Types of Commandments: 4. Different Kinds of Positive Commandments (Column 417)

In the previous columns I discussed the differences between a negative commandment (lo ta’aseh) and a positive commandment (aseh). We saw that according to most of the Rishonim the difference is not practical but semantic-essential: an aseh points me to a desirable state I ought to be in, while a lo ta’aseh points me to an undesirable state I ought to avoid. From this it followed that failing to perform an aseh or refraining from a lo ta’aseh leaves me in a neutral state. We can describe it as follows: an aseh demands of me to be a tzaddik (righteous). Failing to fulfill an aseh means I am not a tzaddik (but rather “average”). A lo ta’aseh demands that I not be a rasha (wicked). Refraining from a lo ta’aseh again leaves me “average.” Put differently, when I fail to perform an aseh I am not acting head-on against God’s will, and therefore I am deemed “average” (neither tzaddik nor rasha). By contrast, transgressing a lo ta’aseh turns me into a rasha, because I am doing something that directly opposes God’s will.

This description raises the question: why, in halakhah, does failing to perform an aseh carry a negative value, whereas refraining from a lo ta’aseh is neutral (this is how I explained the rule that an aseh overrides a lo ta’aseh)? This of course relates to the distinction between obligatory and “existential” positive commandments. Therefore, before I reach that question, I wish to set out several types of positive commandments and discuss them in light of the distinctions from the previous columns. Afterward I will offer an additional explanation for the difference between failing to perform an (obligatory) aseh and transgressing a lo ta’aseh. At the end I will add a section relevant to the season (a “stolen sukkah”) in light of the distinctions presented here. I am allowing myself a long column in a short span because I hope people will have time over the festival to read it.

1. A standard positive commandment: obligatory

A standard positive commandment is an obligatory mitzvah—namely, a commandment that imposes a duty upon us. As I explained earlier, it directs us to be in a positive state. From its very definition as a duty, it follows that one who fulfills it has performed a mitzvah, while one who neglects it has committed the offense of “bitul aseh” (failure to fulfill an aseh—i.e., he did not discharge his duty). For example, there is a positive obligation to don tefillin every day. One who dons them has performed a mitzvah; one who did not, has neglected an aseh.[1] Another example raised in previous columns is the mitzvah to afflict oneself on Yom Kippur. This is an obligation; hence one who fulfills it has performed a positive commandment, and one who did not fast has neglected an aseh (in addition to having violated a lo ta’aseh, according to most opinions). With an obligatory aseh, a person must do all in his power to fulfill it. One who does not has committed a kind of transgression (bitul aseh), and is liable to be punished by the Heavenly court (earthly courts do not punish for neglecting an aseh).

But not all positive commandments are obligatory. As we shall now see, there are several additional types of positive commandments.[2]

2. An “existential” positive commandment (mitzvat aseh kiyûmit)[3]

There are positive commandments called “existential” (kiyûmiot). These do not impose any duty upon us; therefore one who does not fulfill them has not transgressed and has no punishment—not even by the Heavenly court.[4] In what sense, then, are these “commandments” and not merely voluntary good deeds? One who fulfills them indeed has fulfillment of a mitzvah and receives reward for a mitzvah. For example, the mitzvah of Torah study—beyond one chapter in the morning and one in the evening (which is obligatory according to all opinions)—at least according to some Rishonim, everything beyond that is an existential mitzvah. See, for example, the Rosh’s commentary to Nedarim 8a, compare the Ran there, see the Or Sameach at the beginning of Hilkhot Talmud Torah, and in my article here. Thus, one who did not do so did not transgress; but one who studied has the reward for the existential mitzvah of Talmud Torah.

Note well: this is not merely a good deed but a mitzvah in the formal halakhic sense. This can be seen through a practical implication cited by the Ra’avad at the beginning of his commentary to the Sifra. The Ra’avad writes there that an existential aseh also overrides a lo ta’aseh (i.e., the rule that an aseh overrides a lo ta’aseh applies here as well). This indicates that we are dealing with a mitzvah in its formal sense and not a mere good deed. True, the Ra’avad is discussing women who lay hands on a sacrifice or positive commandments that are time-bound, and I have wondered in the past whether in such cases we are speaking of a genuine mitzvah or merely a good deed. Contrary to what some Acharonim wrote, it seems plain to me that this is not an existential mitzvah, for the women are exempt from that mitzvah. They were not commanded and have no such mitzvah; therefore there is no reason to say they have fulfillment of an aseh when they perform it. Moreover, were they commanded, I would expect—as with men—that for them too it would be an obligatory mitzvah (there are not two different commandments of semikhah on a sacrifice or of sitting in a sukkah). There are, however, Acharonim who understood (in the Ra’avad and more generally) that women are merely exempt from punishment for neglecting such asehs, but do have their fulfillment; i.e., their exemption means that for them it is an existential mitzvah (even though for men it is obligatory).

There is another important point about existential asehs. Simply put, there are no commandments in the Torah that are entirely existential. The best-known example brought for discussion is the mitzvah of settling the Land of Israel, which R. Moshe Feinstein (Iggerot Moshe, Even HaEzer I §102) claimed is entirely existential. But R. Avraham Shapira (Minḥat Avraham, I §44) argued against him that we do not find in the Torah mitzvot that are wholly existential, and therefore concluded it is an obligatory mitzvah. The familiar existential mitzvot are those that have a minimal mandatory threshold, and only what is beyond that is existential. For example, Torah study has a mandatory floor—reciting Shema morning and evening. Everything learned beyond that is an existential mitzvah (according to the above poskim). Another example is the mitzvah of charity. Rambam (Matanot Aniyyim 7:5) writes that a person should not give less than a third of a shekel per year—i.e., there is a minimal mandatory floor. Everything beyond that is existential: if you gave, you have a mitzvah; if not—nothing happened. As stated, all the well-known examples of existential mitzvot are of this sort (obligatory up to the threshold, existential beyond it). According to R. Moshe Feinstein, yishuv ha’aretz is an exception—and even that is disputed.

