The relationship between halakhah and reason: what is ‘gezerat ha-katuv’? (Column 724)

Parashat Chukat opens with the section of the Red Heifer (Parah Adumah), which is called a chok—the paradigmatic example of a “gezerat ha-katuv.” In a class I gave, I discussed the relationship between halakhah and logic/reason by examining the concept of “gezerat ha-katuv.” I treated the topic at length in my articles on the subject and, more recently, here in columns 713–719. Here I wish to address the matter from angles that received less attention there, though I have discussed them elsewhere as well.

“And you have no permission to question them”

The Torah opens the section of the Red Heifer as follows:

“And the LORD spoke to Moses and to Aaron, saying: This is the statute (chukat) of the Torah that the LORD commanded, saying: Speak to the children of Israel, and they shall take to you a red heifer, perfect, in which there is no blemish, upon which no yoke has come.”

On this Rashi writes:

“This is the statute of the Torah—since Satan and the nations of the world taunt Israel, saying: What is this command and what reason is there in it? Therefore it is written ‘statute’: it is a decree from before Me, and you have no permission to question it.”

Satan and the nations harass Israel for observing a commandment that has no apparent rationale. God’s answer is that it is a decree (gezerat ha-katuv), and we have no permission to question it. This is, of course, not an answer to the gentiles’ claim, but rather an instruction to us not to be swayed by it.

It is commonly thought that the commandment of the Red Heifer and the like (several such examples are cited by the Shivtei Chachamim here) are halachta belo ta‘ama—laws without a reason. That is, either they have no reason, or they have a reason that is inaccessible to us. We have no way to understand it. According to this reading of Rashi, the duty to keep the commandments is not conditioned on their rationality; therefore, even if they lack reason, we must observe them as God’s decree. In that series of columns I also cited that in the Encyclopaedia Talmudit, s.v. “Gezerat ha-Katuv,” the opening definition is: “A statute (chok) of the Torah, as opposed to sevara (reason).” This is indeed the common understanding of the term “gezerat ha-katuv”: some laws derive from reason or from a perception of reality, and some derive from a decree of the Torah—contrary to, or at least disconnected from, reason and reality.

But that is not the plain meaning of Rashi. He does not write that we have no permission to “ponder them” (leharher bahem) but rather “to question them” (leharher achareihen), which is different. “To ponder them” means to think about them and their rationale; “to question them” means to challenge them and to think they are incorrect or non-binding. In other words, Rashi is not stating that it is forbidden to try to understand the reason for the Red Heifer. He is saying that even if we fail to find a satisfactory reason, that is not a license to question the commandment or abandon our commitment to it.

In this column I will argue not only that it is wrong to treat gezerot ha-katuv as laws without reasons, but also that it is wrong to think that their reasons are necessarily inaccessible to us. This, of course, raises the question: what, then, distinguishes a gezerat ha-katuv from any other Torah law? I will address that as well.

Maimonides on the reasons for the commandments

I have written more than once that I am not among the devotees of Maimonides’ approach to the reasons for the commandments. The reasons he proposes in Part III of the Guide of the Perplexed are far from compelling. Perhaps this is related to what he writes at the beginning of his ninth “root”:

“Know that all the commands and prohibitions of the Torah pertain to four things: beliefs, actions, character traits, and speech.”

From his continuation there it appears that he is not merely classifying the modes in which commandments are performed, but identifying four categories of ends toward which the commandments aim. In my view, the commandments are not designed to achieve only these aims (or at least not only these; see, for example, column 541 on halakhah and morality).

However, I fully agree with his fundamental assertion in Guide III:31:

“There are people for whom assigning a reason to a commandment is burdensome; to them, the preferred view is that no matter of a command or prohibition should be understood at all. What brings them to this is an illness in their soul they cannot articulate: they think that if these laws are beneficial to reality and that is why we were commanded in them, then it is as if they came from human planning and rational consideration. But when a matter has no intelligible rationale and yields no benefit, then, without doubt, it is from God—for a human mind would not bring about such a thing. As if, for these feeble intellects, man would be more ‘perfect’ than his Maker: man says and does what leads to some end, while God—far be it!—commands us to do what does not benefit us and warns us against what does not harm us. Heaven forbid! The reverse is true: the entire intent is to benefit us, as Scripture says, ‘for our good all the days, to give us life as at this day.’”

