On Commandments and Facts (Column 192)

With God's help

At the end of the previous column I presented a distinction between the question whether a certain person is praying and the question whether he is fulfilling the commandment of prayer. I argued there that a situation is possible in which a person prays but does not fulfill the commandment of prayer (though of course not the reverse), if that person is a latent believer. My assumption is that commandments require conscious belief (a conscious decision that I believe), but the state of prayer is perhaps a factual state in which a person prays even if his belief is not conscious. In this column I will elaborate a bit on this distinction, with respect to prayer and in general, and touch on its implications.

Between prayer and the commandment of prayer

I will begin with a further discussion of the distinction I made regarding prayer. R. Chaim, in his commentary on Maimonides in chapter 4 of Hilkhot Prayer, law 1, remarks in passing:

But one must add further that, in Maimonides' view, the obligation and commandment of prayer are mandated by Torah law; and even according to those who disagree with Maimonides, that is only regarding its obligatory force, but its fulfillment and essence are, according to all views, mandated by Torah law…

He argues that even those who disagree with Maimonides (such as Nachmanides in his glosses to positive commandment 5) and hold that the entire commandment of prayer is rabbinic, agree that there is a fulfillment of prayer on a Torah level. He means to say that even if there is no Torah obligation to pray, prayer is still considered prayer on a Torah level. In effect, he is saying that the concept of prayer exists on a Torah level,[1] even without the commandment to pray. In standard Brisker terminology, this is the cheftza (formal object) of prayer. In other words, we have here a situation in which a person prays without fulfilling the commandment of prayer, exactly as I wrote.

It seems to me that in light of this distinction I would explain somewhat differently the main distinction he makes there in his commentary on Maimonides. R. Chaim distinguishes between several different intentions that are required in prayer, and more can also be added. Here is a partial list: the intention to fulfill one's obligation, as with all commandments; the intention of standing before God; the intention not to be acting absentmindedly (that is, to be aware that one is praying—see Ra'ah on Berakhot 12b and elsewhere); and intention toward the words. The first three intentions are conditions for the fulfillment of the commandment (at least according to the view that commandments require intention), meaning that without them one has not fulfilled the commandment of prayer. But the last intention—intention toward the words—is a condition in the very concept of prayer itself. It is not required as part of fulfilling the commandment, but as a condition for our being able to regard his act as an act of prayer. Without it, he is not speaking but merely moving his lips, and the concept of prayer requires speech. Lip movement without understanding the words is not speech, and therefore it has no halakhic value at all (though it may perhaps have value as an effort and desire to fulfill the commandment, like the well-known story of the shepherd who plays a flute on the High Holy Days because he does not know how to pray). I will only note that intention toward the words itself can be understood on at least two levels: understanding the words and directing oneself to what they say. It seems to me that both of these meanings are conditions in the concept of prayer, and not specifically in the commandment of prayer.

It follows that if a person intends the meaning of the words but does not intend to fulfill his obligation and to stand before God, he has not fulfilled the commandment of prayer (according to the view that commandments require intention), but he has prayed (perhaps the intention to stand before God is indispensable even for that). He has performed an act of prayer. Again we have a case of an act of prayer that is not a fulfillment of a commandment. Thus, for example, the Patriarchs who prayed to the Holy One, blessed be He, before the revelation at Mount Sinai also did not fulfill the commandment of prayer, since they were not commanded (certainly if prayer is only a rabbinic commandment, according to Nachmanides), but they certainly performed an act of prayer. The same applies to a gentile or a minor who prays.

And what if a person prays with the intention to fulfill his obligation but without understanding the words and without directing himself to them? Here I tend to think that he performed neither an act of prayer nor the commandment of prayer. Lip movement without understanding the words is not speech, and therefore there is no act of prayer here. But if so, then there is certainly no fulfillment of the commandment of prayer either, for the commandment is to pray. This is intention without the commanded act itself. Still, one should discuss whether these points apply only to understanding the words or even to directing oneself toward them.

The conclusion that emerges from all this is that the concept of prayer has meaning in its own right, prior to the halakhic definitions and the command. Jewish law and the command merely instruct us to perform this act and in what ways, but they do not define the act itself. Its definition does not depend on Jewish law and command, but on some universal lexicon. The concept existed and was defined in the same way even if we had not been commanded in it at all (as before the giving of the Torah). One who recites the verses of the prayer and understands them and directs himself to them is praying. That is the conceptual-universal layer. Jewish law merely adds further halakhic layers: it imposes on us an obligation to pray, and requires us to intend to fulfill our obligation and to stand before God, to do so at certain times and in certain formulations, and the like.

