Lesson 1: General Introduction

From the book Roots Outstretched by Rabbi Michael Avraham. Translated from Hebrew using gpt-5.4 (reasoning_effort=high, batch API).

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With God’s help

Introduction to the Series of Essays on the Roots

A. General Introduction

Basic Aims

As we announced in the opening letter, this year we will be dealing with various meta-halakhic principles and their implications, in light of the fourteen principles that Maimonides places at the foundation of his enumeration of the mitzvot (commandments), that is, the “roots.” We see this subject as a direct continuation of what we discussed over the past year, and it can also be connected, to some extent, to the study of the principles of drash (textual interpretation). The principles of drash reflect meta-halakhic modes of thought regarding the interpretation of verses, and as we saw, they too embody important methodological principles of reasoning and inference. Maimonides’ roots likewise constitute a foundational meta-halakhic system, even though most of them do not deal with scriptural interpretation but with the counting of the commandments and with commandments in general; they too have wider implications than may appear at first glance.

With God’s help, we will send out sixteen essays over the course of the present year, one every three weeks: an introductory essay, this one; fourteen essays on the roots; and one additional essay on the laws of the Noahides, in light of Nahmanides’ addition at the end of his glosses to the final root. The order of the essays will follow the content of the roots, as explained below, and not the order established by Maimonides.

Our aim in each essay in this series is to examine the principle that Maimonides sets out in the root under discussion, to ask whether it is accepted, and to try to understand what lies at its basis, and whether it has more general philosophical and meta-halakhic implications.

The Jurisprudence of Halakha

Jurisprudence is the field that deals with meta-law, with the various legal categories, and with their meaning. The concept of a mitzvah is the cornerstone of halakhic jurisprudence, roughly parallel to the concept of a “law,” though not entirely; in fact, over the course of this year we will be dealing mainly with this concept, from a number of perspectives.

We will do so through a study of the roots, which are the foundational principles that guided Maimonides in constructing his enumeration of the commandments. Each of these roots addresses one principle, but nearly all of them contain interesting meta-halakhic and philosophical dimensions, which we will try to clarify.

Among other things, we will discuss the following topics: What is a mitzvah, and why is it binding? What is the status of the Noahides and their commandments? What is the significance of the time axis in halakha? What are the reasons for the commandments, and what is the significance of scriptural rationale? How do classification and categorization function in halakha and more generally? What are the role and authority of the sages? How does punishment function in halakha? And more.

As will become clear below, the picture of halakhic jurisprudence emerges mainly from the first two roots, since these are the ones that deal with the status of the various halakhic categories.¹

The Lack of Attention to the Roots and Its Significance

We should begin by noting that the classical commentators, and also modern scholars, do not devote much attention to the roots. When one does find discussion of them, it usually concerns particular halakhic angles that arise in the debate between Maimonides and Nahmanides. The meta-halakhic principle itself that Maimonides lays down, its basis, and its implications, are hardly discussed in the classical literature, apart from the first two roots, as we shall see below. Thus, despite their importance, the roots are something of an abandoned duty, and as we shall see, they can teach us a great deal about halakha and its methodological and philosophical foundations.

To this we should add the fact that one can hardly find any reflective treatment, and certainly not a systematic and comprehensive one such as this, by any halakhic sage concerning halakha in general, and his own conception of it in particular. It therefore seems that the importance of the roots goes well beyond clarifying the method of one important halakhic sage, namely Maimonides. We have here a unique example that allows us to descend to the roots of Maimonides’ own mode of thought, and of halakha in general. This only strengthens the sense of loss created by the absence of systematic attention to this work among commentators throughout the generations.

Recommendations to the Reader

We strongly recommend that each week, before reading the essay, the reader first read the relevant root in Maimonides, and, if possible, also consult Nahmanides’ glosses. Our main analysis will focus on the words of Maimonides, the glosses of Nahmanides, who usually defends the Bahag, the author of Halakhot Gedolot, against Maimonides’ attacks, and at times also the position of Rabbi Saadia Gaon, especially as interpreted by Rabbi Yerucham Fishel Perla, who devotes a chapter to each root at the beginning of his monumental work on Rabbi Saadia Gaon’s Sefer HaMitzvot.

In each essay we will review the course of Maimonides’ discussion in the relevant root and Nahmanides’ objections to it, and afterward try to penetrate to the root of the differing opinions and their halakhic, meta-halakhic, and philosophical significance. For us, the root is not merely a means of understanding Maimonides’ method in his enumeration of the commandments; it is primarily a basis for understanding the structure of halakha, the meaning of the concept “mitzvah” in the Torah, and more.

