Lesson 51: Ki Tavo

From the book Mida Tova: Articles on the Principles of Halakhic Thinking by Rabbi Michael Avraham. Translated from Hebrew using gpt-5.4 (reasoning_effort=high, batch API).

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With God’s help

Concepts

• Essentialism and conventionalism in halakha (Jewish law), and more generally.
• Essential and accidental detail. Substance and accident.
• Different kinds of relationships between commandments.

Summary

In this week’s essay we deal with the relationship between the recitation over the first fruits and the bringing of the first fruits. The halakhic discussion raises several possible ways of understanding that relationship: is the recitation over the first fruits a detail within the commandment of bringing them, or is it an independent commandment whose performance is merely timed to coincide with the bringing?

After examining several halakhic implications of these different conceptions, we move to a more general discussion of the relationship between a detail and a commandment, and between different commandments.

We distinguish between details that are accidental characteristics of the commandment that contains them and details that are essential characteristics of it. We explain that the distinction between the accidental and the essential cannot really be justified by argument, but it is certainly not arbitrary. It seems to arise from a kind of observation of halakha, and not only from reflection about it.

Finally, we discuss the relationship between closely related commandments, and distinguish between several kinds of such relationships: there are pairs that together form a single whole, such that each part has no value on its own. There are pairs that share a common purpose, but each achieves it only partially. There are pairs in which each has independent value that does not depend on the other. And there are pairs in which the value of each depends on the existence of the other. Through these distinctions we explain the disputes between Maimonides, Nahmanides, and BeHaG regarding the principle discussed in Maimonides’ eleventh root.

The First-Fruits Declaration

A Look at the Distinction Between Essential and Accidental Law

Introduction

In this week’s essay we will discuss the nature of the commandment of the first-fruits recitation, or declaration, and its relationship to the commandment of bringing the first fruits. We will see that one can regard the recitation as part of the commandment of bringing them, or as an independent commandment whose performance merely takes place at the time of bringing them. From there we will move on to examine the question of two different kinds of relationship between pairs of commandments.

A. The Relationship Between the First-Fruits Recitation and Bringing the First Fruits

The Commandment of Reciting the First-Fruits Declaration

At the beginning of the portion, the Torah commands us to set aside first fruits and, at the time of bringing them, to recite the first-fruits passage, quoted there in full (Deuteronomy 26:1-11):

And it shall be, when you come into the land that the Lord your God gives you as an inheritance, and you possess it and dwell in it, that you shall take from the first of every fruit of the soil that you bring in from your land, which the Lord your God gives you, and put it in a basket, and go to the place that the Lord your God will choose to make His name dwell there. You shall come to the priest who will be in those days and say to him: “I declare today to the Lord your God that I have come to the land that the Lord swore to our fathers to give us.” The priest shall take the basket from your hand and place it before the altar of the Lord your God. And you shall answer and say before the Lord your God: “An Aramean sought to destroy my father, and he went down to Egypt and sojourned there, few in number, and there he became a great nation, mighty and numerous. The Egyptians dealt harshly with us, afflicted us, and laid hard labor upon us. We cried out to the Lord, the God of our fathers, and the Lord heard our voice and saw our affliction, our toil, and our oppression. The Lord brought us out of Egypt with a strong hand and an outstretched arm, with great awe, with signs and with wonders. He brought us to this place and gave us this land, a land flowing with milk and honey. And now, behold, I have brought the first of the fruit of the soil that You, O Lord, have given me.” Then you shall place it before the Lord your God and bow before the Lord your God. And you shall rejoice in all the good that the Lord your God has given you and your household, you, the Levite, and the stranger who is among you.

The commandment to bring the first fruits is counted by most enumerators of the commandments in Parashat Mishpatim. The main point in our portion is the commandment of reciting over them. Nevertheless, the enumerators of the commandments included both commandments in their lists: bringing the first fruits and reciting the declaration over them. At first glance this implies that these are two distinct commandments, and that is why they are counted separately. On the other hand, as we shall see, there is a connection between them, and that once again raises the question why they are counted as two.

The Relationship Between the Two Commandments

Nahmanides mentions the commandment of recitation in his discussion of the blessing over Torah, in his additions to Maimonides’ positive commandments, commandment 15. He writes:

Commandment 15: We were commanded to give thanks to His blessed name whenever we read Torah, for the great good He did for us by giving His Torah to us and making known to us the deeds that are pleasing before Him, through which we inherit the life of the world to come. And just as we were commanded regarding blessing after all eating, so too we were commanded regarding this… From all this it becomes clear that this blessing is from the Torah. It should not be counted as one commandment together with the reading, just as the recitation of the first fruits is not counted together with bringing them, and the telling of the Exodus from Egypt is not counted together with eating the Paschal offering.

Nahmanides needs this argument in order to answer the question why the commandment of blessing over Torah is not counted together with Torah study, or with Torah reading. He explains that this is exactly like the telling of the Exodus together with eating the Passover sacrifice, and like the recitation over the first fruits together with bringing them. Nahmanides brings examples, but even in those examples it is not at all clear why they are counted separately. He also does not explain what the connection is between those examples and the question he himself is discussing.

In all three cases there is a commandment to say something alongside the performance of a practical commandment. Moreover, in all three cases the verbal obligation supplies content and meaning to the practical commandment.¹ Nahmanides argues that in all three cases the verbal commandment is not a detail within the practical commandment, but an additional commandment whose timing is the moment of performing the practical one. Although one might have distinguished between the cases, Nahmanides assumes that one can infer from the latter two to the first. He apparently sees, in all three cases, a connection between the two components of the pair, and because that connection is similar in all three, one can learn from the latter two to the first.

By contrast, Maimonides writes in positive commandment 132:

The 132nd commandment is that He commanded us to recount His benefits, which He bestowed upon us and by which He saved us, beginning with the matter of our father Jacob and ending with the labor of Egypt and their affliction of us, and to praise Him for all this and ask Him to continue the blessing when one brings the first fruits. This is what He, exalted be He, said: “And you shall answer and say before the Lord your God: ‘An Aramean sought to destroy my father,'” and everything that follows in that entire passage. This commandment is called, in the Mishnah, Sotah 7:2-3, the recitation of the first fruits. Its laws have already been explained in Tractate Bikkurim and in the seventh chapter of Babylonian Talmud, Sotah 32a and 33a. Women are not obligated in it.

From Maimonides’ wording it appears that the commandment to recite the first-fruits declaration is not directly connected to the commandment of bringing the first fruits. It appears from his words that this is an independent commandment: to thank the Holy One and recount His benefits. Bringing the first fruits is merely the occasion for this recitation, but has no direct connection to the commandment of recitation itself. That is why Maimonides begins by defining a duty to thank and praise, and only after detailing the parameters of the commandment, beginning with Jacob our father and concluding with the oppression in Egypt, does he return and state that this is to be done when one brings the first fruits.

Clearly, according to this approach, there is no room at all to learn from the recitation over the first fruits and the telling of the Exodus to the blessing over Torah. If, in the first case, there is no connection between the two commandments, that says nothing about whether there is a connection in the other two examples. Nahmanides, who does learn from one example to another, apparently understands that there is indeed a connection between the commandments, and yet for some reason they must still be counted separately. That is something he can learn from one example to the others.

Another Example: The Order of the Temple Service

In Parashat Aharei Mot, the Torah describes the order of the Yom Kippur service. But a closer look at the structure of the section shows that Yom Kippur is not mentioned at all at the beginning of the chapter (Leviticus 16:1-5):

And the Lord spoke to Moses after the death of Aaron’s two sons, when they drew near before the Lord and died. And the Lord said to Moses: “Speak to Aaron your brother, that he not come at all times into the Sanctuary inside the curtain, before the ark cover that is upon the Ark, lest he die, for in a cloud I appear upon the ark cover. With this shall Aaron come into the Sanctuary: with a young bull for a sin offering and a ram for a burnt offering. He shall put on the holy linen tunic, and linen breeches shall be upon his flesh; he shall gird himself with a linen sash and wrap himself in a linen turban; they are holy garments. He shall bathe his flesh in water and then put them on. And from the congregation of the children of Israel he shall take two male goats for a sin offering and one ram for a burnt offering.”

