The Meaning of a Command – Parashat Noah

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The Meaning of a Command

Michael Abraham*

The Prohibition of Murder for Noahides

One of the Ten Commandments is the prohibition ‘You shall not murder.’ But the prohibition of murder appears in the Torah much earlier. In our parashah (Gen. 9:5-6), the Torah says:

And surely your blood, of your lives, I will require; from the hand of every beast I will require it, and from the hand of man, from the hand of each man’s brother, I will require the life of man. Whoever sheds the blood of man, by man shall his blood be shed, for in the image of God He made man.

The Sages derive from here the prohibition of murder for Noahides (the prohibition ‘You shall not murder’ was stated only with regard to the murder of a Jew by a Jew).

But we find an even earlier reference to murder as a prohibition. After Cain murders Abel his brother, God addresses him (Gen. 4:10-13):

And He said: What have you done? The voice of your brother’s blood cries out to Me from the ground. And now you are cursed from the ground, which opened its mouth to receive your brother’s blood from your hand. When you till the ground, it shall no longer yield its strength to you; you shall be a wanderer and a fugitive on the earth. And Cain said to the Lord: My punishment is greater than I can bear.

How could Cain have known that murder was prohibited, if no command to that effect had yet been given? Presumably, only by reason.

But the Talmud in Sanhedrin 56b discusses the source of the seven Noahide commandments, and two opinions are brought there. Rabbi Yohanan derives them from a verse stated to Adam (Gen. 2:16):

From where are these matters derived? Rabbi Yohanan said: As the verse says, ‘And the Lord God commanded the man, saying: From every tree of the garden you may surely eat.’ ‘And He commanded’ refers to courts of law, as it says, ‘For I have known him, that he may command his children…’ ‘The Lord’ refers to blasphemy, as it says, ‘Whoever pronounces the Name of the Lord shall surely be put to death.’ ‘God’ refers to idolatry, as it says, ‘You shall have no other gods.’ ‘Upon the man’ refers to bloodshed, as it says, ‘Whoever sheds the blood of man…’

Here the prohibition of murder is derived from the words ‘upon the man.’ Later the Talmud brings the view of the tanna from the school of Menashe, who did not count courts of law and blasphemy among the seven commandments, and he derives each of these seven prohibitions from a different verse:

These are each written separately. Idolatry and sexual immorality, as it is written: ‘And the earth was corrupted before God.’ And a tanna from the school of Rabbi Ishmael taught: Everywhere that ‘corruption’ is stated, it refers only to sexual immorality and idolatry. Sexual immorality, as it is said: ‘For all flesh had corrupted its way.’ Idolatry, as it is written: ‘Lest you act corruptly and make…’ And the other one holds that the verse is revealing their practice. Bloodshed, as it is written: ‘Whoever sheds the blood of man…’ And the other one holds that it is their killing that the verse reveals…

According to his view, the prohibition of murder is derived from the verses in Parashat Noah cited above.

At the end of the passage quoted here, the Talmud explains that according to Rabbi Yohanan both sources are needed, since the exposition from the verse stated to Adam teaches the prohibition, while the verses in Parashat Noah teach the punishment (capital punishment for the murderer). According to the tanna from the school of Menashe, it follows that when Cain did what he did there was as yet no command at all prohibiting murder, whereas according to Rabbi Yohanan there was already a prohibition, but it still did not incur the death penalty (that penalty was introduced only with Noah). Indeed, the Torah describes the punishment Cain received from God: to wander and drift upon the earth. That is certainly not a death sentence. Moreover, in the following verses God imposes a special prohibition against killing Cain (Gen. 4:15):

And the Lord said to him: Therefore whoever kills Cain, vengeance shall be taken on him sevenfold. And the Lord set a sign for Cain, lest anyone who found him strike him.

This of course expresses all the more sharply the fact that at that stage there was no death penalty for a murderer.

It should be noted that Maimonides, at the beginning of chapter 9 of Laws of Kings, writes:

Adam was commanded concerning six things: idolatry, blasphemy, bloodshed, sexual immorality, theft, and courts of law. Although all of these are a tradition in our hands from Moses our teacher, and reason inclines toward them, it appears from the words of the Torah that he was commanded regarding these. To Noah was added a limb from a living animal, as it is said: ‘But flesh with its life, which is its blood, you shall not eat.’ Thus there are seven commandments…

It appears that, as a matter of law, he rules in accordance with Rabbi Yohanan, that Adam had already been commanded regarding the prohibition of murder.

Between transgression and punishment: what is the meaning of a command?

In legal philosophy it is commonly assumed that a criminal prohibition has no meaning without a sanction (punishment) attached to it, whereas here we discover that, at least according to Rabbi Yohanan (and, as a matter of law, according to Maimonides’ ruling), a situation is possible in which there is a prohibition but no punishment is imposed for it. On the face of it, the whole meaning of a command is that such an act carries a punishment. That is what distinguishes a prohibition from a mere act that is improper. An improper act is a negative act, but committing it does not require punishment. When a legal prohibition, whether civil or religious, is imposed on an act, its meaning would seem to concern the punishment. One may add here a contemporary legal aspect. In the statute book of the State of Israel there does not appear a prohibition against stealing or murdering. What appears is only the punishment. For example, in section 384 of the 1977 Penal Law: ‘The thief is liable to three years’ imprisonment.’ And in section 300 there: ‘One who intentionally or with indifference causes the death of a person is liable to life imprisonment.’ This too would seem to express the idea that the entire meaning of the prohibition is the punishment, and therefore it is enough for us to establish a punishment, without any need to state explicitly that there is also a prohibition.

