On the Positivist Meanings of the Expression 'Statute' (Column 578)

With God's help

This past Sabbath, on Parashat Chukat, I spoke in the synagogue about the issue of the reasons for the commandments and scriptural decrees. I think there is a mistake in the way these concepts are understood, as I will explain here.

Rashi at the beginning of the portion

Rashi, at the beginning of the portion, explains what is unique about the commandment of the red heifer:

“This is the statute of the Torah”—because Satan and the nations of the world taunt Israel, saying, “What is this commandment, and what reason does it have?” therefore Scripture wrote of it “statute”: it is a decree from before Me, and you have no permission to question it.

In Siftei Chachamim here, note a, he writes in the name of the Re’em:

And even though the entire Torah is a decree of the King, here it comes to inform us that there is no reason for this at all, only the decree; and it is fitting to accept it even though no reason for it at all is known to Israel. This is what Rashi explained and answered: “because Satan…” And if you ask: regarding the vessels of Midian too it says, “This is the statute of the Torah.” It may be said that there too it refers to the ashes of the red heifer, for it is written, “however, it shall be purified with the water of sprinkling.” And according to the midrash of our Sages, of blessed memory, that the verse “however, it shall be purified with the water of sprinkling” refers to immersion—that to render metal vessels fit after prohibition, Scripture required immersion—it must be said that immersion itself is also among those things that have no reason. For why should a thousand se’ah of water not in the place of immersion be no better than forty se’ah of mikveh water? Re’em.

That is, Rashi's intention is to say that we have no permission to examine the reasons for the commandments. Perhaps because they have no reason, or perhaps because there is one but it is inaccessible to us.

In note b they add and write:

And if you ask, why does Rashi use the doubled expression, “What is this commandment and what reason does it have”? Another difficulty is: why do the nations taunt Israel specifically regarding this commandment more than regarding other commandments? After all, there are many commandments that have no apparent reason, such as mixtures or other such matters. It may be said that with this commandment they taunt and say, “What is this commandment?” because it itself is self-contradictory: the ashes of the red heifer purify the impure, yet a pure person who carries the ashes of the red heifer becomes impure by them. And furthermore, “What reason does it have?”—how can it purify the impure?

That is, not only is this not understood, but there is an internal contradiction here. Put differently: this is not merely a question about the commandment, but an objection.

Implication: the relationship between source and reason

In the yeshiva world it is commonly assumed that if a source verse is cited for some law, then apparently it has no reason of its own (or at least we do not understand it). A prominent example of this conception may be found in the rule ein onshin min hadin — that punishments are not derived by logical inference. In other words, one may not derive a punishment by force of an a fortiori argument.[1] In Lekach Tov sec. 2, he writes about this:

Now regarding the principle that one does not administer punishment derived from logical inference, there are three well-known reasons: first, that this is how the rule was transmitted. Second, since that which is derived by an a fortiori inference is always more stringent than that from which it is derived, perhaps it is not atoned for by the punishment assigned to the source case and requires a more severe punishment; and since it is not atoned for by the punishment of the source case, one should not punish it for nothing, for the entire purpose of punishment is only the atonement of the sinner, as this reason is explained by the Maharsha in Sanhedrin, see there. Third, perhaps the a fortiori inference can be refuted.

The first approach is that this is a scriptural decree. The second is that the punishment for the lighter case is insufficient for the more severe case. And the third is the concern that the a fortiori argument may be refuted.[2]

These points also appear in the Encyclopedia Talmudit, entry 'Ein Onshin Min Hadin':

Various reasons have been given for this: a) since an a fortiori argument is a rational analogy, and a person draws it on his own, in matters of punishment we are concerned that perhaps there is some refutation of the argument; b) since the derived case is more severe than the source case, it follows that the atonement afforded by the punishment of the lighter source case would not suffice for it; c) it is a scriptural decree, learned from his sister.

That is, the first approach in Lekach Tov is based on the verse his sister (see Makkot 5b). But on its face this is a very strange division. Two explanations are offered here, and one source (the verse his sister). Why are these presented as three different approaches? Seemingly, we have here a verse that serves as the source of the law, together with two possible explanations of that law. There is a hidden assumption here: if a source is cited, then apparently this law has no reason or explanation. This joins what we saw above — that if the Torah decrees something, apparently we have no explanation for it. The basis of this conception is most likely the assumption that had there been a sufficient explanation, we would not have needed a verse, as the Talmud remarks several times: Why do I need a verse? It is logical! — why do I need a verse? It is pure logic. Meaning, if there is reasoning, there is no need for a source. And from here it is inferred that if a source is brought, apparently there is no reasoning.

