Tzohar – Elul 5767

Rabbi Michael Abraham

The usual way in which the Torah makes known its will, and the prohibitions and obligations that apply to the servant of God, is through commandments. Sometimes the impression is created that this is in fact the full range of obligations incumbent upon the servant of God. But in Jewish law there are two additional sources of obligation: reason and the will of God. By the term ‘reason,’ I do not mean the use of reasoning in interpreting the Torah, which is an everyday matter for every student, but the creation of new obligations on the basis of reasoning. By the term ‘the will of God,’ I mean the disclosure of His will in ways that are not explicit in the system of commandments. On the other hand, these wishes do not arise from reason alone, for if they did, this mode would be included in the previous one[1].

In the booklet Dibrei Soferim (sec. 23), Rabbi Elchanan Wasserman cites the verse (Jeremiah 19:5):

“They built the high places of Baal to burn their sons in fire as burnt offerings to Baal, which I did not command, nor speak of, nor did it enter My heart.”

And in the Targum there:

“Which I did not command in My Torah, nor send by the hand of My servants the prophets, nor was it My will.”

From here he concludes that the prophet’s words mention additional sources of obligation besides the explicit commands (= “what I commanded in My Torah”). What we have called here “the will of God” he terms “that which is desired before Me.”

What can be the indication of the existence of the will of God if we have no substantive reasoning about it? Necessarily, this understanding is the result of some hint in Scripture that does not appear as a halakhic command and yet teaches us that the Holy One, blessed be He, expects us to act in a certain way. In this article I wish to show, through an analysis of the measure of terumah and the manner of separating it, an example of an obligation whose source is the will of God. Afterward we will briefly bring several additional examples of this matter. The question of who is authorized to interpret the will of God will not be discussed here. Our aim is only to point to the existence of this halakhic category, and no more.

A. Separating Terumah by Estimate

Our discussion begins with a puzzling baraita brought in tractate Gittin (30b):

“Abba Elazar ben Gomel says: ‘And your terumah shall be reckoned for you’—Scripture speaks of two terumot: one terumah gedolah and one terumat ma’aser. Just as terumah gedolah is taken by estimate and by thought, so terumat ma’aser is taken by estimate and by thought…”

Rashi explains that there is an analogy here from terumat ma’aser to terumah gedolah: just as one separates terumah gedolah, so too terumat ma’aser. He adds there (31a, s.v. ‘by estimate’):

“The one-fiftieth of which the Sages spoke is separated by estimate, for if he errs there is no prohibition here by Torah law, since one grain of wheat exempts the whole heap…”

And on the words “even terumat ma’aser” he writes:

“Even though its measure is fixed by the Torah—a tenth of the tithe—it is taken by estimate.”

The difficulty in such an analogy is self-evident. In terumah gedolah there is no Torah-defined measure at all, and therefore it is clear that it is not relevant to say that terumah gedolah is separated by estimate, for there is nothing to estimate. That is not so in terumat ma’aser, whose measure is fixed as a tenth of the tithe. It seems that Rashi sensed the difficulty and proposed a solution that, at least apparently, does not resolve our question. He cites the measure of terumah gedolah established by the Sages: one-fortieth for a generous eye, one-fiftieth for an average eye, and one-sixtieth for a stingy eye; this, then, is the measure that is separated by estimate. But this raises two difficulties:

1. From where do we learn that this measure may be separated by estimate? The reason Rashi gives for separating by estimate is that terumah has no measure and there is no concern about error. But on the rabbinic level it does have a clear measure, and therefore if one separates by estimate he may err and fail to fulfill his obligation.
2. Even if there is good reason to separate the rabbinic measure of terumah gedolah by estimate, how can we derive estimate in terumat ma’aser, whose measure is by Torah law, from terumah gedolah, whose measure is rabbinic? More generally, how can one analogize a Torah law from a rabbinic law?

Now the rule of estimate in terumah gedolah is explained in tractate Terumot (1:7):

“One does not separate terumah by measure, by weight, or by count.”

The Rash there wrote (in the name of the Jerusalem Talmud) that it is a commandment to separate by estimate so that he will give generously, and such is also the plain sense of the Raavad in his glosses (Laws of Terumot 3:4). According to these approaches among the medieval authorities (Rishonim), one may interpret this as a rabbinic rule in terumah gedolah. But then the difficulty returns: from where was this learned, and how was it analogized to the Torah law of terumat ma’aser, as above?

Maimonides wrote (in his Commentary to the Mishnah there):

“It is forbidden to set aside terumah gedolah by measure, since Scripture mentioned no measure for it. Rather, one measures the produce that is liable for terumah and sets aside from it by estimate. They based this on the divine statement ‘And your terumah shall be reckoned for you,’ and they said: by thought you separate, and not by anything else. Although this verse speaks of terumat ma’aser, the well-known principle of legal reasoning applies here, namely: if it is not needed for terumat ma’aser, apply it to terumah gedolah. And we do not rely on this verse for terumat ma’aser, because its measure is known and the Torah insisted on its measure when it said ‘a tithe from the tithe.’”