Proof of this: the reward for prayer and prayer at its proper time

The Mishnah at the beginning of the fourth chapter of Berakhot states that the time for the morning prayer is until midday. And the Talmud there (26a) comments that we find that the entire day is still a time for the morning prayer:

And does everyone really hold that only until midnight and no further? But didn't Rav Mari, the son of Rav Huna, the son of Rabbi Yirmeya bar Abba, say in the name of Rabbi Yoḥanan: If one erred and did not recite the evening prayer, he recites the morning prayer twice; if he missed the morning prayer, he recites the afternoon prayer twice. One may pray all day long up until midday; until midday they give him the reward for prayer at its proper time, from that point on they give him the reward for prayer, but they do not give him the reward for prayer at its proper time.

The difficulty is not clear (it mixes make-up prayer with the primary prayer), but what matters for our purposes here is the answer: until midday one receives the reward of prayer at its proper time, whereas after midday one receives the reward of prayer, but not the reward of prayer at its proper time.

According to Maimonides this is easy to understand, since until midday one receives the full reward for prayer because one fulfilled it in accordance with the enactment of the Sages. But one who prayed after midday fulfilled only the Torah-level element, and did not do so at the time set by the Sages. Therefore he receives reward for Torah-level prayer, but not for the rabbinic addition. But what can we say here according to Nachmanides? According to his view, the entire institution of prayer is rabbinic, so what reward does one receive when praying after midday? He has fulfilled nothing here. We are forced to conclude that he too agrees that the concept of prayer exists on a Torah level (as R. Chaim assumed in the passage cited above), and even if one does not perform it in accordance with the enactment of the Sages, one has still done something of value (though not a commandment in the formal sense). Therefore he too agrees that there is reward for one who prays after midday.[2]

Donning tefillin

Does a similar distinction also exist regarding donning tefillin? In the previous column I wrote that it does not. And here is my golden formulation:

Is there value to such prayer? I think not, because such value exists only when one fulfills the commandment of prayer. Therefore, in my view, there is also no value in putting tefillin on an atheist in the street (as distinct from putting tefillin on a traditional Jew or on a believer who has not put them on), even if I assume that he may perhaps believe in his subconscious. Here the question is whether he fulfilled the commandment of tefillin, and my answer to that is no. But as for counting him toward a prayer quorum, as I explained, that may depend only on the factual question whether he is praying, and not on the normative question whether he is fulfilling the commandment of prayer.

My claim is that in the commandment of tefillin there is no conceptual layer that precedes Jewish law. Jewish law and the command are what define the concept of tefillin and the commandment of donning tefillin. One who does not do so according to Jewish law has done nothing.

Directive and constitutive commandments

The meaning of all this is that in Jewish law there are two types of commandments: directive and constitutive:

• Directive commandments are commandments like prayer, which are based on a concept that is defined and exists even outside Jewish law and independently of it. Jewish law merely instructs us that there is an obligation to do it and defines how. Here Jewish law is a second layer atop the conceptual layer, and it comes to direct us when we pray. Usually it only adds to the content that follows from the definition of the concept itself,[3] and overall there will be two kinds of requirements: those that derive from the conceptual layer and those that derive from Jewish law (the fulfillment of the commandment), as we saw with regard to intention in prayer. The requirements that stem from the conceptual layer do not need a source in a verse or exposition. They arise by reasoning from the definition of the concepts involved in the commandment. The halakhic requirements, of course, do need a source.
• Constitutive commandments are commandments like tefillin: commandments and concepts that Jewish law constitutes and defines, and apart from it they have no meaning. Were it not for the command, the concept of tefillin would not exist, and there would also be no meaning to donning them. Here there is only one kind of requirement, and every such requirement needs a source.

Examples

In light of this distinction, one can discuss various commandments and ask to which type they belong. It is not always so clear. Take, for example, the commandment of tzitzit. At first glance, the concept of tzitzit is defined by Jewish law, which constitutes it. We are speaking of eight threads on the four corners of the garment in a very specific form. Were it not for Jewish law, we would not have such a concept. But in the section on tzitzit we find the verses (Numbers 15:37–40):

And the Lord said to Moses, saying: Speak to the children of Israel and say to them that they shall make for themselves fringes on the corners of their garments throughout their generations, and they shall place on the fringe of each corner a thread of blue. And it shall be for you as tzitzit, and you shall look at it and remember all the commandments of the Lord and perform them, and you shall not stray after your hearts and after your eyes, after which you go astray. So that you may remember and perform all My commandments, and be holy to your God.

