A Look at Torah and Torah Study – Lesson 20 – Rabbi Michael Avraham

Alright.

[Rabbi Michael Abraham] Last time we finished by shifting from looking outward to looking inward. Meaning, after we reached the conclusion — I reached the conclusion, and I hope you agreed — that Jewish law is basically the core of what we call Torah. I talked about several of the areas outside Jewish law, and I said that obviously I don’t mean they’re worthless, but the definition I suggested for them is Torah in the person, not Torah as an object. Torah in the person means that engaging in those areas has Torah value so long as they really help me build my Torah picture, my Torah personality, my Torah outlook. So if I learned them and they did the job, then they definitely have value. But if they didn’t contribute to me — something that doesn’t speak to me, or something like that — then I neglected Torah study. Meaning, it’s Torah only in some subjective sense. If it helps me, it helps me; if not, not.

What’s the difference? The difference is that those other areas are not areas that were given at Sinai. And when I say “given at Sinai,” I mean the core that was given at Sinai together with the interpretive additions and everything attached to it over the generations, over history. And the claim is that those other areas don’t really enter that category. Say ethics, Jewish thought, things like that — these are ideas people came up with from their own reasoning, their own understanding, what they learned in various places, but it isn’t something said as an interpretation of what we received at Sinai. So even though it has value, and even Torah value, not just value, I prefer to call it Torah in the person and not Torah as an object. It isn’t really Torah — unlike, say, the Ketzot, right? Or the Ketzot as an example, or any halakhic analytical Torah work. If we engage in that, we’re learning Torah regardless of how much it contributes to my understanding, my personality, my Torah outlook. I simply learned another passage about extracting through a claim of “migo.” So if I learned another passage about extracting through a claim of “migo,” or a case where a prohibition has an established presumption, or whatever you want — a litigant’s admission, then I’ve basically learned another piece of what was given to Moses at Sinai. Obviously I’m not claiming it was given to Moses at Sinai just as-is, but that these are interpretations of what was given to Moses at Sinai.

We’ll get to the concept of tradition later on; we’ll deal with that too, God willing, as much as time leaves us. What was given at Sinai and what these things mean, what was added later — I don’t know, four or five lectures. So the claim, in the end, is that the areas outside Jewish law can be called Torah in the person. And I said that in a certain sense that pushes them a bit outside what is called Torah, but on the other hand it broadens things and brings in many more things from outside, things other people wouldn’t include by definition within Torah in the person. Meaning, if I study Kant, for example, that too is Torah in the person. There’s no fundamental difference between that and The Guide for the Perplexed. That’s my claim. So neither one will be Torah as an object, but both will be Torah in the person, as long as they contribute to me and matter in building my Torah world, my Torah outlook. So there’s a narrowing side here and an expanding side. It narrows the concept of Torah as an object, but as far as Torah in the person is concerned, there are no boundaries. Meaning, whatever you do that gives you Torah value is Torah in the person. Of course, as long as we’re talking about learning. And we still have two more basic concepts left for the end of the semester: tradition and learning. So we’ll still deal with that concept and this one too.

So that’s the distinction I arrived at toward the end of the previous lecture. At the very end I said that now I want to change direction. What does that mean? Until now I dealt with defining Jewish law and what lies outside it — in other words, looking outward from Jewish law. Now I want to reverse direction and look inward, into Jewish law itself. And I want to claim that even within Jewish law the situation is not so simple. Even within Jewish law there are parts or components that are Jewish law but not Torah. Meaning, if you said “Jewish law,” you didn’t necessarily say “Torah,” just as if you said “Torah,” you didn’t necessarily say “Jewish law.” There is Torah that is not Jewish law, and there is Jewish law that is not Torah. These are domains where neither is contained in the other. Okay? That’s basically the claim.

Now I said — I gave three headings… the headings were that I’d bring three examples of areas that are internal to Jewish law, and nevertheless I think it’s not right to call them Torah. And these three examples are things connected to the realm of sacrificial matters — we’ll get to that in a moment. Choshen Mishpat, basically the legal world within Jewish law. Not that everything there is like this, but within those three areas I’ll try to show you that there are components it isn’t right to call Torah. And the third thing is rabbinic laws. Okay. After that maybe I’ll also touch on logical reasoning, because that too enters this issue. We spoke about it a bit, but I’ll come back to it as well. So these are the four areas I want to go through now — not in great detail, but still enough to show what I mean.

So I’ll start with the area of sacrificial matters. Yes.

[Speaker C] Maybe we can lower the pitch a bit on the projector there? What do you call it?

[Rabbi Michael Abraham] I can disconnect that screen with the cable so I can also go back to it later when I want to, okay? Alright. The address isn’t bothering anyone, right? Fine. So I’m starting with the area of sacrificial matters, as I said before. I’ll maybe begin with an interesting point that makes sacrificial matters unique. There are a few broad, meta-halakhic points that make this area unique. For example, in sacrificial matters the night follows the day, while in ordinary non-sacred matters the day follows the night. The Talmud at the beginning of tractate Berakhot talks about this. The eating of offerings, for example, can continue into the night after the day on which you brought the offering. Meaning, the night is considered a continuation of the day on which you brought the offering, and it counts as though you’re eating it on that same day — even though in our regular calendar the day starts at night. Meaning, the twenty-four-hour period ends at twilight and then the next period begins; the night is the start of the period, not the end. Okay, so that’s one difference, but it doesn’t matter for me right now. At one point I thought maybe it could be explained in a substantive way; I’m not sure. Probably it can, but I don’t know.

But the second feature I want to talk about is: “Scripture repeated it to make it indispensable.” What does that mean? There’s a rule in the world of sacrificial matters — and only there — that if some law is said only once, and there’s no further indication, then it is not indispensable. In order for some law in sacrificial matters to be indispensable, Scripture has to repeat it. Meaning: it has to write it twice. The first time you write the law so we know the law; the second time you need to write it so we know it is indispensable. Yes, in the Torah, yes. Or you wrote it twice — there are other ways to hint that it’s indispensable. For example, if it says that it is “a statute,” or “an eternal statute.” If it says about it that it is a statute or an eternal statute, then that too is an indispensable law. Fine. But for our purposes, what matters is that the mere fact that the law is written does not itself mean it is indispensable. You need an additional indication to establish that the law is indispensable. That indication can be either that it is written again, or that it says “a statute” — it doesn’t matter. But you need another indication. Meaning, the point of departure is that a law written in sacrificial matters is not indispensable unless the Torah says it is — meaning, unless it says that if you didn’t do it, you did not discharge your obligation. I’ll talk in a minute about what “indispensable” means, because that really is a point that needs clarification.

[Speaker C] Where does this rule itself come from? What? Where does this rule itself come from?

[Rabbi Michael Abraham] One second, one second, I’m getting to that. But first I want to sharpen a bit the problem with this rule, and then your question about the source will become even sharper. Why should this be? The moment the Torah writes some law, in any area whatsoever, that law is indispensable. Meaning, there’s no such thing as a law that isn’t indispensable. You have to take the four species — you have to take the four species. And if you didn’t take the four species, you didn’t discharge your obligation. Why would it have to write that it’s indispensable? What’s the point? You could maybe say that if, for example, you didn’t take the citron, maybe you still fulfilled the commandment of the palm branch, or not — that’s a question whether they make each other indispensable or not. But obviously if it says citron, you have to take a citron. So there’s no question here of why you need something extra in order to say “this is indispensable.” And if so, why only in sacrificial matters? What makes sacrificial matters unique? Why isn’t this an interpretive rule throughout the Torah — that all written laws are not indispensable unless there is some indication that they are?

Maybe because it’s the priests’ responsibility? What do you mean?

[Speaker D] Who is supposed to perform the commandment — the priest or the private person?

[Rabbi Michael Abraham] Each thing on its own terms. There are commandments — usually these are commandments carried out by the priests. Are the priests God’s agents or our agents?

[Speaker D] The question is whether all the priests have to do it, or whether if one priest didn’t do it then no.

[Rabbi Michael Abraham] No, no. When you bring an offering, there’s a priest.

[Speaker D] It’s enough that priests did it, like at the beginning of Sabbath, it’s enough…

[Rabbi Michael Abraham] It’s enough that the priests did it and then the public discharged its obligation. And clearly the priests serve on our behalf. We don’t offer in the Temple; the priests serve there. More than that — it’s not all the priests; it’s one priest. Meaning, according to the rotation schedules, the watch rotations and so on, there are shifts. Each time a certain priest offers, but he represents the public. Again: are they God’s agents or our agents? The Talmud discusses it, but in principle in sacrificial matters this is usually public service. There are places where, say, I bring my own personal sin offering, and then the offering is my representative and not that of all Israel. Fine. But that’s the principle.

In any case, the question again is: why is there such a rule, and if so, why only in sacrificial matters? Okay? And of course that sharpens your question even more, Yaron, right? Yaron’s question is that if so, I would have expected there to be a verse about it. But I don’t know of any source brought for this rule. This rule is learned from reasoning; it has no source at all. Now that’s already really strange. Meaning, it’s both an illogical rule and it has no source, and you just state it. The Sages said it from reasoning. So clearly there has to be some logic here. If there’s no source, how did they decide that this is the rule? Why didn’t they decide that sacrificial matters have to be written with the letter kaf? On what basis do you independently decide an illogical rule? If there’s a verse, fine — the verse tells you that despite the fact that it seems illogical, that’s what you have to do. But there is no verse; they came up with some reasoning. So if they came up with reasoning, then there is reasoning, right? There has to be some reasoning. That sharpens even more what I said before — that we need to understand why this is correct.

One more clarification before I get into the issue: I want to discuss what “indispensable” means. Your question, Chaim, right? Your question was: what counts as indispensable? There are common public mistakes here. I’ll give you an example. The Mishnah in Menachot says, on page 38: the blue thread does not make the white indispensable, and the white does not make the blue indispensable. The arm phylactery does not make the head phylactery indispensable, and the head phylactery does not make the arm phylactery indispensable. Alright? So it brings two halakhic areas, the commandment of fringes and the commandment of phylacteries, where in each one there are two components, and one does not make the other indispensable. Okay? That’s what the Mishnah says.

By the way, Maimonides, for example, counts the commandment of phylacteries as two commandments, but the commandment of fringes he counts as one commandment, the white and the blue. He has a principle about this, about why indispensability has nothing to do with the question of how many commandments these are. And that’s an interesting logical question in itself, but it’s not our topic here.

