may approach this in two ways:

At first glance, a prohibition inferred from a positive commandment also teaches that the opposite state is negative, but there is no direct prohibition concerning it, because it does not cross the legal threshold of an ordinary prohibition. Nevertheless, that is enough to impose a duty to avoid the state. On this view, the prohibition inferred from a positive commandment teaches us both things: that the state to be avoided is negative, and that there is a duty upon us to avoid it. On this reading, every such commandment contains two elements: both a prohibition and a positive commandment.
Perhaps the state is not really negative at all, but the Torah has a positive interest in our engaging in avoidance of such a state. That is, the avoidance is a duty of action and not of result. The result in itself is not objectionable, but there is value in our occupying ourselves with avoiding it.

It may not be necessary to choose between these two possibilities. It is possible that some commandments are interpreted according to the first and some according to the second.

A proposal regarding Rashi on lending at interest to a foreigner

We can now examine a puzzling statement of Rashi regarding lending at interest to a foreigner. In Deuteronomy 23:21 we find the following command:

To the foreigner you may lend on interest, but to your brother you shall not lend on interest, so that the Lord your God may bless you in all the work of your hand in the land to which you are coming to possess it.

And in Sifrei on that verse we read:

“To the foreigner you may lend on interest, but to your brother you shall not lend on interest.” “To the foreigner you may lend on interest”—this is a positive commandment. “But to your brother you shall not lend on interest”—this is a negative prohibition.

Rashi writes there:

“To the foreigner you may lend on interest”—and not to your brother. A prohibition inferred from a positive commandment counts as a positive commandment, so that one transgresses here two prohibitions and one positive commandment.

It is not clear what Rashi means when he says that there are here two prohibitions and one positive commandment. At first glance, there seems to be only one prohibition and one positive commandment, as the Sifrei says.

Rashi’s commentators deliberate over this, and some explain that he is referring to the other prohibitions concerning interest that do not appear in this verse, such as placing a stumbling block before the blind and the like. But even that is unclear, since if we truly took into account all the prohibitions involved in interest, there would be more than two prohibitions and one positive commandment.

It therefore seems possible to suggest that Rashi means that in this very verse there appear two prohibitions and one positive commandment. How so? One prohibition is the ban on taking interest from a Jew. The second is the prohibition inferred from the positive commandment: from the command “To the foreigner you may lend on interest” we learn an additional prohibition against taking interest from a Jew. And there is also a third element, a positive commandment to lend on interest to a foreigner.⁴⁴

If our suggestion is correct, then Rashi is claiming here that a prohibition inferred from a positive commandment is a combination of both prohibition and positive commandment: there is a positive commandment, as written explicitly in the verse, and also another prohibition inferred from it. This is exactly what we saw above as the first possible interpretation of a prohibition inferred from a positive commandment.

Rashi’s commentators did not explain it this way, because they assumed that such an understanding—that a prohibition inferred from a positive commandment contains two commandments—is impossible. See Re’em on Rashi there. But compare Or HaHayyim on that verse. This is not the place to elaborate.

E. The Nature of the Situations in Which the Torah Imposes a Prohibition Inferred from a Positive Commandment

Introduction: returning to the second possibility

Above we saw that the simplest understanding of a prohibition inferred from a positive commandment is that it imposes on us a positive duty to avoid a state, but without negating the state in itself. An ordinary prohibition, by contrast, negates the state, and therefore it is self-evident that we must avoid it.

What is the logic of imposing such a duty? True, there is no logical equivalence between a prohibition inferred from a positive commandment and an ordinary prohibition. These are indeed different commands from the standpoint of normative logic. Even so, the rationale behind the distinction is unclear. At first glance, if there is an obligation to avoid a certain state, that itself is a sign that the Torah rejects it. The proof is that when an ordinary prohibition appears alongside a prohibition inferred from a positive commandment, Nahmanides writes that we do not count the latter, because it adds nothing substantive to the prohibition itself. The existence of an ordinary prohibition already imposes on us a duty to avoid the negative state.

If so, why does the Torah not always impose an ordinary prohibition? What characterizes the situations in which the Torah chooses specifically a prohibition inferred from a positive commandment rather than a prohibition?

Action-commandments and result-commandments

The first distinction that suggests itself here is the distinction between action-commandments and result-commandments. Action-commandments impose a duty of action on the person. Result-commandments impose a duty of result, usually in the object or situation. Action-commandments are defined through the action, though usually the action is meant to achieve a result. Result-commandments impose a duty to achieve the result—that is, to be in the desired state—and the action follows from that duty.

At first glance, the relation of a prohibition inferred from a positive commandment to an ordinary prohibition resembles the relation of an action-commandment to a result-commandment. The prohibition inferred from a positive commandment imposes a duty to act so as not to be in a certain state, but does not forbid being in that state itself—that is, the result.

Between a prohibition inferred from a positive commandment and an ordinary prohibition: the substantive distinction

But it seems that the distinction between a prohibition inferred from a positive commandment and an ordinary prohibition lies on a deeper plane. We have already seen more than once that defining a commandment as an action-commandment does not mean that the state produced by the action lacks value. On the contrary: usually that state is exactly what the Torah wants, but for various reasons it is more convenient for the Torah to impose it on us as a duty of action rather than as a duty of result. For example, where only the action is in human hands and the result comes about automatically, the Torah will impose a duty of action even where what it really wants is the result. We have brought several examples of this elsewhere.

In a prohibition inferred from a positive commandment the matter is more fundamental: this is not a negative prohibition at all, because the resulting state is not negative in itself. The Torah has no problem with the fact that someone ends up in that state; it only wants him to avoid it. If he is forced into that state against his will, there is no problem in that. These are the neutral states that have accompanied us all along. Being in that state is problematic only as an indication that he did not act in order to avoid it. In effect, one may say that these commandments are commandments of consciousness rather than of fact. The Torah is commanding our consciousness and not the state itself. The avoidance is our action, and that is what the Torah wants, not necessarily that we never end up in that state.

Let us now present a few examples of similar phenomena, simply to sharpen the point.

Examples

As is well known, the rule is that in cases of doubt regarding biblical law one must be stringent. Yet there are several cases in which the rule is the opposite: in their case doubt is treated leniently. For example: doubtful firstborn status, doubtful mourning, doubtful illegitimacy, doubtful orlah outside the Land of Israel, doubtful impurity in the public domain, and more.