3. A conditional positive commandment

Many (including among the Acharonim) become confused and treat commandments like tzitzit, shechitah, and the like as existential—since a person can choose not to wear a four-cornered garment and thus not be obligated in tzitzit. But this is a mistake. As we saw, an existential mitzvah is one you can only fulfill but not neglect. By contrast, the commandments of tzitzit and shechitah can certainly be neglected—when one wears a four-cornered garment and does not place tzitzit on it, or when one eats meat without proper shechitah. In such a case one neglects the aseh of tzitzit or shechitah. A mitzvah for which “bitul aseh” is defined is not an existential mitzvah.

What confuses people is that a person can choose not to wear a four-cornered garment and thereby avoid the obligation. Seemingly, then, the mitzvah is voluntary and looks existential. The mistake lies in the fact that if you did don a four-cornered garment, you are obligated in this mitzvah, and if you did not fulfill it, you neglected an aseh. This is not like charity or Torah study where, beyond the minimal threshold, there is no possibility to neglect them—only to fulfill them.

The more accurate description of such commandments is that they are obligatory positive commandments that are conditional. Each one is an obligatory aseh; the obligation is simply contingent on certain circumstances. When the circumstances obtain, a full obligation to fulfill that aseh takes effect, and one who does not do so neglects an aseh. For tzitzit the circumstance is wearing a four-cornered garment; for shechitah, eating meat. Incidentally, Birkat HaMazon is such a mitzvah too, since the obligation to bless exists only if one ate to satiety. For some reason, people are not inclined to label it “existential.” There are many commandments that are conditional (returning a lost object, making a parapet, and many more; in a certain sense even tefillin and prayer—since they are conditioned on the arrival of their time).

With respect to tzitzit one can see this even more sharply through the sugya about punishment “in a time of wrath” (be’idna deritha). The Gemara in Menachot 41a relates a story about an angel who saw Rav Ketina without tzitzit and rebuked him:

“An angel found Rav Ketina who was clad in a linen sheet. He said to him: ‘Ketina, Ketina—linen in the summer and a cloak in the winter; what will become of the blue-dyed thread of tzitzit?’ He said to him: ‘Do you punish for neglecting an aseh?’ He said to him: ‘At a time of wrath, we punish.’”

Rav Ketina wore a sheet (upon which the Sages decreed not to place tzitzit, as it is a night-garment) in the summer and a cloak (with rounded edges, exempt from tzitzit) in the winter—and thus always exempted himself from tzitzit. The angel rebukes him and says that in a time of wrath they punish even for neglecting an aseh (plainly referring to an existential or conditional aseh, for neglect of an obligatory aseh is punished at all times; see Tosafot s.v. “Anashitu Asei” there). From here we see there is a problematic aspect even in evading a conditional or existential aseh. True, punishment is only “in a time of wrath,” but it is reasonable that the problematic nature of such behavior exists always. Therefore, many to this day wear a four-cornered garment in order to obligate themselves in tzitzit.

However, several Rishonim[5] wrote that this applies only in a case like Rav Ketina, who deliberately avoided wearing the customary garment only to escape the mitzvah of tzitzit. But in our day, when in any case people do not usually wear a four-cornered garment, someone who wears a regular shirt and does not place tzitzit on it is not punished even “in a time of wrath.” He did not seek to flee the obligation; he simply is not in a situation that obligates him. That is precisely the meaning of exemption in a conditional or existential aseh.

Simply put, this entire discussion can proceed about a conditional aseh, for that is an aseh about which halakhah at least in principle defines the prohibition of “bitul aseh.” Therefore a person who evades its fulfillment might perhaps be considered, in a time of wrath, as though he neglected an aseh. But for an existential aseh this discussion seems less relevant, since there is no definition of “bitul aseh” there at all. There is no halakhic prohibition of “bitul aseh” for not giving charity beyond a third of a shekel, or for not settling the Land of Israel according to R. Moshe Feinstein. It is therefore implausible to say that “in a time of wrath” one is viewed as if he neglected an aseh when such a thing does not exist.

But that conclusion is not necessary. As I understand it, the punishment for evading such mitzvot “in a time of wrath” is not for “bitul aseh,” for we are dealing with a conditional aseh that cannot be neglected if the obligating circumstances are not present. If a person does not wear a four-cornered garment, he has no duty to place tzitzit on it, and certainly has not neglected an aseh by not doing so. And we certainly cannot say that there is a duty to wear a four-cornered garment or to eat meat. These are acts dependent on our will, and the obligation arrives only if we chose to engage in them. It is therefore more reasonable that the punishment in a time of wrath is for unworthy conduct (akin to punishment for immoral conduct that does not cross formal halakhic boundaries, or for failing to act “beyond the letter of the law,” or for falling short of piety) and not for bitul aseh. Someone who evades mitzvot is in the wrong with respect to his attitude toward Divine service, but we cannot say he has neglected an aseh. If this is correct, then such reasoning can be said about an existential aseh as well, not only about a conditional aseh.

Up to now we have seen that there are obligatory positive commandments (conditional or not) which one can fulfill or neglect; and there are existential positive commandments which one can fulfill but not neglect. It turns out that combinatorics do not disappoint us this time either, and there are two more types of positive commandments: those that can be neglected but not fulfilled, and those that can neither be neglected nor fulfilled.

4. An “aseh-prohibition,” or a lo ta’aseh derived from an aseh (lav haba mikhlal aseh)

As noted, there are commandments that cannot be fulfilled but can be neglected; these are called an “aseh-prohibition” or a “lo ta’aseh derived from an aseh.” A timely example (we are at the threshold of the sabbatical year) is the prohibition of commerce in produce of the seventh year. In the Torah this prohibition appears as a positive commandment. In Parashat Behar the Torah states (Leviticus 25:6):

“And the Sabbath-produce of the land shall be for you to eat—for you and your male and female servants, and for your hired worker and resident who sojourn with you.”

On the surface, there is here a positive commandment to eat the produce of the sabbatical year. But Chazal expound this verse in several places to derive various prohibitions. For example, Bekhorot 12b:

“It was taught: An animal of the sabbatical year may not be used to redeem the firstling of a donkey—what is the reason? The Merciful One said ‘for food’—and not for commerce.”

