Between the Halachic Validity of a Commandment and the Strength of the Obligation to Observe It (Column 679)

In this column I wish to set out an interesting distinction that occurred to me in a recent class I gave, between the legal status (tokef) of a norm and the level or strength of the obligation to fulfill it. We usually assume that the stronger the legal status of a norm, the greater the obligation to keep it: a biblical (de-oraita) norm obligates more than a rabbinic (de-rabbanan) one; a prohibition carrying stoning is “more obligating” than one carrying lashes. I have been mulling that this is not necessary. On the contrary, I am inclined to think there is no connection between a norm’s legal status and the strength of the obligation to fulfill it. In my view, the obligation to keep all norms is identical regardless of their halachic status. I present these musings here for your consideration.

Text and Reason

The Talmud says in several places: “Why do I need a verse? It is logical (svara)!”—that is, it assumes that if there is a compelling reason, a verse is unnecessary.[1] So with respect to the legal rule “the burden of proof rests upon the claimant” (see Bava Kamma 46b), and similarly with the principle “the mouth that prohibited is the mouth that permitted” (see Ketubot 22a), among others. From here some commentators understood that there is an equivalence between a verse and a reasoned argument; otherwise there would be no place for the question “Why do I need a verse?”

But this principle seems quite puzzling. We know that for any norm to have the status of de-oraita it requires a command in the Torah. Norms that lack a source in the Torah are not de-oraita. In his Ninth Principle, Maimonides (Rambam) even argues that if several distinct laws emerge from a single verse, they are not counted as separate commandments, because we do not have a separate command for each. In his Second Principle he also claims that if a given law is derived by midrashic exegesis, it does not have the status of a de-oraita law, since we have no explicit Torah source for it (he holds that a derasha does not uncover something already present in the verse but extends the verse beyond its plain meaning. See this at length in the book Yishlach Shoreshav, in the article on the Second Principle). If so, how can a law without a verse be regarded as de-oraita?

In my article on sevarot (reasoned arguments) I discussed this point at length. I explained there that one must distinguish between a svara that comes to interpret a law that appears in the Torah, and a svara that innovates an altogether new law with no source in the Torah (like the argument in Berakhot 35a regarding blessings over enjoyment prior to eating; see Penei Yehoshua and Tzelach there). The two examples I brought above (“the mouth that prohibited…” and “the burden of proof…”) both interpret a law that appears in the Torah, for both address how to fulfill the command “Judge your fellow with righteousness.” Part of “righteousness” is the law of evidence and procedural rules; therefore the svara that establishes these procedures can receive de-oraita status. Such a svara merely reveals that the verse “Judge your fellow with righteousness” entails these two principles, and consequently they have de-oraita status by virtue of the verse. Once the svara interprets the verse, that verse itself becomes the Torah source for these rules. But a law that a svara innovates ex nihilo (such as blessings over enjoyment) cannot have the status of a de-oraita law. In short: an interpretive svara yields de-oraita law, but a substantive/innovative svara does not.

The Rambam–Ramban Dispute about “Lo Tasur”

In Column 652 I addressed the dispute among the early authorities regarding the status of rabbinic laws. Rambam states in several places that the Sages’ authority to legislate rabbinic norms is rooted in the verse “Lo tasur” (“Do not deviate”). Ramban counters that this cannot be, for on Rambam’s understanding all rabbinic norms thereby become de-oraita (since anyone who violates them transgresses a Torah prohibition), and thus their doubt would have to be treated stringently, together with all other de-oraita distinctions.

Among other things, the question arises: what could be Ramban’s source for the Sages’ authority? R. Elchanan Wasserman, in his “Kuntres Divrei Sofrim,” argues that a priori no such source is possible. Obviously the Sages’ own enactment cannot itself grant binding authority to rabbinic enactments—that would be circular. But if Ramban has a verse as his source (even a different verse from “Lo tasur”), the difficulty he raises against Rambam would apply to him as well (on his view too, safek de-rabbanan should be stringent, since if it has a scriptural source it would be de-oraita). And if his source is a svara, we still face the problem that rabbinic norms should have de-oraita standing, since—as we saw—svara is equivalent to a verse.