Rabbi Nissim goes further and writes that a person may take orlah fruit outside the Land of Israel—even though he knows with certainty that these are orlah fruits—and give them to another person who does not know this. The reason is that the other person does not know that it is orlah, and therefore from his perspective the matter is doubtful; and doubtful orlah outside the Land of Israel is permitted from the outset.

Why indeed may one be lenient in all such cases? Is there no concern that we may violate a biblical prohibition? After all, there is here a fifty-percent possibility of violating a prohibition. Moreover, how can Rabbi Nissim permit one to cause another to stumble in orlah even from the outset?

Rabbi Elhanan Wasserman, in an article in Ohel Torah, made an especially far-reaching proposal. First, he claims that Rabbi Nissim’s words were not said only about orlah, but about all cases where biblical doubt is treated leniently. He explains this by saying that all such prohibitions are prohibitions of consciousness. The Torah does not forbid orlah fruit outside the Land of Israel as such; rather, it forbids the conscious act of eating orlah fruit. The Torah has no problem with the mere fact that a person eats orlah fruit; its objection is only to the act of eating fruit that the person knows to be orlah.

That is how he explains all the cases in which the rule is that doubt is treated leniently. The concern of violating biblical law exists in all such cases. If an ordinary fifty-percent chance of violating a prohibition suffices to forbid us from acting, it is not clear why in these cases we allow people to enter situations in which many of them will certainly violate biblical prohibitions.⁴⁵

Rabbi Elhanan’s claim is that in all these cases there is no objective prohibition at all. The factual state in which the prohibition occurs is not a problem in the Torah’s eyes, and therefore the Torah has no problem with the fact that people may objectively violate it. The problem in those cases is only the subjective-consciousness problem: that the person performs the prohibited act knowingly.

In the case of preparing the lamps, as we saw in our essay on the portion Tetzaveh, the Torah wants us to engage in the effort leading to the lighting of the menorah in the Temple—that is, preparing the lamps—but the actual lighting may occur automatically, even through a non-priest, in the sense that “the flame should rise on its own.” There too the claim was not that the Torah wants the menorah to be lit and merely imposes on us an action-duty rather than a result-duty for its own reasons. Our claim was that the state desired by the Torah is that we engage in preparations for lighting. The lighting itself is not what really matters to the Torah, at least not as an obligation imposed on us.

A similar case is circumcision. There too the father is obligated to exert himself toward his son’s circumcision, but the commandment—the result—is not imposed upon him. One consequence of this is that he need not appoint the circumciser as his agent.

In both these examples there are states that look merely preparatory to some resulting state. At first glance the obligation in the preparatory state ought to derive from the attitude toward the resulting state. Yet we see that the attitude toward the preparation is independent of the attitude toward its result. This is exactly the case with a prohibition inferred from a positive commandment. There too the Torah regards the principal value as the effort to avoid the state, and not the state itself.⁴⁶

Consequences: the meaning of the prohibition of forbidden foods

If we now return to the examples of prohibitions inferred from positive commandments, we can ask whether these explanations fit, and conversely whether by means of these definitions we can understand the Torah’s intent in those cases.

For example, the commandment to inspect the signs of purity in animals and fish, which is defined as a prohibition inferred from a positive commandment. This inspection is not a positive value in itself, and its aim is to prevent the state of eating an impure animal. Yet the fact that it is defined as a prohibition inferred from a positive commandment means that, from the standpoint of this commandment, the eating itself is not the problem; rather, there is a duty of avoidance. Perhaps the ordinary prohibitions that exist in parallel are what add the problematic quality to the act of eating impure creatures.

Now, if that were indeed the case, then the prohibition on eating ought to be an ordinary prohibition, for it negates the state of eating an impure creature. But if we define it as a prohibition inferred from a positive commandment, the conclusion is that eating impure creatures does not itself produce spiritual obtuseness of heart; rather, only negligent eating—that is, eating without prior inspection—does so. That would make it a result of sinful consciousness and not of the act of transgression in itself.

One consequence of such a conception concerns the spiritual obtuseness produced by eating forbidden foods.⁴⁷ In the following verse there is an unusual spelling:

Do not make yourselves detestable through any swarming thing that swarms, and do not defile yourselves through them, lest you become defiled by them.

The word is written in a deficient form, from which the Sages derive in Babylonian Talmud, Yoma 39a:

The school of Rabbi Ishmael taught: Sin dulls a person’s heart, as it says, “Do not defile yourselves through them, lest you become defiled by them.” Do not read “become defiled” but “become dulled.” Our Rabbis taught: “Do not defile yourselves through them, lest you become defiled by them”—if a person defiles himself a little, he is defiled much; below, he is defiled above; in this world, he is defiled in the world to come.

The early authorities explain that this applies mainly to forbidden foods, and not to every transgression.

Yet Rema, in Shulhan Arukh, Yoreh De’ah 81:7, writes:

The milk of a non-Jewish woman is like the milk of an Israelite woman. Nevertheless, if possible one should not have a non-Jewish woman nurse an infant instead of a Jewish woman, because the milk of a non-Jewish woman dulls the heart. Likewise, the nursing woman, even if Jewish, should not eat forbidden foods. The same applies to the child himself, because all this harms him in old age.

Rema explicitly distinguishes between the legal question and the question of spiritual obtuseness. Clearly he is discussing situations in which it is legally permitted to eat forbidden foods or to nurse from a non-Jewish woman, and it is not even agreed by all that there is a prohibition in such nursing. Yet he writes that even in such situations one should refrain, because it produces a bad nature and causes harm. In any case, he says this even regarding an infant, who certainly has no conscious awareness of any prohibition. It is therefore clear that this cannot be understood as a result of sinful consciousness. Here the conception is plainly that it is a physical-spiritual consequence of the act itself. So too Shakh there writes:

Likewise, the nursing woman, even if Jewish, should not eat forbidden foods—meaning, although independently she is in any case forbidden to eat them, nevertheless even for the sake of the child she should not eat them. The practical difference is that if she is ill and must be fed forbidden foods, the father should not let the child nurse from her, but should hire another Jewish nurse.

Likewise the child himself—meaning, although if a minor eats rabbinically forbidden foods, his father is not strictly obligated to separate him from them, nevertheless he should separate him because this harms him in old age, for it dulls the heart and gives him a bad nature.

In the glosses of the Vilna Gaon there it appears that he understood this as a law unique to nursing milk, namely that nursing transmits the nature of the nurse. The broader discussion among the early authorities, including the sugya in Ketubot 60, lies beyond our present concern.