It is clear to him that every commandment must have a reason, for God does not act or command arbitrarily. If He does or commands something, it certainly has a purpose.

Yet he continues there:

“‘Which, when they hear all these statutes, they will say: surely this great nation is a wise and understanding people’—he has already explained that even all the statutes point, to all nations, to wisdom and understanding. If there were a matter for which no reason could be known and which brought no benefit and warded off no harm, why would those who believe and practice it be called wise and understanding and exalted, and why would the nations marvel? Rather, the matter is as we said without doubt: each of the 613 commandments is either to impart a true belief, or to remove a false belief, or to institute upright order, or to remove injustice, or to train us in good traits, or to warn us against bad traits. All is dependent on three things: beliefs, character traits, and political conduct. And there is no need to list speech separately, for the statements that the Torah urges us to say or forbids us from saying are either part of political conduct, or teach true belief, or teach traits; therefore, these three suffice as the reason for every commandment.”

Here he reiterates what he said in the ninth root, and assumes that the reasons should be intelligible to any rational observer. That is hard for me to accept. It seems that at least the gezerot ha-katuv—like the Red Heifer—do not fit this category. Anyone who surveys the system of commandments and sees how others view it will understand that this is not what we encounter. It is not at all obvious that those who observe it will be deemed a wise and understanding people; and even when Jews are so regarded, it is not attributed to the commandments.

Still, the basic principle—that God does nothing arbitrarily—is certainly correct. Commandments should have reasons, even if those reasons are not always clear to us, and even if they are clear to us—are not always clear to an outside observer. This, of course, includes commandments labeled “gezerat ha-katuv.” These, too, were not commanded for no reason.

I will now offer two types of examples that illustrate the common yeshiva-world view that regards commandments as (ideally) lacking rational explanation (already presented in column 411).

First example: On reasons and sources

I have written here before that in yeshivot one often thinks that if a law is derived from a verse, it necessarily lacks sevara (a rational basis). For example, following R. Yosef Engel, it is commonly thought (see, e.g., in the Encyclopaedia Talmudit, s.v. “Ein onshin min ha-din”) that in understanding the rule that we do not impose punishments via kal va-chomer (nor the punishment of the teaching case), there are three approaches: (a) perhaps there is a refutation (pircha) to the kal va-chomer; (b) perhaps the punishment for the lesser offense does not suffice for the greater one; (c) it is a gezerat ha-katuv learned from “ve-la’achoto.”

I have long wondered about this classification, since it is not three explanations but two explanations and a source. Simply put, there are not three views but two: the source of the principle is the verse “ve-la’achoto,” and the explanation can be one of the two aforementioned rationales.[1] The reason that the learned world treats such a picture as if it contained three opinions rather than two is the common assumption that if there is a scriptural source, the law must lack sevara; and if there is sevara, then it is not learned from a verse.

But that is mistaken. First, because those rationales are offered by later authorities (the Maharsha and Kesef Mishneh), whereas the source appears in the Talmud itself (Yevamot 22b). Do those later authorities disagree with the Talmud? One can, to be sure, find sugyot as a basis for their views. But the very assumption is wrong, so there is no need to find such a Talmudic passage. Source and reason are different things: the verse provides the source for the law; once we have learned it from the source, we can think about its rationale and parameters. The existence of a rational explanation does not negate the need for a source.

