Types of Mitzvot: 3. Between Positive Commandments and Prohibitions—Continued (Column 416)

In the previous column I discussed the difference between a prohibition (lo ta'aseh) and a positive commandment (aseh). We saw there that, according to most early authorities (rishonim), the difference is not operational but essential: a positive commandment points me to a desirable state I am meant to be in, while a prohibition points me to an undesirable state I must avoid. In this column I will sharpen that distinction and discuss some of its implications.

The Ramban in Parashat Yitro: The relationship between the basic and the lofty

The halakhic relationship between positive commandments and prohibitions appears puzzling, and this can be seen through the three features mentioned in the previous column: On the one hand, a positive commandment overrides a prohibition (aseh dokheh lo ta'aseh), which would seem to imply that the positive commandment is more important. On the other hand, in order not to transgress a prohibition one must expend all of one’s money, whereas for positive commandments one spends up to one-fifth. We also saw that a prohibition carries punishment while a positive commandment does not. So which is graver—positive commandment or prohibition?

The Ramban, in his commentary to the Ten Commandments (Exodus 20:8) regarding the command to keep Shabbat, touches on the relationship between positive and negative commandments:

And it is also true that the attribute of “Remember” (zakhor) is alluded to in a positive commandment, which stems from the attribute of love and belongs to the attribute of mercy; for one who performs the commandments of his Master is beloved to Him and his Master has mercy upon him. And the attribute of “Keep” (shamor) is [expressed] in a prohibition, belonging to the attribute of judgment, and stemming from the attribute of fear.

For one who guards himself from doing what is evil in the eyes of his Master fears Him; therefore the positive commandment is greater than the prohibition, just as love is greater than fear, for one who fulfills and does with his body and money the will of his Master is greater than one who merely refrains from doing what is evil in His eyes, and thus they said: a positive commandment comes and overrides a prohibition.

Up to here, the Ramban says what we have seen: a positive commandment is the fulfillment of God’s will, whereas fulfilling a prohibition is refraining from what is evil in His eyes. Again, the distinction is not between action and inaction on the physical plane, but in relation to God’s will and to states that are deemed proper in His eyes. The Ramban also gives substantive content to what we encountered in the previous column—that the world of positive commandments and the world of prohibitions are distinct realms that do not speak to one another and cannot be weighed against each other. He explains that the world of positive commandments is associated with concepts of love, while the world of prohibitions is associated with concepts of fear. These are two different conceptual realms and therefore cannot be translated one into the other.

The Ramban adds:

Therefore the punishment for transgressing prohibitions is great, and judicial penalties are applied—such as lashes and death—whereas there is no judicial penalty at all for neglecting a positive commandment, except for rebellious refusal, as when one says: “I will not take the lulav and tzitzit; I will not make a sukkah,” in which case the Sanhedrin would strike him until he accepts it upon himself to do it or until his soul departs.

He says that just as love is greater than fear, positive commandments are greater than prohibitions. From this he infers (in the previous passage) that a positive commandment overrides a prohibition. And here he adds that the punishment for violating a prohibition is greater than for a positive commandment (indeed, for neglecting a positive commandment there is no Beit Din punishment at all).

This last point is not clear. If the positive commandment is greater than the prohibition, it is understandable why there is reward for fulfilling a positive commandment and not for a prohibition; but why is punishment imposed specifically for a prohibition and not for a positive commandment? The Shdei Ḥemed cites the Ramban’s words under the entry “A Positive Commandment Overrides a Prohibition,” and explains that his intention is that fulfilling a positive commandment is greater than refraining from a prohibition; but conversely, when it comes to transgression, the relationship is inverted: violating a prohibition is far worse than neglecting a positive commandment. The explanation is that although fulfilling a positive commandment is divine service on a higher level than refraining from a prohibition, precisely for that reason, failure to fulfill the positive commandment is a lighter offense. At most, the person is not on a high level; the claim against him is lesser than in the case of violating a prohibition, which constitutes disdain for something more basic and is therefore more severe. By contrast, when one fulfills a positive commandment, one ascends to a higher level, and that, of course, is of greater value than mere avoidance of failure, as in refraining from a prohibition. This is a relationship between the basic and the lofty: transgressing the basic is more severe precisely because it is a basic demand, whereas fulfilling the lofty is more important than fulfilling the basic.[1] In our aforementioned essay on the Sixth Root, we brought similar ideas from the author of the Tanya (“Iggeret HaTeshuvah,” ch. 1), among others.[2]

The meaning of the “stick” and the “carrot”

I already mentioned that in the Ninth Root the Rambam rules that we do not count duplicate commandments whose content overlaps. In his debate with the Ramban’s strictures on that Root, the Rambam allows that the Torah might repeat a commandment in order to strengthen it. The Ramban rejects this, since in such a case the verses would still be superfluous. In his view, every verse must teach something essentially new and not merely reinforce an existing principle. In light of this, we can challenge the Ramban: how does he explain the duplication of a prohibition and a positive commandment in the same matter, where even he agrees they are counted as two distinct commandments?