A General Note

It is important for us to emphasize that we do not necessarily assume that Maimonides was consciously aware of the principles we find underlying his words, or that he in fact derived his roots from them. Even so, we hope that the inferences we propose are logically plausible; that is, that Maimonides’ method is indeed built on the assumptions we will present, whether consciously or unconsciously.²

This Week’s Essay

As stated, this week’s essay is devoted to a general introduction to the series of essays on the roots. We will address some familiar matters here as well, but most of them provide important background on Maimonides, on halakha, and also on our aims and the methodology we will adopt in the essays to come. The introduction is therefore composed of several distinct parts, each dealing with a different aspect that we felt it important to present before turning to a study of the roots themselves.

B. Philosophy and Halakha

Introduction

As noted, our aim this year is in part philosophical, and therefore it was important for us to begin with this short chapter in order to clarify something about the philosophy of halakha. This is a very new field, and it seems that even its most basic ideas have not yet fully taken shape. Conferences and articles devoted to it often slide quite freely into discussions of the relations between halakha and various fields of knowledge, and the label “philosophy of halakha” does not always seem to fit them.

Since in this chapter we want to sketch several lines toward a halakhic philosophy, we must first understand what the term “philosophy of halakha” means, and especially distinguish between several meanings it can bear. In the next section we will illustrate this by means of a brief methodological discussion of an older and more consolidated field: the philosophy of science.

Different Domains in the Philosophy of Science

In the philosophy of science one can distinguish among three kinds of questions:

1. Questions that concern the scientific process, methods of inquiry and methodology, and their justification.
2. Questions that concern the philosophical significance of specific scientific results.
3. Questions that concern the philosophical meaning of science as a whole.

When we deal with questions such as the validity of scientific induction, the use of the principle of causality, or issues concerning the confirmation and refutation of theories, shifts of paradigms, and the like, these are questions about the general methodology of science. They concern all empirical sciences and their various branches, and from this perspective it makes no difference whether we are interested in physics, biology, or even the social sciences. The questions dealt with in this area are not philosophical questions in the usual sense of the word, since they concern the technique and conduct of science, and their answers are given on the basis of observation of the way science actually functions and of its history. It is therefore more accurate to call this field “the methodology of science.” It should be noted that almost all professional literature in the philosophy of science, certainly introductory literature, deals with this area.

By contrast, one may ask what the principle of uncertainty in quantum theory means, or what the relativity of space and time in relativity theory means. Other questions of this kind concern discussions about the nature of the human being in light of modern genetics and brain research, and the like. All these questions concern the significance of particular scientific results, not the significance of scientific inquiry as such. This field deserves the title “scientific philosophy,” since what characterizes it is that science is not its ultimate subject. The questions asked here are philosophical rather than scientific, and science serves only as an instrument for clarifying them.³

There is also a third kind of question, concerning the philosophical significance of science in general, such as: Does science discover truth? What is the meaning of disagreement among scientists? These questions are philosophical, not methodological, and not scientific either. But unlike the second category, they are general questions that concern the scientific enterprise as a whole, and not only particular disciplines. This field, more than any other, deserves the title “the philosophy of science.”

We have therefore divided what is called “the philosophy of science” into three subfields: the methodology of science, scientific philosophy, and the philosophy of science proper.

As noted, the great majority of writing in the philosophy of science concerns precisely the methodology of science. It seems that the reason is that work in the other two fields, especially the third, demands a high level of competence in both domains together, in science and in philosophy. Someone whose main expertise is philosophy does not always possess enough scientific knowledge to decipher professional questions in specific scientific fields, and the reverse is also true: a successful scientist in his own field is not necessarily equipped with sufficiently deep philosophical knowledge. There are quite a few examples of failures that result from insufficient education in one of the two wings of the equation, the scientific or the philosophical.

An Analogy to the Philosophy of Halakha

We can now apply this distinction to the field of the philosophy of halakha. Here too, as in the philosophy of science, there are discussions that concern the methodology of halakha. Questions of halakhic decision-making, who disagrees with whom, the relation between halakha and reality, and the like are questions that already receive attention in the literature of the early authorities, and even more so among later authorities; these are also the main questions treated by those who deal with the philosophy of halakha. We will call this field “the methodology of halakha.”

Of course there are also questions here that parallel the third kind described above: questions such as the relation between halakha and truth in general, the role and status of halakha in comparison to other parts of the Torah, and so forth. Accordingly, this field may properly be called “the philosophy of halakha.”

Finally, halakha too allows for a field of inquiry that we may call “halakhic philosophy,” in which one discusses the meaning of particular halakhot. For example, the meaning of the laws of mixtures, legal presumptions, and rules for resolving doubts; the meaning of the laws of Shabbat; time in light of halakha; causality in light of halakha; and so on.