There is a prohibition to engage in commerce with seventh-year produce. Strictly speaking, there is no prohibition of commerce but rather a mitzvah to eat; and one who engages in commerce merely neglects the aseh of eating. But it is accepted among the poskim that this is a “lo ta’aseh derived from an aseh,” meaning that there is no mitzvah to eat at all, but only a prohibition on not eating (i.e., on misusing it). I will note that as a matter of halakhah we rule that a “lo ta’aseh derived from an aseh” counts as an aseh (see Yevamot 54b and many parallels).

What does it mean that this prohibition is considered an aseh? There is no mitzvah to eat sabbatical produce—only a prohibition upon one who does otherwise.[6] In what sense is it an aseh? It appears that the intent is this: one who engages in commerce with sabbatical produce violates a neglect of an aseh, not a lo ta’aseh. But notice: there is no positive mitzvah to eat; so if he engaged in commerce, the problem is not that he did not eat, but that he engaged in commerce. And still it is an aseh rather than a lo ta’aseh, because the transgression is classified as “bitul aseh” and not as a lo ta’aseh. The practical consequence is that if there is a lo ta’aseh derived from an aseh alongside another aseh, we do not count them both (because these would be two asehs; see Ramban’s critique to Shoresh 9 and our article in Yishlach Shoreshav on that shoresh).

Here this is somewhat exceptional, for Chazal derive from this verse several additional prohibitions, such as waste (Pesachim 52b), soaking, laundering, poulticing, sprinkling, and “epiktoizin” (Sukkah 40a–b), and more. One might therefore have said that the Torah merely wrote in shorthand and, instead of enumerating all these prohibitions, it wrote briefly what is permitted (eating) and not everything that is forbidden. But as we already saw in previous columns, this is not mere shorthand, for from the form of expression it follows that one who does all those things is “neglecting an aseh” and not violating a lo ta’aseh.

In any event, there are several more examples of a lo ta’aseh derived from an aseh where there is no room to claim “shorthand.” For example, the Torah says (Deuteronomy 23:21):

“To a foreigner you may lend with interest; but to your brother you shall not lend with interest—so that the Lord your God may bless you in all that you put your hand to in the land to which you are entering to inherit.”

At first glance, there is a positive commandment to lend with interest to a non-Jew and a prohibition to lend to a Jew. But for most poskim this is a lo ta’aseh derived from an aseh—that is, there is no mitzvah to lend with interest to a non-Jew; rather, one who lends with interest to a Jew violates the lo ta’aseh “to your brother you shall not lend with interest” (in fact there are two lo ta’asehs—neshekh and tarbit) and also neglects the aseh “to a foreigner you may lend with interest.”[7] Again, this is an aseh that one can only neglect and not fulfill. Similarly with checking the signs of kashrut for cattle, birds, and fish (see Rambam’s Sefer HaMitzvot, asehs 149–152). There, too, there is no mitzvah to check; there is only an “aseh-prohibition” not to eat without checking (see Rambam’s own explanation in aseh 149). In these examples (and others) there are not many disparate prohibitions for which the positive formulation would be a shorthand. The Torah chose to formulate in positive language where it could, with equal efficiency, have formulated negatively (with regard to interest, the lo ta’aseh appears explicitly in the same verse). It is therefore clear that the Torah’s intent was not shorthand but to say there is here an “aseh-prohibition” and not a lo ta’aseh.

As for how to read such verses, it seems to me that in all cases of “lo ta’aseh derived from an aseh” Chazal’s reading of the verse was effectively by adding the word “only.” For example: “Only to a foreigner may you lend with interest.” Or: “And the Sabbath-produce of the land shall be for you only to eat.” That addition teaches that the verse is in fact coming to exclude other actions and not to obligate this action. With the added “only,” the meaning of “lo ta’aseh derived from an aseh” becomes clear (I will not enter here into the question of how Chazal know where to add “only” and where we are dealing with a standard aseh).

In any case, the conclusion is that there are situations where the Torah commands us an action, but its intent is merely to impose a prohibition on failing to do that action. And still, that prohibition is not a lo ta’aseh but a neglect of an aseh, because as a matter of halakhah we rule that a lo ta’aseh derived from an aseh is an aseh. We thus learn of another type of positive commandment: a mitzvah one can neglect but not fulfill—the precise inverse of existential mitzvot (which one can fulfill but not neglect).

5. Definitional commandments

What remains are positive commandments that can neither be neglected nor fulfilled. This sounds odd at first—what, then, makes them “commandments”? But it turns out that at least in Rambam’s view there are such positive commandments. For example, in aseh 95, dealing with the annulment of vows, Rambam writes:

“The ninety-fifth commandment is that we were commanded to rule on the annulment of vows. That is, the Torah directed us to adjudicate these laws; it does not mean that we are obligated to annul in every case. This is, in fact, the idea you will understand from me whenever you hear me count a given law among the commandments—that there is no command to perform a specific action necessarily, but rather the command is that we are commanded to rule in this matter in such-and-such a way.”

In the next mitzvah, Rambam deals with the impurity of touching a carcass, and there too he writes:

“The ninety-sixth commandment is that we were commanded that anyone who touches a carcass becomes impure. This command includes the impurity of a carcass and all its laws. And I will now mention a preface that you should remember in everything we list from the types of impurities. Namely, that when we count each type of impurity as a positive commandment, this does not mean that we are obligated to render ourselves impure with that impurity—nor that we are warned against becoming impure such that it would be a lo ta’aseh. Rather, when the Torah says that whoever touches this type becomes impure, or that this thing renders impure in such-and-such a manner for one who touched it—this is a positive commandment. Meaning: the ruling that we were commanded concerning this matter is a positive commandment; namely, that whoever touched this becomes impure and will be impure, and the obligations that apply to the impure will apply to him—to leave the camp of the Shekhinah (Num. 5:3), and not to eat sacred foods and not to touch them (lo ta’aseh 129), and so forth. And this is the command—that he is impure of this type when he touched it or when he was in its presence in such-and-such a manner. Remember this idea for every type of impurity.”

As Rambam writes here, the definition of impurity carries, of course, halakhic ramifications (leaving the camp, not eating sacred foods, not touching them, etc.), but these are each counted as independent commandments. This mitzvah is merely a legal definition: one who touches a carcass becomes tamei, and then all those norms apply to him. Similarly with other impurity-mitzvot that follow.