Remarks on the law of the state

Above, in Part A, we noted that ordinary legal systems contain only prohibitions. Even what appear to be positive commandments, such as the duty to pay taxes or serve in the army, are not really such. They are either prohibitions involving no act or prohibitions inferred from positive commandments.

We may now ask whether these are prohibitions inferred from positive commandments or prohibitions involving no act. We explained that a prohibition involving no act points to a prohibition against being in a negative state. By contrast, a prohibition inferred from a positive commandment imposes a duty to avoid some state. As we saw, this is fundamentally a duty of action, and it is not necessarily correct to say that the state itself is intrinsically unworthy.

We also noted that the motivation for defining a commandment in this way arises from its subjectivity—namely, precisely from the fact that the state to be avoided is not negative in itself. These commandments are essentially matters of positive orientation. They are intended to educate us, and not to prevent some objective problem.

From these two observations we may conclude that such state laws are probably prohibitions involving no act and not prohibitions inferred from positive commandments. The punishment for not paying taxes is not because we failed to do something as an act of self-cultivation, nor from some desire to correct a defect in our character, but because the result was not achieved—the money owed to the state treasury did not get there.

This seems to follow chiefly from a liberal conception that does not view the purpose of law as educational, and perhaps not even as defining what the citizen ought to do. The law imposes obligations and grants rights, and nothing more. Therefore even duties that appear to involve active performance are, in halakhic terms, only “prohibitions involving no act.”

F. Several Notes on Nahmanides’ Position

Introduction

The distinction we made between a prohibition inferred from a positive commandment and an ordinary prohibition is based on our proposal that the definition of prohibition and positive commandment is not based on the performative plane but on the substantive one. The character of the divine will determines the character of the commandment. If the distinction were only on the performative plane—or likewise if it were based only on the linguistic plane—there would be no room for these distinctions at all.

If so, the very existence of the category of prohibition inferred from a positive commandment as a category distinct from an ordinary prohibition is evidence against those conceptions. True, as we saw, Saadia Gaon treats a prohibition inferred from a positive commandment as a prohibition, and perhaps consistently with his general approach. He explains that the Torah writes this instruction in the form of a prohibition inferred from a positive commandment only to teach that there is no punishment here—that is, that it is a lighter prohibition. The exegetical question remains very difficult for such approaches, and it seems that they will be forced to attribute everything to tradition: namely, that we received by tradition that those commandments are not positive commandments but light prohibitions inferred from positive commandments.

Summary of Nahmanides’ position

What, then, is Nahmanides’ position in this matter? At first glance he distinguishes between prohibition and positive commandment exactly like Maimonides, and therefore does not treat a prohibition and a positive commandment as duplication. We also saw that he holds a prohibition inferred from a positive commandment to be indeed a positive commandment, for he counts such prohibitions among the positive commandments—see also his additions to the positive commandments, commandments 10-12 and others—which likewise points in the same direction. We further saw that a prohibition inferred from a positive commandment that appears alongside an ordinary prohibition is not counted, and we explained that too in his view: the duty to avoid a state is not counted as an independent commandment in situations where the Torah also directly prohibits the state from which one is to abstain.

Eating sabbatical-year produce

The Torah commands us:

And the sabbath produce of the land shall be for you for food—for you, for your male servant, for your female servant, for your hired laborer, and for your resident who dwells with you.

From the definition that sabbatical-year produce is designated “for food,” the Sages derive in several places exclusions of commerce and burning, loss, laundering-soak, and even meal-offerings and libations.

One might have understood that there is no prohibition on all those uses, but only a positive commandment to eat sabbatical-year produce, as the plain sense of the verse suggests. On the other hand, the language of the Sages points to genuine prohibitions. Since the verse is formulated like a positive commandment, perhaps we have here a prohibition inferred from a positive commandment.

Nahmanides, however, in his third added positive commandment among those he says Maimonides omitted, writes:

The third commandment that the Torah stated regarding sabbatical-year produce is: “And the sabbath produce of the land shall be for you for food,” and they expounded: for food and not for commerce. This is a biblical matter, as they said at the end of tractate Avodah Zarah: one who pays his debt with sabbatical-year produce, whereas the Torah said: for food and not for commerce. In many places in the Talmud as well it appears in this form. This commandment is repeated in the phrase, “And the poor of your people shall eat.” Scripture did not say “Leave them for the poor of your people,” as it said regarding gleanings and forgotten sheaves, but rather the language of eating is mentioned with regard to them everywhere. Therefore one who engages in commerce with them violates a positive commandment.

Many commentators explain that his intention is that this is a prohibition inferred from a positive commandment, and that in such a commandment there is, in his view, a positive commandment to eat sabbatical-year produce, while the prohibition is merely the violation of that positive commandment. That is, one who trades in the produce does not fulfill the commandment to eat it, and from there the prohibition follows. If that were his meaning, he would be presenting a wholly different conception of a prohibition inferred from a positive commandment. He would be treating this sort of commandment as a full positive commandment, with the prohibition only as a logical consequence of the positive commandment’s existence, since one who trades the produce cannot eat it.

But if we look closely, Nahmanides does not mention here at all the concept of a prohibition inferred from a positive commandment, and indeed that term does not appear in the Sages’ discussion of this commandment either. It therefore seems that his intention is to argue that this is an ordinary positive commandment and nothing more. A prohibition inferred from a positive commandment, by contrast, is interpreted by him exactly as by Maimonides.

It now becomes clear that one who trades in sabbatical-year produce simply neglects an obligatory positive commandment, but does not violate a prohibition inferred from a positive commandment. That is indeed the sense of his language here.

Further disputes with Maimonides

There are several other disputes between Nahmanides and Maimonides, some of which arise in Nahmanides’ glosses here, and all of which are reflected in the additions and omissions in Nahmanides’ own enumeration as compared to Maimonides’. It seems, however, that most of these disputes do not stem from a different conception of a prohibition inferred from a positive commandment, but from exegetical disagreements. Some of them arise in cases of duplication between a prohibition inferred from a positive commandment and an ordinary prohibition, but beyond that there are disputes in which Nahmanides adds or removes prohibitions inferred from positive commandments that Maimonides counted.

For example, the commandments “To the foreigner you may lend on interest” and “The foreigner you may press,” which Maimonides treats as ordinary positive commandments, are taken by Nahmanides as prohibitions inferred from positive commandments.