In the context of the death of Aaron’s sons, who drew too close to God, the Holy One instructs Moses how one may enter the Sanctuary without dying. The explicit description of the High Priest’s service then begins, and only toward the end of the chapter does the Torah conclude (ibid. 16:29-31):

And this shall be for you an everlasting statute: in the seventh month, on the tenth day of the month, you shall afflict yourselves and do no work, neither the native nor the stranger who sojourns among you. For on this day atonement shall be made for you, to purify you; before the Lord you shall be purified from all your sins. It is a sabbath of complete rest to you, and you shall afflict yourselves; it is an everlasting statute.

Only here does the Torah command that every year we perform this order on Yom Kippur. It repeats this again afterward, at the end of the chapter:

And this shall be for you an everlasting statute: to make atonement for the children of Israel for all their sins once a year. And he did as the Lord commanded Moses.

The obvious conclusion from this structure is that the order of service described in Parashat Aharei Mot is not, in its essence, the order of the Yom Kippur service, but rather the correct procedure for entering the Sanctuary. In addition, there is a commandment to enter the Sanctuary once a year, on Yom Kippur, and therefore Israel performs this order every Yom Kippur.

Here too there seems to be an essential connection between this service and the specific day on which it is performed. But the structure of the passage hints that the connection is not essential. This order has an independent status, and Yom Kippur is merely the occasion on which we are required to do it. Indeed, it is commonly cited in the name of the Vilna Gaon that if one wished to enter the innermost sanctuary on another day of the year, not necessarily on Yom Kippur, one could perform this order and then enter.

Similarly, the conclusion that follows from Maimonides’ conception of the first-fruits recitation is that, in principle, one could thank the Holy One and recite this passage on another occasion as well. In practice we do so on Passover night, in the reading of the Haggadah. In principle, then, we fulfill this commandment even without bringing the first fruits. Of course, the timing here is indispensable, but that is a side law: this passage is to be recited only at this time. It is not necessarily a determination of an essential connection.

Comments on Maimonides’ Approach

In the introduction to the Laws of First Fruits, Maimonides writes:

The laws of first fruits, together with the other priestly gifts that apply throughout the land, contain nine commandments: eight positive commandments and one negative commandment. These are the details: (1) to set aside first fruits and bring them to the Temple; (2) that a priest not eat first fruits outside Jerusalem; (3) to recite over them.

From this it appears that the commandment is “to recite over them,” that is, the commandment of recitation is part of the commandment of bringing the first fruits. Furthermore, the laws of the recitation are included in the Laws of First Fruits, which suggests that they are part of the process of bringing them. Still, this can be understood technically: the Laws of First Fruits contain everything that is done within the framework of the bringing of the first fruits, and Maimonides did not want to devote a separate code of laws to the recitation of the first fruits. That does not necessarily mean that there is an essential connection between the two.

In Sefer HaHinukh, the connection appears even clearer. The heading of commandment 606 is “The commandment of reciting over the first fruits.” So too it seems, though not necessarily, from the beginning of his discussion there:

We were commanded that when we bring the first fruits to the Temple, we recite over them these verses mentioned in this section…

If so, it is possible that even according to Maimonides there is some connection between the first-fruits recitation and the bringing of the first fruits. This also seems to emerge from the wording of the Torah itself, since in the verses the recitation appears as an organic part of the process of bringing the first fruits. By contrast, the wording in Parashat Aharei Mot is different, and there it clearly appears that there is no essential connection between the order of service as preparation for entering the Sanctuary and its timing, namely Yom Kippur.

Perhaps Maimonides does not completely sever the commandment of recitation from the commandment of bringing. His claim may be that there is a connection between them, but the recitation is not an essential part of the bringing. It is an external rather than an internal connection.

Let us note that at the end of chapter 3 of the Laws of First Fruits, Maimonides writes:

Thus you find that the first fruits require seven things: bringing them to the place, a vessel, recitation, sacrifice, song, waving, and remaining overnight.

But at the beginning of chapter 4 of the Laws of First Fruits, Maimonides writes:

Everyone who brings first fruits requires sacrifice, song, waving, and remaining overnight, but the declaration is not the same in all cases, since there are those who are obligated to bring first fruits and yet do not recite over them.

That is, among the five laws mentioned here, four are required in every act of bringing first fruits, but the declaration is not necessary in every case. There are situations in which there is bringing without a declaration. This fits very well with his conception that the recitation and the bringing are not details of one commandment but two different commandments. Therefore the bringing can take place even without recitation, unlike the other laws, which are details in the performance of the commandment of bringing the first fruits.

It should be noted that Maimonides does not write that the declaration is never indispensable; he says only that it is not always obligatory. In situations where it is obligatory, it may still be indispensable.² We will discuss this in more detail in the next chapter.

B. Halakhic Implications

Introduction

At the end of the previous chapter we mentioned that Maimonides writes, at the beginning of chapter 4, that the first-fruits recitation is not always obligatory, since many people bring but do not recite. Who are those who cannot recite? Maimonides specifies them in halakha 2 and later in the chapter:

These bring but do not recite: a woman, a person of indeterminate sex, and an androgynous person, because they are possibly female and cannot say, “which You have given me, O Lord.” Likewise guardians, a slave, and an agent, since they cannot say, “which You have given me, O Lord.”

This too apparently indicates that the recitation is not an essential part of the bringing. Accordingly, we would expect that the first-fruits recitation would not be an indispensable component of the commandment of bringing the first fruits. Yet on the other hand, we do find in halakha, and as we shall see below, Maimonides also rules this way, that sometimes the recitation does indeed impede.

First Fruits Set Aside Before the Festival and Brought Afterward

The basis of the matter is the sugya in Babylonian Talmud, Makkot 18b, and see also the parallel in Babylonian Talmud, Bava Batra 81b:

Rabbi Elazar said in the name of Rabbi Hoshaya: With regard to first fruits, placing them down is indispensable, but recitation is not indispensable. But did Rabbi Elazar really say that? For Rabbi Elazar said in the name of Rabbi Hoshaya: If one set aside first fruits before the festival and the festival passed over them, they must rot. Is that not because he can no longer recite over them? And if you say that recitation is not indispensable, why must they rot? In accordance with Rabbi Zeira, for Rabbi Zeira said: Anything fit for mixing, the lack of mixing does not invalidate it; but anything not fit for mixing, the mixing does invalidate it.

If so, one who set aside first fruits before the festival and brought them after the festival must let them rot, because the recitation is indispensable in their case. Why can they not be recited over after the festival? Rashi there explains this in light of the Mishnah, Bikkurim 1:6:

First fruits: before the festival they are fit for recitation; after the festival they are not fit for recitation, for it is written after the recitation, “And you shall rejoice in all the good.” From Shavuot until the festival, which is the season of joy at the gathering of fruits, one brings and recites. From the festival until Hanukkah one brings and does not recite.

That is, after the festival he brings and does not recite, because it is no longer the time for recitation. Therefore, if he set aside the first fruits before the festival and brings them after it, these are first fruits that incurred the requirement of recitation. When he brings them he can no longer recite over them, and therefore this becomes indispensable; they are not eaten like ordinary first fruits, but are left to rot.

From Rashi it emerges that if the first fruits were not set aside before the festival, but everything was done afterward, he indeed brings them and does not recite. In that case he does not need to let them rot.

The conclusion is that, even according to practical halakha, the first-fruits recitation is not indispensable in every case. Therefore, if there are first fruits that incurred recitation and he did not recite, that omission does not itself invalidate them. But if he brings them at a time when he cannot fulfill that obligation at all, then they are disqualified and must rot.

Explanation: “Anything Fit for Mixing”

It seems that this is what the Gemara there explains, on the basis of the well-known principle concerning the mixing of meal offerings: whatever is fit for mixing is not invalidated by the lack of actual mixing, but when it is not fit for mixing at all, the mixing becomes indispensable. The meaning is that if the meal offering can in principle be mixed, then one may bring it even without actually mixing it; the mixing is not indispensable. But in situations where it cannot be mixed at all, the inability to mix invalidates the offering.

Why is that relevant to our case? Our distinction is between a situation in which the first fruits incurred the obligation of recitation and a situation in which they never incurred that obligation, not between a case in which one did not recite and a case in which one cannot recite. Apparently the Gemara means to explain why fruits that were set aside before the festival must rot: the reason is that when they are brought after the festival it is no longer possible to recite over them, even if he wants to. By contrast, fruits that were set aside before the festival, and therefore are obligated in recitation, and were also brought before the festival, when it is possible to recite over them, but he forgot or simply did not recite, are still valid and may be eaten by the priests like ordinary first fruits, because when recitation is in principle possible, its absence does not invalidate.

