Lesson 15: Category 5 — The Twelfth Root
From the book Roots Outstretched by Rabbi Michael Avraham. Translated from Hebrew using gpt-5.4 (reasoning_effort=high, batch API).
The Twelfth Root
That it is not proper to count the component steps of a commanded procedure separately
Systematicity and essence in Sefer HaMitzvot
Our present essay deals with the Twelfth Root, which states that one must not count separately the component steps of a comprehensive commandment, such as the various details of sacrificial service. This root belongs to the fifth category of roots, those dealing with sorting and classification, and it largely parallels the Eleventh Root, which was discussed in the previous essay.
Like its predecessors, this root is fundamentally technical. There is no dispute that the component steps of the procedure are binding halakhic (legal) obligations; the only question under discussion is how they should be treated in the enumeration of the commandments. Even so, it appears that underlying the matter are principled conceptions of broader significance.
In our previous essay, we noted that the roots of sorting and classification deal with legal methodology and are, to some degree, parallel to methodological questions in the philosophy of science. The present root is different in character. As we shall see, it touches on methodological questions concerning Maimonides’ own system, and on the relation between his method and aims and those of his disputants.
Another point we shall address is the relation between this root and the previous one, since on the surface they appear almost identical. Some commentators even confuse the two roots and refer to one when they really mean the other.
Most commentators’ discussion of this root focuses on legal issues arising from the disputes between Maimonides and Nahmanides, especially regarding the commandments involving produce forbidden before separation, the building of the Temple, its function, and the like. We shall remain faithful to our purpose: to clarify the principle discussed in the root itself, while using the legal examples only to illuminate the principled and systematic points expressed in it.
This essay concludes our series on the roots, and indeed it gives us perspective on the path we have taken throughout these essays. Through it we shall try to summarize the general significance of the roots, although one central point in this topic will remain without a fully satisfactory answer.
A. Component Steps of a Procedure and Component Parts of a Commandment
Introduction
Maimonides’ remarks in this root are quite lengthy, and therefore we shall deal here only with the points essential to our discussion. After describing the course of his argument, we shall return to define the scope of discussion in this root, especially in comparison with the previous one.
The course of Maimonides’ argument in this root
Already from the title of the root it is clear that the basis of the discussion is the rule we treated in our essay on the Ninth Root, and then again on the Seventh and Eleventh Roots: a counted commandment requires both an independent command and a distinct content. If one of these two components is missing, the commandment is not counted separately. Maimonides therefore formulates the principle of this root by saying that one should not count component steps of a procedure even when each step is mentioned in a separate command. Without an independent command, there would never have been any thought of counting the steps as separate commandments.
What is this root about? Maimonides opens with a general definition:
It is known that at times we are commanded regarding a certain act, and afterward Scripture begins to explain the manner of that act, clarifying the term it mentioned and stating what it includes. It is therefore not proper to count every command that appears within that explanation as a separate commandment.
When the Torah details the different stages of some ongoing act, we do not count each stage as an independent commandment. The various stages are only an explanation of the general commandment and are therefore included within it.
The first example Maimonides gives is the commandment to build the Temple. He then turns at greater length to the procedure of offering sacrifices as another example of the principle of this root. After that he mentions halitzah, which is also a procedure composed of several stages—removing the shoe, spitting, and recitation—and there too those stages are not counted separately, despite the fact that the Torah commands each of them individually.
Later, Maimonides mentions the commandments concerning priestly gifts:
It is clear that the priest’s taking what he is to take is part of the commandment, as we explained regarding the hide of the burnt offering. So too with the first shearing: the commandment as a whole is that we set aside the first of the shearing and give it to the priest. Likewise, that we separate the first tithe and give it to the Levite. Some erred in this and counted the twenty-four priestly gifts as twenty-four commandments, after having already counted some of the commandments of which those gifts are only parts, as we explained regarding the hide of the burnt offering and the breast and thigh of the peace-offering.
Here he determines that the gifts are not counted as independent commandments, since they are included within other commandments. For example, giving the breast and thigh to the priest is part of the commandment of sacrificial service. Giving the first tithe to the Levite is part of the commandment of separating the first tithe, and so on. As noted, this subject drew most of the interest of Maimonides’ commentators, but mainly on the legal plane rather than with respect to the counting of the commandments. We shall therefore refer to it only briefly later on.
Why did Maimonides need this root at all?
Maimonides concludes his remarks by saying:
This will escape only one who takes matters at first glance and does not apply intellectual scrutiny to them, as the sages said (Babylonian Talmud, Shabbat 130b; Niddah 53b), “He said it in the rush of his flow”—that is, without effort, but merely from the first idea that arose in his thought. This root clarifies for us all the commandments concerning sacrifices and how they should be counted, so that no error or confusion at all should arise in it, as I shall explain when I enumerate them, with God’s help.
That is, the principle of this root is simple and clear, requiring no extensive justification or support. Anyone with understanding ought to grasp it. But if this principle is so simple, why did Maimonides find it necessary to formulate it at all?
As we explained in our introductory essay, Maimonides does not generally address roots that are obvious and self-evident unless he has found someone who disagrees with them. Indeed, here too he hints that someone erred in this matter, and he attributes the error to insufficient thought.
Within his remarks he says this explicitly:
Because this root escaped others entirely, and they did not notice it or grasp it, they came to count as separate commandments pourings, mixings, crumbings, saltings, presentations, wave-rituals, handful-takings, and burnings. They did not know that all these are parts of the procedure of the grain offering. For we were commanded to offer a grain offering, and afterward Scripture came to explain to what this term applies—this is the law of the grain offering—and said that it may be from fine flour or from bread prepared in this or that form, meaning on a griddle, in a deep pan, or baked in an oven; and that it is to be mixed with oil in such-and-such measure, broken into pieces, have salt and frankincense placed upon it, be brought forward, waved, have a handful taken from it, and be burned in the manner explained and set out in Tractate Menahot. All these are parts of a procedure, and the term “grain offering” applies only to that which is made in this complete form.
So Bahag erred here as well, since he counted all the steps of the grain offering as independent commandments and did not understand that they are parts of one procedure. We shall return to this below.
The building of the Temple
As noted, the first example Maimonides gives is the commandment to build the Temple:
As in His saying, “Let them make Me a sanctuary” (Exodus 25:8): this is one positive commandment among the commandments, namely that we have a house prepared to which people may come and celebrate festivals, in which sacrifices will be offered, and in which the people will gather on the appointed times. Afterward Scripture describes its parts and how they are to be made. It is not proper to count everything about which it says, “And you shall make,” as a separate commandment. The same is true of the sacrifices mentioned in Leviticus. For the one commandment is the total procedure described for each type among the various sacrifices.
Maimonides determines that building the Temple is a general commandment that includes various stages and parts, each introduced by “and you shall make…,” yet none of those stages should be counted as an independent commandment. He then goes on to describe in greater detail the examples of sacrifices, explaining that the burnt offering includes slaughtering, flaying, cutting into pieces, dashing the blood, and so on. The Temple itself is not discussed here in detail, but we shall begin specifically with this example.
What are the stages in building the Temple that Maimonides means here? The matter appears in greater detail in Positive Commandment 20, where he writes:
The twentieth commandment is that we were commanded to build a house of service, in which sacrifice will be offered and the fire kept burning continually, and to which there will be going, pilgrimage, and annual gathering, as will be explained. This is His statement, “Let them make Me a sanctuary.” And the language of the Sifrei is: “Israel were commanded with three commandments upon entering the land: to appoint a king for themselves, to build the Chosen House for themselves, and to destroy the seed of Amalek.” It is thus clear that building the Chosen House is a commandment in itself.
So far, Maimonides defines the Temple as a “house of service,” intended for the offering of sacrifices and for pilgrimage and appearance. He states that there is a commandment to build a sanctuary and cites the sources for this.
He then continues with the point relevant to our root:
We have already explained at the beginning of Root Twelve that this general rule includes parts, and that the menorah, the table, the altar, and the like are all parts of the sanctuary, and the whole is called “sanctuary,” even though the commandment was specified with respect to each and every part…
The laws of this commandment in its entirety—that is, the building of the Temple and its form, and the building of the altar and its laws—are explained in the tractate attached to this matter, namely Mishnah, Middot. The form of the menorah, the table, the golden altar, and their place in the Sanctuary are explained at the end of Babylonian Talmud, Menahot, and in Yoma 33b.
Here the details of those parts appear, and it becomes clear that he means the Temple vessels: the Ark, the menorah, the table, and the altar. That is, making the vessels is not counted as an independent commandment, even though each has a distinct command. In the midst of his discussion he notes that the altar is exceptional, and that the commandment to build it is independent; this is not our concern here.
Now we find that Nahmanides, in his glosses to Positive Commandment 33, which concerns the commandment to wear priestly garments during the service, disagrees with these remarks of Maimonides. First, he argues that the commandment to wear priestly garments should not be counted, since it is part of the commandment of the service itself. In the course of his remarks there he writes the following with respect to our issue:
But all of them are parts of the service commanded by the Blessed One on the relevant days, and it has already been explained in Root Twelve that one does not count the parts of commandments. Therefore we do not count the making of the table, the menorah, and the altar as a commandment, because we were commanded to place bread before the Lord continually, and He commanded us, in preparing that service, that it be placed on a table of such-and-such form and arranged upon it in such-and-such manner; and He commanded us concerning the lighting of the lamp before Him, and arranged for us that this lighting be upon a golden menorah of such-and-such weight and character. These are sacred appurtenances.
Nahmanides links his claim about priestly garments to the Twelfth Root, because he views wearing the garments as one stage in the sacrificial procedure. He then addresses the Temple vessels and writes that, in his opinion, Maimonides was correct not to count them separately, but for a different reason. According to Nahmanides, they should not be counted because they are included in the commandment of the service, not because they are part of building the Temple. For example, making the table is only one detail in the commandment of the showbread service, which requires the bread to be placed on the table. The menorah is one detail of the commandment of kindling, and so forth.
He then says that Maimonides’ reason is different—since Maimonides includes making the vessels in the commandment of building the Temple rather than in the commandments of service—and explains why he rejects it:
The reason written by the Rabbi did not seem correct to me, namely that they are parts of the sanctuary. For the vessels are not part of the house; rather, these are two commandments, and they do not prevent one another, and sacrifice may be offered in the House even if these vessels are not there.
Nahmanides argues that the Temple service can be performed even without the Temple building, and therefore it is incorrect to see the vessels as part of the sanctuary. Below we shall see that what lies here is a different conception of the Temple and its role.
He concludes that passage with a practical implication for the commandment of making the Ark:
Therefore, in my opinion, the making of the Ark and the cover, in order to place the testimony there, should be counted as an independent commandment.
That is, the Ark is not a vessel used for some act of service. Therefore, although according to Maimonides it is not counted—because it too is included in the commandment of building the Temple—according to Nahmanides it should be counted separately, since it is not included in any commandment of service.
The meaning of the dispute about the Temple and its vessels
It has already been pointed out—for example in Badei Ha-Aron by Rabbi Ra’am HaKohen, at great length, and also in our essay on Parashat Terumah—that underlying this dispute is a different conception of the Temple and its meaning. As we mentioned, Maimonides sees the Temple as a “house of service.” On his view, we build the Temple as a functional house that serves us in the service of God. If so, it is obvious that constructing this whole complex, including the instruments of service, is one unit and one commandment. Even the Ark is part of the structure, like the walls and partitions and the like, required so that we can serve within it.
Nahmanides, by contrast, sees the Temple as a house whose purpose is the indwelling of the Divine Presence. The service can be performed even without the house; its purpose is to make the Divine Presence dwell in Israel. True, when the house exists there is a law that the service be performed there, but that is not its primary purpose. On the contrary, the service serves the goal of the indwelling of the Divine Presence. According to Maimonides, the indwelling of the Divine Presence is not the purpose—at least not on the halakhic plane—and the service is the Temple’s primary purpose.
According to Nahmanides, it is therefore clear that there is no room to see the vessels as part of the Temple’s structure. The structure is intended for the Divine Presence, and the vessels serve the service. Therefore they are not included in the commandment to build the Temple, and in principle they should have been counted separately. In fact, most of them—apart from the Ark—are included in the commandments of service.
According to Maimonides, by contrast, the vessels are part of the functional complex intended for service, and therefore they are part of the building itself. This whole complex is the framework within which the service takes place. In principle it would still have been possible to include the making of the vessels within the commandments of service, but Maimonides argues that there is a commandment to establish this framework as a whole, and within that commandment he includes the making of the vessels as part of it.
We shall return to this example shortly and use it to clarify the scope of the present root.
The relation between this root and the Eleventh Root
A basic question raised by the present root is why it is needed at all. Seemingly it is completely identical to the Eleventh Root, which states that one does not count the parts of a commandment separately, such as the four species. Why should the parts of the Temple, or the stages of sacrificial service, or the stages of halitzah differ from the component parts of the commandment of the four species? If in the Eleventh Root Maimonides determined that parts forming a single whole are not counted separately, the same should apply here.
From Maimonides’ own phrasing in the two roots, it appears that the difference turns on whether these are “parts of a commandment” or “parts of a procedure.” That is, the four species are parts of a commandment, since they are four objects that together constitute the object of the commandment. By contrast, the stages of sacrificial service are not different objects but different parts—or stages—of an action.
Yet here a difficulty arises from the example of the Temple vessels. The vessels are different objects, and therefore this commandment would seem more similar to the four species than to the stages of sacrificial service. If so, why are the Temple vessels discussed under this root rather than the previous one?