Likewise, with regard to inspection of the signs of purity, Maimonides appears to see here positive commandments, whereas Nahmanides seems to regard them as prohibitions inferred from positive commandments. Yet here Maimonides himself also means a prohibition inferred from a positive commandment, as explained above. With respect to the positive commandment regarding sowing in the sabbatical year, we already discussed that above at the beginning of section B.

An exact opposite example is the prohibition against commerce in sabbatical-year produce, which Nahmanides understands as an obligation to eat—that is, as an ordinary positive commandment—whereas Maimonides sees it as a prohibition inferred from a positive commandment.

By contrast, in other commandments Nahmanides agrees with Maimonides, such as positive commandments 38 and 60, and also in the three commandments he adds to his own enumeration: commandment 10, that every sacrifice be only from three types of animals; commandment 11, the commandment that completion of the daily offerings defines the time of all other sacrifices; and commandment 12, that the Paschal lamb may be eaten only at night and not on the day it is slaughtered.

A possible distinction

Perhaps some of these disputes can be understood through the following distinction. The High Priest’s obligation to marry a virgin, and the offering of animals from the three species mentioned in the verse—the tenth positive commandment that Nahmanides added—are commands that in the end are actually carried out. There is an obligation to offer sacrifices. Therefore, if it is forbidden to offer any other type, it is obvious that one must offer from these. There is no third possibility. The same applies to the High Priest: if he may not marry a non-virgin, and on the other hand he is obligated to marry a woman—indeed this is indispensable for the Yom Kippur service, as stated in the Gemara in Yoma 13a—it is obvious that he will marry a virgin. There is no third possibility.

If so, in both these cases, although the positive commandment is not obligating in the full sense, since this is a prohibition inferred from a positive commandment, the act will in any event be done because of the surrounding practical considerations. Therefore, de facto, this can perhaps be interpreted as a positive commandment.⁴⁸ The same applies to the offering of an animal that is too young. There is an obligation to offer sacrifices, and on the other hand it is forbidden to offer an animal lacking the proper age. In practice, therefore, the person will have to offer an animal whose time has come. Hence this commandment too can be treated as a positive commandment, and therefore Nahmanides agrees with Maimonides in counting these two commandments.

By contrast, a person who is forbidden to take interest from, or press for repayment from, a Jew can lend to a foreigner, but can also simply refrain from lending his money to anyone at all. Here there is no positive commandment or prohibition in the background of the matter, and therefore the result is not compelled.

In such cases, Nahmanides argues, the act of lending to a foreigner at interest does not follow necessarily from the prohibition inferred from the positive commandment. It need not be done at all. In these types of prohibition inferred from a positive commandment—pressing and taking interest from a foreigner—perhaps Nahmanides does not interpret the command as a positive commandment, but as imposing an additional, lighter prohibition on lending at interest to a Jew, like Saadia Gaon.⁴⁹ The same would be true of the “commandment” to eat pure animals, birds, and fish. One can eat other things, such as plants, and therefore this too would be interpreted as a prohibition rather than as a positive commandment.⁵⁰

According to this proposal, there really are different types of prohibition inferred from a positive commandment, and each case must be judged on its own. There would then be reason to reexamine Maimonides’ own treatment of these types as well, for as we saw above, his wording indeed suggests that there are several types.

Since we did not wish to enter here into the details of the parameters of the various commandments, we could not develop these sub-distinctions further, either in Maimonides or in Nahmanides. The rest is left to the reader to work out.

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Footnotes

We did not give them a symbolic formalization, for fear that for some readers this would complicate matters even further. ↩↩
In the notes in the Frankel edition there, it is brought that Maimonides’s wording in Arabic, and in Ibn Ayyub’s translation as well (and this also seems implied by Nahmanides here), is: “And I do not recall anyone who erred in this principle, according to what I remember now.” This takes on added significance in light of our discussion in the next chapter, where we shall see that Saadia Gaon and Sefer Mitzvot Katan in fact do disagree with him on this root. It may be possible to infer from this that Maimonides had not seen Saadia Gaon’s words in his Azharot and in his Sefer ha-Mitzvot. Further support for this may be found in the fact that he does not mention him in his introduction, nor throughout any of his roots. In addition, this is suggested by his dismissive reference to all the authors who followed Halakhot Gedolot (the authors of the Azharot) as liturgical poets, a description that certainly does not befit Saadia Gaon, who by universal agreement was a giant in both halakha (Jewish law) and thought. ↩↩
Maimonides wrote that this expression appears “many times.” In fact, it appears only in Babylonian Talmud, Makkot 15a, and this has already been noted; see the notes to these remarks in the Frankel edition. It should be added that in the second root Maimonides used similar language regarding the plain sense and homiletic interpretation of biblical verses, where he writes: “And the Talmud asks everywhere and says, ‘What is the verse itself speaking about?'” There too there are only three examples, two of them concerning the same issue: Babylonian Talmud, Yevamot 11b and 24a, and Shabbat 63a. This requires further examination. ↩↩
To be sure, in Saadia Gaon’s Azharot only one commandment in fact appears, and it is a positive commandment. See Rabbi Yerucham Perlow’s commentary, where he noted this. ↩↩
In a footnote in the previous article, we pointed out that this difficulty depends on the wording Maimonides chose in expressing the principle of the ninth root. We saw there that had he formulated the principle in the simpler way — “Even when the Torah repeats the same command several times, only one commandment should be counted” — then in the case of a prohibition and a positive commandment it would be clear that we should count two different commandments, since in such a case the Torah is not repeating the same command twice, or at least this would be a case like neshekh and tarbit, the two forms of interest. But according to the formulation Maimonides actually chose for the principle of the ninth root — namely, the determination that we relate to contents rather than to commands — Rabbi Yerucham Perlow seems justified in attacking Maimonides here: why, in the duplication of a prohibition and a positive commandment, does he in fact relate to the commands rather than to the contents, which overlap? ↩↩
It seems clear that this is his conclusion, because, as we have seen, he draws a conclusion regarding the enumeration of the commandments. His claim is that the linguistic approach sees the scriptural command as the foundation of the commandment, and from this he derives conclusions. According to our analysis, however, no such conclusion should be drawn, since the linguistic formulation is only an indication of a substantive difference and does not stand on its own.