And what about fruits that were both set aside and brought after the festival? Here they are not obligated in recitation at all, so there is obviously no ground to invalidate them because of the absence of recitation. In other words, the principle “anything fit for mixing” was not brought in order to distinguish between fruits set aside before the festival and fruits set aside after it. It was brought to explain the law itself, namely, why fruits set aside before the festival and brought afterward must rot, whereas an ordinary bringing without recitation does not invalidate.

Why, in truth, does the law depend on whether the fruits are fit for recitation, rather than on whether the separation took place at a time that normally calls for recitation? The rule “anything fit for mixing” is itself difficult and problematic. But precisely with regard to first fruits one can suggest a reasonable explanation, at least according to Nahmanides and those who follow him, who hold that there is an essential connection between the commandment of recitation and the commandment of bringing. When a person brings first fruits at a time when the passage can no longer be recited, it stands to reason that the bringing itself no longer belongs to that time. Hence he cannot really bring them, and they must rot. By contrast, if he brings them at a time when recitation is possible, but in practice does not recite, the bringing is not invalidated, because that time is relevant to bringing first fruits. He merely sinned by failing to fulfill the positive commandment of recitation, but the bringing remains valid.³

However, when a person sets aside the fruits after the festival, he brings and does not recite. But apparently that too is a time that does not belong to the recitation, and the proof is that he cannot recite. Why, then, may he nevertheless bring them? From here it emerges that there are two kinds of first fruits: first fruits that incurred the obligation of recitation, where if he brings them at a time not fit for recitation they must rot; and first fruits that from the outset were not obligated in recitation, and those may be brought even without the declaration.

Maimonides’ View

The explanation we have suggested, however, is based on Nahmanides’ approach. At first glance, the Gemara clearly implies that the recitation is part of the commandment of bringing. What would Maimonides, who maintains that the recitation is an independent commandment, say about this?

Indeed, Maimonides rules in Laws of First Fruits 4:13:

One who brings first fruits from after the festival of Sukkot until Hanukkah, even if he set them aside before the festival, brings them and does not recite, as it says, “And you shall rejoice in all the good,” and recitation exists only at a time of rejoicing, from Shavuot until the end of the festival. All others who bring, except for these, bring and recite.

That is, according to Maimonides, even if the fruits were set aside before the festival and are brought afterward, which is already a time no longer fit for recitation and in the Gemara they are ruled to rot, they do not rot; rather, he brings and does not recite. This stands in direct contradiction to the sugya in Makkot cited above.

In light of what we have said until now, this is not surprising at all. Maimonides’ position is that the recitation is a commandment separate from the bringing. Therefore there is obviously no reason to let the fruits rot if recitation is impossible. At most, he has failed to fulfill the obligation of recitation, but the commandment of bringing is independent of that. Therefore Maimonides rules that even in such a situation he brings and does not recite. Even fruits that incurred recitation, but are brought after the festival at a time when recitation is no longer possible, do not rot; he brings and does not recite.

The explanation is clear and consistent with Maimonides’ conception that these are essentially two distinct commandments. But it is not clear where Maimonides derived this conception from, for as we have seen it stands in opposition to the sugya in Makkot. We will now examine his source.

Another Explanation of the Dispute

As we have seen, Maimonides holds that these are two separate commandments, and therefore the fact that he cannot recite does not impede the bringing. Nahmanides, by contrast, holds that the recitation is part of the commandment of bringing. For that reason, Nahmanides needs to prove that these two commandments should nevertheless be counted separately, and he brings his proof from the comparison cited above. According to Maimonides, however, there is no question at all. Clearly these are two commandments, and they should be counted separately.

Furthermore, from the position of the early authorities, Rashi in Makkot and Tosafot in Bava Batra, whom we will cite below, who follow Nahmanides in accordance with the sugya in Makkot, it emerges that the recitation is a law in the fruits themselves. In the type of first fruits that requires recitation, the obligation rests on the fruits themselves. This is a law in the object, or hefza, of the first fruits. Maimonides, by contrast, apparently holds that the law of recitation is a law in the person, or gavra; that is, the person is obligated to thank and praise, and the first fruits merely define the time. That is another reason why, in his view, these are clearly two separate commandments.

The Law of One Who Buys Trees from Another

The Gemara, both there in Makkot and in the Bava Batra sugya, discusses a person who bought trees from another: is he obligated to bring first fruits from them? As is well known, one who has no land cannot bring first fruits, because he cannot say, “the first of the fruit of the soil that You have given me, O Lord.” With regard to one who bought trees from another, the Gemara wonders whether he thereby also acquired the land under them, in which case he is also the owner of the land and can therefore recite the declaration over the first fruits, or not. The law is that, because of doubt, he brings first fruits but does not recite.

Later in the Bava Batra sugya, the Gemara continues by clarifying why in a case of doubt he brings and does not recite:

But perhaps they are first fruits and require recitation. Recitation does not invalidate. Does it really not invalidate? But Rabbi Zeira said: Anything fit for mixing, the lack of mixing does not invalidate it, but anything not fit for mixing, the mixing does invalidate it. This is where he acted in accordance with Rabbi Yosei bar Hanina, who said: If one harvested them and sent them in the hand of an agent, and the agent died on the way, he brings and does not recite. What is the reason? Because it is written, “And you shall take and bring,” which teaches that the taking and the bringing must be together, and here that is absent. Rav Aha son of Rav Avya said to Rav Ashi: Since these are merely verses, let him recite. He said to him: Because it looks like falsehood. Rav Mesharshiya son of Rav Hiyya said: Lest he come to exempt them from terumah and tithes.⁴

Thus, the assumption is that recitation does not invalidate, and therefore one can always bring and simply not recite, so as to play it safe. This is exactly the conception of two separate and unrelated commandments. But the Gemara immediately rejects that and says it is not correct. As we saw above with regard to bringing after the festival, sometimes, namely when recitation is impossible altogether, recitation does indeed invalidate. The Gemara explains that here we are dealing with a special case: he sent the first fruits through an agent, and the agent died on the way, and he himself, or another agent, brought them to the Temple. In such a case there is an exemption from reciting the first-fruits declaration, because the Torah teaches that the recitation applies only where the same person both gathers and brings the first fruits to the priest in the Temple all the way through.

In any case, the conclusion is that here we are dealing with first fruits that do not require recitation even apart from the doubt that arose in the law of one who buys trees. Only for that reason does he bring and not recite. But in the normal case, when a doubt arises, the Gemara assumes as obvious that in a case of doubt one cannot recite, and therefore also cannot bring; that is, recitation invalidates. Only in a case where he simply did not recite does the recitation not invalidate.

The Gemara here also rejects the possibility of reciting just to be safe, even in cases of doubt. True, these are only verses, and there is no prohibition on saying them as verses, but saying them in this context “looks like falsehood.”⁵ At first glance, this is further evidence of a connection between the recitation and the bringing.

And here too Maimonides rules this as halakha, in Laws of First Fruits 4:4:

One who buys two trees within another person’s field brings and does not recite, because it is doubtful whether he has land or does not have land. What does he do? He first consecrates them for Temple maintenance, because they may be ordinary produce, and ordinary produce may not be brought into the Temple courtyard. The priest then redeems them immediately from the consecration and afterward eats them, and he separates from them terumah and tithes, because perhaps they are ordinary produce, and he gives their tithes to the priests, perhaps they are first fruits and therefore forbidden to non-priests. He does not bring them himself, but sends them in the hand of an agent, so that the recitation not prevent them from being eaten. For whenever one is not fit for recitation because of doubt, the recitation is indispensable.

Thus, in this case Maimonides holds that the inability to recite does indeed invalidate, where the case is not fit for mixing. Therefore agency is required. Maimonides explains that the Gemara’s construal of the Sages in the Mishnah, namely that he sent them through an agent, is not incidental. One must do precisely that in order to solve the problem of doubt regarding recitation, because without the agency the first fruits would be disqualified on account of the inability to recite the declaration over them because of the doubt. When a person sees that he is in doubt whether he can recite, that may invalidate the first fruits, because they are not fit for recitation. The solution is therefore to send them through an agent and thereby be exempt from the first-fruits recitation from the outset.