It seems that we must deepen the distinction between the roots by one level and offer a different interpretation of the distinction between “parts of a commandment” and “parts of a procedure.” The joining of the four species into one comprehensive commandment takes place on the normative plane. There are here four different elements that, even after the command, retain an independent standing, even though they are mutually indispensable; see the previous essay. They are not one action or one object. Rather, the Torah joins all four into one commandment. The joining is accomplished by the command itself. Therefore these are “parts of a commandment” and not “parts of a procedure.”
By contrast, building the Temple is the creation of one whole—the building as a whole—and it is not the command that creates that whole. No one would ever think to isolate the placing of each stone in the building and see it as an independent act. Even without the command, it is obvious that all the building actions are joined into one comprehensive act or procedure. The parts of the building are joined to one another into one whole by reality itself, apart from the command. Therefore these are not “parts of a commandment” but “parts of a procedure.” Of course, the Torah also relates to this whole as one commandment, but the joining occurs before the command joins the parts, and therefore it is a factual joining and not merely a normative one. The explanation regarding sacrifice and halitzah will be discussed shortly.
The conclusion is that building the Temple is a complex act of building a structure, and the joining of its parts results from the fact that they are parts of one building, not from the command. As stated, no one would think to treat the placement of each stone as an independent deed; therefore Maimonides says that even the vessels that serve the function of that structure are part of it. Like every stone in the wall, the table and the menorah are parts of the structure, in light of his conception of the Temple and its role.
A useful parallel here is the well-known explanation given by later authorities of Maimonides’ view of the prohibited labor of building on Shabbat. Maimonides writes that making cheese on Shabbat is biblically forbidden under the category of building. From this and several other sources, the author of Even Ha-Ezel, on the laws of Shabbat, chapter 10, law 12—and see also his essay in Knesset Yisrael, as well as Kehillot Yaakov, Shabbat 37—concludes that for Maimonides the essence of the labor of building is the assembling of parts and the creation of an overall structure from them. That is the nature of building labor, and essentially the nature of a building itself. A building is an assemblage of parts into a functional whole.
So too here: once the commandment is the erection of a structure, there is no room to treat each part of the structure as a part-commandment. It is a part of the structure and is joined to the whole by virtue of the fact that this is a structure. The command does not join them; reality itself does. A structure, by definition, is the collection of all its parts.
According to Nahmanides, the vessels are not part of the structure, because in his view the structure is not a “house of service.” Therefore there is no room to see making them as part of the commandment to build the Temple. On his view, making each vessel is a commandment that stands on its own, because neither the command nor reality joins them into one commandment. Rather, the commandment to make it is swallowed up in the commandment of the service performed with it.
Put differently: according to Nahmanides, making the vessels is absorbed into the commandments of service, and at first glance it belongs more to Root Eleven than to Root Twelve. The making of the vessels is joined to the service because of the command, not because of reality. However, see below in the discussion of sacrifice and halitzah, where this will need qualification.
Why do sacrificial service and halitzah belong to this root?
We must now discuss sacrifice and halitzah. At first glance, there we have a series of actions joined to one another only by the command, not by any independent reality. If so, these examples should belong under the Eleventh Root rather than under our root.
Perhaps the explanation is that in sacrificial service the stages depend on one another. Only after slaughter is there blood that can be received. So the receiving depends on the slaughter. Only after receiving is there something to carry, so the carrying depends on the receiving. The dashing is done from the blood that is carried, and therefore it too depends on all the earlier actions. Thus the stages of the sacrificial procedure are not joined only by force of the command. One cannot do one without first doing what precedes it. The conclusion is that reality joins them, not only the command. Hence their mode of enumeration belongs under this root and not under the Eleventh.
For comparison only: the stages of purification of the leper are discussed under Root Eleven. At first glance it is not clear why they too should not be “parts of a procedure” rather than “parts of a commandment.” According to our approach, however, the explanation is that there the stages do not factually depend on one another. Only the command joins them, and therefore they are discussed under Root Eleven.
This yields a very interesting conception of sacrificial service. The implication is that the essence of the offering is the dashing of the blood—or the taking of the handful in grain offerings. All the other actions are merely preparations so that there will be something to dash.
The same may be said of the stages of halitzah—removal of the shoe, spitting, and recitation. The removal is performed for the sake of the spitting, and the recitation is said with reference to the act of removal. So there too reality joins the parts, not only the command. Hence we have there a joining of “parts of a procedure,” not merely of “parts of a commandment.”
We can now also understand that the absorption of the commandment of making the vessels into the commandments of service, according to Nahmanides, does not belong to Root Eleven, as we suggested above, but to this root. The reason is that without the vessels the service cannot be performed. One cannot light the menorah if there is no menorah.
Let us also note that Nahmanides, in his glosses to Positive Commandment 33, begins the passage we quoted above with an attack on counting the commandment to wear garments during the sacrificial service. In that connection he cites Maimonides’ words from Root Twelve, not from Root Eleven:
But all of them are parts of the service commanded by the Blessed One on the relevant days, and it has already been explained in Root Twelve that one does not count the parts of commandments.
According to our analysis, however, the root relevant to that context is specifically Root Eleven, since with priestly garments there is certainly no joining by reality but only by the command—that the Torah commands the priests not to serve except in special garments. As we already noted above, commentators often blur these two roots because of the vague relation between their respective scopes.
Qualifications: component steps of a procedure that are nevertheless counted separately
In the course of his discussion, Maimonides states that there are exceptions to the principle of this root:
This arrangement of procedures is itself a commandment, and it is not proper to count each and every part of the procedure as a commandment, unless the names of those commandments encompass all the types of sacrifices and are not limited to one type among them. In that case each of those commands should be counted as its own commandment, since it is then not part of the procedure of one sacrifice among the sacrifices. Such is His warning not to offer an animal with a blemish, or His command that it be whole, or His command that it not be lacking the requisite age, as He said, “From the eighth day onward” (Leviticus 22:27), and His command to salt every offering, as He said, “With all your offerings you shall offer salt” (Leviticus 2:13), and His warning not to omit it, as He said, “You shall not let the salt… cease,” and His command to eat what is to be eaten of them. Each of these commandments is an independent commandment, for none of them is part of the commandment that constitutes the procedure of a particular sacrifice. Rather, they are commands that encompass every sacrifice, as we shall explain when we enumerate them.
So there are commandments that also appear to be part of the sacrificial procedure, and yet are counted as independent commandments: not to offer a blemished animal, not to offer one that is too young, to salt the sacrifice, and to eat the meat. Maimonides explains that the reason is that these commandments apply to all sacrifices, unlike the procedural steps that are not counted, which apply only to a specific sacrifice.
This explanation is problematic, because slaughtering, receiving the blood, carrying it, and dashing it are also actions performed in all animal sacrifices. Why, then, do we not count them as independent commandments, but instead treat them as parts of the sacrificial procedure? We shall return to this below.
B. The Approaches of Nahmanides, Bahag, and Rasag
Introduction
In this chapter we shall examine Nahmanides’ glosses. Through them we shall learn about the position of Bahag and Nahmanides’ own position. We shall then present the view of Rasag as well, and attempt to lay out a broad picture of these early authorities’ methods, one that also fits other contexts beyond the commandments discussed in the present root. We should note at the outset that none of these early authorities disputes Maimonides in principle on this root: all agree that one should not count component parts of a commandment. The disputes concern only the question of what exactly counts as a component part, and therefore, regarding specific commandments, they differed as to how they should be counted.
Nahmanides’ criticism of Maimonides’ counting of sacrificial commandments
Nahmanides begins his glosses with the question of how the commandments of sacrifice are counted:
When I examine them, the Rabbi’s words do not sit well with me. For how can the acts involved in the laws of sacrifices be counted after we have already counted the commandment to offer them? We were commanded that for certain sins one must offer a sin-offering, for others a guilt-offering, for others a burnt offering, and in some cases also a grain offering; and the command to offer them is counted as four positive commandments. In any case, Scripture must teach us the procedure for each of them, as in the verse, “If any individual shall sin unintentionally… he shall bring as his offering a female goat,” and there the whole procedure of the sin-offering is completed. If so, how can we count the obligation to offer them and their procedure as two separate things…?
Here Nahmanides argues against Maimonides that he too suffers from overcounting. He counts the obligation to bring a sin-offering or a guilt-offering—see Positive Commandments 68-78—and then separately counts the procedure for offering each type of sacrifice—see Positive Commandments 63-67.
For example, Positive Commandment 69 is the commandment to bring a sin-offering for sins that require it:
The sixty-ninth commandment is that every person who unintentionally committed one of the major known sins shall offer a sin-offering, as it says, “If any individual from the common people sins unintentionally” (Leviticus 4). This is the fixed sin-offering, meaning that it is always an animal sin-offering. We have already explained that the sins for which one is liable to this sin-offering are those for whose intentional commission one incurs karet, provided they are negative commandments and involve an act, as explained at the beginning of Keritot. The laws of this commandment are explained in Tractate Horayot, Keritot, and in places in Shabbat, Shevuot, and Zevahim.
In Root Fourteen, Maimonides explains that one does not count each sin for which a sin-offering is brought separately; there is only one comprehensive commandment to bring a sin-offering when one has incurred it. The details concerning which sins incur it and which do not do not split this obligation into separate commandments.
In Positive Commandment 64 he counts the procedure for offering the sin-offering:
The sixty-fourth commandment is that the procedure of the sin-offering be as stated, whatever sin-offering it may be. This is His statement, “This is the law of the sin-offering” (Leviticus 6). It is also explained there in Leviticus 4 how it is slaughtered, what part of it is burned, and what part of it is eaten.
Here too the same principle surely applies: one does not count the sacrificial procedure separately for every sin that requires a sin-offering, just as we saw in Root Fourteen.
Nahmanides therefore wonders why, according to Maimonides, there is a need for this double division. Seemingly the sacrificial procedure is only a specification of the obligation to bring a sin-offering. It merely explains what that obligation means and how it is fulfilled.
Nahmanides himself, later in his remarks, suggests one possible explanation of Maimonides’ view:
Perhaps you might think that the commandment concerning those obligated to bring the sacrifice consists of four commandments, corresponding to the number of the types, but that their procedures are distinct commandments with which the priests were commanded: a commandment upon them to perform the service of the sin-offering in one manner, and the service of the burnt offering in a manner different from the first. What led you to this is that Scripture assigned them separate sections: “This is the law of the burnt offering,” “This is the law of the grain offering,” “This is the law of the sin-offering,” and “This is the law of the guilt-offering,” and said concerning them, “Command Aaron and his sons,” and “Speak to Aaron and his sons.”
He suggests that perhaps the obligation to bring the sacrifice rests on the owner, but the obligation actually to offer it rests on the priests. That would explain why Maimonides splits these commandments in two. Later, Nahmanides rejects this, and we need not pursue that here.
The position of Bahag and Nahmanides himself regarding sacrifices
The position of Bahag in this matter is problematic, as Maimonides already noted, because Bahag counts all the stages of sacrificial service as independent commandments. Nahmanides writes:
The view of the author of Halakhot Gedolot is that the commandment upon the sinner to bring a particular sacrifice for his sin is not counted, just as he does not count all punishments of death and lashes. Rather, the commandment upon the priests—”Aaron’s sons shall offer… and dash the blood,” and so on—he does count. Therefore he listed pourings, mixings, crumbings, saltings, presentations, and wave-rituals. This follows the line of what they said (Babylonian Talmud, Menahot 18b): “From where do we include the fifteen services—pourings, mixings, etc.? Scripture says, ‘He who offers the blood of the peace-offerings, from Aaron’s sons’—a service entrusted to Aaron’s sons; any priest who does not acknowledge it has no share in the priesthood.'” These services are counted as commandments, for when the priest performs any one of them he performs a commandment and recites a blessing over it. This is his view.
Nahmanides explains Bahag’s position by saying that the commandment of offering the sacrifice is a duty upon the priests rather than upon the owners. But why should that explain the separate counting of each stage?
It seems that the intention is this: if the obligation were upon the owner, there would be no room for this split, since all the stages are parts of one procedure. All these components are directed toward achieving atonement for the owner, that is, the one who brings the sacrifice, and therefore there is no room to count each one separately. But if we view the obligation of sacrifice as resting on the priests, then from the priest’s perspective there is no necessary connection between one stage and the next; for him these are a collection of separate acts. The one seeking atonement needs all of them, but the obligation of offering is on the priest, not on the one being atoned for. So Bahag views the obligation of offering as falling on the priest, and therefore he counts each stage separately.
It appears, then, that Bahag sees the priests as “agents of Heaven,” while Maimonides sees them as “our agents”—see Babylonian Talmud, Yoma 19a, and parallels.1 For this reason Bahag also does not count at all the obligation to bring the sacrifice, since that obligation falls on the person being atoned for, and is included in the specific transgression for which he becomes liable to a sacrifice. For example, the obligation to bring a sin-offering for desecrating Shabbat is included in the prohibition against desecrating Shabbat. In our essay on the Fourteenth Root, concerning punishments imposed for various sins, we saw that according to Bahag the punishments too are included in the sins for which they are imposed.