These are definitional asehs—positive commandments that cannot be fulfilled or neglected. They define a halakhic status or mechanism. Their classification as mitzvot can be understood if we translate “mitzvah” here as “statute.” Every statute book contains definitional sections (e.g., “For purposes of this law, a ‘minor’ is one under such-and-such age”), and these, too, are considered “laws.” If we treat Sefer HaMitzvot as the halakhic statute book, we will not be surprised to find definitional commandments in it as well (see on this in Yishlach Shoreshav, in the article to Shoresh 12).

Even in this category certain assumptions are common—though not necessary. For example, many people suppose that the commandments of shechitah or divorce are definitional: if you slaughtered properly the meat becomes permitted (in “lamdanic” language this is a “matir,” not a mitzvah); there is no mitzvah-fulfillment in the shechitah—at most there is neglect of an aseh if you ate without shechitah (which would then be a lo ta’aseh derived from an aseh). But that is not so. According to virtually all opinions, the mitzvah of shechitah is a fully obligatory conditional positive commandment; that is, if you slaughtered, you fulfilled a positive commandment (the proof commonly adduced is the blessing “Who sanctified us with His commandments and commanded us concerning shechitah”—a proof that, in my view, is not airtight).

As for divorce, at the end of mitzvah 598 the Sefer HaChinukh writes:

“Once we were commanded that when we wish to divorce our wives we must divorce them in writing—and for that writing Scripture says ‘a bill of severance,’ which our Sages call a get… And one who transgresses and divorces his wife without writing her a get as the Torah commands and as our Sages explained has neglected this aseh. And his punishment is very great, for her status is that of a married woman and he treats her as divorced—and the punishment for a married woman is known, for it is among the most severe transgressions in the Torah.”

At the beginning one might have construed this as a definitional mitzvah—i.e., if you divorced properly the woman is divorced; if not, she is not. But in any event there is no fulfillment or neglect of an aseh. Yet at the end the Chinukh states explicitly that one who sends away his wife without a get has neglected an aseh—meaning this is an obligatory conditional mitzvah (for its significance, see my article to Parashat Ki Tetze, Middah Tovah 5767).

Is there an analogous distinction between “existential” and “obligatory” lo ta’asehs?

We have seen a distinction between different types of asehs—and in particular between an obligatory aseh and an existential aseh. Is there a parallel distinction among lo ta’asehs? Is there room to distinguish between an “obligatory lo ta’aseh” and an “existential lo ta’aseh”? An “existential lo ta’aseh” is the regular lo ta’aseh: failing in it is a transgression, but refraining from it is not a “mitzvah.” By symmetry, an “obligatory lo ta’aseh” would be a lo ta’aseh such that not failing in it constitutes a mitzvah. I do not know of such a category in the halakhic literature. Not transgressing a lo ta’aseh is not considered a mitzvah; in other words, all lo ta’asehs are existential, not obligatory.[8]

True, in the literature of Chazal (and even more in the literature of sod, e.g., the writings of the Arizal) we sometimes find that one who contemplated committing a sin and did not do so receives reward.[9] Here there is a certain analogue (though not in the halakhic sphere) to the notion of an “obligatory lo ta’aseh.” Of course, there is no basis to speak of reward for every moment that someone is not murdering. The reward is given when a transgression presents itself and there is a real possibility that he would commit it, and yet he overcomes and refrains. In such a situation the person has something akin to a mitzvah-fulfillment. This topic we will not treat here, for plainly the reward is not for fulfilling a mitzvah but for worthy behavior (just as we saw above regarding punishment for conditional or existential asehs “in a time of wrath”).[10]

Why indeed is there no “obligatory lo ta’aseh” in halakhah? It may be that an “obligatory lo ta’aseh” does not exist because it is identical to an obligatory aseh. An “obligatory lo ta’aseh” would be an action such that doing it is a lo ta’aseh, but not doing it constitutes fulfillment of a mitzvah. We have already noted that refraining from a lo ta’aseh is neutral; therefore, where refraining has positive value, we cannot define that as the negative value of a lo ta’aseh (parallel to the negative value of bitul aseh), and we must regard it as an aseh. If so, the category of “obligatory lo ta’aseh” overlaps with that of an obligatory aseh, and therefore does not exist as a distinct category. Still, there remains room to ask why all such commandments are defined as asehs and not as lo ta’asehs—a question that requires further thought.

Back to the distinction between lo ta’aseh and aseh

In the previous columns we set out the distinction between lo ta’aseh and aseh and explained it on two planes: with respect to fulfilling the two types, the difference was like that between “stick” and “carrot.” With respect to transgressing them, the difference was described as follows: failure to fulfill a positive commandment is not an act head-on against God’s will, whereas violating a lo ta’aseh is a head-on act against His will. In other words, the violator of a lo ta’aseh is a rasha; one who fulfills an aseh is a tzaddik; one who refrains from a lo ta’aseh or neglects an aseh is “average” (neither tzaddik nor rasha).

However, as someone pointed out in a comment on the earlier columns, this description fits only an existential aseh. In an obligatory aseh, one who neglects it is a rasha (he has committed the offense of failing to perform an aseh and is punished by the Heavenly court). What, then, is the difference between neglecting an obligatory aseh and violating a lo ta’aseh? Put differently, failing to fulfill an obligatory aseh is a negative state we must avoid—so how does it differ from a lo ta’aseh? It would seem that when we are dealing with an obligatory aseh, the distinction I presented earlier disappears. In short, we must explain why failing to fulfill an obligatory aseh indeed has negative value, and yet is different from violating a lo ta’aseh.

Perhaps the explanation is this: a positive commandment points us to a positive state we ought to be in; a lo ta’aseh warns us against being in a negative state. Neglect of an obligatory aseh has negative value, but its negative value is “not being in a positive state.” My claim is that there are states that are classified as positive and nevertheless constitute such a basic requirement that not being in them is deemed a negative act. This is not a negative state (there is no head-on clash with God’s will) but a negative valuation of a neutral state.

To sharpen this: I distinguish between the classification of the states themselves (positive, negative, or neutral) and the classification of the values attached to a person’s being in such a state—i.e., the moral value of the person’s act. Neglect of an aseh—whether existential or obligatory—is always a neutral state (neither positive nor negative). But the value attached to being in that neutral state differs between the two types: for an obligatory aseh, being in the neutral state carries a negative value; for an existential aseh, being in the neutral state has zero value. The demands upon the person differ in these two cases.