In that column I proposed an explanation of Rambam’s position: the Sages’ authority to enact and decree rabbinic law indeed derives from “Lo tasur,” yet these do not thereby acquire de-oraita standing. They are a branch (histafefut) from “Lo tasur,” not a specification of it. I added there that this seems to be the explanation even according to Ramban, for as the Kovetz Shiurim shows, he cannot have a different source. But now we seem to have another way according to Ramban: indeed the source is a svara, yet still rabbinic laws do not have de-oraita standing. The reason is that this svara is not interpretive but innovative, establishing a new law. As we saw, the products of such sevarot do not have the standing of de-oraita law.

So where does the force of such laws stand? If they are not de-oraita, then seemingly they must be de-rabbanan. Here I would like to suggest another option: rabbinic laws are norms whose obligation to fulfill is full—like de-oraita (this is the equivalence between svara and verse)—but their standing is not that of de-oraita laws. It may be that this is also what Rambam meant: he learns them from “Lo tasur,” yet still sees them as “lighter” laws. The obligation to fulfill them is exactly like the obligation to fulfill biblical laws, but their severity—their halachic standing—is lighter.

Let me explain a bit more. We are used to thinking that a norm’s halachic standing determines the strength of the obligation to fulfill it. Hence, a biblical law carries a greater obligation than a rabbinic one. But I want to propose a distinction: the obligation to keep all the laws is the same, since all are God’s will. And yet different laws have different halachic standing or severity. Even within de-oraita there are prohibitions that entail stoning, lashes, or “plain” negative commandments—all of them biblical. My claim is that all of these entail the same level of obligation to keep them, since all are God’s will and command, but their severity differs.[2] So too regarding rabbinic laws: the obligation to keep them is exactly like the obligation to keep biblical laws, but their halachic standing differs. We rule leniently in cases of doubt because of their standing, not because the obligation to keep them is weaker.

The conclusion is that rabbinic laws, and all norms grounded in svara, carry the same strength of obligation to fulfill as biblical laws. But their halachic standing is different from that of de-oraita norms.

The Standing of Moral Obligations

A similar discussion may be had regarding moral obligations. Clearly it is God’s will that we keep them, but there is no formal command about them. Not for nothing, “And you shall do what is right and good” is not included by the early authorities in the enumerations of the commandments, for they did not see it as a commandment. This reflects a point I have made more than once (see for example Column 541, and many others) that morality is a category distinct from halacha.

Here too one might say that the obligation to be moral is no different from the obligation to keep halacha; only its halachic standing is different because we have no explicit command for it.[3] Again, this distinguishes between halachic status and the strength of the obligation to fulfill. A moral obligation is, in essence, grounded in svara, and so this conclusion follows from our previous one.

Jurisprudence and R. Shimon Shkop

In Column 428 (and elsewhere) I described the innovation of R. Shimon Shkop: there are halachic norms that precede the Torah; the Torah assumes we are bound by them even without a command. His main example concerns “the burden of proof rests upon the claimant.” His claim is that a person’s right to his property is a juridic norm that precedes the Torah and does not derive its force from a Torah command. On the contrary, the prohibition “Do not steal” in the Torah is based on a de facto recognition of property law that belongs to jurisprudence. Thus he writes in Sha’ar Heh, ch. 2:

It seems to me that the institution of personal liability with respect to all monetary obligations is a juridic rule: a person is bound and obligated to provide from his assets to his fellow such-and-such. This obligation is a juridic obligation even without the Torah’s command, just as the types of acquisitions and the laws of ownership in property are juridic matters even without the warning of “Do not steal.” As we explained above, it is in no way conceivable to say that the reason we ascribe an object to Reuven is because Shimon is warned by the Torah not to steal it from him; rather, the matter is the reverse: the prohibition of theft comes after the determination of the matter by the laws that set the boundaries of ownership. Similarly, it appears that the commandment to repay a debt comes only after the determination of the obligation according to juridic law: once a monetary obligation has fallen upon Reuven by virtue of the laws of justice, the Torah added a warning and a command to guard and repay his obligation which he owes according to the juridic law.

His claim is that only after we have determined what belongs to whom (and jurisprudence does that) can we apply the prohibition of theft (whose source is the Torah’s “Do not steal”) to one who violates another’s property.