Beyond this, in a case of duplication between a prohibition and a positive commandment, the added prohibition would seem clearly to contribute something, namely, liability for lashes that would not exist if there were only a positive commandment. But why does the Torah not suffice with a prohibition and omit the positive commandment? Seemingly, the positive commandment adds nothing. Moreover, sometimes we encounter a case where a prohibition without an action is added (as with the roof-railing), and such a prohibition does not incur lashes. What, then, is the point of adding it in such cases? This question is difficult especially according to the Ramban, but even according to the Rambam we can ask: why does the Torah add another positive commandment rather than another prohibition? If the goal is to strengthen the original prohibition, perhaps it would have been better to add another prohibition.

In light of what we have said here, the matter is understood, and again it is rooted in the difference between “stick” and “carrot,” or between love and fear. For example, regarding the roof-railing (ma‘akeh), the Torah commands both a positive commandment (“You shall make a railing for your roof”) and a prohibition (“Do not place blood in your house”). This is not a mere duplicate instruction, but two different ways to spur a person to make a railing. One who is commanded only via a positive commandment could allow himself not to do it, for he is not directly opposing God’s will; he simply doesn’t wish to be such a “tzaddik,” and therefore he does not insist on fulfilling what the Holy One commands him. But when there is also a prohibition, that option no longer exists: sitting back and not making a railing becomes a direct (active) act against God’s will. That is wickedness, not merely a lack of righteousness, and such a person does not necessarily wish to be in that state. Conversely, if there were only a prohibition, one might think that making the railing is merely a matter of avoiding a pitfall, without any positive value in its own right—e.g., he could demolish the house rather than build a railing. The Torah thus adds a positive commandment to teach that making the railing is a positive fulfillment of God’s will. The prohibition clarifies the meaning of the transgression (it teaches that not making a railing is a frontal violation of God’s will, not just failure to advance), while the positive commandment clarifies the meaning of the mitzvah (one who does it has fulfilled God’s will and ascended, not merely avoided decline).

The Kiddushin sugya on duplication between a positive commandment and a prohibition

There is another source where the Ramban directly addresses duplication between a positive commandment and a prohibition, which also becomes clear in light of our discussion. The baraita (Kiddushin 34a) distinguishes between time-bound positive commandments and those that are not time-bound:

Our Rabbis taught: What is a time-bound positive commandment? Sukkah, lulav, shofar, tzitzit, and tefillin. And what is a positive commandment that is not time-bound? Mezuzah, roof-railing, returning lost property, and sending away the mother bird.

Tosafot ad loc. (“ma‘akeh”), as well as other rishonim there, raise a difficulty:

Ma‘akeh, returning lost property, and sending away the mother [bird]—it is astonishing, for regarding each of these there is also a prohibition: regarding the railing it is written, “Do not place blood in your house” (Deut. 22:8)—although we establish it (Bava Kamma 15b) with reference to one who keeps a vicious dog or a rickety ladder, i.e., active placing, nevertheless it also applies to the railing, for the Sifrei expounds: “You shall make”—this is a positive commandment; “Do not place blood”—this is a prohibition. And regarding lost property it is written, “You shall not be able to hide yourself” (Deut. 22:3), and regarding sending away the mother bird it is written, “You shall not take the mother with the young” (ibid. 22:6). If so, how can women be exempt [from these positive commandments] even if they were time-bound? For the verse equates women to men for all punishments in the Torah!

The question is: why are these enumerated in the list? Since these mitzvot (and others in the list) also include a prohibition, women would be obligated in them even if they were time-bound.

We find several answers among the rishonim to this difficulty, each reflecting a different perception of the relationship between positive commandments and prohibitions. Let us examine a few.

The approach of Tosafot

Tosafot there resolve as follows:

R. Yitzḥak says that in all these cases one can find a scenario of a positive commandment without a prohibition; and regarding the railing, “Do not place blood” applies only to one who builds a house from the outset with the intention not to make a railing. But if he intended to make a railing and after building the house changed his mind, or if he made one and it fell, then there is only the positive commandment of “You shall make a railing”—and in that case women are exempt.