Tosafot’s Approach

Tosafot, in the gloss beginning “If he harvested them,” on Bava Batra 81b, asks about the Gemara:

If he harvested them and sent them through an agent, and the agent died on the way, he brings and does not recite. This is difficult, for they were once fit for recitation and then rejected, and we should have said that they must rot, as Rabbi Zeira said in the last chapter of Makkot, 18b: if one set aside first fruits before the festival and the festival passed over them, they must rot, because before the festival they were fit for recitation and after the festival they were no longer fit. For that reason the Gemara there treats them as not fit for mixing, such that mixing is indispensable.

Tosafot asks: what good does the death of the agent do? If from the outset the fruits were fit for recitation, then these are first fruits of the kind that already incurred recitation. And when one brings such first fruits in a situation where recitation is impossible, they must rot, in accordance with Rabbi Zeira above. At first glance, the Gemara here implies that there are not two kinds of first fruits, and that even first fruits that from the outset incurred recitation still fulfill the commandment of bringing when brought in a manner that makes recitation impossible.

Therefore Tosafot explains the Gemara as follows:

Rabbeinu Hayyim answered that here the case is where, from the outset when he harvested them, his intention was to send them through another person. Then he may send them through another, as though they had never been fit for recitation at all, as is proved in the Jerusalem Talmud, Tractate Bikkurim 1, where it says: Rabbi Yohanan and Resh Lakish in the name of Rabbi Hoshaiah say: this is when he picked them in order to send them by another. But if he picked them in order to bring them himself, he may not send them by another, for all first fruits that were once fit to be made permissible through recitation are made permissible only through recitation. And afterward it says: Our Mishnah disagrees, for we learned: if one set aside his first fruits and sold his field, he brings and does not recite. They explained this as a case where from the first moment he intended to sell. And as for what we learned, if the tree dried up or was cut down, he brings and does not recite, that too is when it dried up from the first moment.

Tosafot thus brings an interpretation from the Jerusalem Talmud: if he harvested the fruits from the outset with the intention of handing them to an agent, then the fruits were from the beginning not obligated in recitation. These are fruits of the second kind of first fruits, which are brought without recitation. Of course Tosafot assumes here, like Rashi and like the plain meaning of the sugya in Makkot, that with first fruits that from the outset are not fit for recitation, recitation does not invalidate. Rabbi Zeira’s statement applies only to first fruits that were once fit and were then rejected, not to ordinary first fruits that were never fit for recitation. Tosafot concludes:

Accordingly, if one set aside first fruits before the festival with the intention of bringing them after the festival, they do not rot; rather, after the festival he brings and does not recite.

That is, if when he harvested them he already intended to bring them after the festival, then true, he cannot recite, but from the outset the first fruits were never fit for recitation. In that situation recitation does not invalidate.

The conclusion is therefore as we said above: only first fruits that incurred recitation, and over which he cannot recite, must rot. But if he simply did not recite over them, they remain valid, because the recitation does not invalidate. And if they never incurred recitation from the outset, one may again bring them without recitation. Tosafot adds that his intention at the time of separation also determines the status of the fruits. If he intended to bring them in a manner that exempts from recitation, then he may bring them without recitation, and even without any possibility of reciting, and the first fruits are valid. This is just what Rashi meant above. In other words, Tosafot sees the two sugyot in Makkot and Bava Batra as fully consistent. Both agree that if there are first fruits that incurred recitation, then if he brings them when he cannot recite, they must rot.

The Kesef Mishneh’s Explanation of Maimonides

Now the Kesef Mishneh there, on halakha 13, raises the following difficulty against Maimonides:

One who brings first fruits, etc. There the Mishnah says that from the festival until Hanukkah he brings and does not recite, and in Babylonian Talmud, Pesahim 36b, the reason is given: because it is not a time of rejoicing. As for what our master wrote, “even if he set them aside before the festival,” this is astonishing, for in Babylonian Talmud, Makkot 18b, Rabbi Elazar said in the name of Rabbi Hoshaya: if one set aside first fruits before the festival and the festival passed over them, they must rot; and the Gemara gives the reason because anything not fit for mixing, the mixing is indispensable.

The Kesef Mishneh notes that Maimonides validates even fruits that were set aside before the festival, and rules that even such fruits are brought without recitation. On this he objects that this stands in contradiction to the Gemara, which rules that they must rot, in accordance with Rabbi Zeira, because they are obligated in recitation and that obligation cannot be fulfilled.

The Kesef Mishneh explains as follows:

It must therefore be said that our master set aside that ruling in favor of the sugya in Babylonian Talmud, Gittin 47b, where Rabbi Yosei bar Hanina said: If one harvested them and sent them through an agent, and the agent died on the way, he brings and does not recite, as it says, “And you shall take and bring,” which teaches that the taking and the bringing must be together. And although the Jerusalem Talmud interprets this as a case where he picked them in order to send them by an agent, but if he picked them in order to bring them himself he may not send them through another, because all first fruits that were once fit to be permitted through recitation are permitted only through recitation, since our Babylonian Talmud cites this statement of Rabbi Yosei bar Hanina in Bava Batra 81a and in Gittin 47b without qualification, and if our Talmud agreed with the Jerusalem Talmud it would not have remained silent about such a distinction, and we follow our Talmud. Moreover, the Mishnah that says, “If one set aside his first fruits and then sold his field,” and the Mishnah that says, “If the spring dried up or the tree was cut down,” both stated without qualification, accord with Rabbi Yosei bar Hanina. And although the Jerusalem Talmud offers a strained resolution for them, we do not rely on it. According to this, what our master wrote earlier in this chapter regarding one who buys two trees, that wherever one is not fit for recitation because of doubt, the recitation is indispensable, is different there because it is due to doubt.

The Kesef Mishneh cites Rabbi Zeira’s ruling that first fruits that were once fit and afterward rejected cannot be permitted without recitation, and claims that the sugyot disagree about this. Therefore Maimonides rules against that law. According to Maimonides, even first fruits that were once fit and then rejected are brought without recitation.

In effect, the Kesef Mishneh explains that Maimonides was troubled by Tosafot’s question cited above. There is a contradiction between the sugya in Makkot, from which it emerges that with fruits that incurred recitation, recitation is indispensable, and the sugya in Bava Batra, from which it straightforwardly emerges, without Tosafot’s construal and without the Jerusalem Talmud, that even with fruits that incurred recitation, recitation is not indispensable. The sugya in Bava Batra holds that there are not two kinds of first fruits. The sugyot disagree precisely over the issue that divides Maimonides and Nahmanides: are there two kinds of first fruits? That is, with first fruits that incurred recitation, is recitation indispensable or not? And as we have seen, the root of the dispute is the question whether the commandment of recitation is a detail within the commandment of bringing.

If so, Maimonides rules in accordance with the sugya in Bava Batra, and this is in fact the source we were looking for for his position that the commandment of recitation is independent and not a detail within the commandment of bringing. That is where the whole line of thought begins.

We still need to explain why, if so, Maimonides rules in halakha 4 that in a case of doubt the fruits must effectively be rendered unfit unless he uses an agent, because he cannot recite. At first glance, if he cannot recite, he should simply bring them without recitation, since the two commandments are not dependent on one another. The Kesef Mishneh is terse here and writes only: “There it is different, because it is due to doubt.” His intention is not clear.

It seems that he means to draw a different distinction. In a case of doubt, such as one who buys trees, where there is doubt whether he acquired land or not, there is one side of the doubt according to which these are first fruits that require recitation now, namely if he also acquired the land. On the other hand, he cannot recite, because perhaps he did not acquire the land, in which case his recitation would look like falsehood. In such a case there may be a present obligation of recitation on these fruits, not merely a past one, and yet that obligation cannot be fulfilled. Therefore they must be disqualified, unless he sends them through an agent.

According to Maimonides, then, the rule that the fruits must rot applies only in a case where there is some present possibility that the first fruits now require recitation and that requirement is not being fulfilled. It does not apply in a case where there once was a state of obligation and it was later rejected. In such a case Maimonides rules that he brings and does not recite, and the recitation does not invalidate, because now they are certainly not obligated in recitation.

Does Maimonides Too Recognize a Connection Between the Commandments?