Among other things, I explained there that even according to views that theft from a non-Jew is not prohibited by the Torah’s “Do not steal,” all agree that it is forbidden by Torah-level jurisprudence. Jurisprudence determines that this property belongs to someone, and consequently there is a juridic prohibition to steal from him. Many are astonished by R. Shkop’s innovation; in that column I cited what R. Shmuel Fischer said (he called it heretical). But R. Shkop himself addresses this difficulty, and writes immediately after the above passage:

Although at first glance it is puzzling: what necessity and obligation is there upon a person to do something without the Torah’s command and warning? But upon deeper reflection this can be understood. For the obligation and necessity of serving God and fulfilling His will is itself an obligation and necessity according to the judgment of reason and recognition. So too the obligation and lien of money is a juridic obligation determined by the ways of acquisition—or one whom the Torah obligates in damages, redemption of the firstborn, and the like. For this matter we require that there be a buyer and one who acquires this right.

His claim is that our entire obligation to serve God is grounded in svara, and consequently any other law that follows from svara obligates us in exactly the same way. It is not the Torah that grounds our obligation to laws derived from reason, but rather reason that grounds our obligation to what is written in the Torah.

We may now ask: what is the status of this prohibition? Is it a Torah prohibition? As noted, there is no explicit Torah command (for “Do not steal” is a command about the halachic prohibition of theft, which—regarding a non-Jew, for example—according to some early authorities does not apply), but it follows from svara. Simply put, it would follow that this is de-oraita; and then the objections to R. Shkop would seem quite strange. How is this svara any different from other sevarot found in halacha and in the Talmud?

But according to our approach, here we are dealing with a svara that innovates a new law rather than interpreting an existing one. Therefore we may say that although the standing of such norms is lower, the obligation to keep them is like regular de-oraita laws. Thus, if a person steals his fellow’s property, he violates two prohibitions: a juridic prohibition (whose standing is lower than a Torah prohibition) and a halachic prohibition. Regarding a non-Jew, there are opinions that he violates only the juridic prohibition (and the halachic one is rabbinic). Note that R. Shkop’s argument concerns our obligation to obey such norms, not necessarily their standing. His claim is that what emerges from reason obligates us fully. But, as we have seen, that does not necessarily mean its halachic standing is like a de-oraita norm.

Not for nothing does R. Shkop not cite the Talmudic rule “Why do I need a verse? It is logical!” as his justification. That rule addresses the halachic standing of a law produced by svara (for it implies that if there is svara, the verse is superfluous—not only is there full obligation to keep the law, but its halachic standing is identical to a law learned from a verse)—and, as noted, that applies only when the svara is interpretive. But when the svara innovates a new law, the rule “Why do I need a verse—svara!” does not apply, even though the obligation to keep it certainly exists by virtue of the very same svara that obligates us to keep the Torah’s commands.

Two Components in Every Commandment: Command and Substance

Thus far we have seen that the force of the obligation to obey all norms is identical, while their severity and halachic standing may differ. We can connect this to another distinction I have often made: between the command and the substance (content) of every mitzvah and transgression.

In Column 342, 631, and elsewhere, I noted that every mitzvah and transgression has two distinct dimensions: the command and the content. R. Elchanan Wasserman, in his collected essays, in the article “Teshuvah,” cites Ramchal in Derekh Hashem (I:4:7):

The purpose of the performance of the commandments for a person is clear: to fulfill the command of his Creator and to do His will. And he fulfills His will in two ways that follow one from the other: first, in that He commanded him to perform that act and he performs it; and second, because through that act a person is perfected in one of the levels of perfection that is the product of the commandment—and thus God’s will is fulfilled, for He desires that a person be perfected and come to benefit from His goodness.

That is, in every mitzvah or transgression there are two aspects: fulfilling God’s will/command, and the inherent aim of the act itself. When one eats pork, one both violates the command that forbade it and damages something in himself or in the world (the content of the mitzvah). And when one honors parents, one both obeys the command and effects some repair within himself or in the world. We may call these two components the “command” and the “substance” of every mitzvah or transgression.