Tosafot distinguish between the positive commandment and the prohibition and show that their practical and normative contents differ. At first glance, they seem to disagree with the picture we have drawn so far, according to which there is no need to find a specific halakhic distinction between a prohibition and a positive commandment to differentiate between them; rather, the distinction arises from the very fact that one is defined as a prohibition and the other as a positive commandment. However, the reason Tosafot look for a halakhic difference here is not the logical issue we raised in the previous column (the equivalence of a prohibition and a positive commandment), but a technical reason concerning women’s exemption. Thus, ostensibly, Tosafot are not troubled by the mere duplication between a positive commandment and a prohibition—that is, the fact that they might have identical practical content. It seems that, for them, the very existence of a positive commandment and a prohibition with overlapping content is not problematic. We cannot conclude from their words that they reject the essential distinction between prohibitions and positive commandments.

The approach of R. Yosef of Eretz Yisrael

Tosafot later bring another answer:

There are those who explain that nevertheless there is a practical difference for a woman when she is to fulfill the positive commandment: if we might have thought that women are exempt from positive commandments that are not time-bound, then they would likewise be exempt from the prohibitions—since one could say that a positive commandment overrides a prohibition. But when they are obligated in the positive commandment that is not time-bound, then another positive commandment will not come and override it, for a positive commandment does not override a prohibition that is accompanied by a positive commandment.

Tosafot raise the possibility that even though there is a prohibition regarding the railing, it is still important to teach that women are not exempt from the positive commandment as well. The practical implication would be in a case where there is another positive commandment to which women are obligated that stands in tension with the railing. In such a case, if women were exempt from the railing’s positive commandment (because it were time-bound), then only the prohibition would remain, and the opposing positive commandment should override it. By contrast, for men (and likewise for women, after the conclusion that they are obligated in the railing’s positive commandment), that opposing positive commandment would not override the railing, since the railing includes both a prohibition and a positive commandment.[3]

The practical difference is described later in Tosafot, in the question of R. Yosef of Eretz Yisrael:

But R. Yosef of Eretz Yisrael challenged this explanation: if so, regarding the rule that one may not light with “oil of burning” (i.e., terumah oil designated for burning) on Yom Tov (Shabbat 25a)—because Yom Tov includes a positive commandment and a prohibition, while burning consecrated items is only a positive commandment—would a woman, who is not obligated in the positive commandment of Yom Tov because it is time-bound, be permitted to light with oil of burning on Yom Tov?! And if you say indeed yes, why did no authority ever mention such a distinction?

Burning impure terumah on Yom Tov is an example of the situation described above. There is a positive commandment to burn the terumah, and opposite it stands the prohibition of labor on Yom Tov, which comprises a prohibition and a positive commandment. According to the earlier words of Tosafot, it would emerge that women could burn impure consecrated items on Yom Tov, since the prohibition of labor on Yom Tov applies to women only as a prohibition and not as a positive commandment (because the positive is time-bound and women are exempt), and the positive commandment to burn the terumah would override the prohibition. R. Yosef objects that we do not find any authority, in the Talmud or thereafter, permitting this to women. Therefore, he rejects that approach, saying:

Rather, you must say that when a prohibition is accompanied by a positive commandment, the prohibition itself becomes more forceful, and a positive commandment does not override it; so too here, the prohibition is strengthened.

R. Yosef argues that when a prohibition comes together with a positive commandment and overlaps with it in content, the prohibition itself becomes more severe. Such a prohibition will not be overridden by another positive commandment even if it stands alone opposite it. It seems that R. Yosef holds that the prohibition and the positive commandment are not counted as two separate commandments. The presence of both formulations in the Torah indicates that the Torah views this as a serious prohibition. Thus, even if it is counted, it will be treated as a prohibition alone. It is a stricter prohibition because it has been emphasized twice, and therefore it will not be overridden by another positive commandment. In other words, R. Yosef assumes that this duplication is ordinary duplication—like two prohibitions or two positives—that merely indicates greater severity.

