On the Positivist Meanings of the Term “Constitution” (Column 578)

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.

This past Shabbat, Parashat Chukat, I spoke in the synagogue about the reasons for the commandments (ta‘amei ha-mitzvot) and about gezerot ha-katuv (“Scriptural decrees”). I think there is a common misunderstanding of these notions, as I will explain here.

Rashi at the Beginning of the Parashah

Rashi, at the opening of the parashah, explains the uniqueness of the commandment of the Red Heifer:

“This is the statute (chukkah) of the Torah”—because the Satan and the nations of the world taunt Israel, saying: What is this commandment and what reason is there in it? Therefore it is written concerning it ‘statute’: It is a decree before Me, and you have no permission to question it.”

In Shivtei Ḥakhamim here, note a, he quotes in the name of the Ra’em:

“And although the entire Torah is the decree of the King, here [the verse] comes to inform [us] that there is absolutely no reason here, only the decree, and it is proper to accept it even though there is no reason at all known to Israel. This is what Rashi explains and resolves: ‘Because the Satan…’ And if you will ask: regarding the Midianite vessels, it also says ‘This is the statute of the Torah.’ One can say that there too it refers to the ashes of the heifer, as it is written ‘But with the water of niddah one shall be purified,’ and according to our Sages’ midrash that the verse ‘But with the water of niddah one shall be purified’ refers to immersion—that even to render metal vessels fit from prohibition they require immersion—one must say that the immersion itself is among those matters that have no reason. Why should a thousand se’ah [of water] outside a mikveh not help like forty se’ah of a mikveh?” (Ra’em)

That is, Rashi’s intent is taken to mean that we have no license to examine the reasons for the commandments—perhaps because they have no reason, or because the reason exists but is inaccessible to us.

In note b they add and write:

“If you will ask: Why did Rashi use a doubled phrase, ‘What is this commandment and what reason is there in it?’ And further: Why do they taunt Israel over this commandment more than over other commandments, for there are many commandments that have no [apparent] reason, such as kilayim (forbidden mixtures) and other things and the like? One can say that in this commandment they taunt and say: What [kind of] commandment is this?—for it contains internal contradictions: the ashes of the heifer purify the impure, yet one who carries the ashes becomes impure. And further: What reason is there in it that it can purify the impure?”

In other words, it is not only unclear; there is an internal contradiction. Put differently, this is not just a question about this commandment—it is a difficulty.

Implication: The Relationship Between Source and Reason

In yeshivot it is commonly thought that when a legal ruling is brought from a verse, it likely has no reason (or we do not understand it). A striking example of this conception appears in relation to the rule “ein onshin min ha-din”—we do not impose penalties based on logical derivation, specifically a kal va-chomer (a fortiori argument).[1] In Lekach Tov, sec. b, he writes:

“Regarding the matter that we do not punish from [logical] derivation, there are three known reasons: (1) That the measure (rule) is so handed down. (2) Since what is derived by kal va-chomer is always more stringent than the source, perhaps the atonement afforded by the lesser punishment of the source will not suffice, and a more severe punishment is needed; since atonement would not be achieved by the source’s punishment, therefore one should not punish for nothing, for the purpose of all punishment is only to atone for the sinner—as explained by the Maharsha in Sanhedrin, ad loc. (3) Lest there be a refutation to the kal va-chomer.”

The first view is that it is a gezerat ha-katuv. The second: that the lighter punishment is inadequate for the more severe offense. The third: a concern that the kal va-chomer can be refuted.[2]

These ideas also appear in the Talmudic Encyclopedia, entry “Ein onshin min ha-din”:

“Various reasons were given: (a) Since a kal va-chomer is a rational analogy and a person constructs it on his own, regarding punishment we are concerned that perhaps there is some refutation to it; (b) Since what is learned is more stringent than the source, it follows that the atonement achieved by the source’s lesser punishment will not avail; (c) It is a Scriptural decree, learned from [the case of] ‘his sister.’”