Let me offer one example among many. The Talmud (Yoma 74) records a dispute among the Amoraim regarding a “half measure”:

“Regarding a half measure: R. Yohanan said it is forbidden by Torah law; Reish Lakish said it is permitted by Torah law. R. Yohanan said it is forbidden by Torah law, since it is fit to combine to a full measure—he is consuming a prohibition; Reish Lakish said it is permitted by Torah law—‘eating’ the Torah forbade, and this is not [full] eating. R. Yohanan challenged Reish Lakish: I know only that anyone who is subject to punishment is subject to warning; as for a ‘koy’ and a half measure—since they are not subject to punishment, you might think they are not subject to warning; Scripture says ‘kol chelev’ (‘all fat’)—[there is a prohibition] even for a small amount. [He answered:] That is rabbinic, and the verse is a mere asmachta…”

According to R. Yohanan, whose view is accepted as halakhah, one who eats less than the requisite measure of a forbidden food (e.g., pork or nevelah) violates a Torah prohibition; according to Reish Lakish, it is rabbinic. At the outset, the Talmud grounds R. Yohanan’s view in a sevara: “fit to combine” (chazi le-itztarufi). The precise meaning is debated, but that does not matter here. Later, however, the Talmud cites a baraita that derives the prohibition from the verse “kol chelev” (“all fat”—Rashi: even a minimal amount). Later authorities debate the relationship between the verse and the sevara, but the Talmud itself clearly presents them as complementary rather than competing. The Talmud does not challenge R. Yohanan’s sevara with the verse; it treats the baraita as a natural continuation of R. Yohanan’s position. Thus it is clear that these are not conflicting sources but parts of a whole: the verse “kol chelev” includes the case of a half measure, and the sevara explains why it is prohibited (because it can combine to a full measure).[2]

One might wonder whether this is not an instance of deriving the “reason of the verse” (doreshin ta‘ama di-kra), which is generally proscribed. In the column cited I explained that this restriction applies to verses, not to derashot. I now add: even within verses, we sometimes find what is really a defining parameter (geder), not a “reason” as such (see column 715).

“Why do I need a verse—this is sevara!”

Still, this yeshiva tendency is not without basis. It rests on the following consideration: the Talmud often asks, “Why do I need a verse—this is sevara?!” That is, if a rational argument suffices, no verse is needed (see at length my article on the status of sevarot). If so, those who assume that a verse precludes sevara, and that if there is sevara we do not derive from a verse, seem to have a point. But as I explained in that article, this question arises only regarding a detail or interpretation of a law that already has a source. When it comes to a novel law, a sevara is not a source that can render it de-orayta; to be de-orayta, a law requires a scriptural source.

For example, no one asks this question about prohibitions such as “You shall not murder,” “You shall not steal,” or “Honor your father and your mother.” These are straightforward sevarot—far more straightforward than many cases where the question is asked—and it is obvious we would know them even without a verse (as evidenced by God’s charge against Cain for murdering Abel even before the commandments “He who sheds man’s blood…” and “You shall not murder”). Nevertheless, no one imagines that “You shall not murder” does not require a verse. Without the verse, it would be a moral prohibition, and for that a sevara suffices; but to transform it into a halakhic-religious prohibition, a verse is needed. The places where the Talmud says a verse is unnecessary because sevara suffices are only those where the law already has a source and we are adding an interpretation or specific detail. There sevara suffices and a verse is redundant.

For our purposes: the fact that there is a verse does not mean there is no sevara. Even when there is sevara, a verse is required to convert that sevara into a binding halakhic norm. Hence, when a principle such as “we do not punish via kal va-chomer” is accompanied by a verse and by two rationales, what we have are two explanations—not three positions.

Second example: Does every verse teach the opposite of its plain sense?

In the column mentioned, I noted another phenomenon in yeshiva thinking that reflects the notion of verses as gezerot ha-katuv devoid of logic. I opened with a dialogue: an avrech’s wife tells him he must listen to her because it is written, “Whatever Sarah tells you—listen to her voice.” The avrech retorts: “Foolish woman! That verse actually shows there is no general duty to heed one’s wife; it required a special instruction to Abraham to listen to Sarah.” Thus, any verse that seems to teach a principle is read as establishing the opposite principle, with the verse merely carving out an exception.