The approach of the Ramban: A prohibition that supports a positive commandment

The Ramban, in his novellae to this sugya in Kiddushin (and similarly the Ritva ad loc.), brings Tosafot’s question and rejects their answer. He then offers his own alternative to resolve the difficulty:

It seems to me that the essence of the mitzvah is a positive commandment, and that its accompanying prohibition exists only to sustain the positive: the Torah wrote “You shall make a railing” first, and then “Do not place blood in your house,” meaning: do not refrain from performing this mitzvah. And since that prohibition contains no other action than the fulfillment of its positive commandment, if women were exempt from the positive, they would likewise be exempt from the prohibition, for the prohibition exists only to sustain the positive. But in other positive commandments that have both a prohibition and a positive commandment, women are obligated in both, as we say in Shabbat (24b) and Beitzah (8b): “‘Shabbaton’ is a positive commandment, and a positive commandment does not come and override a prohibition together with a positive commandment; and men and women are equal in this matter.”

The Ramban explains that if the railing were a time-bound positive commandment, women would be exempt from it even though there is also a prohibition alongside it. The reason is that in the case of the railing, the duplication is essential, unlike Shabbat and Yom Tov. Regarding Shabbat and Yom Tov, there is duplication that, as we saw, reflects different contents for the positive and the prohibition: the positive commandment points to rest as a desired state,[4] whereas the prohibition points to doing labor as an undesirable state. Thus, the duplication is deliberate, and each retains its unique character (therefore on Shabbat women are obligated in the prohibition and, by extension, also in the positive—“Remember” and “Keep” were spoken in one utterance). By contrast, in the case of the railing, as the Ramban argues, the prohibition is only a supporting wall for the positive commandment. The prohibition does not say that the state of not having a railing is inherently wrong; rather, it merely strengthens the positive commandment to ensure we perform it.

This is similar to what we saw in his comments on Parashat Yitro. The prohibition adds an aspect of fear to the positive commandment (which is love) and thereby strengthens it.[5] It appears that the Ramban agrees with the fundamental distinction we have drawn between prohibition and positive commandment; he maintains, however, that in cases like the railing a prohibition of an exceptional nature appears: here the prohibition does not indicate an undesirable state, as a prohibition usually does, but merely reinforces a positive commandment. Given such a definition, it is clear that if women were exempt from the positive commandment, they would also be exempt from the prohibition.

Note that the Ramban’s words can be understood in two ways:

1. Where there is a prohibition that supports a positive commandment, the prohibition takes on the character of a positive commandment; therefore, if it is time-bound, women are exempt.

However, in his strictures to the Ninth Root, the Ramban himself does not accept the existence of a repeated command whose sole role is reinforcement without any practical consequence. Therefore, he contends—like most rishonim (apart from the Rambam)—that every repeated prohibition adds another set of forty lashes.

1. A prohibition that supports a positive commandment remains a prohibition, and its support occurs by adding a “stick” to the “carrot.” One might say that the prohibition renders the ascent in level into a basic obligation, and the failure to ascend into a failure. Consequently, one who “fails” deserves punishment. The reason women would be exempt from such a prohibition if it were time-bound is that they are exempt from the positive commandment; there is no logic to obligate them in a prohibition whose sole purpose is to ensure that those obligated in the positive commandment fulfill it. This is not because of its being time-bound per se but because the positive commandment is time-bound.

In what sense does the prohibition strengthen the positive commandment? By prodding us to perform the positive with a stick in addition to the carrot: it tells us that failure to do the positive is wickedness—being in an undesirable state—and not merely a lack of righteousness (i.e., failure to be in a desirable state).

Later authorities apply these novel words of the Ramban in several contexts; I will bring two examples.

Applications

Many commentators ask how it is permissible to feed minors on Yom Kippur, given the prohibition of directly feeding a child prohibited foods (lifnei iver-type extension from “You shall not eat it” read as “do not feed them”; see Yevamot 113a).[6] Some explain this as a matter of saving life, but this is difficult. The author of Divrei Yeḥezkel (§15:18) cites opinions that the prohibition of feeding a child applies only to prohibitions (lo ta'aseh), not to positive commandments. He then adds that on Yom Kippur the prohibition (=the eating ban) is intended to support the positive commandment (=the obligation of affliction),[7] and therefore in this case one may feed minors even though, formally, this also violates the prohibition. One who is not obligated in the positive commandment is not obligated in the supporting prohibition either.

Regarding charity as well, several later authorities asked[8] why the expense for charity is limited to one-fifth. One who does not give charity violates a prohibition (“Do not harden your heart” and/or “Do not close your hand”), and to avoid a prohibition one must in principle spend all of one’s money. A possible answer is along the lines of the Ramban we have seen:[9] the prohibition associated with charity is intended to ensure fulfillment of the positive commandment. Once a person has already given a fifth of his assets to charity, he is no longer obligated to give more; therefore, the prohibition no longer applies to him either.