At this point the question arises: why, then, should the fruits be disqualified at all? If these are two different commandments, and there is no essential connection between recitation and bringing, then why should fruits rot when he cannot recite because of doubt? Why is the fact that there are fruits that require recitation, while the recitation is not performed, a problem according to Maimonides? After all, in his view the obligation is not on the fruits themselves. The fruits are not obligated in recitation; the person is. Therefore, if he does not recite because of doubt, at least let him bring the first fruits and thereby fulfill the commandment of bringing.

It seems that we are almost forced to understand this law as a kind of scriptural penalty. That is, in a situation where there are fruits over which there is an obligation of recitation at the time they are brought, even though there is no essential connection between the bringing and the recitation, the fact that he does not recite leads to a Torah-level consequence that cancels the commandment of bringing as well. Even so, the matter still requires examination, for here he does not fail to recite through his own fault, and why should there be a penalty?

For example, there are early authorities who hold that in the commandment of tzitzit, the blue thread does not impede the white only when he has no blue thread. But if he does have blue thread and nevertheless places only white strings, then the blue does impede the white, even at the Torah level. Here it is clear that the blue thread is not a detail within the commandment of the white threads, for when there is no blue thread one fulfills the commandment of tzitzit with white alone. So why, when he does have blue thread, does it impede the white? The answer is probably some kind of penalty: if he did not fulfill the one obligation, then the obligation he did fulfill is also cancelled. We will return to this below in the final chapter.

Summary and Conclusion Regarding the Connection Between the Recitation and the Bringing

According to Tosafot and Rashi, the recitation is indispensable whenever the fruits incurred the obligation of recitation at the time they were set aside. In that situation, unless at the time of separation he intended to send them in a manner that exempts from recitation, if he simply does not recite, the fruits may still be eaten as first fruits. But if it is impossible to recite the declaration, that does invalidate. By contrast, if from the outset there was no obligation of recitation, then the recitation does not invalidate, and in such cases he brings and does not recite. It seems that these are two different kinds of first fruits.

According to Maimonides, recitation is indispensable, but only in situations where there is at least some doubtful possibility that the fruits now require recitation, not where they required recitation only in the past.

Another Angle on the Dispute

One may suggest that the root of the above dispute among the authorities lies in how they understand the nature of the commandment of recitation. According to Maimonides, it clearly appears to be an obligation on the person. But according to the other early authorities it seems more reasonable to understand it as an obligation on the object. For Maimonides, the fruits are not what require recitation; rather, the person must recite when he brings the fruits. And when he brings the fruits after the festival, the person can no longer recite, but the fruits themselves are under no obligation at all. There never was any obligation on the fruits. Therefore, in his view as well, these are two different commandments. By contrast, Rashi and those who follow him hold that if an obligation once attached to the fruits in the past, it does not disappear now. For them the obligation is an obligation on the fruits, and therefore it still exists even after the festival.

According to this suggestion, there is greater room to understand that for Maimonides the commandment of recitation really is a different commandment from the commandment of bringing, and definitely not a detail within it. It is a duty imposed on the person, not on the fruits themselves. True, when the person does not fulfill his duty, the fruits are disqualified from being first fruits, because the person’s commandment was not fulfilled, and that disqualifies the bringing as a penalty. By contrast, according to the other early authorities, it seems that the obligation is on the fruits, and therefore it is a detail within the obligation of bringing, not an independent commandment.

We will now see one halakhic implication that we found for this proposal.

Bringing Twice: Recitation as a Law in the Person and in the Object

Maimonides writes in Laws of First Fruits 4:11:

If one brought his first fruits from one species and recited, and then returned and brought first fruits from another species, he does not recite over them, as it says, “I have declared today” — once in a year one declares, not twice.

That is, if a person has already recited the first-fruits declaration once, then when he brings additional first fruits he brings and does not recite. This law may be understood in two ways:

1. There is a rule that one may not recite twice, and the first recitation suffices for the second bringing as well.
2. The law of recitation is a law in the person, and since he has already recited the first-fruits declaration, he has already discharged his obligation and is therefore no longer required to recite. It is not the fruits that require recitation; the person does, and he has already done so. On this reading Maimonides is entirely consistent with his position that the obligation of recitation is on the person.

Now, we find a similar law regarding one who bought a field from another, after the other had already set aside first fruits. There the law is that, regarding the species that the first owner already brought, if he already set it aside, even if he did not recite, the second owner does not recite. But with a different species, the second owner both brings and recites.

The Minhat Hinukh, on commandment 606, sections 8 and 10, asks that these two halakhot seem to contradict one another: why, in the case of the buyer, is the bringing of the first owner sufficient even if he did not recite, whereas in the case of the same person, only if he recited does he not recite again?

The straightforward explanation is that in the purchaser’s case, if the first owner already brought the first fruits, then the second owner’s fruits are no longer fully first fruits, not the first of the fruit of the soil, at least with respect to the species already set aside. In that respect they do not require recitation. By contrast, in the case of the same person, the exemption from recitation does not stem from the status of the fruits, but from the fact that the bringer has already discharged his obligation of recitation. From here it appears that the commandment of recitation has two aspects: it is part of the law of bringing the fruits themselves, though only the first time for each species; and besides that, there is a law on the person to recite the passage, while bringing the first fruits is merely the occasion for the commandment of recitation. Put differently: there is an obligation on the person to recite the declaration, but this can be done only over fruits that themselves require recitation.

According to this, one may understand that although the commandment of recitation has one aspect that is indeed a detail among the details of the commandment of bringing the fruits, it is counted as an independent commandment because of the second aspect, namely that it is a law requiring the person to recite the first-fruits declaration. There are two laws in the recitation of the first fruits. Therefore, according to Maimonides, if there is doubt one cannot bring the fruits without recitation, because one law is missing here, and not necessarily because of a penalty. This is a mirror image of what we saw in the view of the other early authorities, according to whom there are two kinds of first fruits: those that require recitation and those that do not. In the first type, recitation is a detail among the details of the commandment of bringing, whereas in the second type there is no commandment of recitation on the fruits themselves, so it remains only an obligation on the person.

C. Different Connections Between Laws: Essential and Accidental Law

Introduction

The discussion in the previous chapter appears to be a typical analytical rabbinic discussion, of the kind common in the study halls. In this chapter we will address one methodological aspect that arises from that discussion and others like it.

Details Within a Commandment: Essential Law and Accidental Law

We began the previous chapter with the question whether the recitation is part of the commandment of bringing, or whether it is an independent commandment. One expression of this question may be whether the recitation impedes the bringing, or whether the bringing stands on its own and the recitation on its own. A similar meta-halakhic question requires the distinction between essential law and accidental law. For example: is the recitation an essential detail in the commandment of bringing, or is it an accidental law, meaning that it joins the law of bringing as one of its details, but does not invalidate it?

The meta-halakhic foundation of such questions concerns the way one sees a detail and its status within the whole. An essential detail of a commandment is a detail without which the commandment is no longer that same commandment. Its absence turns it into something else. By contrast, an accidental detail is a component whose absence still leaves the commandment as that same commandment.

For example, there is a requirement that the two goats brought on Yom Kippur resemble one another in appearance, weight, and monetary value, but this law is not indispensable. The meaning is that even if two goats were brought that are not completely alike, the commandment of the two goats still exists, albeit not in its full perfection.

The Philosophical Difficulty

The distinction between these two states is highly problematic. Let us illustrate it with material objects. Every object has various characteristics, some essential and some accidental. A human being without a leg is still a human being, but a human being without a head and brain, and perhaps also without a heart, is no longer a human being. Some would say that a human being without freedom of choice is not a human being but an animal, whereas a blind person is certainly still a human being. A table without one leg is still a table, perhaps a damaged and imperfect one; but a table on which nothing can be placed is merely a lump of wood, fuel.

How do we know how to distinguish essential characteristics from accidental ones? Why does the brain seem essential to us and the leg accidental? Why is freedom of choice essential and sight not?

It is difficult to point to a criterion for this distinction. At first glance it seems completely subjective, a kind of social convention, dependent on an agreement, sometimes unspoken, among the speakers who use the concept.

But the view that this distinction is wholly subjective is itself highly problematic. We derive practical and moral conclusions from these distinctions. For example, the claim that a being without freedom of choice is not a human being means that the prohibition against murdering it is not as severe as the murder of a human being. The claim that a cow is not a human being means that it is preferable to kill a cow rather than kill a human being, and we even permit ourselves to kill the cow in order to eat it. By contrast, the prohibition against murdering a blind person is as severe as the prohibition against murdering a sighted person.