Nahmanides himself, however, has a third approach, different from both Maimonides and Bahag:
What seems closer to me is that all sacrificial procedures should be counted as one. For there is no difference to the priest whether he performs a sin-offering, a guilt-offering, a burnt offering, or a peace-offering. All the descendants of Aaron were commanded with one positive commandment regarding their service, as it says, “And you shall serve; I give your priesthood as a service of gift” (Numbers 18:7). That is to say: you shall serve in all priestly service, for it is service to Me and a gift to you, since you have reward in it when you take from the high table. If so, four commandments are missing from the Rabbi’s count here.
According to him, all the commandments of sacrificial service should be counted as one comprehensive duty imposed on the priests, learned from the verse in Parashat Korah, “And you shall serve as a service of gift.” All the particular types—and certainly the stages of the service for each type—are merely details of that one obligation.
This position takes Bahag’s view one step further. If the commandment of sacrificial service is imposed on the priests, then there is no room to distinguish between stages, or even between types of sacrifices, since all those differences are relevant only to the one who brings the offering, not to the priest. He acts as an agent, whether of Heaven or of us, and does what is required of him. Differences and subdivisions are relevant only according to the view that sees sacrifices as the obligation of the one who brings them, that is, the one being atoned for.
The position of Rasag
Rabbi Yeruham Fishel Perla, in his discussion of the Twelfth Root, explains that Rasag too does not disagree with Maimonides in principle on this root. Not everything that Maimonides regards as parts of a procedure is so regarded by Rasag, but there is no basic disagreement.
With respect to the types of sacrifices, Rasag follows Maimonides’ general approach and counts only the types of sacrifices, not the obligations to bring them. But he counts many more types than Maimonides. Maimonides counts five types: burnt offering, sin-offering, guilt-offering, peace-offering, and grain offering. Rasag, by contrast, also counts the sliding-scale offering, the guilt-offering for robbery, the provisional guilt-offering, and the like. Some of these commandments, however, correspond to obligations to bring sacrifices rather than to sacrificial procedures, such as the bull brought for an erroneous communal ruling, which is also counted by Maimonides. So Rasag does not count every obligation to bring a sacrifice—such as a sin-offering for Shabbat or for idolatry—but he does count every type of sacrifice explicitly mentioned in a verse as a separate commandment.
Expansion and generalization of the positions2
We thus find that the early authorities disagreed over how the commandments of sacrifice should be counted. Maimonides counts both the sacrificial procedure and the obligation to bring a sacrifice, for each general type of sacrifice—as noted, there are five general types—as two separate commandments. Bahag does not count the obligation to offer and instead breaks down the sacrificial duty into many commandments. Nahmanides argues that there is only one duty upon the priests to perform the sacrificial service and does not treat the owner’s obligation to bring the sacrifice as separately counted, since it is absorbed into the transgression for which the sacrifice is brought. Rasag counts every type of sacrifice that appears in the Torah.
It has already been noted that we find a very similar pattern in other legal contexts as well. For example, in the Fourteenth Root we saw a similar picture regarding the counting of punishments. Maimonides counts each general type of punishment as a separate commandment. Nahmanides argues that there is one general obligation imposed upon the court to punish. Bahag holds that punishments should not be counted at all, because they are included within the sins for which they are given. Rasag holds that every death penalty for every transgression should be counted as a separate commandment.
Regarding impurity, Maimonides counts thirteen impurities, Nahmanides counts none of them, and Rasag counts forty-four such commandments. For the different types of leprosy specifically, Maimonides counts three commandments—human beings, garments, and houses—while Rasag counts twelve.
In general, one may say that Nahmanides tends toward maximal generalization and does not detail at all. Rasag details every commandment that appears in the Torah. Maimonides takes the middle path: he counts the principled types and includes the details within them.3
Priestly gifts: commandments involving produce forbidden before separation
We mentioned that one of Maimonides’ examples concerned priestly gifts. Maimonides holds that the giving is not counted as an independent commandment but is part of the commandment of separation. Nahmanides challenges him on this and argues that although there are commandments in which the counted commandment should not be split into two independent parts, in the commandments involving food that is forbidden before separation—where the separation rectifies that forbidden status—we should certainly count two commandments in each case: the separation and the giving.
An example is hallah, the dough-offering. Before it is separated, the dough is forbidden to us. We are commanded to separate hallah and thereby rectify the dough, and in addition we are commanded, in a separate verse, to give the separated portion to the priest. Nahmanides argues that separating hallah is an independent commandment and should be counted in addition to the giving.
He adduces proofs from the Sifrei and adds proof from the fact that one recites a blessing over the separation itself, which shows that it too is a commandment and not only the giving.4 Another proof is that priests themselves separate terumah and tithes and also recite a blessing. The same is true of impure hallah, which one is commanded to separate even though it is not given to a priest, since it is thrown into the fire.
Nahmanides concludes that with terumah, hallah, first tithe, and the like, we should count two commandments in each case: separation and giving. With gifts that do not involve previously forbidden produce, such as the first shearing and the foreleg, cheeks, and maw, we should count only the giving to the priest; indeed, no blessing is recited over the separation in those cases.
Nahmanides continues and argues that with priestly gifts in the Temple, such as the priests’ portions of sacrifices, even the giving should not be counted as a commandment, because there is no commandment of giving here at all. These are portions that the Holy One, blessed be He, leaves in His own hands from the sacrifice, like the portions burned on the fire, except that this portion is granted to the priests from the high table. So too the breast and thigh in the sin-offering and the guilt-offering: since these are offerings intended for God Himself, as atonement for sin, it is obvious that everything in them is His, and the priests receive from the high table. Nahmanides adds that giving all these parts to the priests is itself part of the sacrificial offering, since the priests’ eating is part of the owner’s atonement; therefore these should not be counted separately from the commandment of sacrifice itself.
There are thus two reasons in Nahmanides’ words for not counting the priests’ portions in Temple gifts:
1. There is no commandment of giving at all.
2. The eating is part of the sacrifice and the atonement.
It seems that the first reason explains why the giving is not counted as a commandment in these cases, against Maimonides’ position, while the second explains why the priests’ eating is not counted as a commandment, against Bahag, who counted the sacrificial commandments as duties imposed on the priests.
Perhaps here too the dispute concerns the principle of this root. According to Maimonides, these two stages depend on one another: one cannot give to the priests without first separating. He therefore treats these command-pairs—separation and giving—as parts of one commandment. Some have gone further and understood Maimonides to mean that there is no commandment to give at all, and that giving is merely the completion of the act of separation. One may formulate this more sharply and say that the commandment is separation, meaning setting aside a portion for God. Giving to the priest is “from the high table,” meaning that the giving to God is performed in the form of giving those gifts to the priest. But this is only the completion of the separation and the rectification of the previously forbidden produce. In commandments that do not involve such forbidden produce, Maimonides apparently sees the whole as giving to the priest rather than as rectification, and therefore there too it is one commandment; here even Nahmanides does not disagree.5
Two difficulties in Maimonides’ approach
The picture described so far raises two problematic points in understanding Maimonides’ method, and as we shall see, the two are connected.
1. The first question is Nahmanides’ question: why count the whole procedure as a commandment at all? If we look, for example, at the commandments of sacrifice, we notice—as already observed above—that Maimonides counts separately the commandments imposed on the different people who bring offerings, and in addition he separately counts the procedure of sacrifice for each type of offering, that is, the sacrificial procedure itself. It seems puzzling why he counts the sacrificial procedure as a commandment instead of seeing it as merely the specification of the commandment that imposes on the person the duty to bring such a sacrifice.
One might say that even according to Maimonides, the obligation of sacrifice is a duty of the priests, and the details of the sacrificial process are instructions to them. For that reason the duties of those who bring the offerings are counted as separate commandments, since those commandments are addressed to the bringers. If so, the “procedure” is a commandment addressed to the priests and is therefore counted separately. According to this, Maimonides too would agree that sacrifice is a commandment upon the priests, and not merely because they are “our agents,” as we suggested above in distinguishing him from Bahag. If so, what exactly is their dispute? Nahmanides certainly did not understand him that way.
As we have already noted, the reason Nahmanides could not accept such an interpretation of Maimonides is that if Maimonides really held that the commandment of sacrificial service is imposed on the priests—that is, that they are “agents of Heaven”—then he would have had two available options: either to hold like Bahag, that every detail should be counted separately, since from the priests’ point of view the service is not one whole; or to hold like Nahmanides, that the entire priestly service is one commandment.
But Maimonides chooses neither option. He counts each procedure of each type of sacrifice—burnt offering, sin-offering, guilt-offering, peace-offering, and grain offering—as an independent commandment. Thus the difficulty returns: why does he count a sacrificial procedure that is only the specification of the duty of the one who brings the offering?
2. Another point that requires clarification is his treatment of comprehensive features, that is, specific details that characterize several commandments. We mentioned above that Maimonides qualifies the principle stated in this root, and counts commandments such as the prohibition of offering a blemished animal, or one lacking the requisite age, or the commandment to salt the sacrifice, as independent commandments. At first glance, these too are details in the commandments of sacrifice, or specifications of what is fit for sacrifice, and it is unclear why they are counted as special commandments. We cited Maimonides’ own explanation: these are details that belong to several sacrifices—perhaps all of them, see Perla—and not only to one specific type; therefore they are significant enough to possess an independent status.
At first glance, one might explain that these commandments are, in essence, not details within the various sacrificial procedures, but independent prohibitions that stand outside those procedures.6 But if that were so, Maimonides’ criterion would be unclear. He makes the matter depend on the fact that these commands encompass all the types of sacrifices. Yet a command that is not part of the sacrificial process should be counted even if it is relevant only to one type of sacrifice. If, for example, the prohibition of offering an animal before the eighth day applied only to the burnt offering, would it not still be an independent prohibition? If so, why is Maimonides’ criterion the appearance of these details in several types of commandments? It therefore seems that Maimonides intends a different principle: details in the sacrificial process that are shared by several types of sacrifices are not treated as parts of sacrifice but must be given independent status.
For this reason, Rabbi Yeruham Fishel Perla asks why Maimonides did not count the giving of the hide to the priests as an independent commandment, even though it applies to all most-holy offerings. That is, Perla does not distinguish between giving the hide—which, according to Maimonides, is part of the sacrificial process, just as giving terumah is part of separation—and the kind of detail that appears in several types of sacrifices. So too Perla asks about the burnings and the laying on of hands, and one should ask the same about the dashing and slaughtering of all sacrifices. All of these are details that characterize all types of sacrifices, and Maimonides should therefore have counted them independently.
It seems that Perla indeed understood Maimonides as making the criterion the appearance of a given detail in several types of commandments, not its being an independent commandment by its essence, as we suggested above. But if the principle is merely the appearance of the relevant detail in several legal procedures, it is not clear why that should be a relevant criterion.
C. Systematicity versus Essentiality
Introduction
In this chapter we shall enter into the distinction between essential and systematic considerations in the counting of the commandments, and more generally. We shall see that the picture described thus far points toward a systematic rather than an essential tendency, but a broader review of Maimonides’ considerations shows that the situation is considerably more complex.
Between systematic and essential considerations
Until now we have assumed as self-evident that the considerations governing the counting of the commandments are considerations of essence. We did distinguish between legal considerations and classificatory or other considerations, but we tacitly assumed that all of them rest on essential considerations. In our essay on the Ninth Root, we noted that a counted commandment requires both an independent command and an independent content. When we classify some commandment as part of another, the reason is essential: from the legal point of view, its fulfillment has no independent value. But here we encounter considerations of another type. The question whether a certain part or stage appears in several commandments or only in one is a question of technical classification.
To sharpen the point, let us compare a code of laws and a book of commandments. When we wish to construct a law code, our considerations are considerations of efficiency and systematic organization. If a term appears in several contexts, it is more efficient and systematic to present in one place an explanatory clause defining it for all the contexts in which it appears. The term “adult,” for example, would be defined in one place—either as someone above a certain age or as mentally competent by certain criteria—and that definition would then be binding everywhere the concept appears in the code. The clause explaining the term would indeed properly be called a “law,” in the sense that it is a clause in a law code. But is it a commandment? Clearly not. It commands nothing. Thus, when we are building a law code, there is certainly room for explanatory clauses and for definitional chapters, usually in introductory sections. The considerations involved in constructing a law code are therefore also systematic—considerations of orderly and efficient presentation—and not only essential.
By contrast, within a book of commandments we would not ordinarily include an explanatory clause as an independent item. Such a clause should appear as something outside the book of commandments itself. A book of commandments, unlike a law code, is supposed to contain only commandments, that is, only commands. Explanations of terms may appear as appendices, but not as commandments. Thus the considerations in constructing a book of commandments should be essential considerations—what is defined as the fulfillment of a commandment, and what is part of another commandment. There seems to be no room there for systematic considerations.
If we return to the question of counting sacrificial procedures, we can now see that from a systematic point of view there is much logic in counting them separately. There is no sense in redefining, every time a particular sin incurs a sin-offering, the entire procedure of the sin-offering. From the standpoint of efficiency and systematic organization, it is better to define that procedure separately in a general section, as an explanatory clause of the term “bringing a sin-offering,” and to refer back to it each time we obligate someone to bring one—for example, for unintentional desecration of Shabbat or idolatry. On the other hand, this is certainly not an independent commandment. If it is the duty of the one who seeks atonement, it is included within the specific transgressions that require a sin-offering. If it is the duty of the priests, then the whole sacrificial service should have been counted as one duty imposed upon the priests. As we saw, that is precisely Nahmanides’ argument against Maimonides.