This is not simply a flaw in yeshiva logic; there are Talmudic sources that take such an approach. Sometimes the Talmud treats a verse as teaching a principle (binyan av), and sometimes as carving out an exception to an opposite principle. I have often discussed when each mode is used; I will not enter that here. But in yeshivot, one tends to assume this is the default: a verse that teaches a principle actually indicates that the general rule is the opposite, and the verse merely excludes a special case.

Consider a Talmudic sugya that shows both moves. As is well known, one who performs a melakhah on Shabbat in a way that damages (mekalkel) is exempt. In Shabbat 106a there is a dispute regarding damaging by wounding (chovel) and the melakhah of kindling (mav‘ir). R. Shimon holds that even when one damages, he is liable in these two melakhot; R. Yehudah exempts. The Talmud seeks R. Shimon’s basis:

“What is R. Shimon’s reason? Since a verse was needed to permit circumcision, it follows that ordinary wounding entails liability [even when it damages]. And since the Torah forbade kindling with respect to a priest’s daughter [who is executed by burning], infer that ordinary kindling entails liability [even when it damages].”

There is a scriptural derivation that permits circumcision in its time even on Shabbat; from this we infer that, absent the verse, we would have prohibited it even though circumcision is a wounding—i.e., mekalkel. It follows that wounding entails liability despite being mekalkel. Why not infer that mekalkel is exempt even for wounding, and that the verse simply permitted circumcision on Shabbat? You can see that the Talmud assumes the verse actually teaches the opposite of its explicit content: the permission of circumcision indicates that wounding is generally liable.[3]

By contrast, the source regarding kindling operates with the opposite logic. There the Torah forbids kindling in the context of executing a priest’s daughter. From this we derive that kindling is forbidden even though it is mekalkel (of the wood, and of the convict herself). Note that here the derivation is a binyan av: from the case of the priest’s daughter we learn the general prohibition of kindling. We could have read the verse as an exception: kindling is generally permitted (as mekalkel), and only the kindling of a priest’s daughter is forbidden. But the Talmud chose to build a general rule from it, not an exception. (Elsewhere I cited views suggesting that the essence of the prohibition here is not kindling per se but the punishment by the court on Shabbat; on those views, one could say kindling itself is permitted while executing is forbidden—perhaps the view of R. Yehudah over against R. Shimon.)[4]

Thus, even in the Talmud itself a verse can be treated as teaching the opposite of its explicit content; yet it is not always so. The yeshiva tendency, however, is to treat verses as exceptions—another sign of viewing scriptural laws as gezerot ha-katuv, i.e., non-rational decrees.[5]

The Meiri on a wayward daughter

The Mishnah at the start of the chapter on the “wayward and rebellious son” (Sanhedrin 68b) derives that the law applies only to sons, not daughters:

“As it is said, ‘If a man has a son’: ‘son’—not a daughter; ‘son’—not a man [i.e., an adult].”

The Gemara derives “son” to exclude a daughter and to exclude an adult. Two derivations from one word already strain credulity. Moreover, our general rule is that the Torah often uses the masculine as a generic: “Scripture equates a woman to a man for the laws of the Torah” (Bava Kamma 15a). I raised a similar difficulty regarding the derivation in Shevuot disqualifying women from testimony: “And the two men who have the dispute shall stand before the LORD”—men, not women. A most puzzling derashah (see, for example, column 712). As I wrote there, such difficulties strengthen the conjecture that this law is rooted in sevara, not something compelled by the verse (and in our case there is already something to derive from the word—namely, to exclude an adult).

In the Bavli (69b–70a) we read:

“‘A son, not a daughter.’ It was taught: R. Shimon said—by rights a daughter should be eligible to be a ‘wayward and rebellious child,’ for all are prone to sexual transgression; nevertheless, it is a gezerat ha-katuv: ‘a son, not a daughter.’”