Of course, one can also view these moral claims themselves as kinds of convention, rather than as claims of any objective validity. But even one who is willing to interpret the system of moral norms in that way will, it seems, find it very difficult to do so with halakha. Halakha is not the result of convention; its foundation is a transmission from above. Did the Holy One bequeath to us a collection of conventions? That is hard to believe.

Between the Absence of a Criterion and Essential Emptiness

Anyone unwilling to see all this as convention must distinguish between the claim that there is no sharp criterion for distinguishing essential features from accidental ones, and the claim that such a distinction has no objective validity at all. The absence of a criterion does not necessarily indicate that the distinction in question is essentially empty. There are many distinctions for which it is difficult to point explicitly to the criterion that determines them, but that does not mean that there is no such criterion, perhaps not a sharp one, and perhaps not even one that can be formulated.

This is true with respect to ethical norms as well, but as we saw, it is also true with respect to our view of reality itself. Sometimes ethical norms reflect claims about reality.⁶

It seems that this distinction arises from an immediate apprehension. That is, one cannot present a logical argument that justifies these distinctions. When we determine that a blind person is fully a human being, whereas a creature with four legs and no freedom of choice, namely a cow, is not, we have no clear way to justify this, and yet many believe that it is not merely a convention. The conclusion is that we simply “see” it immediately. If someone says that he sees a wall before him, no one expects him to justify his belief that the wall is there. And even if the problem of a mirage is raised, it is enough for him to say that it is clear to him that this is not a deceptive appearance but genuine seeing.

If so, there are things that result from observation and not from reasoning, and therefore no justification is required there. Apparently the distinction between essential and accidental characteristics is also the result of observation rather than mere thought; it is a posteriori, not a priori.

Let us note that a similar distinction exists with respect to concepts as well. Concepts too are characterized by essential and accidental features. And there too this distinction is not based on any criterion, but on an intuitive sense. Apparently here too we are dealing, in some sense, with observation rather than reasoning.

The same seems true in halakha. When an interpreter or decisor examines a halakhic concept, he asks himself whether a given component in that concept is accidental or essential. The answer cannot be justified by explicit logical argument, but the decisor nevertheless derives halakhic conclusions from it; that is, he attributes truth-value to it.

We have seen disputes regarding the recitation of the first-fruits declaration: is it an essential or an accidental detail in the commandment of bringing? What is the basis of that dispute? It seems that the dispute is rooted in an observation of the halakhic concept, of the component under discussion, and of the relationship between them.

Essentiality in an Object and in an Act

One must distinguish between two different contexts in which the question of essentiality and accidentality may arise. One may ask whether a certain characteristic of a halakhic concept is essential or accidental to it. And one may ask whether a characteristic of a halakhic action is essential or accidental to it.

For example, the requirement that the two goats be identical may be understood as a non-essential part of the object, meaning that even without this there are still two goats here. Or it may be seen as a non-essential component of the commandment of bringing them, meaning that even if the two goats are not identical, the commandment of bringing the two goats has still been fulfilled.

In the previous chapter we asked all these questions. First, we considered whether the recitation is part of the commandment of bringing or rather an obligation on the first fruits themselves. We also asked whether bringing without recitation is effective or not, meaning whether the recitation impedes the bringing or not. Of course, even if it does impede, one may still understand that either as an impediment because there is no object-status of first fruits here, or because the commandment of bringing the first fruits has not been fulfilled.

Summary of the Different Possibilities

Let us now summarize the different possible ways of viewing the relationship between recitation and bringing:

1. These are two different commandments with no connection between them, except that the bringing is the occasion for the recitation.
2. These are two details of one commandment, and the recitation is an accidental detail.
3. The recitation is an essential detail.
4. The recitation has two roles:
   a. to serve as a detail within the commandment of bringing;
   b. to serve as an independent obligation on the person.

Of course, these different understandings depend on the question whether the recitation is a law in the person or in the object, and so forth. As noted, the distinctions that lead to these various conceptions depend on the intuitions the interpreter or decisor has regarding the halakhot under discussion.

D. Relationships Between Pairs of Commandments

Introduction

A question similar to the one discussed in the previous chapter also arises in halakhic contexts in which we examine the relationship between pairs of commandments, and not the relationship between details and a commandment. In fact, this seems to be the more relevant framework for the discussion we conducted there about the relationship between the commandment of recitation and the commandment of bringing. There we are dealing with two commandments, and the question is what relation exists between them and whether they impede one another.

As noted, these questions arise in several contexts. For example, the commandment of tefillin contains two components: head tefillin and arm tefillin. The continual offering, too, is brought in the morning and in the evening. So too with tzitzit, which contains two components: the blue thread and the white threads. What is the relationship between such pairs of components? Do both combine into one commandment, or are these really two commandments? Here too, we might expect dependence or non-dependence to indicate whether we are dealing with one commandment or two. These questions do not concern the relation between a part and a whole, but the relation between two components of equal standing, and whether there is a larger whole to which they both belong.

We find an explicit discussion of this question in Maimonides’ eleventh root and in Nahmanides’ comments there, and we will try to examine them from the aspects relevant to our concerns.⁷ The discussion of the pair constituted by the first fruits and their recitation will remain only in the background here, since the implications are self-evident.

Maimonides in the Eleventh Root

In root 11, Maimonides establishes the principle:

One should not count the parts of a commandment individually, each part on its own, when their aggregate constitutes one commandment.

The example Maimonides himself gives is the four species. We are commanded to take all four, and if one is missing, we have not fulfilled the commandment. Therefore Maimonides argues that one should not count separately the commandments to take a lulav, willow, myrtle, and citron, but rather count one general commandment of taking the four species, within which the four species appear as details. See positive commandment 169 in Sefer HaMitzvot.

Within this discussion, Maimonides examines the implications of the halakhic question whether the parts of a commandment impede one another for the counting of the commandments. At first glance, as we said, these seem to be two sides of the same coin: if parts of a commandment impede one another, we should count them as one commandment, and if there is no dependence, then we have two commandments. Indeed, the four species in the lulav do impede one another, as do the showbread and the frankincense that accompanies it. So too with the purification of the leper and with his exclusion. In all these cases, Maimonides states, there is no doubt that these are parts of one commandment, since they impede one another.

The explanation Maimonides gives is that the desired goal is not attained unless all the parts are fulfilled. Therefore it is clear that all these parts form one totality. But what about cases in which the parts do not impede one another? Maimonides writes that there is a subtle element at the root of this principle: the criterion for deciding whether we are dealing with one commandment or two different commandments works only in one direction. If the parts impede one another, then they are different parts of one commandment. But if they do not impede one another, we should not necessarily infer that there are two commandments. In such cases, sometimes the parts will be counted as one commandment and sometimes as separate commandments.

The two main examples around which the early authorities dispute are brought in the Mishnah, Menahot 38b:

The blue thread does not impede the white, and the white does not impede the blue. The arm tefillin do not impede the head tefillin, and the head tefillin do not impede the arm tefillin.

According to Maimonides, the commandment of tzitzit, with both its components, is counted as one commandment, see Sefer HaMitzvot, positive commandment 14, even though the white does not impede the blue and the blue does not impede the white. By contrast, he counts tefillin as two separate commandments, positive commandments 12 and 13.

At the end of the root, Maimonides explains the matter as follows:

It has already become clear to you that even parts that do not impede one another will sometimes be one commandment when the subject is one. For the purpose of tzitzit is “that you may remember.” Therefore the entire thing that brings about remembrance is counted as one commandment. Thus, when we consider the number of commandments, we look to only one matter: whether it is one subject or many subjects, and not merely to whether they impede or do not impede one another.

Maimonides explains here that the criterion is whether there is one “subject,” that is, one purpose and one goal. In Maimonides’ view, a rabbinic teaching in the Mekhilta shows us that these two parts serve one idea, and therefore, even though they do not impede one another, they are parts of one totality.⁸ This shared idea is apparently the remembrance of the commandments: “So that you may remember and do all My commandments and be holy to your God.” Apparently, according to Maimonides, this is also the Torah’s own intention in saying, “and it shall be to you for tzitzit.” The blue and the white combine into one whole called tzitzit.

