Deontic Logic and the Relationship Between Prohibitions and Positive Commandments – Lecture 4

This is an English translation (via GPT-5.4). Read the original Hebrew version.

This transcript was produced automatically using artificial intelligence. There may be inaccuracies in the transcribed content and in speaker identification.

🔗 Link to the original lecture

🔗 Link to the transcript on Sofer.AI

The definition of positive commandments and prohibitions, and the abstract line of distinction
Practical symptoms: punishment, reward, human dignity, and financial expenditure
General law versus Jewish law: the absence of “positive commandments” in the conceptual sense
Aharon Barak and the claim that these are two systems with different logic
The laws of bailees and oaths: dependence on a religious infrastructure
Indirect causation, liability before Heaven, and the claim that importing Hebrew law is harmful
Critique of “Hebrew law” in the High Court and in responsa: universal reasoning versus Jewish law
Religious courts, compromise, and a letter of refusal: criticism of current judicial reality
Nozick: temptation versus extortion and the normative zero point
Nachmanides: love and fear, the greatness of the positive commandment and the severity of the prohibition
Sdei Chemed: the side of fulfillment versus the side of neglect, and explaining the contradictions
A positive commandment overrides a prohibition: the difficulty and the solution through “refraining is not a commandment”
A commandment fulfilled through a transgression, “I the Lord hate robbery in a burnt offering,” and “the sacrifice of the wicked is an abomination”
Maimonides on Avot: the reward of a commandment from the punishment for the transgression, and the difficulty against the zero-point model
The severity of punishment versus the severity of the transgression: dispute and notes from the Talmud and Sefer Hasidim
Maharal: a prohibition as preserving the straightness of reality, and a positive commandment as the actual perfection of the human being

Summary

General Overview

The text defines positive commandments as a demand to be in a desirable state, and prohibitions as a warning not to be in an undesirable state, independently of the practical question of positive action versus passive omission. It explains that someone who fulfills a positive commandment is in a positive state, while someone who neglects a positive commandment simply is not in that positive state; but someone who violates a prohibition enters a negative state, and this therefore constitutes a frontal clash with the will of the Torah. From this definition it derives practical differences in reward and punishment, human dignity, and financial expenditure, and compares this to the logic of general law and to philosophical questions such as the distinction between temptation and extortion. Later it brings sources such as Nachmanides, Sdei Chemed, Maimonides, and Maharal; points to internal tensions such as a positive commandment overriding a prohibition and a commandment fulfilled through a transgression; and argues that importing “Hebrew law” into the Israeli lawbook creates contradictions and empties Jewish law of its infrastructure.

The definition of positive commandments and prohibitions, and the abstract line of distinction

The text states that a positive commandment points to a desirable state, and that desirable state may be an act or a cessation, so long as it is defined as good. The text states that a prohibition points to an undesirable state, and that too may be passive or active, but it defines a negative reality. The text states that fulfilling a positive commandment means being in the desired state, while neglecting a positive commandment means not being there without creating a negative state; therefore this is not a frontal clash with God’s will. The text states that transgression through positive action, in the conceptual sense, means entering a state that the Torah forbade, and is therefore a frontal clash; it presents this as a model of “carrot” in a positive commandment versus “stick” in a prohibition.

Practical symptoms: punishment, reward, human dignity, and financial expenditure

The text explains that punishments belong only to prohibitions, because punishment is called for when a person is in a negative state, whereas in neglecting a positive commandment there is no justification for punishment, only at most an absence of reward. The text explains that reward belongs to positive commandments, because there is reward for being in a positive state, not simply for not being in a negative state. The text states that human dignity overrides a prohibition only through passive omission, and only for rabbinic prohibitions; and on the Torah level, the Talmud in Berakhot speaks about override through passive omission. The logic is that human dignity justifies giving up a positive state, but does not justify entering a negative one. The text states that regarding expenditure of money, one is obligated to spend all one’s wealth in order not to violate a prohibition, but only up to one-fifth in order to fulfill a positive commandment, because “being righteous” does not justify total loss, whereas “not being wicked” is a basic condition “at any price.”

General law versus Jewish law: the absence of “positive commandments” in the conceptual sense

The text describes a conversation about whether the law contains “positive commandments,” and reaches the conclusion that in the abstract halakhic sense, the law has no positive commandments, only demands not to be “wicked” by means of sanctions. The text presents the debate surrounding the law based on “do not stand idly by your neighbor’s blood,” associated with Hanan Porat, and argues that the opposition stemmed from the fact that law requires a sanction, whereas one who failed to save did not “do evil,” but merely “was not righteous.” The text states that ironically, putting this verse into the lawbook moved the law further away from Jewish law, because in Jewish law, “do not stand idly by your neighbor’s blood” is not punishable in religious court even though it is a halakhic or moral obligation. The text argues that public approval of the law was mainly so that “another verse would enter the lawbook,” not out of any expectation of practical change in saving lives.

Aharon Barak and the claim that these are two systems with different logic

The text brings, as a side remark, Aharon Barak’s position opposing the insertion of clauses from Jewish law into the lawbook, because these are two systems with different conceptual infrastructures. The text states that drawing from British, American, or German law is less problematic because “the mindset is not fundamentally different,” whereas Jewish law is essentially different and therefore transplantation from it is more problematic. The text gives the example of the laws of bailees as an apparently “neutral” field, but argues that the oath is an inseparable component of the arrangement, and therefore copying the rule without the religious infrastructure creates absurdity.

The laws of bailees and oaths: dependence on a religious infrastructure

The text explains that an unpaid bailee is exempt in cases of theft or loss, but must take an oath in order to be exempt, and asks: “What exactly is he going to swear by?” in a society not built around an oath in God’s name. The text argues that the bailee’s oath does not stem from personal suspicion, but is intended “to set the owner’s mind at ease,” because the property is in the bailee’s hands and the owner has no way of knowing what happened. The text states that without an effective mechanism of oath, one cannot maintain the exemption of an unpaid bailee in cases of theft or loss, because that would allow the bailee “to take it for yourself and then claim that it was stolen or lost.” The text rejects the proposal to replace the oath with an affidavit as a solution that takes the arrangement out of “Hebrew law” and turns it into a different system, adding that the halakhic logic assumes fear of swearing falsely in God’s name.

Indirect causation, liability before Heaven, and the claim that importing Hebrew law is harmful

The text uses indirect causation to show that Jewish law exempts a person in religious court while leaving the matter to “the judgment of Heaven,” and warns that in a society that does not fear heavenly judgment, such an exemption would create “anarchy.” The text states that he is “entirely with Aharon Barak” and argues that there is no justification for importing Hebrew law into Israeli law and that it “only causes harm,” even “religious harm,” because the rules receive their meaning within a religious system, and when they are applied outside it they are “just words.” The text states that Hebrew law “is not practical for a state or a society as it exists today,” and presents the whole Hebrew-law project as one based on “an extraordinary collection of misunderstandings.”

Critique of “Hebrew law” in the High Court and in responsa: universal reasoning versus Jewish law

The text argues that when “Hebrew law” is imported in practice, people take responsa such as the Rashba as justification for moving away from the actual halakhic rules and acting according to what seems reasonable, and then they declare that Jewish law has been brought into legislation. The text gives the example of “the view of Hebrew law on force-feeding geese” and argues that these are simply lines of reasoning that anyone could say, so this is not “Hebrew” but general morality. The text claims that importing the “reasonable rules” is not importing Hebrew law, because they are reasonable even without being written by the Rashba; truly importing Hebrew law would specifically require importing the “unreasonable rules.” The text states that the modern system wants “good law,” not “Hebrew law,” and that even within Jewish law itself people need workarounds in order for the system to function.

Religious courts, compromise, and a letter of refusal: criticism of current judicial reality

The text argues that religious courts today make litigants sign in advance “whether for judgment or for compromise,” so that someone who comes seeking Torah law is required to give it up. The text describes a case in which judges refused to adjudicate “only according to Torah law,” and brings Nadav Shnarch’s claim about the absurdity of the ban on secular courts, to the point where someone demanding Torah law receives a “letter of refusal” as though he were unwilling to appear before a religious court. The text explains that part of the push toward compromise stems from judges’ fear of mistakes, and from the fact that in Jewish law a judge who errs “pays from his own pocket,” unlike a civil judge who is immune from lawsuits. The text uses the notion of a rabbinical pleader to portray a reality of professional mistrust, and argues that the Rashba would not have needed such intermediaries.

Nozick: temptation versus extortion and the normative zero point

The text presents, in Nozick’s name, the question of what the difference is between temptation and extortion, and distinguishes between offering a positive addition and threatening harm. The text explains that this distinction only makes sense if there is an “absolute zero,” meaning the normative state, and not if one measures only the difference in gain between two options. The text parallels this to positive commandments and prohibitions, and states that a positive commandment works like temptation, through reward for a positive state, while a prohibition works like extortion, through punishment for entering a negative state. The text formulates an intermediate condition in which a person is “average” as the zero point; a positive commandment demands that one be “righteous,” and a prohibition demands that one “not be wicked.”

Nachmanides: love and fear, the greatness of the positive commandment and the severity of the prohibition

The text brings Nachmanides on remember and keep regarding the Sabbath, and states that the quality of “remember” is a positive commandment emerging from love and mercy, while the quality of “keep” is a prohibition emerging from judgment and fear. The text cites Nachmanides’ claim that a positive commandment is “greater” than a prohibition, just as love is greater than fear, and from here derives that “a positive commandment comes and overrides a prohibition.” The text also cites Nachmanides explaining that punishment is greater with prohibitions, where lashes and death penalties apply, whereas with positive commandments there is no formal punishment, except for rebels, whom the court beats until they agree to perform the commandment or until they die.

Sdei Chemed: the side of fulfillment versus the side of neglect, and explaining the contradictions

The text brings Sdei Chemed, who interprets Nachmanides to mean that on the side of transgression the punishment for violating a prohibition is more severe because it is a matter of positive action, whereas neglecting a positive commandment is a matter of passive omission. The text states that on the side of fulfillment, a positive commandment is fulfilled through positive action, whereas fulfilling a prohibition is through passive omission, to the point that a person “could just doze off and thereby fulfill most of the Torah’s prohibitions.” The text explains that the contradiction between “the positive commandment is greater” and “the prohibition is more severe” is resolved by confusing the side of fulfillment with the side of neglect: in fulfillment, the positive commandment is greater; in neglect, the prohibition is more severe. The text adds a conceptual reason according to which positive commandments are more elevating, and therefore failure to fulfill one does not make a person wicked, but merely fails to make him righteous.

A positive commandment overrides a prohibition: the difficulty and the solution through “refraining is not a commandment”

The text raises the difficulty that the explanation of Nachmanides and Sdei Chemed does not explain the rule that a positive commandment overrides a prohibition, because the decision involves fulfillment and neglect on both sides of the dilemma. The text constructs an example of the positive commandment to eat matzah against the prohibition of eating new grain, and shows that on both sides there is a kind of “offset” between commandment and transgression, so it is not clear why the positive commandment should prevail. The text proposes a solution according to which refraining from violating a prohibition is not a “lighter commandment,” but “not a commandment at all” — it is zero — whereas neglecting a positive commandment is a light transgression, and therefore it is preferable to choose the option that prevents a minus. The text notes that this solution conflicts with other directions, such as a book from Bnei Brak quoting the Ari concerning intention with prohibitions, and describes that as “puzzling.”