The same phenomenon noted in the previous section exists in the halakhic sphere as well. Most attention among those interested in the philosophy of halakha is devoted to the methodology of halakha, most likely for reasons similar to those presented at the end of the previous section.⁴

Our Aim in This Year’s Series

Using the terminology defined in this chapter, the primary aim of our series of essays on the roots belongs first and foremost to the first type: the methodology of halakha, at least in the specific area of commandments, their classification, and their enumeration.

There is a similarity between dealing with commandments and engaging in science. Here too we examine facts that we have received from authoritative sources and try to sort, explain, and classify them into different categories, and so on. We use theories, rules of classification, generalizations, and the like. Therefore almost all the questions that trouble philosophers of scientific methodology can arise here as well.

Of course, the “facts” with which we are dealing here are laws. Therefore we arrive naturally at philosophy of law, or jurisprudence. We will discuss the analogy between jurisprudence and the philosophy of science, God willing, in our essay on the second root.

Since Maimonides was the only figure to deal with these subjects explicitly, systematically, and self-consciously, the roots provide a convenient platform on which to examine these questions in their halakhic and meta-halakhic setting.

On the other hand, as we shall see, behind the methodological principles laid down by Maimonides stand more abstract and general assumptions. These assumptions concern philosophical questions, such as the existence of abstract concepts, compare the problem of the existence of scientific entities in the philosophy of science, the nature of time, and so on. Therefore, in almost every essay we will also reach questions of the second and third types.

When one deals with the philosophical significance of the meta-halakhic rules themselves, there is a connection among all three fields defined above, and perhaps the synthesis of the first two leads us to the third. We hope that this will become clearer and more concrete over the course of the year.

C. Rules and Particulars

Canonization and Codification of Halakha

In the third gate of Shtei Agalot Ve-kadur Poreach, a historical process is described in which synthetic thinking gives way to analytic thinking. We will need here only the broad outlines of that process. This shift finds expression along two parallel axes: canonization and codification. As years and generations pass, texts become more organized, detailed, and systematic, and less associative, as the Gemara is structured. They increasingly take the form of a codex. In parallel, the central texts undergo canonization, that is, they acquire more authoritative status. Today it is generally accepted that one may not disagree with most of the authors of the major halakhic texts, even in the period of the later authorities. Halakha takes on an analytic form, meaning that halakhic inference is based on the logical derivation of conclusions from binding sources, rather than on an intuitive sense of “what is right” or “what was intended.”

The combination of these two processes, which are certainly related to one another, moves us from the synthetic, creative, and associative thinking that characterized the earlier periods in the history of halakha toward analytic, dissecting, quasi-legal, positivistic thinking, which characterizes the later generations more strongly.

These processes provoked considerable unease among halakhic sages. Menachem Elon, in his monumental work Jewish Law, discusses at great length what he calls “the codification controversies,” which arose mainly around Maimonides’ Mishneh Torah and around the Shulchan Arukh. Many sages opposed the tendency toward codification and canonization, and sought to continue grounding halakhic decision in independent and intuitive study of earlier sources, mainly the Talmud and the early authorities, and less in analytic inference from texts of a codex-like character.

Surprisingly, throughout the long history of halakha no comprehensive halakhic codex was produced. There is no halakhic work that presents all the laws from all branches of halakha in an orderly and classified manner, and apparently not by accident. This reflects the same anarchic tendency that exists in halakha, which resists submission to the processes described above. As far as we know, there are only two exceptions: Maimonides’ Mishneh Torah, and Arukh HaShulchan, together with Arukh HaShulchan HeAtid. These two already come close to the structure of a systematic codex encompassing all fields of halakha from their various sources, after classification and decision. Maimonides has the advantage of being first, and therefore the work required of him was far more sweeping and revolutionary.

Maimonides’ Place in This Process

Maimonides appears in the middle of the historical process described so far, and by himself creates a gigantic halakhic work, something generations of sages had not done before him, nor have done since. But such a work cannot come into being merely by technical collection of material and assembling of sources. It must be based on a systematic and consistent network of assumptions and on a defined methodology, whose role is to assist in gathering, arranging, and classifying, and to ensure both internal consistency, coherence and absence of contradiction, and external consistency, conformity to rules of thought and to the various traditions that accompanied halakha, throughout this enormous undertaking.