According to this conception, the source is an alternative to the reason. If there is reasoning and a rationale, there is no need for a source; and if a source is cited, then there is no rationale here. That is why later authorities understood this as three approaches. See also my discussion in column 411.

The difficulty: what does Rashi actually say?

A first problem with this conception is that many did in fact deal with the reasons for the commandments, including the red heifer. Even regarding King Solomon, the midrash (Bamidbar Rabbah, Chukat, section 19) says:

Solomon said of all these: I mastered them; but the section of the red heifer I investigated and inquired into and scrutinized (Ecclesiastes 7): “I said, I will become wise, but it was far from me.”

He tried to look for reasons and did not succeed. How could he look if the Torah forbids us to do so (by calling the red heifer the statute of the Torah)? Likewise, among the commentators on the Torah you will find various suggestions for the reason behind this commandment.

If you read Rashi's words cited above carefully, he does not write that one may not to entertain thoughts about it but that one may not to entertain thoughts about her. The meaning is entirely different. to entertain thoughts about her means to cast doubt on it. If so, there is no prohibition against seeking reasons for the commandment of the red heifer or for the Torah's statutes. What is forbidden is to think that if you did not find such a reason, then it is not true and you are not bound by it. If so, there is no difficulty at all in Solomon's engaging in the reasons for the red-heifer commandment (except that he did not succeed).

A rebellious daughter: a reason for a scriptural decree

In Mishnah Sanhedrin 68b we find that the law of the stubborn and rebellious child is not applied to a daughter. And in the Talmud, 69b–70a, this is explained as follows:

“A son and not a daughter” was taught. Rabbi Shimon said: By rights, a daughter too should have been fit to be judged as a stubborn and rebellious son, for sin is readily available to her; but it is a decree of Scripture: a son and not a daughter.

That is, in principle such a law ought to have applied to daughters as well, but there is a scriptural decree that it not be applied to them.

The medieval authorities propose various reasons for this law, and some of them cite the Mishnah there at the beginning of the chapter, which says that the stubborn and rebellious son is judged on account of his ultimate end — that in the end he will be drawn after his appetites and will eventually even rob people. They explain that with daughters there is no such concern, and therefore the law of the rebellious child is not applied to them.

For example, Sefer Ha-Chinukh writes in commandment 248:

And this law applies only to males, but not to females, because it is not their way to be drawn after eating and drinking as men are; and this is what is meant by the verse [there], “a stubborn son (and rebellious)”—and not a daughter.…

And Minchat Chinukh there, sec. 16, notes that his source is Maimonides:

But not females, etc. Such is the wording of Rabbi Moshe. And in Leḥem Mishneh he noted that it is explained in the Talmud that a daughter, too, would have had the law of the stubborn and rebellious son, except that it is a decree of Scripture. However, since there is no practical legal difference, Rabbi Moshe and the author of Minḥat Ḥinukh adopted this reason.

He already notes that this proposed reason seemingly does not fit with the Talmud's determination that this is a scriptural decree. But he explains that there is no practical legal consequence here, and apparently this reason is not really the reason but only a way of putting an explanation into words.

But Meiri there, 78b, writes:

And he likewise expounds from it “a son and not a daughter,” that is, a daughter is not judged at all under the law of the stubborn and rebellious son, for the Torah was concerned only with one whose way is to be drawn after his appetites and become immersed in them, and this applies not to a daughter but to a son. For these matters, although they are all decrees of Scripture, all follow this line of reasoning, even though at first glance some of the details may appear to point in the opposite direction. And in the Jerusalem Talmud they said: “All these words are not logically compelling, for if distinctions were to be made logically, who ought to be liable—the son or the daughter? Who ought to be liable—the adult or the minor? You would say the adult. Who ought to be liable—one who steals from his father or one who steals from others? You would say one who steals from others. Yet the Torah exempted the daughter, the adult, and one who steals from others. So this is nothing other than a royal decree.”.