A commandment fulfilled through a transgression, “I the Lord hate robbery in a burnt offering,” and “the sacrifice of the wicked is an abomination”

The text raises the question whether the basis here is the notion of a commandment fulfilled through a transgression, and suggests the possibility of distinguishing between prohibitions directed toward the Holy One, blessed be He, and interpersonal transgressions such as robbery. The text notes that some medieval authorities ask how a positive commandment overriding a prohibition can fit with the idea of a commandment fulfilled through a transgression, and mentions a view that limits that principle to robbery or interpersonal wrongdoing. The text distinguishes between “the sacrifice of the wicked is an abomination,” meaning a wicked person who brings an offering without repentance, and a situation where the transgression is built into fulfillment of the commandment. The text emphasizes that these are two different notions: a commandment that is incomplete versus a commandment performed by means of a transgression.

Maimonides on Avot: the reward of a commandment from the punishment for the transgression, and the difficulty against the zero-point model

The text cites Maimonides’ Commentary on the Mishnah in Avot, which states that from a positive commandment whose neglect incurs severe punishment one can know that the reward for fulfilling it is great, and adds that one can also infer the “reward for refraining” from a sin by looking at its punishment. The text argues that this logic seems opposite to Nachmanides’ model, because it creates a mirror relation between the severity of punishment and the magnitude of reward, rather than distinguishing between a baseline state and climbing to a positive state. The text suggests that some of Maimonides’ examples rely on commandments that contain both a positive commandment and a prohibition together, such as the Sabbath and a parapet, in which case the reward comes from the positive commandment and not from refraining from the prohibition. The text notes that circumcision and Passover are exceptions because their neglect carries karet, and therefore perhaps Maimonides sees their neglect as a real transgression and not merely the absence of a positive obligation fulfilled.

The severity of punishment versus the severity of the transgression: dispute and notes from the Talmud and Sefer Hasidim

The text raises the question whether the severity of punishment indicates the severity of the transgression, and notes that this is not agreed upon. The text cites Rabbi Yeruham Fishel Perla as inferring such a connection from Saadia Gaon, and also cites Sefer Hasidim as claiming there is no such connection. The text gives the example of evil speech as a grave transgression with no judicial punishment, and also brings a passage in Ketubot about Hananiah, Mishael, and Azariah, from which emerges a discussion of whether lashes are more severe than death, including mention of a dispute among the medieval authorities in Tosafot and Ritva over whether the issue concerns the severity of the transgression or the harshness of the punishment.

Maharal: a prohibition as preserving the straightness of reality, and a positive commandment as the actual perfection of the human being

The text cites Maharal, who explains that God grants the human being eternity through two kinds of commandments. The text defines, according to Maharal, that prohibitions are intended so that a person should not “alter the reality in which he was created,” and should not depart from “the straightness of reality that reason requires”; departure from that straightness is “loss and destruction.” The text defines, according to Maharal, that positive commandments stem from the fact that a person is not yet at the final divine level and is “only in potential,” and must acquire perfection “in actuality” through positive commandments. The text presents Maharal’s words as a direct parallel to the “zero-state” model, in which a prohibition prevents decline and a positive commandment pushes one to climb.

Full Transcript

[Rabbi Michael Abraham] Last time we talked about the more abstract definition — that is, a definition of prohibition and positive commandment, and an abstraction of the concepts of positive action and passive omission. The definition, basically, was that a positive commandment is a commandment that points us toward a desirable state. That desirable state may be a state in which I do something, or a state in which I refrain from doing it. It doesn’t matter. As long as it is defined as a desirable state, that’s a positive commandment. A prohibition points to an undesirable state — and again, that state may be passive or active — but it points to an undesirable state. And the difference is that when, say, there is a positive commandment, it defines a desirable state. If I am in that desirable state, then I have fulfilled the positive commandment. If I am not in the desirable state, then I have neglected the positive commandment, but that is not something negative; it is simply not something positive. Okay? And therefore, on the conceptual level, this is a transgression of passive omission, even though it may be carried out through an act. But the act is not an evil act; only the refraining is a good act, or a good state. So the fact that I physically do something does not mean that this is a frontal clash with God’s will. It is a non-frontal clash. A transgression through positive action is when there is a frontal clash: there is a prohibition that defines a negative state, and I am in that negative state. And it really makes no difference whether it’s a prohibition or a positive commandment. I am violating the Torah’s will in a frontal way. I am in a state that the Torah forbade. Yes — you could call it a stick and a carrot. Okay? When the Torah tells me, “I want you to be in a certain state,” it is basically trying to motivate me to be in that state, right? That’s the carrot. When the Torah tells me, “I do not want you to be in this state,” that’s the stick. It is trying to motivate me not to be there. It doesn’t matter to me if I’m here, as long as I’m not there. Of course in the end I need to be here, but I need to be here only in order not to be there, not because being here is itself something positive. So that, basically, is the difference between a prohibition and a positive commandment. I’ll just finish that point and then move on. The consequences — we talked about the consequences, about the practical differences between a prohibition and a positive commandment — and I said that the practical differences cannot define the difference between them. They are symptoms of the difference. But the difference itself must be the essential difference, and that is the essential difference. Now let’s see how the symptoms emerge from it. So one symptom, for example, is that only prohibitions are punished. Positive commandments are not punished. Now this is very clear — in fact much clearer than positive action and passive omission. What difference does it make whether it’s positive action or passive omission? Why, if I violate through an act, should I be punished, and if I violate without an act, I should not be punished? That’s a hard question to answer. But here it’s very clear. If I’m simply not positive, why punish me? Just don’t reward me. But why punish me? If I am in a negative state, then I deserve punishment. Right? The same applies in the other direction, namely reward. Reward exists only for positive commandments; not for prohibitions. Why? Because there is no reward for the fact that I am not in a negative state. There is reward for the fact that I am in a positive state — that I am doing something positive. Right? So I think these consequences follow naturally. This is a really simple explanation. It’s not speculative. It is the simplest explanation for the difference between a prohibition and a positive commandment. Another difference, for example, is human dignity. Right? Human dignity overrides a Torah prohibition, but only through passive omission — sorry, only a prohibition of “do not deviate,” that is, only rabbinic prohibitions. And on the Torah level, as Berakhot says, on the Torah level it is through passive omission. And even there they debate which… whether passive omission means that only positive commandments can be set aside, or also prohibitions through passive omission. And what is the idea? The idea, once again, is whether you go after the abstraction or after the practice. And at the abstract level this makes a lot of sense, because human dignity does not allow me to enter a negative state. But if I fail to be in a positive state, human dignity can justify that. In other words, in order not to harm human dignity, they tell me: fine, don’t be righteous, or don’t be in the positive state — but there is no permission to enter a negative state for that reason. The same thing with spending money. When I need to spend all my wealth in order not to violate a prohibition, but only up to one-fifth of my wealth in order not to neglect a positive commandment — in order to fulfill the positive commandment. Again, this is very clear. In order to be righteous, I do not need to spend all my wealth; that is not a basic demand. Okay? But in order not to be wicked, I need to pay everything I have. Because that’s just not acceptable. That just doesn’t fit. At any price, basically, you are not supposed to be there. So it seems to me that this translation is not only not forced, it is much less forced than the usual practical interpretation. I think all these consequences become much clearer if you understand it this way. Now I want to sharpen this further, and then we’ll see some sources that revolve around this issue. In some of them this does emerge, in some it doesn’t, but I want to show that this really exists, perhaps in one form or another, in the commentators as well. I’ll start דווקא with a non-Torah source — or with a distinction. Before I started mentioning Nozick, the American Jewish philosopher, who once asked — why did I start talking about that and then drift off, I think? I heard this from Alon Harel, the legal scholar from Jerusalem, when I spoke with him about this book. I asked him: in law, are there positive commandments too? Or only prohibitions? I think I mentioned this. At first he thought yes, but then I defined for him what positive commandments and prohibitions mean in the halakhic sense, and I think in the end we agreed that in the halakhic sense there are no positive commandments in the law. Because the law does contain commands that require me to perform an act in the practical sense. You have to pay taxes, you have to serve in the army — these are practical actions. But positive commandments in the abstract conceptual sense that I defined here — the law is not responsible for making me righteous. The law demands that I not be wicked. To be righteous, or not to be righteous—

[Speaker C] —that’s not something the law is concerned with.

[Rabbi Michael Abraham] Exactly. When the law tells me to pay taxes, what it’s really saying is that if you don’t pay taxes, you’ll be punished. It’s not telling me that if you pay taxes you’ll be righteous. That’s not charity.

[Speaker C] That’s just not the law’s way of thinking at all.

[Rabbi Michael Abraham] Right — the law isn’t… And I said that this was also the debate surrounding Hanan Porat’s law based on “do not stand idly by your neighbor’s blood.” If you look at the Knesset debates around that law, everyone agrees that one ought to help someone in distress. There was no argument about that. The question was whether it was proper to put that into law. Because once you put it into law, that means there will be a sanction attached to it. In other words, if you violate a law, there has to be a sanction. There is no law without a sanction. And here people objected. Why did they object? Because if you didn’t do harm to someone else — he’s drowning, you walked by and didn’t save him — what sanction? You didn’t do anything. All that happened is that you weren’t righteous. In other words, you won’t get a medal from the President of the State, but you don’t deserve punishment. That was exactly the debate. And I think I mentioned that, ironically, putting that law into the lawbook in a certain sense actually moves the lawbook further away from Jewish law. Because in Jewish law, “do not stand idly by your neighbor’s blood” is not punishable. It is a halakhic or moral obligation, but there is no court-imposed punishment for “do not stand idly by your neighbor’s blood.”

[Speaker C] Here the law is stricter than Jewish law.