Before turning to a more detailed description of Maimonides’ project, we will preface it with a brief discussion of the relation between particulars and rules.⁵

Particulars and Rules: The Casuistic Character of Halakha⁶

As part of this same anti-analytic tendency, halakha has a very clear casuistic character. The halakhic system does not usually operate with rigid rules. It prefers discussion and treatment of specific cases. As we argued elsewhere, this is not accidental, nor is it merely an arbitrary mode of presentation. Halakha does not believe in analytic-positivistic thinking that describes the system by means of a set of general principles from which one derives the rules for specific situations solely through analysis and logic. This is the essence of positivism, both legal and scientific. As Rabbi David Cohen, known as the Nazir, repeatedly emphasized, the basic operation in halakha is inductive generalization, from the particular to the general, and not deductive specification, from the general to the particular. Halakha, as a living and complex system, cannot be forced into the straightjacket of rigid rules, and subordinating it to such rules may distort both the mode of thought and the halakhic conclusions themselves.

A sharp expression of this may be seen in the “rule,” if one may call it that:

“One does not derive law from general formulations, even where they explicitly say, ‘except.'”

This appears in Babylonian Talmud, Eruvin 27a, and in Encyclopedia Talmudit, vol. 1. Likewise, we find a formulation that describes halakha as based mainly on analogy, in Babylonian Talmud, Bava Batra 130b:

“The whole Torah is a matter of analogy.”⁷

Still, the process we described above is evident in relation to this question as well. As time passes, halakha adheres more and more to rules and makes increasing use of deduction. The earlier the period, the fewer the rules and the more synthetic the mode of thought, analogical and inductive.

Even so, it remains broadly true that very few of our sages dealt with the rules of halakha,⁸ and among those who did, almost none recommended beginning one’s study by understanding the rules. The accepted mode of study in halakha is simply to learn different sugyot, and to leave the learner to infer the rules from the overall conduct of the system that he encounters. The reason is that it is almost impossible to fit a living and complex field into the mold of a set of rules and expect all particular cases to be nothing more than applications of those rules. Halakha places greater trust in generalizations and comparisons, that is, analogies, from one specific case to others that we seek to decide. In general, one may say that rules are a matter for experts, if at all, but certainly not for beginners.⁹

The Difference Between the Approaches of Maimonides and Nahmanides

In this respect too, Maimonides is an exception. We do not find that he recommends beginning the study of halakha with its rules, but he consciously insists on systematicity in study and in halakhic decision-making, and certainly in the classification and construction of his codex. As we shall see below, he had no choice. An undertaking of such scale as the one he took upon himself could not proceed any other way.

Maimonides uses two kinds of rules:

1. Rules that arise from the sources through generalization and abstraction.
2. A priori rules, which seem reasonable to him even if they have no basis in the sources.

Maimonides’ rationalism leads him to treat both kinds of rules as binding across the board. Often he will not bring proofs at all, but will simply claim that anyone who thinks otherwise has merely strayed from the path of reason, and nothing more.

We will repeatedly see, however, that this analytic approach entangles Maimonides again and again, as Nahmanides is careful to point out in his glosses. Maimonides tries to impose on halakha a rigid system of principles, most of them a priori.¹⁰ But it seems that the halakhic system refuses to enter the mold of rules into which Maimonides seeks to force it. It kicks against them and refuses to submit, and exceptions, contradictions from the Talmud to the rules Maimonides proposes, and the like, constantly emerge.

As noted, Nahmanides asserts consistently in several places in his glosses that the sages of the Talmud never make statements that concern only the enumeration of the commandments.¹¹ For example, in his glosses to Root 11 he writes:

“It is taught in the Sifrei: The four fringes invalidate one another, for all four together are one commandment. Rabbi Ishmael says: all four are four commandments. From here we learn that when they said ‘one commandment,’ they meant that the parts are mutually indispensable… Did this Tanna now come to enumerate the 248 positive commandments and teach us that we should count the commandment of fringes as only one in our reckoning? Such a thing is not worthy of error.”

The difference between Maimonides’ approach, which chooses to follow rules and impose them on the sources, and Nahmanides’ approach, which prefers fidelity to the sources even at the cost of giving up rigid rules, will be illustrated more than once in what follows.

Two of the most prominent examples, many would say the most prominent, of this conflict are found in the first two roots. In both, Maimonides makes a meta-halakhic claim that seems to have an a priori character, that is, it arises from conceptual understanding rather than from direct study of the sources, and some would even say it contradicts them. In both cases, an examination of the rabbinic sources themselves raises extremely serious problems for Maimonides’ proposals. It is therefore no wonder that in both cases fierce debates arise, both over how to interpret Maimonides’ words, what he really means, and over whether his claim is valid at all. In both cases Nahmanides stands at the head of those who protest against the a priori rules that Maimonides seeks to impose on halakha, and points out the problems involved.