So what does it mean that one is not indispensable to the other? People think — let’s talk about the blue thread in fringes — people think the commandment of the blue thread is voluntary, not indispensable. If you want, do it. What we called a contingent commandment. A contingent commandment means a commandment that if you do it, you’ve fulfilled a commandment, and if you don’t do it, nothing happened. An obligatory commandment is a commandment where if you didn’t do it, you transgressed by neglecting a positive commandment. Okay? That’s a contingent commandment. So some people understand that the blue thread is a contingent commandment, because after all, it doesn’t make things indispensable, right? If you want, do it — great; if you didn’t, nothing happened, it didn’t prevent anything. Big mistake. The commandment of fringes is obligatory; it is not a contingent commandment. There is no indication at all that it is contingent. Even though there are later authorities who, because of this confusion, phrase themselves as if it were a contingent commandment, but that’s just a mistake. It’s not a contingent commandment; it’s fully obligatory.

So what do we mean when we say that the blue does not make the white indispensable? It means that if you took fringes of white and did not put blue in them, you fulfilled the commandment of the white. Meaning, the absence of the blue did not invalidate the commandment of the white that you performed. And the fact that there is no blue is “not indispensable,” meaning: so you did fulfill it. But you did neglect the commandment of the blue. It is not a voluntary commandment. Meaning, you are obligated to place blue, and that’s why I say it’s obligatory. The fact that it is not indispensable means that it does not make something else invalid. That is what “not indispensable” means. It does not mean it doesn’t make itself indispensable. To treat it as a contingent commandment means saying it doesn’t make itself indispensable: if you did blue, good, and if you didn’t do blue, also good.

[Speaker E] And is that two commandments?

[Rabbi Michael Abraham] Yes, in principle. Maimonides counts it as one, but these are two obligations — one commandment that includes two obligations that each need to be done, like the four species. That’s one commandment in which you need to take each of the four species, even though in terms of counting commandments it’s one commandment.

[Speaker F] But in the end you make one blessing over the whole thing.

[Rabbi Michael Abraham] With fringes too you make only one blessing; you don’t make a separate blessing on the blue. And with the palm branch? Why is it defined as one commandment?

[Speaker F] And the fact that Maimonides counts it as one commandment and then you make a blessing — no, that’s another question.

[Rabbi Michael Abraham] The fact that you make a blessing is, of course, an indication. It’s a sign, not a cause. And the question is why it really is one commandment, but as I said that’s connected to the logical problem I hinted at before. If you want, I have an article about it and can refer you to it.

But the claim I want to sharpen here is that when I say something is not indispensable, I mean it does not make something else invalid. Meaning, if you did that other thing without this thing, then you did fulfill that other thing; you discharged your obligation. “Indispensable” means that even if you did the white, if you didn’t do the blue with it, then you didn’t fulfill the white either. That is what it means to say the blue is indispensable to the white. When they say it does not make the white indispensable, it means that if you didn’t do the blue, the white that you did do was fulfilled. But that says nothing about the blue. The blue that you didn’t do — you neglected a positive commandment. Okay? So this is a very important point. When we talk about indispensability, we are always talking about what it does to something else, not whether this thing itself is voluntary or not.

So, for example, in sacrificial matters, when I say something is not indispensable, I do not mean you don’t have to do it. I mean that even if you didn’t do it, what you did do remains meaningful. It isn’t nullified; it didn’t lose its value. Okay? That’s the point. But what you didn’t do, you didn’t do — there’s nothing to say about that.

[Speaker G] Suppose you didn’t put in the blue — would you be doing two commandments?

[Rabbi Michael Abraham] You could say that if it were indispensable. Meaning, if it were indispensable, then when I put in the blue, it would also rescue my fulfillment of the white, because without the blue the white wouldn’t count as a commandment. And I would also be fulfilling the commandment of the blue. That’s exactly the meaning of indispensability. This law is one thing, and besides the fact that you have to do it, it also takes part in defining another law — it makes it indispensable. If you didn’t do this, then that other thing, which you did do, also wasn’t a commandment. So that’s what it means to be indispensable. Okay? That’s the meaning of the concept.

[Speaker C] But if you do put in the blue? Put in the blue?

[Rabbi Michael Abraham] Yes, certainly. Again, though — you have to put in blue regardless of what I’m saying now. If someone isn’t convinced this is the actual blue, fine. But I mean in principle, if there is blue that you are convinced about, or at least it’s enough of a significant doubt for you, then of course you should use it. Good deal.

[Speaker H] It’s a deal, a deal on the World to Come.

[Rabbi Michael Abraham] Okay. So when I say, with regard to “Scripture repeated it to make it indispensable,” I’m basically saying this: when some law is written in sacrificial matters, and that law is obviously a detail within some broader whole, then besides the fact that you need to do that thing itself, it may also be that it is indispensable to the whole. When they say that this law is not indispensable unless Scripture repeated it or unless it says “a statute,” they’re saying that that doesn’t happen. Meaning, you still have to do it, but if you didn’t do it, the other thing that you did do still counts as a commandment. Okay?

An example: the Mishnah at the beginning of tractate Zevachim says: all offerings that were slaughtered not for their proper sake are valid, except that they do not count for the owners toward their obligation, except for the Passover offering and the sin offering. Alright? Meaning, if we go back to the slide — I’ll share it on Zoom too for the sake of the listeners. So I’m saying: there is a law that an offering must be slaughtered with six intentions — I think that’s Menachot 46, something like that. So there need to be six intentions accompanying the slaughter, the offering of the sacrifice. Slaughter, sprinkling — it doesn’t matter, I’m not getting into which intention at which stage. But in principle there are six such intentions: for the sake of a pleasing aroma, for the sake of a sweet savor, for the sake of Heaven, for the sake of an offering, for the sake of the owner, and so on.

Now what happens if it was slaughtered not for its proper sake? You didn’t intend it properly. Then it says the offerings are valid, except that they did not count for the owners toward their obligation. Meaning, if you bring some offering that you owe — even a vow offering, say, or something like that, something you committed yourself to bring — and you slaughtered it not for its proper sake, then the offering is valid in the sense that it is not disqualified. It’s not something that now has to be burned or whatever. It has the status of an offering, it is eaten, given to the priests, everything is done with it. But you did not fulfill your obligation. Okay? Meaning that the thought of “for its own sake” is not indispensable for the validity of the offering — it is not indispensable. For counting toward one’s obligation it is indispensable, but for the validity of the offering it is not indispensable, except for the Passover offering and the sin offering. And for the Passover offering and the sin offering, then it is also not —

[Speaker I] Even if there is no thought?

[Rabbi Michael Abraham] No, the opposite. You need the thought. It is indispensable.

[Speaker J] Thought without intention?

[Rabbi Michael Abraham] Yes — or maybe that’s another distinction we need to make. What?

[Speaker J] It doesn’t disqualify; you should say it’s not indispensable.

[Rabbi Michael Abraham] Yes. “Not indispensable” means it does not disqualify. “Indispensable” means it disqualifies, yes. So yes — that you can eat them, say.

[Speaker B] The Passover offering and the sin offering are totally disqualified. Yes.

[Rabbi Michael Abraham] Now maybe one more necessary introduction here. I once happened upon, in the synagogue in Bnei Brak — this was years ago, when we were still in Bnei Brak — two books, and in both I found the same remark, independently, from books by different people. And for some reason — I don’t know exactly why — that remark really opened my eyes, and afterward to many things. In one of them — in both of them, I think, or at least in one — it was a note by the publisher saying the author made a mistake on this point. And in the second, I think it was actually in the book itself.

What do I mean? The question is: what is the relation between “for its own sake” and intention? You know there’s a dispute whether commandments require intention or do not require intention, right? Everyone agrees you should have intention. The dispute is whether it is indispensable to the commandment. The opinion that says commandments require intention holds that intention is indispensable to the commandment, meaning if you had no intention then the commandment did not count for you. The opinion that says commandments do not require intention also agrees that you should have intention, but says that if you did not, that does not invalidate the commandment. Meaning, you fulfilled the commandment but not the intention. Okay? That’s “commandments require intention.”

Besides that there are laws of “for its own sake.” You know that a sukkah is made for its own sake, a bill of divorce is written for its own sake, an offering is brought for its own sake, a Torah scroll is written for its own sake, guarded matzah is made for its own sake. Meaning, there are all kinds of “for its own sake” laws in Jewish law. Now there are some later authorities who see this as simply the same law. The law of “for its own sake” — you have to do it for its own sake — meaning to intend. And it’s really not the same law at all. It’s a completely different law.

Intention means intending to fulfill one’s obligation, and the intention accompanies the performance of the commandment. When you perform a commandment you need to intend to fulfill your obligation — or maybe you don’t, that’s the dispute whether commandments require intention or not. In the law of “for its own sake,” in most cases — there’s an exception here, by the way — but in most cases the thought of “for its own sake” does not accompany the performance of the commandment at all. Think, for example, about guarding matzah for its own sake. There is no commandment to guard matzah; there is no commandment to bake matzah. The commandment is to eat it on the Seder night. Right? So when you talk about the thought of “for its own sake” in guarding matzah, “guarding for its own sake” means preparing the matzah for its commandment. Meaning, the act of preparation has to be done for its own sake.

The act of “for its own sake” is not an intention accompanying the performance of the commandment; rather it is part of the way we are supposed to prepare objects for commandments. When I prepare matzah for the commandment, I have to guard it and bake it for its own sake. For example, the matzah — yes, one second — matzah on the rest of the festival, apart from the first night, does not need “for its own sake.” Why not? Because it isn’t leavened even without that. Is there a commandment to eat matzah on the rest of Passover? No. There is a commandment only on the Seder night. Therefore, when you speak about preparing the matzah for its commandment, you’re talking only about the matzah of the Seder night, because only there is there a commandment to eat matzah. On the other days it is only in order not to eat leavened food, but you are not performing a commandment. There is reward, but never mind; in principle you’re not performing a commandment. There is a commentator on Maimonides who holds that even that needs to be for its own sake, but that is a lone opinion, it’s not… we just buy for its own sake.

[Speaker E] What? We just buy matzah made for its own sake; someone else prepared it.

[Rabbi Michael Abraham] Yes, it doesn’t matter. So he prepared it for its own sake. But buying it doesn’t need to be for its own sake.