Back to the implications

In the previous column I listed several halakhic differences between prohibitions and positive commandments and argued that these are consequences of the difference between them, not its definition. Now that we have explicated the difference itself, we can see how those consequences follow. For example, we saw that punishment is imposed for prohibitions and not for positive commandments. Since, as we have seen, violating a prohibition is a frontal act against God’s will, one who does so is wicked and must be punished. By contrast, one who does not act against God’s will but merely fails to do His will does not deserve punishment—for he is simply not a tzaddik (does not do God’s will), but he is not a rasha either (does not act against His will). Conversely, reward is given only for positive commandments, because reward is for righteousness; there is no reward for one who is not wicked (i.e., for one who refrains from a prohibition).

Incidentally, the Pnei Yehoshua, on the Kiddushin sugya, brings another consequence of this difference. He argues that were it not for the words of Tosafot there (quoted above), he would have explained that there is a difference between a positive commandment and a prohibition regarding the rule that “it is a greater mitzvah to do a mitzvah oneself than via an agent.” That is, if making the railing is a positive commandment, then there is a mitzvah to do it oneself; but if it were only a prohibition, then there is no particular value in making the railing—and certainly not in doing it oneself. What is incumbent upon us is merely to ensure that the roof not remain without a railing, and there is no objection to ensuring that via an agent. His intent is that even if there is no difference in content between the positive commandment and the prohibition, there are halakhic consequences that flow from their definitions as positive commandment or prohibition—precisely as we have argued here.

A different look at the difference between active commission and passive non-action: the relation to God’s will

In the previous column we presented the distinction between prohibition and positive commandment via the “stick” and “carrot,” as characterizing the essence of the command itself. From this, we can also characterize the difference via the essence of the transgression in relation to the command: is it a direct act against God’s will, or merely a failure to act in accordance with His will? There is a clear difference between one who does not do my will and one who does something against my will.

We saw that when there is a positive commandment to make a railing, it points to a desirable state (that the house have a railing). Therefore, one who fails to do so is not acting directly against God’s will; he merely fails to act in accordance with that will. He does not ascend, but this is not an offense in the full sense of the word. In other terms: this is a zero state—neither fulfillment (a positive state) nor transgression (a negative state). It is a neutral state that stands between them. He is intermediate, not a tzaddik. By contrast, when there is a prohibition against leaving the roof without a railing, one who sits back and does not build a railing is thereby acting directly against God’s will. He not only fails to ascend; he also descends—i.e., he is a rasha, not merely “not a tzaddik.”

We saw that this difference does not coincide with the operational distinction between active commission (kum va’aseh) and passive inaction (shev ve’al ta’aseh). Yet we can now better understand why, in our intuition, the difference between prohibitions and positive commandments is indeed linked to the difference between active and passive. In the previous column we explained that usually arriving at a desirable state requires action, while avoiding an undesirable state requires refraining from action. Now we can see this on a deeper level that applies in all cases, not just most: the added gravity ascribed to an offense of active commission is not merely because a physical act is done; the gravity lies in acting frontally against God’s will. The nature of the act is not what matters, but its relation to the command. In neglecting a positive commandment, you are not acting frontally against the command but passively failing to carry it out (even if, on the physical-operational plane, you do this by an act). In violating a prohibition, you act actively against the command (even if, on the physical plane, you “do nothing”; the non-action is in frontal collision with God’s will). Thus, in essence, this is always an offense of active commission.

In other words: neglecting a positive commandment is always a matter of remaining in a neutral state—the problem is absence from the desired state. Viewed this way, it is essentially a passive non-action. The same applies to prohibitions: violating a prohibition, by this definition, is always an active commission, because you are in a negative state.

What we have proposed here is a different, more abstract definition of the halakhic terms “passive non-action” and “active commission.” We consider their physical expression as secondary; the essence lies in the nature of the command and its aims. An offense of active commission is a frontal move against God’s will; an offense of passive non-action is a passive conflict with His will. Thus, even though we have detached the distinction from the mode of physical execution, we preserve the initial intuition linking neglect of a positive commandment with a passive offense, and violation of a prohibition with an active offense. Likewise, the positive side remains parallel: fulfilling a positive commandment as an “active” fulfillment motivated by love, and refraining from a prohibition as a “passive” fulfillment motivated by fear.