It emerges that the source of the law in terumah gedolah is precisely the verse dealing with terumat ma’aser. This is exactly the opposite of what we saw in the Gittin passage, for there terumat ma’aser is learned from terumah gedolah, and indeed terumat ma’aser as well is separated by estimate. Why can the verse “And your terumah shall be reckoned for you” not be applied directly to terumat ma’aser?

From Maimonides’s words it seems that there is a tannaitic dispute here. And indeed so we find in the Sifrei (Numbers 18)[2]. Abba Elazar ben Gomel holds that terumat ma’aser is learned from terumah gedolah by analogy, and in both of them one separates by estimate. Rabbi Ishmael, whose view Maimonides follows, learns the reverse: terumat ma’aser is separated by measure, and through the principle of “if it is not needed there, apply it elsewhere,” he concludes that only terumah gedolah is separated by estimate.

Maimonides’s words clearly imply that this is a Torah law. For the principle of “if it is not needed there, apply it elsewhere” is not applied to mere scriptural supports; it is a precise consideration belonging to full-fledged derivations.

According to this, the second side of our difficulty returns in the Gemara in Gittin: how can terumah gedolah be separated by estimate by Torah law, if it has no fixed measure at all[3]? It must also be clarified, according to Maimonides, how Abba Elazar ben Gomel himself learns separation by estimate in terumah gedolah. According to his view there is no redundancy at all in the verse “And your terumah shall be reckoned for you,” for even terumat ma’aser is separated by estimate, despite its fixed measure.

In his legal code (Laws of Terumot 3:4), Maimonides writes in somewhat cryptic fashion:

“One does not separate this terumah by measure, by weight, or by count, because no measure was stated for it; rather, one estimates and sets it aside in his mind as something like one-fiftieth.”

This brings us back to the very difficulties we saw in Rashi on Gittin: how can it be inferred from the fact that the Torah gave no measure for terumah gedolah that it may be separated by estimate? The Torah gave no measure for terumah gedolah because it has no measure, for one grain of wheat exempts the heap. The measure of one-fiftieth is rabbinic, and therefore it is not clear how we know that it may be separated by estimate. And how, according to Abba Elazar ben Gomel, can terumat ma’aser be learned from it[4]?

We should note that there are indeed medieval authorities (Rishonim) who wrote that although one grain exempts the heap, there is nevertheless a Torah-level measure for giving terumah to the priest (see Tosafot Rid, Kiddushin 58a; Mishneh LaMelekh, Laws of Gifts to the Poor 6:7)[5]. But this cannot be said in Maimonides. His consistent view is (see his dispute with Nachmanides in root 12) that the separation and the giving of all the gifts are one commandment, and specifically regarding terumah his language in many places indicates that there is no commandment to give at all, only to separate, while the priests acquire from the divine table[6]. From this it will be understood why in terumah the measure is percentage-based. If the measure were a condition in the act of giving, as Tosafot Rid maintains, it would be hard to understand why the measure is a percentage. A measure of giving is fixed according to how much the priest receives, not according to what percentage of the heap was given to him (and indeed Tosafot Rid himself there does not speak about the percentage measure, which is a later rabbinic addition)[7].

B. The Measure of Terumah as the Will of God

In explaining Maimonides’s view, it seems appropriate to say that the measure of terumah gedolah is by Torah law and not rabbinic. That is, this measure is an estimate of how much the Torah itself wants us to give, and not an added stringency beyond Torah law. An example of this is the measure of a cloth required for it to be considered a garment susceptible to impurity: three by three handbreadths. This is of course a measure assessed by the Sages, but its meaning is an estimate of the Torah’s own intention.

This also seems to be implied by Rashi’s wording in the Gittin passage, where he brings the rabbinic measure as the basis of the analogy. See also Rashi on Hullin (137b, s.v. ‘de’oraita’), who wrote that separating the measure of one-fiftieth is an ideal rule hinted at in the Torah (and not a rabbinic rule), and these are precisely our words.

It stands to reason that the basis of the matter lies in the term “terumah,” which, as Rashi explains (Exodus 25:2), means a gift of the heart. The Sages now come and ask: how can one give a single grain of wheat from an enormous heap as a terumah that is a gift of the heart? Clearly the Torah expects us to give more. True, the Torah does not explicitly fix the measure, and it even teaches us that one grain of wheat exempts the heap. But since there is a law of voluntary gift, it is clear to us through interpretive reasoning that the will of the Torah is that we give more. Therefore it is clear that the Torah’s failure to state the measure explicitly was meant to teach us that this measure should be separated by estimate, so that he will give generously and from the willingness of his heart, and not merely as someone carrying out a command. Separating a fixed amount by measurement diminishes the entire effect of the “awakening from below” that the Torah wished to teach us through terumah gedolah.