[Rabbi Michael Abraham] Exactly. Now when the law… after all, everybody’s goal — nobody… it wasn’t that anyone really cared whether someone would help another person in distress. No, everybody does care about that, but that’s not why they passed the law. That wasn’t the issue. The issue was to get another verse into the lawbook. That’s all. It’s clear that all Hanan Porat’s dancing and rejoicing afterward was not because now one more person would save somebody, but because another verse had entered the lawbook. There are people for whom that does something; I don’t really understand why. In any case, the point is that once this entered the lawbook, it moved away from Jewish law, because once it enters the lawbook, there is a sanction attached to it. In Jewish law they do not impose a sanction for such a thing. I also mentioned in other contexts that when people want to bring in… Aharon Barak — this is only a parenthetical remark, not directly related to us — but Aharon Barak writes in a number of places why he opposes the insertion of things from Jewish law, or what these people call Hebrew law, into the lawbook. He says that there are two systems here, with different logic, different conceptual infrastructures, and you can’t take a clause from here and transplant it into that system. There can be all kinds of consequences you don’t even think of at first glance, and it can create all sorts of trouble. In other words, it isn’t right to paste things from one legal system that works with different assumptions and different conceptions into this legal system. People oppose and argue about this — never mind. There is a lot of sense in what he says. That doesn’t mean it is always right. Of course you can think things through, and we also borrow from other legal systems. But it is true that Jewish law is more different from Israeli law than British or American or German law is. So drawing from those systems is, on the face of it, less problematic. After all, they are all looking for a more or less reasonable legal system. Fine — this one finds one kind of solution, that one another kind of solution — but the mindset is not fundamentally different. In Jewish law there are essential differences, and therefore drawing from it really is, on the face of it, more problematic. And one of the examples I gave, in an article I wrote about this, was the laws of bailees. What could be more neutral and simple? The ideal thing to bring into the Israeli lawbook: that an unpaid bailee is liable for negligence and exempt for theft and loss. Of course, if you make a contract with different terms, no problem. The two parties are allowed to decide that you are an unpaid bailee and still liable for theft and loss — perfectly fine, even in Jewish law. But this is the most neutral thing, right? I would expect this to be the simplest. In other words, if you didn’t establish some different arrangement, then this is the default arrangement, what’s called the dispositive rule. In other words, this is the default: if you didn’t stipulate anything else, then the rules will follow Jewish law. Now let’s see what happens if we put that in. An unpaid bailee comes and says: fine, it was stolen or lost, and they didn’t stipulate anything. It was stolen or lost. The unpaid bailee says, “I’m exempt in cases of theft or loss. I’m only liable for negligence. This was stolen or lost. That’s it.” Exactly. The other person says, “Swear.” An unpaid bailee needs an oath in order to be exempt. Swear what? He doesn’t believe in anything. What exactly is he going to swear by? Now, without the oath it is absurd to establish this rule — that has to be understood. Because the oath is an inseparable part of the whole thing. What does the oath do? The whole issue of Torah oaths is interesting, but the bailee’s oath is exceptional. It isn’t like partial admission or one witness. With the bailee’s oath, there is really no reason in the world to suspect you as a bailee. A person has a presumption of being valid. He says the object was lost — why should there be any reason to… Are you accusing someone of theft without evidence? Since when do we hear such a thing? Somebody grabs another person and says, “You’re a thief,” so now he has to pay? He has to swear just to prove that he’s not a thief? Why in the world? Those aren’t your claims — what do you want from me? Right? Why impose an oath there? Because the problem is that you deposited property with him, and you have no idea what happened there. True, he has a presumption of integrity, but there is still a problem here. I don’t know — everything is completely in his hands. He can do whatever he wants, because it happens in his house. It’s not like one witness. With one witness, there is one witness against me, so I have to swear because there is some evidence against me. Okay? There is some evidence against me. One witness — on the contrary. Now true, in order to extract money you need two witnesses, but one witness is already some evidence, so they obligate me to swear. That I can understand. The oath in a case of partial admission also, let’s say, raises some suspicion about the rest; that too needs analysis, but fine. But with the bailee’s oath there is no suspicion at all — that’s not the issue. The issue is simply an oath to set the owner’s mind at ease. So that you should know what happened there, that’s all. Now it is obvious that the whole bailment arrangement — the oath is what gives me the ability to trust the bailee. I know that if he pulls some trick, he will have to swear to me about it, and a person recoils from swearing falsely. Okay? The whole thing is built on that. Therefore I don’t mind if, in truth, for theft and loss you are exempt. I’m willing to absorb theft and loss. But to give you the option of taking it for yourself and afterward claiming that it was stolen or lost — I’m basically committing Shiite suicide. You’re giving him your property: do whatever you want with it, and afterward you can just tell me whatever you like and I’m supposed to accept it? Why in the world? That’s what the oath is for. The oath is meant to set the owner’s mind at ease. In other words, so that the person will be calm. When someone tells him, “It was stolen or lost,” I make him swear, and then I understand that that is what happened. Fine, what can you do, that’s what happened. But I want to make sure that’s really what happened, and that he isn’t pulling some trick on me.

[Speaker D] But if it’s only to set his mind at ease, then couldn’t you use an affidavit?

[Rabbi Michael Abraham] Exactly. The question is whether that is threatening enough or not. But if you do it with an affidavit, then once again this is no longer Hebrew law, so what have we accomplished?

[Speaker D] No, if you use an affidavit — okay, suppose he says, “What can I do, it was stolen from me,” and then two years later someone comes along and says, “It wasn’t stolen from him.” No problem — if you lied in an affidavit, he goes to prison not only for the theft, he goes for filing a false affidavit.

[Rabbi Michael Abraham] Fine, use an affidavit. But again, that’s no longer Hebrew law. Hebrew law says an oath. You… no problem, and if you don’t use an affidavit but establish something else, that’s also fine. Jewish law itself says you can stipulate. But what you want is to take Jewish law for the declarative aspect — you want to say that Jewish law… but Jewish law won’t actually exist here. You’ll use an affidavit instead of an oath, you’ll make some kind of workaround.

[Speaker E] But it seems to me these are two separate issues. What? One issue is: what is the law when an unpaid bailee has an item stolen from him, or it is lost. A second issue is: how do we prove that the bailee didn’t steal it? What do you mean?

[Rabbi Michael Abraham] Exactly — they are not two separate issues. That is precisely my point. Without that, this won’t exist.

[Speaker E] Why won’t it exist without that?

[Rabbi Michael Abraham] Because if you cannot verify that it wasn’t stolen by him, then he won’t be exempt for theft.

[Speaker E] Then according to that, he also wouldn’t be exempt even for unavoidable accident. He’d be exempt for nothing — he’d always have to pay.

[Rabbi Michael Abraham] By the way, there are views like that among the medieval authorities too: basically, a bailee — at least with regard to a paid bailee — a paid bailee is liable for theft and loss not because he has to guard better. On the contrary. The plain sense of the Talmud on page 93 there, in the dispute between Abaye and Rava over whether you should have passed them one by one, the straightforward sense of the discussion is that a paid bailee has to guard in the normal human way, exactly like an unpaid bailee. There is no difference. A paid bailee is an insurance company. In other words, if theft or loss happens to you, it’s not because you are more at fault, or because you should have guarded better. It’s just an insurance company: in addition to the guarding service that you provide, you also provide insurance services. That’s all. And that’s what you are being paid for.

[Speaker E] But how does that contradict… how does that contradict the need for an oath?

[Rabbi Michael Abraham] Once you are providing insurance services, that means you are liable even when there is really no fault — you could even be made liable for unavoidable accident.

[Speaker E] But that’s a paid bailee, not an unpaid bailee.

[Rabbi Michael Abraham] True. But an unpaid bailee too—

[Speaker E] —is an insurance company, except that he can get exempted through more kinds of claims?

[Rabbi Michael Abraham] He provides less insurance, as long as the insured event occurred. How do I know the insured event occurred? When he swears, I know that the insured event occurred — or didn’t occur, yes, that it didn’t occur. Does the Rabbi think there shouldn’t be a problem with his swearing?

[Speaker G] I mean, let him swear. After all, members of Knesset are sworn in, presidents are sworn in, and I agree it’s not the same thing. But even with the bailee’s oath — no?

[Rabbi Michael Abraham] With the bailee’s oath I know what I’m talking about.

[Speaker G] In a society where people are used to swearing, then in such a society I’m trying to imagine — in a period when the Jewish people, you know, had not completely drifted away and weren’t observing everything, but there still was such a system and people did swear — some recoiled more, some recoiled less.

[Rabbi Michael Abraham] Because if someone is not in a place where, you know, the oath is effective for him, then you simply won’t administer an oath.

[Speaker G] Yes, but still—

[Rabbi Michael Abraham] —and then in practice they won’t administer an oath there at all.

[Speaker G] Still, in a society like… in a secular society, I think I agree that when you insert a system that rests on one set of tools into another set of tools, you get collisions you didn’t think of — like when people import things from Kabbalah into Jewish law, turning Kabbalah into law, and suddenly with ritual handwashing you don’t know what to do because things clash. But to say that about the oath? They swear people in in the army, in the Knesset, they swear in the president.

[Rabbi Michael Abraham] That isn’t an oath. They call it swearing in, but it isn’t an oath. I know it’s not the same kind of oath, because there you are afraid of something. An oath is in God’s name. Even the wording of the oath is not the same. You need to swear in God’s name.

[Speaker H] No, the whole thing — the entire infrastructure here is a religious infrastructure. You can’t detach it from the religious infrastructure.

[Rabbi Michael Abraham] What about exemption in indirect causation?

[Speaker H] Exemption in what? Exemption in indirect causation?

[Rabbi Michael Abraham] In Jewish law too, someone who causes damage indirectly is exempt. Do you imagine that in civil law they would exempt someone who causes damage indirectly? We know that the Holy One, blessed be He, will settle accounts with someone who caused damage indirectly, so in Jewish law we can say: okay, the court won’t deal with this; it will be left to heavenly judgment. But if someone is not afraid of heavenly judgment, there will be anarchy here. Or to the king. Or to the king, yes. So you are basically saying there is no point and no effectiveness in introducing Hebrew law. It only does harm. In my opinion, it only does harm. I’m entirely with Aharon Barak on this issue. Really? Entirely. It makes sense. Yes, completely. It’s not logical, and in my eyes it’s harmful religiously, not only legally. Harmful religiously, because I think these things have meaning within a religious system. When you apply them outside the religious system, they have no meaning. They’re worth nothing, even if you manage to introduce them and even if no contradictions or problems arise. It may happen that you can introduce them — but what value does that have? Just words.

[Speaker I] But then you’re basically saying that Hebrew law is not practical for today?

[Rabbi Michael Abraham] It is not practical for a state or a society as it exists today. Obviously. What do you mean? Is that even a question?

[Speaker I] No, because they try to show that it can be.

[Rabbi Michael Abraham] What do they call Hebrew law? About that too I have — I wrote about it in an article — an argument I keep having with these people all the time. What is Hebrew law for them? When they bring in Hebrew law, they’ll take a responsum of the Rashba from all kinds of places like that. What is written in the Rashba’s responsum? In the Rashba’s responsum it says what to do when we can’t manage with the actual rules of Jewish law, so we do such-and-such. Then they take that and say: look, we brought Hebrew law into the legal system, because it’s written in Rashi script in some brown or black book. That’s all. What is Hebrew law about that? They brought, in the High Court case on force-feeding geese, a position paper from the department of Hebrew law — Vigoda, yes — on the view of Hebrew law regarding force-feeding geese. What is the view of Hebrew law regarding force-feeding geese? They quote the Hatam Sofer, they quote this one and that one. What does he actually say there? His reasoning. Reasoning that I could have said too, and so could you, and I don’t know, Donald Trump. Any non-Jew could come up with an argument this way or that way. That’s what he thinks. So what is Hebrew law here? What’s Hebrew about it? These are moral rules. Fine — I’m not belittling the Hatam Sofer. He was an important Jew, a wise Jew, excellent. Fine. Kant was also a wise man — not a Jew, but wise. So take him too. Bring his ideas. Maybe one can learn from him as well. But that has no value in the Torah sense.

[Speaker E] It’s basically just human reasoning, that’s all. If it has no value in the Torah sense, then why was it written in responsa as a halakhic answer?

[Rabbi Michael Abraham] It was written in responsa because even from a halakhic point of view, morality is binding where Jewish law has not established something else. So all they are doing is taking moral principles as they see them and setting them up as Jewish law. I say: fine, then take it from the original source already. Why do you need the Hatam Sofer? Just take it directly from morality. That is not called importing Hebrew law; it is simply a conceptual mistake. To import Hebrew law means to import specifically the rules that are not rational. That is what it means to import Hebrew law. Because the rational rules are not there because they are Hebrew law, but because that is the correct solution to the problem. So what does that have to do with Hebrew law?

[Speaker J] And that is basically what they are trying to show throughout all these rulings: look, Hebrew law is very practical and very rational.