From here we can also understand the words of the Tosafot Rosh (see also Ritva there) on Kiddushin 31a, explaining the dictum “Greater is one who is commanded and does than one who is not commanded and does.” He writes:

“Greater is one who is commanded and does.” Although we say in Chagigah ch. 2, by way of parable, that when a king tells his servants to rise early to his gate, to whom should thanks be owed more—perhaps to women, who do not usually rise early like men—there it is not comparable, for in that case both are commanded, and thus the one for whom it is not the norm is more praiseworthy when he does. Here, however, the reason that one who is commanded and does is greater is that he is constantly anxious and distressed lest he transgress, and he must overcome his inclination more than one who is not commanded—for if he wishes, he can refrain. Moreover, the Holy One, blessed be He, needs nothing from the commandments; rather, He speaks and His will is done. Therefore, one who is commanded and does is fulfilling the will of his Creator, whereas one who is not commanded and does cannot be said to be doing his Creator’s will, for he was not commanded at all, though he still receives reward.”

In his second explanation he writes that the one who is commanded and does achieves both: he responds to the command and he attains the content-aim of the mitzvah. In contrast, one who is not commanded does not fulfill the command (since none was addressed to him), though he does attain the mitzvah’s substantive aim (hence he nevertheless receives reward).

We see this as well in Rambam’s Ninth Principle (see on this Column 582). In the first part of that principle Rambam states that if the Torah repeats a commandment or prohibition, it is counted only once in the enumeration (e.g., the Torah commands the observance of Shabbat twelve times; in the count we list only one positive commandment). In the second part he discusses a “general prohibition” and rules that if several different laws are learned from one verse, they are not counted separately; only one commandment is enumerated.

R. Yerucham Fishel Perla, at the beginning of his commentary to R. Saadiah Gaon’s Sefer ha-Mitzvot, devotes essays to each principle. In his essay on the Ninth Principle he claims that Rambam contradicts himself. From the first part it emerges that content determines the count; hence when several verses command the same content, we count only one mitzvah. But in the second part, Rambam says the opposite: if there is one command with several contents, we still count only one mitzvah. From here it emerges that the command—not the content—determines the count. RY”P leaves this as difficult, but the explanation seems simple: for a commandment to be counted and to be considered de-oraita, it must have both a unique content and a command. Both components are required. In the first part, Rambam says that if the content is not unique—even if there are multiple commands—we do not count more than one. In the second part he says that if the command is lacking—even if there are distinct contents—we still do not count more than one.

This means that every mitzvah requires a verse that commands it and a unique content of its own. Why? Because these are the two components that every mitzvah or transgression must have: the command makes it a halachic obligation (the act of fulfilling the command), and the content expresses its substantive aim (what is being required of us).

Implications for the Distinction Between a Mitzvah’s Status and the Strength of the Obligation to Fulfill It

We can now add depth to the distinction proposed above. In all commandments there is a command that obligates us to perform them. In that sense, they are all equal in standing, and thus the obligation to fulfill them is equal. But as for the content, some mitzvot/transgressions are more severe (for their ramifications are more consequential, for good or ill), and therefore they are more severe in terms of halachic standing. It is possible that their penalty is also harsher.

We surveyed several extra-halachic categories and wondered about their severity and the obligation to fulfill them: categories such as moral norms, going beyond the letter of the law, or norms of jurisprudence. None of these come with a command; what does that imply? Simply, one might think there is no obligation to fulfill them despite their benefit, since we were not commanded. Yet their content may be as weighty as halachic mitzvot/transgressions—perhaps even more so (depending on consequences). But one may wonder: why, indeed, were we not commanded regarding them? Perhaps because their severity is lower; but the obligation to fulfill them may still be like halachic norms. One could formulate this differently: there are indeed “commands” to fulfill them, but they are not halachic commands—they are directives of morality and the like (embedded in conscience, intellect, and svara). These do not necessarily appear in the Torah (and even if they do—such as “what is right and good”—they are not part of halacha), but it is clear that this is God’s will, and perhaps even His command. Therefore, there may be a full obligation to fulfill them, while their severity (halachic standing) may differ (according to their consequences).

It may also be that there are differences among these categories: some may have lower severity with the same level of obligation to fulfill; others may have a lower level of obligation though their severity is comparable. For example, regarding morality I have shown in several places (I mentioned Column 541 above) that it constitutes an extra-halachic category and therefore does not come with formal commands in the Torah. But that does not mean that our level of commitment to it is lower. Perhaps there is a “command” that we grasp by svara, even if there is no formal command in the Torah.