Maimonides’ approach
At first glance, Maimonides himself seems to agree with this, for he writes at the beginning of this root:
It is known that at times we are commanded regarding a certain act, and afterward Scripture begins to explain the manner of that act, clarifying the term it mentioned and stating what it includes. It is therefore not proper to count every command that appears within that explanation as a separate commandment.
Maimonides mentions two types of detail that appear in the Torah: explanation of the act—”the manner of the act”—and explanation of the term used in defining the commandment—”the term it mentioned.” In our terminology, these are explanatory clauses of the law, defining acts or legal concepts. So at a basic level, Maimonides seems to argue that explanatory clauses should not be counted, since they are included in the commandments they explain. That is an essential consideration, not a systematic one.
Yet, as we have seen, he certainly does count explanatory clauses as commandments. For example, Maimonides establishes, in one group of commandments, who is obligated to bring a sacrifice and of what type. These are the law’s prescriptive clauses. Beyond that, Maimonides sets out the definition of the sacrificial acts and the character of the sacrifices in question. These are the law’s explanatory clauses. What he says here should not be counted is the parts of the procedure described within that explanatory clause, such as the stages of offering the burnt offering.
We thus see that Maimonides treats these explanatory clauses as separate commandments. He brings commandments describing the procedure of the sin-offering, the burnt offering, or the guilt-offering, and does not treat them merely as explanatory clauses of terms appearing in the commandments that impose the obligation to bring a guilt-offering or a sin-offering. It thus appears that even though Maimonides is writing a book of commandments rather than a law code, he is constructing it on the basis of systematic rather than purely essential considerations. The term “procedure” is Maimonides’ own word for such explanatory clauses. The “procedure,” which is merely a specification of the obligation of the one who brings the sacrifice, ought to appear as a clause in the halakhic law code, and therefore, in his view, it is also counted as a commandment.
What Maimonides rejects in this root is not the counting of explanatory clauses, as his commentators assumed, but only the counting of simple explanatory clauses—that is, the individual stages of the sacrifice. In the next section we shall see that if a simple concept appears in several places, even according to Maimonides there is no room to treat it as an independent clause in the book of commandments or the law code.
The conclusion is that Maimonides does indeed consider systematic considerations when determining the structure of Sefer HaMitzvot, just as Nahmanides understood him to do, and even attacked him for it. This way of looking at the matter resolves the two problems raised above. Maimonides counts the sacrificial procedure, even though it is only a specification of the owner’s duty, because it is an explanatory clause relating to the laws that command various people to bring various sacrifices. In his view, such an explanatory clause is also counted as a commandment. The same applies to the second problem above. General details, those relevant to several commandments or procedures—such as salting the sacrifice and the prohibition of bringing a blemished offering—ought to appear in an orderly law code as independent clauses, for it makes no sense to restate them within every commandment under discussion. Therefore these details, although they are details within the sacrificial procedure, are regarded by Maimonides as independent commandments and counted separately.
Resolving Perla’s difficulties
In light of this, Perla’s questions also disappear. Maimonides does not count the burnings, the wave-ritual, and the giving of the hide to the priests as independent commandments, despite the fact that these are general details, meaning details that appear in several commandments. The reason is that if Maimonides counts only explanatory clauses of the law—only what would appear as a separate clause in the halakhic law code—then such a clause must be a complex one, not a simple one.
For example, suppose that the term “wave-ritual” appears in several prescriptive clauses. At first glance, there might be room to open a separate explanatory clause that explains the meaning of this term. But if it is a simple concept, then even if it appears in several commands there is no reason to explain it separately. In every place it is enough to say that the sacrifice must be waved. An explanatory clause is created independently only when there is a concept that requires some elaboration. In that case, systematic considerations tell us that there is no point in restating it everywhere the concept appears. Only then do we open a separate explanatory clause, whose purpose is to detail in one place the meaning of the concept for all its appearances in the book of commandments. When the concept does not require elaboration, there is no need to create a separate explanatory clause for it, even if it appears in several prescriptive clauses.
Thus, if several commandments involve a duty of waving, there is no reason to create an explanatory clause for it, since it is one simple action. By contrast, when several commands involve the duty to bring a burnt offering, that is a complex concept that must be detailed in a separate explanatory clause. Therefore the procedure of the burnt offering receives the status of an independent commandment, whereas waving does not.
This allows us to be more precise in Maimonides’ language, cited above, where he formulates the principle of this root:
It is therefore not proper to count every command that appears within that explanation as a separate commandment.
Maimonides does not say that one should not count the explanation itself as a separate commandment, but that one should not count every command that appears within that explanation as a separate commandment. He does not reject counting the explanatory clause that details the burnt offering as a commandment, because within his system there are also explanatory clauses. In this root he intends only to reject counting the parts of that procedure as independent commandments. A simple part does not require a separate clause in the book of commandments or the law code. An independent explanatory clause is a clause intended to detail a complex procedure, such as the burnt offering or the sin-offering. The parts of that procedure should not be counted separately, because there is no systematic logic in opening an independent explanatory clause for them.7
A note on the relation to Root Eleven
Above we raised the problem of the distinctiveness of this root as compared to Root Eleven, and even proposed an explanation: whether the joining of the parts occurs on the normative plane or on the factual plane. In light of what we have said here, we may perhaps understand in an additional way why Maimonides set up an independent root for parts of a “procedure,” and how it differs from parts of a “commandment.”
As we saw above, even clauses that are merely specifications of a counted obligation, and not independent obligations in essence, are counted by Maimonides as commandments. It seems that legal clauses of this sort, which Maimonides also classifies as commandments, are what he calls “procedures,” and these are the subject of this root. Root Eleven, by contrast, deals with parts of a commandment, not parts of a “procedure.” That is, it deals with different parts of a commandment, each of which has the content of a command—for example, to take the lulav, myrtle, willow, or citron. That root dealt with clauses of the law that have prescriptive content, each of which by itself need not occupy a place in the law code, because it appears only in one context. This root deals with parts of the “procedures,” that is, parts of the explanatory clauses in the system of commandments. Its main point is to establish that although we count explanatory clauses separately, simple explanatory clauses are not counted as independent commandments—unlike simple commandments, which, even if they do not require elaboration, should still be counted separately. That is an essential consideration.
The essential difficulty: an illustration from axiomatic structure
The conclusion is that Maimonides indeed sees the book of commandments as a law code, and he constructs it on the basis of systematic as well as essential considerations. That explains the overall character of his approach in this root. But even after setting out this picture, the basic assumption still requires explanation.
A systematic structure is very sensible and efficient, but it does not seem suited to the structure of a book of commandments. Here the considerations ought to be essential only, and explanatory clauses should appear as appendices or introductions, not as counted commandments. As noted, this seems to be what troubles Nahmanides in his arguments against Maimonides.
As an analogy, consider the structure of some mathematical theory, such as number theory or geometry. In an axiomatic structure we find axioms, definitions of primitive terms, rules for deriving theorems from earlier theorems, rules of formation for statements in the language, and theorems, that is, propositions derived from the axioms.
For example, in Euclidean geometry there are axioms, but the axioms use terms such as “point,” “line,” and “parallel.” Those terms must be defined, and therefore one appends to the axiomatic theory a system of definitions whose role is to define basic terms so that one need not restate them each time they are used.
Clearly there is no place to attach the definitions as another type of axiom. Their logical status is different, and their status within the axiomatic system is different. Definitions serve to translate concepts in the axiomatic language into the meta-language familiar to us, and therefore they form a bridge between the axiomatic sphere and ordinary language. That is certainly not the role of the axioms.
In this language, one may say that what Maimonides is doing is treating definitions of concepts as if they were axioms. In the counting of the commandments, only halakhic axioms should be included. The theorems derived from the axioms are not included in the count because of the roots of the fifth category—sorting and classification—since they branch out from and belong to counted commandments, the axioms. When Maimonides includes explanatory clauses in the count, he is effectively treating definitions as axioms.
D. Essentiality and Systematicity in the Enumeration of the Commandments
Introduction: Maimonides’ goal in counting the commandments
We have seen that Maimonides, unlike Nahmanides, counts explanatory clauses as independent commandments. Underlying this is an approach that constructs the book of commandments out of systematic rather than purely essential considerations.
It stands to reason that these differences are connected to differing conceptions of the purpose of the enumeration of the commandments, and of Sefer HaMitzvot in general. In the introductory essay, we noted that Maimonides, unlike the author of Sefer HaHinukh, arranged the system of commandments as a theoretical superstructure underlying his Mishneh Torah. It is the skeleton of the Mishneh Torah, whose purpose is to ensure that the legal code will be complete and omit nothing. The legal work that Maimonides is planning when he enumerates the commandments is meant to spell out the clauses contained within the system of commandments. The commandments are the chapter-headings of the fourteen books and their subdivisions, each one detailing the legal particulars included within some of the 613 commandments.8
Given such a goal, it is only natural that Maimonides should arrange the theoretical structure so that it is technically suitable to serve as the basis for arranging the legal work, that is, for arranging a “law code.” Unlike other enumerators of the commandments, some of whom regarded the enumeration itself as a commandment—”that you remember all My commandments”—Maimonides does not see the count as something essential. He has a technical goal: to build a systematic skeleton that will underlie his legal edifice. He then asks himself: how should the Mishneh Torah be arranged? Should he devote an independent collection of laws to detailing the procedure of offering the guilt-offering or the sin-offering, or should he include that within the collections describing the obligation to bring a guilt-offering—such as the laws of doubtful cases, the Nazirite and the leper, the designated maidservant, robbery, and so on—or a sin-offering, such as the laws of Shabbat or idolatry? It is quite obvious that constructing a legal work parallels constructing a law code. There is great systematic logic in devoting a separate book to the actual procedures of the different sacrifices. If so, the book of commandments that Maimonides builds as a skeleton will also be divided accordingly. The skeleton must include some branches devoted to the procedures of sacrificial service, even if these are merely explanatory clauses and contain nothing that directly commands us to do anything.
Nahmanides, by contrast, sees the enumeration of the commandments as expressing something deeper. This system is the conceptual skeleton, not the technical skeleton, of the overall halakhic structure. These are the principleות regarding which the Torah commands us. This is the conventional conception of a book of commandments and its role.9 Therefore he attacks Maimonides for counting the sacrificial procedures as independent commandments. Nahmanides understands them as mere detail, explanatory clauses; but such clauses are not fit to enter the count of the commandments with the status of commandments.
The root of the dispute between Maimonides and Nahmanides, then, lies in the different goals they had when constructing the count of the commandments. From this also follows the explanation why Maimonides operates on the basis of systematic considerations, whereas Nahmanides sees only essential considerations before him.
The connection to the Vilna Gaon’s approach
We have seen that Maimonides’ considerations in building the system of commandments are systematic and not merely essential. We also noted that this follows from his fundamental aim in the enumeration of the commandments.
It seems that this conception underlies the well-known approach of the Vilna Gaon, who commented brilliantly on every part of Torah—Babylonian Talmud, Jerusalem Talmud, Mishnah, midrash, esoteric teaching, homiletics, hints, and so on—yet left us no treatment of the enumeration of the commandments. In the introductory essay, we explained that the reason is that this enumeration does not reflect an essential layer, but only systematic considerations. The question whether a given commandment is counted or not has no legal or other consequence, and therefore the Vilna Gaon saw involvement in the matter as unnecessary.10
In light of what we have said here, we discover that Maimonides too did not see the enumeration of the commandments as something essential and important in itself. He did it only as a methodological aid for constructing the Mishneh Torah. In this sense, Maimonides is a rare ally of the Vilna Gaon’s approach, which at first glance seems opposed to all the early authorities who did engage in this subject.
Let us now examine a few more specific expressions of the systematicity underlying Maimonides’ conception of Sefer HaMitzvot.
Annulment of vows
In Positive Commandment 95, Maimonides states a principle very relevant to our subject:11
The ninety-fifth commandment is that we were commanded to judge regarding the annulment of vows. That is, the Torah taught us to rule by those laws. The point is not that we are necessarily obligated to annul vows. Understand this same point from me whenever you hear me count one of the laws: there is not necessarily a command to perform some action. Rather, the commandment is that we are commanded to rule according to this law in this matter.
Annulment of vows—like release from vows as well, which is not counted because we have no explicit verse for it, as in the Mishnah in Hagigah 10a: “mountains hanging by a hair”—is only an explanatory clause, since it specifies the laws of vows. It defines a state in which a vow is annulled or remains in force, but there is no normative instruction commanding or forbidding annulment. The laws of vows appear in their own commandments: the duty to keep the vow and the prohibition against violating it. In this commandment there is only a technical definition of what counts as a “vow”—a vow that has been annulled is not a vow, and therefore the above prohibition and obligation do not apply to it.
Maimonides states here a general principle: not every commandment necessarily contains normative instructions. There are commandments whose role is to define and clarify, not to command. The term “commandment” in this context is borrowed. The more precise translation would be “law,” as a unit in a law code rather than in a book of commandments.
In light of what we wrote above, we may now say that Maimonides sees a need to spell out separately the definition of the vow itself; therefore, in his Sefer HaMitzvot, which is the skeleton of the Mishneh Torah, he devotes separate clauses to defining the vow even before the command. Hence in Maimonides’ Sefer HaMitzvot there are special commandments dealing with the definition of the vow itself, beyond the commandments that prohibit violating it or obligate keeping it.