[Rabbi Michael Abraham] But they can show that only if they define Hebrew law in a way that actually empties it of its specifically Hebrew content. That is exactly the problem. There is a fundamental failure in the whole conception there. When you want to introduce Hebrew law as Hebrew law, you have to take precisely the thing that is not rational — that is, precisely the solution that is not the legally obvious one. Because if it is the legally obvious solution, then why should I care whether it is written in the Rashba or somewhere else? If it is a good solution, I will implement it. And of course I have no objection if it also happens to be written in the Rashba. Obviously. But not because it is written in the Rashba — because it is rational. But you want to introduce it because it is Hebrew law, not because it is the rational solution. So that is exactly where you would have to introduce the non-rational things. But why introduce the non-rational things? Our system wants good law. It doesn’t want Hebrew law. It wants law that works. In the halakhic world, then I say: it has some value, even if perhaps it is not the optimal legal solution, because it is the commandment. This is how we serve God. And even there we find workarounds so we can somehow get along, because otherwise you can’t manage. This whole Hebrew-law project is, in my eyes, ridiculous from beginning to end. Simply foolish, really — based on an extraordinary collection of misunderstandings… Alon’s whole book.

[Speaker D] Exactly — he devoted an entire book to the subject.

[Rabbi Michael Abraham] No, Alon’s book describes Jewish law very beautifully, really a gorgeous book, by the way. Truly. One of the most impressive books I know. I mean, there are no mistakes there. The man knows what he’s writing about. Usually when people write and quote things, you can see they don’t really understand. He knows what he’s writing. You don’t find mistakes there. Meaning, he writes and he understands what he’s writing. I was very impressed by that book, but the project of putting that into statutory law is something entirely different. That’s a whole different story.

[Speaker D] By the way, in a certain sense, say even when there was Jewish law in practice—let’s say an unpaid bailee in the time of King David, an unpaid bailee who was a heretic—would they have still obligated him to take an oath?

[Rabbi Michael Abraham] No, of course not. You don’t administer an oath to someone who’s already suspected with regard to oaths. You don’t make him swear; you transfer the oath to the opposing party.

[Speaker E] No, of course not. You don’t administer an oath to someone who’s already suspected with regard to oaths. You don’t make him swear; you transfer the oath to the opposing party. No, but with an unpaid bailee you can’t transfer the—

[Rabbi Michael Abraham] The oath to the opposing party, because the other party doesn’t know.

[Speaker E] Okay, so maybe there would be a rule of “since…” or I don’t know, some disputes there. So in that case you could take that law in such a situation as the…

[Rabbi Michael Abraham] No problem. But that law is precisely not Jewish law in the classic sense. Why is it not Jewish law? It’s the oath—what do you do?

[Speaker E] That’s what Hebrew law says. No, that’s not what Hebrew law says.

[Rabbi Michael Abraham] That’s the workaround the Sages found when it’s impossible to implement the original Jewish law. That’s exactly the point. You bring the Rashba, and what I mentioned earlier—the Rashba I mentioned earlier means a certain responsum where some community asks him: the king gave us judicial autonomy, okay? The question is whether we can accept women’s testimony. Can we judge based on a single witness? Self-incrimination? Since a person cannot render himself wicked? All these things. The Rashba says: what’s the problem? After all, you’re not operating according to the original Jewish law, so you can do whatever makes sense. On the contrary—be happy! You can do whatever makes sense. You’re not bound by the constraining rules of Jewish law. And then this gets called “Hebrew law,” and this Rashba is what we want to insert into Jewish law, into the law book, and now we’ve integrated Hebrew law into the statute book. It’s the opposite. The Rashba is explaining to us that if we’re not working within the halakhic framework, then we’re not bound by those rules and we can behave rationally. Because Hebrew law in its essence—the whole idea of it—doesn’t let you behave rationally, and every time you need to find bypasses in order to function even on the practical legal level.

[Speaker E] So what did they want to bring in from that ruling? What? What exactly? I’m not really managing to understand what—

[Rabbi Michael Abraham] No, they want to say why women can testify and why—

[Speaker E] Fine, but with that you can justify why religious people rely on secular law, but I don’t see—

[Rabbi Michael Abraham] Right—and then he says this fits Hebrew law, because the Rashba also wrote that you can accept women’s testimony in such cases, or all kinds of things of that sort. But that is not Hebrew law. Those are solutions for places where you can’t maintain Hebrew law. The Rashba also had common sense, and so did the Chatam Sofer, right? Obviously. They had common sense. People operate with common sense. But for common sense you don’t need Judaism. Common sense is universal. If you want common sense, then think about what common sense says, and fine. And if you find common sense in the Rashba, then take it from there, no problem—but take it from there not because it’s written in that classic rabbinic script, but because it’s the right solution to your problem. That’s all. I don’t think the Rashba’s book has more correct solutions to legal problems than the American or German law code or whatever it may be. Any one of them. Why would anyone think that?

[Speaker D] But in my opinion, what we have here is an ideological argument. Clearly. No, the ideological argument is that liberal secular people always claim that if we have—if we go by Hebrew law, we’ll become Iran. And therefore… therefore the Sabbath needs to be treated like a weekday. So what do the people of Hebrew law say? Don’t worry a second—look, the Rashba shows that there’s a normal form of things, and therefore that’s not a reason to turn the Sabbath into a weekday. Okay.

[Rabbi Michael Abraham] So with that polemical argument, I agree. More than that—I think I even wrote there, I don’t remember whether it was in that article, that all in all, when someday there will be a halakhic state here, the law code will look exactly the same as it does today. There won’t be any difference. That’s obvious. Only they won’t call it Jewish law; they’ll call it the king’s law and “judging beyond the strict law” and all sorts of other things. Because obviously—what? You’re not going to punish someone who caused damage only indirectly? Or not punish someone when there are no witnesses and no prior warning and no acceptance of the warning and “even so I’m doing it”? Come on. Can you run a society like that?

[Speaker E] No.

[Speaker D] But maybe they’ll do it. Look, now they’re talking about Sabbath—

[Rabbi Michael Abraham] No, harm to the Sabbath is not Hebrew law in the legal sense—that’s Jewish law as religious observance. It’s not “law” in the juridical sense.

[Speaker D] Sorry, I mean that’s how the state behaves.

[Rabbi Michael Abraham] No, obviously. I’m talking about law. I’m not saying the state will look the same—there won’t be Sabbath desecration—but I’m saying that from the legal dimension, after all, today nobody debates whether to fine Sabbath desecrators. When the Messiah comes, then they’ll do what common sense says, and human beings will use their heads and think what common sense requires.

[Speaker E] So what, Jewish law is ideally theoretical on the legal plane? Yes, yes.

[Rabbi Michael Abraham] A lot of Jewish law is theoretical, and whatever within Jewish law isn’t theoretical is usually just external props brought in from outside.

[Speaker K] But in religious courts don’t they rule this way according to Jewish law?

[Rabbi Michael Abraham] No. Religious courts today are generally something ridiculous. In a religious court, the moment you arrive, you sign that the proceeding is “either strict law or compromise.” In other words, they keep telling you all the time that you’re forbidden to go to civil courts, you must go to a religious court because the law of the Torah is our very life, the tree planted by the altar, whoever goes to an unfit judge—yes, all that rhetoric. So you go to the proper judge, and what does he do? He makes you sign that you will not receive Torah law from him. So why am I going there?

[Speaker E] Because maybe otherwise he’d also have to exempt indirect damage and…

[Rabbi Michael Abraham] First, he’d have to exempt for indirect damage; and second, I could sue him for mistakes. So he tells me: “whether for law or for error,” and then it’s all fine.

[Speaker E] Ah, you also sign away mistakes?

[Rabbi Michael Abraham] Of course. What? “Whether for law or for error.” Of course. You accept him—that has the legal meaning of a compromise. And they obligate you. By the way, Nadav Shnerb, a friend of mine, wrote a beautiful article about this, showing how absurd the prohibition on going to civil courts is today. They tell you: you may not go to civil courts; you must go to a religious court to receive Torah law. You come for Torah law, you ask: give me Torah law. They don’t agree. I once went to a Torah-law case—not me, someone I helped. It was some kollel student in Jerusalem who asked me for help; he got entangled with his kollel, never mind. There really were problematic things there. I went there and said: I want Torah law. Only Torah law. Because under Torah law I could have gotten him acquitted.

[Speaker E] Wait, was he the plaintiff or the defendant?

[Rabbi Michael Abraham] I knew that if it wasn’t Torah law, then at best it would be some compromise or something. But under Torah law I could clear him—I had good arguments. They wouldn’t agree under any circumstances.

[Speaker J] Wait, was he the plaintiff or the defendant?

[Rabbi Michael Abraham] “Torah law we are not prepared to do,” the judges said. Not the other side—the judges. So what are you, then? What? No, they didn’t send him to civil court, but they said: with us, you won’t litigate that way. By the way, Nadav Shnerb brings in his article that if you demand Torah law, they issue a contempt order against you. Do you hear this? The high rabbinical court approved this—sorry, didn’t establish it, approved it. A regional religious court established it, and the supreme high rabbinical court—I don’t remember what they’re called—approved it. What happened? A person comes and says: I’m not willing to litigate before you unless you judge me by Torah law. They issued a contempt order against him on the grounds that he was unwilling to litigate in religious court. What kind of contempt order? He wants Torah law! He refuses only because they don’t want to judge him by Torah law. They issue a contempt order against him, understand? And this is what’s called violating the prohibition on civil courts—not going to Torah law, but going to civil court. I have seen an upside-down world. It’s ridiculous. Yes, well, fine. We live in a crazy period, really a crazy period. Unbelievable.

[Speaker L] What? Because they fear making mistakes? Of course. Also because they fear mistakes, yes.

[Rabbi Michael Abraham] Does an ordinary religious court not fear it’s making mistakes? What?

[Speaker L] An ordinary religious court doesn’t fear that? They do fear it.

[Rabbi Michael Abraham] No, and it’s not only because of that. What is this institution of a rabbinical advocate? A lawyer? If you had come to the Rashba with a rabbinical advocate, he would have thrown you and your rabbinical advocate in a sack into the sea. Why do you need a rabbinical advocate? To lie. Yes—what else do you need him for?

[Speaker G] Why do you need a lawyer?

[Rabbi Michael Abraham] You know why you need a lawyer? To help the judge.

[Speaker G] To help—

[Rabbi Michael Abraham] The judge. Because both sides—each lawyer turns over every stone to find all the arguments in favor of his client, and that’s perfectly fine; that’s what he’s supposed to do. And the other one does the same thing. Then the judge knows he has covered everything, that he hasn’t missed anything, because each side gives him all the arguments. Now he only has to decide which side he rules with. Exactly the same with a rabbinical advocate and a religious judge. The rabbinical advocate makes sure the judge doesn’t miss some Taz or Shakh he didn’t notice, and the rabbinical advocate finds everything needed in favor of his client. Now the Rashba doesn’t need them to explain to him who the Taz is—he knows on his own. What kind of thing is this, a rabbinical advocate? Go away. You tell me what you want; I know the Tazim myself. Today people don’t have confidence in themselves; they’re afraid of making mistakes. So they say yes, let there be a rabbinical advocate to help. They’re in favor of rabbinical advocates; they want help.

[Speaker G] And they themselves end up needing state law, because if you sue him then he has immunity.

[Rabbi Michael Abraham] No, that’s another story, something else entirely. What suddenly? There is concern about mistakes; there are judges—look, it really isn’t simple. Not only is there concern about error—that’s understandable. More than that: in Jewish law you also don’t get protection, unlike a state judge. A judge who made a mistake, made a mistake. You can’t sue him. In rabbinical court today, you also can’t sue them today.

[Speaker K] What? They have immunity?