Nahmanides’ Objections⁹

In his comments on this root, Nahmanides agrees with the basic principle in Maimonides’ words. He also accepts that dependence is not the criterion; rather, the question is whether the parts belong to one subject. However, he disputes Maimonides on the details, which is not our concern here.

He then challenges Maimonides from his enumeration regarding tefillin. For although the arm tefillin do not impede the head tefillin and vice versa, it is nevertheless clear that their subject is one:

And if we look to their subject, tefillin would seem even more to be one subject, for everything written in this is written in that, and their meaning is one: “that the Torah of the Lord may be in our mouth,” placed opposite the heart and the brain, the dwellings of thought.

He proposes explaining this by adding the criterion of the number of acts involved in performing the parts of the commandment. Nahmanides thus agrees in principle with Maimonides that even parts that do not impede one another, if their subject is one, are counted as one commandment. By contrast, in Maimonides it is quite clear that the number of actions is not important. In his view, apparently, there is no common idea binding head tefillin and arm tefillin, and therefore he counts them as two commandments.

A Common Idea for Parts of a Commandment

This is the place to sharpen the point about a common idea for the parts of a commandment. Even if two actions are intended to achieve a similar goal, that does not make them one commandment. Sitting in a sukkah and eating matzah both commemorate the Exodus from Egypt, and yet it is clear that these are two commandments. Parts of a commandment are counted as one commandment only when the goal toward which they are directed is attained through their combination. Maimonides himself writes this explicitly:

Likewise, whenever it becomes clear to you that the desired goal cannot be attained by one of those parts alone, it is clear that their combination is the thing counted… So too the purification of the leper is not achieved except through all that was mentioned: the birds, the cedar wood, the scarlet thread, and the shaving; and only then is his purification achieved.

Maimonides’ position regarding tefillin can also be explained in this way: arm tefillin correspond to the heart and head tefillin to the brain. These are indeed very similar goals, but Maimonides apparently holds that since neither one needs the other, tefillin are therefore counted in his view as two commandments. By contrast, in tzitzit the remembrance of the commandments is achieved only through the combination of blue and white. Therefore tzitzit is counted as one commandment.

In any event, the definition of these matters on the general logical plane still requires clarification: what is the difference between parts of a commandment that do not impede one another but have a common idea, and two parts that do impede one another? If indeed in both cases we are dealing with one commandment, why are there cases in which the parts impede one another and cases in which they do not? And with regard to the third case, where there are two parts of a commandment that do not impede and also have no common idea, why do such two parts belong at all to one commandment?

Three Types of Relation Between the Parts of a Commandment and the Whole

When we say that something “impedes” in halakhic terms, this can be understood in several ways. One may say that the commandment as a whole is not fulfilled without this part, but that it is still worthwhile to perform it on its own, at least in order to gain part of the benefit of the commandment. By contrast, one may understand that failure to perform the one part means that there is no value at all in performing the other part alone.¹⁰ Likewise, when one says that a certain part “does not impede,” this too can be understood in two parallel ways: either it does not impede the performance of the other part, or the fulfillment of the commandment as a whole is not impeded. Behind this stand three possible types of relation between the parts of the commandment and the whole:

1. Each part has value, but only their joining together creates the full whole of the commandment.
2. Each part constitutes an independently valuable fulfillment, and they do not combine into one complete whole at all.
3. No part by itself has any value, and the value of the commandment is created only when all are fulfilled together.

In the second case it is clear that one part does not impede the other, and it also does not impede fulfillment of the commandment as a whole, since there is in fact no one commandment that unites them. At first glance, these are not parts of one commandment at all, but two distinct commandments. In the third case, it is clear that the absence of one part impedes the entire commandment, and therefore there is no point in performing the other part alone, since its entire purpose is the fulfillment of the overall commandment.

In the first case, one may say that one part impedes the fulfillment of the commandment as a whole, but it does not impede the other part. In such a case there is a point in performing the other part alone, even if we do not attain the benefit that comes from the commandment as a whole, because it too has value on its own. However, even this case may appear in two forms:

1a. When one fulfills one part, one thereby fulfills that part itself, but not the whole. This comes very close to case 2 above.

1b. What one has here is a deficient fulfillment of the commandment as a whole.

Returning to Maimonides

We can now understand the distinction we saw above. Parts that impede one another are certainly parts of one overall commandment. This is case 3. But with regard to parts that do not impede one another, Maimonides states that they may sometimes be counted as one commandment and sometimes as two. The difference lies in whether the fact that one can fulfill the second part without the first means that the second has independent value, case 1a, in which case they are counted as two commandments, and case 2 is of course a trivial instance of such a situation, or whether this is merely a deficient fulfillment of the whole, case 1b, in which case there is one commandment.

This is the difference between tzitzit and tefillin, even though both appear in one Mishnah in Menahot. In both cases the parts do not impede one another, meaning that they do not belong to type 3. But in tzitzit, the white and the blue combine into one whole, and therefore when one fulfills the commandment only with white, or only with blue, what one has is a partial fulfillment of the overall commandment of tzitzit. Therefore the commandment of tzitzit is one overall commandment, even though the parts do not impede one another. With regard to tefillin, Maimonides inferred from the wording of the midrash that they do not combine into one whole, and therefore these are two separate commandments.

It seems that one can see this in the verses themselves (Numbers 15:38-40):

Speak to the children of Israel and say to them that they shall make for themselves fringes on the corners of their garments throughout their generations, and they shall place upon the fringe of each corner a thread of blue.

The fringe is called a fringe even before the blue has been placed in it. Upon the fringe of the white one adds a thread of blue; that is, the blue is an addition. Yet the whole as a whole is also called tzitzit, in the next verse: “and it shall be to you for tzitzit.” The conclusion is that the white alone counts as tzitzit, and therefore its fulfillment is a deficient fulfillment of the overall commandment of tzitzit, not the fulfillment of a separate commandment of white. But tzitzit is also the whole. Let us note that there is no parallel structure in the verses of tefillin; the term tefillin itself is not biblical. As we saw above, the purpose of the two tefillin is similar, the internalization of the commandments in mind and heart, but each does not require the other.

Three Approaches Among the Early Authorities

One can show that there are three main approaches among the early authorities regarding the relationship between the parts of a commandment and the whole. Maimonides holds that both the question of dependence and the question whether they combine into a whole, that is, the distinction between 1a and 1b, are relevant to the counting of the commandments. Nahmanides holds that only dependence is relevant; he does not distinguish between 1a and 1b. BeHaG, by contrast, whose view Maimonides attacks there and Nahmanides defends, holds that both the blue and the white in tzitzit are counted as one commandment, as are arm tefillin and head tefillin. Nahmanides explains that in BeHaG’s view, apparently, dependence is not a relevant parameter for counting the commandments; only whether they are included in one subject, that is, the difference between 1a and 1b, is relevant for him.¹¹

Note: Why Parts of a Commandment That Do Not Impede and Do Not Integrate Are Not Simply Two Commandments

Until now we have almost ignored the existence of category 2, because that category describes two distinct commandments, not parts of one commandment. Is there any difference between it and category 1a? Put differently: why does category 1a still belong to the discussion of parts of a commandment? Why do we not simply say that here too these are just two commandments? Why does the difficulty arise here more than it does with regard to the relation between the commandment of sukkah and the commandment of honoring father and mother? And more concretely: are tefillin two parts of a commandment that are counted separately, or are they two different commandments with no connection between them?

Rabbi Abraham ben Maimonides, in his response to Rabbi Daniel the Babylonian, writes as though, despite the double count, the two tefillin are nevertheless parts of one commandment. The same also seems implied by Maimonides’ own language. Only for that reason was Maimonides troubled by the question why they should not be counted as parts of one commandment. In fact, one can see that there is a connection between the two parts from the halakhic discussions regarding the blessings over donning tefillin, but that is not our concern here.

Another possible implication of viewing tefillin as independent parts of a commandment, case 1a, rather than as two completely separate commandments, case 2, may be the dispute among the early authorities whether the tefillin do not impede one another even when he has both but nevertheless puts on only one.¹²

Conventionalism and Essentialism with Respect to Concepts¹³

We have noted several kinds of relation between the parts of a commandment and its totality, and we have seen how this relation is expressed in the counting of the commandments according to the different early authorities. We will now clarify something about the logical foundations of this picture. Our basic proposal is that the root of the matter lies in one’s logical attitude toward concepts and theoretical entities. We will therefore preface the discussion with a brief philosophical digression, after which we will return to the disputes among the early authorities presented above.