[Speaker E] As part of that, it’s…

[Rabbi Michael Abraham] It’s part of the supervision that’s supposed to be on the matzah — that it was done for its own sake. There’s also, by the way, the question of what the difference is between guarded matzah and unguarded matzah. This really is the difference — whether it was guarded for its own sake or not guarded for its own sake, from the time of harvest. But this is what I’m saying: for the rest — on the first night you need to eat guarded matzah. People maybe don’t realize that. On the other days, in my opinion, there’s no issue; unguarded matzah is totally fine, even though the prices are huge. What?

[Speaker D] Guarded means grain that was watched so it wouldn’t become leavened.

[Rabbi Michael Abraham] That’s why I’m saying, neither one is leavened. But if you want preparation of the matzah for its commandment, and there is a commandment only on the Seder night, then you need guarding for its own sake. Not only guarding it so it won’t become leavened; the guarding also needs to be done for the sake of the commandment.

[Speaker D] The Rabbi thinks ordinary matzah is not like that?

[Rabbi Michael Abraham] Ordinary unguarded matzah was not guarded for its own sake, but it is not leavened. You can eat it on the rest of the festival, just not on the Seder night. Why does the Rabbi think that? Because that’s the definition. What do you mean? The difference between guarded matzah and unguarded matzah. No, it’s not some stringency that I’m adding; that’s what they write. They say this matzah was guarded for its own sake and this matzah was not.

[Speaker D] And that’s only an enhancement?

[Rabbi Michael Abraham] No, no. That’s why it’s much more expensive. And I think it makes sense to buy it only for the Seder night. I don’t — on the rest of Passover I eat unguarded. When I say the difference is not whether it’s leavened or not, the difference is only whether it was prepared for fulfilling a commandment. And when do you fulfill a commandment? Only on the Seder night with matzah.

[Speaker B] The rest of the days…

[Rabbi Michael Abraham] So that it won’t be leavened. It’s bread that isn’t leavened, simply so you’ll have something to eat.

[Speaker B] On Passover. And he knew they were going…

[Rabbi Michael Abraham] No, he knew they’d eat it on Passover, obviously. But it wasn’t baked for the purpose that you would fulfill a commandment with it.

[Speaker B] How do I know it wasn’t?

[Rabbi Michael Abraham] Because it says “unguarded matzah.” No —

[Speaker B] The guarding is not that it should…

[Rabbi Michael Abraham] No, the guarding is guarding against becoming leavened, but really it’s guarding that also has to be done for the sake of the commandment. It’s not enough that it not become leavened. Fine, okay, you could argue a bit about that, but it seems to me that’s the plain understanding. In any case, for our purposes — there is also, by the way, a difference in quality, in how much of a concern there is that it’s leavened, maybe, but that’s another discussion. I think here there’s no need to worry. No, but that’s not the main difference.

In any case…

[Speaker B] Okay, suppose I bought matzah from a non-Jew or whatever… from a non-Jew?

[Rabbi Michael Abraham] Then eat it on the rest of the days, but not —

[Speaker B] On the Seder night.

[Rabbi Michael Abraham] On the Seder night it isn’t valid? On the Seder night it isn’t valid. More than that: there’s Tosafot in tractate Gittin on page 45, where he discusses the question of what happens if a non-Jew prepares things that need to be done for their own sake. He argues that someone who is not included in the commandment does not belong to the thought of “for its own sake”; even if he thinks for its own sake, it won’t help. Then he discusses what happens if a woman made a sukkah. A sukkah also needs to be built for the sake of shade; that too is “for its own sake.” So can she make a sukkah? There’s the category of a sukkah made by non-Jews, women, animals, and Samaritans — these are already Talmudic categories. And Tosafot there discusses: what if a woman… fringes need to be spun for their own sake, okay? What happens if a woman made fringes? Is it valid? She isn’t obligated in the commandment of fringes. So she also does not belong to “for its own sake.” So a woman can’t make fringes — that’s what Tosafot says, Rabbeinu Tam. Okay. It could be there are opinions that say yes. Tosafot says no. Fine. In any case, that’s not our topic.

So what I just want to say is that the law of “for its own sake” is the way we prepare the object for its commandment. Okay? It is not the law of “commandments require intention.” Therefore, for example, according to the one who says commandments do not require intention, he does not disagree about the law of “for its own sake.” In those places where “for its own sake” is required, it is required according to everyone. The dispute whether commandments require or do not require intention has nothing to do with “for its own sake” laws. Okay? It’s a separate law. There is a similarity between them, but… what?

[Speaker J] Maybe teach this before Passover.

[Rabbi Michael Abraham] Okay. We’re also before Passover now — before next Passover. Fine. We just have to come back to it, yes, so we won’t forget.

Anyway, for our purposes, I return here. In this case, by the way, it’s an exception, because here the thought of “for its own sake” is a thought that happens during the slaughter. That is apparently during the act of the commandment itself and not in preparation for fulfilling the commandment — although, again, it depends whether we’re talking about the sprinkling or the slaughter, because slaughter is apparently only preparation, not the commandment. The commandment is the sprinkling. Okay?

[Speaker B] For a non-priest, no?

[Rabbi Michael Abraham] What? Slaughter is valid even by a non-priest, because it’s not service. Yes. So fine, but again I’m not getting into those details.

So that is the law of “for its own sake.” Now, that means that “for its own sake” is a law in the slaughter of sacred offerings saying that you have to slaughter them — let’s speak right now about the slaughter — for their proper sake. Okay. Now the Mishnah says: what if he did not slaughter it for its proper sake? It is not indispensable. At least for the validity of the offering it is not indispensable; it does not count toward the owner’s obligation, but for the validity of the offering it is not indispensable.

So Tosafot asks on page 4 — the Talmud there basically asks: “Why not say that where he slaughtered them not for their proper sake, they should be disqualified?” That the offering itself should also be disqualified if you slaughtered not for its proper sake. Why is the offering valid and only not counted for the owners toward their obligation? Disqualify it too — disqualify the offering itself. You didn’t do what you were supposed to do. So Tosafot asks there: how did the Talmud want to disqualify the offering if he didn’t do it for its proper sake? After all, we require “Scripture repeated it to make it indispensable.” The requirement of the thought of “for its own sake” is written once. Who said that it is indispensable? Is it written a second time? No. Tosafot says, let’s assume not. And if so, why does the Talmud assume that this should also invalidate the offering itself? After all, in sacrificial matters there is a rule that we require “Scripture repeated it to make it indispensable.” So even if it says you need the thought of “for its own sake,” you still can’t conclude from here that that thought is indispensable for the validity of the offering. Okay? That’s Tosafot’s question.

Tosafot answers it in various ways, not important now. But in the responsa of the Chatam Sofer, he brings answers to Tosafot’s question based on the words of the Ritva in tractate Yoma. I’m not going to get into all those details from the Ritva in Yoma, I’ll just say what he says. He basically says — what? Repeat Tosafot’s question. What? Why did the Talmud want to say that if there was no thought of “for its own sake,” it wanted to disqualify the offering? The Talmud asks on the Mishnah: the Mishnah says the offering is valid. The Talmud asks on the Mishnah: why is the offering valid? It should be disqualified. Tosafot asks on the Talmud: why do you want to disqualify the offering? After all, we require “Scripture repeated it to make it indispensable.” Okay? To save the Mishnah from the Talmud’s question. Meaning, it’s basically a question on the Talmud.

[Speaker B] What?

[Rabbi Michael Abraham] As a friend of mine always used to say: if you make mistakes, always make them in pairs. Then one will reinforce the other and there’s a chance you’re actually saying the truth. Meaning, if you think you’ve answered a question of Rabbi Akiva Eiger, then apparently you’ve made a mistake. Except that it’s a double mistake. Rabbi Akiva Eiger made one mistake because he misunderstood the Talmud, and if you think you’re answering a question of Rabbi Akiva Eiger and he never thought of that answer, then apparently you made another simple mistake. And since your number of mistakes is even, you got back to the correct reading of the Talmud. That’s all. But you didn’t really answer Rabbi Akiva Eiger’s question. Fine, just a joke.

In any case, for our purposes, he says — he brings in the name of the Ritva in Yoma two things. First, he says that for a prohibition, there is no such rule that it is not indispensable. This whole law that we require “Scripture repeated it to make it indispensable” applies to positive commandments. If there is some detail in a positive commandment that was not repeated, then it is not indispensable, and the commandment still happened. But if you violated a prohibition, then what does it mean to say “not indispensable”? If there is a prohibition in sacrificial matters and you violated it — say, “it shall not be reckoned” —

[Speaker K] That’s a prohibition; the thought of “for its own sake” is a prohibition.

[Rabbi Michael Abraham] Yes? So he says that for prohibitions we do not require “Scripture repeated it to make it indispensable,” because if you violated the prohibition then you violated the prohibition. With positive commandments you can discuss two levels: whether you fulfilled the commandment and whether you fulfilled it in an enhanced way. But with a prohibition, what? Is the question whether you violated it in an enhanced way or violated it not in an enhanced way? If you violated it, you violated it. Okay? Therefore the Ritva argues that for prohibitions the rule “Scripture repeated it to make it indispensable” does not apply. And since the thought of “for its own sake” is in the category of a prohibition, Tosafot’s question is incorrect.

But I think Tosafot thinks there’s half-and-half here. Like, they validated it for eating, but not for discharging one’s obligation. Right. So there’s some difficulty, because he says if you say that once Scripture wrote it once, then you disqualify it entirely. No — he says in order for me to discharge my obligation, I need the priest’s proper intention, because otherwise it isn’t my offering. So you didn’t disqualify the offering; it doesn’t invalidate the offering. We’re talking about the priest’s intention. Yes, the priest’s intention. So how do you do it halfway? Either it’s indispensable or it isn’t. No, why? There are two different laws here. There’s the question whether the offering is valid — that’s one question. And there’s the question whether I discharged my obligation with the offering I brought — the sin offering that I owe, or the vow I made, something like that. That’s a completely separate discussion. The question whether the offering is valid is an objective question not connected to… Tosafot says that “for its own sake” is required, so the offering itself should not be valid. That’s what Tosafot asked. And to that the Chatam Sofer answers in the name of the Ritva: no, because this is a prohibition. And for a prohibition there is no such rule that it disqualifies. Okay?

By contrast, it didn’t count for me toward my obligation, because I was supposed to bring it as a positive commandment. Since I made a vow — “you shall observe what your lips utter” — I need to bring the vow. Or a sin offering: I was supposed to bring the sin offering for the sin I committed. So I didn’t fulfill the commandment because it is indispensable. Fine, there are all sorts of details here. The Kehillot Yaakov, I’m not… meaning, for a prohibition you don’t need intention. What? The Ritva means that to avoid violating prohibitions you don’t need intention; it’s enough that you didn’t do it. Right, exactly.