[Rabbi Michael Abraham] Yes, that’s it. But for a religious judge it wasn’t like that. A religious judge who made a mistake paid out of his own pocket. A religious judge who made a mistake paid out of his own pocket. Jewish law doesn’t protect him. So yes, there is concern that you’ll make a mistake.

[Speaker L] And concern that it’s not unreasonable.

[Speaker J] Look, the judge…

[Rabbi Michael Abraham] He sits there all his life; I haven’t seen one ruling I agree with.

[Speaker J] On judges I would apply Hebrew law to them.

[Rabbi Michael Abraham] So maybe here we should bring in Hebrew law, you’re saying. Okay, and then—

[Speaker E] It’ll double things—we’ll have to add twice as many judges so they can judge the judges in all the lawsuits people will sew together there. Why? After two years, the winning side gets a result, and then there’s another two-year trial of the losing side against the judge.

[Rabbi Michael Abraham] Anyway, let’s get back to it. All that was in parentheses. So we were talking about the implications. After that I started again with Nozick—I always start with him and then drift off. Nozick asks: what is the difference between an inducement and extortion? An inducement is legally permitted. I’m allowed to tell someone, listen, if you do such-and-such I’ll pay you a thousand shekels, right? Every worker is basically a kind of inducement. After all, if you work for me I’ll give you money. Okay? Or a contract, or whatever it may be. Extortion, by contrast, is forbidden. If you don’t work for me, I’ll take a hundred shekels from you, or I’ll do such-and-such to you. An offer you can’t refuse, as they say. So that’s forbidden. He asks: what’s the difference? In both cases you present him with two options, where in one he ends up with a hundred shekels more than in the other. So why is this permitted and that forbidden? What’s the answer?

[Speaker G] What? You’re taking from him.

[Rabbi Michael Abraham] Right. The answer is that the measure is not differential. That is, if you look at it in purely comparative terms, then inducement and extortion are the same thing. You’re basically offering him two options, one of which leaves him with a hundred shekels more than the other. So what’s the difference between inducement and extortion? The answer is that there is an absolute zero. There is some state that is the normative state, the regular state—his money is his. That’s all. Now relative to that baseline, if you tell him: look, if you do this you’ll get extra money; if you don’t, nothing happened—I’m leaving you as you are—that’s legitimate. You can give him money and you can choose not to give him money.

[Speaker C] That’s very parallel to reward and prohibition.

[Rabbi Michael Abraham] Yes, exactly. That’s why I bring it. But if, by contrast, you tell him: look, if you don’t do this, I’ll take a hundred shekels from you; and if you do it, you’ll get to keep your money—yes, that’s protection racket logic. So do it. That’s forbidden. Why is it forbidden? Because you don’t get to take his hundred shekels. That doesn’t depend on you. If he agrees, fine—but if he doesn’t agree, then it’s a coerced sale. It may be that if he agrees, then according to Jewish law perhaps even extortion would be permitted.

[Speaker E] Permitted? No—valid. Not permitted.

[Rabbi Michael Abraham] Valid or permitted?

[Speaker E] There’s room to analyze that question.

[Rabbi Michael Abraham] Fine, never mind. In any event, the claim is that there is some absolute zero, so that if you tell him, look, I’ll give you a bonus if you do this—that’s permitted. If you tell him I’ll harm you if you don’t do this—that’s forbidden. In other words, there’s a difference between not giving a bonus and causing harm. Or between not harming and giving a bonus. You understand that this is exactly the same as the difference between a positive commandment and a prohibition, right? A positive commandment basically says: if you do something positive, you’ll get reward; and if you don’t do it, then you’re not righteous, but you’re not wicked either. A prohibition means: if you do it, you’ll be punished. That’s extortion. A positive commandment is inducement, and a prohibition is extortion, right? In other words, if you act in a way that puts you in a negative state, then you get—well, it’s really a stick meant to keep you from ending up in a negative state. Okay? So it’s really parallel to a positive commandment and a prohibition. Therefore, to tell you “I don’t want the positive commandment” does not mean “I want the prohibition.” It’s not the same thing. We talked about that logical equivalence. It’s not the same thing. “I don’t want you to be in the positive state” does not mean “I want you to be in the negative state.” And vice versa. “I don’t want you to be in the negative state” does not mean “I want you to be in the positive state.” Okay? It only means I don’t want you there. How you solve that—do what you want. Of course, in practice you’ll have to be in the other state, but not because that other state is desirable in itself. This is basically the same thing, and the difference between a positive commandment and a prohibition also hides behind it some state of zero. There’s a state of zero: a person is average. Positive commandments demand that he become righteous. Prohibitions demand that he not become wicked. Okay? And therefore there is a difference between being righteous and not being wicked, and that difference exists because there is a zero state; not everything is merely comparative. If everything were merely comparative, then there would be no difference between a positive commandment and a prohibition—that was our question. And that question is completely parallel to Nozick’s question, where he doesn’t see any difference between inducement and extortion. But if we understand that there is some absolute zero—not just comparative—everything is measured relative to zero, not just relative between the two options. Then if you are above zero, that’s a positive commandment; if you’re below zero, that’s a prohibition. Okay? Even though in both cases it’s the same general structure: I want you here and not there, right? That’s basically true of both a prohibition and a positive commandment. Now let’s look at Nachmanides on the book of Exodus. Nachmanides says this—and really he’s also there, this Nachmanides is in the Ten Commandments on the commandment of the Sabbath, “keep the Sabbath day to sanctify it.” He discusses there the relation between “remember” and “keep,” meaning the prohibition and the positive commandment of the Sabbath. What?

[Speaker D] “Keep” is in Deuteronomy.

[Rabbi Michael Abraham] Yes. So he discusses the relation between “remember” and “keep.” And he says: “Indeed, the quality of ‘remember’ alludes to the positive commandments, and it issues from the attribute of love and corresponds to the attribute of mercy; for one who fulfills the commandments of his master is beloved to him, and his master has mercy upon him. And the quality of ‘keep’ is in the prohibitions, and it corresponds to the attribute of judgment and issues from the attribute of fear; for one who guards himself from doing evil in the eyes of his master fears him.” So what is he really saying? That positive commandments belong to the quality of love or mercy. That basically means: I want to please my master; if I do this, my master will love me. Prohibitions mean: I want not to harm my master; if I do this, my master will hate me. And that is love. Love leads to the fulfillment of positive commandments, and fear leads to refraining from violating prohibitions. Then he says: “Therefore positive commandments are greater than prohibitions, just as love is greater than fear, for one who fulfills and does with his body and property the will of his master is greater than one who merely guards himself from doing evil in his eyes.” Right? Basically what is he saying? Positive commandments are greater than prohibitions. Why? Because fulfilling your master’s will is more important than refraining from what your master does not want.

[Speaker E] Not more important—greater,

[Rabbi Michael Abraham] More essential, more—

[Speaker E] More productive of good, more worthy of credit, more worthy of credit.

[Rabbi Michael Abraham] Okay. “Than one who guards himself from doing evil in his eyes.” “And therefore they said that a positive commandment comes and overrides a prohibition.” Therefore a positive commandment overrides a prohibition because the positive commandment is more important than the prohibition. We’ll come back to that because that’s a problematic statement. “And for this reason the punishment for prohibitions will be greater, and punishment is administered for them, such as lashes and death. But punishment is not administered for positive commandments at all, except in the case of rebels.” Meaning, if someone rebels against a positive commandment, like saying “I will not take a lulav,” “I will not wear fringes,” “I will not build a sukkah,” then the Sanhedrin would beat him until he accepted upon himself to do it, or until his soul departed. Basically behind all this lies a difficulty. On the one hand, the rule is that a positive commandment overrides a prohibition—so apparently the positive commandment is greater. On the other hand, the prohibition is more severe. For prohibitions there are punishments, but for positive commandments there generally aren’t. For a prohibition you need to spend all your money to avoid violating it; for a positive commandment only up to one-fifth. So which is more severe—the positive commandment or the prohibition? So he says: it depends. The Sdei Chemed explains this—look on the other side of your page, or page two if you printed it. The Sdei Chemed explains it. “And this is the language of Nachmanides there”—you see it? It’s the print in rabbinic script, the Hebrew-law section, there on the page, in that script. “And this is the language of Nachmanides there: ‘Therefore positive commandments are greater than prohibitions,’ etc., ‘for one who fulfills and does the will of his master is greater than one who guards himself from doing evil in his eyes, and therefore a positive commandment comes and overrides a prohibition. And for this reason the punishment is greater for prohibitions, and punishment is administered for them, such as lashes and death, whereas no punishment is administered for positive commandments at all except in the case of rebels, such as one who says: I will not take a lulav, I will not wear fringes, I will not build a sukkah,’ etc.” Up to here is his language. “And his intent is”—now this is the Sdei Chemed’s explanation—“that where one transgresses the commandment, his punishment is less than one who transgresses a prohibition, because one who violates a positive commandment violates only through passive omission—that he does not sit in the sukkah or does not put on tefillin.” And we already discussed that this “passive omission” is abstract, because sometimes it can be through an action. “Whereas in a transgression of a prohibition, he transgresses through positive action, for he eats carrion or wears a forbidden mixture through an act, and therefore his punishment is greater. But not so in fulfilling commandments. A positive commandment is fulfilled through positive action, while fulfillment of prohibitions is by passive omission, and one could curl up asleep and fulfill most of the prohibitions in the Torah.” Yes—basically, he can sleep and fulfill all the prohibitions, because while asleep he won’t stumble into anything, so he is keeping the prohibitions.

[Speaker E] All the more so if he sleeps his whole life, so to speak. Just during the time he’s sleeping—a whole Sabbath—

[Rabbi Michael Abraham] Sleeping. The more you can sleep, the better, because then you won’t eat pork, won’t speak slander, maybe you also won’t neglect Torah study—though there there’s room to discuss it. Whether neglecting Torah study occurs when you went to sleep or while you’re asleep.

[Speaker H] Amnon Yitzhak’s sheep is exactly like that.

[Rabbi Michael Abraham] Our sheep. What? Yes, exactly—Amnon Yitzhak’s sheep is exactly like that.

[Speaker E] No, but then you’d violate prohibitions that are through action.

[Rabbi Michael Abraham] Yes, right. Here he is entering a bit into the practical-performative difference. “And therefore in fulfilling commandments, a positive commandment is greater than a prohibition, because one who fulfills and acts is greater than one who merely guards himself from doing evil; and therefore they said that a positive commandment comes and overrides a prohibition, and the words are fitting for the one who said them.” What he means is this: these apparent contradictions are not contradictions. They are two sides of the coin. When you look at positive commandments, there is the side of fulfillment and the side of neglect, whether of a positive commandment or of a prohibition, right? When you fulfill a positive commandment, you fulfill it actively. I’m speaking now in performative language, but I mean it on the abstract level. Okay? You fulfill it actively, and you violate it by passive omission, right? A prohibition is the opposite. You fulfill it by passive omission, and you violate it through positive action. Okay? Now he says like this: On the side of fulfillment of commandments, which is greater? The positive commandment. Why? Because to fulfill through positive action is greater than to fulfill through passive omission. Again, abstract passive omission, yes? By contrast, on the side of neglect, which is more severe? The prohibition. Because you rise and act and transgress through action—

[Speaker G] Whereas with a positive commandment you transgress by passive omission.