Meiri does not suffice with merely citing the reason, as other medieval authorities do. He himself notes that there is a contradiction between his reason and the determination of both Talmuds (the Babylonian and the Jerusalem Talmud) that this is a scriptural decree. That is, he apparently understands that these reasons are not merely verbal rationalizations but truly the foundation of the law that a daughter is not subject to the law of the rebellious child. So how does this fit with the claim that it is a scriptural decree? His answer is that although these are scriptural decrees, they nevertheless all follow this line. He even adds that, admittedly, some details are difficult and seem not to fit this reason, which again shows that he — perhaps unlike the other medieval authorities — treats this as the true reason.

But on his view it is not at all clear what a 'scriptural decree' really is. How is it different from an ordinary Torah law? And if it has a reason, why is a verse needed at all?

What is a 'scriptural decree'?

In my article on conspiring witnesses I discussed this at length, so here I will only summarize. The assumption I mentioned above — that if there is a reason, no verse is needed (Why do I need a verse? It is logical!) — is incorrect. In many cases there is a verse, and a verse is indeed needed, yet the matter still has a reason. The verse teaches the law, and the reasoning explains why this is the law. But reasoning alone would not have been sufficient for us to apply that law without the verse. Consider, for example, the case of a rebellious daughter. Suppose I accept the reasoning that a daughter is not naturally drawn into these paths; is that enough for me to rule as Jewish law that there is no law of a rebellious daughter? Would we really infer that legal conclusion from reasoning alone? Think about it: if a particular son is plainly a good child, or was clearly well educated, would we then not apply the law of the stubborn and rebellious son to him? After all, in his case too the concern that he will be drawn after such conduct is low. Therefore a verse is required to tell us that indeed there is no law of a rebellious daughter. Once the verse has been stated, the reasoning can propose the rationale of the law, but on its own it would not have been enough to create it.

In that article I explained that the existence of a line of reasoning, by itself, is not enough to derive a legal conclusion. Sometimes this is because the reasoning is not unequivocal, or because we do not derive law from the reason of a verse, or because it conflicts with other legal principles. Thus, for example, the Talmud says that conspiring witnesses are a novelty (Rava's view in Sanhedrin 27, that a witness exposed as conspiring is disqualified only from that point onward), that is, a scriptural decree. The case is this: two witnesses came and testified that Reuven murdered, and then two other witnesses came and exposed them by testifying that the first pair had been with them elsewhere at the relevant time. At first glance this is simply two against two, and the second pair has no advantage over the first. But the Torah says that they do, and we believe the latter pair and execute the first pair once they have been exposed.

The medieval authorities seem to disagree as to whether there is an explanation behind this law. Some say it is a scriptural decree, while others offer explanations. I wrote in the article mentioned above that it is inconceivable that such a law should have no explanation. For if, in terms of the truth of the matter, this really is only a case of two against two, and there is merely a scriptural decree — a law without reason — to believe the second pair, then it follows that we execute two witnesses who told the truth (or at least where there is serious doubt that they lied) on the basis of a scriptural decree. The scriptural decree would then be telling us: they are innocent, but they must be killed. That is impossible. Clearly the Torah understands that the second pair really does have an advantage over the first, meaning that they are in fact more credible; that is why the first pair is executed. It is impossible that the Torah would command us simply to kill innocent people.

I explained that this is not comparable to the scriptural decree to execute Sabbath desecrators. At first glance, there too they are killed because the Torah decreed that one may not desecrate the Sabbath. But it is not similar. There, the desecrator himself knows that the Torah forbade it, and nonetheless desecrated, after being warned and accepting the warning. In such a situation he is put to death. I have no difficulty with the fact that the prohibition itself may have no reason, or that I do not understand its reason. So long as everyone knows and recognizes the rules of the game, one can also execute on that basis. But with conspiring witnesses, the first pair fulfilled its legal duty and came to testify, and its testimony was true. Conspiring witnesses do not require prior warning (see Ketubot 32a and elsewhere), so they were not even warned. And suddenly they find themselves sentenced to death because two other witnesses came and exposed them, without those two being any more credible than the first pair. That is an absurd situation, and it cannot be the law.