The impurities
In Commandment 96—which, perhaps not accidentally, comes immediately afterward—dealing with the impurity of a carcass, Maimonides writes:
I shall now mention an introduction that you should remember regarding all the kinds of impurity that we shall mention. The fact that we count each and every kind of impurity as a positive commandment does not mean that we are obligated to become impure with that impurity, nor that we are warned against becoming impure by it so that it should be a negative commandment. Rather, the Torah’s saying that whoever touches this kind becomes impure, or that this thing imparts impurity in such-and-such a manner to one who touches it, is itself a positive commandment. That is, the legal rule with which we are commanded is a positive commandment: namely, our saying that whoever touches such-and-such in such-and-such a manner becomes impure, and one who is in a certain condition does not become impure. Becoming impure itself is optional: if he wishes, he may become impure; if he wishes, he may refrain…
The commandment is what we are told in this law: that one who touches this becomes impure and will be impure, and that there apply to him whatever applies to the impure—going outside the camp of the Divine Presence, not eating sacred food, not touching it, and the like. This is the commandment: that he be impure in this way when he touches it or is in such-and-such a condition. Remember this point regarding every kind of impurity.
Maimonides speaks here about all the commandments dealing with the various forms of impurity. Again, these commandments contain no normative instruction. They are merely definitions of states of impurity. All the consequences of these different forms of impurity have their own commandments, such as the prohibition of entering the Temple in impurity, the prohibition of eating terumah in impurity, the prohibition of eating or touching consecrated food in impurity, performing service in impurity, and so on. Yet Maimonides still finds it necessary to devote a number of commandments to defining the various states of impurity themselves.
What emerges from Maimonides’ words is that the commandments of impurity are included in the count even though they contain no prescriptive content; their essence is disclosure of a reality or legal status.
Nahmanides’ approach
Nahmanides, in his glosses here, attacks Maimonides precisely on this point. As already noted above, Nahmanides does not count the different kinds of impurity as commandments at all, not even as one commandment, unlike his treatment of punishments and sacrifices:
Even with all the Rabbi’s lengthy words, and the introduction he prefaced to all the kinds of impurity, I see no reason to bring the laws of impurity into the count of commandments, because they are entirely optional from every side; there is in them no matter of commandment to be counted.
And so too it seems regarding the commandment preceding these, namely the annulment of vows, that it should not be counted, because it is merely the negation of what we were commanded, namely to do according to what has issued from our mouths…
That is, he disagrees with Maimonides precisely at this point.
As we noted above, the root of the disagreement seems to be the question of the purpose of the enumeration of the commandments. According to Maimonides, the counting of the commandments is only the creation of a skeleton for the comprehensive legal work he is about to write, and therefore he constructs it on systematic considerations and not only essential ones. Nahmanides, by contrast, sees the count as a structure with essential legal meaning, if it has meaning at all. Therefore he constructs it on essential considerations and rejects systematic ones. Such considerations may have their place in a legal code, but not in the enumeration of the commandments.
Two clarifying comments
We see that Maimonides constructs his count of the commandments also on the basis of systematic considerations, not only essential ones. For that reason he includes within it explanatory clauses, and not only legal directives, that is, “commandments” in the literal sense of the word. Precisely against this background, it is important to stress that these are not clauses revealing and clarifying a neutral reality devoid of legal meaning. The fact that a certain person is impure, or that a certain vow has been annulled, has legal significance. It is not a mere neutral fact. There is clearly legal value in knowing and defining that reality.
Had these disclosures no legal significance or legal consequences, they would certainly have no place in the count of the commandments. The problem we pointed out is that these disclosures should not have appeared as commandments, but rather as explanatory clauses or definitions of other commandments. All the legal directives that apply to the situations defined by these commandments are themselves counted separately. Therefore, from the standpoint of essence, there is no room to count these clauses too as independent commandments. From this we concluded that Maimonides employs considerations of system and method, not only considerations of essence.
A further comment concerns impurity. Several sources suggest that there is some value in not becoming impure. For example, Nahmanides, at the beginning of Parashat Kedoshim, writes:
Therefore Scripture, after detailing the prohibitions that it utterly forbade, came and commanded in a general way that we be abstinent even from what is permitted. One should minimize sexual relations, as they said in Babylonian Talmud, Berakhot 22a, that Torah scholars should not be constantly with their wives like roosters, and one should engage in relations only as necessary for fulfillment of the commandment. One should sanctify oneself in relation to wine by limiting it, just as Scripture called the Nazirite holy, and recall the evils mentioned in the Torah concerning Noah and Lot. So too one should separate oneself from impurity, even though we were not warned against it in the Torah, as they mentioned in Babylonian Talmud, Hagigah 18b, “The garments of the common people are considered midras-impure for those scrupulous about purity,” and just as the Nazirite is called holy because he guards himself from corpse impurity as well.
These ideas also appear in a number of places in Rashi’s commentary on the Torah.11 In truth they are already implied by the sages, since if impurity were entirely neutral for one who is not explicitly commanded concerning it, there would be no point in being “scrupulous” or a “member of the fellowship of purity.” Likewise, the Nazirite would not be called holy.
In light of this, one might have explained that the commandments of impurity are meant to reveal and define for us the states of impurity so that we may know to avoid them. But this cannot be the explanation, because Nahmanides himself, who speaks of the value in avoiding impurity, rejects Maimonides’ approach of counting the commandments of impurity. And Maimonides himself, who does count those commandments, explicitly says that he counts them even though they command us to do nothing. So that is not why they are counted.
Additional examples
Other examples may also be brought of commandments that do not contain legal directives, beyond the laws of impurity and sacrifices.
For example, Positive Commandment 87, which commands that a substitute animal become sacred. Here too there appears to be no legal directive. The prohibition against making such a substitution is counted among the negative commandments, and that prohibition is connected to this positive commandment. The instructions concerning what to do with the sanctified animal appear in the commandments dealing with consecrated animals. So here too there seems to be only a definition and not a legal directive.
One might doubt this, however, since one could interpret the commandment as instructing us to treat the substitute animal with sanctity, not merely as declaring that the animal has the status of sanctity. This requires further discussion, but it is not our subject here.
Another example is the commandment to examine the signs of pure animals and beasts. At first glance, here too nothing is imposed upon us; rather, the species that we are permitted to eat are defined. But the common understanding is that these are positive commandments from which a prohibition is inferred: one who eats non-pure animals transgresses these positive commandments as well. If so, there is certainly a legal directive here. On prohibitions inferred from positive commandments, where a similar question arises in many cases, see the second part of our essay on the Sixth Root.
Commandments 232-235 define the laws of the Hebrew slave and the Canaanite slave. At first glance, here too there is only a definition of status, and therefore these too would seem to be merely explanatory clauses. But we must note that there are no other commandments instructing us what to do with these slaves. It is therefore clear that Maimonides intends these commandments to include not only the definition of their status but also the normative legal instructions concerning how to treat them. So these are not good examples for our present discussion.
Another example is Commandment 245, dealing with buying and selling. There Maimonides writes:
The 245th commandment is the law that the Torah taught us concerning sale and purchase, that is, the modes by which a sale is effected between seller and buyer. They derived proof for these modes from His statement, “When you sell merchandise to your fellow, or buy from your fellow’s hand” (Leviticus 25:14). They said (Babylonian Talmud, Bava Metzia 47b; Kiddushin 26a), “Something acquired from hand to hand”—that is, by drawing. It has already been established that by Torah law money effects acquisition, and that drawing with movables is a rabbinic enactment, as are handing over and lifting. And they explicitly said (Babylonian Talmud, Bava Kamma 79a; Bava Metzia 99a), “Just as they enacted drawing for purchasers, so they enacted drawing for bailees.” You thus see that requiring drawing in sales is an enactment, as explained in its place. As for the other modes by which land and the like are acquired—namely document and possession—they too were linked to verses. The laws of this matter, that is, the modes by which a sale is validated in each type, are explained in the first chapter of Kiddushin and in the fourth, eighth, and ninth chapters of Bava Metzia, and in the third through seventh chapters of Bava Batra.
At first glance, this commandment too is merely an explanatory clause. It defines the laws of acquisition, how a person buys and sells objects and property, and how we define ownership in the various cases. As with the laws of impurity, the legal consequences—for example, the prohibition of theft, or the requirement of ownership in the four species—are set out in independent commandments. Thus this commandment too is nothing more than the definition of a status, not a legal command.
In fact, this commandment consists only of explanatory definitions and specifications of the prohibition “You shall not steal.” That prohibition presupposes laws of ownership, and on the basis of those laws it forbids infringing another person’s ownership of his property. Clearly, before the prohibition “You shall not steal” there must come definitions of ownership and acquisition, defining when there is infringement and when there is not. On the basis of precisely this argument, Rabbi Shimon Shkop, in Sha’arei Yosher, Gate 5, proves that before the prohibition “You shall not steal” there exists an a priori, pre-halakhic layer—which he calls “the laws of jurisprudence”—that determines ownership of property, that is, the laws of acquisition.
As we have already noted in previous essays, however, Rabbi Shimon Shkop argues that within this “jurisprudential” layer there is also a legal prohibition prior to “You shall not steal.” In his view, the pre-halakhic layer does not contain only definitions and ownership determinations, but also a normative instruction. That instruction is secular, and the halakhic instruction of “You shall not steal” is added on top of it. There is a difference between them, for example with respect to gentiles, regarding whom some opinions hold that there is no halakhic prohibition of theft, though according to all views there is still a juridical prohibition. By contrast, Maimonides’ language here suggests that the substrate preceding the prohibition “You shall not steal” is merely an explanatory definition. And yet he counts it as a positive commandment. This is another example of an explanatory clause.
Interestingly, here Nahmanides does not challenge him. Perhaps he understands this commandment as an instruction to the court to adjudicate the laws of acquisition, but Maimonides’ language makes it quite clear that this is not his intention. This is not a commandment addressed to the court, since in other examples Maimonides explicitly uses language meaning that the command is for the court to judge. For example, in Positive Commandment 237, dealing with damage caused by an ox, he writes, “that we were commanded to judge according to the law of the ox.” And similarly in Positive Commandment 238, regarding damage caused by a pit.
Against this background, it is interesting to note also the commandments dealing with bailees, where he writes, “that He taught us the law of an unpaid bailee.” This too is the language of definition rather than legal directive. But there there are no other commandments instructing us to judge according to those laws, and therefore it is clear that Maimonides intends those commandments also to contain the normative component, namely the duty of the court to rule for bailees according to the laws of bailees. This differs from the laws of acquisition, where the normative instruction is contained in the prohibition “You shall not steal.”12
In any case, it is quite clear that from systematic and methodological considerations there is much logic in establishing the laws of bailees, the laws of damages, and the laws of acquisitions in independent collections, beyond the general prohibition against injuring another’s property. Therefore they also appear in the count of the commandments as independent commandments.
Existential commandments and enabling acts
In this context, the question also arises concerning the status of existential commandments and enabling acts. Existential commandments are commandments not imposed upon us as duties, but if we perform them we thereby fulfill a commandment. In their case there is no fundamental problem, because there is direct normative significance, and therefore there is no impediment to including such a commandment in the count.
By contrast, an enabling act is not really a commandment at all. An enabling act is a procedure that permits the next action, but even when one performs it there is no fulfillment of a commandment. If so, it is only a legal definition, not a commandment in the essential sense.
An example is slaughter. There is no commandment to eat meat, and therefore slaughter is not a necessary step. The most we can say is that without slaughter there is a prohibition on eating. But that prohibition too appears in the count of commandments—the prohibition of eating carrion. If so, what is the legal significance of slaughter? In the count of the commandments there appears Positive Commandment 146:
The 146th commandment is that we were commanded to slaughter cattle, beasts, and birds, and only then may their meat be eaten, and that they are permitted only through slaughter alone. This is His statement, “You shall slaughter from your herd and your flock as I have commanded you” (Deuteronomy 12). The language of the Sifrei is: “Just as consecrated animals are by slaughter, so too ordinary animals are by slaughter; ‘as I have commanded you’ teaches that Moses was commanded concerning the gullet and windpipe, concerning the majority of one in a bird and the majority of two in an animal.” The laws of this commandment and all its details are explained in the tractate attached to it, namely Hullin.
Some have understood this as referring only to an enabling act, so that one who slaughters does not thereby fulfill a commandment. Rather, eating is permitted only through slaughter. This would be a definition explaining to us what carrion is and when the animal has left that category. After the definition of “carrion” and “slaughtered animal,” the normative prohibition of carrion applies, or does not apply.13
One might, however, have understood that slaughter is a conditional commandment: whoever wishes to eat is commanded to slaughter, and when he slaughters he thereby fulfills a commandment. But from the words of several decisors it appears that this is not the case. On the other hand, when he eats without proper slaughter, he violates not only the prohibition of eating carrion but also the positive commandment of slaughter. Thus Sefer HaHinukh writes in Commandment 451:
One who transgresses this and is not careful not to eat the flesh of an animal, beast, or bird in which one of the five defects we mentioned occurred, or that was slaughtered with an unchecked knife, has nullified this positive commandment, besides having transgressed the negative commandment “You shall not eat any carrion.”
So slaughter is a genuine positive commandment in every respect. True, there is no positive fulfillment in performing it, but one who eats without slaughter has nullified this positive commandment.