That is, the first approach in Lekach Tov is because of the verse “his sister” (see Makkot 5b). But this division is quite odd: two explanations and a source (the verse “his sister”). Why are these three distinct opinions? Seemingly there is a verse that provides the legal source, and two possible explanations for that law. There is a tacit assumption here that if a source is cited, the law likely lacks a reason or explanation. This dovetails with what we saw above: when the Torah decrees something, it presumably has no explanation for us. The basis of this thought is likely the assumption that, were there a sufficient rationale, we would not need a verse—just as the Gemara often remarks, “Why do I need a verse? It is [learned by] logic!” Meaning: if there is sound reasoning, no scriptural source is required; hence, if a scriptural source is brought, there is no reasoning.

According to this conception, the scriptural source is an alternative to a reason. If there is a rationale, there is no need for a verse; if a verse is brought, there is no rationale. Therefore later authorities count three approaches. See also Column 411.

The Difficulty: What Does Rashi Actually Say?

The first problem with this conception is that many did, in fact, engage in the reasons for the commandments—even for the Red Heifer. Even regarding King Solomon, the Midrash (Bamidbar Rabbah, Chukat, ch. 19) states:

“Solomon said: Regarding all these I stood [i.e., I understood], but the section of the Red Heifer I investigated, I asked, I examined—[as it says in Kohelet 7:] ‘I said I would be wise, but it is far from me.’”

He tried to seek reasons but could not find them. How could he seek them if the Torah forbids this—by calling the Red Heifer “the statute of the Torah”? Likewise, among the Torah’s commentators you can find various proposals for rationales for this commandment.

If you examine Rashi’s words closely, he does not write that one may not “ponder it” (leharher bah) but rather that one may not “question it” (leharher aḥareha). The meaning is entirely different: to “question it” is to undermine or cast doubt upon it. Thus, there is no prohibition against seeking reasons for the Red Heifer and for the Torah’s statutes; what is forbidden is to think that if you did not find a reason, then it is not true and you are not obligated. Therefore, there is no difficulty in Solomon’s engaging the reasons (he simply did not succeed).

A Rebellious Daughter: A Reason for a Scriptural Decree

In the Mishnah (Sanhedrin 68b) we find that the law of the rebellious son (ben sorer u-moreh) does not apply to a daughter. And the Gemara (69b–70a) explains:

“‘A son’—and not a daughter. It was taught: Rabbi Shimon said: By rights, a daughter should also be fit to be [judged as] a rebellious child, for everything is found by her with regard to transgression; but it is a Scriptural decree: ‘a son and not a daughter.’”

That is, in principle such a law would have applied to daughters as well, but there is a gezerat ha-katuv that we do not adjudicate a rebellious daughter.

The early authorities propose various reasons for this law. Several adduce the Mishnah at the beginning of the chapter, that the rebellious son is judged “on account of his end”—that in the end he will be drawn after his appetites and ultimately will stand and rob people. They explain that with daughters there is no such concern; therefore there is no judgment of a rebellious daughter.

For example, Sefer ha-Ḥinukh, commandment 248, writes:

“This law applies only to males, not to females, for it is not their way to be drawn to eating and drinking like men. Thus it is said [there]: ‘a rebellious son (and not a daughter).’ …”

And the Minḥat Ḥinukh there (§16) brings that his source is in the Rambam:

“‘But not to females,’ etc.—Such is the Rambam’s language. And the Leḥem Mishneh noted that it is explicit in the Talmud that a daughter too should by rights have the law of a rebellious child, but it is a Scriptural decree. Still, since there is no practical difference in law, the Rambam and the Ḥinukh seized upon this reason.”

He already notes that this proposed reason does not sit well with the Talmud’s ruling that it is a gezerat ha-katuv. He explains, however, that there is no practical legal difference, and perhaps this “reason” is only to have “something to say.”

But the Meiri there (70b) writes:

“And so they expound in it: ‘a son and not a daughter,’ meaning that the daughter is not judged as a rebellious child at all, for the Torah was exacting only about one whose way is to be drawn after his passions and to sink in them—and this is not in a daughter but in a son. And these matters—although they are Scriptural decrees—all of them flow toward this notion. And though at the beginning of the inquiry some details appear to go the other way, in the Jerusalem Talmud they said: ‘All these words are not readily understandable; do they not interchange?’ [I.e.,] Who would have been by rights liable—the son or the daughter? Who would by rights be liable—the adult or the minor? You must say—the adult. Who would by rights be liable—the one who steals from his father or from others? You must say—from others. Yet the Torah exempted the daughter, the adult, and the one who steals from others. Behold, there is here only a king’s decree.”