But if Jewish law recognizes a situation in which there is a criminal prohibition without punishment (as in Rabbi Yohanan’s opinion cited above, and as Maimonides rules), the conclusion is that perhaps there is no punishment without a transgression (and a command), but there can be a transgression without punishment. This raises the question: what is the meaning of the command? How is it different from a merely improper act? Put differently, one may ask what the command added, beyond the intuitive moral perception that murder is a reprehensible act.

The relationship between command and punishment

It seems to me that this is a mistaken understanding of the meaning of a command. According to the conception I have presented here, punishment is what pours content into the term ‘command,’ and without it we are dealing with nothing more than an improper act. But Rabbi Yohanan teaches us that this reverses cause and effect. Only because a command has a distinct meaning (as opposed to a merely improper act) is one who violates it punished. In order to impose punishment, a justification is required; otherwise it is an arbitrary act. What justifies imposing punishment on an offender, for example a murderer? The fact that the act is prohibited. If so, the command creates the prohibition, and because it is a prohibition (and not merely an improper act), punishment may be imposed on one who violates it. Thus, the fundamental meaning of a command is not the punishment, but the duty or prohibition that it creates. In an improper act there is no duty and no prohibition, and therefore no punishment either. The conclusion is that the command generates a duty or a prohibition, and the punishment is only a derivative consequence of that. From here we can understand why there is no obstacle to the existence of commands whose violation carries no punishment. They still differ from improper acts בכך that they involve a prohibition.

The category of command is very elusive. On the face of it, a command is nothing more than an expression of the will of God or of the legislator, and nothing more. But in Jewish law one sees that this is not so. The fundamental conception is that there is no prohibition without a command, and a mere expression of will is not enough. Even if there is an act that is clear to us in one way or another as not being in accordance with God’s will, that does not make it a prohibition (and therefore does not justify punishment either). To create a prohibition, a command is required. Therefore the Sages (see Makkot 13b and parallels) teach us that in order to understand that a certain verse contains a negative commandment, it must be stated in one of four special formulations: ‘take heed,’ ‘lest,’ ‘do not,’ or simply ‘not.’ Any other expression of will, not stated in that form, points to an improper act but does not create a legal prohibition in Jewish law.

In passing, I would add that in legal philosophy there is a dispute between two schools: natural law and positivism. The approach that advocates natural law regards natural prohibitions as legal prohibitions. To create a prohibition, legislation is not necessarily required; it is enough that the act is immoral. Positivism, by contrast, holds that the foundation of legal obligation is the command. Legislation is what turns an act into a prohibition or a legal duty. Even if there is an act, such as murder, whose prohibition is obvious on the moral plane, without an explicit command it would not become a prohibition.

Implications: the meaning of ‘moral commands’

From here we can understand a question that arises with respect to quite a few of the Torah’s commands. If from the moral standpoint it is obvious that there is a prohibition against murder or theft, why does the Torah need to command this? What would be missing if we had not been commanded ‘You shall not murder’? Some raise here the claim: ‘Why do I need a verse? It follows from reason!’ (see Ketubot 22a and many other places). What can be learned by reason need not be written. So why, in fact, does the Torah write the prohibition of murder?

Many understand that the purpose of the command is only to sharpen the prohibition and to preclude possible error, and at most to intensify it. But in light of what we have said here, the necessary explanation is entirely different: without the command, murder would be only an improper act (a very improper one), but only from the moment there is a command concerning it does it become a prohibition in Jewish law. The command comes to transform an improper act into a forbidden act. The command creates the legal sphere, which is distinctly different from the moral sphere, although both spheres deal with the forbidden and the permitted, and at least in part both deal with the same forbidden and permitted acts (such as theft and murder, and the rest of the laws of a moral character, as distinguished from cultic-religious laws).

According to our approach, there are no ‘moral commands’ in Jewish law. Morality is a category external to Jewish law. The command creates a different category: a legal category in Jewish law, sometimes on top of the moral category but not in its place. There is a difference between saying that a certain act is improper and saying that it is forbidden, and that difference is created by the command.

On the categorical difference between the improper and the prohibited

The conclusion is that there is a categorical difference between improper acts and prohibited acts, or between the ethical sphere and the legal sphere. One implication of that difference is, among other things, punishment, but that is not its essence. It is very difficult to explain this difference to someone who does not understand it. But it seems to me that almost every person understands it intuitively. The linguistic expression of this categorical difference lies in what grammar calls the ‘imperative mood,’ as distinct from past, present, and future (Maimonides’ remarks at the beginning of his eighth root are entirely devoted to this distinction).

It is important to understand that this is not necessarily a difference of intensity or severity: an act is not always defined as a prohibition (and not merely as an improper act) because of its greater seriousness. Sometimes this is a difference in kind. There are acts or thoughts that the Torah chooses not to bring into the legal category of Jewish law, not because they are not serious enough, but for other reasons. See, for example, the words of the Maggid Mishneh at the end of Laws of Neighbors, and Nahmanides’ commentary on the verse ‘and you shall do what is right and good,’ and also my article ‘Commandment, Reason, and the Will of God,’ Tzohar 30, Elul 5767, pp. 1-11. This is not the place to elaborate.

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