On Statutes and Judgments and What Lies Between Them (Column 641)

With God’s help

Disclaimer: This post was translated from Hebrew using AI (ChatGPT 5 Thinking), so there may be inaccuracies or nuances lost. If something seems unclear, please refer to the Hebrew original or contact us for clarification.

In the second part of the parashah (Acharei Mot), the pair of words “statutes” (chukim) and “judgments” (mishpatim) recurs quite a few times. This Shabbat I spoke in the synagogue about the relationship between statutes and judgments in general and, in particular, as applied to the laws of forbidden relations (arayot). I thought the discussion might be of public interest.

Statutes and Judgments in the Parashah

At the beginning of Leviticus 18 appears the passage of “and live by them”:

And Hashem spoke to Moses, saying: Speak to the children of Israel and say to them: I am Hashem your God. Like the practice of the land of Egypt in which you dwelled, you shall not do; and like the practice of the land of Canaan to which I am bringing you, you shall not do; and in their statutes you shall not walk. My judgments you shall carry out, and My statutes you shall keep to walk in them; I am Hashem your God. You shall keep My statutes and My judgments, which a person shall do and live by them; I am Hashem.

There are the statutes of the lands of Egypt and Canaan, in whose ways one ought not to walk, but rather in the statutes and judgments of the Torah. Then the obligation to keep the Torah’s statutes and judgments is repeated again.

Immediately thereafter comes the passage of arayot (forbidden relations), and toward the end of the chapter (and the parashah) statutes and judgments return again (from verse 24):

Do not defile yourselves in all these, for in all these the nations were defiled whom I am casting out before you. The land became defiled, and I visited its iniquity upon it, and the land vomited out its inhabitants. But you shall keep My statutes and My judgments, and you shall not do any of these abominations—the native and the stranger who sojourns among you. For all these abominations the men of the land have done who were before you, and the land became defiled; so let not the land vomit you out when you defile it, as it vomited out the nation that was before you. For whoever shall do any of these abominations—the souls that do so shall be cut off from among their people. And you shall guard My charge, not to do any of the abominable statutes that were done before you; and you shall not defile yourselves by them; I am Hashem your God.

The “abominations” (apparently referring to arayot) stand in contrast to the Torah’s statutes and judgments, and these are here called the nations’ “statutes.” From the Torah’s language it is not clear whether the prohibitions of arayot belong to the category of statutes or judgments, and, as is well known, the commentators differ on this. But to answer that, we must first understand the difference between statutes and judgments.

Two Readings of the Passage “and Live by Them”

Rashi on the passage “and live by them” (v. 4) explains it as follows:

“My judgments you shall carry out”—these are matters stated in the Torah as judgments; even had they not been stated, they would have been fitting to be stated.

“And My statutes you shall keep”—matters that are a royal decree, about which the evil inclination protests, “Why should we keep them?” and the nations of the world object to them—such as eating pig, wearing sha’atnez, and the purification by the ashes of the red heifer; therefore it says, “I am Hashem”: I have decreed upon you; you are not permitted to exempt yourselves.

Judgments are the commandments understandable to reason—those we would know even without the Torah. Statutes are the non-intuitive matters, decrees of Scripture.

This also colors the meaning of the continuation, “and live by them.” There is the well-known midrash that learns from here that one should transgress and not be killed for all commandments except the three cardinal sins. But in the plain sense, the verse asserts a fact: observing the commandments will bring us life. What kind of life?

Rashi continues:

“And live by them”—in the World to Come; for if you say “in this world,” behold, in the end he dies.

That is, according to him, “and live by them” speaks of reward in the World to Come. In his view, that reward is granted for both statutes and judgments alike; there is no reason to distinguish, in this regard, between commandments whose rationale is known and those whose rationale is not.