The Meiri does not suffice with citing a reason, as other early authorities do, but himself notes a tension between his reason and the Babylonian and Jerusalem Talmuds’ statement that this is a gezerat ha-katuv. That is, he seems to understand that these reasons are not mere lip service; they are indeed the foundation for the rule that we do not judge a rebellious daughter. How, then, does this square with the claim that it is a gezerat ha-katuv? His answer: Although these are Scriptural decrees, “all of them flow toward this notion.” He even adds that admittedly some details are difficult to reconcile with this reason—again showing that, perhaps unlike others, he treats this as the true rationale.

But on his view, what is “gezerat ha-katuv” at all? How does it differ from an ordinary Torah law? And if it has a reason, why is a verse needed?

What Is “Gezerat ha-Katuv”?

In my article on edim zomemim (conspiring witnesses) I discussed this at length; here I will merely summarize. The assumption I mentioned above—namely, that if there is a rationale then no verse is required (“Why do I need a verse? It is logic!”)—is not correct. In many cases there is a verse and a verse is required, and yet there is also a reason. The verse legislates the law; the rationales explain why that is the law. But the rationales alone would not suffice for us to implement that law without the verse. Consider the example of the rebellious daughter: even if I accept the reasoning that a daughter’s way is not to be drawn after these paths, is that enough for me to rule that there is no law of a rebellious daughter? Would we truly infer that halakhic conclusion from that rationale alone? Consider: if a son is manifestly a good child or has had excellent education, would we not apply the law of the rebellious son to him? Even for him the concern that he will be drawn after his appetites is low. Therefore a verse is required to teach us that, indeed, there is no law of a rebellious daughter. Once the verse is given, the rationale offers the reason for the law, but by itself it would not have sufficed to generate it.

In that article I explained that the mere existence of a rationale does not suffice to derive a halakhic conclusion. Sometimes this is because the rationale is not decisive, or because we do not “expound the reason of the verse” (darshinan ta‘ama dikra), or because it conflicts with other halakhic principles. Thus, for example, the Gemara says that edim zomemim is a novelty (Rava’s view in Sanhedrin 27), i.e., a gezerat ha-katuv: in a case where two witnesses testified that Reuven murdered, and two others came and disproved them by alibi (testifying that the first pair were with them elsewhere), this would seem to be a case of “two against two,” with no preference for the second pair over the first. But the Torah says there is a preference: we believe the latter, and we execute the first pair who were exposed.

The early authorities appear to dispute whether there is an underlying explanation for this law. Some say it is a gezerat ha-katuv; others offer explanations. In my article I argued that it is inconceivable that this law has no rationale. If, in truth, this is a “two against two” situation and only a gezerat ha-katuv—halakhah without a reason—tells us to believe the second pair, then the result is that we execute two witnesses who told the truth (or at least with serious doubt they lied) on the basis of a gezerat ha-katuv. A Scriptural decree would then be telling us: They are innocent, but you must kill them. That cannot be. It is clear that the Torah understands that there is, in reality, a preference for the second set of witnesses over the first—that they are truly credible—and therefore we execute the first. The Torah would not instruct us to kill innocent people for no reason.

Do not compare this to the Scriptural decree to execute Sabbath desecrators. There, too, we execute because the Torah decreed not to desecrate Shabbat. But that is different: the desecrator himself knows the Torah forbade it, yet he desecrated after proper warning and accepted the warning; in that case he is executed. I have no problem with the prohibition itself lacking a reason or with our not understanding its reason; as long as everyone knows and recognizes the rules of the game, one may impose capital punishment accordingly. But in edim zomemim, the first set of witnesses fulfilled their halakhic duty and testified—and their testimony is true. Edim zomemim do not require warning (see Ketubot 32a and elsewhere), so they were not even warned; yet suddenly they find themselves executed because two others came and exposed them—without the second pair being more credible than the first. This is absurd; that cannot be the law.