The assumption here is that the classification of the states themselves is not a function of the demands upon us regarding them, but an objective classification independent of us. Think of it as demolition or construction of something in the spiritual world. Fulfilling an aseh is the construction of a spiritual element; violating a lo ta’aseh is demolition. Neglect of an existential aseh is neither; neglect of an obligatory aseh is non-construction that carries negative value. This means there are spiritual elements such that, even if you merely failed to build them, that alone is ground for complaint against you (even though it is non-construction, not demolition). This does not warrant punishment by human courts, for punishment is rendered only for being in a negative state; but a claim in the Heavenly court exists even for non-construction. Put differently: in certain dimensions we are required not to be “average” but to be tzaddikim. One who is not a tzaddik and remains average is not a rasha (not in a negative state), yet there remains a claim against him. In those areas it is forbidden to be “average.” That is the offense of neglecting an aseh.

A “lo ta’aseh derived from an aseh” poses a more difficult challenge. In such an aseh there is no positive value at all; one who “fulfills” it is not a tzaddik. And yet one who does not “fulfill” it is not a rasha but an “average” person against whom there is a claim. Here the claim is not that he failed to build something, but that he is in the neutral state; the negative value of such a state is not the absence of a positive state, but is inherent to it.

All this brings us to very abstract and elusive definitions—certainly so long as I have not illustrated precisely what is meant. What is a positive or negative state? How is a person’s valuation in each state determined, if not by the state’s nature? Yet it seems to me that these conclusions are entailed by the analysis here. Tirgits nicely described this, following Column 415 (here and the ensuing discussion), as an abduction that teaches us about the existence of theoretical entities even though we cannot observe them directly.

Back to the “obligatory lo ta’aseh”

Above I dealt with the question of why there are no “obligatory lo ta’asehs,” and concluded that an “obligatory lo ta’aseh” is identical to an obligatory aseh. At the end I wondered why halakhah defines it as an aseh and not as a lo ta’aseh. I can now answer that: defining it as an aseh means that, even if there is an offense in neglecting it, the offense lies in being in a neutral state whose value is negative, not in being in a negative state as with a lo ta’aseh. Therefore it is defined as an aseh. But then the question returns: why are there no “obligatory lo ta’asehs”? If such a lo ta’aseh were not identical to an obligatory aseh, once again we would lack an explanation for the absence of that category.

A surprising conclusion regarding “an aseh overrides a lo ta’aseh”

From the distinction between an obligatory aseh and an existential aseh and a lo ta’aseh, one can infer a surprising conclusion. At the beginning of Column 416 I cited the Ramban’s explanation of the complex relationship between lo ta’aseh and aseh. He argues that fulfillment of an aseh is greater than refraining from a lo ta’aseh (for it is love versus fear), but failure to fulfill an aseh is less severe than violation of a lo ta’aseh (for this is lack of fear, which is worse than lack of love). From this he derives that an aseh overrides a lo ta’aseh—because love is more important than fear.

Continuing that line of thought, one could infer that fulfillment of an existential aseh is greater than fulfillment of an obligatory aseh. An obligatory aseh is more basic, and thus we are required not to violate it. An existential aseh is a higher rung and therefore left to our voluntary choice. That is, transgressing it is easier, but precisely for that reason its fulfillment is greater. Hence, if an obligatory aseh overrides a lo ta’aseh, then an existential aseh—which is higher than an obligatory aseh—should certainly override a lo ta’aseh. Here we have an act on a higher level than an obligatory aseh; kal vaḥomer it should override a lo ta’aseh.[11] This of course contradicts the intuition that it is less likely for an existential aseh to override a lo ta’aseh than for an obligatory aseh to do so; indeed, it seems entirely implausible for an existential aseh to override a lo ta’aseh. This is the place to recall that, at least according to the Ra’avad, an existential aseh does override a lo ta’aseh—and perhaps this is the explanation.

A topical note (inyana de-yoma): separating “neglect” from “non-fulfillment” of an aseh

Though this has gotten lengthy, I saw fit to add here an application relevant to the season.

The Gemara in Sukkah 9a derives the invalidity of a stolen sukkah from the verse “The festival of Sukkot you shall make for yourself.” Tosafot (s.v. ha-hu) there ask:

“That verse is needed to exclude [a sukkah that is] stolen. — It is a wonder: let it follow from the principle of ‘a mitzvah that comes through a transgression’ (mitzvah ha-ba’ah ba-averah), for which reason we invalidate a stolen etrog even on the second day of Yom Tov later (29b). And in that very sugya there is a difficulty: it says, ‘Granted, on the first day we require ‘yours’—but why [invalid on] the second day?’ and it answers, ‘because it is a mitzvah that comes through a transgression’; if so, why do we need ‘yours’ at all? And there, one can answer that it is needed to exclude a borrowed [etrog]. But with a sukkah there is no such answer according to the Rabbis who say later (27b) that a person can discharge his obligation in his fellow’s sukkah, derived from “All the citizens in Israel shall dwell in sukkot,” teaching that all Israel are fit to dwell in one sukkah.”

“One can answer that the principle of ‘a mitzvah that comes through a transgression’ is not from the Torah but Rabbinic.”

They ask why that verse is needed—surely a stolen sukkah is invalid anyway due to the rule of a mitzvah that comes through a transgression. Tosafot answer that that rule is Rabbinic. Most Rishonim disagree (including those very Tosafot later), and for them the initial difficulty returns: why is a special source needed to invalidate a stolen sukkah? Various answers are given by the Rishonim (there and at the beginning of the third chapter of Sukkah, regarding an etrog). Here I focus on the Minḥat Ḥinukh’s suggestion in mitzvah 325 §9. I quote his words in full, for he presents a discussion of the types of mitzvot delineated here (and, unlike many later writers, he distinguishes well between a conditional obligatory aseh and an existential aseh):

“It seems to me that there are two kinds of positive commandments. One is an obligation placed upon the person, like tefillin, etrog, and eating matzah. With such a mitzvah, if he fulfills it he does the will of the Blessed Creator, for so the King commanded; and if he neglects the mitzvah and does not don tefillin or does not take the lulav, he has neglected the mitzvah and acted against His will, and he will surely be punished. And there are mitzvot that one is not obligated to do—such as tzitzit, for the Torah did not obligate him to wear a four-cornered garment; if he wishes he goes without such a garment, and that is not against the Creator’s will. But if he brings himself into an obligating situation—i.e., he dons a four-cornered garment to fulfill the mitzvah of tzitzit—this is the straight and proper path. The rule is: if he fulfills the mitzvah, in any case he fulfills the mitzvah and does His will; there are cases where he does not fulfill the mitzvah and thereby acts against His will—such as when he wears a four-cornered garment or eats a fixed meal outside the sukkah; and there are cases where he does not fulfill the mitzvah and also is not acting against His will—such as when he does not wear that garment and does not eat at all. This is obvious.”