We discussed the relation between the command and its content in our article on the ninth root, and there we saw that the conception according to which the content of the command has no significance and only the bare fact of its existence matters characterizes “the weak-minded,” in Maimonides’s terminology in Guide of the Perplexed III:31. That is, this conception has no real standing in Jewish thought, and certainly not in any part of it that bears any connection to halakha. ↩↩
Perhaps this is the place to point out a difference between the academic approach and the approach of the beit midrash (traditional study hall). The academic approach points to halakhic or historical facts and makes the phenomenological distinction between the approaches it finds “in the field.” The beit midrash must also ask itself about the reason for things, that is, it must ask an additional “why” question. It must seek the religious-theological logic behind these definitions, even though this involves a certain risk of speculative claims that are not fully grounded in the factual findings. The findings underlie the phenomenological distinction, but without explanation they are “orphaned” and devoid of religious meaning.

M. Avraham’s quartet describes this debate in terms of an analytic approach versus a synthetic approach: those who insist on relying only on facts and proofs, as against those willing to broaden the picture with a certain degree of speculation. As hinted by the title of the first book, Two Wagons and a Hot-Air Balloon, it is impossible to learn anything without taking some risk of error. One who clings only to facts will never be able to understand anything. This is true of the “exact” sciences, and certainly of the social sciences and the humanities.

Contrary to what many think, there is not necessarily any real dispute between these approaches. Analytic phenomenology is an important, indeed necessary, basis for understanding. This is true in the natural sciences and in the humanities as well; see What Is and What Is Not, throughout. In practice, however, there are those who reject the additional beit midrash layers because they are not always necessarily anchored in the sources; in the quartet’s terminology, they are “synthetic” in character. Conversely, in the beit midrash there are those who reject “scientific” phenomenology, because it does not always accord with the tradition we possess, and certainly not with the form it has now taken. The beit midrash focuses mainly on the question of the nature of the tradition in its current form, and less on the “archaeology” of earlier forms; see on this M. Avraham’s article in Akdamot 9.

The conclusion is that the dispute between these planes of discussion is usually illusory at root, because it stems from each side’s assumption that the plane with which it deals is the exclusive one. If both sides understand that these are two parallel and complementary planes, the dispute will disappear in a large number of cases. Each side may stand to gain from relating to the other plane as well.

To conclude this note, let us mention that progress toward a synthesis between these two planes of discussion is one of the central goals that the Midah Tovah association has set for itself. ↩↩
True, logic is usually attributed to the syntactic part of analysis rather than to semantics. But in logic there are both aspects, and between them there is what is called the soundness and completeness theorem, which establishes the correspondence between the two planes. We will also discuss the relation between semantics and syntax in our article on the fifth root, the next article. In any event, this aspect still requires much further clarification, and this is not the place for it. ↩↩
From this it follows that according to Saadia Gaon there are three positive commandments that carry karet (spiritual excision), not two: the Paschal offering, circumcision, and Yom Kippur. According to the other medieval authorities, Yom Kippur does indeed involve karet, but it may be attached to the prohibition rather than to the positive commandment. According to them, it is accepted, as explained in the Mishnah tractate Keritot, that there are only two positive commandments that carry karet: the Paschal offering and circumcision. See Rabbi Yerucham Perlow’s commentary on positive commandment 55, where he discusses the passage in Keritot and rejects the proof from there. ↩↩
It may be that this depends on the content of the day. On Yom Kippur we are not in mourning, unlike the other fasts. The fast is meant to detach us from our material desires and from our connection to matter. If so, the goal is positive: that we become like angels, spiritual and without attachment to matter, rather than escaping a negative state. By contrast, on other fasts, whose essence is mourning and sorrow, the main point is not eating, not affliction. ↩↩
On this matter, see our article on the Torah portion Yitro, 5767. ↩↩
On this matter, see Jerusalem Talmud, Gittin 7:6, and Kiddushin 3:2, where Rabbi Yohanan and Resh Lakish disagreed on this issue. Some, however, had the text the other way around. Compare Babylonian Talmud, Ketubbot 2b-3a, regarding the condition “This is your bill of divorce if I do not come.” As a matter of halakhic ruling, the decisors held that coercion is not equivalent to action. ↩↩
See our article on the Torah portion Bereshit, 5767. There we discuss the distinction between fulfilling a commandment and reaching a state of exemption from it. ↩↩
And not an existential commandment, which is a different kind of commandment. A conditional commandment is a positive obligation imposed on us only under certain circumstances. An existential commandment is not obligatory upon us at all, under any circumstances. See our article on the Torah portion Vayeshev, 5767, especially note 4, and a bit more below in chapter 6. ↩↩
See also the end of our article on the Torah portion Yitro, and also the article on the Torah portion Vayetze, 5767, where we elaborated on normative negation as against logical negation. ↩↩
If we now ask what the normative status of a command like (II) is: had it been logically equivalent to a positive commandment, as we initially thought, then it would have been a positive commandment, even though it begins with a negative formulation. But we have now seen that it is not logically equivalent to a positive commandment, and therefore the answer is that it is a prohibition without an action. It is not a positive commandment because, linguistically, it begins with the word “not,” and this expresses that in its essence it is a prohibition against our being without tefillin. By contrast, the instruction “I command you to be without tefillin” is a positive commandment that one violates through an active deed, as with refraining from work on the Sabbath.

Thus, it is no accident that the Sages define anything that opens with the words “beware,” “lest,” “do not,” and “not” as a prohibition by its very definition. The concrete content does not change this; at most, it can define it as a prohibition without an action, but never as a positive commandment. Even so, the linguistic difference should not be seen as exhausting the distinction. It is only an indication of a normative difference. In this way we have shown that Shemesh’s conclusion is incorrect. ↩↩
However, from Maimonides’s words in his Commentary on the Mishnah, Pirkei Avot 2:1, it appears plainly not like Nahmanides:

Afterward he said: “Even though the degree to which one commandment is more beloved than another has not been explicitly clarified, there is a way to infer it, namely: every positive commandment whose violation incurs a great liability — know that its fulfillment likewise carries great reward. For example, circumcision, the Paschal offering, resting on the seventh day, and making a parapet are all positive commandments. Yet one who performs labor on the Sabbath is liable to stoning; one who neglects circumcision or the offering at its appointed time is liable to karet; and one who leaves blood in his house violates a prohibition, as it says, Deuteronomy 22:8, ‘You shall not place blood in your house.’ From this you know that the reward for Sabbath rest is very great, greater than the reward for circumcision, and that the reward for circumcision is greater before God than the reward for making a parapet. This is the meaning of his statement, ‘Consider the loss incurred by a commandment against its reward.’ He further said that you can also learn the reward for refraining from a transgression, even though this too has not been explicitly clarified, by learning it from its punishment. For a sin whose punishment is severe in proportion to its gravity — the reward for refraining from it is in the same proportion to that gravity, as explained in Kiddushin in their saying: ‘Whoever sits and does not commit a transgression is given reward as one who performs a commandment.’ We have already explained this there.”