[Rabbi Michael Abraham] Therefore he says there is no contradiction at all. When you look at the side of fulfillment, positive commandments are more important than prohibitions. When you talk about the side of transgression—what is the level of the offense if you failed to do the positive commandment or did violate the prohibition—then on the side of sin, the prohibition is more severe than the positive commandment. No contradiction whatsoever. On the contrary, these are two sides of the same coin. Precisely because the positive commandment is a more elevated commandment, yes, one that brings you to a more positive state, then not being there is a minor offense—you’re just not righteous. So precisely because the commandment is so great, the offense involved in not doing it is small. And if the commandment is small—in the case of observing a prohibition, yes, we spoke about the “do not delay wages” example from that Bnei Brak book—then keeping the prohibition is a minor commandment; therefore violating something whose fulfillment is almost nothing is a severe offense. That’s a basic demand. Therefore, from the side of transgression, the prohibition is a more severe offense.

[Speaker E] Meaning the “do not delay wages” example from that Bnei Brak book—

[Rabbi Michael Abraham] Where he says that when you sit in the barber shop you should have intention for several commandments, like “do not delay the wages of a hired worker” and “do not round off the corners of your head.” And to have explicit intention for prohibitions—that’s an interesting novelty.

[Speaker E] That’s not his novelty. I read that in the name of the Ari, I think.

[Rabbi Michael Abraham] Yes, who was talking about that? I forgot. Yisrael mentioned that the Ari writes that, yes. These are still puzzling things.

[Speaker H] Why is refraining by passive omission treated as inferior to fulfilling a positive commandment? After all, there’s also an element of overcoming one’s urge. In passive omission, you’re not just sitting and doing nothing. You may very much want to violate the prohibition and you overcome your urge.

[Rabbi Michael Abraham] Yes, but in the end it’s still something basic. You restrain yourself and don’t murder—do you want to receive the same prize as someone who gave charity? No. And it’s the same thing. A prohibition in its essence—that’s of course an extreme example—but a prohibition in its essence is exactly the point. It’s a negative act, and there is a basic obligation to restrain oneself and not do a negative act.

[Speaker E] Depends on the situation, right? Hot blood—

[Speaker G] In what—

[Rabbi Michael Abraham] Situation?

[Speaker E] For an ordinary murderer, I’d say you’re not worthy of reward for that, because the very fact that you got to a point where you need to restrain yourself shows how much you’ve corrupted your soul. But if it were a situation—

[Rabbi Michael Abraham] Where you’re in a cave of robbers and murderers, the basic demand is still not to murder.

[Speaker E] In such a case then it seems—

[Speaker F] To me, meaning in that case—

[Rabbi Michael Abraham] It would be appropriate to give some prize. Maybe. It’s still the fulfillment of a basic demand.

[Speaker F] It all depends. If you have a great temptation to go eat—

[Rabbi Michael Abraham] No, I’m saying: if you’re in a place where there’s temptation, then you’ll receive heavenly reward for the effort, fine, all good. But still, what you did here is something basic. You didn’t do something negative. On the level of intentions and motives and struggles and all that—fine, the Holy One, blessed be He, will take that into account. But on the level of the basic definition—the difference, no, sorry, I mean this seriously—the difference between a prohibition and a positive commandment is a difference in the question of basic demand. Every person has to avoid murder or avoid desecrating the Sabbath; that’s the ABCs. You don’t deserve any prize for that. Fine, if for you it involved unusual effort, then okay, you’re a special case. But in principle it’s a basic demand. A positive commandment is not a basic demand; it’s a demand to rise above the basic. Here it’s only a demand to preserve your state as average—not to fail, not to deteriorate into a negative state. Stay in the normative state, the zero state, yes, Nozick’s zero. Then fine, that’s the ABCs; everyone has to do that. But climbing to the state of the righteous—not everyone does that. So he says there’s no contradiction; it’s two sides of the same coin. When I ask whether in order to avoid violating a positive commandment I need to spend only up to one-fifth of my property, whereas to avoid violating a prohibition I need to spend all my property—why? Because in order not to enter a negative state, you must spend all your property. And similarly, what about punishment? If I already violated the prohibition, I deserve punishment. If I neglected the positive commandment, I don’t deserve punishment. Why? Because if I’m in a negative state, I deserve punishment; that’s more severe than simply not being in a positive state. Therefore I deserve punishment. That’s all on the side of non-fulfillment. What about reward? No contradiction. Obviously the reward for a positive commandment will be greater than the reward for merely not stumbling over a prohibition. Right? Because that’s on the side of fulfillment. On the side of fulfillment, the positive commandment is higher than the fulfillment-side of a prohibition—namely, not violating the prohibition. Okay? So in fact there is no contradiction at all between those two things. The interesting question is—and this is just a remark—afterward he says, and this is a long explanation, he brings many who challenged Nachmanides and showed that really the prohibition is more severe than the positive commandment, and he brings many sources. This is the principle he explains here. Then he says that all of this—look, see below—he gives several examples and shows why nothing is difficult. Because they are simply mixing up the side of fulfillment with the side of negation. From the side of fulfillment, the positive commandment is more significant; from the side of negation, the prohibition is more significant. They’re two sides of the same coin; there’s no contradiction. Yes, for things that a person tramples underfoot he receives greater punishment, because it’s an easy thing—why didn’t you keep it? Precisely because it was easy, violating it is more severe.

[Speaker E] Ah, so is that what “things a person tramples underfoot” means? It means not things a person belittles because he doesn’t see them as important? Yes, it means they’re easy things. Sometimes hard things too—what do you mean?

[Rabbi Michael Abraham] No, easy things. Why does he trample them underfoot? Because in his eyes they are easy things.

[Speaker E] Because they’re not easy to perform; rather they’re things he doesn’t think are important.

[Rabbi Michael Abraham] Right. And therefore he gets punished for them—gets punished. What’s the problem? No, the point is that once things are easy to do, then if you don’t do them you get punished; that’s more severe than with something that isn’t easy to do.

[Speaker E] I understand, but is that what the expression “things a person tramples underfoot” means? I thought it meant things a person belittles because he doesn’t regard them as important commandments, and that could be something easy or something hard.

[Rabbi Michael Abraham] But if it’s hard to do, then it’s a combination of two things, because if it’s hard to do, then he doesn’t do it also because it’s hard, not only because he tramples it underfoot. So in the plain sense, “things a person tramples underfoot” are also things that are easy to perform, and the claim against you is that only because you belittled them did you fail to do them. Because if you failed because it was hard for you, then you have another reason why you didn’t do it. In any case, the interesting point here is “a positive commandment overrides a prohibition,” because there it gets a bit tricky. A positive commandment overriding a prohibition involves both the fulfillment side and the negation side. When I compare the positive commandment against the prohibition, am I comparing the fulfillment side of the positive commandment and the prohibition, or the negation side of the positive commandment and the prohibition?

[Speaker F] Fulfillment. Why?

[Rabbi Michael Abraham] Let’s do the math. Look, it’s a little tricky, and I wrote at length about this. Suppose I have a positive commandment to eat matzah, and all I have is grain from the new crop, which is prohibited. Okay? To make the matzah. A positive commandment overrides a prohibition. If I have no other option, then I make matzah from the new crop and eat it—positive commandment overrides prohibition. But why did they conclude that a positive commandment overrides a prohibition? What is the dilemma? Let’s define it. One option is to make matzah from the new crop. The other option is not to make matzah at all and not violate the prohibition of the new crop. Let’s measure the price of each option, okay? If I make matzah from the new crop, then I gain the positive commandment of eating matzah and lose the prohibition of eating the new crop. Meaning I have an important commandment on the side of fulfillment and a severe offense on the side of negation. If they offset one another, I’m left with zero, let’s say, in the simple reading. Okay. What happens on the other side? Suppose I don’t eat matzah. Then I have neglect of a positive commandment, which is a light offense, and I have avoidance of the new crop, which is a light commandment—so again they offset each other and I’m left with zero. So why is it preferable to eat matzah from the new crop? This isn’t a comparison between positive commandment and prohibition. It’s a comparison between fulfilling a positive commandment and violating a prohibition, versus neglecting a positive commandment and avoiding a prohibition. But here I have a significant commandment on the fulfillment side and a severe offense on the negation side, which offset each other. And on the other side I have a minor commandment and a minor offense. A serious commandment and a serious offense; a minor commandment and a minor offense. Overall, why does the positive commandment override the prohibition? This doesn’t explain anything. This principle of Nachmanides explains everything except why a positive commandment overrides a prohibition. But Nachmanides says: and therefore a positive commandment overrides a prohibition. Why “therefore”? His explanation is not an explanation of that rule. What he says I understand: he explains why the reward is greater for a positive commandment than for refraining from violating a prohibition, and why the punishment is more severe for a prohibition, and why spending one’s money is more severe regarding a prohibition, and all those things—I understand that, because this is the side of negation and this is the side of fulfillment. But “a positive commandment overrides a prohibition” is a consideration that mixes fulfillment and negation against fulfillment and negation together. It’s not fulfillment against fulfillment or negation against negation. Right? When you compare the two options, yes, I have serious fulfillment versus light fulfillment, but I also have serious negation versus light negation. So in practice you won’t arrive at the conclusion that the positive commandment overcomes the prohibition through that calculation. So why does this principle of Nachmanides serve for him as an explanation of the rule that a positive commandment overrides a prohibition? It seems to me the answer is—and I did some mathematics with this, and afterward I realized you don’t need all that and it’s simple. Look: non-failure regarding a prohibition is not a light commandment. It isn’t a commandment at all. If you didn’t fail regarding a prohibition, that’s not a commandment. Not failing regarding a prohibition is zero. Meaning, you simply don’t have something negative. Neglect of a positive commandment is indeed an offense, only a light one. Neglect of a positive commandment is an offense—not a prohibition, but still an offense. So now if we do the calculation, you’ll see it does work out. Because if I eat the matzah from the new crop, then I have a serious, elevated, important commandment and a serious offense. Let’s say net zero, right? Zero net benefit. But if I don’t eat the matzah, then I have the offense of neglecting a positive commandment—that’s a small minus—and I didn’t violate the prohibition, which is just plain zero. So in practice I’m at a small minus. Therefore it’s better that the positive commandment override the prohibition. That’s why a positive commandment overrides a prohibition. Okay? You need to remember that refraining from violating a prohibition is not a light commandment; it isn’t a commandment at all. Parenthetically, according to that grandfather from Bnei Brak, and according to the Ari, this might pose a difficulty for this Nachmanides—but I already said these are puzzling things. Refraining from violating a prohibition is not a commandment at all. Not that it’s a light commandment—but neglecting a positive commandment is indeed an offense. A light offense, but still an offense.

[Speaker B] A positive commandment is active and a prohibition is passive.

[Rabbi Michael Abraham] Yes, you’re joining us—we’ve already been talking about this for several classes. That’s exactly our topic: that this is active and that is passive, so we defined active and passive in a somewhat broader way. Okay, so that’s Nachmanides. Now let’s see a few other places.

[Speaker D] Maybe the basis is that a commandment cannot come through a forbidden act. Seemingly that’s a positive commandment and a prohibition—building a sukkah—why wouldn’t that be a commandment?

[Rabbi Michael Abraham] Seemingly, if it were just offsetting, then it would be zero. So do it or don’t do it—what difference does it make?

[Speaker D] The answer is, as I understand it, there are positive commandments and prohibitions vis-à-vis the Holy One, blessed be He, and there are positive commandments and prohibitions vis-à-vis other human beings. Meaning, when the prohibition is vis-à-vis another person—don’t rob a person, don’t rob a person—and that is the law of the Holy One, blessed be He, then we say this is “a commandment that comes through a transgression.”