The logic would have extended the law to a daughter (though she does not ‘rob passersby,’ she would deteriorate into promiscuity), yet Scripture decreed otherwise. The Gemara states explicitly that this is a gezerat ha-katuv.

The Jerusalem Talmud (8:1) sharpens this further:

“R. Yasa said: All these matters would not be reasonable, except in the reverse! Come and see that it is so: Who by rights should be liable—son or daughter? You would say: the daughter; yet the Torah exempted the daughter and made the son liable. Who by rights should be liable—minor or adult? You would say: the adult; yet the Torah exempted the adult and made the minor liable. Who by rights should be liable—the one who steals from others, or the one who steals from his parents? You would say: from others; yet the Torah exempted the one who steals from others and made liable the one who steals from his father and mother—to teach you that all are only by royal decree.”

All these laws are not merely unsupported by reason—they run counter to it; they are a “royal decree.”

Even so, several early authorities offered a rationale. Maimonides (Hil. Mamrim 7:11) writes (and similarly the Sefer ha-Chinukh):

“It is a scriptural decree that only a son who is wayward and rebellious is stoned; but a daughter is not judged by this law, for it is not her way to be drawn after eating and drinking like a man. As it is said, ‘a son who is wayward and rebellious’—not a daughter, nor a tumtum, nor an androgynos.”

It is a gezerat ha-katuv, yet he gives a reason. Admittedly, from Maimonides’ words one cannot prove my point, since both he and the Chinukh commonly supply “reasons” that are not meant as the full, true root of the law.

But the Meiri on our sugya (s.v. “ve-chen hu doresh”) writes:

“That is, a daughter is not judged by the law of the wayward and rebellious child at all, for the Torah was concerned only with one whose way is to be drawn after his appetites and sink into them, and this is not the case with a daughter, but with a son. For these matters, though they are all gezerat ha-katuv, are all drawn toward this concern. And though at first glance some particulars may appear the other way…”

The Meiri states that this is a gezerat ha-katuv, and yet adds a reason (the Torah is concerned with one whose way is to be drawn after appetites). Unlike Maimonides or the Chinukh, the Meiri immediately raises a difficulty: if it is a gezerat ha-katuv, how can one give a rational explanation? The very question shows that, at least for the Meiri, this reason is not a mere pedagogical “taste” but the true and full sevara underlying the exclusion of a daughter. Hence his difficulty: why then do the Talmudim label it a gezerat ha-katuv?

What is the Meiri’s answer? First, he says that all the details flow from this rationale (“they are all drawn toward this concern”), i.e., it is a genuine, correct sevara and the basis of the whole law. He then explains why it is nonetheless called a gezerat ha-katuv: at first glance, opposite sevarot could also be entertained (as the Yerushalmi notes—e.g., to be stricter with a daughter, to prefer liability when stealing from others rather than from parents, etc.). Thus, there is sevara, but competing sevarot exist; therefore the Torah writes that specifically this sevara (concern for one whose way is to be drawn after desire) governs and anchors all the details.

The conclusion: there is a need for a verse to reject competing sevarot; but once the law is written, we can fully understand its reason, and all the details flow from it. That is precisely my claim.

The Lechem Mishneh on Maimonides makes a similar point:

“‘It is a scriptural decree…’—It is difficult: in Sanhedrin 69b: ‘R. Shimon said: by rights a daughter should be subject to the law… nevertheless it is a scriptural decree: a son, not a daughter.’ Rashi explains that all are prone to sexual transgression; which implies there is no difference between son and daughter, except that it is a gezerat ha-katuv. How then could our master (Maimonides) give a reason that a daughter’s way is not to be drawn after eating and drinking? … Perhaps he means thus: by rights a daughter should be liable like a son, though there is some reason to distinguish—‘a daughter’s way is not to be drawn after eating’—which would not have sufficed on its own; but since the son’s liability itself is a novelty and decree (for by sevara, one should not punish for stealing to buy meat and wine), therefore ‘do not extend a novelty beyond its scope’; and since there is at least some reason to distinguish, we distinguish and say: ‘a son, not a daughter.’ This is what our master meant.”