To sharpen the basic distinction, one must understand that explanatory clauses cannot be nullified. For example, one cannot nullify the commandment of the impurity of a creeping creature. If someone becomes impure from a corpse, he has not nullified any positive commandment and has committed no transgression—apart from the general legal “value” mentioned earlier. And if he enters the Temple, he transgresses the negative commandment forbidding entry into the Temple in impurity, not the positive commandment of corpse impurity. That is, this “commandment” cannot be fulfilled nor nullified. Therefore Maimonides states regarding it that it is an explanatory clause rather than a commandment in the ordinary sense, even though he does include it in his count. If so, the positive commandment of slaughter is a commandment in the ordinary sense and not merely an explanatory clause, since as we have seen, even if it cannot be positively fulfilled, it can certainly be nullified.
However, in Malbushei Yom Tov, part 2, appendix “Kal Va-Homer,” section 2, the author argues at length that Maimonides’ view is that one who eats carrion does not violate any positive commandment of “that which has not been slaughtered.” Still, he claims there on that basis that one who eats flesh from an animal killed by stabbing, that is, killed without proper slaughter, does violate this prohibition, since there is a positive commandment of slaughter in order to render the meat fit for eating, and he failed to do so. But if he eats carrion meat, he does not transgress by virtue of not having slaughtered.
What forced him to say this was the very fact that Maimonides counts a positive commandment to slaughter; if there is no prohibition of “not slaughtered” in eating carrion, then there is no positive commandment here at all—not even a prohibition inferred from a positive commandment.
But in light of what we have said here, one might say that Maimonides sees the positive commandment of slaughter as an explanatory clause and not really as a positive commandment. That is, this “commandment” does not instruct us to do anything, but only defines the concept of “carrion.” The normative prohibition appears only in the prohibition of eating carrion, not here. Maimonides’ wording in Positive Commandment 146 does not make his intention entirely clear, but this interpretation is possible. Later authorities usually ignore this possibility, but perhaps that is because they were not aware of the existence of explanatory commandments in Maimonides’ count.
In light of this, it may be that the commandments to examine the signs of impurity and purity in animals can also be interpreted this way. It may be that these too are commandments defining the concepts “swarming creature” or “impure animal,” while the normative prohibition of eating them exists only in the negative commandment. Maimonides defines those as prohibitions inferred from a positive commandment, so it is likely that this is not what he means there. But with slaughter he does not define it that way, which actually strengthens the proposal we made above, though the proposal of Malbushei Yom Tov also fits.
The commandment of betrothal
Within the framework of procedural commandments and enabling acts, one may also include the commandment of betrothal and the commandment of divorce. According to most views, there is no commandment in the act of betrothal; it is only what permits marital relations, or a preparatory act for the commandment of procreation. Some define it as a procedure that creates the marital bond.14
Against those views, it is customary to cite Maimonides, who counts the commandment of betrothal as Positive Commandment 213:16
The 213th commandment is that we were commanded to take a woman in betrothal, giving something into the woman’s hand, or by document, or by intercourse. This is the commandment of betrothal. The indication is His statement, “When a man takes a woman and has relations with her” (Deuteronomy 24), which indicates that acquisition may be by intercourse. And it says there, “And she leaves his house and becomes another man’s wife”; just as leaving is by document, so becoming is by document. So too we learned that she is acquired by money from the verse concerning the Hebrew maidservant, “there is no money”—they said, there is no money for this master, but there is money for another master. But Torah betrothal is explicit only through intercourse, as explained in places in Ketubbot, Kiddushin, and Niddah. The laws of this commandment are fully explained in the tractate attached to it, namely Kiddushin. And they explicitly said, “Betrothal by intercourse is from the Torah.” It has thus become clear that the commandment of betrothal is from the Torah.
At first glance, Maimonides explicitly says that this is a positive commandment. But as we saw above, such language in Maimonides is by no means conclusive. Maimonides also counts procedural commandments, for in his view “commandment” does not necessarily mean an obligatory or prohibitory directive; any determination with normative significance, including an explanatory clause, may be included in the count.
At the beginning of the Laws of Marriage, however, Maimonides writes:
Before the Torah was given, if a man met a woman in the marketplace, and he and she wished to marry, he would bring her into his house and have relations with her privately, and she would thereby become his wife. Once the Torah was given, Israel were commanded that if a man wishes to marry a woman, he must first acquire her before witnesses, and only afterward she becomes his wife, as it says, “When a man takes a woman and comes to her.”
These acquisitions are a positive commandment of the Torah. A woman is acquired by one of three means: by money, by document, or by intercourse. Intercourse and document are by Torah law, and money is by rabbinic law. These acquisitions are what are called kiddushin, or erusin, everywhere; and a woman acquired by one of these three means is called betrothed.
From this it would seem, at first glance, that he means a real commandment. But here too one might still say that Maimonides’ intention is only to say that betrothal is of Torah origin, not necessarily that there is a Torah obligation to betroth a woman. When he writes “a positive commandment of the Torah,” he may mean it in the sense we have seen in Sefer HaMitzvot.
Now Kesef Mishneh there quotes Rabbi Abraham ben HaRambam, who wrote:
It was asked of him concerning what our master wrote, that it is a positive commandment of the Torah to betroth a woman, from what is said in Mo’ed Katan 18b: “Not only betrothal, which is not a commandment and is therefore forbidden, but even marriage, which is a commandment, is still forbidden.” He answered that in the enumeration of the commandments at the beginning of the laws, he said that the commandment is to marry a woman by ketubbah and kiddushin, and he did not say merely to betroth a woman. As for what he wrote, “These acquisitions are a positive commandment,” that is because they are the beginning of the commandment of marriage; but betrothal without marriage certainly does not yet complete the commandment.
It seems that they understood this as a real commandment, though one fulfilled in marriage rather than betrothal alone.
Likewise, Sefer HaHinukh, Commandment 552, writes:
We were commanded to acquire a woman by one of three means before marriage. The sages explained that these are by money, by document, or by intercourse. On this it is said, “When a man takes a woman and comes to her” (Deuteronomy 22), meaning: if a man wishes to take a woman for himself, he must first acquire her through intercourse…
One who transgresses this and marries a woman without first betrothing her has nullified this positive commandment.
From Sefer HaHinukh it is entirely clear that this is a commandment in the usual sense, since one who marries a woman without betrothal has nullified this positive commandment. We have already seen that explanatory commandments, such as annulment of vows and the laws of corpse or creeping-creature impurity, cannot be nullified.
The commandment of divorce
With divorce there is a similar dilemma. Here too one may see it as a procedure defining and explaining the concept of “married woman.” If there was some uncertainty concerning betrothal, with divorce the prevailing view is that there is certainly no fulfillment of a commandment when a man divorces his wife.
Yet Maimonides also counts this “commandment” in Positive Commandment 222:
The 222nd commandment is that we were commanded to divorce by a written document in every case when we wish to divorce, as it says, “He shall write for her a bill of severance and place it in her hand” (Deuteronomy 24). The laws of this commandment, that is, the law of divorce, are fully explained in the tractate attached to it, namely Gittin.
Here the wording is qualified. One might interpret it as a conditional commandment: if one wishes to divorce his wife, there is a commandment to do so by means of a bill of divorce. But this raises the claim that according to such an interpretation, a man who divorced his wife by a bill would have fulfilled a commandment, and would thus stand in a better position than one who remained married to his wife and lived happily with her all his days. That seems implausible. Similarly, the author of Minhat Hinukh, in Commandment 364, argues regarding the duty of confession when doing repentance that it is implausible to posit a conditional commandment of confession—if one repents, he must confess—because then one who repented without confession, and on that assumption nullified a positive commandment, would be worse off than one who did not repent at all, who would have neither merit nor liability in that respect.
Seemingly, this argument shows that in divorce there is certainly no commandment or obligation at all, not even a conditional one. Therefore it is clear that one who does not divorce has not neglected a commandment, and one who does divorce has not thereby fulfilled one. It is simply a procedure defining how the marital bond may be dissolved.
And yet Sefer HaHinukh, in Commandment 579, writes:
We were commanded that when we wish to divorce our wives, we must divorce them by writing. This writing is what Scripture calls a bill of severance, and what our sages call a get. So too the translator rendered this book as a get. Of this Scripture says, “He shall write for her a bill of severance and place it in her hand and send her from his house” (Deuteronomy 24)…
One who transgresses this and divorces his wife without writing her a get according to the commandment of the Torah and as explained by our sages has nullified this positive commandment, and his punishment is very severe…
This proves that there is nullification of a positive commandment in divorce. That is, divorce is not merely a procedural commandment defining and explaining the concept of “married woman”; there is a normative instruction here, of the sort that can be violated and even punished.15
In Maimonides, however, this is not stated, here or in the case of betrothal. According to his approach, it is entirely possible to understand that this commandment is counted but imposes no obligation upon us; it merely defines a legal status or explains a legal concept.
Nahmanides’ approach
From what we have said, it follows that according to Maimonides there would be room to see the commandments of betrothal, and all the more so divorce, as explanatory commandments, that is, commandments that impose no obligations. If so, we would expect Nahmanides to disagree and not count these commandments in his own tally. But that is not the case, and there is no indication that Nahmanides disputes Maimonides on this point.
With respect to betrothal, it is possible to understand that in his opinion there truly is a commandment there. With respect to divorce, this is puzzling; perhaps, after all, his view follows Sefer HaHinukh above, that even here there is some sort of commandment. The matter requires further inquiry.
The commandment of belief
Maimonides, in Positive Commandment 1, counts the commandment to believe:
The first commandment is the command with which we were commanded to believe in divinity: namely, that we believe that there is a Cause and Agent who brings all existents into being. This is His statement, “I am the Lord your God.” At the end of Babylonian Talmud, Makkot 23b-24a, they said: “Six hundred and thirteen commandments were said to Moses at Sinai. What verse is this based on? ‘Moses commanded us Torah’—the numerical value of Torah. They objected: but the numerical value of Torah is only 611. The answer was: ‘I am’ and ‘You shall have no other gods’ they heard directly from the mouth of the Almighty.” It has thus become clear that “I am the Lord your God” is among the 613 commandments, and it is a commandment of belief, as we have explained.
Maimonides thus sees belief as one of the commandments imposed upon us.
Many have already raised the difficulty in the very placement of such a commandment within the system of commandments. There is no essential sense in commanding belief, since if there is no prior belief in the Commander, there is likewise no meaning to His command. A prerequisite for being someone capable of receiving a command is belief in the Commander.
According to our approach, one might perhaps say that the point from which all the commandments draw is belief in the commanding God. Therefore, while it is true that on the essential plane there is no sense in establishing a commandment to believe in God, for if there is no belief in the Commander there is no room for the command, nevertheless, precisely for that reason, according to Maimonides’ conception of the system of commandments, this supreme principle must appear at the head of the system. Systematic logic, as distinct from essential logic, points precisely to the need to place this highest principle explicitly at the head of the commandment-system. It is the laying down of the point of departure for all the commandments that follow.
According to the suggestion we are making here, belief is not a commandment in the usual sense, and it would seem not even to be an explanatory clause. Yet from the standpoint of systematic considerations, it is very reasonable to place it at the head of Sefer HaMitzvot. This is another expression of the systematic considerations guiding Maimonides in constructing his count of the commandments. That is exactly how one would construct any respectable law code.
A proposal regarding priestly gifts
According to our approach—that Maimonides is guided by systematic and not only essential considerations—it may perhaps be suggested that separating terumah and giving it to the priest are, in essence, indeed two commandments even according to Maimonides, just as Nahmanides holds. The reason Maimonides nevertheless counts each pair in the class of produce-forbidding commandments as one commandment is that it is one procedure, and its place in the law code is not independent. There is no other place where we need the procedure of giving to the priest apart from separating the priestly due, and therefore Maimonides counts here only one commandment. In other words, here too the consideration is systematic and not essential.
Nahmanides’ distinction between separation and giving exists on the essential plane. Since there are two independent commands here from the essential standpoint, and their ideas and purposes are different, even if they appear as one course of action, they are nevertheless two commandments. Nahmanides, who as we have seen understands the system of commandments as essential, counts two commandments here. Maimonides, by contrast, who sees this system as having systematic significance, counts only one. But perhaps there is no need to say that Maimonides disagrees with Nahmanides as to the essential plane of these commandments.
The red heifer and the ritual bath
The picture described so far may shed light on another obscure point in Maimonides’ enumeration of the commandments. Whenever a person or object becomes impure, the Torah defines a procedure by which it may become pure. At first glance, the procedure of purification is also merely an explanatory clause, exactly like impurity. It contains no obligation or prohibition, but only defines how a person is purified from impurity and in what cases he does not succeed in becoming pure.
Now, two central components of the purification process are the ritual bath and the ashes of the red heifer, in the case of corpse impurity. Does Maimonides count them as independent commandments? It turns out that the procedure of preparing the red heifer is counted as a separate positive commandment, but the laws of the ritual bath are not. By contrast, in the Mishneh Torah we find separate law-collections for both subjects: the Laws of the Red Heifer, opening with two commandments—the law of the red heifer and the law of the waters of purification and their cleansing power—and the Laws of Ritual Baths, opening with one commandment: that every impure person immerse in the waters of a ritual bath and afterward become pure.
According to our proposal above, that the structure of Sefer HaMitzvot is derived from considerations involved in constructing the skeleton of the Mishneh Torah, we would have expected both topics to be counted in the enumeration of the commandments. Indeed, the commandment of the red heifer is a detail in the procedure of purification from corpse impurity only, whereas the ritual bath is needed for purification from all impurities. If so, the systematic logic we have encountered here would suggest that it is actually more reasonable to count the ritual bath as an independent commandment, since it appears as a component in many procedures, whereas the red heifer is a detail in only one.