The Sages then come and fix the measure, so as not to leave the matter wholly undefined. They establish that the separation of a willing heart to which the Torah alludes should be one-fortieth, one-fiftieth, or one-sixtieth. In fact, anyone who reflects on this immediately encounters a puzzling point: throughout the Torah we find measures established by the Sages, but here we have an unusual case, where the Sages establish three different measures: a generous eye, an average eye, and a stingy eye. Why did they not establish one measure, as they usually do?

It seems that the reason is that even when the Sages intervened and fixed the measure, they did not want to neutralize the giver’s choice completely. They therefore established only a framework within which he can still maneuver. In this way, the element of willing-heartedness does not disappear even after the Sages fixed the measure[8].

To sharpen the point, let us compare this with hallah. The measure in hallah is plainly a rabbinic stringency, and not an estimate of the Torah’s will as in terumah. And the fact that hallah has two measures is not at all similar to terumah, for in hallah no one has initiative or choice as to how much to separate: if he is a householder, he must separate one twenty-fourth; if he is a baker, he must separate one forty-eighth[9].

The Gemara (Menahot 54b) brought the baraita of Abba Elazar ben Gomel, and after it brought another implication of the analogy from terumah gedolah to terumat ma’aser: that terumat ma’aser too must be separated generously, like terumah gedolah. At first glance this is difficult: what does generosity mean in terumah gedolah, if the obligation is only one grain of wheat? But according to our account, the matter is perfectly clear. This itself is what the baraita teaches: even by Torah law there is a divine desire that we separate generously. According to this, it is possible that even the Rash and the Raavad whom we cited above (section A), in explaining the rule of separating terumah gedolah by estimate, agree with what we have explained in Maimonides, and do not mean a rabbinic rule as was claimed above[10].

If the commandment of terumah has as its aim only gratitude toward God, unlike the other priestly gifts[11], it is also clear why, according to Maimonides, it does not include a component of giving. Its measure includes three levels of separation, precisely so as to leave the separation dependent, at least in part, on the willing heart of the one who separates. We saw that the measure of terumah is percentage-based, and this too follows from the conception that in terumah what matters is what the Israelite gives, not what the priest receives.

According to this proposal, the difficulties presented above regarding the measure of terumah gedolah are easily resolved: terumah gedolah too has a measure, only the Torah did not write it explicitly, in order to teach us to separate by estimate. This measure is essentially the very measure established by the Sages. On this basis, the baraita of Abba Elazar ben Gomel, which analogized terumat ma’aser to terumah gedolah and required separation by estimate, is very well explained. This is an analogy from one Torah law to another Torah law, since this measure is not rabbinic but by Torah law.

We saw that Maimonides, Rashi, and other medieval authorities concluded from the fact that the Torah gave no measure that one should separate by estimate. We wondered how such an inference could be made when there is nothing at all to estimate. But now there is no difficulty at all. This is an interpretive reasoning that sees in the Torah a hint to the obligation to separate more than one grain of wheat. From the very term “terumah,” one learns that one must separate a worthy amount from a willing heart. At the same time, the Torah established that one grain of wheat exempts the heap. The necessary conclusion is that this is not because there is no expectation of a meaningful terumah, but because it is desired that the gift come from an awakening from below. Had the Torah explicitly given the desired measure for giving as a measure that conditions the repair of the heap, a person’s ability to serve God by giving from a willing heart would have been taken away from him. Therefore the Torah had to leave the measure for the Sages to specify.

We will conclude this section with a note from the Jerusalem Talmud at the beginning of Peah, which asks why the Mishnah there did not add terumah to the list of things that have no measure; see there for the Gemara’s answer (and the commentators who disagreed about it). At the end of the passage they ask why other items were not added:

“Rabbi Berekhiah asked: Why do we not teach the soil of the sotah? Why do we not teach the ashes of the red heifer? Why do we not teach the saliva of the yevamah? Why do we not teach the bird’s blood of the metzora?”

And they answer:

“Our Mishnah includes only things to which one may add and whose performance is itself a commandment. These, although one may add to them, there is no commandment in doing so.”

To the question about terumah at the beginning of the passage, this answer was not given. According to our account, that answer is indeed irrelevant to terumah, for in terumah the addition is certainly a commandment, even by Torah law. In light of what has been explained, the addition is part of the commandment itself and not merely an option, since it expresses the willing-heartedness inherent in terumah.

C. Two Explicit Proofs from Maimonides’s Wording

I would now like to bring two proofs from Maimonides’s words, by noting the difference between hallah and terumah.

1. In Laws of Terumot (chapter 3), Maimonides wrote:

“1. Terumah gedolah has no measure by Torah law. As it is said, ‘the first of your grain’—any amount whatsoever, even one grain of wheat, exempts the heap. Ideally, however, one should separate only according to the measure given by the Sages…”

“2. And what is the measure given by the Sages? A generous eye: one-fortieth; an average eye: one-fiftieth; a stingy eye: one-sixtieth. One should not give less than one-sixtieth.”