By contrast, Ramban on verse 4, after citing Rashi’s interpretation, writes:

“In the plain sense, ‘My judgments’ are as their meaning—the laws stated in the section ‘And these are the judgments’ and throughout the Torah. Therefore it says, ‘which a person shall do and live by them’—for the laws were given for the life of man in the settlement of states and human peace, that a person should not harm his fellow nor kill him.” He then notes that Ezekiel repeatedly mentions of the judgments “which a person shall do and live by them,” while of Sabbaths he says they are “a sign between Me and them,” and so in Nehemiah as well.

Judgments, then, are the commandments that regulate human relations and repair society; statutes are the “religious” commandments that regulate our standing before God. Therefore, in his view, “and live by them” speaks only of the judgments and not the statutes, for it describes the result of keeping the judgments: if we keep them, we can live proper, orderly social lives. This cannot be said of statutes, for they are not intended to regulate our lives in this world. Needless to say, in his view “and live by them” refers to this world, unlike Rashi.

Indeed, at the end of his comments he notes:

“And the midrash (Torat Kohanim, parashah 8:10): ‘and live by them’—in the World to Come; for if you say in this world, behold, in the end he dies. If so, ‘which a person shall do’ would also return to ‘My statutes.’”

According to Rashi, “and live by them” concerns both statutes and judgments, and thus necessarily speaks of the World to Come (perhaps since ‘there is no reward for a mitzvah in this world’).

The Distinction Between Statutes and Judgments

We saw that, for Rashi, the distinction is along the axis of intelligibility: judgments are the commandments comprehensible to reason; statutes are those that are not (decrees of Scripture). For Ramban, the distinction follows the domain of the commandments: judgments govern social order—between man and his fellow; statutes govern our standing before God.

At a superficial glance one might think these are the same, since interpersonal commandments are tied to morality and thus understandable, whereas commandments between man and God lack a moral explanation and are therefore harder to understand, if at all. But the fact that they disagree about “and live by them” shows otherwise. Ramban claims “and live by them” concerns only judgments and in this world; according to Rashi it is said of both statutes and judgments and concerns the World to Come. It would seem, then, that they are not making the same claim, and it is apparently incorrect to identify the “understandable” commandments with interpersonal ones, and decrees of Scripture with the rest. It is not the same axis. Indeed, on further reflection, although there is some correlation between the two axes (the more “judicial” commandments tend to be more understandable than statutes), the correlation is incomplete. The axis of intelligibility and the axis of subject matter are not fully dependent on one another in either direction; there are judicial commandments that are not readily intelligible, and there are statutes that are.

In my essay on duties and rights, I explained that the commandments belonging to the halakhic legal system are essentially those included in the realm of adjudication: Choshen Mishpat and Even HaEzer. We can add here several parts of Yoreh De’ah (charity, interest, gifts to the poor, honoring parents and one’s teacher) which, although not belonging to the legal part of halakhah (see the explanation in that essay), would still be classed as “judgments” per Ramban’s definition here, since they regulate social relations. The “statutes,” per Ramban, comprise the rest of halakhah: Kodashim, Taharot, Zera’im, Orach Chaim, and the like. We must now examine these two domains and see whether we can find unintelligible elements among the judgments and intelligible elements among the statutes (from here on I will use “statutes” and “judgments” in Ramban’s sense).

A Look at the Judgments

I have noted more than once that the legal component of halakhah does not look like a functional legal system. If there are no punishments for theft (beyond returning the stolen object), then there is no deterrence against thieves. A person may say to himself: I’ll steal and take the gamble—if I’m caught, I’ll return it and nothing happened; if not, I profit. That is a gamble with only upside. One who causes damage indirectly (grama) is exempt in human courts. No person is punished unless two valid witnesses warned him with a very specific formula and only if he accepted the warning fully and declared he knows all this and is acting with that in mind (i.e., capital punishment is reserved for certified fools—or for someone unconscious and not responsible for his actions). If you wish to murder a woman with maximum halakhic “safety,” do it in a mikveh in front of all the modest daughters of Israel who immerse there (since women are disqualified as witnesses). If you prefer to murder a man, no problem: do it on a stage before thousands of gentiles—or Sabbath desecrators (who are also invalid as witnesses). Alternatively, do it before the victim’s relatives or two brothers related to each other (they too are invalid as witnesses; as the Talmud and Rishonim write, this is a decree of Scripture—a matter of admissibility, not credibility; see, e.g., Rambam, Hilkhot Edut 13:15). If a person has committed an offense, he has only to incriminate himself (confess), and then—at least regarding fines, according to one opinion—even if witnesses later come, he is exempt from punishment (“one who admits to a fine and afterwards witnesses come is exempt,” see Bava Kamma 14b and elsewhere). As the Ran writes in Derashah 11, it is impossible to run a proper society this way. He explains that this is why there is a complementary legal system (“the law of the king”), whose role is to close these gaps and enable social governance. But the king does not judge according to the Torah’s laws; rather, he judges according to what seems right and proper (akin to the “law of the kingdom” of gentiles).