I brought there another example of a gezerat ha-katuv: the disqualification of relatives as witnesses. From the Gemara (Bava Batra) it emerges that this is a gezerat ha-katuv—i.e., there is no inherent unreliability in the testimony of relatives (perhaps due to presumptions of righteousness and that “a person does not sin for no gain”); nonetheless, the Torah decrees that we do not accept their testimony. So, too, in Rambam, Laws of Testimony 13:15 (and in the Tur and Shulchan Aruch, ḤM 33:10):

“The reason the Torah invalidated relatives as witnesses is not that they are presumed to love one another, for he is not testifying to his benefit or detriment; rather, it is a Scriptural decree. Therefore a lover or a hater is valid as a witness, although he is invalid as a judge, for the Torah decreed only about relatives.”

We are used to this principle, for even if relatives testified that Reuven murdered Shimon, we would not execute Reuven; at most the murderer would go unpunished by the court (and one could resort to extra-legal measures such as confinement). But consider a case where two valid witnesses testify that Reuven murdered Shimon, and two relatives come and expose them by alibi. Seemingly, the latter’s testimony is inadmissible because they are relatives; consequently, the testimony about the murder stands and the murderer is executed. But notice: we are here executing a man regarding whom there are two credible (but legally invalid—because relatives) witnesses who testify that the testimony against him is fabricated—that he did not murder and that the witnesses merely conspired to kill him. Shall we nevertheless execute him? Is it conceivable that someone whom we hold, as a matter of fact, to be innocent of murder would be executed on account of a gezerat ha-katuv? Certainly not. A normal court would withdraw from such a case (and if they do not, they should be removed from judging; such judges are fools). In short, there is no scenario where the Torah instructs us to execute innocent people because of a gezerat ha-katuv; likewise for edim zomemim.

Note that if we were to interpret “gezerat ha-katuv” regarding edim zomemim as a law without reason, the result would be that we execute those exposed as liars, even though we think they did not actually lie. That is not merely executing a person due to a decree; it is a decree commanding us to regard a truth-teller as a liar. There is no place for a Scriptural decree that says the earth is square, or that 10 a.m. is nighttime. One may decree that we behave as if it is night (e.g., the night of Passover is treated as “day” for certain halakhic aspects), but one cannot decree that it is night. Theoretically, the Torah might decree to execute those exposed—but not to decree that they are liars if, in reality, they spoke truth.

Therefore, for edim zomemim there must be a clear rationale for preferring the second set over the first. Commentators provide several such reasons; I will not enter them here. Why, then, is a gezerat ha-katuv needed? Because without it we might have thought that two witnesses constitute maximal proof and that a “two against two” case must remain undecided. Note that here the verse writing the “gezerat ha-katuv” is not needed because the rationale is weak and we would not have established the law on its basis alone; rather, even if the rationale is strong and decisive, we would still not have established this law because it conflicts with another halakhic principle—the conclusive force of two witnesses. Here the problem requiring a verse is not the weakness of the rationale but its clash with another Torah principle. I elaborated on this in my article.

All this yields a different conception of “gezerat ha-katuv.” It is not “a law without a rationale,” but a law innovated by a verse; once legislated, we can find the rationale, and we can well assume that this rationale was there from the outset. Still, it is true that a “gezerat ha-katuv” is a law for which the rationale alone would not have sufficed for us to generate it; a verse was required (and the rationale merely explains it). In that sense it is a gezerat ha-katuv.

Two Meanings of the Term “Chukkah”: “The Verse Repeated It to Make It Me‘akev”

We began with the section of the Red Heifer, which the Torah calls “the statute (chukkah) of the Torah,” and the Sages understand from here that we are dealing with a “gezerat ha-katuv,” i.e., a law that cannot be grounded on reason alone, as explained above. There is another meaning of the term chukkah in the Torah, in an entirely different halakhic context. I would like to point out the link between these two meanings.