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Tosafot here assumes the conception that if there is a prohibition and a positive commandment standing against a positive commandment, then the positive commandment overrides the prohibition, and what remains opposing it is only the positive commandment. That is, the prohibition and the positive commandment can be separated. But this itself depends on a dispute among the Tosafists in several places, and this is not the place to elaborate. ↩↩
See our articles on the third and thirteenth roots for more detail. ↩↩
This prohibition applies even to a one-day-old minor. It is a Torah prohibition, and it is not connected to the laws of education, which are only a rabbinic obligation from the age of training onward. This prohibition is incumbent on every adult, not specifically on the parents, unlike the obligation of education, which rests only on the parents. ↩↩
See Tzedakah u-Mishpat, chapter 1, note 23. ↩↩
See the responsa of Rabbi Yehoshua Leib Diskin, part 1, section 24, who resolved the difficulty in this way. ↩↩
There is, however, another rule: if there is a prohibition from which women are not exempt, then they are not exempt from the positive commandment either. Some see this as a principle unique specifically to Sabbath observance, where “keep” and “remember” were said in a single utterance, but in their view there is no such general principle for all cases of duplication. But according to most opinions, this is a general principle: whenever there is a prohibition, women are obligated in the positive commandment as well. The reasoning is very simple, for the exemption from the positive commandment exists for some reason — whether, as Abudarham held, its purpose is to free them for household labor, or, as we suggested in our articles on the third and thirteenth roots, because abstraction is not a task imposed on women; see there. But if in any case they will be required to act in that way because of the prohibition, then there is no point at all in exempting them from the positive commandment as well. This will neither ease their burden nor achieve any other purpose, since this temporary constraint obligates them in any event. ↩↩
He dealt with this at length in Kunteres Divrei Soferim, section 3; see there. ↩↩
There are indeed sources from which it appears that there is also punishment for neglecting such commandments, such as neglect of Torah study, or punishment in a time of divine anger for refraining from wearing a four-cornered garment; see Babylonian Talmud, Menahot 41a. But all of these are punishments not for neglecting a positive commandment as such, but for a general character of the service of God.

Let us note that the passage in Menahot concerns neglect of a conditional commandment, not neglect of an existential commandment; see the note above on the difference between them. One should pay attention to the fact that the Gemara there asks, “Do you punish for a positive commandment?” That is, what troubles it is how punishment can be given for neglecting a positive commandment at all, not how punishment can be given specifically for neglecting an existential positive commandment. ↩↩
It should be noted that his words there apply only to an inadvertent transgressor. Even so, it emerges from this that an inadvertent violation of a prohibition differs from an inadvertent failure regarding a positive commandment, something that apparently stems from a substantive difference between positive commandments and prohibitions. See there, however, where he inclines to the view that even certain inadvertent violations of prohibitions are not considered transgressions, and these matters are longstanding.

We should note that the very fact that the atonement is through a burnt offering indicates that there is a transgression here in the heart and not in the action; see there in Rashi, Nahmanides, and others. This is a deficiency of virtue, not a failure. ↩↩
Here we require a discussion of the principle that greater is one who is commanded and acts than one who is not commanded and acts. Is the performance of existential commandments in general in the category of one who is commanded and acts? Even if it is, how is its merit conceived in comparison to one who acts beyond the letter of the law? Perhaps there are commandments, such as character refinement according to Rabbi Kook’s explanation in his letters, in which greater is specifically one who is not commanded and acts, and for that reason they are defined as such. This is not the place to elaborate. ↩↩
Care must be taken not to confuse matters. We do not mean that the choice is in our hands whether to observe the prohibition or not. Every prohibition binds us, and every violation of a prohibition is a negative act. This follows from the very fact that it is a prohibition, just as in every positive commandment its fulfillment is a commandment. That too follows from its very definition as a commandment.

What we mean here is the definition parallel to what we found regarding positive commandments: an existential prohibition means that refraining from violating it is not itself considered a commandment. But of course it is forbidden to stumble into it, and that is not left to our choice. ↩↩
For example, see Jerusalem Talmud, Kiddushin 1:9:

“Whoever performs one commandment, they do good to him, and so forth. Hence, whoever sits and does not commit a transgression is given reward as one who performs a commandment. And can you really say so? Rather, we are dealing here with a person who is evenly balanced: if he performs one commandment, they do good to him, prolong his days, and he inherits the land; but if he commits one transgression, they do not do good to him, do not prolong his days, and he does not inherit the land. There we learned: ‘Hence, whoever sits and does not commit a transgression is given reward as one who performs a commandment.’ Rabbi Zeira said: this refers to one before whom a possible transgression came and he did not commit it. Rabbi Yosi son of Rabbi Bun said: one for whom a commandment was singled out, and he never transgressed it in all his life — what case would that be? Rabbi Mari Ukva said: such as honoring father and mother. Rabbi Mana said: ‘Happy are the blameless in the way, who walk in the Torah of the Lord’ — as though they walk in the Torah of the Lord. Rabbi Avun said: ‘They also do no wrong; they walk in His ways’ — as though they walk in His ways. Rabbi Yosi son of Rabbi Bun said: what is written? ‘Happy is the man who has not walked in the counsel of the wicked’ — since he has not walked in the counsel of the wicked, it is as though he has walked in the counsel of the righteous.”

See there for the entire passage. And see also Tractate Kallah 1:17, and likewise Kallah Rabbati 1:5 and 2:3, and elsewhere. ↩↩
One might have suggested counting only the positive commandment, that he be married to her, with the prohibition as an additional detail within the positive commandment, or vice versa. There is no real difference between this and the alternative we proposed. Even according to our proposal, it is not clear whether this inclusive commandment, if it were counted, would be included among the positive commandments or among the prohibitions. It seems that according to Saadia Gaon it would be included in the place where its substance was more clearly expressed. In this case, it is more likely that it would be a positive commandment. ↩↩
One may say that the transgression lies in the act, but the aim of defining the transgression is the state of the resulting situation. The Torah defines transgressions as actions because that is what is given into human hands, but the values underlying the commandments can also be states. According to this, one can say that the positive commandment repairs the result of violating the prohibition, not the prohibition itself. Therefore, although there is indeed a transgression in the act, and in that sense there is no repair for what was done, the result is repaired by the positive commandment. Hence there is nevertheless a certain alleviation in the prohibition if the positive commandment is fulfilled. We pointed to a similar consideration in our article on the Torah portion Bereshit, 5767.