Implications of our abstraction of the difference between active commission and passive non-action

In our aforementioned essay we also discussed various implications of abstracting the concepts of passive non-action and active commission. The difference appears in several contexts in the Talmud: the Sages uproot a Torah matter via passive non-action and not via active commission (see Yevamot 89b–90a). Human dignity (kevod ha-beriyot) overrides a Torah prohibition via passive non-action but not via active commission (see Berakhot 19b–20a), and more. Early and later authorities disagree in some of these contexts over the definitions of active and passive. Some understood the distinction as between positive commandments and prohibitions—i.e., that human dignity allows the neglect of a positive commandment but not violation of a prohibition. Others understand it differently: human dignity overrides even a prohibition so long as the physical modality of the transgression is passive (e.g., the prohibition of “Do not place blood in your house”), and it does not override even a positive commandment if the neglect is effected by active commission (e.g., the rest of Shabbat). The latter view sees the difference between positive and negative in operational terms (like Saadia Gaon and the Semak), whereas the former sees the difference as I have described here (like the Rambam and most rishonim).

As an example, we cited the rule of uprooting a Torah matter by passive non-action. See the explanation of R. Avraham Oppenheim (Kuntres Divrei Soferim = Kond"s), ch. 3 §§10–11, on the dispute between Tosafot and the Rashba in Rosh Hashanah 16a and the words of the Turei Even there. He explains that uprooting a prohibition (such as “Do not subtract”) is always uprooting via active commission, even if its operational expression is passive. It is important to emphasize that the dispute among the rishonim there is not about the basic definition of prohibition and positive commandment. Both sides agree that the distinction between them is not dependent on whether the offense involves a physical act, since both agree that “Do not subtract” is a prohibition even though it generally has no physical act. The dispute is about the definition of the rule permitting the Sages to uproot a Torah matter via passive non-action: does it mean literally an offense without action, or does it mean neglect of a positive commandment (and not violation of a prohibition)? The practical implication concerns uprooting a prohibition that has no act, such as “Do not subtract,” as above.

Principles of override: Human dignity

We mentioned above that halakhah rules that human dignity overrides a Torah prohibition via passive non-action. The author of Keḥillos Ya‘akov (Berakhot §10) (see also Kond"s, §3 at the beginning regarding uprooting a Torah matter, and §§28–31 regarding human dignity) discusses different ways to understand principles of halakhic override. For example, regarding the rule that a value such as human dignity overrides a Torah prohibition via passive non-action but not via active commission, two understandings can be offered:

1. The simple understanding: a transgression via passive non-action is lighter and therefore is overridden by the competing value, whereas an active transgression is graver and thus is not overridden.

Beyond specific proofs, this distinction seems problematic on its face, for it would require us to differentiate between “light” and “grave” prohibitions. Intuitively, a passive non-action regarding a grave prohibition is more serious than an active commission regarding a light prohibition.

1. Another possibility: there is no difference in the gravity of a Torah violation between passive and active. The rule is that the competing value (in this case, human dignity) is of equal standing to each Torah commandment; therefore, as in any situation of collision between values that cannot be resolved,[10] the directive is “better to remain passive.”

According to this understanding, when human dignity collides with an active prohibition, such as wearing kilayim (forbidden mixtures), applying the principle “passive is preferable” means: sit and do not wear kilayim. De facto, this amounts to saying that the prohibition overrides human dignity. By contrast, when the value collides with a prohibition in the form of passive non-action, such as non-return of a lost item (e.g., an elder for whom it is undignified), again the collision is between equals, and we thus rule “passive is preferable.” In this case, however, that ruling translates into a license not to return the lost item. Here, de facto, the commandment of returning a lost item is “overridden” and there is no obligation to perform it.

On this mechanism, there is no difference in gravity between passive and active violations of Torah law. The difference in the halakhic outcome stems from the practical meaning of the directive to remain passive in a situation of collision between equal values. In the case of passive non-action, it translates into committing the violation; in the case of active commission, it translates into refraining from violating. This is not a classic override rule but a different practical expression of the instruction to remain passive when values of equal standing collide.

See in Keḥillos Ya‘akov and Kond"s the sources and views among the rishonim who disagree on this matter. For example, in Tosafot, Shavuot 30b s.v. “aval” (second answer), they write that although everyone is obligated to testify, if a Torah scholar—whose dignity would be compromised—would have to testify before a court lesser than he, he is exempt, since human dignity overrides a Torah prohibition via passive non-action. However, if another person will commit a prohibition through his inaction, then it is forbidden for him to refrain from testifying, because the other’s transgression would be deemed an active transgression attributable to him. On the understanding that the human dignity override stems from the principle of “passive is preferable,” it is difficult to make sense of this—for here the directive of passivity for the witness would be not to testify; the nature of the other person’s offense should be irrelevant. We are compelled to say that this Tosafot holds that the override is based on the greater gravity of an active offense, and therefore he rules that even another’s active violation transforms the case into an active violation for the witness himself, and thus he may not refrain from testifying.