In various columns in the past (see, for example, columns 91, 351, and 636) I noted that this is reflected as well in the sugya at the end of the first chapter of Makkot. The Mishnah (7a) states:

“A Sanhedrin that executes one person in seven years is called ‘destructive.’ Rabbi Elazar ben Azariah says: once in seventy years. Rabbi Tarfon and Rabbi Akiva say: Had we been in the Sanhedrin, no person would ever have been executed. Rabban Shimon ben Gamliel says: They too would increase the number of murderers in Israel.”

Already in the first clause we see that capital punishment is a declarative law (see column 351). Later in the Mishnah, R. Akiva and R. Tarfon—who for various reasons were not members of the Sanhedrin—proposed methods to save any person sentenced to death. The Gemara there explains how:

“How would they act?—Rabbi Yoḥanan and Rabbi Elazar both said: [They would ask the witnesses,] did you see him kill a healthy person or a trefah? Rav Ashi said: Even if you say he was healthy, perhaps at the spot of the sword blow there was already a perforation. Regarding one who has relations with a forbidden woman, how would they act?—Abaye and Rava both said: [They would ask,] did you see it as ‘a brush in a tube’? And how did the Sages judge? Like Shmuel, who said: In cases of adultery, only when they saw them behaving as adulterers.”

When a murderer is brought to court, one can always ask the witnesses whether they checked, before the stab, if the victim had a perforation exactly where the knife entered. If yes, he was already trefah and his killer is exempt. That is a perfectly valid halakhic argument, for one cannot execute on the basis of doubt (especially since halakhah tells us to look for ways to save the accused, as learned from “and the congregation shall rescue”; see Sanhedrin 69a and elsewhere).

To this, R. Shimon ben Gamliel responds that they would increase bloodshed in Israel. Note that R. Akiva and R. Tarfon were not actually on the Sanhedrin; their proposals were offered as theory in the study hall. There one can indulge in such exercises and implement the law with exacting literalness. R. Shimon ben Gamliel, as Nasi of the Sanhedrin, was responsible for practical governance. He did not reject their argument on its merits; he said that even if they were right, one cannot act that way. Emptying punishment of content would proliferate bloodshed in Israel. This sharply expresses the difference between theoretical halakhah and its application in practice.

In any case, the conclusion is that even the Torah’s legal part does not come to regulate social life and is not always readily intelligible. Admittedly, some of these laws are indeed understandable in themselves, as I explained in the essay cited above. The Torah tells us that this is the truth (e.g., that it is not right to convict without clear testimony, nor to punish without ascertaining criminal intent and awareness of consequences), even if in practice it is hard to run a society that way. The Ran there explains that societal governance is entrusted to the king; that is not the Torah’s aim, not even of its legal part. In any case, this still means there are commandments that may be understandable yet do not come to regulate social life—so how do they belong to Ramban’s category of “judgments,” which, by his definition, deal with human relations (criminal and civil offenses)? In any event, we have here, at least in part, distinguished between the category of commandments that regulate social life and the category of “understandable” commandments.