Up to here he distinguishes between an obligatory aseh and an existential aseh. He now enters the difference between a conditional obligatory aseh and an existential aseh:

“In both of these mitzvot there is also a situation where he neglects the mitzvah and acts against His will, just as with not donning tefillin—namely, if he wears a four-cornered garment and does not place tzitzit, he transgresses the mitzvah; likewise, if he eats a fixed meal outside the sukkah he transgresses the mitzvah. The rule: if he fulfills the mitzvah, in any case he fulfills it and does His will; there are cases where he does not fulfill the mitzvah and acts against His will—such as wearing a four-cornered garment without tzitzit or eating a fixed meal outside the sukkah; and there are cases where he does not fulfill the mitzvah and also is not acting against His will—such as when he does not wear the garment and does not eat at all. This is easy to understand.”

As we have seen, in a conditional obligatory aseh—unlike an existential aseh—there are indeed situations of bitul aseh. When the obligating circumstances occur, a full obligation takes effect; and if he does not act, he has neglected the mitzvah.

Now for his resolution of Tosafot’s difficulty:

“It seems that the reason for ‘a mitzvah that comes through a transgression’ is that the Holy One does not desire it and it is not pleasing before Him—for the advocate becomes a prosecutor, as it says in the chapter ‘The Stolen Lulav,’ and ‘I, the Lord, hate robbery in a burnt-offering.’ On this account it is proper to say that he did not discharge the mitzvah, because this is not the will of the Creator. And this applies well to an obligatory mitzvah: since he did not discharge his obligation, he has not done the mitzvah and has neglected it—these are bound together. But for mitzvot that are not obligatory—such as tzitzit and sukkah on the other days of the festival—if they come through a transgression, it is true that he did not do the Creator’s will, for this is not His will; nevertheless he did not neglect the mitzvah, but merely did not fulfill it. It is like one who does not wear the garment at all or does not eat at all—he has not neglected nor fulfilled. So too here: although he is wearing tzitzit and eating in a sukkah, it is not pleasing before Him; it is as if he did not fulfill the mitzvah—but we cannot treat him as one who neglected it, since after all he is wearing tzitzit and eating in a sukkah. Understand this.”

“There is also a practical difference in law: if he refuses to eat in the sukkah and eats outside the sukkah, or he wears a four-cornered garment and refuses to place tzitzit on it—we compel him until his life departs, as with all positive commandments. But in a case like ours—akin to one who is simply not wearing the garment or not eating—there is no compulsion to make him eat in such a sukkah, since he is not neglecting the mitzvah. However, this is only if we say the invalidity stems from ‘a mitzvah that comes through a transgression.’ But if the Torah explicitly invalidated ‘stolen,’ then it is like roofing with invalid s’khakh that does not grow from the ground or is susceptible to impurity—it is not a sukkah at all; and if he eats [there], it is as if he eats in his house, since the Torah decreed that this is not a sukkah. Thus it is understandable why the Torah wrote ‘for yourself’ to exclude stolen with respect to sukkah and tzitzit. In sum: when the invalidity is that the mitzvah is a mitzvah-act that comes through a transgression, then the sukkah remains a sukkah—it is just not pleasing; yet he is not sitting outside a sukkah and has not neglected the mitzvah. But when the Torah invalidated it, then it is not a mitzvah at all, and he transgresses by sitting outside a sukkah. Turn it over, etc., for these matters are, in my eyes, correct and true; I have elaborated elsewhere in pilpul.”

His claim is that eating in the sukkah beyond the first night is a conditional obligatory aseh. If he wants to eat, he must do so in a sukkah—but he can also choose not to eat at all. On the first night, by contrast, there is an obligation to eat bread in the sukkah; hence there it is an obligatory mitzvah.

Now, if a person eats on the other days in a stolen sukkah, then by the rule of “a mitzvah that comes through a transgression,” his mitzvah is certainly invalid. But that still does not mean he has the offense of bitul aseh like one who eats outside the sukkah. After all, the sukkah is kosher and he ate in that sukkah. His mitzvah is not pleasing before God because it comes through a transgression,[12] but we cannot say he ate outside a sukkah. Therefore he did not fulfill the mitzvah, but neither did he neglect an aseh. He brings a practical consequence concerning coercion: one who eats in a stolen sukkah is not to be coerced to move to a kosher sukkah, because he has not neglected an aseh. He is not eating outside a sukkah; he merely will not earn a mitzvah—and for that we do not coerce.

Note that this distinction can be said only regarding a conditional obligatory aseh. For an existential aseh there is no bitul aseh at all (consider someone who “steals the Land of Israel” and settles it, per R. Moshe Feinstein)—hence there is no situation in which it would be deemed neglect. But for an obligatory aseh, once you did not fulfill it, it is obvious you have bitul aseh; there we cannot detach non-fulfillment from neglect. By contrast, with a conditional obligatory aseh—and only there—one can conceive of a situation where there is no mitzvah yet also no bitul aseh.

In light of this distinction, the Minḥat Ḥinukh resolves Tosafot’s difficulty. He explains that therefore the verse is needed to teach that the sukkah itself is invalid (and not only the mitzvah, which would certainly be invalid by the rule of “a mitzvah that comes through a transgression” even without the verse). The upshot is that one who ate in a stolen sukkah is as if he ate outside a sukkah—and therefore we coerce him to eat in a kosher sukkah. All of his discussion, note, was on the a priori plane—i.e., if we had no verse (this explains why a verse is required).