Another example is the dispute between the Rambam and the Rosh regarding one who finds kilayim in his friend’s garment: must he strip it off him, thereby compromising his friend’s dignity, or not? The Rambam rules that he must; from here we see that although refraining would be passive for the one stripping, since his friend would thereby be committing an active offense, it is treated as an active offense for him as well. The Rambam apparently agrees with Tosafot and with understanding (1) above, that the override is due to the lesser gravity of passive non-action; thus, when the other would commit an active offense, it is a serious prohibition and he must prevent it. The Rosh, however, holds that the obligation exists only when one finds kilayim in one’s own garment. Perhaps he disagrees with the Rambam and Tosafot and accepts understanding (2) above: the override is not because of the offense’s gravity but because “passive is preferable”; if so, the matter depends on the actor, not on the one actually transgressing.[11]

A further example can be found in Lesson 12 on the eighth chapter of Yoma, where I discussed whether “be killed rather than transgress” regarding murder and sexual sins is an expression of “passive is preferable” (i.e., that the value of life is equal to those prohibitions), or whether, in a case where a life would be taken, there is simply no license to commit murder (because the value of life is lesser than them).[12] This is the same discussion.

There is a close connection between this dispute and the dispute described in the previous section. If the understanding of the override principle is like option (2)—that the override is not due to the greater gravity of active offenses but is a practical directive that “passive is preferable”—then it is clear that the distinction between active and passive concerns whether the offense involves a physical act, not whether it is a prohibition or a positive commandment. However, if the understanding of the override is that it stems from the gravity of the offense, then both possibilities remain open: is the gravity determined by the physical nature of the offense, or by its halakhic category (positive or negative)?

Note: Are there positive commandments in state law?

In a conversation I once had with a legal scholar at the Hebrew University, Prof. Alon Harel (in which he brought to my attention Nozick’s question about the relationship between enticement and extortion, cited in the previous column), I asked him whether law includes positive commandments. He of course said yes—for example, military service or paying taxes. All these, and the like, he considered positive obligations. I argued, however, that at least according to the halakhic definition the answer is no, and I explained the difference between prohibitions and positive commandments in halakhah. My claim was that the law that obligates army service or tax payment is a prohibition and not a positive commandment, even though both obligations are fulfilled by active commission and violated by passive non-action.

The gist of my claim was that the law essentially says that non-service or non-payment of taxes are negative states; therefore, they are prohibitions. The indication is that the law imposes punishment for violations of these obligations (which are committed by omission) just as it does for active offenses, but it does not grant a prize to one who fulfills them. That is characteristic of prohibitions, not positive commandments.[13] Moreover, it is accepted in jurisprudence that a law without an imposed punishment lacks meaning (and, in general, the law does not customarily grant prizes). This means that, in the law codes of modern states, every law is a prohibition—even if it is fulfilled by active commission.

I think the reason is that the legislator does not see his role as educating the citizen to be a tzaddik, and certainly sees no justification for sanctioning one who is not a tzaddik. The legislator deals only with defining and punishing the wicked. A society that wishes to honor its righteous does not do so within the law but via prizes and formal recognition (at the President’s residence, the Israel Prize, etc.). The law limits itself to “forbidden” and “permitted,” not to “obligatory.”

This was an important part of the debate surrounding Ḥanan Porat’s law known as the “Law of ‘Do not stand idly by your fellow’s blood.’” Some objections to the law did not concern its content—after all, all agree that one should rescue a person in distress—but argued that it is not the role of the legislator to establish positive obligations but only to punish offenders. At most, many contended, one who saves his fellow can receive a prize at the President’s residence, but one cannot impose a criminal sanction—that is, punishment—on one who does not do so. In my terminology: one who does not save his fellow has neglected a positive commandment but has not violated a prohibition.

I discussed these matters at the end of the third volume of the Talmudic Logic series, Deontic Logic in Light of the Talmud, where I also touched briefly on administrative law, whose major parts arguably approach the concept of a positive commandment as defined here; further discussion is beyond our scope.

In the next column I will move on to different types of positive commandments and examine them in light of the distinctions I have made in recent columns.