A Look at the Statutes

In my essay on “decree of Scripture,” I brought sources showing that laws perceived as such can in fact be understood. I also explained why they are nevertheless considered “decrees of Scripture,” and I outlined several types of such decrees. Among other things, there are “judicial” laws that are decrees of Scripture (e.g., the law of conspiring witnesses, the disqualification of related witnesses, and more). True, the explanations are generally not at the consequentialist-moral level—that is, we cannot point to a problematic outcome and show that the act is immoral—since these are not in the domain of morality. But we may have an intuitive sense that “this is fitting” or “this is unfitting.”

We may have a sense that waving the four species accomplishes something; a sense why Shabbat observance is significant, or why preserving the sanctity of the priesthood matters. Some will dismiss such senses as irrational, but that is mistaken. One must remember that beneath every rational explanation lie basic assumptions, and these are always grounded in intuition. There cannot be an explanation that is purely logical. In the realm of “statutes” or “decrees of Scripture,” our understanding is typically based on intuition alone (without an additional logical layer). Of course, those endowed with healthy intuition will grasp this better. But one should not think it is just a subjective feeling; it is intuition, and I have explained here more than once (and in more detail in Two Wagons and Truth and Not Stable) that intuition is a kind of immediate cognition.

Ramban himself writes this in his comments on the passage of arayot right here (v. 6):

“Behold, arayot are among the statutes—matters that are a royal decree; and a decree is something that arises in the mind of the king, who is wise in the governance of his kingdom, and he alone knows the need and benefit in that command which he commands, and he does not reveal it to the people except to his wise counselors.”

A decree of Scripture is not a law without a reason, and the reason is even accessible to human beings—though not to all, but to the wise among them.

This brings us to the discussion of arayot.

Are Arayot Among the Statutes?

I will bring the beginning of Ramban’s words there:

“‘None of you shall approach to any that is near of kin to him, to uncover nakedness’—The reason for forbidding arayot among near kin is not explicit. The Rabbi [Maimonides] said in Guide 3:49 that it is to lessen intercourse and make it loathsome, to be satisfied with little; and these women whom Scripture forbade as the woman’s near kin are those who are always with him, and likewise his own near kin are available and he is secluded with them. And in this vein the Rabbi explains all of them. And R. Abraham [Ibn Ezra] also wrote that since man’s inclination is like that of beasts, it is not possible to forbid all females; thus He forbade those always around him. But this is a very weak reason—to warrant karet for these because they are found with him at times; while permitting a man to marry many women by the dozens and thousands. And what harm is there if he marries his daughter alone, as is permitted to the sons of Noah (Sanhedrin 58b), and marries two sisters as did Jacob our father? And there are no marriages more proper than that a man marry his daughter to his son who is older than her, and bequeath them his estate, and they be fruitful and multiply in his house, for the earth was not created for waste—He formed it to be settled. We have no received tradition on this; but by reason it involves a secret of the secrets of creation that clings to the soul, and it is part of the secret of conception, to which we have already alluded.”

“And know that intercourse is a matter far removed and despised by the Torah except for the preservation of the species; and that from which no offspring is born is forbidden; and that which is not good for preservation and will not succeed in it, the Torah forbids it. This is the reason for ‘anyone of his close kin’ (Leviticus 20:19): it distances the matter on account of kinship (she’er); the term is derived from ‘the remnant (she’ar) in Zion and the remaining in Jerusalem’ (Isaiah 4:3). Therefore it says, ‘it is she’er—an act of lewdness’ (v. 17)—i.e., these are not marriages and conjugality, for they will not succeed, but they are lewdness—mere thoughts of lust. And behold, arayot are among the statutes—matters that are a royal decree; and a decree is something that arises in the mind of the king, who is wise in the governance of his kingdom, and he alone knows the need and benefit in that command which he commands, and he does not reveal it to the people except to his wise counselors.”

In the end, Ramban himself also brings a rationale for arayot: to reduce intercourse, since intercourse is a despised matter. His disagreement with the first view he cited revolves only around why close relatives differ from others in this respect (in his view it is unclear—if there is no essential difference between relatives and non-relatives, why would the loathsomeness of intercourse explain arayot?).