[Rabbi Michael Abraham] There are views among the medieval authorities (Rishonim) like that, but not everyone agrees that “a commandment that comes through a transgression” applies only to interpersonal transgressions.

[Speaker D] Because then it has logic.

[Rabbi Michael Abraham] For example, “a commandment that comes through a transgression” applies where a positive commandment overrides a prohibition but not at the very same time—they’re not happening simultaneously, okay? Then it will be “a commandment that comes through a transgression” even if it isn’t an interpersonal transgression, even if it isn’t robbery. אני ה’ שונא גזל בעולה (“I the Lord hate robbery in a burnt offering”) is the source, so some really do want to argue that it’s only robbery. That’s already a difficulty raised by the medieval authorities, Rabbeinu David in Pesachim and others, who ask: how does a positive commandment overriding a prohibition fit with a commandment that comes through a transgression? Those are two contradictory rules. So there are various approaches. One approach is indeed that “a commandment that comes through a transgression” applies only to robbery, or to interpersonal transgressions, but there are other approaches too.

[Speaker G] Why isn’t “the sacrifice of the wicked is an abomination” relevant?

[Rabbi Michael Abraham] “The sacrifice of the wicked is an abomination” is not a commandment that comes through a transgression. “The sacrifice of the wicked is an abomination” refers to a wicked person bringing a sin offering. He’s wicked not because of the sin offering he’s bringing now; he’s wicked because he is wicked and isn’t repenting now. And if he isn’t repenting, then the sacrifice is worth nothing—not because there is some transgression in bringing the offering.

[Speaker G] But isn’t the picture a bit—aren’t we making this all too surgical, in terms of these calculations? In the end, the Torah has positive commandments that law doesn’t. The Torah educates; the Torah has a direction; it wants you to arrive somewhere. On the one hand it doesn’t want you in negative states, and on the other hand it encourages you to create positive states, because in the end it very much cares that you become a good person. And if we want to educate you and all that, then this calculation is like in the laws of repentance, and like “a transgression for its own sake is greater than a commandment not for its own sake.” Because what they’re trying overall to produce is a general picture, where the accounting isn’t really just small-minus versus big-minus calculations. Even though I find this very persuasive, it seems to me that when we make the calculations it disconnects things a bit from the overall picture.

[Rabbi Michael Abraham] A positive commandment overrides a prohibition—I didn’t understand.

[Speaker G] No, I accept the calculation—

[Rabbi Michael Abraham] When it comes to the calculation, the halakhic decisions—

[Speaker G] Yes. How would we explain “a transgression for its own sake is greater”? What does “a transgression for its own sake” mean?

[Rabbi Michael Abraham] That really isn’t a calculation.

[Speaker G] It certainly is a calculation. The Rabbi even made it—with Lot’s daughters.

[Rabbi Michael Abraham] So they thought it was a halakhic calculation.

[Speaker G] A halakhic calculation in which there are calculations and human benefit, because the Torah also accepts human benefit.

[Rabbi Michael Abraham] Fine, but here this is a halakhic calculation, not a human calculation. At least I don’t see what the human explanation here would be.

[Speaker G] Because in the end what matters to us is also that even if you made all kinds of mistakes and sinned and repented and all that—

[Rabbi Michael Abraham] No. A positive commandment overriding a prohibition—that’s a commandment that comes through a transgression. Why do that? Then don’t do it. No need. אני ה’ שונא גזל בעולה (“I the Lord hate robbery in a burnt offering”).

[Speaker G] No, but because if in the end it will bring you to the place the Torah wants you to reach—

[Rabbi Michael Abraham] Who says it will bring me there? It won’t bring me there. It will bring me to a negative place the Torah doesn’t want—I’ll be eating new grain.

[Speaker G] Yes, you’re eating new grain, but in the end this educational framework you brought is like studying Torah not for its own sake, where from not for its own sake one comes to for its own sake.

[Rabbi Michael Abraham] No, that’s exactly the difference. Earlier too—that’s the same mistake. No. Because studying Torah not for its own sake is not a commandment that comes through a transgression. There is no transgression there; the commandment is just not perfect. It’s like “the sacrifice of the wicked is an abomination.” There too, I bring a sacrifice—there’s no transgression involved—but the sacrifice isn’t genuine; it isn’t whole.

[Speaker G] אני ה’ שונא גזל בעולה, yes—that’s a commandment that comes through a transgression.

[Rabbi Michael Abraham] That’s when you commit a transgression in the course of performing a commandment, not when the commandment itself is incomplete. You understand? You can’t mix up those two things. I’m talking about the situation where—so what do you gain? You gain a commandment, but you also incurred a transgression along with it. For what? There I’m saying: you performed a commandment that isn’t worth very much, fine. Maybe it’s worth doing it partially; he’ll tell you no, we don’t want you to do that. Or maybe yes? From doing it not for its own sake, one may come to do it for its own sake. Those are already tactical considerations.

[Speaker G] But this whole calculation that a transgression extinguishes a commandment, and all this reckoning, is…

[Rabbi Michael Abraham] A transgression extinguishes a commandment—yes, those are the kinds of calculations, yes. Okay, so now I want to go into some of the passages I photographed. Let’s start אולי with the Maharal. Wait—no, maybe let’s start with Maimonides below, at the bottom of the first page, in his commentary on the Mishnah in Avot. After that he says: “And although the degree to which one commandment is to be cherished over another was not explained, there is there a difficult method. And it is this: every positive commandment for which you find that violating it carries a great liability, know that fulfilling it likewise carries great reward.” At first glance that sounds like Nachmanides, no? Every positive commandment for which you find that violating it carries a great liability, know that fulfilling it likewise carries great reward. But it’s not like Nachmanides, because he’s talking about that very commandment. Is there a commandment whose reward is great? So according to Nachmanides, the opposite: then the punishment for not fulfilling it is small, right? A commandment whose reward is great—as with positive commandments—the punishment for not fulfilling it is small. As for prohibitions, fulfilling them is not a commandment at all, as I said earlier, so the punishment for violating them can be great, and vice versa. So it seems this is not like Nachmanides. But notice the examples. For example, he brings examples: circumcision, the Passover offering, resting in the seventh year and on the Sabbath, and making a parapet—all these are positive commandments. But one who does labor on the Sabbath is liable to stoning; one who neglects circumcision or the offering at its proper time is liable to karet; and one who places bloodguilt in his house is in violation of a prohibition, as it says, “Do not place blood in your house.” From this you know that the reward for resting on the Sabbath is very great, greater than the reward for circumcision, and that the reward for circumcision is greater before God than the reward for making a parapet, because there is karet for one who does not perform circumcision. And this is the meaning of the saying: “Calculate the loss of a commandment against its reward.” He further said that you can also learn the reward for refraining from a transgression, since this too was not explained, and you can learn it from its punishment. For a sin whose punishment for the one who commits it is severe—the reward for refraining from it will be proportionately great, as explained in Kiddushin where they say: “Whoever sits and does not commit a transgression is given reward as one who performs a commandment,” and we already explained it there. So apparently this is the opposite of what Nachmanides says, because he claims that the side of fulfillment mirrors the side of neglect. Meaning, if the fulfillment is important, then neglect is severe. And Nachmanides says the opposite: if the fulfillment is important, then neglect is not so terrible. If neglect is severe, then fulfillment is not such a big deal, or not especially important. Okay?

[Speaker D] Apparently Maimonides doesn’t recognize the zero that you… yes. I don’t know whether he doesn’t recognize—

[Rabbi Michael Abraham] The zero. More than just not recognizing the zero—his logic is actually the opposite of Nachmanides’ logic. Meaning, it really isn’t clear. Why, if someone who does labor on the Sabbath is severely punished, does it follow that someone who keeps the Sabbath receives great reward? On the contrary. If doing labor on the Sabbath is severely punished, that means it’s very serious—so not doing it is a basic requirement. Why should that yield me great reward? Does someone who doesn’t murder receive great reward? Someone who murders is punished severely. Not murdering is a basic requirement. Right? What’s the logic here? Now notice that in the examples here there’s a bit of mixing. I don’t have a good answer for this Maimonides. In the examples there’s some mixing, because with the Sabbath there really is both a positive commandment and a prohibition. We talked about this. On the Sabbath there is a positive commandment to rest, and a prohibition against doing labor. Now, the positive commandment to rest—if I only had the prohibition against doing labor, then what reward would there be for someone who rests? Suppose there were only the prohibition: zero. There’s no commandment. I simply didn’t fail by committing a transgression, right? If I had committed a transgression I’d be punished; if I didn’t commit it, nothing happens. Why is there great reward for one who rests on the Sabbath? Because there is a positive commandment—not because of the prohibition. So what’s the connection? It’s not because transgressing is severe that fulfilling it is therefore important. Quite the opposite. As for the transgression itself, taken on its own, it doesn’t matter at all how severe it is. Why is resting on the Sabbath important? Because there is a positive commandment to rest, not because you refrained from the prohibition. So if I took that example, I’d say that Maimonides really means to compare only a prohibition and a positive commandment within the same category—only doubled prohibition-and-positive-commandment cases, like in the sixth principle with which we began.

[Speaker C] As if otherwise the positive commandment would be superfluous. Right.

[Rabbi Michael Abraham] So therefore Maimonides says: in a place where there is a positive commandment and a prohibition that say the same thing, then you should understand that it’s very important. Okay? That the positive commandment is very significant—its importance matches the fact that the prohibition is very severe. But Nachmanides is not talking about such a case. Nachmanides is talking about the two sides of the prohibition itself: violating it is severe, and therefore refraining from it is not all that significant. And with a positive commandment, since fulfilling it is very significant, violating it is not all that significant, not all that severe. That’s when you’re talking about the same commandment itself, the side of fulfillment versus the side of neglect. Here Maimonides is talking about a positive commandment and a prohibition, not the same commandment itself—only a positive commandment and a prohibition that have the same content. A positive commandment to rest, and a prohibition not to do labor. Here Maimonides says that this teaches you that.

[Speaker M] But that’s the Sabbath. Exactly. And in circumcision there isn’t.

[Rabbi Michael Abraham] In circumcision there isn’t, right. That’s why I’m saying there are several examples here pointing in different directions. With a parapet too there is: “Make a parapet for your roof” and “Do not place blood in your house”—that too is two sides of the same commandment. But circumcision isn’t. And in circumcision he says that since failure to circumcise—true, circumcision is still exceptional, because circumcision is one of the two positive commandments for which someone who fails to perform them incurs karet. There is no punishment for neglecting a positive commandment, except for circumcision and Passover. Circumcision and Passover are the two positive commandments such that one who does not perform them is liable to karet. So that means that failing to circumcise really is some kind of transgression, and not just neglect of a positive commandment. There is karet for it, and therefore perhaps Maimonides also sees here something like the Sabbath, where there is both a positive commandment and a prohibition, though it’s still a bit hard to understand.

[Speaker G] But how does circumcision override the Sabbath? He says that resting on the Sabbath is very great and greater than the reward of circumcision. “From this you know that the reward for resting on the Sabbath is very great, greater than the reward for circumcision.”

[Rabbi Michael Abraham] Because in circumcision it’s karet, and on the Sabbath it’s stoning.

[Speaker G] Stoning. So then how is it that in Jewish law circumcision on the Sabbath overrides it?

[Rabbi Michael Abraham] Because of a verse. A verse. By the general rules it should not have overridden it.

[Speaker G] Maybe because there’s a verse?