It is clear from his wording that this measure is not a stringency from the words of the Sages, but an ideal rule within Torah law (as in Rashi on Hullin cited above). For comparison, let us bring his wording in Laws of First-Fruits (chapter 5) regarding hallah, where he writes:

“1. It is a positive commandment to separate a terumah from the dough for the priest, as it is said: ‘Of the first of your dough you shall set aside hallah as a terumah.’ This first portion has no measure by Torah law. Even if he separated an amount the size of a barley grain, he has exempted the dough…”

“2. By rabbinic enactment, one separates one twenty-fourth of the dough so that there be in it enough to count as a gift for the priest, as it is said, ‘you shall give him’—give him something fit to be given as a gift. A baker who prepares to sell in the market separates one forty-eighth, because his dough is plentiful and in this measure there is enough to count as a gift.”

It is evident from his language that here the formulation is that of an ordinary rabbinic rule, and not the language of “ideally,” as in Laws of Terumot. In the book Ma’adanei Eretz by Rabbi Shlomo Zalman Auerbach (Laws of Terumot, ch. 3 halakhah 1), he already noticed this change in wording and wrote that it seems the measure of terumah is not indispensable, whereas in hallah the measure is indispensable; see there at length. According to our explanation, the wording is exceedingly precise. This is not essentially a question of invalidation. Invalidation is only a conclusion that follows from the essential difference. According to Maimonides, there is no rabbinic rule at all to separate one-fiftieth; rather, this is an ideal rule within Torah law, and therefore it is not indispensable. In hallah, by contrast, this is an additional rabbinic rule, and therefore it is also indispensable (rabbinically)[12].

We should further note that the wording Maimonides uses in hallah is to separate for the priest, whereas with terumah there is no rule of giving at all. It is also explicit in Maimonides’s words that in hallah the purpose of the measure is that there be “enough as a gift for the priest,” whereas with terumah he does not mention the reason for the measure as a measure in giving. This matter is explained very well by what we explained above in Maimonides’s view: in the commandment of hallah there is a component of giving, unlike the commandment of separating terumah.

2. It seems that on the basis of this principle, the later authorities’ puzzlement (see Ma’adanei Eretz there, sec. 3) about the contradiction in Maimonides regarding the law of hallah and terumah in our time will likewise be explained. In Laws of Terumot (there), Maimonides wrote that nowadays, since terumah is not given to the priest but burned, one should separate only a minimal amount and burn it. But in Laws of First-Fruits (there), Maimonides wrote that nowadays, although the hallah is burned, one should nevertheless take one forty-eighth from the dough and burn it. The later authorities asked: why is terumah satisfied with any amount, while hallah requires that one burn one forty-eighth, and they remained greatly perplexed.

According to our explanation, the contradiction disappears on its own. In terumah there is no rule at all to separate one-fiftieth; this is simply a higher-order expression of gratitude. Therefore, in a case where gratitude cannot find expression—since the terumah is burned—there is no point in it, and one separates only a minimal amount in order to permit the untithed produce. As we saw, this measure is not indispensable. In hallah, by contrast, there is a rabbinic rule to separate one twenty-fourth, and it is indispensable (albeit rabbinically). Even if it is impossible to give it to the priest, one must still separate in the manner fixed by the Sages in order to fulfill the rabbinic rule; therefore, although the hallah is burned, one separates one forty-eighth and burns it[13].

D. Obligations Whose Basis Is the Will of God

Let us now return to what we said in the introduction to this article. As argued above, the measure of separating terumah is by Torah law. This is not an explicit commandment, but a will of the Torah that is not explicit, and the Sages assessed it as lying between one-fortieth and one-sixtieth. The Torah hinted that it wants the Israelite to separate such an amount from a willing heart in order to express gratitude to God for the grain given to him. From here one may learn a major principle: the will of God too obligates the Jew, no less than the enumerated commandments.

If our words are indeed correct, the matter requires explanation. Why are there things that the Torah left as an unarticulated will and did not formulate as enumerated commandments? And can one formulate a criterion according to which the Torah—or the Giver of the Torah—distinguished between those of His wishes that should be formulated as commands and those that should remain as raw will? This question can also be asked about the other category mentioned in the introduction above (things learned from reason). Regarding these matters there are several discussions by Rav Kook in his letters and in Orot HaKodesh (3, 318), and Rabbi Yehuda Amital has already discussed this in his article “The Meaning of Rav Kook’s Teaching for Our Generation” (see there, section C)[14].