I brought there the example of the scriptural decree disqualifying relatives from testimony. From the Talmud in Bava Batra it emerges that this too is a scriptural decree, meaning that there is no lack of reliability in relatives' testimony (perhaps because of the presumption of their fitness and the presumption that a person does not sin when nothing is to his benefit), and yet the Torah decrees that their testimony not be accepted. This is also stated by Maimonides in Laws of Testimony 13:15 (and likewise in the Tur and the Shulchan Arukh, Choshen Mishpat sec. 33:10):

The fact that the Torah disqualified relatives from giving testimony is not because they are presumed to love one another—for after all, he does not testify for his benefit or to his detriment—but rather it is a decree of Scripture. Therefore, one who loves or hates is fit to testify, even though he is disqualified from serving as a judge, for the Torah decreed only with regard to relatives.

We have grown accustomed to this principle, for even if related witnesses come and testify that Reuven murdered Shimon, we will not execute Reuven. At most the murderer will go unpunished (though one may also punish him extra-legally, confine him in a cell, and so forth). But what would you say about a case in which two valid witnesses come and testify that Reuven murdered Shimon, and then two relatives come and expose them? According to the law, the testimony of the latter is inadmissible because they are relatives; consequently, the testimony concerning the murder stands and we execute the murderer. But notice what that means: we are executing here a person regarding whom there are two reliable witnesses (though not legally admissible, because they are relatives) who testify that the testimony against him was exposed as false — meaning that he did not murder and that the first witnesses merely plotted to have him killed. Should we nevertheless execute him? Can it be that a person whom we factually regard as innocent of murder will be put to death for murder because of a 'scriptural decree'? Obviously not. A normal court would withdraw from the case in such a situation (and if it did not, it ought to be removed from judging altogether; such judges are fools). In short, there is no situation in which the Torah instructs us to kill innocent people because of a scriptural decree, and so it is with conspiring witnesses as well.

Notice that if we were to interpret 'scriptural decree' in the case of conspiring witnesses as a law without reason, the result would be that we execute the exposed witnesses for lying even though, in our view, they did not in fact lie. That is not merely a matter of killing a person because of a scriptural decree; it is a scriptural decree to treat a person who told the truth as a liar. There is no room for a scriptural decree that tells us the earth is square, or that at ten in the morning it is night. One can decree that we behave as though it were night (for example, the night of Passover is treated as daytime for several legal purposes), but one cannot decree that it is night. Therefore, theoretically, one might perhaps decree that we execute the exposed witnesses, but not decree that they are liars if the reality is that they told the truth.

If so, in the case of conspiring witnesses there must be a clear logic for preferring the second pair over the first. The commentators offer several such reasons, and I will not go into them here. So why is a 'scriptural decree' needed? Because without it we would think that two witnesses constitute maximal evidence, and that a case of two against two must remain unresolved. Note that here the verse that establishes the 'scriptural decree' is not needed because the reasoning is weak, so that we would not have generated the law on that basis alone. Rather, even if the reasoning were strong and conclusive, we still would not have generated the law (which prefers the exposing pair) because it contradicts another legal principle: the absolute force of the evidence of two witnesses. Here the problem that requires a verse is not the weakness of the reasoning, but the fact that this reasoning conflicts with another Torah-legal principle. I discussed this at length in the article mentioned above.

All this yields a different conception of the term 'scriptural decree.' It is not a law without reason, but a law newly introduced by a verse; once it has been introduced, one can find logic in it, and it is entirely possible that this was the logic underlying it from the outset. Still, it remains true that a 'scriptural decree' is a law for which reason alone would not have sufficed for us to generate it. A verse is required here (the reasoning merely explains it), and in that sense it is indeed a 'scriptural decree.'

Two meanings of the expression 'statute': Scripture repeated it to make it indispensable (the verse repeated it to make it indispensable)

We began with the section of the red heifer, which the Torah calls the statute of the Torah, and the Sages infer from this that it is a 'scriptural decree' — that is, a law that cannot be grounded in reason alone, as I explained. But the expression 'statute' has another meaning in the Torah, in an entirely different legal context. Here I want to point to the connection between these two meanings.

When the Torah writes a law, or when a law is derived from it, the straightforward assumption is that it is indispensable — that is, if one does not do it, one has not fulfilled the obligation. But surprisingly there is a rule in the legal interpretation of verses in the area of sacrificial matters: we require that Scripture repeat it to make it indispensable (Zevachim 23b). That is, the assumption is that a law learned from the Torah in the area of sacred offerings is not indispensable, unless the Torah writes it twice (repeats it). But there is a reservation to this rule, and it is relevant to our discussion: if the Torah writes regarding that law statute (see Yoma 40a and parallels), then one mention is enough for the law to be indispensable.