The meaning of this ḥiddush

The Minḥat Ḥinukh’s novelty lies in separating non-fulfillment of the mitzvah from neglect of it. Note that there is a greater novelty here beyond the category of a conditional obligatory aseh. He claims that with a conditional obligatory aseh, even when the obligating circumstances obtain, it may still be that there is no mitzvah-fulfillment, and yet there is no neglect of an aseh. Seemingly, even when conditions obtain, that does not turn it into a fully obligatory aseh.

To sharpen this, consider the first night of Sukkot, when there is an obligatory aseh to eat bread in the sukkah. From the Minḥat Ḥinukh it emerges that his innovation is said only when the aseh is conditional—i.e., after the first night. On the first night, he agrees that even from the rule of “a mitzvah that comes through a transgression” alone (without the verse) one neglects the aseh; no verse is needed. Yet one might have made the same argument for the first night: when he ate in a stolen sukkah, he did not eat outside a sukkah—rather, his mitzvah was not pleasing. So there is no mitzvah-fulfillment, but also no neglect. What, then, is the difference?

One could say that the Minḥat Ḥinukh understands that on the other days this is merely an “aseh-prohibition” and not a mitzvah—i.e., there is a prohibition to eat outside the sukkah, but it is not that eating in a sukkah constitutes fulfillment. During the other days it is really a “lo ta’aseh derived from an aseh.” But that is very implausible, since we recite the blessing “to dwell in the sukkah” all the days of the festival. It is quite clear—even according to him—that on the other days there is a conditional obligatory mitzvah to eat in the sukkah, and if we did so we have fulfillment of a positive commandment; it is simply conditional, not an unconditioned obligatory mitzvah like on the first night. What, then, is the difference? Why, on the first night, would even “a mitzvah that comes through a transgression” (without the verse) cause bitul aseh?

It would seem that the difference is another: on the first night we are required to eat a kezayit in the sukkah without any conditioning on circumstances. If a person ate in a stolen sukkah on the first night, he did not eat outside a sukkah, but he did not fulfill the mitzvah—and thus it still rests upon him. He must therefore return and eat in a kosher sukkah. On the other days, when the condition is “if he wants to eat,” then at the moment he wants to eat he must do so in a sukkah. If in that situation he eats in a stolen sukkah, he does not fulfill the mitzvah; but after he has eaten, the obligating circumstances have already passed (he has already eaten). At that point there is no reason to obligate him to return and eat in a kosher sukkah, for he no longer seeks to eat. Next time he wants to eat, of course he will be required to do so in a kosher sukkah—but those will be new circumstances. Either way, he need not repeat a mitzvah he already forfeited.

To sharpen this further: in a parallel case concerning tzitzit the law would differ. If a person steals tzitzit strings, then if he is wearing a four-cornered garment and is obligated to place tzitzit, we would certainly obligate him to remove the stolen tzitzit and place kosher ones (or remove the garment). Unlike the sukkah, here there is an ongoing neglect of an aseh, for he is still wearing the same four-cornered garment as before, which obligates him to place tzitzit.

The Minḥat Ḥinukh does claim that he has no bitul aseh for what he did—and that is indeed puzzling. Why on the first night would he have bitul aseh, whereas here not? Perhaps on the first night he has not yet fulfilled the mitzvah but has no neglect; only once the entire night has passed without eating does he have bitul aseh. On the other days, if the obligation continued due to that initial eating, he would also have bitul aseh; but here, as I explained, the obligation renews with each act of eating.

Still, one may wonder regarding coercion for a stolen sukkah. The Minḥat Ḥinukh explained that in such a situation we would not coerce him, since he is not committing a transgression. But here, apparently, there is a problem: if he wants to eat, the obligating circumstances obtain, and now a positive commandment takes effect to eat in a sukkah. If he eats in a stolen sukkah, he does not fulfill the mitzvah. In that case, seemingly, we ought to coerce him to eat in a non-stolen sukkah so that he will fulfill the mitzvah. It seems the Minḥat Ḥinukh understands that coercion is designed to prevent the “aseh-prohibition” and not to ensure fulfillment; and, as we saw, in his view there is no “aseh-prohibition” in a stolen sukkah (all this absent the verse, of course).[13]

In conclusion I note that many Acharonim (almost everyone I know: R. Ḥayyim of Brisk, R. Shimon Shkop, R. Shmuel Rozovsky, and others) are reluctant to accept the Minḥat Ḥinukh’s ḥiddush. In their view, if you did not fulfill the mitzvah of sukkah, then you necessarily neglected the aseh. If you are eating, the obligation to eat in the sukkah and thereby fulfill the mitzvah takes effect—and you did not do so. In light of what we have seen, this is not necessary. The obligation to eat in the sukkah obtained; there is simply no mitzvah to your credit. Likewise, there is room to say that, because without the verse there would be no bitul aseh, there would also be no coercion (assuming coercion is to prevent an “aseh-prohibition,” as above).

One could raise a different claim—not about the relationship between fulfillment and neglect, but about the very definition of a kosher sukkah. One could reject his contention that a sukkah can be kosher even though sitting in it does not constitute fulfillment of a mitzvah. One could argue that kashrut is about enabling fulfillment—but that, too, is a line of reasoning that can be rebutted fairly easily.

In the next column I will conclude this series by discussing the mitzvah of “tashbitu” (“you shall remove [leaven]”), which will illustrate some of the insights presented here. Ḥag sameaḥ.

[1] In truth, the source for an obligation to don tefillin once a day is not entirely clear. Apparently the Torah-level obligation is at every moment; see Yishlach Shoreshav, the article to Shoresh 11 n. 18. In the words of Ḥazal there is no mention of an obligation specifically to don them once per day, and the accepted halakhah is based mainly on the statement of Ullah (Berakhot 14b): “Anyone who recites Shema without tefillin is as if he bore false testimony about himself”; see Shulḥan Arukh OḤ 25:4. Seemingly, however, this is not within the framework of the mitzvah of tefillin but in order not to testify falsely; if so, for one who already recited Shema without tefillin, whence that he is specifically obligated to don them that same day? In the Eshl Avraham (Buczacz, ad loc. §5) he writes that if there were a Torah-level daily obligation, it would be incorrect to be lenient about not donning on ḥol ha-mo’ed, since that is a dispute among Rishonim and in a Torah doubt we should be stringent. If the obligation is not daily, it is unclear to what extent this mitzvah is truly “obligatory.” When does the moment arrive at which we declare that one has neglected an aseh? Perhaps it suffices to don them once in a lifetime, and then the decisive moment is the moment of death (as with circumcision; see on this the dispute between Rambam and Ra’avad at the beginning of Hilkhot Milah).