I mentioned — I don’t remember if it was here; I already don’t remember in which lecture I said these things — that Bnei Brak book I once saw where it said that anyone sitting here should intend to fulfill five commandments. To intend to fulfill five commandments, we spoke about whether commandments require intention. “On that day you shall give him his wages,” “do not keep it overnight,” “do not round the corners of your head.” Now, some of those commandments are prohibitions. What do you mean, come and intend? Come and intend not to violate a prohibition? If you didn’t violate the prohibition, then you didn’t violate it. A prohibition doesn’t require intention. Meaning, a commandment requires intention. So basically the same here: the thought of “for its own sake” is relevant for positive commandments. If there was no thought with a positive commandment, then there is room to ask whether this commandment counts or not. But with a prohibition, it’s irrelevant. If you violated a prohibition, you violated it. Okay.

So now I want to explain this from another direction. Because there are reservations — why the explanation that this is a prohibition is not sufficient. The Talmud’s answer, if we explain the claim as though it were because it’s a prohibition… again? That basically we said that because it’s a prohibition, there’s a presumption that it doesn’t need to invalidate. So the Talmud’s answer says despite the fact that it’s a prohibition. Yes, never mind, I don’t want to get into details. Okay, yes. Because it also fits into the Talmudic discussion, obviously.

So I want to suggest another approach. Look, let’s take a look for a moment at the Talmud at the beginning of the fourth chapter in tractate Berakhot. “The morning prayer is until midday. Rabbi Yehuda says until four hours. The afternoon prayer is until evening. Rabbi Yehuda says until halfway through the afternoon. The evening prayer has no fixed limit,” and so on. So at the beginning we have a dispute — let’s talk about the first part now — between the first anonymous opinion and Rabbi Yehuda: until when do you pray the morning prayer? Until midday or until four hours? Okay? The Talmud there is talking about the Amidah, of course.

The Talmud there asks: “According to everyone, only until midday and no more? No more? Why only until midday?” This one says until four hours, that one says until midday — why? You can pray afterward too. For Rabbi Mari son of Rav Huna son of Rav Yirmiyah bar Abba said in the name of Rabbi Yochanan: if one erred and did not pray the evening prayer, he prays the morning prayer twice. If he missed the morning prayer, he prays the afternoon prayer twice. He continues praying all day. After all, you can make it up. If you didn’t pray the morning prayer, you pray the afternoon prayer twice, right? So that means that even in the afternoon you can pray the morning prayer. The second afternoon prayer is your morning prayer. So why do you say that the time for prayer ends at midday?

But with the afternoon prayer you’re making it up. Right, but the Talmud here assumes that the make-up prayer in the afternoon, since it is compensation for the morning prayer, is basically as though you prayed the morning prayer. And if so, then the time of the morning prayer isn’t until midday; it’s really all day.

Now there are assumptions here that are not simple at all and need discussion. Why does the Talmud think that the make-up prayer is the morning prayer? That’s an interesting question, by the way — whether the make-up prayer is the morning prayer or whether it’s an extra afternoon prayer. Because legally, if, for example, there is some law in the afternoon prayer different from the morning prayer — say the new month begins, evening versus afternoon, or something like that. Suddenly it’s the new month. Do you say “May it rise and come” in the make-up prayer? Because if that make-up prayer is really for a day that wasn’t the new month, then now you’re praying yesterday’s afternoon prayer. Yesterday’s afternoon prayer didn’t require “May it rise and come,” but tonight’s prayer does, or vice versa, doesn’t matter. Right? So when I pray — or the additional prayer — I forgot the morning prayer and I make it up during the additional prayer. There’s a problem with making it up during the additional prayer, but say I do. So what, I pray the additional prayer twice? The wording is that of the additional prayer and I’m praying the morning prayer? You simply pray the additional prayer twice. And with “May it rise and come” too, I pray according to the present time. I don’t pray according to the earlier time.

Some want to argue that this proves that the make-up prayer isn’t really a continuation of the missed morning prayer, when you make it up in the afternoon, but that it’s just another afternoon prayer in place of the morning prayer. But according to that you can’t read the Talmud here. Because the Talmud says, “he continues praying all day,” so why do you tell me the time of the morning prayer is until midday? After all, you can also pray after that. No — after that you’re praying the afternoon prayer, not the morning prayer.

So one has to say — just parenthetically, just to understand the point; it’s not our topic — that the fact that I say “May it rise and come” is because now is the time to say “May it rise and come.” Even if I’m praying yesterday’s morning prayer, if I’m praying it now, now I need to say “May it rise and come,” because now is the current time. So the fact that I say it now doesn’t mean I’m not praying yesterday’s prayer. I’m praying yesterday’s prayer, but I’m praying it today, and today is the new month. So I say “May it rise and come.” You have to say that. If you don’t say that, then this Talmudic discussion doesn’t even get started. Because how can it be that I’m considered to be praying the morning prayer when I make it up in the afternoon and I say “May it rise and come”? That doesn’t belong to the morning prayer. You have to say it. Fine, but that’s just a parenthetical point.

So the Talmud raises this difficulty, and then it answers — and this is what matters for us: “Until midday he is given the reward of prayer in its proper time; from that point onward he is given the reward of prayer, but not the reward of prayer in its proper time.” What does that mean? The truth is that the time is all day, but until midday you receive reward for prayer in its proper time, because the proper time is until midday. After midday you also get reward, but not for prayer in its proper time; rather, for prayer not in its proper time. Okay? What? If so, prayer that isn’t in its proper time isn’t perfect prayer. You prayed, but not the most ideal prayer possible. Okay?

You could phrase this another way, which gets us to our point: the time does not make the prayer indispensable, right? Another formulation of the same thing. If you prayed the morning prayer not at its proper time — after midday, or after four hours according to the first opinion, according to Rabbi Yehuda — then you prayed not an excellent prayer, but it’s still a prayer. It isn’t that you lost the value of the prayer. Okay, that is basically what it says here. What, but apparently there is a time beyond which you can’t pray. Meaning, if you already missed it and then prayed the afternoon prayer as the make-up, you can’t then do another make-up for that in the evening, so there is some deadline. Obviously. The prayer is all day — that’s what it says. There is a prayer time, and the prayer time is all day, not only until midday. Right, and in the evening no longer. So that means it’s only about the morning prayer, but like… no, every prayer. Every prayer. But its time extends until after the next prayer. Fine, but there still is a time. The Talmud doesn’t say there’s no time; it only says it isn’t the time you’re saying. Why are you telling me until four hours or until midday? It’s until evening. That’s what it says: “he continues praying all day.” Pray all day, all day — not more than that.

In any case, for our purposes, the Talmud says that until midday you receive the reward of prayer in its proper time — or until four hours according to Rabbi Yehuda — and after that it is prayer not in its proper time. Right? “He is given the reward of prayer,” but not “the reward of prayer in its proper time.” Right, just like if you did white without blue, you get reward for the white, but not reward for white with blue. Okay? It’s really analogous, right?

Now the question is how to understand this. As is well known, there is a dispute between Maimonides and Nachmanides. Maimonides, in Positive Commandment 5, says as follows: “The fifth commandment is that we were commanded to serve Him, may He be exalted, and this command has already been repeated several times. It says, ‘And you shall serve the Lord your God,’ and it says, ‘Him shall you serve,’ and it says, ‘Him shall you serve,’ and it says, ‘And to serve Him.’” Many times we are commanded to serve God. “And even though this command is also one of the general commands, as we explained in the fourth principle…” In a general sense there is an obligation to serve God, some broad command — so what is there to count it as a commandment? But this is Positive Commandment 5; he counts it as a commandment. So he says: there is a unique element in it, namely that it commanded prayer. So it’s not only a general command to serve God; there is also something concrete here, something new, which is the commandment to pray. Therefore it enters the count of commandments as an independent commandment.

“And the wording of the Sifrei: ‘And to serve Him’ — this is prayer. And they also said: ‘And to serve Him’ — this is Torah study. And in the teaching of Rabbi Eliezer the son of Rabbi Yosei the Galilean: from where do we know that the essence of prayer is among the commandments? From here: ‘The Lord your God shall you fear, and Him shall you serve.’” So they derive the obligation to pray from service. “The Sages said in Midrash HaGadol: serve Him through His Torah, serve Him in His Sanctuary.” Meaning, to go there and pray opposite it, as Solomon explained. “His Sanctuary” means prayer, not only bringing offerings. Offerings and prayer are parallel acts. Yes? Prayer replaced the offerings after there were no longer offerings. But serving God in general is offerings and prayer. Okay? Therefore Maimonides claims that the commandment of prayer is a Torah-level commandment. That’s a novelty. Nachmanides, for example, disagrees with him. Nachmanides claims that the commandment of prayer is not a Torah-level commandment. Here, I’ll bring him too.

Nachmanides always mentions “and to serve Him with all your heart,” that verse — so what? That that’s prayer. Service — what is service of the heart? Prayer. So? I didn’t understand. “And to serve Him with all your heart” — Maimonides brought that verse. There are all sorts of verses. Maimonides says there are five or six verses here. Maimonides says there are five or six verses. Yes, there are many, plus two in favor of Nachmanides, that it’s general. He comes and says that it’s general, that’s the meaning, right? No, although it comes out… right, so he answers that because there is a specific novelty here, to decide that this isn’t just general. Exactly.

And Nachmanides argues that this is not a commandment, the commandment of prayer, but rather a rabbinic commandment. Fine. And “to serve Him” is apparently a general statement about serving God, like…

[— second half / part 2 of 2 —]

[Rabbi Michael Abraham] But he argues that you can’t derive a commandment to pray from “to serve Him.” There is no Torah-level commandment to pray. Rather, it is a rabbinic enactment, a substitute for the offerings, according to the established structure — morning, afternoon, evening — an enactment of the Men of the Great Assembly. Which is the accepted view: that prayer is basically an enactment of the Men of the Great Assembly. And the Talmud says the Patriarchs instituted the prayers, and that the prayers correspond to the offerings, and Abraham is the morning prayer, Isaac is the afternoon prayer, and Jacob is the evening prayer — but all that is still enactment. Meaning, rabbinic law, or laws that substitute for the offerings once there are no longer offerings. That is the accepted approach. Maimonides says no: there is a Torah-level commandment to pray. Okay? And this is a dispute.