The pair of terms “substance” and “accident” has two meanings, both connected to one another and both relevant here:

1. “Substance” is the thing itself, the entity; “accident” is what happens to it, or what accompanies it. These are its attributes or properties.
2. The distinction can also be drawn among the different attributes or characteristics of the substance itself. Some properties belong to it “in itself,” meaning that they are essential properties; others attach to it only accidentally, and are therefore accidents with respect to it.

When one speaks about substance and accident with respect to concepts, rather than objects, there is an initial feeling that only the second sense can be relevant. That feeling rests on the assumption that concepts have no entity, since they are not existing things. On that assumption, concepts are fictive creations, produced by agreement among human beings. This is the conventionalist view of concepts. According to this view, a concept is nothing more than a bundle of characteristics which, by agreement among the speakers in a community, has been given a common linguistic term that describes the totality.¹⁴

For example, let us take the concept “democratic state.” According to conventionalism, this concept has no entity, and it is created by human agreement. There are indeed democratic states in the world, but their democracy is not a real entity. It is one of their properties, but as such it is not itself an entity. Of course, this concept has characteristics or properties, some essential and some accidental. For example, the property that the state’s name begins with the letter Y is accidental, whereas the characteristics of its system of government, such as the election of governing institutions by all citizens, seem essential to it. A state whose name begins with another letter would still be democratic, but a state with no elections to its governing institutions would not be considered such.

A definition of a concept includes only its essential properties, not its accidental ones. These are the necessary conditions for the establishment of the concept. There is no point including accidental components in the definition, since even in their absence we are still dealing with the very same concept.

According to the conventionalist description, it would seem that one cannot change the definition of a concept, because such a change in an essential property would mean turning the original concept into another concept. A different definition points to a different concept. Likewise, it seems that conventionalism does not allow for real argument about the meanings of concepts. Anyone who defines the concept differently is simply talking about another concept. The dispute becomes purely semantic.

Yet there is a powerful sense that definitions of concepts can indeed change, and that one can argue about them. Over time concepts can take on a different character from the one they had in the past. In different places, the same concepts may be understood differently.

For example, “morality” requires different, and sometimes opposite, acts in different societies and at different times. Some would say that morality requires aborting a sick fetus, while others fiercely oppose that and claim that it is murder. The same is true with regard to homosexual relations, and so on.

Is there here a dispute over the meaning and characteristics of the concept “morality,” or are we simply dealing with two different concepts? It seems that if the concept “morality” were only a collection of features and nothing more, there would be no room for dispute at all. It would be clear to both sides that they are dealing with different concepts, and the confusion would arise only from the accidental fact that they are using the same linguistic term to describe them. But, as noted, there is a strong intuition that the dispute is real, and that it concerns the meaning of that very same concept. How can we explain this? What is there in a concept beyond its characteristics and properties?

To explain this, we must assume that the concept “morality” has an essence. There is an entity, or an idea, called “morality,” and the dispute concerns its characteristics: from one point of view it appears one way, and from another angle it is perceived differently. But both sides are arguing about the same concept itself, and therefore the dispute is real and not merely semantic.

This is essentially a Platonic approach. According to this view there is a world of ideas, in which abstract ideas exist, such as horseness, redness, kindness, triangularity, and so on. The concrete horse that exists in our world is an expression of the idea of horseness that exists in the world of ideas. By its very nature the idea is perfect, but the concrete horse may sometimes appear in an incomplete way. When the horse is lame, or deformed, or simply imperfect, we still continue to relate to it as a horse. The reason is that the idea of horseness is indeed perfect, but its appearance in concrete objects may sometimes be deficient. In such situations we say that some of the characteristics of the idea do not appear fully in the concrete object.

This intuition conceals behind it a position that is not conventionalist but essentialist. The conventionalist holds that the collection of characteristics constitutes the concept. By contrast, the essentialist holds that a concept also has an essence, some sort of quasi-entity-like background, which the collection of characteristics merely attempts to describe but does not constitute. The concept exists before its characteristics, and beyond them, and perhaps even without them.¹⁵

We have seen that conventionalism does not allow one to regard concepts with different characteristics as different expressions of the same concept, for the concept just is the sum total of its characteristics. Essentialism, by contrast, leads us to the conclusion that even the absence of a property, even an essential property, can still describe that very same concept under different circumstances. The identity of the new concept with its previous form can be preserved despite changes in its characteristics, if its essence, or its substrate, is preserved, because the characteristics are not the constitutive basis of the concept but something that merely accompanies it.

Essentialism and Conventionalism in Halakha

Let us now return to the meta-halakhic discussion we conducted above and examine it through the prism of what we have just said. We saw that the initial tendency of all the early authorities is that when two characteristics of a commandment do not impede one another, we will likely be dealing with two distinct commandments, namely case 2. The reason is that we tend to think that every part of a commandment is essential, and therefore if it is missing we no longer have that same commandment. From this it follows that if some part of a commandment does not impede the other, then necessarily these are separate commandments.

The logical basis for this is apparently a kind of halakhic conventionalism. The commandment is not some real entity, but a theoretical concept, which is nothing more than the sum of its parts. Therefore, when we remove any one of those parts, the commandment in question no longer exists at all. For example, tzitzit is a composition of blue and white. According to the conventionalist conception, there are indeed concrete objects called tzitzit, but the concept or idea “tzitzit” itself has no reality. It is merely a whole constituted by a certain combination of blue and white strings tied in the way the Torah defined in the passage of tzitzit. If we place only blue or only white on the corner of the garment, then we do not have tzitzit in its halakhic sense, because its full definition is not fulfilled. And if halakha nevertheless determines that placing white alone is possible, then the conclusion would have to be that white is a commandment separate from blue.

But as we have already seen in the verses themselves, placing white alone on the garment entitles it to the title tzitzit. This is not only a determination that there is value to the commandment of white without blue; it is also a determination that white alone is itself tzitzit. This approach necessarily leads us to an essentialist conception, according to which the concept “tzitzit” denotes some kind of entity, a Platonic idea. Otherwise, a deficient appearance of the characteristics would cause the resulting concept not to count as tzitzit at all. We can then ask whether white alone is still a deficient appearance of that same concept, or whether the appearance is so different that it is clearly no longer the same concept. If so, at least with respect to the commandment of tzitzit, the conventionalist picture seems incorrect. For that reason, the three early authorities we have discussed all count the white and the blue together as one commandment, even though they do not impede one another.

By contrast, the concept “tefillin,” as noted, does not appear in the Bible. Nahmanides and BeHaG also see tefillin as one overarching entity, and they too rely on a biblical hint, namely that both serve the same goal, “that the Torah of the Lord may be in our mouth,” and therefore they count them as one commandment. Maimonides, by contrast, counts them as two commandments.

These questions are closely tied to disputes about the nature of the commandments, whether they are constitutive or goal-directed. See our essay from last week, though that is not our concern here.

Insights

1. The commandment of reciting the declaration over the first fruits can be understood as an independent commandment whose occasion is the time of bringing the first fruits. Others understand it as part of the commandment of bringing itself. Still others see two aspects in the commandment of recitation: an independent obligation and an obligation that is a detail within the commandment of bringing.
2. One possible implication of this dispute is the question whether whenever the first fruits are brought one must also recite, and whether that recitation impedes the bringing.
3. Another implication is the question whether someone who has already recited may or must recite again.
4. The root of the dispute may lie in the question whether the obligation is on the person or on the fruits themselves.
5. We are dealing with the possible relationships between a detail and a commandment. The detail impedes when it is an essential characteristic of the commandment, and does not impede when it is an accidental characteristic. When it is not a characteristic at all, it is an independent commandment.
6. We have argued that the distinction between the different kinds of characteristics cannot rest on rational considerations alone, that is, on thought, but on intellectual “observation,” that is, cognition.
7. Finally, we discuss the possible relationships between pairs of commandments. We distinguish four possibilities:
   a. both combine into one whole, and neither has any value on its own;
   b. each has value on its own, but together the value is greater;
   c. each has a value that forms part of the total value;
   d. each member of the pair is a condition for the value of the other, even though together they have no greater value than the sum of the partial values.
8. We explained the disputes among the early authorities regarding different pairs of commandments in light of these distinctions.

Footnotes