A Note on the Meaning of Punishments

I noted in footnote 2 the discussion of the relationship between the severity of punishment and the severity of the transgression (see e.g. here and here). There I showed that according to Rambam and his school, it seems that the severity of punishment is proportional to the severity of the transgression, whereas according to Sefer Chasidim it is not.

Apparently this depends on whether punishment is given for violating the command or for the gravity of the consequences. This itself depends on our theory of punishment: is punishment a sanction on the person, or a repair (tikkun) of the damage his transgression wrought (see my remarks there)? If we assign harsher punishment to a more severe transgression—as the mainstream early authorities do—then it is reasonable that punishment is a repair for consequences, not a sanction for rebellion against the command (since rebellion is identical across transgressions). But if so, why is there no punishment for acts for which there is no command at all (e.g., moral violations or failures to go beyond the letter of the law)?

It seems that the severity of punishment is set by the severity of the transgression, i.e., by its consequences (the magnitude of the damage), but a condition for punishment is that there be a command. Once this condition is met, punishment is due, but its severity is according to the gravity of the act. Severity is a function of the repair that punishment provides; but the very liability to punishment concerns the person’s culpability, which is determined by rebellion against a command.

A Few Notes on Rules of Precedence (Dekhiyyah) in Halacha

When there is a general rule establishing precedence among norms, one may ask whether the precedence is a function of status/severity, or whether it depends on the command-component. For example, the rule “One engaged in a command is exempt from another command” seems to ignore, puzzlingly, differences in relative severity among commandments. I would have expected a person to engage in the more severe commandment; yet in practice, even one engaged in a minor mitzvah does not stop in order to fulfill a more severe one. Perhaps the reason is that if a person is performing God’s command, the level of obligation to fulfill the “more severe” one is not higher than his level of obligation to fulfill the “lighter” one; hence he does not interrupt the latter for the former.

In the displacement of prohibitions out of respect for human dignity (kavod ha-briyot) we likewise do not find fine gradations of severity. We do distinguish between de-oraita and de-rabbanan, and between active violation and passive non-performance. Perhaps here too the explanation lies in the fact that human dignity does not displace rebellion against God’s command as a categorical matter; and this is not dependent on the severity of the particular prohibition. The same applies to “a positive command displaces a negative one.” There too there is a complex discussion whether this is because one is “more severe” than the other. If that is the reason, we would expect rules of precedence among positive commands or among negative commands according to their severity.

This may be the root of the rabbinic statements about “light” commandments that people trample under their heels (see a collection of sources here). For example, in Midrash Tanchuma, Ekev §1, we find:

“‘And it shall come to pass, because (ekev) you listen…’ (Deut. 7:12). This is what Scripture says: ‘Why should I fear in days of evil? The iniquity of my heels surrounds me’ (Ps. 49:6). Blessed be He who gave the Torah to Israel, which contains 613 commandments—some light and some severe. Because there are light commandments that people do not pay attention to, but instead throw them under their heels, saying they are light—therefore David feared the day of judgment and said: Master of the Universe, I do not fear the severe commandments of the Torah—for they are severe. Of what do I fear? Of the light commandments: perhaps I transgressed one of them—whether I did it or failed to do it—because it was ‘light.’ And You said: ‘Be as careful with a light commandment as with a severe one.’ Therefore he said: ‘Why should I fear in days of evil? The iniquity of my heels surrounds me.’”

The “light” commandments that people trample are indeed lighter (their consequences are less weighty), but the obligation to fulfill them is identical to that of the “severe” commandments. Moreover, it is precisely in them that a person’s commitment to obey God’s command is most manifest, for with severe commandments there is strong motivation to comply because of the weighty consequences. Thus, one’s fidelity to God and His commands is displayed most sharply precisely in the “light” ones.

[1] Svara is an Aramaic word; when it entered Hebrew it became sevara (and therefore feminine). See here.

[2] In several essays I noted that the severity of punishment does not necessarily reflect the severity of the transgression (see e.g. here and here). Above I used punishments only to illustrate the claim that even within biblical law there can be different levels of severity. See more below.

[3] In several places I have noted that in certain cases a moral norm can override a halachic norm. Still, where there is an inherent clash, halacha usually prevails.