To illustrate this, it is worthwhile to cite Nahmanides’ language in his glosses to these two roots, which is unusually sharp in comparison with what he writes on the other roots. In his glosses to the first root he writes as follows:¹²

“Thus the Rabbi, by means of the principle set out in the first root, builds a high wall around the words of the sages; but it is like a bulging breach in a lofty wall whose collapse will come suddenly, in an instant, for it is a flawed argument in most places in the Talmud.”

And at the end of his glosses to the second root, Nahmanides writes:

“This is what I had in mind to write on this principle, that is, the principle of the second root, with the utmost brevity. And I know that many more passages in the Gemara contradict its content. For this book of the Rabbi, may his memory be blessed, is full of sweetness and altogether lovely, except for this principle, which uproots great mountains in the Talmud and brings down fortified walls in the Gemara. For students of the Gemara this matter is evil and bitter; let it sink and not be spoken.”

For this reason, Maimonides’ first two roots provide an excellent basis for trying to examine the orderly meta-halakhic doctrines of two of our foremost early authorities, Maimonides, whose doctrine is exceptional, and Nahmanides, who represents the more conventional approach. In the course of our discussion we will try to show why Maimonides’ words do not contradict what is found in the Talmuds, and in fact usually fit them better than do the views of those who disagree with him. This is a good example of the correlation that must exist, and apparently does exist, between a priori conceptual insights and what is actually found in the Talmuds themselves. The general picture that emerges from these two roots is presented in the book by M. Avraham, the fourth volume in the quartet Shtei Agalot Ve-kadur Poreach, not yet published.

The Importance of Rules

Even so, it seems impossible to deny the importance of rules. Even if the net woven by a system of rules is full of holes like a sieve, and even if exceptions are unavoidable, our thinking nonetheless relies heavily on rules and generalizations. Even an incorrect rule gives us a technical basis for examining the system and classifying the particulars by asking whether or not they fit the rule. We can then try to improve the formulation of the rules and come closer to full correspondence with the particulars. Even if we never succeed fully, our thinking cannot ignore this process of analysis and description.¹²

The basis of every systematic comparison is generalization followed by specification. When we compare A to B on the basis of a shared parameter, that is, a shared property, we are in fact first generalizing from A to a group that includes all objects possessing that property, and then specifying B, which also possesses it. Thus comparisons, too, are built to a considerable extent on generalizations.¹³

The conclusion that follows is that rules are primarily important for the advanced student, not for the beginner. The beginner must first learn to swim in the sea of halakha, and only afterward try to understand the principled rules that map the boundaries of that sea. But after enough experience has been accumulated, generalization becomes an important tool, at least as an aid in organizing the information already gathered.

The common approach sees rules as important because they enable us to derive conclusions from cases in which the halakha is known to cases in which it is not. This approach sees rules as a means. But some would say, as argued in the essays cited above, that the rules are the goal of study, even though we can never reach the correct rules in a final way. The particulars are merely an aid that allows us to infer the rules from them. The goal of study is not only to decide the halakha in every situation, but to extract the rules from the collection of particulars. Some would say that the goal of study is the rules, and the particulars are merely test cases. Many, such as Rabbi Abraham Isaac Kook in several places in his writings, emphasized that the broader the rules we understand, the closer we come to knowledge of the Creator and His Torah.

D. An Introduction to the Roots: The Architecture of Halakha¹⁴

Maimonides’ Plan

As noted, Maimonides set himself the goal of constructing a complete and coherent structure that would present halakha in all its branches and from all its sources. Thus he writes at the beginning of his introduction to Sefer HaMitzvot:

“I also saw that I should compose a work that would include all the laws of the Torah and its judgments, so that nothing would be missing from it. In it I would do as is my custom, omitting mention of disputes and rejected opinions, and bringing only the final halakha. That work would include all the laws of the Torah of Moses our Master, both what is needed in the time of exile and what is not needed…

“And in it I would complete everything that has been established and clarified from the statements of the Torah, so that no necessary question would be omitted without my mentioning it, or without my mentioning the principle from which that question can be quickly derived without subtle inquiry. My intention there is also brevity together with comprehensiveness, so that one will find in it everything found in the Mishnah, the Talmud, the Sifra, the Sifrei, the Tosefta, and everything later geonim derived, clarified, and explained concerning what is forbidden and permitted, impure and pure, invalid and valid, liable and exempt, one who pays and one who does not pay, one who must swear and one who is exempt from swearing. In short, together with the Torah itself no other book will be needed in order to know anything one needs in the whole Torah, whether biblical or rabbinic.”