It seems that after the Torah defines tzitzit, it returns and states and it shall be for you as tzitzit. What does that verse mean? From the wording here it appears that the concept of tzitzit exists even before the command, and the Torah instructs us to make tzitzit specifically this way and not otherwise. In other words, the commandment of tzitzit is directive rather than constitutive. What is the concept of tzitzit in its dictionary sense, prior to Jewish law? Some have explained that it is some sort of symbol intended to distinguish us. Perhaps that is also the intention of the verses that follow, which say that the tzitzit are meant to remind us of all the commandments and that we not stray after our hearts and our eyes. That is, the concept of tzitzit exists even before the command; it is a symbol whose purpose is to focus us. The Torah merely imposes on us an obligation to attach it and explains to us exactly how to build our symbol: with threads, blue and white, a four-cornered garment, and so forth. The verse and it shall be for you as tzitzit means that the structure the Torah describes is what shall serve as tzitzit for us, and not something else.

From here one can infer that something that cannot serve as a symbol will be invalid even without a verse. This is a conceptual invalidation and not a halakhic one. Incidentally, this may be the source for the medieval authorities who wrote that the tzitzit must be on the outside. There is no clear source for this; rather, it follows from the meaning of the concept. They did cite and you shall see them, but that is not really a source, and there is no room for medieval authorities to derive expositions on their own. It seems to me that their intention was to say that this is the definition of a symbol: if it is not on the outside, it cannot function as a symbol. This is a conceptual requirement, not a halakhic one. According to this, one must discuss the position of those who disagree, but that is not our concern here.

In a Mida Tova article for Parashat Ki Tetzei I explained that marriage and divorce too are directive rather than constitutive commandments. Marriage is the construction of a marital unit, and divorce is its dissolution. The marital unit is a social concept, not a creation of the Torah. It existed even before the giving of the Torah (as Maimonides describes at the beginning of Hilkhot Ishut), and the Torah merely directs us how to do it properly (for example, to precede marriage with kiddushin—in the specific forms of kiddushin—and to carry out divorce with a get).

That is how I explained there the very puzzling words of Sefer HaChinukh, who writes at the end of commandment 579 (to divorce a woman by means of writing/document):

One who violates this and divorces his wife without writing her a bill of divorce in accordance with the Torah's commandment and in the manner explained by our Sages of blessed memory has neglected this positive commandment. His punishment is very severe, for her status is that of a married woman, while he treats her as though she were divorced; and the punishment for relations with a married woman is well known, for it is among the gravest transgressions in the Torah.

These words are very puzzling. If he did not write the get as the Torah commanded, the woman is not divorced. What neglect of a positive commandment is there here? What is the punishment for? Is there an obligation to divorce one's wife? But according to my proposal, I explained there that when a person puts his wife out of the house, he has divorced her in the dictionary sense. That is the conceptual definition of divorce—the dissolution of the marital unit. Therefore, even if there were divorce without a written get, it would still be divorce in the dictionary sense. The Torah, however, directs us to do this by means of a get and not merely by putting her out of the house (as was done before the giving of the Torah, according to the above description of Maimonides). One who divorces his wife and does not do so by means of a get neglects the positive commandment, and his punishment is severe. Why? Because he has dissolved the marital unit but has not permitted the woman to others (he has dissolved the marriage but not effected the legal divorce), and in doing so he leads her into the prohibitions that apply to a married woman. If so, divorce is a directive commandment and not a constitutive one. The concept exists even before the Torah, and it merely comes to direct us in carrying it out. In my article there I explained that in truth both kiddushin and divorce contain both kinds of requirements: the conceptual and the halakhic.

After my article on causing a secular person to sin was published, where I argued that an atheist stands outside the categories of commandment and transgression, I was asked about kiddushin: am I claiming that his kiddushin are not kiddushin? To that I replied that his kiddushin are certainly valid, for he entered into a valid contract with his partner, and the terms of the contract are kiddushin with all their content, according to the law of Moses and Israel. For that, there is no need to believe or to intend anything. It is like signing a contract on the basis of the legal norms practiced in a state without the parties knowing all of them precisely. That is the basis on which they committed themselves to one another. But the commandment of kiddushin (assuming there is a commandment in this, and as is well known Maimonides and the Rosh disagreed about this in Ketubbot) is certainly not fulfilled by the atheist. Again we see that there is a situation in which an act of kiddushin is performed without fulfilling the commandment of kiddushin.[4]