In any case, does such an explanation render arayot “understandable commandments” (judgments, per Rashi) or do they still belong among “decrees of Scripture” (statutes, per Rashi)? Ramban himself writes here that arayot are among the statutes—but, of course, that is according to his definition: statutes are commandments not intended to regulate social life. It would seem there is no moral or consequential problem in arayot, and their prohibition is between man and God (assuming consensual relations between adults). In column 201 I discussed polyamory and argued that there is no inherent moral or social flaw in it; it is a religious prohibition. The same holds for arayot (except perhaps for a married woman, which may require discussion; this is not the place).

I recall a series of articles by Gadi Taub published in Haaretz about incest and its harms (see also columns 13, 201, and others). He spoke of the harm to participants in such acts and to the offspring born of them. I sent the newspaper a response in which I wondered what Taub would say if we found a pill that eliminated all these harms—ensuring no one would suffer trauma and that any children born would be entirely healthy in body and mind. Would he then accept the act as legitimate? Readers with whom I later spoke admitted they would not. If so, the harms are not truly the reason the act is forbidden. The situation may be the reverse: there are harms because the act is forbidden and we seek to deter it (perhaps—this depends on how one understands God’s providence over the matter).

Therefore, according to Ramban, it is clear that arayot belong to the statutes. They are a royal decree—not in the sense of a law without a reason, as implied by Rashi. For Ramban, these are statutes by virtue of their content, yet they can be understood; only that the understanding rests on intuition rather than standard logical reasoning (which itself, indirectly, rests on intuition). Consequentialist explanations here are not the true basis of the prohibition.

Let us proceed. Ramban maintains that the prohibitions of arayot are rooted in the principle that intercourse is despised. Seemingly this is a rational explanation. But we must now ask: why is intercourse in fact despised? Do we have a rational explanation for that? This is an assumption those of this school deem correct, and on it they base the prohibitions of arayot. So is this a prohibition that can be understood or not? It seems to begin with an intuition (that intercourse is despised), yet it is still a “law without a reason.” But as noted above, every explanation has this character to some degree. Take the prohibition of murder. It derives from the value of human life. And what is the rational basis for the value of human life? It is an axiom, a postulate, for which we have no further explanation. So is murder among the statutes or the judgments? According to Ramban, it is among the judgments because it regulates social life. But is it an “understandable” prohibition or not? It seems yes, but that “understanding” rests on an assumption for which we have no explanation.

The Status of Basic Intuitions: A Further Look at Aesthetic Values

It seems we are encountering again a concept I have discussed before. In column 201 I addressed incest and explained that it has no moral problem (as with polyamory). Seemingly it is a religious prohibition. At the end of that column, I raised another possibility: that there exist values that are not moral values (since they are not aimed at preventing harm to others), and yet they are values it is important to uphold.

In column 154 I discussed this kind of value and called them “aesthetic values.” There is a feeling of disgust or revulsion that arises when we hear of someone who ate his own excrement, or who copulated with a frozen chicken and then cooked and ate it, or simple necrophilia (see the responsum here), and the like (see the two columns above for several examples; see also the responsum here regarding cannibalism, and column 628). Incest (and perhaps polyamory) can also be counted among such cases. This depends, of course, on how we view these feelings of revulsion. Are they indicators of an aesthetic-ethical cognition—i.e., do they reflect genuine “permitted/forbidden” values (just as pangs of conscience that accompany a bad act reflect moral values)? Or are they the result of social conditioning from which one ought to be freed?

As a factual matter, such feelings clearly change over time—for example, attitudes toward homosexuality or the LGBTQ community in general, various queer phenomena, and the like. It is hard to deny that even those who oppose them experience a dulling of the revulsion that once prevailed for all of us toward them. Does this mean we are dealing with social constructs rather than genuine value-perceptions? Many will say yes, though I am not sure. It may be that permissiveness dulls genuine feelings we possess (thus conservatives would likely explain it).[1] Sometimes people argue that sexual orientations are inborn and therefore there is nothing to condemn. But kleptomania, a drive for incest, pedophilia, etc., may also be innate drives, and yet many of those who support LGBTQ rights still oppose all of these. It is therefore hard to make a decisive argument here.