To do this, he had to go through all the authoritative sources that preceded him: the Mishnah, the Toseftas, baraitot and midrashim, the Babylonian and Jerusalem Talmuds, and the literature of the geonim and early medieval authorities.¹⁵¹⁶ He then had to sift the material, classify it into various categories, decide between disagreements in particular laws, and formulate the final result in a clear and systematic way, all while ensuring, as far as possible, that nothing had been omitted from the structure.

For that purpose it was not enough merely to review all the earlier material. He also needed a system of categories that could gather all the branches of halakha together, arranging them into classified subtopics, categories he had to create almost from scratch. Thus he writes there:

“When this ultimate goal had settled in my mind, I turned my thought to the question of how I should divide the work and its sections. Should I divide it according to the division of the Mishnah, and that method would suffice for me? Or should I divide it differently, arranging earlier and later according to what reason requires as more fitting and easier to learn? It seemed to me that the best arrangement would be to set down collections of laws in the place of the Mishnah’s tractates, so that one could say: Laws of Sukkah, Laws of Lulav, Laws of Tefillin, Laws of Mezuzah, Laws of Fringes. And I would divide each general unit into chapters and laws, as the Mishnah does, so that, for example, in the Laws of Tefillin there would be a first chapter, second chapter, third and fourth, and each chapter would be divided into laws, so that it would be easy for one who wishes to know it by heart, or to recall something from it.

“It is clear that once the division is done in this way, a single commandment, whether positive or negative, should not have its laws divided into two general units, but all the necessary subdivision concerning it should be within the chapters of that same unit. Sometimes one general unit will contain several commandments, either because they share one subject that encompasses them, or because many commandments are directed toward one purpose.”

The natural way to carry out such a process would have been to rely on the division of the orders of the Mishnah established by Rabbi Judah the Prince. But of course this was not sufficient, and indeed Maimonides has fourteen books rather than only six. Moreover, a further subdivision was needed, and here too Maimonides does not follow exactly the division of the orders into tractates.

For this purpose Maimonides chose to use the system of commandments in the Torah, since these are the foundational branches from which almost all of halakha spreads out. There are indeed exceptions, laws transmitted to Moses at Sinai, some derivations from verses that are productive rather than purely interpretive, and more, with which we will deal mainly in the first two roots. Maimonides treats these exceptions in a very distinctive way, which is not surprising in light of the tendency described here.

Once he had in hand a complete list of all 613 commandments, he could divide them into topics and subtopics, and then place under each topic or subtopic all the halakhot he had extracted from the earlier sources. This was the way to create the categorical system he needed so badly.

The 613 commandments also served as a guarantee that nothing would be omitted from the total structure. As he writes there:

“All this was in order to guard against anything being absent or escaping me, so that I would fail to speak of it. By mentioning all the commandments by number I was assured of this. And after this matter was completed for me, and I had taken pains to compose the book and to mention all the commandments in a complete enumeration, and their number at the opening of the book…”

But creating a list of 613 commandments is not a simple task. First, as we shall note below, it is not at all clear that there really are 613 commandments. Second, we have no fixed tradition as to what those 613 commandments are, and indeed there has been much disagreement about which commandments are included in the count. What is included and what is not? How should the commandments in the Torah be divided into groups and subgroups? Which belongs in one group and which in another?

Behind all this stands the fact that in the period before Maimonides there were several enumerations of the commandments, but the Bahag’s enumeration was the dominant one, and almost everyone followed it more or less. It was also the highest halakhic authority in this matter. Maimonides himself, in his introduction, mocks the enumerators of commandments who preceded him, claiming that “their authors were poets, not rabbis.”¹⁷ Since Maimonides disagreed with the Bahag’s count at a number of fundamental points, he had to justify his own method in order to bring about a revolution in the field of enumerating the commandments and to persuade all those enumerators who had followed the Bahag’s path. About that too Maimonides mocks them in the introduction, saying that it was “as if all minds had stopped at that man’s statement.” Thus he writes:

“I was moved to the principle that had occurred to me many years ago. It concerns what is counted among the commandments. In this matter many have gone astray in ways whose ugliness I cannot fully describe. Everyone who undertook to count them, or to compose a book with this aim, was drawn after the words of the author of Halakhot Gedolot, and deviated from his intention in their number only slightly, as though minds had stopped at that man’s statement. I even saw that the author of the famous Sefer HaMitzvot noticed a small part of the errors of the Halakhot Gedolot and rejected, in his introduction, counting visiting the sick and comforting mourners as the author of Halakhot Gedolot had counted them. What he rejected deserved rejection, but he introduced something even more far-fetched, and followed him in what is even worse, as will become clear to whoever studies this essay. God, exalted be He, knows, and His witness is enough, that the more I reflected on their error in what they count, and on their counting of what at first thought ought not to be counted, and on how some followed others in this without reflection, the more our ill fortune weighed on me. And the force of His promise was confirmed in me, as it is said in Isaiah 29: ‘The vision of all has become unto you like the words of a sealed book, which they give to one who knows letters, saying, Read this, I pray, and he says, I cannot, for it is sealed.'”