One might perhaps explain that the laws of the red heifer are more complex, like all sacrificial procedures that Maimonides counts, and therefore require an independent exposition, whereas the ritual bath is basically simple—although it can become complicated in various situations, the ordinary ritual bath required for purification is fairly simple: forty se’ah of water. But if so, then even in the Mishneh Torah Maimonides should have included the laws of the ritual bath within the general laws of purification, rather than devoting to them a separate collection of laws.
One may respond in three main directions:
- There is in fact a command in preparing the heifer. That is, it is an ordinary commandment and not merely an explanatory clause. This would mean that the Torah really commands us to make a red heifer, and that it is not merely an instrument for purifying those defiled by the dead. This would seem to relate to the question of the essential nature of the red heifer: is it a sacrifice, belonging to the realm of consecrated things, or an ordinary procedure? See our essay on Parashat Shemini.
This might seem to emerge from Maimonides’ language in Positive Commandment 113:
The 113th commandment is that we were commanded to make a red heifer so that its ashes be ready for what is needed in purifying from corpse impurity, as He said, “And it shall be kept for the congregation of the children of Israel” (Numbers 19).
At first glance, there is here a commandment to make the heifer so that its ashes be ready. But on closer inspection it is not clear that he means a commandment here rather than a legal instruction explaining how the ashes are prepared. That is how the whole series of commandments from the laws of impurity and purification onward is framed. For comparison, consider again Maimonides’ language in Commandment 96:
The 96th commandment is that we were commanded that anyone who touches a carcass be impure.
Here too there is seemingly the language of command—”we were commanded”—but this is just Maimonides’ ordinary formulation. It proves nothing about the existence of an actual command, as he himself explains and clarifies in that very commandment.16
The conclusion is that there is indeed no actual commandment in making the red heifer.
- The difference is textual: there is an explicit command in the verse regarding making the heifer, but not regarding making a ritual bath.
But that is only an indication. The question immediately shifts to the Torah itself: why does the Torah command us about the red heifer and not about the ritual bath?
We must therefore move to the next possibility, which is really a continuation of the present one:
- There is a difference between the laws of the ritual bath and the laws of the red heifer. Strictly speaking, there are no laws of the ritual bath as such in Maimonides, unlike the laws of the red heifer. The laws of the ritual bath in Maimonides are laws of purification from impurity, not laws of the ritual bath itself. By contrast, the laws of the red heifer concern the act of preparing the heifer itself, and not only its use. Indeed, in that same context there is another commandment concerning the waters of purification, which render impure the one who deals with them if he was pure, and purify one who had corpse impurity. That commandment too is a definition and not an obligation, and it deals with the nature of the waters of purification rather than with our duties and prohibitions.
If so, the commandment of the red heifer is counted separately because Maimonides saw fit to detail the laws of burning and offering the heifer. So too with the preparation of the waters of purification, which he treats as another commandment. By contrast, there is no reason to count the ritual bath itself as a commandment, because there is no procedure here beyond the act of purification by immersion, and that is already counted in the enumeration of the commandments.
The ritual bath, by contrast, involves no independent procedure in its preparation, only different laws relating to immersion. Even a ritual bath that is invalid is not really a law about the bath; it simply means that the immersion is not valid. Therefore, in this case there is only a commandment to be purified by immersion in a ritual bath, with no separate commandment detailing the preparation of the bath.
One may therefore say that the commandment of the red heifer is a detail within the laws of purification from impurity. It is counted separately because of the need to detail the procedure, like all sacrificial commandments.
E. A Review of the Various Roots in Light of the Systematic Proposal
Introduction
The picture that emerged from the previous chapter presents something like a Copernican revolution in our understanding of Maimonides’ approach to the concept of “commandment” in general. The accepted view, which also follows from the literal meaning of the term, is that a commandment is a norm imposing some duty: either a positive or a negative command. By contrast, Maimonides seems to treat the term “commandment” as a synonym for “a clause in the law code.” Above we connected this to Maimonides’ methodological aim in counting the commandments, in contrast to the other early authorities who counted them for reasons different from his.
In this chapter we shall test this thesis about Maimonides’ method. We shall see that despite the clear sources supporting it, it raises serious difficulties for understanding his approach, and seems to be contradicted by other sources in his writings.
We already mentioned that this essay effectively concludes our discussion of the roots. Nothing is more fitting than to do so by examining the systematic thesis we have proposed, as distinct from an essential one, through a renewed review of the full set of Maimonides’ principles and arguments in the roots as we have encountered them thus far. That is the concern of this chapter and the next.
Maimonides’ words in the Eighth Root
As remembered, Maimonides opens the Eighth Root with the following definition:
Know that prohibition is one of the two parts of command. For you command the one being addressed either to do some act or not to do it. Thus you command him to eat and say to him, “Eat,” or you command him to refrain from eating and say to him, “Do not eat.” There is no term in Arabic that includes both these meanings together. The logicians have already mentioned this and said that command and prohibition have no single term in Arabic that includes them both, and therefore we were compelled to call both by the name of one of them, namely command. It is thus clear to you that prohibition belongs to the category of command. The well-known Arabic word denoting prohibition is the word “do not.” And the same is certainly true in every language: you command the one addressed to do something or not to do it.
It is therefore clear that positive commandments and negative commandments are both full commands: things He commanded us to do, and things He warned us not to do. The name of those He commanded us to do is positive commandments, and the name of those from which He warned us is negative commandments. The term that includes them together in Hebrew is decree. Thus the sages called every commandment, whether positive or negative, a royal decree.
At first glance, the last passage teaches that a commandment always commands us to do something or not to do something. For that reason, mere negation of an obligation is not counted among the commandments, because it does not command us anything. We expanded on this in our essay there.
These words seem to conflict with what we have argued here. In the present root, the term “commandment” appears to be broader. It is a unit within the methodological skeleton of Maimonides’ project, and it does not necessarily command us to do anything. If so, why are mere negations of obligation not included in the count of commandments? Even if they contain no command, they are still part of halakhah.
As we already noted there, in cases of mere negation there are usually two reasons not to count them:
1. They contain no command.
2. They are included as a detail within another counted commandment.
The second reason does not conflict with what we have said here, but our conclusion there was that Maimonides also intended the first reason.
However, when we look at the examples brought there, the answer seems obvious. For example, the verse “She shall not go out as male slaves go out” teaches that a Hebrew maidservant does not go free through loss of a limb. Here there is no clarification of a concept, and no specification of a procedure. It is merely the rejection of an initial assumption that one might have learned by argument from a Canaanite maidservant. Once that assumption is rejected, there remains no law here at all, and therefore there is nothing to count in the commandments.
Thus, the reason mere negations are not counted is not that they contain no command or warning, but that they contain no legal content at all. Those verses came to reject laws we might have thought were true, not to teach any law.
Maimonides’ words in the roots of duplication and classification
In the Fourth Root, Maimonides states that one should not count commands that encompass the whole Torah. There we asked whether this principle means that there are no such commands at all, or whether it is merely an organizational principle—”systematic,” in our current terminology—meaning only that they should not be included in the count of commandments, even though on the essential plane they are indeed positive and negative commandments.
From Maimonides’ language there, it seems that this is a systematic and not an essential principle:
That one should not count commands that encompass the whole Torah. There come in the Torah commands and warnings that do not concern a particular indicated matter, but include all the commandments, as though saying: do all that I commanded you to do, and beware of all that I warned you against… There is no point in counting this as a commandment in itself, for it does not command the doing of a specific act that would make it a positive commandment, nor warn against doing a specific act that would make it a negative commandment…
Maimonides says that these are commands like any other, but since they do not specify particular acts, they are not counted separately.
Similar principles appear in the roots of duplication, the third category, especially in the Ninth Root. That root states that commandments repeated several times in the Torah are not counted multiple times, unless there is both a positive and a negative command, as explained in the Sixth Root. In both the Fourth and the Ninth Roots we asked whether Maimonides means that there are no separate commandments here at all, or whether he means that they are indeed commandments in every sense, but are not counted in the enumeration of the commandments—in which case there could still be implications, for example, regarding whether prohibitions are overridden by positive commandments. The first consideration is essential, the second systematic.
Our conclusion there was that in most cases there are no separate commandments here at all, meaning that these are essential principles and not merely systematic ones. That, of course, does not contradict anything we have said here, since obviously what is not a commandment will not be counted even if the count is systematic rather than essential.
On the other hand, we encountered several times the example of interest and increase, concerning which the Talmud and Maimonides following it determine that these are two commandments, even though there is no practical difference between them. Therefore Maimonides brings only one prohibition in the count of the commandments, not two. In that case the consideration is openly systematic, since as a heading for a section of the Mishneh Torah there is certainly no point in including both prohibitions, even though they are two distinct prohibitions; as we noted, their purposes and ideas are also different. Yet there is no point in making them two separate headings, since all the laws included under one would also be included under the other.
Still, one may ask why, when the two commandments are a positive and a negative command, Maimonides insists that they be counted separately, as in the Sixth Root. At first glance, there too there is no practical difference, only a conceptual one. But that is not correct, since there is a practical and legal difference between a positive and a negative commandment, and therefore Maimonides must indicate that both are present, even if the arrangement is determined by systematic rather than essential considerations. This is not like the case of two prohibitions or two positive commandments with overlapping content.17
The roots of time
In the second category we encountered principles stating that one should not count commandments according to the number of days on which they apply, and that one should not count temporary commandments. The first is a clearly systematic root, for it is obvious that on each day we are obligated in the recitation of the Shema and the daily offering, and in the additional offerings of the festivals. Yet these are not counted multiple times, because of the systematic consideration that there is no point in counting the same commandment with the same details merely because it applies on several days. This too is a root dealing with sorting and classification, and therefore what we said above applies here as well.
The Thirteenth Root deals with temporary commandments. We saw there that commandments that are not eternal are not counted. The reason is both essential and systematic. Commandments that do not impose ongoing legal obligations upon us are not counted. Indeed, even in the Mishneh Torah, though it treats laws that do not apply in our time, it does not treat temporary laws. It therefore follows that in Sefer HaMitzvot, which is the skeleton of the Mishneh Torah, such commandments will not appear either.
Root Eleven
At first glance, there do seem to be commandments counted separately on essential grounds rather than systematic ones. For example, in our essay on Root Eleven we dealt with the commandments of tefillin and fringes. We saw there that according to Maimonides the commandment of tefillin is divided into two parts—arm and head—whereas the commandment of fringes is counted as only one commandment, the blue thread and the white threads together.
From the standpoint of arrangement, one would certainly have expected Maimonides to include the two tefillin in one place, and therefore to count them as one commandment. The two always appear together, and neither has any independent significance in any separate practical context. Indeed, in the Mishneh Torah, the collection of laws concerning tefillin deals with both commandments together.18 If so, this would seem to be an essential and not a systematic consideration.
In Root Eleven, Maimonides distinguishes between two kinds of command-pairs that do not prevent one another. The distinction is made in light of the purposes and tendencies of those commandments, and of how those purposes are achieved. That is how we also explained the distinction between fringes and tefillin.
More generally, we may put it like this: in our essay on Root Eleven, we noted that Maimonides is engaged there in making generalizations and identifying causal connections between commandments. We explained that this approach is based on essentialism, that is, on a conception of commandments as having essences and on confidence in our ability to reach those essences. But all of this points to an engagement with essence and not with method. Systematic considerations are supposed to remain closer to the facts and less dependent on reasons and purposes. Generalizations are based on finding essential connections between commandments, and if such considerations determine their enumeration, then the count expresses essence and not merely order and method.
The roots of classification and the first roots
Throughout the roots of sorting and classification, we used the principle that emerges from combining the two halves of the Ninth Root: every counted commandment must have two things:
1. A special verse commanding it.
2. A unique content.
Now, if the considerations are fundamentally systematic, meaning that the goal is to create a skeleton for the Mishneh Torah, it is not clear why a special verse is needed. If the content is unique, it should serve as an independent heading in the Mishneh Torah and therefore also as an independent commandment in Sefer HaMitzvot. Put differently: a general prohibition embracing several cases, discussed in the second part of the Ninth Root, should have been counted as several different commandments even though all the warnings are learned from one verse. After all, they contain different contents, and they do indeed appear in different law-collections within the books of the Mishneh Torah.
It is quite clear that this requirement stems from Maimonides’ principled view, as we saw in our essay on the Second Root, that a commandment lacking an explicit command—not merely one learned by exposition—is not regarded as a full Torah commandment. It is a commandment for which we have no explicit warning. Thus, although Maimonides sees the commandments as the skeleton of the Mishneh Torah, he insists that they be only Torah commandments that appear explicitly and separately in the Torah. There is here a conception according to which the Torah’s commandments constitute the skeleton of the whole halakhic system, and therefore the skeleton will include only commandments that are genuinely Torah-based.
So the roots of the first category now join the overall picture as well. These roots seemingly deal with the legal force of commandments; they state that one does not count rabbinic commandments, decrees, and enactments, nor commandments learned only through exposition. We now see that the status of “from the Torah” has not only legal significance but also methodological significance: only if it is Torah law can it constitute a unit in the halakhic skeleton. In this respect, the familiar metaphor of the commandments as the limbs and sinews of the body gains additional meaning. To be from the Torah is not a sufficient condition for being a counted commandment, but it is a necessary one. A commandment that is not from the Torah does not belong to that skeleton. True, commandments that are from the Torah do not necessarily belong there, since they may be included in other commandments, or duplicated by them, or combined with them into a broader whole.