In my view, there is indeed no difference: any natural inclination outside a person’s control is not deserving of condemnation. This is true for incest, LGBTQ, kleptomania, and copulating with frozen chickens. The consequences, however, are a different matter. Kleptomania leads to theft that harms others—so does pedophilia. Thus here I will not condemn the person but will seek to prevent the acts. By contrast, with incest or LGBTQ relations, some will say that no one is harmed and therefore there is no justification to prevent the acts either. Conservatives will reply that there are aesthetic values, and one is obligated to uphold them even if no one is harmed.

This is, of course, not an all-or-nothing package. One can say that, intuitively, polyamory is acceptable but incest is not; or that LGBTQ relations are not acceptable but polyamory is; and so on. My claim here is only that aesthetic values may exist—values that obligate us even when no other person is harmed. Violating them harms the “image of God,” or our human dignity, and such conduct is unfitting. I have no clear position on this, but it is certainly a possibility, and it likely explains views that oppose such practices even when they do not harm anyone. This is an important distinction because proponents of these views generally strive to justify their stance by claiming that harm does exist (destroying the Jewish home, harming birthrates, and other empty slogans). Since these always strike me as fabricated claims, I am at least offering them a way to avoid them. One can oppose these phenomena without claiming they harm anyone. Granted, there is considerable doubt as to the extent one may coerce people not to act this way if it harms no one. That, in my eyes, is a much more problematic step. But opposing such phenomena and seeking not to encourage them may fall within the bounds of reasonableness even if we regard them as violating aesthetic values.

“Bal Teshaktzu”

Halakhah includes the prohibition of bal teshaktzu (“do not make yourselves abominable”), whose simple definition applies to acts that arouse disgust. In simple terms, disgust is a phenomenon that varies across societies, places, and times; therefore it is reasonable that the prohibition itself would vary as well. However, if aesthetic values have real standing, one could argue this is a fixed prohibition, and a society that does not regard such acts as repellent is a corrupted society (like a society that does not see murder as reprehensible—those who support abortion on the grounds of a woman’s right over her body, for example).

But even regarding norms accepted in my own society, there is room to discuss the nature of this prohibition. Does the halakhic prohibition of bal teshaktzu reflect halakhah’s recognition of aesthetic values in the same way it recognizes moral values? Or does halakhah see value in a person’s conforming to the norms accepted by his society even if the act, in itself, is not wrong? If the latter, then the halakhic prohibition does not necessarily express an acknowledgment of aesthetic values.

In the end, my position is: I do not know. And I think Chazal did not know either; it is doubtful there is a single correct answer to this question.

Back to Our Topic: Is There a Difference Between Statutes and Judgments?

To conclude, note that in light of all that has been said, the question of whether the prohibitions of arayot fall under statutes or judgments loses some of its bite, since there is no clear-cut difference between them. Are “aesthetic values” among the statutes or the judgments? One can ask this according to both Rashi and Ramban: Are they “understandable” commandments or not? We saw that this is unclear. Are they intended to ensure proper social conduct or not? That, too, is not entirely clear.

This all depends somewhat on definitions and is therefore less interesting. I have a sense that many disputes—such as the one about arayot, whether they are statutes or judgments—are not substantive disagreements but matters of definition. What does “understand” mean? What does “social order” mean (only preventing harm to others, or also aesthetic values)? There may, of course, be substantive disagreements about whether there is room for such values alongside moral values: i.e., are they necessarily religious values grounded in divine command? In other words, can a secular person say that, in his view, these acts are wrong or not? Even here we should recall that a secular person cannot, in truth, claim this even regarding moral values (see column 456). And again, in my view this discussion is not well defined.

[1] See two such directions in column 640 on the correlations between religious faith and attitudes toward ciphers in Scripture; and in column 630 on religious or secular education and their outcomes.