It may be that this is the common distinction between the actual, spiritual damage of the transgression and the disobedience involved in it. The disobedience was in the act, and that cannot be repaired; it can only be addressed through repentance. The result, that is, the damage, can be repaired by changing the situation. On this matter, see Kovetz Ma’amarim by Rabbi Elhanan Wasserman, “Essay on Repentance,” and also several of our earlier articles, especially on the second, fourth, and ninth roots. ↩↩
See his introduction in section 3, and there in the passage relating to the sixth root, together with his references there to the commandments in which this principle is specified. ↩↩
As for Maimonides’s view, the commentators disagreed whether a prohibition implied by a positive commandment is a prohibition or a positive commandment. Rabbi Yerucham Perlow there holds that Maimonides too views it as a prohibition for which lashes are not administered, and so too Megillat Esther on this root and in his glosses to positive commandment 10 in Nahmanides’s supplements; see also Kena’at Soferim on this root and on positive commandment 38. Nahmanides in his glosses here, Lev Sameach here, and other commentators, however, wrote that Maimonides’s view is that this is a positive commandment. That is indeed the plain meaning of Maimonides, who, as we saw above, counted several such positive commandments. We will assume below, regarding Maimonides, that his view is that this is a positive commandment.

This is not the place for a detailed clarification of Maimonides’s method, because doing so requires a detailed discussion of various commandments in the enumeration of the commandments. As is our way in these articles, we will focus on the principled aspects of the different positions, and for the sake of the discussion we will assume the simple understanding of Maimonides’s opinion, as above. On this matter, see the commentators here, and also Maimonides, Mishneh Torah, Laws of the Prohibitions of the Altar 5:6, together with Mishneh La-Melekh and Sefer ha-Mafteah in the Frankel edition there; and Laws of Marriage 1:8, together with Mishneh La-Melekh and Sefer ha-Mafteah in the Frankel edition there. Rabbi Yerucham Perlow proved from the case of first- and second-generation Egyptians and Edomites, who are forbidden by a prohibition implied by a positive commandment and whom Maimonides did not count, that Maimonides does not count such commandments at all. He wondered there why Maimonides did not count them; see Malbushei Yom Tov.

On the matter of the Egyptian and Edomite case, see Responsa Hatam Sofer, Even Ha-Ezer, part 1, end of section 151, which explained Maimonides’s words. Anyone who explains Maimonides here by a local explanation apparently assumes that he holds such commandments should be counted, and this is the plain sense of Maimonides, unlike Rabbi Yerucham Perlow, who himself remained uncertain about Maimonides’s view.

Rabbi Yerucham Perlow, at the beginning of section 3, assumed that Nahmanides too agrees with Saadia Gaon that this is a prohibition for which lashes are not administered, and he himself wondered about this because of several contradictions in Nahmanides’s words.

As stated, for these reasons we will assume below that Maimonides’s view is that a prohibition implied by a positive commandment is a genuine positive commandment, unlike Saadia Gaon and unlike Rabbi Yerucham Perlow. And so too with Nahmanides we will assume that he holds this to be a positive commandment, with the reservations that we shall see below. ↩↩
See Pkudei Yesharim on the sixth root, where he brought all these proofs. ↩↩
Rabbi Yerucham Perlow argues in his introduction, section 3, that since Maimonides does not attack Halakhot Gedolot, it is clear that he too agrees with it on this point, unlike Nahmanides’s understanding of Maimonides. See also the book Pkudei Yesharim on the sixth root, which argues that Maimonides too does not count a prohibition implied by a positive commandment when it has no practical difference from the ordinary prohibition counted alongside it. In other words, in his view Maimonides also agrees that one should not count a prohibition implied by a positive commandment in addition to the prohibition itself. This claim does not seem plausible in light of Maimonides’s approach here, and this is not the place to elaborate. ↩↩
Rabbi Yerucham Perlow argues in section 3 of his introduction that Maimonides and Nahmanides also hold that a prohibition implied by a positive commandment is a prohibition and not a positive commandment, in accordance with Saadia Gaon’s view. In my opinion, he leaned too heavily after his own conception. ↩↩
On the influence of values on the interpretation of Scripture and its commands, see Moshe Halbertal’s book Interpretive Revolutions in the Making, especially the first and last chapters, which deal with the principled discussion, but also in the examples discussed throughout the book. There too the two possibilities arise regarding the source of the values that underlie interpretation: they can be drawn from various places in the Torah, or from a priori moral-value principles. ↩↩
As is well known, Saadia Gaon counts the commandment “And when the Lord enlarges your border, and you eat meat” as a positive commandment to eat non-sacrificial meat. According to his view, there is no doubt that, from the standpoint of values, a positive commandment of “These are the animals that you shall eat” is possible. Therefore, here we must explain that there is a tradition saying that this is a prohibition implied by a positive commandment. Let us recall that Saadia Gaon apparently understands prohibitions implied by positive commandments as prohibitions. That is, there is here a tradition that this is a lighter prohibition for which lashes are not administered.

I note here that, were it not for Saadia Gaon’s words, an a priori conception would certainly be possible according to which one cannot establish a positive commandment to eat meat. There is a well-known approach according to which the eating of non-sacrificial meat was permitted to us only after the fact, after the sin of the Tree of Knowledge, and in order that human beings not be equated with animals, and so on; see, for example, The Vision of Vegetarianism and Peace by the Nazir of Jerusalem, and others. If so, according to this conception it is clear that one cannot view a command to eat meat as a binding positive commandment. At most, we have here an after-the-fact permission, until we reach a higher moral state.