A minor who comes of age in the middle of counting the Omer

Another interesting example of dictionary requirements whose source is not halakhic is counting the Omer. The view of BaHag is well known: he holds that from the word wholeness one learns that counting the Omer is one continuous commandment. Tosafot disagree with him. According to his view, one who did not count on one of the days has lost the commandment of counting and cannot continue to count (of course, if he counts without a blessing, nothing happens. But he has no commandment. Therefore even if he counts, he does not recite the blessing). The question then arises regarding a minor who comes of age in the middle of the count. At first glance, according to BaHag he cannot continue counting even if he counted until now by virtue of the educational obligation, because until the moment he came of age he did not fulfill the commandment of counting. But in my humble opinion he certainly can continue counting, for two reasons:

• He can continue by virtue of the educational obligation just as he counted until now. The assumption here is that the law of educating minors does not end upon reaching the age of commandments; rather, the regular halakhic obligation is added to it. But in parallel the educational obligation still exists, and in this case, according to BaHag, one cannot count by force of the regular obligation, but the counting by virtue of the educational obligation remains.
• The requirement of wholeness is not a halakhic requirement but a dictionary one. BaHag holds that if one does not count consecutively, that is not counting. The dictionary definition of counting is counting in sequence, and from here he derives his view. The source from the word wholeness here is not really a source (again, medieval authorities do not invent expositions). It functions like and you shall see them in the example of putting the tzitzit on the outside. Here the Torah merely defines what it wants, but from that point on the requirements are the result of a lexical analysis of the required concept. This is not a halakhic requirement but a dictionary one.

The consequence is with regard to a minor who came of age in the middle of the count and has counted until now by virtue of the educational obligation. He can continue counting because, after all, his act of counting is continuous. In practice he counted all the days, and even if the first part was counted without thereby fulfilling the Torah commandment of counting, in practice he still performed an act of counting. The requirement of wholeness is not to fulfill the commandment of counting continuously, but that the act of counting be done continuously, and that exists here.

The same applies to other requirements in the commandment of counting. Some halakhic decisors wrote that in counting the Omer one does not count two days out of doubt in the Diaspora. The author of Devar Avraham, vol. I, no. 34, explains this (at least nowadays, when we are expert in the fixing of the month) by saying that the meaning of counting is clear knowledge each day of which day I am on, and his proof is from counting animals for the purpose of the animal tithe. From this it follows that counting two days out of doubt contradicts the essence of counting.[5] This too is a requirement concerning the act of counting that derives from its definition, and not a halakhic requirement concerning the commandment of counting. It is not the commandment of counting that requires knowledge each day; rather, the act of counting requires it. That is the definition of counting.[6] Incidentally, he himself brings proof from the Magen Avraham (Orach Chayyim 489:2), who wrote that for counting the Omer it does not help to count in a language one does not understand. We see that this really is connected to the fact that speech (and counting is a kind of speech) requires understanding. Without that, there is no act of speech here. This is not a halakhic requirement but a conceptual one.

Something similar can be found in R. Chaim on Hilkhot Korban Pesach in Maimonides, regarding a minor who comes of age between the two Passovers. According to Maimonides, although as a minor he was not obligated in the Passover offering and therefore must observe the second Passover (not as compensation for the first, because according to Jewish law the second Passover is not compensation), nevertheless, if the offering was brought on his behalf he is exempt from the second Passover. R. Chaim there asks why he is exempt from the second Passover if he did not fulfill the commandment with the first, and answers by distinguishing between discharging the obligation of offering and fulfilling the commandment of offering. A minor has fulfillment in the offering even if no obligation rests on him and he does not thereby discharge an obligation. In our terminology, perhaps it is correct to define this as saying that he performed an act of offering even though he did not fulfill the commandment of offering.[7] Something similar was written by several later authorities regarding levirate marriage by a minor (see the Mida Tova article on Parashat Vayeshev), namely, that he has a fulfillment of levirate marriage even though he does not perform a commandment through it.

Completing a fast

Another example is the discussion of the later authorities (Binyan Tzion and others) regarding the question of one who ate on Yom Kippur: is there an obligation to continue fasting and complete the fast?[8] On the face of it, they made this depend on the question whether the commandment of fasting is one single unit or whether the obligation applies separately at each and every moment. If it is one obligation (like the wholeness of BaHag), then the moment you have eaten there is no point in continuing to fast. In any case, you will not fulfill the commandment. But if there is an obligation at every moment, then of course there is an obligation to fast at each moment separately, and it makes no difference whether you ate or not.