Nachmanides, by the way, also agrees that in the case of “when you sound the trumpets” — in a time of trouble, yes, there is a Torah-level obligation to pray. But the regular ongoing obligation of prayer is not Torah-level; it is rabbinic. That’s Nachmanides’ claim.

Let’s return to our Talmudic passage. We were in the passage saying that someone who prays the morning prayer after the proper time receives reward for prayer, but not reward for prayer in its proper time. According to Maimonides, this can be understood, right? Because Maimonides says: you get reward for prayer — prayer is Torah-level. At the Torah level there is no morning, afternoon, and evening; all that is rabbinic enactment, right? You simply need to pray. If you prayed any time during the day, you fulfilled the Torah-level obligation. You did not fulfill the rabbinic enactments that told you: the morning prayer is until midday, after that the afternoon prayer until such-and-such, then evening, meaning they fixed the details, the times, the wording, all those things. But that is a distinction between Torah-level and rabbinic. So someone who prayed after the time still gets reward for prayer, because that is Torah-level prayer; he fulfilled a Torah-level commandment. And “reward for prayer in its proper time” means including the rabbinic enactments — that he does not get. Okay, so according to Maimonides the Talmud reads quite straightforwardly.

The question is: how do you read this Talmud according to Nachmanides? According to Nachmanides there aren’t two layers in the commandment of prayer. The Sages are the ones who instituted both the very act of prayer and the patterns of how to pray. So what does it mean — where did the Talmud get the idea that the Sages instituted this in two layers? Meaning: do prayer, and it doesn’t matter when; in addition we also enacted that you should do it until midday, but if you did it after midday, not terrible — you have prayer, just not prayer in its proper time. If all of it is rabbinic enactment, why split it into two layers? One layer indispensable and one not indispensable — why?

Beyond that, even according to Maimonides there is room to raise a difficulty. There is Tosafot in tractate Sukkah — the Ran disagrees with him — but Tosafot in Sukkah says that the Talmud there brings the case of Beit Shammai and Beit Hillel seeing Rabbi Yochanan ben HaHoronit sitting in the sukkah while his table was inside the house. This is the dispute between Beit Shammai and Beit Hillel whether one may sit in the sukkah while one’s table is in the house, lest one be drawn after one’s table and end up eating outside the sukkah. So bring the table into the sukkah too. Okay? And the members of Beit Shammai, who said it was forbidden to do this, said to him: if this is how you acted, you never fulfilled the commandment of sukkah in your life. And yet you ate in the sukkah. The sukkah was valid, the table was outside, okay? And there’s a concern lest you be drawn after it. But he wasn’t drawn after it; he ate inside the sukkah. So “you never fulfilled the commandment of sukkah in your life”? You might have thought this was just exaggerated language, meaning: this isn’t proper, you also need to be careful about rabbinic law. But Tosafot there says no — from here we see that someone who fulfills a commandment not according to the rules the Sages set did not fulfill even the Torah-level commandment. You don’t have the commandment of sukkah if you sat that way, even though this is only a rabbinic enactment, a rabbinic decree. And there are lots of discussions about where that is true and where not, not important now. The Ran disagrees with Tosafot, and I also think the straightforward reading of the Talmud is not like Tosafot. But that is what Tosafot says there.

According to this, one could also wonder about Maimonides: once the Sages said to pray in this way, and you didn’t pray according to what the Sages established, then you didn’t pray either. So why do you still get reward for prayer and lose only the reward for prayer in its proper time? You shouldn’t get even reward for prayer.

[Speaker C] But the Sages validated make-up prayer, so that’s part of the enactment. I didn’t understand.

[Rabbi Michael Abraham] If it’s an enactment of the Sages —

[Speaker C] The Sages tell you that you have prayer in its proper time,

[Rabbi Michael Abraham] and you can also do make-up prayer, and then you fulfill the obligation of prayer not in its proper time — that too is part of the Sages’ enactment; it’s not against the Sages’ enactment. You’re saying that the make-up itself is fully part of the Sages’ enactment. Could be. Okay.

In any case, for our purposes it’s still difficult how to explain this Talmud according to Nachmanides. So I want to make the following claim. There’s a nice line from Rabbi Chaim that I brought here. He says — this is a passage from Rabbi Chaim. The famous Rabbi Chaim on Maimonides’ laws of prayer, where he says there are several kinds of intention in prayer: intention to the words, intention of standing before God, and intention to fulfill one’s obligation. There are three intentions. And in the course of his remarks he says: “And even according to those who disagree with Maimonides, that is only regarding its obligation, but its fulfillment and essence are, according to everyone, from Torah law.”

Meaning, even Nachmanides, who says there is no Torah-level obligation of prayer, no Torah-level commandment of prayer, is not claiming that the concept of prayer is a rabbinic concept. If you prayed, then that is Torah-level prayer. All that is not Torah-level is the obligation to pray. But the concept itself, the definition of the concept, already exists on the Torah-level plane. We see it in the Torah: the Patriarchs prayed long before any enactment of the Sages. What were they doing? They were praying, right? You can’t say that thing is not prayer. All Nachmanides disagrees with Maimonides about is not that on the Torah-level plane the concept of prayer doesn’t exist at all. It does exist — there’s simply no Torah-level obligation to pray. That’s Nachmanides’ claim, okay? The concept of prayer exists.

And therefore, if so, then according to that one can understand our Talmudic passage according to Nachmanides. He doesn’t say it in the context of our passage, but according to this one can understand it. You get reward for prayer, because even if there were no obligation to pray — okay? — even according to Nachmanides, if there were no obligation to pray, so what? If you prayed, you still served God. You did something of value, right? You just didn’t fulfill an obligation, and this is not a commandment. But you deserve reward for doing something positive; you served God. So you got reward for prayer. Reward for prayer in its proper time — no, because you did it after the proper time. So yes, you can say that even according to Nachmanides. Because according to Nachmanides too, the concept of prayer exists on the Torah-level; only the obligation to pray does not exist there.

So if you prayed, Nachmanides also agrees that this is an act of value, regardless of whether you did it according to the Sages’ rules or not, right? An act of value. Now I ask: what does it mean to say it’s an act of value? After all, the Sages told you: until midday. So are you some smart aleck, wiser than the Sages, and you want to pray at four in the afternoon? If you did it intentionally? No, not accidentally — intentionally. Why did the Sages narrow it? If prayer is all day, let them leave it all day. Why narrow it? They narrow it because they want to tell you: no, do it only until midday. So are you some smart aleck saying no, no, I’ll do it not according to the Sages and still I’ve served God? Thanks very much — we don’t need your service. Do it properly.

So I’m saying, the point is this, look. And here comes in the issue of service. What are prayer and offerings? Both are service. What does service mean? Service means that you serve God. Religious worship, yes? You basically stand before the Holy One, blessed be He, and worship Him in some sense. Not all commandments and not all of Jewish law are service. The proof is that what is called “service” is only prayer and offerings. If you were not to eat pork without any commandment, that would be utterly valueless. Or if you waved the palm branch without a commandment, that would be utterly valueless. But with prayer and offerings, we see clearly that this is not so. The Patriarchs offered offerings too. Where? There was not yet any commandment, nothing. What were those offerings? That is our way of serving God, right? You don’t need commandments for that. The commandments turn it into a commandment. But even without the commandment, obviously if I did it, there was an act of serving God here — whether I prayed or offered before Him — this whole sphere called service. Right?

Now what does that mean? That the Patriarchs before the giving of the Torah — even if all the commandments, and there are rabbinic expositions saying Abraham our father even observed the laws of cooked food combinations, still the Patriarchs did not perform the commandments in the simple sense, right? That’s aggadic exposition. Okay. But service they certainly did perform — the Torah describes it. Prayer too, right? “Isaac went out to converse in the field” — they pray. Jacob turns to the Holy One, blessed be He, and says, “If God will be with me and guard me on this path that I am going,” and so on — Jacob’s whole prayer. Maybe Sabbath and festivals too? One second, we’ll see.

So the Patriarchs also offered sacrifices, right? “And he sacrificed offerings to the God of his father Isaac,” and things like that. And prayer certainly existed in the Torah long before the giving of the Torah. Why? Because that’s the kind of thing you understand on your own. That’s how one serves God. It’s not connected to commandment. Even if there had been no commandments, we would still continue to this day just like the Patriarchs. So we would eat pork, we wouldn’t take the four species, we wouldn’t do any of that — but service, yes. And ethics too. But I’m saying, from the standpoint of Jewish law, service we would continue. The Torah didn’t add something substantive here. So what did the Torah add? Why do we need these commandments of praying and offering? It comes to say that there is an obligation to do this, right? Exactly as Rabbi Chaim says about Nachmanides — really about Maimonides. The idea of doing it is obvious; we know that even without a commandment. The Torah establishes that there is also an obligation to do it.

Meaning, if the Torah had not commanded — or according to Nachmanides, where it really did not command — then someone who prayed gets reward for prayer; he did something of value. He does not get reward for prayer in its proper time. Why? Because the Sages told you until midday. You didn’t do it until midday, so the prayer is not complete. But the Sages do not empty the original prayer — the non-halakhic prayer — of content. They do not. Right? What this basically means is that there is no logic in saying that once the Torah came and commanded something regarding offerings, or the Sages came and enacted something regarding prayer, they also intended to empty what existed beforehand of content. No. They only told me how to do it even better, in the best possible way. But if I do it like Abraham our father did it, is that bad? Then I’ll be righteous like Abraham our father. After all, Abraham our father also did it not in these fixed times, and the rabbinic enactments weren’t there yet. And when he offered his sacrifices, he didn’t have these expositions saying you need the thought of “for its own sake,” and six intentions on the altar, and all sorts of details. He didn’t do all that. So his offering was worth nothing? Obviously it was worth something, right? His prayer had value, his offering had value. So if I do the same thing, why shouldn’t it have value?

So when the Torah or the Sages come and tell me, but you need to do it by midday, or you need to intend this way and not that way, clearly they are not coming to empty of content the acts that I would do like Abraham our father. They are coming to add another layer. They are saying: if you want to do it in the most complete way, this is how it should be done. If you want to pray a complete morning prayer — by midday. But fine, if you pray like Abraham our father, we don’t want to empty acts of value of their content. Why would we do that? These acts really do have value. Abraham our father did them, and the Holy One, blessed be He, saw in that the greatest service there is, right? So if I do the same thing, why wouldn’t He see it that way? All they’re telling me is: if you want to do it best, do it even better. So they add a second layer.