The essence of Rav Kook’s position appears in his answer to the famous question why the Torah did not explicitly command the cultivation of character traits. The well-known answer of Rabbi Hayyim Vital is that the Torah was given to human beings, and one who needs to be commanded to work on his traits is not yet within the category of a human being, and there is therefore no point in commanding him at all. According to this, a command concerning character refinement would be superfluous. Rav Kook adds that such a command might even have been harmful, for the whole value of working on one’s traits lies in its coming from the initiative of the one who serves, and not as someone merely carrying out a higher command as though compelled by an outside force. Only in this way can genuine spiritual progress be attained. These are his words (Iggerot HaRa’ayah, vol. 1, p. 100):

“It is impossible to estimate the magnitude of the loss that human culture would have suffered had these exalted traits been fixed as binding obligations…”

Rav Kook continues there and writes that there are matters in which the simple human intuition still remains in place, namely, that one who is not commanded and acts is greater than one who is commanded and acts. From this one may say something similar in our case as well: sometimes the command detracts. Genuine gratitude, which finds expression in separating terumah, must arise from the grateful person and not as the result of a command to be grateful. Therefore the Torah left this matter as a hint and not as an explicit commandment. And perhaps this is the explanation of all obligations that belong to the category of the will of God.

One should note that both the separation of terumah as an expression of gratitude to the Holy One, blessed be He, and the cultivation of character traits are not obligations that can be attributed to simple human reasoning. The proof is that in the broader world it is not customary for a person to work on his character traits. Going to a psychologist is meant to relieve a person of one difficulty or another, but not to improve his character traits as an independent goal, in order to make him a better person[15]. If so, improvement of character traits is not perceived as a regular obligation derived from reason. In the terminology we proposed above, this is the will of God and not reason[16].

E. Additional Examples of Obligations That Derive from the Will of God

The central claim of this article is that there exists another Torah category besides commandment and reason, and that is the will of God. We brought in detail an example from the laws of terumah, and briefly another example from improving one’s traits. Are there more examples? Here I will try to suggest, very briefly, three more examples: settling the Land of Israel, Torah study, and repentance. In the previous two examples (terumah and improvement of traits), the reason they are not written explicitly is the desire to preserve the voluntary dimension they contain. In these three cases, it seems that precisely because of their importance and fundamentality the Torah did not include them in its formal system of commands. The Torah did not want us to think that these three are ordinary commandments like any other, but to understand that they are foundations lying beneath the entire Torah.

1. Settling the Land of Israel

It is well known that Maimonides does not count the commandment of settling the Land of Israel in his enumeration. On the other hand, many have already noted that this commandment is mentioned in his laws in indirect ways (through the law of a wife or a slave who wish to ascend to the Land of Israel, and also more broadly in Laws of Kings, chapter 5). According to what we have said, it is possible that here we are dealing with an obligation whose basis is the will of God, and therefore it does not appear in Scripture as a command. How do we know that this is the divine will? Certainly not from reason, for it is hard to see any rational basis for settling the Land of Israel without a Torah command[17]. The basis of the obligation is indirect indications found in the Torah that this is what the Holy One, blessed be He, wants from us, even if the Torah contains no explicit command concerning it[18].

2. Torah Study

The Rosh’s position in his commentary to Nedarim (8a) is that Torah study beyond reciting Shema morning and evening is optional and not obligatory[19]. If so, why are we required to study Torah beyond that? What is the meaning of the term “neglect of Torah study” (which already appears in the Talmud, and it stands to reason that the Rosh does not dispute it)? It seems that when we are told that the Torah is “our life and the length of our days,” we can understand that the will of God is that we study as much as possible. It should be emphasized: there is no reasoning here that is connected to the content of the commandment, for studying in order to know what to observe is not the core of the commandment of Torah study (women too are obligated in that, though they are exempt from the commandment of Torah study). If so, according to the Rosh it seems that the obligation to study Torah as much as possible (even beyond reciting Shema morning and evening) is an end in itself, and there is no underlying logical rationale. If so, this obligation too is the result of various indications that this is the will of God[20].

It seems that even the other medieval authorities (Rishonim), who see a halakhic obligation to study Torah at every possible time, can agree with the Rosh on this point. They only maintain that this obligation is accompanied by another obligation of ordinary halakhic character, although apparently it is not truly by Torah law (as is proven from the passage in Nedarim mentioned above, and see the Ran there, who derives it from an exposition on “and you shall teach them diligently”)[21]. This does not mean that they deny the existence of an obligation whose basis is the will of God and which is not explicit in the Torah.

An interesting source for this approach is found in the passage in Menahot (99b), whose entire course expresses this idea:

“Rabbi Ami said: From Rabbi Yosei’s words we learn that even if a person studied only one chapter in the morning and one chapter in the evening, he has fulfilled the commandment ‘This book of the Torah shall not depart from your mouth.’ Rabbi Yohanan said in the name of Rabbi Shimon ben Yohai: even if a person recited only Shema morning and evening, he has fulfilled ‘it shall not depart’; and it is forbidden to say this before the unlearned. Rava said: it is a commandment to say it before the unlearned. Ben Dama, the son of Rabbi Ishmael’s sister, asked Rabbi Ishmael: such as I, who have studied the entire Torah—what is the law regarding studying Greek wisdom? He applied to him this verse: ‘This book of the Torah shall not depart from your mouth, and you shall meditate on it day and night’—go and find an hour that is neither of the day nor of the night, and then study Greek wisdom. And this disagrees with Rabbi Shmuel bar Nahmani… Rabbi Yonatan said: this verse is neither an obligation nor a commandment, but a blessing. The Holy One, blessed be He, saw that Torah words were especially beloved to Joshua, as it is said: ‘His attendant Joshua son of Nun, a youth, would not depart from the tent.’ The Holy One said to him: Joshua, are words of Torah so beloved to you? Then ‘this book of the Torah shall not depart from your mouth.’ A teaching from the school of Rabbi Ishmael: words of Torah should not be upon you as an obligation, yet you are not permitted to exempt yourself from them.”

The Gemara opens with the determination that there is no obligation to study Torah beyond reciting Shema morning and evening. According to our approach, there is no formal halakhic obligation that is the product of a command, but there certainly is an obligation whose basis is the will of God. The dispute is then brought as to whether it is a commandment or forbidden to say this before an unlearned person. How are we to understand that it is a commandment to say this to the unlearned? It seems that Rava holds that this statement magnifies the importance of study and does not diminish it. The reason is that the commandment is so important and fundamental that the Torah saw fit to leave it without an explicit command, as an expression of the will of God. Therefore it is a commandment to say this before an unlearned person, since it will spur him to study and will not deter him from study.

Immediately afterward comes the story of Ben Dama, which is also difficult: if he really knows the entire Torah, as he testifies about himself, how does he not know the answer to this very question (whether it is permitted to study Greek wisdom)? According to our account, the matter is perfectly clear: Torah study is not a formal commandment, and therefore he is not obligated in it as such by Torah law. But there is interpretive reasoning that this is the will of God. The answer to this question does not belong to the knowledge contained in the Torah itself, and therefore Ben Dama does not know it. It is the will of God that accompanies the Torah, and not part of the formal Jewish law itself.

To this Rabbi Shmuel bar Nahmani says that this verse is “neither an obligation nor a commandment, but a blessing.” His intention is to say that in truth there is no commandment here and not even an obligation; it is simply a blessing to Joshua. This implies that those who disagree with him hold that there is here both obligation and commandment. What is the difference between an obligation and a commandment? It seems that the commandment is reciting Shema morning and evening, and the obligation is at all times—that is, an obligation whose basis is the will of God.

Immediately afterward Rabbi Ishmael says that words of Torah should not be upon you as an obligation, and yet you are not permitted to exempt yourself from them. This too is exactly in line with our account, for there is here an obligation that is not a commandment, and therefore he says that we are not permitted to regard this as an exemption. At first glance, however, this is difficult, for at the beginning of the passage Rabbi Ishmael disputes Rabbi Shimon ben Yohai, and he holds that the obligation is continuous—every day, all day long. Necessarily, his meaning is that the commandment of Torah study is indeed only morning and evening, as Rabbi Shimon ben Yohai maintains, and yet it remains forbidden to neglect it because of the will of God, and not because of any formal law.

This also resolves the contradiction to the words of Rabbi Ishmael and Rabbi Shimon ben Yohai in the passage in Berakhot (35b), where, as several later authorities have already noted, they reverse their positions as compared to the passage here:

“ ‘And you shall gather your grain’—what does this teach? Since it is said, ‘This book of the Torah shall not depart from your mouth,’ one might have thought these words are to be taken literally. Therefore Scripture says, ‘And you shall gather your grain’—conduct yourself according to the way of the world; these are the words of Rabbi Ishmael. Rabbi Shimon ben Yohai says: Is it possible that a person plows at plowing time, sows at sowing time, reaps at harvest time, threshes at threshing time, and winnows when the wind blows—what then will become of Torah? Rather, when Israel does the will of the Omnipresent, their labor is done by others, as it is said, ‘Strangers shall stand and feed your flocks.’ And when Israel does not do the will of the Omnipresent, their labor is done by themselves, as it is said, ‘And you shall gather your grain’; and not only that, but the labor of others is done by them, as it is said, ‘And you shall serve your enemy.’ Abaye said: many acted in accordance with Rabbi Ishmael, and it succeeded for them; in accordance with Rabbi Shimon ben Yohai, and it did not succeed for them.”

Rabbi Ishmael there holds that reciting Shema morning and evening is sufficient—exactly the opposite of what appears here—whereas Rabbi Shimon ben Yohai there specifically seems to think that the obligation admits of no interruption. How can we resolve these two complete contradictions? According to our explanation, the matter is well resolved, for the two do not really disagree: when the discussion concerns the formal obligation, it is only reciting Shema morning and evening; when the discussion concerns the broader truth, it is all the time. We note that even within the framework we have outlined, there is still a dispute between these tannaim, and the later authorities have already written at length about it, but this is not the place.