“And every time I heard the many azharot poems composed among us in the land of Spain, pains seized me because of the publicity and openness of the matter as I saw it. They are not to be blamed, for their authors were poets, not rabbis, and from the standpoint of their craft they achieved what was appropriate to them in sweetness of expression and beauty of arrangement. But in the substance of the matters they followed the author of Halakhot Gedolot and other later rabbis.”

For example, one of the fundamental changes introduced by Maimonides in the enumeration of the commandments is a change in their basic classification. In the various counts known to us, the commandments are generally divided into positive and negative commandments, as already appears in rabbinic sources, including those that deal with the enumeration of the commandments, as we shall see below. There are, however, other divisions that appear at least in some enumerations: commandments incumbent upon the community and upon individuals; parashiyyot, that is, scriptural sections, which according to the accepted interpretation are precisely the commandments incumbent upon the community, though see Rabbi Yerucham Perla’s introduction to the parashiyyot in part 3 of Rabbi Saadia Gaon’s Sefer HaMitzvot, and his introduction to part 1; punishments; and more. From Maimonides onward these categories disappeared, at least in the context of enumerating the commandments, so much so that today it is not entirely clear what those parashiyyot that appeared in the earlier enumerations of commandments actually were. This testifies to the revolution he brought about in this field.

For these reasons, Maimonides had to define rules for counting the commandments and justify them, and through them justify his renewed enumeration, chiefly against that of the Bahag. These rules are meant to decide which commandments are included in the count; which commandments are grouped as one and which must be split, and into how many; which commandments have biblical force and which do not; and much more. They are also meant to persuade the learner of the correctness of Maimonides’ count and to help him reject the authority of the Bahag. Thus he writes there, regarding the necessity of Sefer HaMitzvot in general and of the roots in particular:

“When I reflected on this and knew how widespread this count was among the masses, I knew that if I were simply to mention the true count that ought to be counted, in a bare enumeration without proof, then the first reader would think it a mistake. In his mind, the proof that it was mistaken would be that it differs from what so-and-so and so-and-so mentioned. For such is the mind of most of the notable people of our time: they do not examine a statement in itself, but only whether it agrees with what someone before them said, without examining the earlier statement. All the more so the masses.

“Therefore I saw that it was proper to place before the work I mentioned an essay, namely this book, in which I would explain the enumeration of the commandments and how they ought to be counted, and bring proof for this from the verses of the Torah and from the words of the sages in their explanations. I would also preface principles on which one may rely in counting the commandments. Once their number has been established in this essay by clear proof that leaves no doubt, it will become clear to whoever reads it that everyone who counted differently from what we have counted was mistaken. We will not need to answer each one individually or explain his error, for the usefulness and goal intended by this essay will be achieved for those who seek it without that. For I will explain all the commandments and their number, commandment by commandment, and bring proof for every point that contains doubt, or anything about which someone not expert in the laws of the Torah might think otherwise; I will remove his misconception and explain what is doubtful. My aim in this essay is not to explain the law of any of the commandments, but only their number. If I explain some of them when mentioning them, I will do so only by way of clarifying the name, so that it be known what this command or prohibition concerns, and to what thing this name applies. Once the knowledge of their number has been attained with proof from this essay, I will then mention them in bare form at the opening of the comprehensive work, as I have said.”

From where could Maimonides draw these rules? It seems that he used two main sources: rabbinic sources, even though Nahmanides often attacks him on this point, since in his view the sages were not interested in counting the commandments at all, and their statements were not directed toward this issue; and Maimonides’ own reasoning, which usually appears to him necessary and beyond challenge. Behind this stands the rabbinic statement that 613 commandments were said to Moses at Sinai, see the end of tractate Makkot, discussed below, divided into 248 positive commandments and 365 negative ones, see the midrashic sources there. That count provides the systematic framework for Maimonides’ work, and we will return to it below.

Even so, the task of extracting from the sea of halakha a closed and rigid system of principles for enumerating the commandments, on a subject that the sages scarcely dealt with and to which they barely referred, and we have already mentioned Nahmanides’ fundamental challenge to Maimonides on this point, is very difficult, and certainly not univocal. Moreover, even if a closed system of 613 commandments had been given to us, it would still be very difficult to define from that alone a clear system of counting principles, because the same whole can be explained in several different ways.