When the Torah writes a law or we derive one from it—the simple assumption is that it is me‘akev (invalidating): if one omits it, one does not fulfill the obligation. Surprisingly, however, there is a rule in the halakhic interpretation of verses in the domain of holy offerings: “We require that the verse repeat it to render it me‘akev” (Zevachim 23b). That is, the assumption is that a law derived from the Torah regarding offerings does not invalidate unless the Torah writes it twice. There is a caveat to this rule, relevant to us: if the Torah writes that this law is a “chukkah” (see Yoma 40a and parallels), then a single mention suffices to render it me‘akev.

Thus, the word “chukkah” functions here as a substitute for repetition: it teaches that the law is invalidating. This is a second meaning of “chukkah.” Above we saw that it indicates a “gezerat ha-katuv”; here we see it indicates that the law is me‘akev. What is the link between these two meanings? Why does the same word serve both to say “this invalidates” and to say “this is not grounded in reason”?

To present my suggestion about the common denominator between the two meanings, I preface the explanation I proposed in my article on the rule “We require that the verse repeat it to render it invalidating” (see also Column 556).

An Explanation of the Rule “We Require That the Verse Repeat It to Render It Invalidating”

My claim there was that the domain of Temple service (avodah) is exceptional compared to other areas of halakhah. The halakhah was constituted at Mount Sinai: that event gave it validity and defined its scope; without the Sinai command, the law did not exist and had no force. But in the domain of avodah—standing before God and serving Him—this existed before Sinai and has significance even without a command. The Patriarchs offered sacrifices long before Sinai, for this follows from the very fact of standing before God.

This, I suggest, is the reason for the difference between offerings and other areas of halakhah. If I bring a sacrifice not in accordance with the halakhah given at Sinai—well, Abraham did so (for he did not know what was commanded at Sinai), and for him it was acceptable. Therefore, clearly, even if I do so, it has value. This may not be the perfect way to bring a sacrifice, but one cannot say the sacrifice is devoid of value. The Sinai event did not come to strip value from things that have natural value—that is, things whose value was known before Sinai. It came to add values and complete what had been done before—to guide us how to do it more perfectly. Hence, if there is a command to bring [an offering] in a particular manner and I brought it otherwise, then I did not do so perfectly; but I am no worse than Abraham. If for him it had value, then for me, too, it has value.

There is an assumption here that people have a natural intuition as to how to stand before God and what this entails (sacrifices). Therefore they acted thus even without a command.[3] This is the meaning of the rule “We require that the verse repeat it to render it invalidating”: details in the laws of sacrifices are binding but not invalidating. That is different from details in, say, the laws of Sabbath observance or the redemption of a firstborn donkey—where if one fails to do as the Torah commanded, there is no halakhic value to the act.

An Application to the Laws of Prayer

The Mishnah at the beginning of Berakhot, ch. 4 (26a), brings a dispute:

“The morning prayer (Shacharit) [may be recited] until midday; Rabbi Yehudah says: until four hours. The afternoon prayer (Minchah) until evening; Rabbi Yehudah says: until ‘plag ha-minchah.’ The evening prayer (Arvit) has no fixed time; and the additional prayer (Musaf) all day (Rabbi Yehudah says: until seven hours).”

And the Gemara there asks:

“Is it [indeed] that according to everyone [Shacharit is] until midday and no more? But did not Rav Mari son of Rav Huna son of Rabbi Yirmiyah bar Abba say in the name of Rabbi Yoḥanan: If one erred and did not pray ‘Arvit,’ he prays ‘Shacharit’ twice; [if he missed] ‘Shacharit,’ he prays ‘Minchah’ twice!—[Answer:] All day he prays on and on.

“[If he prays] until midday, he is given the reward of prayer in its time; from then on, he is given the reward of prayer, but the reward of prayer in its time he is not given.”

That is: until midday, one receives the reward for praying in its time; thereafter one receives the reward for prayer, but not the reward for prayer in its time. The conclusion is that one may pray even after the time, but that prayer is not perfect; accordingly, the reward is not full. In other words, the time does not absolutely invalidate the prayer. If one prayed out of time, he still has a prayer (he did not lose what he did), but he did not fulfill the commandment of prayer in its time. How should we understand this distinction? Whence does the Gemara draw the assumption that the command regarding prayer does not invalidate? How is this different from any other command?