[1] One may wonder why the Ramban thinks this yields that a positive commandment overrides a prohibition. Here the comparison is between two alternatives: fulfill the prohibition and neglect the positive, or violate the prohibition and fulfill the positive. In the first, there is a small amount of love (fulfilling the prohibition) and a small detriment to fear (neglecting the positive); in the second, there is a large measure of love (fulfilling the positive) and a large detriment to fear (violating the prohibition). The result seems balanced; it is unclear how the Ramban concludes from here that the positive overrides the negative. In the third volume of the Talmudic Logic series we addressed this question.

[2] However, in the Rambam’s Commentary to the Mishnah, Avot 2:1, it seems not like the Ramban:

He then said: Even though the degree of love of one mitzvah compared to another has not been made explicit, there is a way of deriving it by analogy: any positive commandment for which you find that one who violates it is liable to a great punishment—know that its fulfillment also carries great reward. For example: circumcision, the Passover sacrifice, resting on the seventh [day], and making a railing—these are all positive commandments; yet one who does labor on Shabbat is liable to stoning, one who neglects circumcision or the Passover sacrifice at its appointed time is liable to excision (karet), and one who “places blood in his house” is liable to a prohibition—“Do not place blood.” From this you may infer that the reward for resting on Shabbat is very great—greater than the reward for circumcision, and that the reward for circumcision is, before God, greater than the reward for making a railing. This is the meaning of “calculate the loss of a mitzvah against its reward.” He also said that you can infer the reward for refraining from a sin, though this too has not been made explicit, from its punishment: a sin whose punishment for doing it is severe—its reward for refraining [from it] will be commensurately great, as is explained in Kiddushin: “Whoever sits and does not transgress is given reward as if he had performed a mitzvah.” And we have explained it there.

He is speaking here of Heavenly punishments, not Beit Din punishments; regarding Heavenly punishments, the Ramban himself writes in Sha‘ar HaGmul (ed. Ma‘arava, ch. 1 §10) that at times one is punished in this world with suffering for neglecting positive commandments, and in this way he explains the passage in Menachot cited in note 11 of the previous column regarding Rav Ketina. Still, from the Rambam’s words here it appears that in his view the hierarchy between prohibitions and positives is not “oppositional” as in the Ramban.

[3] Tosafot here assume the view that where a prohibition and a positive commandment stand opposite a positive commandment, the positive commandment overrides the prohibition and remains opposed only to the positive; i.e., one can separate the prohibition from the positive. But this itself depends on a dispute among the Ba‘alei Tosafot in several places; see Ḥullin 101a s.v. “lo tzerikha,” and further discussion is beyond our scope.

[4] According to the Ramban, there is an even more practical difference between the positive commandment of resting and the prohibition of doing labor: he interprets the positive commandment of “Shabbaton” as a command to refrain even from doing many permitted labors in such a way that the rest of Shabbat is nullified; see his commentary to the Torah (Leviticus 23:24). The Minḥat Ḥinukh (end of mitzvah 297) frames the dispute between Tosafot and the Ramban along these lines.

[5] One must discuss the criterion: how do we know when the prohibition merely supports the positive and when it is a parallel prohibition? And it is also not clear why the Ramban decides here that the positive commandment is primary and the prohibition is the supporter, and not the reverse. It seems that here he uses the operational criterion (since the positive and the prohibition both direct us to erect the railing—in essence this is a positive commandment).

[6] This prohibition applies even to an infant one day old. It is a Torah-level prohibition and is unrelated to the rabbinic laws of education (ḥinukh), which apply from the age of education. This prohibition obligates every adult, not only the parents—unlike ḥinukh, which obligates only the parents.

[7] This could also explain why the Torah does not explicitly write a prohibition of eating on Yom Kippur; see Column 414.

[8] See the book Tzedakah U’Mishpat, ch. 1 n. 23.

[9] See Responsa Mahari”l Diskin, vol. 1 §24, which resolves the difficulty in this way.

[10] True, there are “light” and “grave” commandments; nevertheless, a reasonable assumption is that we do not engage in relative weighing of commandments and transgressions and treat them all as of equal standing and force.

[11] This is not strictly necessary. It is possible that the Rosh also agrees with understanding (1), but he disputes the logic that one can attribute another’s active offense to oneself as an active offense—even if one’s own conduct is passive. In his view, my passive non-action in failing to prevent my fellow’s transgression is lighter even if, as a result, the other ends up committing an active offense.

[12] See also Ḥidushei R. Ḥayyim on the Rambam, Yesodei HaTorah 5, and Ḥidushei R. Shmuel, Pesachim §12.

[13] One might argue that the law does not customarily grant prizes; in my view this is precisely the reason—because it deals only with prohibitions and not with positive commandments.