3. Repentance

Minhat Hinukh (commandment 364) points to a contradiction in Maimonides regarding the commandment of repentance. On the one hand, in the Book of Commandments he does not count a commandment to repent, but only a commandment to confess when one repents (positive commandment 73): “when the sinner returns from his sin, he should confess.” On the other hand, at the beginning of the Laws of Repentance he writes: “that the sinner should return from his sin before God and confess.” It is possible that here too the basis of the difference is that we were not commanded about repentance in an explicit verse[22], but there is nevertheless such an obligation whose basis is the will of God. Therefore, in the enumeration of the commandments it cannot be counted, but it certainly must be included as one of the obligations within the halakhic code.

To be sure, one must still discuss whether the commandment of repentance is derived from the will of God or whether there is instead a logical rationale obligating one to return. This depends on the definition of the concept of repentance (see, for example, Meshekh Hokhmah, Deuteronomy 31:17, and elsewhere), but this is not the place to elaborate.

F. Conclusion: The Words of the Author of Mesillat Yesharim

We have thus learned that there is more than one kind of non-enumerated commandment: some are not enumerated because they are not important enough, some are not enumerated because they are very important, and some are not enumerated because the Torah wishes to preserve the voluntary dimension that exists within them. In all these cases, their nonappearance in the Torah does not mean that there is no obligation to do them—an obligation whose basis lies in doing the will of God, even without a command. Obligations whose basis is substantive reason (such as the obligation to be a good and moral person) also obligate by virtue of the will of God (see on this my article in Tzohar 25), but our indication for the existence of such a will is the very reasoning that such is the proper way to act, and not a scriptural hint. This is another type of obligation without command, which we have not discussed here.

And as the gates were about to close, I found virtually all of our argument in the book Mesillat Yesharim by Rabbi Moshe Hayyim Luzzatto, in his explanation of the trait of piety (chapter 18). He opens with the principal definition of the pious person:

“The root of piety is what our Sages said: Happy is the person whose labor is in Torah and who gives pleasure to his Maker. The point is that the commandments imposed on all Israel are already known, and the extent of their obligation is known. But one who truly loves the Creator, blessed be His name, will not seek and intend merely to discharge himself with what is already publicized as the obligation incumbent upon all Israel generally; rather, it will be for him like a son who loves his father: if his father reveals even slightly that he desires one of certain things, the son will immediately do much in that matter and in that act, as much as he can.”

Afterward Rabbi Moshe Hayyim Luzzatto explains that this will is learned from hints in the father’s words:

“And even though his father said it only once and in half a sentence, that is enough for the son to understand where his father’s mind inclines, and to do for him even that which he did not say explicitly, since he can judge for himself that the matter will give him pleasure; he will not wait for him to command him more explicitly or to say it a second time.”

And he concludes:

“Thus the general principle of piety is the expansion of the fulfillment of all the commandments in all the aspects and conditions that are fitting and possible. And you see that piety is of the same kind as abstinence, except that abstinence concerns prohibitions and piety concerns positive commandments, and both are one matter: to add beyond what is explicit whatever we can infer, on the basis of the explicit commandment, will bring pleasure before Him, blessed be He. This is the true definition of piety.”

One should note that Rabbi Moshe Hayyim Luzzatto is not speaking here about obligations derived from reason, but about obligations toward the Holy One, blessed be He, whose basis is not command but the understanding that this is His will. The obligation to fulfill them is not because we understand that this is the correct behavior, but because we have been given hints that this is the will of God, blessed be He. The rest—go and learn.

[1]    There is a discussion of obligations whose source is not the system of commandments in the book Naḥalat Asher, by Rabbi Asher Zelig Weiss, Bava Kamma, sec. 1 and the first appendix; likewise in the article by Rabbi Menachem Mendel Kasher, “Sevara De’oraita,” at the beginning of the book Mefane’aḥ Tzefunot. Neither of them distinguishes between the will of God and reason. See, regarding the blessing recited before enjoying food, my article “What Is Guilt,” in Magal, 5767, The Institute for Advanced Torah Studies, Bar-Ilan University.

[2]    And see there in Malbim’s commentary, sec. 59, as well as Tosafot, s.v. ‘taken,’ in the Gittin passage there.

[3]    On this matter, see Raavad, Laws of Terumot 3:4, who wrote that in terumah (unlike tithe) one may separate more than one grain of wheat, and after deciding how much he wants to separate, he should separate by estimate, in order to cause him to separate more than he had decided, so that his terumot not be spoiled. This is forced.

[4]    After writing this, I saw two articles that addressed Maimonides’s approach to giving terumah: Rabbi Yaakov Yutkowitz, Alon Shevut 165, and Rabbi Yitzhak Ben David, Alon Shevut 166.

[5]    And regarding hallah, see a similar point in Noda B’Yehuda, second edition, Yoreh De’ah, sec. 201.

[6]    There, in the roots, he does not bring the example of terumah at all, and consistently he changes the language between terumah and the other priestly gifts (see positive commandments 125, 127, 129, 133, as against 126).