In the Jerusalem Talmud (Horayot 1:3) it says: “A prophet or enticer—if they tell you, ‘Do not put on tefillin today, put them on tomorrow,’ you must not listen to them, as it is written ‘to walk in all His ways’—in all of them, not some of them; behold you have uprooted the name for that entire day.” The baraita expounds that only if false prophets seek to make you violate an entire mitzvah are they liable to death; as an example, it cites neglect of one day of tefillin. This implies that each day is a mitzvah in its own right, and neglect of one day counts as neglect of a mitzvah. One could rebut that the same would apply if they said “Do not don for one hour today”—and the Yerushalmi’s phrasing is not exact; earlier there is similar language regarding “eating one olive-bulk of ḥelev today and two tomorrow,” even though there is certainly no daily definition in the prohibition of ḥelev. The context there requires study; see the commentaries. See also Y. M. Yaavetz, “Tefillin—A Perpetual Remembrance Before the Lord,” Otzar IV (2017), pp. 131–152.

[2] The question of why there is no parallel division of lo ta’asehs will be briefly mentioned below.

[3] See, for example, Middah Tovah to Parashat Vayeshev, 5767, and more.

[4] Below we will discuss punishment for such asehs.

[5] See Tosafot s.v. “Hakol”, Arakhin 2b; Rosh, Moed Katan ch. 3 §80; ToS Shabbat 32b; and Mordekhai, Hilkhot Tzitzit §945, and others. See a survey, for example, here (you will also see there a typical example of confusion between an existential aseh and a conditional obligatory aseh).

[6] It is commonly thought that according to Ramban there is also a positive commandment to eat sabbatical produce—i.e., that in his view this is an obligatory aseh, not a lo ta’aseh derived from an aseh. One who does not eat but uses the produce otherwise has neglected the aseh of eating. I am not sure this is his intent; discussion of this will have to wait.

[7] Rambam presents this as a positive commandment to lend with interest to a non-Jew; apparently he learned differently. Here, too, I am not sure that this is his intent; discussion deferred.

[8] Beware of confusion: the point is not that it is up to us whether to keep or to transgress a lo ta’aseh. Every lo ta’aseh binds us, and every violation is a negative act. That follows from its very being a lo ta’aseh—just as, for every positive commandment, fulfilling it is a mitzvah; that follows from its being a mitzvah. Here we mean only the analogue to what we found for asehs: an “existential lo ta’aseh” means that not transgressing it is not counted as a mitzvah. But of course one is forbidden to fail in it; that is not left to our choice.

[9] For example, see Yerushalmi Kiddushin 1:9:

“Mishnah: Whoever performs one mitzvah, good is bestowed upon him… Gemara: So one who sits and does not commit a transgression—do they give him reward as if he performed a mitzvah? And you say: indeed?! Rather, we stand as follows: one who performs one mitzvah—good is bestowed upon him, his days are lengthened, and he inherits the land; and one who commits one transgression—good is not bestowed upon him, his days are not lengthened, and he does not inherit the land. But there we learned: one who sits and does not commit a transgression—do they give him reward as if he performed a mitzvah? R. Zeira said: one to whom a possible transgression came to hand and he did not do it. R. Yose b. R. Bun said: one who designated for himself a mitzvah and never transgressed it. What have you [to cite]? R. Mar Ukban said: such as honoring father and mother. R. Mana said: ‘Happy are the blameless in their way, who walk in the law of the Lord’—as if they walked in the law of the Lord. R. Avun said: ‘Also they have not done iniquity; they walk in His ways’—as if they walked in His ways. R. Yose b. R. Bun said: what is written, ‘Happy is the man who has not walked in the counsel of the wicked’? Since he did not walk in the counsel of the wicked, it is as if he walked in the counsel of the righteous.”

See the whole sugya there (and Bavli Kiddushin 39b; Kallah 1:17; Kallah Rabbati 1:5; 2:3; and more). Also, Chazal extol the reward of sending away the nest as an example of reward for a “light” mitzvah (Kiddushin there; end of Ḥullin), even though from the Rishonim it appears there is no such mitzvah “lechatchilah” at all but, at most, avoiding a transgression.

[10] In Yishlach Shoreshav, in the appendix article to Shoresh 9 §5, we treated a similar question: is there an “aseh derived from a lo ta’aseh”? If such a notion exists, it is close to what we seek here, for abstention from that lo ta’aseh would have positive value and be considered akin to a positive commandment. See there the example of eating consecrated foods.

[11] According to the explanation I suggested there, however, this is not a necessary conclusion. I explained that the option of fulfilling the aseh has its valuation offset between the high positive value of the aseh and the high negative value of violating the lo ta’aseh. By contrast, in the option of not fulfilling the aseh and not violating a lo ta’aseh, there is a small negative value from neglecting the aseh. According to this, with an existential aseh there is no such small negative value, and therefore the two options are equivalent. Still, one might say that an aseh overrides a lo ta’aseh because, when the options are equivalent, the tie is broken by the consideration that love outweighs fear.

[12] The Rishonim discuss the relationship between invalidity due to “a mitzvah that comes through a transgression” and the rule that an aseh overrides a lo ta’aseh. Some (Rabbeinu Peretz, Pesachim 35b; Ritva, Sukkah 9a) hold that the invalidity of “a mitzvah that comes through a transgression” applies only to mitzvot that come for appeasement (sacrifices, the four species, etc.). That could relate to the Minḥat Ḥinukh’s logic that the invalidity affects only the appeasement, not the mitzvah itself. According to these views, it would seem that for sukkah the invalidity would not apply at all, and Tosafot’s difficulty would not arise.

[13] According to this it seems obvious that we would coerce for a lo ta’aseh, not only for an aseh—for a lo ta’aseh is more severe than an aseh. If coercion is for fulfillment of the aseh (and not for preventing the prohibition), one might then say we would not coerce for a lo ta’aseh.