It is natural to hang this distinction on the dispute between Rambam and Ramban regarding prayer. Rambam counts a Torah-level commandment to pray (Sefer ha-Mitzvot, Positive Command 5):

“The fifth commandment is that He commanded us to serve Him, may He be exalted. This command has been repeated several times: ‘And you shall serve the Lord your God’ (Ex. 23:25); ‘And Him shall you serve’ (Deut. 13:5); ‘And Him shall you serve’ (Deut. 6:13); ‘To serve Him’ (Deut. 11:13). And although this command is also among the inclusive commands, as we explained in the fourth principle, nevertheless it has a particular: that He commanded prayer. And the wording of the Sifrei: ‘“To serve Him”—this is prayer.’ They also said: ‘“To serve Him”—this is study.’ And in the Mishnah of Rabbi Eliezer son of Rabbi Yose ha-Gelili (ch. 12, p. 228) they said: ‘From where do we find the root of prayer among the commandments? From here: “The Lord your God you shall fear, and Him you shall serve.”’ And they said (Midrash Tannaim/Midrash ha-Gadol, Parashat Re’eh): ‘Serve Him with His Torah; serve Him in His Temple,’ meaning to go there to pray in it and toward it, as Solomon, peace be upon him, explained (I Kings 8; II Chron. 6).”

However, all the detailed laws (times, text, number of prayers, etc.) are rabbinic even according to Rambam. Ramban, in his glosses there, sees prayer in all its details as a rabbinic commandment without a Torah root (except for prayer in time of distress).

Returning to the Gemara: according to Rambam, the text reads simply. One who prays after the time set by the Sages fulfills the Torah-level commandment of prayer. However, he has not fulfilled the rabbinic dictates that set the times. Therefore he receives reward for the Torah-level prayer, but not the full reward for prayer “in its time,” as required rabbinically. I note that even per Rambam there is some strain in the phrasing, for the Gemara should have distinguished between Torah-level and rabbinic, not between prayer “in its time” and “not in its time.”

What would Ramban say? How would he read the Gemara’s distinction? If indeed the entire notion of prayer is rabbinic—both the obligation to pray and its details—why should one who prays out of time be considered as having done anything? Why assume that the times set by the Sages do not invalidate? With difficulty, one might say that per Ramban there are two tiers within the rabbinic institution itself: first, there is a basic obligation to pray without binding details (akin to the Torah-level core per Rambam), and in addition there is an obligation to do so according to the details set by the Sages. But this is strained: why would the Sages legislate in such a fashion? From where did the Gemara derive that this is the nature of the institution of prayer? Why not interpret all rabbinic enactments likewise? Hence this reading seems implausible.

It is reasonable that Ramban, too, recognizes the existence of prayer at the Torah level (i.e., a chafetz of prayer), and his dispute with Rambam is only whether we are commanded by the Torah to pray. Ramban would also agree that one who prayed before Sinai performed an act of prayer as part of his service of God.[4] In Ḥiddushei ha-Grach (Laws of Prayer 4:1), he distinguishes between fulfillment of the commandment of prayer and the object of prayer in Rambam’s view; he adds:

“Even those who disagree with Rambam—that is only regarding its obligatory nature. But its fulfillment and its essence are, according to all, from the Torah.”

What did the Sages add to the Torah-level state? It is unlikely that after the Torah was given—and certainly after the Sages instituted prayer—the primal, natural prayer was uprooted. One who prays, in whatever form, is still engaged in the act of prayer. When the Sages added the details of the laws of prayer, they certainly did not intend to uproot our natural, ordinary prayer; rather, they imposed a renewed obligation such that even one who does not wish to pray (and, per Ramban, is not obligated by the Torah) would have to do so. Consequently, one who prayed not according to the Sages’ details is surely no worse off than one who prays at the Torah level (like Abraham). He certainly did not commit a prohibition, and it is reasonable that his act has value as service of God. He has, however, not fulfilled the specific rabbinic law.

The basis for this distinction is that prayer is avodah—part of standing before God—just like sacrifices. Therefore, the same distinction applies: “We require that the verse repeat it to render it invalidating,” meaning that details in the laws of prayer do not invalidate—i.e., their non-performance does not empty the prayer of content.