Thus, the writing of the word statute serves as a substitute for repeating the law, and it teaches that the law is indispensable. This is another meaning of the word 'statute.' Above we saw that it teaches that the law in question is a 'scriptural decree,' and here we see that it teaches that the law is indispensable. What is the connection between these two meanings of 'statute'? Why is the same word used both to say that something is indispensable and to say that it cannot be understood from reason alone?

In order to present my suggestion for what is common to these two meanings, I will first summarize the explanation I proposed in my article on the rule we require that Scripture repeat it to make it indispensable (see also column 556).

An explanation of the rule we require that Scripture repeat it to make it indispensable

My claim there was that the sphere of divine service is exceptional as compared to the rest of Jewish law. Jewish law was constituted at the revelation at Mount Sinai. That is what gave it force, and that is also what defined what it includes. Without the command at Mount Sinai, the law did not exist and had no force. But in the area of divine service we are dealing with standing before the Holy One, blessed be He, and serving Him. That existed even before the revelation at Mount Sinai, and it has meaning even without command. The Patriarchs offered sacrifices long before the revelation at Sinai, because this follows from their very standing before God.

My claim is that this is the reason there is a difference between the sphere of sacred offerings and the rest of Jewish law. If I offer a sacrifice not according to the law given at Sinai, Abraham did so that way as well (because he did not know what had been commanded at Sinai), and in his case it was perfectly acceptable. If so, it is clear that if I do so as well, what I do has value. It may not be the perfect way to offer a sacrifice, but one cannot say that the sacrifice is valueless. The revelation at Sinai did not come to strip value from things that have natural value — that is, things whose value was known before the revelation. It came to add values and perfect what was done previously, that is, to instruct us how to do it in a more complete way. Hence, if there is a command to offer in a certain manner and I offered in another manner, then apparently I did not do it perfectly, but I am no worse than our father Abraham. If it had value in his case, it has value in mine as well.

There is an assumption here that people have a natural intuition regarding how one stands before the Holy One, blessed be He, and what that entails (sacrifices). Therefore they acted that way even without a command.[3] This is the meaning of the rule we require that Scripture repeat it to make it indispensable, according to which details in the laws of sacrifices are binding but not indispensable. This is unlike details in the laws of Sabbath observance or the redemption of a firstborn donkey, where if you did not do it as the Torah commanded, the act has no legal value.

Applying this to the laws of prayer

The Mishnah at the beginning of chapter 4 of Berakhot (26a) presents a dispute:

The morning prayer may be recited until noon; Rabbi Yehuda says: until four hours. The afternoon prayer may be recited until evening; Rabbi Yehuda says: until plag ha-minḥa. The evening prayer has no fixed limit; and the additional prayer may be recited all day (Rabbi Yehuda says: until seven hours).

And the Talmud there objects:

Does everyone really hold that only until midnight and no more? But did not Rav Mari, son of Rav Huna, son of Rabbi Yirmeya bar Abba, say in the name of Rabbi Yoḥanan: If one erred and did not recite the evening prayer, he recites the morning prayer twice; if he missed the morning prayer, he recites the afternoon prayer twice! — One may pray throughout the entire day.

Until midnight—they give him the reward for prayer in its proper time; from then on—they give him the reward for prayer, but they do not give him the reward for prayer in its proper time.

That is, until midday he is given the reward of prayer at its proper time, and from then on he is given the reward of prayer, but not the reward of prayer at its proper time. The conclusion is that one can pray even after the set time, but such a prayer is not perfect, and therefore the reward given for it is also incomplete. In other words, the time requirement does not wholly invalidate the prayer. If I prayed outside the proper time, I still have a prayer (what I did was not lost), but I did not fulfill the commandment of prayer at its proper time. How are we to understand this distinction? From where does the Talmud draw the assumption that the command concerning prayer is not indispensable? How is it different from any other command?