The question is whether this requirement is halakhic (some derive it from the verse from evening to evening shall you observe your Sabbath), or whether it is a dictionary requirement: this is simply what the concept of a fast means. A fast is not just not eating. When I finish eating breakfast, I am not in a fast; I am simply not eating. A fast, in its essence, is something extended over time, and therefore by definition it applies to the entire duration in question and not to each moment separately. Not eating is an obligation at every moment, but a fast in its essence is a continuous unit of not eating. Again, the implication is that a minor who comes of age in the middle of Yom Kippur and has fasted until now by virtue of the educational obligation will have to continue fasting, and that for the same two reasons we saw above: either by virtue of the educational obligation during adulthood, or because the requirement of a continuous fast is a dictionary requirement and not a halakhic one. Therefore, if he in fact fasted until now, then even if he did not thereby perform a commandment, the continuation is still called a fast because, after all, in practice he did fast.

Summary and the significance of the distinction

We have seen here several examples of halakhic requirements whose basis lies in the definition of concepts and not in a halakhic source from the Torah or from the Sages. These requirements are indispensable to the commandment, but their basis is not halakhic. When they are not satisfied, the concept itself is not realized, and therefore there is no commandment here either. When no act of prayer is performed, there is no commandment of prayer. When no act of fasting is performed, there is no commandment of fasting, and so too with offering, levirate marriage, counting, and more. All these commandments are directive rather than constitutive, because in all of them there is a primary conceptual plane that does not depend on the Torah and the command, and on top of it there are the halakhic requirements of the Torah and Jewish law. In such cases the Torah comes to direct the action that we might perhaps have done anyway, and to tell us that it requires us to do it, as well as to direct us exactly how it wants us to do it.

The existence of such commandments means that the Torah does not necessarily define a realm of its own. Some of it (the constitutive commandments) does, but some of it comes to direct us how to live life itself. I have already mentioned more than once that in the yeshivot there prevails a conception of “Noah's Ark,” and therefore there is a tendency there to interpret all halakhic concepts in a way that makes Jewish law constitutive of them. Life outside the ark is the counsel of the evil inclination, and our purpose is to separate ourselves from it and protect ourselves against it, not to direct it. But here we have seen that this is not necessarily the situation in all of Jewish law. There is part of Jewish law that is meant to direct the life we would have lived even without Jewish law, and not to constitute a separate sphere.

One must, of course, distinguish between several kinds of directive commandments. In commandments like kiddushin and divorce, every society really does use them, and the Torah merely defines how it wants us to carry them out. So too regarding tzitzit (assuming we all use symbols). By contrast, in commandments like counting the Omer or fasting, which were also defined here as directive, the situation is different. In commandments like these, and others similar to them, we would not perform them without the Torah's command. Here the Torah does not come to direct life, but to constitute a sphere of its own. The difference is that the definition of that sphere uses concepts that are defined in life itself, even had there been no command, and instructs us to use them within the halakhic sphere. Concepts like counting or fasting exist in the extra-halakhic lexicon, but the halakhic acts (the counting and the fast) are performed only by virtue of the command.

[1] It is not clear to me what the meaning is of his statement that the concept exists on a Torah level. The concept exists as a concept without connection to the halakhic layer, and therefore the categories of rabbinic and Torah-level do not really apply here.

[2] For the significance of this point, see my article “The verse repeated it to make it indispensable—on the meaning of command in sacrificial law.” There I explain that the whole domain of divine service (sacrifices and prayer) existed before the giving of the Torah, since the Patriarchs too prayed and offered sacrifices. Therefore, it is not plausible that at the giving of the Torah they wanted to reduce something that already existed before, but only to add to it. Hence one who prays or offers a sacrifice not in accordance with the parameters of Jewish law has still performed something positive, like the Patriarchs, unless the Torah explicitly wrote otherwise (which is why Scripture must repeat it in order to make it indispensable).

[3] See my above-mentioned article on this.

[4] To be sure, here it does not seem that this is a result of what we saw here, namely that kiddushin is a directive commandment. Kiddushin is a constitutive commandment; marriage is a directive commandment (the Torah tells us to precede marriage with kiddushin). But there is still a concept of kiddushin as a contract between partners, and even if they did not do this before the giving of the Torah (for then they married without kiddushin), on the conceptual plane it still exists even without the command.

[5] See here for many additional sources.

[6] There is an assumption here that the counting in question is serial rather than merely quantitative. Ordering requires continuity, but quantitative counting does not necessarily. We will discuss this in one of the next columns.

[7] Especially in light of what I argued in my above-mentioned article, that in sacrificial law this is always built as a two-level structure: the conceptual level, and on top of it the halakhic one.

[8] See my book Shtei Agalot, from p. 487 onward, on the relation between legal definition and rationale.