Thus, when we ask about one who prayed Shacharit after the time—the answer is clear: his prayer is an act of value and certainly constitutes service of God. The Sages’ enactment did not uproot that. He did not fulfill the rabbinic commandment of prayer (Shacharit, in this case), for he did not do what they commanded, but it is obvious that he prayed. Therefore the Gemara says he receives reward for prayer, but not the reward for prayer in its time. This holds both for Rambam and for Ramban, and it nicely illustrates the explanation of the rule “We require that the verse repeat it to render it invalidating.”

The Link Between the Two Meanings of “Chukkah”

We can now return to the question left open. We saw that the term “chukkah” in the Torah has two readings: that the law in question is invalidating, and that it is not grounded in reason. What is the link, if any, between them? I can now suggest an explanation.

When the Torah writes “chukkah,” it signals that this particular halakhic detail in the domain of avodah is invalidating: something new has been introduced—something that does not fit the natural way of thinking (that which obtained in Abraham’s time, the intuitive spirituality of standing before God). Therefore, if I do not observe a detail about which the Torah writes “chukkah,” my service loses its value. In this specific case it was innovated that Abraham did it wrongly, not merely imperfectly (of course, this is only from our perspective; he himself was not obligated and could not have known). This means that the halakhic detail is not graspable by our simple sevara (the very sevara Abraham had before the command). Here a command is needed to correct our natural understanding. The term “chukkah” comes to say that this command does not add something on top of our sevara but replaces it. Here is your link to the meaning of “chukkah” as gezerat ha-katuv: the halakhic detail about which the Torah writes “chukkah” is a gezerat ha-katuv, for it does not align with the sevara we had before the command. As I explained above, this does not necessarily mean it cannot be understood after the command; but without the command we would not have known it—or at least we would not have applied it (as we saw).

Thus, the meaning of “chukkah” as something invalidating is indeed linked to its meaning as something not grounded in sevara. Q.E.D.

An Aside: What Has This to Do with Positivism?

I think one can see a similar phenomenon in legal theory; I will only note it briefly here. There is a debate between the positivist conception and non-positivist conceptions. A positivist conception is characterized by seeing law as the product of formal legislation rather than as derived from sevara, or what is called “natural law.” Natural law exists even without legislation; therefore it is hard to see it as a legal system per se. A law is law not because it is rational or moral but primarily because it was duly enacted. Some would say that only the legislation matters, and reason or morality are not measures of a law’s validity (though in extreme cases one may limit this—as with Nazi law).

Within the meaning of positivism, several features are mixed together. One is the logical structure of the legal system: the legislator sets the law, and the judge deduces from it to concrete cases. Beyond that is the feature that law is detached from natural sevara and arises formally from the legislative process. You can see the connection to our discussion: we saw a link between these two features—detachment from natural sevara (natural values) and a rigid, binding structure, i.e., its being “law.” Defining a norm as “law” requires detachment from natural sevara and values. Precisely because there is something beyond the pre-legislative understanding, it becomes valid law.

This does not necessarily mean a contradiction to natural sevara, but an addition of something. Like what we saw: “chukkah” as a gezerat ha-katuv does not necessarily mean it lacks an explanation in terms of our natural rationales—but there must be something more.

[1] According to Rambam in the introduction to Sefer ha-Mitzvot, it seems there is no punishment by inference from any hermeneutic rule, not only from kal va-chomer. Ramban, in his critique of Principle 2, disputes Rambam, for the Talmud makes clear (and so hold all the early authorities) that this applies only to kal va-chomer.

[2] One could add further explanations. For example, per Rambam in the previous note, it is clear that we do not punish because we lack a written warning, and one does not punish without a scriptural warning. Lekach Tov there also brings additional explanations. And in my article on punishment in halakhah (see also in the study here), I offered another explanation: that punishments are not arranged in strict proportion to severity (a graver offense may receive a lighter penalty). See also Column 377.

[3] It seems we have lost this spiritual-religious intuition over the years. This is the meaning of the alienation we feel toward sacrifices. See Column 412 (there was also a question that recently reached me on the site, which I cannot now find).

[4] On the distinction between fulfillment and obligation in commandments, see my article in Middah Tovah for Parashat Vayeshev, 5767.