At first glance, it would seem natural to connect the explanation of this distinction to the dispute between Maimonides and Nachmanides regarding prayer. Maimonides counts a Torah-level commandment to pray (Book of Commandments, positive commandment 5):

The fifth commandment is that we were commanded to serve Him, exalted be He. This command has already been repeated several times. He said (Exodus 23:25), “And you shall serve the Lord your God”; and He said (Deuteronomy 13:5), “And Him shall you serve”; and He said (Deuteronomy 6:13), “And Him shall you serve”; and He said (Deuteronomy 11:13), “and to serve Him.” Even though this command is also one of the general commandments, as we explained in the fourth principle, it nevertheless has a specific application, namely that He commanded prayer. The language of the Sifrei is: “‘and to serve Him’—this is prayer.” They also said: “‘and to serve Him’—this is Torah study.” And in the Mishnah of Rabbi Eliezer, the son of Rabbi Yosei the Galilean (parashah 12, p. 228), they said: “From where do we know that the essence of prayer is among the commandments? From here: ‘The Lord your God shall you fear, and Him shall you serve.’” And they said (Midrash Tannaim from Midrash HaGadol, parashat Re’eh): “Serve Him through His Torah; serve Him in His Temple”—that is, to go there to pray in it and facing it, as Solomon, peace be upon him, explained (I Kings 8; II Chronicles 6).

To be sure, all the detailed laws (such as times, wording, number of prayers, and the like) are rabbinic additions even according to Maimonides. By contrast, Nachmanides, in his glosses there, sees prayer with all its details as a rabbinic commandment with no Torah-level root (apart from prayer in a time of distress).

If we now return to the Talmud, then according to Maimonides it is interpreted quite simply. One who prays after the time set by the Sages has fulfilled the Torah-level commandment of prayer. He has not, however, fulfilled the rabbinic laws that establish times for prayer. Therefore he receives reward for the Torah-level commandment of prayer, but not full reward for prayer at its proper time, as required by rabbinic law. I should note that even according to Maimonides there is some strain here, at least in the wording, because the Talmud should have distinguished between Torah-level and rabbinic law, not between prayer at its proper time and prayer outside its proper time.

What would Nachmanides say about this? How does he explain the distinction in the Talmud? If indeed the entire concept of prayer is rabbinic — both the obligation to pray and the detailed laws — then what basis is there for viewing one who prays outside the proper time as having fulfilled anything at all? Why think that the times established by the Sages are not indispensable? One could, with some strain, interpret that according to Nachmanides there are within the rabbinic realm itself two levels of enactment: first, a duty to pray without any binding details (like the Torah-level definition according to Maimonides), and in addition a duty to do so according to the detailed rules fixed by the Sages. But this is forced. Why would the Sages enact prayer in such a way? From where did the Talmud derive the conclusion that this is indeed the nature of the enactment of prayer? Why do we not interpret all rabbinic enactments this way? Therefore this interpretation does not seem plausible.

It seems that Nachmanides too recognizes the existence of prayer at the Torah level (= prayer as an act in its own right), and that his dispute with Maimonides concerns only the question whether we are Torah-commanded to pray or not. Nachmanides would also agree that someone who prayed before the revelation at Mount Sinai performed an act of prayer as part of his service of God.[4] In Chiddushei Rabbi Chaim (Laws of Prayer 4:1), a distinction is drawn, in Maimonides' view, between fulfilling the commandment of prayer and the very act-category of prayer; and in the course of that discussion he adds:

And even according to those who disagree with Maimonides, that is only regarding its obligation. But its fulfillment and essential nature are, according to all views, by Torah law..

What did the Sages add to the Torah-level state of affairs? It is not plausible that once the Torah was given, and certainly once the Sages instituted prayer, the original natural prayer was uprooted. One who prays, in whatever form, is still engaged in an act of prayer. When the Sages added the detailed laws of prayer, they surely did not intend to uproot our natural and ordinary prayer, but to establish a new obligation, so that even someone who does not wish to pray (and according to Nachmanides has no Torah obligation) would nevertheless be required to do so. If so, one who prayed not in accordance with the detailed enactments of the Sages is certainly in no worse a position than one who prays a Torah-level prayer (like our father Abraham). He certainly committed no transgression, and it is reasonable that his act has value as service of God. He simply did not fulfill the specific rabbinic law.

The basis of this distinction is that prayer is a form of service, that is, part of standing before the Holy One, blessed be He, just like sacrifices. Therefore the distinction expressed by the rule we require that Scripture repeat it to make it indispensable applies here as well: details in the laws of prayer are not indispensable, meaning that failure to fulfill them does not empty the prayer of content.