[7]    See Tosafot, s.v. ‘perhaps,’ on Gittin 20a, who wrote that not every act of giving has a measure, and he mentioned terumah as well. See also the Mishneh LaMelekh cited above in Laws of Gifts to the Poor, and the other commentaries there.      We may note that in hallah too the measure is percentage-based, even though in hallah the measure concerns the giving (as will be seen below). Even so, in hallah there is a minimum quantity required in order to become obligated, unlike terumah. The combination of these two principles yields that in hallah there is a minimum measure of giving.

[8]    It should be noted that we find several other examples in Jewish law where there is a threefold measure: the sliding-scale offering—rich, poor, and very poor. Hanukkah—basic observance, those who beautify the commandment, and those who beautify it beyond that. And perhaps charity as well: one-third of a shekel, a tenth, and a fifth. It seems that in all these cases there is a dimension of willing-heartedness, and therefore the measure was fixed in a flexible way (the sliding-scale offering may perhaps be exceptional, and its aim may be not to impose too heavy a burden on a poor penitent who seeks atonement, and this requires further study).

[9]    This seems more similar to the measure in the sliding-scale offering. See the previous note.

[10] In the passage in Hullin 137b there arises an initial assumption that the measure of one-sixtieth is by Torah law, and in the conclusion the Gemara retracts from that. According to our account, this is not a complete retraction, but only with respect to the permitting of the heap; as an ideal manner of separating, however, the Torah’s will is this measure. And indeed Rashi there (cited above) used the language of an ideal requirement and not rabbinic language. See further below that Maimonides too used such language regarding terumah.

[11]   I do not mean to say that in the other priestly gifts there is no element of gratitude at all. In first-fruits, for example, the Torah explicitly states that this is an expression of gratitude to God. What distinguishes terumah from the other priestly gifts is that in terumah there is only the element of gratitude.

[12]   There would have been room to say that the invalidation is by Torah law, in accordance with Tosafot, Sukkah 3a, and Rabbeinu Yonah, Berakhot at the beginning of chapter 1, who hold that one who does not perform a commandment in the manner fixed by the Sages has not fulfilled his obligation even on the Torah plane, but this is not the place to elaborate.

[13] And particularly according to Maimonides, who takes the separation and the giving in hallah as two parts of one commandment, if there is a rule to give the priest the proper measure, then clearly that rule already exists at the stage of separation, and one must also separate according to the proper measure. If so, once the law regarding this measure was fixed, it conditions the permitting of the untithed produce and not only the giving. According to Nachmanides, who sees here two different commandments, there is greater room to distinguish between them.

[14]   Republished in Alon Shevut Bogrim 3. See also Rabbi Sheviv’s article there, no. 7.

[15] Editorial note: See the article by Yehuda Dehan, Tzohar ****.

[16] It may be that improving the behavior that derives from one’s traits is an obligation grounded in reason, but the obligation to improve the traits themselves is fundamentally a spiritual-psychological obligation, and not merely a means to proper behavior, and this is not the place to elaborate.      We may note that perhaps this explains a difficulty over which I have always wondered and struggled. We cited Rabbi Hayyim Vital and Rav Kook as asking why the Torah does not command improvement of the traits. But there is in fact such an obligation, according to most enumerators of the commandments: “and you shall walk in His ways” (see Maimonides, Book of Commandments, positive commandment 8). According to our explanation, one may say that the enumerated halakhic obligation is improvement of behavior, whereas the obligation to improve the traits as an end in itself is not enumerated, but derives from the will of God.

[17] One might have seen such a rationale in the fact that in the Land of Israel one can fulfill more commandments. But it has already been noted that, at least according to some medieval authorities (Rishonim) and later authorities (Acharonim), the commandment of settling the Land of Israel goes beyond fulfilling the commandments dependent upon it. Beyond that, such a rationale would still not be a substantive rationale, but only one rooted in the will of God (for even the commandments dependent on the land, at least most of them, are not commandments grounded in reason).

[18] My thanks to the editor, who suggested this example to me.

[19] And so too is the plain sense of the Gemara there, although see the Ran and other medieval authorities (Rishonim), and this is not the place to elaborate.

[20] One might have seen this as a fulfillment-type commandment, but we do not find a separate source commanding it apart from “and you shall meditate on it.” Beyond that, even a fulfillment-type commandment does not justify referring to non-study as “neglect of Torah.” Therefore we are forced to arrive at a positive obligation whose basis is the will of God.

[21] There is room to discuss here the details of the different approaches, for from Maimonides and other medieval authorities (Rishonim) it seems that there is a full Torah obligation to study whenever possible, and this apparently contradicts the passage there. This is not the place to elaborate.

[22] As is well known, Maimonides in chapter 7 of the Laws of Repentance interprets “and you shall return to the Lord your God” as a promise, and Nachmanides in his commentary to the Torah disagrees with him on this point.