[Speaker F] And with circumcision too, say, and things like that — is it the same idea?

[Rabbi Michael Abraham] It could be the same idea, depending on whether you also see circumcision as service. Maybe. For example, with ethics this is certainly so — that’s in my Wednesday lectures, tomorrow. I may comment on that later.

So what does this mean? It means that in the realm of service it is very reasonable that we require “Scripture repeated it to make it indispensable.” Because if the Torah adds some detail in the laws of offerings, I ask myself: tell me, is the detail indispensable? What does it mean that it’s indispensable? That if I didn’t do it, the offering is worth nothing, right? It didn’t count as my offering. There’s no logic in saying that. Abraham our father brought the offering without that detail; he didn’t know about that detail at all, right? And it was still an offering of value. There is no reason to assume that the giving of the Torah came to empty what Abraham our father did of ethical or religious value. It came to tell me how to do it even better, but it did not come to empty of content things that have value. Therefore, in sacrificial matters you need “Scripture repeated it to make it indispensable.” That’s the reason.

And this is reasoning. You don’t need a source for this at all. It’s simple reasoning. Just as the Patriarchs prayed and offered without these details and it had value, why should it not have value when I do it? If here the Torah wants to tell me, “Look, specifically here I did decide to cancel what came before, not just add another layer to it, but cancel it” — then it has to tell me that. Either it says “a statute,” or it repeats the law once more — “Scripture repeated it.” If it tells me that, then I understand that here indeed this is exceptional: here the Torah is telling me, no, here I’m erasing layer one. But in the normal case, if I have no such indications, then the Torah is only coming to add layer two, and that does not invalidate layer one.

[Speaker E] So if Scripture did repeat it here?

[Rabbi Michael Abraham] Then it is indispensable. If Scripture repeated it, then it is indispensable. It cancels layer one — that’s what I just said. Here it intended to come and require the detail. Right. There are cases where the Torah says: look, this detail matters to Me. And if you don’t do this detail, then true, Abraham our father didn’t do it, but now that you know it, I’m not willing to accept offerings without it. Meaning, if you don’t do this detail, then nothing — I don’t want it at all, it has no value. But the Torah has to say that. The default assumption, if the Torah does not say it, is that what had value still has value. Why assume it lost its value if the Torah did not say so? If the Torah says that something which had value ceased to have value at the giving of the Torah, or when the Sages enacted something, then fine, it said so. No problem. But it has to say it. Okay?

It seems to me this is the necessary explanation of the rule “Scripture repeated it to make it indispensable,” and why it applies only in sacrificial matters and not elsewhere. I said — it also applies to prayer, not only to sacrificial matters. In my view it applies in the realm of service. Because this is something that preceded commandment? In the realm of service this is said. Whatever falls under the category of service. That is of course mainly Temple service — sacrificial matters and prayer. Okay? In that realm we require “Scripture repeated it to make it indispensable.”

[Speaker E] This belongs, like, in terms of your distinction? Again? Because this thing already existed beforehand? Yes.

[Rabbi Michael Abraham] Is that one reason?

[Speaker E] What do you mean one reason? It’s an indication.

[Rabbi Michael Abraham] It’s an indication that the thing has value. Another line of reasoning? Again: it’s not the reason, it’s the indication, the sign. If it existed before, that means the thing has value even without commandment. For me, that’s what matters — that it has value without commandment. Whether it was before or wasn’t before is just the sign. Okay?

So the claim I want to make is that “Scripture repeated it to make it indispensable” is a logical rule. That’s why it doesn’t need a source. And it makes sense to apply it only in sacrificial matters, because only sacrificial matters — or prayer — are in the realm of service. And in the realm of service this reasoning really says exactly that. In the other areas, why in the world? If the Torah says something, then it means what it says. Why assume otherwise? Okay? It had no value before. The value was created with the giving of the Torah. So if the value was created with the giving of the Torah, then if the Torah says this has value, why should I think that if I do without it, that too will have value? Why assume that? The Torah says it, and it means what it says. Okay? So I think this is a very, very reasonable explanation.

[Speaker D] Maybe let’s take a minute so we don’t lose the lecture?

[Rabbi Michael Abraham] No, I’m saying that in the realm of service the thing already had value, and now the Torah comes to add a second layer. When it added the second layer, it didn’t say the first layer lost its value. Why should it lose its value? When Abraham our father did it, it had value. So if I do it, it has value too.

[Speaker D] Like the descendants of Noah, sort of. Exactly.

[Rabbi Michael Abraham] Like — here, do it. There’s a best way to do it, an even better way, layer two. Now there are places where the Torah wants to tell me: what was done until now is invalid, that’s it, from now on I no longer want it, it lost its value. Then it has to say so. Either it says “a statute” or it repeats it again. But the Torah has to say it. The default is that if the Torah did not say it, then what had value remains valuable. There’s no reason to say the Torah emptied it of value. And all that is only in the realm of service, not in other areas. In other areas, if the Torah says something, that’s what it said. Before that there was nothing. Okay? Therefore it’s obvious that it is indispensable. And that answers all the questions I raised regarding “Scripture repeated it to make it indispensable.” As you said, Abraham did…

[Speaker D] I said,

[Rabbi Michael Abraham] It could be the same regarding circumcision too. Could be. Yes. That’s certainly possible. Yes. The eighth day doesn’t make it indispensable; you can also do it afterward. The eager perform commandments early, and so on, but you can also do it later. So maybe even there it’s because of this. Maybe that’s the reason.

In any case…

[Speaker C] Why is that not Torah? Huh?

[Rabbi Michael Abraham] Right, one second — let me just finish this line and then we’ll get to our actual point. So this answers all the questions about “Scripture repeated it to make it indispensable” and where it came from, what reasoning it rests on, why it applies only in sacrificial matters and not in other areas, and why there’s no verse — right? How can it be learned without a verse? Since it makes sense. I’m now explaining why it makes sense, and therefore you don’t need a verse. But this logic exists only in the realm of service, not in other realms. Therefore it applies only in sacrificial matters and not in other areas. In sacrificial matters and in prayer. Okay?

Now indeed — yes — the question that came up. After all, I’m bringing this whole discussion in order to show that even within Jewish law there are parts that are not Torah. So say I offer a sacrifice like Abraham our father, not according to the details that were introduced in the Torah, or I pray some kind of general prayer without the Sages’ enactment of morning prayer and its time and wording and so on. What exactly am I doing? I am not fulfilling a commandment, right? I am not fulfilling a commandment. It is something of value; I did an act of value. You understand this is exactly parallel to Torah and aggadah? I’m doing something of value. Here it’s in the realm of action, not learning, but it’s the same thing. I’m doing something of value, but it’s not fulfillment of a commandment; it isn’t part of Jewish law in the narrow sense, meaning in the commandments of Jewish law.

But when we say that the blue thread does not make the white indispensable, or that prayer after its time is still prayer, that appears in the Shulchan Arukh. It’s part of Jewish law. So you ask me: from the standpoint of Jewish law, it is part of Jewish law. But this part of Jewish law is not Torah, because it is not included in the commandments we received at Sinai — it existed even earlier. Abraham our father also knew it. It is not part of the Torah that we received. So it does not meet the criteria I gave earlier for what counts as Torah. What is Torah? What we received at Sinai together with the interpretations we give to what we received. Okay? And here, no — it existed earlier altogether. It’s like the seven Noahide commandments, like various other things. It’s not connected to Torah. What we received afterward — the Torah repeated the seven Noahide commandments, and by doing so turned them into Torah. What existed before that was not Torah.

And therefore it seems to me that this is an example of an area usually associated with the halakhic world. Right? A detail in sacrificial matters that is not indispensable — we discuss that in halakhic terms. Is it indispensable? Is it not? Here: the offerings are valid, except that they do not count for the owners toward their obligation. The fact that the offerings are valid appears in Maimonides; it is a halakhic ruling. It is a law that the offerings are valid. But I’m claiming that this is a law that is not Torah. It is not Torah because we received this law from Abraham our father, not from Moses our teacher. It is not from Sinai. It has nothing to do with that; it is simply an understanding of what serving God means. Okay?

Things that come from reasoning and are not connected to verses are also not Torah. We spoke, I think, about the Tzelach and Pnei Yehoshua, right? About blessings over enjoyment before eating — I think I mentioned it here, no? How do we know one must bless before food? The Talmud in Berakhot page 35.

[Speaker G] How do we know one must bless? “And you shall eat, be satisfied, and bless”?

[Rabbi Michael Abraham] No, that’s the Grace after Meals, afterward. But how do we know blessings over enjoyment, like “who creates the fruit of the tree,” before eating? In the end the Talmud raises several possibilities, and in the end it says it is reasoning. That someone who enjoys this world without a blessing is as if he misappropriated sacred property. Because the blessing is a kind of asking permission from the Holy One, blessed be He, to enjoy what He created. Okay? Now that is reasoning. The Pnei Yehoshua says: good, if it’s reasoning then it is Torah-level, because everything derived from reasoning is Torah-level. How do I know? Because the Talmud says, “Why do I need a verse? It is reasoning.” Meaning, the Talmud sees reasoning as equivalent to a verse. If there is a verse or there is reasoning, it’s the same thing.

The Tzelach attacks him — and rightly, in my opinion. That isn’t true. If the reasoning tells me a detail within a given commandment, then that reasoning interprets the given commandment. Fine. Then the result is of course Torah-level law in every respect. Exactly. But when reasoning creates a new commandment — not a detail in an existing commandment — and the commandment to bless before food is a new commandment — when reasoning creates something like that, it does not become a Torah-level positive commandment. Why would it? For a positive commandment you need a command. “Commandment” comes from the root “command.” There is no command. Therefore, reasoning in general is not Torah. Only if reasoning interprets a law that appears in the Torah — then reasoning is an interpretive tool, of course. And once I interpreted it, then for me that is what the verse says, and so the result is Torah law. But if reasoning created a new obligation for me, then that is not Torah. But it is still Jewish law. If you ask me whether, legally, one must bless before food — certainly yes. But it is not Torah.

I’ll say more than that: the Pnei Yehoshua is right in the sense that even without rabbinic enactment one would have had to bless before food, because the reasoning exists even without rabbinic enactment. It is reasoning at the Torah level in principle; you don’t need the Sages for that, because it is service of God. Meaning, when you bless before eating, you ask permission from the Holy One, blessed be He, and that is part of serving Him. Okay? So serving God is an obligation that enters into Jewish law, but it is not Torah. It did not come from Mount Sinai; it is not an interpretation of something we were commanded at Sinai. Therefore it is a part of Jewish law that is not Torah.