So when we ask about the status of one who recited the morning prayer after its proper time, the answer is clear: his prayer is an act of value, and certainly it constitutes service of God. The enactment of the Sages did not uproot that. True, he did not fulfill the rabbinic commandment of prayer (in this case, Shacharit), since he did not do what they commanded; but clearly he did pray. Therefore the Talmud says that he receives the reward of prayer, though not the reward of prayer at its proper time. This is true according to both Maimonides and Nachmanides, and it nicely illustrates the explanation of the rule we require that Scripture repeat it to make it indispensable.

The connection between the two meanings of the term 'statute'

Now let us return to the question I left open. We saw that the expression 'statute' in the Torah is interpreted in two different ways: that the law in question is indispensable, and that it is not based on reasoning. I asked what connection, if any, exists between these two meanings. I can now perhaps suggest an explanation.

When the Torah writes statute, it is saying that this legal detail in the areas of divine service is indispensable. That means that something new has been introduced here, something that does not accord with the natural mode of thinking (the one that prevailed in Abraham's time — the spiritual intuition of standing before the Holy One, blessed be He). Therefore, if I do not fulfill the law regarding a detail about which it is written that it is a statute, my service loses its value. In this particular case, it turns out that our father Abraham acted not merely imperfectly, but incorrectly (of course, this is only from our perspective; he himself was not obligated and could not have known). This means that this legal detail is not accessible to us through simple reasoning — the same reasoning Abraham had even without the command. Here a command is needed in order to correct our natural understanding. The term statute comes to say that this command does not merely add something to our reasoning but replaces it. That gives us the connection to the meaning of the term 'statute' as a scriptural decree. The legal detail regarding which the Torah writes statute is a scriptural decree, because it does not accord with the reasoning we had before the command. As I explained above, this does not necessarily mean that it cannot be understood after we have been commanded, but without the command we would not have known it, or at least we would not have applied it (as we saw above).

Thus, the meaning of statute as something indispensable is indeed connected to its meaning as something not based on reason. Q.E.D.

A side note: what does all this have to do with positivism?

It seems to me that in legal philosophy one can see a similar phenomenon, and here I will only note it briefly. There there is a dispute between the positivist conception and non-positivist conceptions. A positivist conception is characterized by the view that law is the product of formal legislation, not something derived from reason, or what is called there 'natural law.' Natural law exists even without legislation, and therefore it is hard to see it as itself a legal system. A law is law not only because it is rational or moral, but primarily because it was duly enacted. Some would say that only the enactment matters, and that reason or morality are not criteria for the validity of a law (although in extreme cases there may be room to limit this, as for example with Nazi law).

The meaning of positivism too mixes together several characteristics. One of them is the logical structure of the legal system: the legislator determines the law, and the judge deduces from it, in a deductive way, the conclusions and applications to particular cases that come before him. Beyond that, there is the characteristic that law is detached from natural reasoning, and proceeds formally from the legislative process. You can see the connection to the discussion I have conducted here. We saw that there is a connection between these two characteristics: detachment from natural reasoning (natural values) and the rigid, binding structure — its status as law. Defining some norm as law requires detachment from natural reasoning and natural values. Only because there is something here beyond the natural understanding that prevailed even before the enactment does it become valid law.

This is not necessarily a matter of contradiction to natural reasoning, but of adding something more. Something like what we saw above: statute as a scriptural decree does not necessarily mean that it has no explanation in terms of our natural reasoning, but there must be something additional there.

[1] According to Maimonides in the introduction to the Book of Commandments it appears that one may not punish on the basis of any inferential rule at all, and not only an a fortiori argument. Nachmanides, in his glosses to the second root principle, already disputes Maimonides on this point, since it is clear in the Talmud — and this is the view of all the medieval authorities — that this applies only to an a fortiori argument.

[2] One could add still more explanations here. For example, according to Maimonides in the previous note, it is clear that punishments are not imposed because we have no explicit prohibition in Scripture, and one does not punish unless Scripture first warns or forbids. Lekach Tov there also brings additional explanations. And in my article on punishment in Jewish law (see also the essay here) I suggested another explanation: that punishments are not arranged according to the severity of the offense (a more severe transgression may be punished with a lighter punishment). See also column 377.

[3] It seems that we have lost this spiritual-religious intuition over the years. That explains the alienation we feel toward sacrifices. See on this column 412 (a question along these lines also just reached me on the site, and at the moment I cannot find it).

[4] On the distinction between fulfillment and obligation in the commandments, see my article in Midah Tovah for Parashat Vayeshev, 5767.