[Rabbi Michael Abraham] That’s exactly why there is a verse—not maybe, that’s why there is a verse. By the general rules it should not have. The Talmud itself asks why a verse is needed. What does it say? On the Sabbath too it’s both a positive commandment and a prohibition together, and that is not overridden even by what is truly a positive commandment; and even the positive commandment alone—this is a positive commandment in a context of stoning, the prohibition is a prohibition in a context of stoning—so it would not be overridden even without the accompanying positive commandment of the Sabbath. A positive commandment does not override a prohibition of—

[Speaker G] The Sabbath, even if there were no positive commandment. And the positive commandment is there too, on the Sabbath.

[Rabbi Michael Abraham] If taking the lulav were to override desecration of the Sabbath, then in principle it would have to be because a positive commandment overrides a prohibition. But that doesn’t happen. Why doesn’t it happen? First, because on the Sabbath there is both a positive commandment and a prohibition, not just a prohibition.

[Speaker G] So how is it so in the Temple?

[Rabbi Michael Abraham] In the Temple, again, that’s a law unto itself, not because a positive commandment overrides a prohibition. Same thing. It’s not because a positive commandment overrides a prohibition. From the standpoint of that rule, the Sabbath is not overridden. On the Sabbath there is both a positive commandment and a prohibition, and also because the prohibition carries stoning.

[Speaker G] So why do they sound the shofar on the Sabbath?

[Rabbi Michael Abraham] There is such a law, and they derive it. There is such a law that in the Temple they sound it. But that’s only in the Temple.

[Speaker G] The commandment also applies in the province? Wherever there is a religious court?

[Rabbi Michael Abraham] Wherever there is a religious court. That’s a special rule; they don’t sound it everywhere. Either wherever there is a religious court or in the Temple—which may be two separate rules, or it may be the same rule, because the Temple too is like a place that has a religious court. Okay, in any case, I’m saying that in Maimonides himself it’s not entirely clear to me. The logic—apparently Maimonides is right logically. In some of the examples I can explain that he really is talking about a positive commandment and a prohibition, and not about the two sides of a positive commandment or the two sides of a prohibition. But then there is circumcision. So I’m saying: with circumcision too, since neglecting the positive commandment incurs karet, perhaps he sees circumcision as some kind of case where neglect of the positive commandment is really a transgression and not just neglect of a positive commandment. It’s exceptional, okay, maybe—I don’t know.

[Speaker G] But Maimonides—I was convinced, because I’d read this Maimonides before—that he was trying to compare only within the category itself, because he wanted—I’m paraphrasing—to explain: “Calculate the loss of a commandment against its reward,” for “you do not know the reward assigned to the commandments.” But if you don’t know the reward assigned to the commandments, what calculation can you make? So then he showed that within the category itself—meaning, within the prohibitions—if one carries stoning and another carries something else, then he tells you: you see, this one is greater. Not that you know the accounting of the commandments, but only that from the punishment you can know that this one is more severe than that one.

[Rabbi Michael Abraham] No, but he says that from the punishment you can also know the fulfillment, the reward for fulfillment. Yes—but that’s what he says. He says that neglect teaches about fulfillment. Fine, so that I can understand. By the way, even that is not agreed upon.

[Speaker G] That’s what I thought—why did he explain it differently? Why did he explain—yes, that I accept, but I thought that was what he wanted to explain, because how can you make the calculation if you don’t know the reward?

[Rabbi Michael Abraham] Clearly that’s what he wants to explain, you’re absolutely right. But there are still two principles here. The internal calculation I can understand, but the relationship between fulfillment and neglect is problematic. By the way, even the internal calculation—since you mentioned it—I also wrote an article about this, one of the first articles I wrote: the question whether the severity of the punishment indicates the severity of the transgression.

[Speaker G] Oh—didn’t we say yes?

[Rabbi Michael Abraham] So no—not that we said yes.

[Speaker G] Because of the rectification, because the rectification is different; otherwise you could rectify everything with stoning.

[Rabbi Michael Abraham] Maimonides says yes. Maimonides says yes. That’s one of the proofs I brought, but Maimonides says yes. For example here, and in other places. But there is Rabbenu Yeruham Fishel Perla in his work on Saadia Gaon’s Book of the Commandments, and there he brings what he infers from Saadia Gaon’s wording—that Saadia Gaon also holds this way. Because he says that since a betrothed maiden is punishable by stoning, and the Sabbath is punishable by stoning, you can see how severe it is. There is—I don’t remember his exact wording. And there there is a whole discussion by Rabbenu Yeruham Fishel Perla on these commandments. Then he says that he brings Sefer Chasidim, which argues that there is no connection between the severity of the punishment and the severity of the transgression.

[Speaker E] Wait—he infers from Saadia Gaon’s wording that Saadia Gaon also holds that the severity indicates… okay.

[Rabbi Michael Abraham] So he brings that Sefer Chasidim argued not. The severity of the punishment does not indicate the severity of the transgression. By the way, there are places where you really do see this. For example, the Chafetz Chaim writes that malicious speech is the most severe transgression there is. He brings several rabbinic statements about this, and so on. There is no punishment for malicious speech in a religious court.

[Speaker E] There isn’t—meaning in a religious court. Karet, for example, isn’t a court-imposed punishment.

[Rabbi Michael Abraham] There is no karet for malicious speech either.

[Speaker G] So can you also bring state law in here? Here too it’s hard to bring in state law. What do you mean? Malicious speech—those are the popular lawsuits, no? So what? So if you bring in state law, then no problem: “Do not murder.”

[Rabbi Michael Abraham] In any case, you’re saying there would be no compensation. In any case, there really are places where you see this. But fundamentally, the accepted approach among the medieval authorities is that yes, it does indicate severity. But it’s not unanimous. There is a Talmudic passage in Ketubot that I brought there showing that this may be a dispute among the medieval authorities. There: “Had they flogged Hananiah, Mishael, and Azariah, they would have worshiped the image.” Meaning, if they had kept beating them until they worshiped the idol, they would have yielded. They were willing to die, but to keep taking blows until you break—that you wouldn’t withstand. And from this the Talmud wants to infer that lashes are more severe than death. Then the Talmud says no, that’s because it’s ongoing lashes. The punishment of thirty-nine lashes is not—the ongoing flogging is something else. But then again you see that the severity—I don’t remember, there are Tosafot and Ritva there. There is a dispute between Tosafot and Ritva, one of them claiming that this is about the severity of the transgression, and that the harshness of the punishment is an indication of the severity of the transgression, while the other disconnects the two. So there in the Talmud in Ketubot, it seems to me, there is a dispute among the medieval authorities on this matter. So even the point in Maimonides that does make sense is still not agreed upon. It’s not agreed upon. Okay, so that’s Maimonides. In any case, let’s see whether we can still get to the Maharal. Maybe we’ll save these pages for next time as well and continue, because we still have a bit more to do with them. “And behold, when the blessed God wished to confer merit upon a person so that he might acquire eternity through the divine commandments, it is impossible for him to acquire it except by means of two kinds of commandments. The first part is that he not alter the reality in which he was created. For if he alters the reality in which he was created, then he has changed from what is fitting for human existence, and loss will come to his existence. And these are the prohibitions, for all these commandments are so that a person not depart from what is fitting to his existence.” You see? That’s exactly the definition I gave, right? That’s the zero state. Not to go below it. Exactly. The zero state is what is fitting to his existence. The prohibitions are not to go below the zero state, not to leave the state in which I currently am. That’s coercion, not temptation. Like forbidden sexual relations, robbery, theft, and the like among the commandments. “Although we do not know the reason for the commandments, nevertheless we know of them that all prohibitions are a departure from the straightness of existence that reason requires.” The straightness of existence—that’s the zero state. Those are exactly the words that define what I said. “And departure from the straightness of existence is loss and destruction for him.” Yes, you’re going into a negative state; it is loss and destruction for him. “The second part is the positive commandments, for we have already said that a person is not at his final divine level, and it is as though he exists only potentially, and he must acquire perfection in actuality through the divine commandments.” Meaning, your current state is not a perfect state. It’s a given state. That is what you have to preserve, so as not to deteriorate. But you are also required to advance and climb to a positive state, and that is the positive commandments. Here you really have the definition that it is not determined at all by the mode of performance—whether it is physically an act of doing or physically a passive omission. Rather, the question is whether it requires you to advance or requires you not to deteriorate. That is the definition of a positive commandment and a prohibition—that really is the definition. “As was explained above in the previous chapters: even if a person acquires this natural, material world, he has not acquired the World to Come, which is non-material, except through divine actions, and through them he will merit the separate world.” Fine. So that’s the Maharal; maybe we’ll continue this next time.

Deontic Logic and the Relationship Between Prohibitions and Positive Commandments – Lecture 4

Table of Contents

Summary

General Overview

The definition of positive commandments and prohibitions, and the abstract line of distinction

Practical symptoms: punishment, reward, human dignity, and financial expenditure

General law versus Jewish law: the absence of “positive commandments” in the conceptual sense

Aharon Barak and the claim that these are two systems with different logic

The laws of bailees and oaths: dependence on a religious infrastructure

Indirect causation, liability before Heaven, and the claim that importing Hebrew law is harmful

Critique of “Hebrew law” in the High Court and in responsa: universal reasoning versus Jewish law

Religious courts, compromise, and a letter of refusal: criticism of current judicial reality

Nozick: temptation versus extortion and the normative zero point

Nachmanides: love and fear, the greatness of the positive commandment and the severity of the prohibition

Sdei Chemed: the side of fulfillment versus the side of neglect, and explaining the contradictions

A positive commandment overrides a prohibition: the difficulty and the solution through “refraining is not a commandment”

A commandment fulfilled through a transgression, “I the Lord hate robbery in a burnt offering,” and “the sacrifice of the wicked is an abomination”

Maimonides on Avot: the reward of a commandment from the punishment for the transgression, and the difficulty against the zero-point model

The severity of punishment versus the severity of the transgression: dispute and notes from the Talmud and Sefer Hasidim

Maharal: a prohibition as preserving the straightness of reality, and a positive commandment as the actual perfection of the human being

Full Transcript

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Table of Contents

Summary

General Overview

The definition of positive commandments and prohibitions, and the abstract line of distinction

Practical symptoms: punishment, reward, human dignity, and financial expenditure

General law versus Jewish law: the absence of “positive commandments” in the conceptual sense

Aharon Barak and the claim that these are two systems with different logic

The laws of bailees and oaths: dependence on a religious infrastructure

Indirect causation, liability before Heaven, and the claim that importing Hebrew law is harmful

Critique of “Hebrew law” in the High Court and in responsa: universal reasoning versus Jewish law

Religious courts, compromise, and a letter of refusal: criticism of current judicial reality

Nozick: temptation versus extortion and the normative zero point

Nachmanides: love and fear, the greatness of the positive commandment and the severity of the prohibition

Sdei Chemed: the side of fulfillment versus the side of neglect, and explaining the contradictions

A positive commandment overrides a prohibition: the difficulty and the solution through “refraining is not a commandment”

A commandment fulfilled through a transgression, “I the Lord hate robbery in a burnt offering,” and “the sacrifice of the wicked is an abomination”

Maimonides on Avot: the reward of a commandment from the punishment for the transgression, and the difficulty against the zero-point model

The severity of punishment versus the severity of the transgression: dispute and notes from the Talmud and Sefer Hasidim

Maharal: a prohibition as preserving the straightness of reality, and a positive commandment as the actual perfection of the human being

Full Transcript

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