Okay? The same I would say regarding moral principles, which is the topic of the Wednesday series, so I won’t go into detail here. But I’ll mention that too so you’ll see that it also belongs here. Meaning, when there are moral obligations that the Torah does not regard as commandments in the Torah — for example, “and you shall do what is right and good.” “And you shall do what is right and good” is not counted by the enumerators of the commandments among the commandments. It does not enter the count of commandments. Why? In my opinion, it does not enter the count because morality is a category foreign to Jewish law. Jewish law is the commandments, and morality is a foreign category. Meaning, it has no connection to Jewish law; it is a different category.

Now that other category is not something detached from serving God. The moral obligation too is because of God’s will. The Holy One, blessed be He, wants us to behave morally. How do I know? First of all because I understand it from within myself, and second because it says, “and you shall do what is right and good.” It is written in the Torah. But the fact that it is written does not mean it is a commandment. It is not a commandment. Why? Because the moral expectation is not a commandment; the commandments are Jewish law. Besides that, there is a moral expectation. I spoke on Wednesdays about religious values and moral values, in the Wednesday series — not important now.

Now here too, moral obligations are obligations in every sense. Some people may even see them as halakhic obligations; some of them enter into the Shulchan Arukh. But this is not Torah. It is not Torah because we did not arrive at it through interpretation of what was given at Sinai. It is not part of the corpus we received at Sinai and the interpretations attached to it. It is something else.

[Speaker D] If you have “and you shall do what is right and good,” and then he starts specifying what that means, what “right and good” is…

[Rabbi Michael Abraham] But “and you shall do what is right and good” is not a commandment. It is not part of the commandments we received at Sinai.

[Speaker D] It’s from the Torah; it’s not part of the commandments we received at Sinai. No, but now give an interpretation and say these are the commandments that you…

[Rabbi Michael Abraham] need to do in order to be one who does what is right and good… that still wouldn’t be Jewish law. That would simply be a moral Shulchan Arukh, a different Shulchan Arukh. A Shulchan Arukh telling you what you need to do in order to be moral.

[Speaker D] No, but he is interpreting the…

[Rabbi Michael Abraham] He is interpreting a verse, not a commandment. That verse is not Jewish law not because it’s vague or not explicit; it is not Jewish law because, categorically, what deals with morality does not belong to Jewish law. So even if you specify and interpret it, then you have specified and interpreted morality, and that has nothing to do with Jewish law. They are two different categories. Okay? Therefore I say that in this sense there is perhaps more room to call it Torah, because you’re interpreting “and you shall do what is right and good,” but it is not Jewish law.

[Speaker D] Wait, but you still have the commandment “do not murder,” which is supposedly something moral. But if I interpret the commandment, I say…

[Rabbi Michael Abraham] That’s one of the examples I gave in the Wednesday series to explain the distinction I’m making between morality and Jewish law. Because “do not murder” in the moral sense — obviously it makes no difference whether you did it this way, with your eyes closed, indirectly, causally, whatever. If you did an act as a result of which someone died, and you definitely caused it, then morally you are a murderer. But in Jewish law there are lots of discussions where no — you are exempt. You did it this way, or the sun was coming anyway, indirect causation, secondary causation, all kinds of things like that. Confinement, all kinds of such things where you are exempt. You are not a murderer at the halakhic level. Why? Because the halakhic “do not murder” is a halakhic command, not a moral command. The interpretations we give that halakhic command are interpretations of when the halakhic command applies. That has nothing to do with the question of when you are a murderer at the moral level. At the moral level, all those cases are murder in every sense.

I mentioned last Wednesday, I think, someone once came to ask me — he had accidentally killed someone in Lebanon, and he was a priest. Now a priest who has killed a person may not raise his hands in the priestly blessing. A Jew or…? No, an Arab, a non-Jew, in Lebanon. But he killed a civilian by accident, someone who had done nothing. It was simply a mistake. So I said to him: listen, that’s a priest who killed a person. A priest who killed a person may not raise his hands in blessing. And the question is: clearly this is killing, not murder, because he did not intend it — but morally, he killed. The question is whether the fact that he did not commit a halakhic transgression means he is no longer included in “a priest who killed a person,” or not. I don’t know. Good question. But it somewhat illustrates the different layers in the act of murder — the moral layer, the halakhic layer, and so on.

[Speaker E] And “you shall love your fellow as yourself” is a great principle in the Torah.

[Rabbi Michael Abraham] נכון, “you shall love your fellow as yourself” is an enumerated commandment, yes. We say that — it is an enumerated commandment. Yes, “you shall love your fellow” is one of the 613 commandments. But I claim that “and you shall do what is right and good” and “you shall love your fellow as yourself” are not a moral commandment at all; they are a religious commandment.

[Speaker E] Fine, I know that it’s…

[Rabbi Michael Abraham] “And you shall do what is right and good” is the moral commandment — to relate to your fellow in a moral way is derived from “and you shall do what is right and good.” And “you shall love your fellow as yourself” is a religious law. And it is a great principle…

[Speaker E] in the Torah? Right, a great principle in the Torah — meaning a great principle in Jewish law, in my interpretation, not in Torah — in Jewish law.

[Rabbi Michael Abraham] Which is what I’m saying: in Jewish law, in Torah as an object.

[Speaker D] Yes, but it also has…

[Speaker E] it also has a…

[Speaker D] No, it also has a moral aspect, supposedly, “you shall love your fellow as yourself.”

[Rabbi Michael Abraham] No, so I claim it does not. Again, it overlaps with a moral obligation. But it deals with the religious dimension, not the moral one. The same with “do not murder.” There is a prohibition of “do not murder”; obviously morally it is forbidden to murder. But the command “do not murder” is not dealing with the moral prohibition. It comes to say there is also a religious prohibition here, a halakhic prohibition, not only a moral prohibition. The moral prohibition I know even without it. The Holy One, blessed be He, comes with claims against Cain for murdering Abel before He ever said “do not murder” and “whoever sheds human blood, by man shall his blood be shed.” Why? Because it was obvious that morally murder is forbidden; you don’t need the Torah for that. So when the Torah comes and says “do not murder,” what is it saying? It is saying there is also a religious aspect here, a religious-halakhic prohibition, not just a moral one.

Even commandments that seem to overlap with morality, in my view, are also completely detached from morality. There is no connection. Jewish law and morality are two categories that do not speak to each other. Fine, but that really belongs to the Wednesday series. I’m only saying it joins what I’m saying here: sometimes something will enter into Jewish law, but it will not be Torah, because it does not come from interpretation of something we received at Sinai.

I’ll say more than that, and this will also connect a bit when we get to the question of what learning is. When I want to interpret “and you shall do what is right and good,” and let’s say I conclude that this means giving charity, helping the other person, greeting him warmly, and all sorts of things like that — how do I know that “and you shall do what is right and good” means those acts? Because my conscience tells me that’s how one should behave. So I’m not really deriving it from the verse “and you shall do what is right and good,” even though outwardly I’m interpreting the verse, right?

[Speaker D] Maybe it comes from the stories in the Hebrew Bible?

[Rabbi Michael Abraham] I wouldn’t derive those principles from there, because if your source is the stories in the Hebrew Bible, then you are also commanded to lie. Jacob our father lied.

[Speaker D] No, but maybe precisely because of that they show you the good and the bad things and tell you to choose the good.

[Rabbi Michael Abraham] No, but nowhere does it say there that what Jacob did was bad. Jacob lied — on the contrary, excellent. His mother Rebecca told him to, and he lied, that’s it. He also deceived Laban. So excellent — apparently there’s a commandment to lie; we learn that from the Torah, no? No, fine. No, we don’t. That’s exactly what I’m telling you. When we approach those passages, our approach is the opposite. First of all, lying is forbidden. Now let’s see how to explain what Jacob did, right? Meaning, we learn Torah in order to reconcile it with the morality we know independently of Torah. It’s not that we really derive morality from the Torah.

Now this is a nice example of what we’ll discuss more broadly later when we get to the question of what learning is, because I want to claim that we do not learn morality from the Torah. Even when we study a passage from which one supposedly draws moral lessons, we are not learning Torah there, because we are not deriving it from the Torah. On the contrary, we know it independently of Torah, and now let’s see how it also fits with the Torah, so there won’t be a difficulty. But it’s not that we derive values from there. Yes.

[Speaker B] Where did he lie?

[Rabbi Michael Abraham] What do you mean? He switched things through deception, yes, with the spotted sheep and all those things.

[Speaker B] That’s it, he lied? He came to what came out.

[Rabbi Michael Abraham] With manipulations, he helped it come out. So he used manipulation, not direct lying.

[Speaker B] Now let’s get into the specifications.

[Rabbi Michael Abraham] Okay. So for our purposes, what I want to say is that sacrificial matters are the first example where one can see a part of Jewish law that is not Torah.

Another example, which I only have time to start, is Choshen Mishpat. Choshen Mishpat raises some not-so-simple questions. I’ll ask you a question: how do you define the laws of Choshen Mishpat? What makes them distinctive? What determines that a given law belongs in Choshen Mishpat and not, say, in some other part of the Shulchan Arukh?

[Speaker I] Interpersonal matters. Property acquisition.

[Rabbi Michael Abraham] Interpersonal matters, property acquisition — let’s combine those. Meaning, monetary relations between people, right? There are also laws of the religious court and witnesses, but that too is basically a means of clarifying monetary disputes between people, so let’s leave that aside for the moment. Let’s say guardianship law, torts, agency, contracts, all sorts of things like that, loans — all of these are basically monetary relations between people, right?

Now I ask: what about charity, interest, and overcharging? Those too would fit that definition, right? No?

[Speaker J] Why? Charity is toward God. Charity is toward God?

[Rabbi Michael Abraham] Overcharging is toward God. What do you mean, no? No need to fight. I’m asking: what are my obligations toward another person? Monetary obligations. Okay, I’ll get to that in a minute. But according to the simple definition I offered before, overcharging, charity, and interest should all appear in Choshen Mishpat. Right? The prohibition of interest is a monetary prohibition between one person and another. But overcharging really does appear in Choshen Mishpat, whereas charity and interest appear in Yoreh De’ah. And the question is why. That means our definition of Choshen Mishpat apparently doesn’t really capture the whole thing. Something is missing in that definition. So I want to suggest the definition.