His resolution aligns with the Meiri’s.

Thus, even when a law is written in a verse—and even when the Talmud calls it a gezerat ha-katuv and notes that it runs counter to reason (as in the Yerushalmi)—that does not mean it lacks a rationale. At least after the law is learned from Scripture, one can indeed find its reason. As I explained in the aforementioned series, sometimes we would have thought this way even absent the verse, but we still need the verse to establish that the sevara is strong enough to rely upon halakhically.

So what is not a gezerat ha-katuv?

If indeed every law written in the Torah has a rationale, and “gezerot ha-katuv” are simply those laws written in verses, what Torah laws are not gezerot ha-katuv? Is the expression synonymous with “de-orayta law”? That seems implausible.

More plausible is this: gezerot ha-katuv are de-orayta laws we would not have known without the written source. They may have reasons—and we might even have known those reasons without the verse—yet we would not rely on them halakhically without the written directive. By contrast, de-orayta laws that are not gezerot ha-katuv are laws we would have known even without the verse. One can still ask: if so, why were they written?

To answer, return to the earlier section (“Why do I need a verse…”), where I explained the function of writing a law in the Torah. Writing a law is not merely to inform us “what God wants”; it is to constitute a binding obligation. Once written, we know not only that this is the right way to act, but that it is a duty. The verse is needed to move from mere sevara (moral or otherwise) to halakhic obligation—with all that entails (liability, punishments, halakhic rules, etc.). Accordingly, laws we would have followed even without Scripture (albeit for other reasons, e.g., moral ones) are regular de-orayta laws that are not gezerot ha-katuv. Laws we would not have known without Scripture are what we call “gezerot ha-katuv.”

Conclusions

The upshot is that gezerot ha-katuv do have reasons, and in at least some cases those reasons are accessible to us. It is true that without the verse we would not have acted accordingly for various reasons (the sevara is not decisive, competing sevarot exist, or there are countervailing halakhic rules—see that series), but once the law is written we can well understand its basis. De-orayta laws that are not gezerot ha-katuv are those we would have known even without Scripture; the verse is needed to confer upon them the status of halakhic obligation with all that follows.

This rests on the proper understanding of Scripture’s role. Scripture is not merely to transmit information about the Divine will; first and foremost, it constitutes halakhic duty. Hence there is no point asking why the Torah wrote prohibitions such as murder or theft; without Scripture, we would not know that there is a halakhic prohibition.

It also follows that when a verse teaches us something, there is no reason to think that offering rationales for it contradicts the fact that it is learned from that verse (as we saw in the example of “we do not punish via kal va-chomer”). Likewise, we need not assume that every verse teaches the opposite of its plain sense. When the rule we learn is reasonable, we may extend it throughout halakhah rather than treating it as a mere exception contrary to halakhic reason.

[1] In my view, there are still other, more plausible explanations, but I will not enter them here.

[2] In that column I suggested a slightly different formulation: the verse comes to include something, and the sevara shows that what it includes is the half measure.

[3] Various explanations can be offered for why the verse is read here as an exception. For example, because the derivation permits only circumcision “in its time,” implying that not in its time it is forbidden—hence, wounding entails liability. But that only restates the question: why not say circumcision is permitted because wounding is permitted?

[4] One could also say, even on those views, that kindling is prohibited, but in addition there is a ban on administering judicial punishments on Shabbat (even if one could do so without violating melakhah).

[5] One might counter: even if a verse is read as an exception, that does not imply irrationality; it may merely run counter to a general halakhic rule. Elsewhere I argued that whether a case is treated as an exception or as a binyan av depends on how reasonable the rule in the verse is: if it is rational, we generalize it; if it is not, we treat it as an exception. Thus, the tendency to read cases as exceptions still signals an outlook that sees verse-derived rules as gezerot ha-katuv, i.e., non-rational decrees.