According to this, one may also say that Saadia Gaon’s counting of the commandment of eating non-sacrificial meat shows that he did not share that approach. In his eyes there is no moral problem, even ideally, in slaughtering animals for the sake of eating them. Apparently he did not share The Vision of Vegetarianism and Peace. ↩↩
It should be noted that from the Gemara in Babylonian Talmud, Yoma 13a, it is clear that the High Priest must marry a woman, and this is even indispensable for the Yom Kippur service. The command, however, does not derive from this commandment but from elsewhere; see there. If so, this commandment by itself can still be interpreted as an affirmative prohibition against marrying a non-virgin, meaning only that when the High Priest comes to marry a woman, he should marry a virgin. According to our argument, if the High Priest does not marry at all, he does not thereby cancel this commandment, but rather the commandment discussed in Yoma 13a. Therefore there is no ordinary positive commandment here to marry a virgin, but rather an affirmative prohibition against marrying a non-virgin. ↩↩
For example, someone else checked it earlier, and the eater himself did not know this. ↩↩
Marrying a woman is itself a commandment, at least for the High Priest, as explained above. ↩↩
On the moral aspect of the matter, see the book Enosh ka-Hatzir; and on the conclusions regarding its applicability in our time, see M. Avraham’s article, “Is There an ‘Enlightened’ Idolatry?,” Akdamot 19. ↩↩
The point is explicit in Nahmanides’s glosses to the fourth root; see the Frankel edition, p. 111. ↩↩
However, with this formulation it is not clear how one violates two prohibitions and a positive commandment. When one lends with interest to a Jew, one violates a prohibition and a prohibition implied by a positive commandment. But the positive commandment itself is, apparently, not violated — unless we say that there is a positive commandment to lend with interest specifically to a gentile and not to a Jew, but that simply returns us again to a prohibition implied by a positive commandment. Perhaps he meant only that this verse contains two prohibitions and a positive commandment that can be violated, but not all in one stroke. ↩↩
In fact, regarding rabbinic prohibitions in cases where we are lenient in doubt, many later authorities explain this on the grounds that there is no objective prohibition, only a subjective one. See our articles on the first two roots at length. ↩↩
And yet, tending the lamps — and perhaps also the commandment imposed on a father to circumcise his son — is a positive commandment and not a prohibition implied by a positive commandment. ↩↩
We do not mean something physical, but a spiritual result — one that is not merely a normative determination, but has existence and consequences in reality in some metaphysical sense. ↩↩
See above in the note where, on the basis of this consideration, we said that there is no positive commandment here. Since there is no command here to marry a woman, despite the fact that such a command does exist in the Torah, this is not a positive commandment but a prohibition implied by a positive commandment. Here the claim is that since there is another command that obligates him to marry a woman, this command can once again be understood as a positive commandment. ↩↩
In Maimonides, as noted, these two are not prohibitions implied by positive commandments but absolute positive commandments, numbers 142 and 198. ↩↩
Maimonides, as noted, interpreted these commandments as a commandment to examine the signs of purity, whereas in Nahmanides it seems that the reference is to the alternative of interpreting them as a commandment to eat pure animals. ↩↩

← Lesson 7: Category 3 — The Ninth RootContentsLesson 9: Category 4 — The Fifth Root →

The Sixth Root

That when a commandment contains both a positive commandment and a negative prohibition, the positive element should be counted among the positive commandments and the negative element among the negative commandments

On the Difference Between Negative and Positive Commandments

Chapters in Normative Logic (Logical Relations among Types of Commandments and Norms)

Part A: Between Prohibition and Positive Commandment

Introduction

A. The Basic Dispute

Maimonides’ remarks in this root

The three types of duplication

Is a prohibition-plus-positive-commandment duplication?

The view of Saadia Gaon and Sefer Mitzvot Katan

Perla’s arguments

B. Between Positive Commandments and Prohibitions: Initial Phenomenology

Introduction

Returning to Perla’s account of Saadia Gaon’s position

Problems with Saadia Gaon’s and Maimonides’ positions

Performative and linguistic conceptions

The inadequacy of the above description

A substantive distinction between prohibition and positive commandment: Maimonides and his school

A substantive distinction between prohibition and positive commandment: Saadia Gaon and Semak

Saadia Gaon’s criterion

C. Between Positive Commandments and Prohibitions: A Chapter in the Logic of Norms11

A logical problem

Stick and carrot

From idea to implementation

From idea to implementation: a practical difference in result

From idea to implementation: situations of compulsion and doubt

Clarification concerning the nature of negation: logical relations among norms

Nahmanides on the portion Yitro: the relation between the basic and the elevated

A note from the author of the Tanya in Igeret HaTeshuvah

The relation to the divine will

D. Duplication of Prohibition and Positive Commandment: The Kiddushin Passage

Introduction: the connection to the ninth root

The Kiddushin discussion of duplication between a prohibition and a positive commandment

Tosafot’s approach

Again: a practical difference in result

Rabbi Yosef of the Land of Israel

Comparison with Saadia Gaon’s view

Nahmanides’ approach: a prohibition that supports a positive commandment

Two possible understandings of Nahmanides

Application to feeding minors on Yom Kippur and to charity

Further reflection on Nahmanides: the connection between active performance and positive commandments

The meaning of “reinforcement” according to Maimonides and according to Nahmanides

Resolving Perla’s objections

A note on Maimonides’ second innovation

Summary of the medieval positions on the distinction between prohibition and positive commandment and on the question of duplication

E. The relation between the distinction active performance/passive non-action and the distinction positive commandment/prohibition

Introduction

Further abstraction: active performance and passive non-action in a broader sense

Consequences

Uprooting a Torah law: proof from Rashba on Rosh Hashanah

Human dignity: Kuntres Divrei Soferim and Kehillot Yaakov

The connection between the two questions, and between them and our topic

The abstraction of the concepts passive non-action and active performance

A brief note on our discussion in the essay on the fourth root

F. Obligatory and Existential Commandments

Introduction

Obligatory and existential commandments

The difficulty

Another aspect of the distinction between prohibition and positive commandment: halakha and law

The difference between obligatory and existential positive commandments

Is there a parallel distinction between existential and obligatory prohibitions?

G. The connection between the three kinds of conjunction of positive commandment and prohibition brought by Maimonides

Introduction

The first type

The second type

The third type

Summary

Part B: A Prohibition Inferred from a Positive Commandment

Introduction

A. The Positions of the Medieval Authorities Regarding a Prohibition Inferred from a Positive Commandment

Introduction

Saadia Gaon’s approach

Maimonides’ approach

Nahmanides’ approach

Comparison with parallel sources

B. The Problems in Understanding the Various Positions Regarding a Prohibition Inferred from a Positive Commandment

Summary

The problem in Nahmanides’ position

A more general problem

C. Between Positive Commandments and Prohibitions: A Chapter in the Logic of Norms¹¹