And I want to say that basically — let’s look for a moment at the halakhic categories in the Shulchan Arukh, which really follow the Tur, who created the division into these four categories, and the Shulchan Arukh follows him in this. The Tur introduced a fairly dramatic innovation here; you have to understand that. He didn’t invent it, but he conceptualized it. Because if we look, for example, at the division of the Mishnah, and of course the Talmud accordingly, since the Talmud follows the same division, that is a topical division. There are topics: laws of the Scroll of Esther, laws of Sabbath, laws of festivals, skin afflictions, all kinds of offerings — by subject matter. And of course the sequence in the Talmud is associative and so on, but the basic division is by topic.

When we move to the legal codifiers, then the Rif and the Rosh are of course arranged according to the order of the Talmud, right? They rule each time on what appears in the given passage; they write the bottom line. Maimonides made an innovation. He doesn’t rule according to the order of the Talmud. He rules from the Talmud, but not according to the Talmud’s order. He made a new order of laws: fourteen books, each divided into sub-books and so on. That order is indeed a new order, but it is still topical. Right? We see in the Book of Damages, the Book of Acquisition — it deals according to content: acquisition, damages, and so on.

The Tur also made a division, and there too there are laws of agency, laws of overcharging, laws… there are also such internal divisions within the Tur and the Shulchan Arukh. But he has four overarching categories: Orach Chayim, Even HaEzer, Yoreh De’ah, and Choshen Mishpat. What are they? That is not a topical division. It is a categorical division. If it were topical, then all monetary laws between people would really appear in Choshen Mishpat, including charity and interest. No — it isn’t content that determines it. The category determines it.

What does that mean? The Tur is basically making a division: there is an even higher-level division into two categories. Even HaEzer and Choshen Mishpat on one side, and Orach Chayim and Yoreh De’ah on the other. What characterizes those two categories? Human relations…

[Speaker C] Between one person and another.

[Rabbi Michael Abraham] No, not necessarily. Sort of, but not exactly. Between a person and himself…

[Speaker C] and outside…

[Rabbi Michael Abraham] Law and religion, right. Orach Chayim and Yoreh De’ah are Jewish law in the religious sense. You will not find in any legal system laws parallel to Orach Chayim and Yoreh De’ah. What one eats and doesn’t eat, what blessing one says, when one goes to sleep, what one says there, what kinds of labor are permitted on the Sabbath and what are forbidden — right? All those things are what we might call ritual commandments, or I don’t know what to call it, something like that.

By contrast, Even HaEzer and Choshen Mishpat are what we call adjudication, right? Rabbinics and adjudication. The rabbinical exams. These are exams for rabbinic authority, and those are exams for adjudication: Even HaEzer and Choshen Mishpat. What’s the difference between them? Even HaEzer and Choshen Mishpat are adjudicated in a religious court. Right? Orach Chayim and Yoreh De’ah have nothing to do with a religious court. You go ask a rabbi if you don’t know. A legal decisor. You can see that even the institutions dealing with them are different. Here it’s judges — that’s why these are exams for judges, who are tested on Even HaEzer and Choshen Mishpat. Rabbis are tested on Orach Chayim and Yoreh De’ah. So it’s rabbi versus judge, or rabbinate versus adjudication, or what we might call ritual or religious commandments versus legal rules.

And then, if I enter the world of halakhic law — meaning Even HaEzer and Choshen Mishpat — Even HaEzer is laws of personal status, right? Marriage and divorce, which exist in every legal system in the world. Yes? That’s why I call it the legal system of Jewish law: Even HaEzer and Choshen Mishpat. The division also exists in every legal system in the world. There is monetary law — what’s called civil law — and there is personal status law, right? Family law. Exactly, that’s Even HaEzer. Okay? So basically the division of the legal part of Jewish law is very similar to the legal parts in other legal systems. Okay? Even HaEzer and Choshen Mishpat. Yoreh De’ah and Orach Chayim are parts that exist only in Jewish law, not in other legal systems. Okay?

Now let’s try to understand a little more what that means. In legal theory there’s what’s called the Hohfeld table. The Hohfeld table basically says that if I have a right against you, then you have a duty toward me. Say you borrowed from me. I have a right to get the money back from you. You have a duty to give me the money, right? If I have a right against you, you have a duty to fulfill that right. There is no right without a duty on the other side. If you have a right against the state, not against a particular person, then the state has a duty toward you. Say someone receives welfare support. No particular person owes him anything, but once the law determines that support is due to him, then he has rights, right? He has rights against the state, and the state has duties toward him. The state can legislate differently and then there won’t be those duties, not important now. But that’s how it is. There are duties, and opposite every duty there is a right; opposite every right there is a duty. These are two sides of the same coin.

It’s commonly thought that in the halakhic world there are no rights, only duties. You’ll hear that in many places; you’ll read it in many works. Jewish law speaks in the language of duties. I am obligated because the Holy One, blessed be He, imposed it on me, and that’s it. I have no rights. And the other person also has no rights. I have duties. I have to give him, I have to refrain from doing something to him, whatever. But the discourse is one of duties, not rights. That is how people usually characterize Jewish law in contrast to other legal systems. But there is no greater mistake than that. Of course there are rights in Jewish law. The system of halakhic rights is called Choshen Mishpat.

What is the difference between that and Yoreh De’ah? In the halakhic legal system, the Hohfeld table exists just as in every legal system. If I have a right, you have a duty to fulfill it. If you infringed my right, then you violated a certain duty — you were in the wrong, right? The Hohfeld table exists in Jewish law too. The difference between Jewish law and other legal systems is that in Jewish law there are areas where the Hohfeld table does not exist — the non-legal areas. And of course, because they are not legal. The Hohfeld table is a feature of the legal domain. In ordinary legal systems there are only legal domains. In Jewish law there are non-legal domains. And there can be duties there without corresponding rights.

Example: when I give charity to a poor person, I have a duty to give him charity. Under certain circumstances there is a commandment to give charity, right? Does he have a right to receive charity from me? No. If I don’t give him charity, then the Holy One, blessed be He, will deal with me. Can he take me to a religious court and sue me? No. What does that mean? Remember? Religious court means Choshen Mishpat. Charity is not adjudicated in religious court. Therefore it belongs to Yoreh De’ah.

[Speaker G] So where is it adjudicated? Where is it clarified?

[Rabbi Michael Abraham] It isn’t adjudicated anywhere.

[Speaker G] You’re not, you’re not a party…

[Rabbi Michael Abraham] You’re not a party to the matter, there’s nothing to adjudicate. Right. Exactly. You can’t sue. Right. Exactly. So it isn’t adjudicated anywhere. You can go ask a rabbi whether you’re obligated to give or not obligated to give. That’s between you and the rabbi. But the poor person is not a legal party here; he cannot sue me. Why? Because although I have a duty to give him, he has no right to receive from me. He can ask? He can always ask. He doesn’t have a right to receive. He doesn’t have a right to demand.

Huh? Good. No, between man and his fellow and between man and God is something else. The commandment of charity is also a commandment between one person and another. But it’s a commandment between one person and another. It is not the other person’s right against me. It is a commandment. What is your duty toward…

[Speaker D] the Holy One, blessed be He?

[Rabbi Michael Abraham] The duty in Choshen Mishpat is also toward the Holy One, blessed be He. If I don’t repay a loan, the Holy One, blessed be He, will also come with claims against me. All of Jewish law is both standing before the Holy One, blessed be He, and standing before the poor person. Again: the commandment of charity is a commandment between one person and another in the usual classifications. It’s just not a right of the other person; it’s my duty toward him. Therefore he cannot sue me. That’s one indication.

The same is true with interest, by the way. What happens with interest? Say I lent with interest, okay? And now I repaid you with interest. Okay? Now I sue you to get the interest back, because you were forbidden to take interest. So can I sue you? No.

[Speaker B] The answer is no.

[Rabbi Michael Abraham] We’ll get to fixed interest in a moment in the judicial context. In principle, I can’t sue you. I can’t sue you. Why not? Because it’s like charity. The contract between us was that I receive a loan of one hundred and repay you two hundred. A contract forbidden by the Torah. The Holy One, blessed be He, will deal with both me and you. But you can’t come to me with claims — you committed yourself and did what you committed yourself to. What do you want?

[Speaker D] No, the religious court will say the contract is void.

[Rabbi Michael Abraham] No, no, we’ll get to fixed interest in a moment, but no, they won’t say that. They’ll say the contract is valid. You committed yourself, and you did something forbidden. The Holy One, blessed be He, will deal with you.

[Speaker D] If I committed myself in a contract to murder someone, then am I obligated to murder him?

[Rabbi Michael Abraham] Are you obligated to murder him? What do you mean? We won’t let you do it, because it’s a transgression. What does that have to do with your question? But if you made a contract…

[Speaker D] And if I come to a religious court and say I want to cancel it?

[Rabbi Michael Abraham] What do you mean cancel it? If you don’t cancel it, we’ll kill you under the law of a pursuer. Simple. But that has nothing to do with your question. So with interest, do I go to jail? I’m not asking whether you’ll actually pay the interest. If he comes to a religious court and asks whether to pay the interest, they’ll say no, because it is forbidden. But that is not a legal discussion; they say it as legal decisors. In the legal discussion, when you ask what the contract obligates, the contract obligates. We both signed it with open eyes; we committed ourselves; the contract is binding. But what can you do? What the contract obligates is forbidden under Jewish law. If you ask me as a halakhic decisor, I’ll tell you not to do it. If you ask me as a judge whether I am obligated, yes, you are obligated. Therefore, if he took it from you and you gave it to him, you cannot sue him. He is not holding money that is yours. That money is not yours. You committed yourself to him, and it is his money. It may be that he has to give it back to you, and we as a religious court will deal with him and cause him to return it to you. But not because you sued. Therefore both interest and charity appear in Yoreh De’ah, not in Choshen Mishpat.

Like a criminal offense? Exactly, a criminal offense and not — meaning, it isn’t really a criminal offense. In Choshen…

[Speaker D] In Choshen Mishpat it’s a criminal offense.

[Rabbi Michael Abraham] If I stole, that’s a criminal offense. But if I didn’t give charity, no, that’s not a criminal offense. It’s a transgression, but not a criminal one, because I did not violate anyone’s rights. Okay, I’ll need to clarify this a bit more next time. Let’s stop here.