Methodological difficulties
At this point we can understand several further aspects of the systematic proposal. At first glance, according to this proposal it is very hard to understand why Maimonides needs Rabbi Simlai’s statement at the end of Tractate Makkot. In the plain sense, Rabbi Simlai counts the commandments on the essential plane. When he says that there are 613 commandments, he does not mean that the halakhic skeleton contains 613 bones, but that in essence there are 613 different commandments. If Maimonides counts the commandments on methodological-systematic grounds, there is no reason in the world why his count should coincide with the essential count. Why assume that the number of headings in a halakhic code coincides with the number of commandments counted on essential grounds?
Moreover, Maimonides attacks Bahag on the basis of close readings of Rabbi Simlai’s statement and of other midrashic passages. For example, at the beginning of the First Root he attacks Bahag for counting rabbinic commandments on the basis of Rabbi Simlai’s language, which speaks of the commandments “given to Moses at Sinai.” But if the issue is really a systematic one, what does Rabbi Simlai’s statement have to do with it?
Similarly, at the beginning of the Third Root, Maimonides proves from Rabbi Simlai’s wording that only commandments given to us for the generations are meant, “an inheritance.” There too he adds proof that temporary commandments are not to be counted, from the language of the midrash:
Their statement also, that each limb is as though it commands a person to perform a commandment, and each day as though it warns him against a transgression, is proof that this number can never diminish. For if commandments that do not apply for all generations were included in the count, then this total would diminish at the time when the obligation of that commandment ceased, and this statement would not be correct except for a limited period.
Yet this is a clearly essential midrash. It explains that the number of commandments corresponds to the limbs of the body, each commandment corresponding to one limb. According to Maimonides, that may perhaps be the essential number—the number of commandments distinct from one another on the essential plane—but the number generated by systematic considerations could be entirely different.
More broadly, it is not clear why Maimonides troubles himself to argue with Bahag and other enumerators of the commandments. On the surface, he is not really disputing them at all. They are counting the essential commandments, while he is looking for headings that will serve as the basis for his legal skeleton. Why should he assume that those two counts ought to coincide? Why does he see a disagreement between himself and them? And even if he disputes them on the essential plane, why should that affect his own count, which is supposedly arranged on purely systematic grounds?
To sharpen the point, let us put it this way: Maimonides counts the commandment to rule concerning corpse impurity, creeping-creature impurity, and so on. Someone counting essential commandments would not include these in his count. If so, there is no reason he should not include other commandments in their place. The same applies to sacrificial procedures and the other explanatory clauses discussed above.
Conclusion
All these considerations show that Maimonides cannot be basing his entire system of commandments on systematic considerations alone. Considerations of essence must also occupy an important place in constructing the system of commandments. His structure is evidently composed of both types of considerations together.
As we suggested above, Maimonides sees the 613 Torah commandments as the bones of the halakhic skeleton. He apparently identifies the essential count with the systematic count. He probably assumes that Rabbi Simlai’s count ought to overlap with his own, despite their different aims. If so, the fact that a given commandment is distinct in essence means that it probably also constitutes a principal category or heading for a collection of laws in the systematic sense. The converse, however, is not necessarily true: what serves as a heading is not always a Torah commandment in the essential sense, as with all the procedural commandments, or with “I am the Lord your God,” which above we suggested might be understood as a ceremonial declaration at the opening of Sefer HaMitzvot.
This conclusion may explain why Maimonides derives fine points from the wording of the sages concerning the count of the commandments. We already quoted in our essay on Root Eleven Nahmanides’ attack on him in this regard:
It is astonishing on the Rabbi’s part: if according to this Mekhilta the blue and white do not prevent one another, for what purpose did the Tanna there teach “one commandment” and not “two commandments”? Did this Tanna now come to count the 248 positive commandments and teach us that we should include the matter of fringes in our reckoning only as one commandment? Such an error is not fitting.
According to Nahmanides, the sages were not discussing the counting of the commandments at all. Therefore, when the sages speak of “two commandments,” one cannot infer from this that two separate commandments should be counted. Maimonides, by contrast, apparently assumes that the sages were speaking in a way relevant to this issue, and therefore he brings proofs from their language.
Nahmanides argues that if the counting of the commandments is a technical matter, and especially if it serves only as the skeleton for the Mishneh Torah—having no significance in itself, as we saw above in the approaches of the Vilna Gaon and Maimonides, and as we also saw at the beginning of Nahmanides’ glosses to the First Root—then there is no room at all to learn anything about that count from the words of the sages. The sages dealt with legal and essential questions, not with the methodology of counting commandments and constructing law codes.
Maimonides, by contrast, apparently assumes that there is a connection between the planes: if the sages said that there are here two different commandments, then that ought probably to find expression in the count of the commandments as well.19 Essence is a cornerstone even of the systematic consideration, though the reverse is not necessarily true.
Elegance and truth: a scientific and religious approach
We arrive at the conclusion that Maimonides sees a kind of “mystical” connection between considerations of essence and systematic considerations. One way or another, it emerges that considerations of essence and considerations of system lead to the same enumeration of the commandments. Let us note briefly that this parallels an issue in the philosophy of science.
As is well known, one of the criteria for choosing a scientific theory to explain a body of facts is the elegance of the theory. Many have asked why the degree of elegance of a theory should be connected to its degree of truth. At first glance, elegance is a result of the structure of our thought, and a being with a different kind of thought would see a different theory as more elegant and simple. Truth, by contrast, is something objective, connected to reality itself. Why, then, should considerations of elegance lead us to conclusions about truth?
From this claim, some have reached the false conclusion that scientific theory says nothing about the world at all and is merely a subjective human fiction. On that suggestion, a simple and elegant theory is only a descriptive scheme we adopt, for reasons of convenience and efficiency, in relation to a set of facts. For example, on this suggestion there is no objective force of gravity in the world. That term was simply invented in order to streamline the description of the facts we observed—that balls fall to the earth, as do chairs, stones, spacecraft, and so on.
In the appendix there, we noted that a similar dilemma arises in interpretation, and there Maimonides rejects this completely. That is, he sees a correspondence between the structure of our thought and the world, or the Torah. Therefore, what appears to us to belong together probably really belongs together. And therefore the generalizations and causal connections we make are supposed to fit objective reality.
Here we see a very similar conception. Maimonides sees a connection between subjective considerations of arrangement, which arise from our thinking and not from the halakhic-Torah material itself, and the objective essence of halakhah and Torah as they are in themselves.
This topic is discussed at length in the quartet by M. Avraham, especially in the second volume, Et Asher Yeshno Ve-Asher Einenu, and therefore we shall not elaborate on it further here.
Footnotes
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It is important to stress that the terminology “our agents” and “agents of Heaven” used here is not precise. There is probably no dispute about the practical ruling in the Talmudic debate concerning the nature of the priests’ service. The dispute here concerns only how to conceptualize these commandments for the purpose of counting the commandments, and this is not the place to elaborate. We use the terminology only to sharpen the differences between the various early authorities. ↩
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See on this Rabbi A. Z. Halevi Rabinovitch, Ha-Mitzvah Veha-Mikra, p. 50. We thank his son, Rabbi Moshe Rabinovitch, for the book. ↩
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In our essay on the Seventh Root we already discussed the conceptions underlying these approaches. We saw there that Maimonides is a rationalist, relying on our generalizations, and therefore there he includes several details that appear separately in the Torah within a single commandment. Others, by contrast, are empiricists, adhering to the bare facts without human processing. There are two ways to do this: either to treat the whole complex as one unit, or to treat every detail written in the Torah as an independent commandment. What both directions share is that human processing plays no role in the enumeration of the commandments. In the present essay we propose an interpretation from a different angle, along the axis of systematicity versus essentiality. ↩
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If indeed the completion of the commandment were the giving, then we should not recite a blessing on the separation, according to the rule accepted by us in Babylonian Talmud, Menahot 42b: “Any commandment whose performance is not the completion of its act, such as tefillin, does not require a blessing.” ↩
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See M. Avraham’s article in Tzohar 28, “Commandment, Reason, and the Will of God,” where he distinguishes terumah from the other priestly gifts. The implication of that distinction is that terumah is a category of its own: there are commandments involving previously forbidden produce, where there is both rectification of the produce and giving to the priest; there are commandments not involving such produce, where there is only the commandment of giving to the priest; and there is terumah, where according to Maimonides there is no commandment at all to give to the priest, but only to rectify the forbidden produce. ↩
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The rule requiring salting of sacrifices is exceptional in this respect, since it does look like one detail within the sacrificial procedure. Even there, however, one might interpret it this way, because anyone examining Maimonides’ language in Positive Commandment 62 will see that he writes, “the commandment to offer salt with every sacrifice,” meaning that the commandment is not to salt the sacrifices but to offer the salt together with them. This wording points to an independent commandment accompanying the sacrifice, not a part of the sacrificial commandment. If so, it can be interpreted like the other details Maimonides counts separately. Below we shall see that for our purposes here there is no need for this distinction, although in general it may well be the correct understanding of the law of salting sacrifices. ↩
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True, the examples Maimonides gives of such general clauses are not all necessarily complex. The prohibition of offering a blemished animal is certainly complex and requires an independent explanatory clause. Such a clause would explain which blemishes are relevant and what is done when such a blemish arises in each type of sacrifice. By contrast, the obligation to salt, or the prohibition of offering an animal before the eighth day, do not seem to be complex clauses. Could one not simply include the prohibition of offering an underage animal within each sacrificial commandment? Here perhaps one may invoke the consideration that these commandments have independent essential content. The prohibition of offering an underage animal is not part of the sacrificial procedure, and therefore there is no point in writing it separately within every such procedure. Even though it is simple, it is clear that systematically—and perhaps essentially as well—it should appear in a separate clause, whether explanatory or a commandment proper. The same applies to the commandment to salt sacrifices, as explained in the previous note. Waving or burning, by contrast, are actions that form part of the sacrificial procedure, and therefore they should appear within the description of that procedure. Once the command to wave appears in the course of the procedure, there is no further point in opening a separate explanatory clause for it. Perla’s question thus falls away. ↩
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Moshe Halbertal, in his article “Maimonides’ Sefer HaMitzvot: The Architecture of Halakha and Its Theory of Interpretation,” Tarbiz 59 (1990), p. 457, also noted the meaning and role of the commandments as an organizing category in Maimonides’ legal thought. He did not, however, address the implications for the counting of the commandments discussed here and below. ↩
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One should remember Nahmanides’ hesitation at the beginning of his glosses to the First Root whether the general count of the commandments has any significance at all, and whether the number 613 should be treated as binding. From his point of view, the enumeration has no methodological purpose, and it is doubtful whether it has any purpose at all. In the introductory essay we cited a tradition that the Vilna Gaon did not engage in the enumeration of the commandments at all, apparently for precisely this reason. ↩
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The practical significance lies mainly with respect to the totality of the commandments. Since we know their overall number, this has implications for removing and adding commandments from the count, and in that way practical differences will arise. See Perla’s remarks cited in the introductory essay. ↩
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See on this Yohanan Breuer, “The Prohibition of Impurity in the Torah,” Megadim 2 (Marheshvan 1986), pp. 45-53. See also Rabbi Aharon Lichtenstein’s introduction to his lectures on the order of Tohorot. ↩↩
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One might perhaps have said that the laws of bailees too are merely a specification of the prohibition “You shall not steal,” since one who unjustly holds money is not its owner and therefore is guilty of theft. ↩
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Some understood it this way in the Taz on Yoreh De’ah 19:17, but this is not necessary. ↩
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Even according to those views, one can still say that betrothal involves a command-act in a broader sense, as we find at the beginning of chapter 2 of Kiddushin that it is better to perform the betrothal personally than through an agent. The blessing recited on betrothal also points in that direction. But for most views there is no ordinary Torah positive commandment here. ↩
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For an explanation of the view of Sefer HaHinukh, see our essay on Parashat Ki-Tetzei. ↩
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Perhaps one should distinguish between “He commanded us to do,” which is a real command, and “He commanded us to be,” which is only a definition or explanatory clause. ↩↩
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One might have objected that even in the case of two prohibitions, such as interest and increase, there is a legal consequence, and therefore Maimonides should have counted ordinary duplications as well. But this seems resolved if we remember that Maimonides’ view—against all the other early authorities, as he himself writes in Sefer HaMitzvot—is that when there is a duplicated prohibition, one is not flogged twice for it, even where the sages said he transgresses two prohibitions. See our essay on the Ninth Root, part 1. If so, according to Maimonides the multiplication of prohibitions has no legal consequence at all, and therefore the systematic consideration determines that they should not be counted. An essential consideration could have led to the conclusion that such commandments should be counted, unless the repetition is not a normative duplication—where legally there are two commandments—but only a textual duplication, where the Torah repeats the same commandment twice. ↩
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Though there are quite a few law-collections that detail several different commandments on the same subject. Above we mentioned the Laws of the Red Heifer, which detail two commandments. The Laws of the Foundations of the Torah also detail several commandments relating to that subject. In that sense, perhaps the inclusion of both tefillin commandments in one collection is no different from those examples. ↩
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See, however, our previous essay on the Eleventh Root, where we saw that Maimonides does not necessarily disagree with this. It is quite possible that his inferences are drawn from the content of the sages’ words and not from the mere linguistic fact that they referred to a pair of actions, as in the case of tefillin, as “two commandments.” ↩