A striking example of this difficulty is found in the disagreements among commentators regarding Rabbi Saadia Gaon’s methodological assumptions. In Rabbi Abraham Zvi Halevi Rabinovitz’s book HaMitzvah VehaMikra, p. 29, two interpretations are presented concerning Rabbi Saadia Gaon’s relation to Maimonides’ roots. According to Rabbi Shimon Halperin, Rabbi Saadia’s system accords with seven of Maimonides’ roots, whereas according to Rabbi Yerucham Fishel Perla there is agreement with only one root. In general, these two interpreters of Rabbi Saadia agree about his position in only five of the fourteen roots. This interpretive difficulty stems from the fact that these methodological principles must be inferred from Rabbi Saadia’s enumeration of the commandments, since unlike Maimonides he wrote no introduction explicitly detailing the principles that guided him. This reflects the two difficulties we have discussed. First, it is hard to derive a clear system of rules from halakhic sources, as shown by the fact that Rabbi Saadia derived a system radically different from Maimonides’. Second, even if the list of all 613 commandments is given, it is still hard to ground it unambiguously in a specific set of principles, as shown by the fact that even in Rabbi Saadia’s own words, where the list is almost entirely given, his interpreters disagree about which roots he adopted.

From Plan to Execution

This, in effect, was Maimonides’ plan of work: from the final goal, covering all of halakha, classifying it, and presenting it in writing, back to the roots, in every sense of the term. The actual execution naturally proceeded in the opposite direction. First, Maimonides went through all the earlier material. Some of the fruits of that stage are found in his Commentary on the Mishnah. Of his Talmud commentaries, almost nothing has survived.¹⁸

From that point onward, the work proceeds in the reverse direction from the plan described in the previous section. First, out of the extensive material and by applying straight reasoning, Maimonides extracts fourteen roots, foundational principles of enumeration, which will determine the count of the commandments. Maimonides presents these principles at the beginning of Sefer HaMitzvot, immediately after his introduction, from which we quoted above. From these principles, Maimonides succeeds in defining which are the 613 commandments in the Torah, of which 248 are positive and 365 are negative. The fruit of this stage is Sefer HaMitzvot.

Afterward, Maimonides moves to the next stage: he builds a categorical system, based on the Mishnah and on his own enumeration of the commandments, and divides all of halakha into fourteen books,¹⁹ each of which is divided into subtopics, that is, collections of laws, some of which parallel tractates of the Mishnah, but most of which do not. At the beginning of each such collection of laws Maimonides lists the commandments that will be discussed and detailed there. If we gather all these commandments together, we should reach a point at which we have covered all 613 commandments included in the enumeration, in addition to other halakhic sources, laws transmitted to Moses at Sinai, derivations, enactments, decrees, and customs, most of which also branch out from these 613 fundamentals, that is, the commandments, though not all of them. For example, the collection of laws concerning Hanukkah and Purim, within the Book of Times, is not based on any biblical commandment. The same is true of the collection dealing with eruvin, also in the Book of Times. In this way several supplementary collections are created, based on laws from other sources, such as the laws of the Megillah and eruvin. In this way Maimonides ensures that nothing is omitted from the book.

At that stage he can proceed to fill the framework he has so carefully constructed with halakhic content itself. The product of this stage is the Mishneh Torah, which, as stated, is the only codex that encompasses the whole of halakha in all its branches.

This entire process is accompanied by detailed methodological definitions, which Maimonides presents in his introductions, especially those to the Mishnah, to Sefer HaMitzvot, and to the Mishneh Torah.²⁰ These introductions display a degree of awareness and reflexivity, that is, a person’s conscious attention to his own methodology and system and to the assumptions underlying them, which is very rare among halakhic sages, as noted above.

We should note that Maimonides’ goal appears to have been achieved. His enumeration of the commandments became the dominant one, and most later enumerators of the commandments moved away from the path of the Bahag and adhered more closely to that of Maimonides. Despite the authority of the Bahag, the revolution that Maimonides planned did indeed succeed.²¹

Linguistic Considerations

An interesting aspect of Maimonides’ thought process can be found in his considerations of language. In his introduction to Sefer HaMitzvot, Maimonides explains that he had decided to write the exposition in the language of the Mishnah itself, that is, in Hebrew. The reason is that this work was intended for circulation throughout the Jewish world, and there was no single language understood by Jews everywhere except the language of the Mishnah. Thus he writes:

“I also saw that I should not compose it in the language of the prophetic books, because that language is today too meager in our hands to complete legal matters with it. Nor should I compose it in the language of the Talmud, because only a few among our nation understand it today, and many of its words are foreign and difficult even for those expert in the Talmud. Rather, I shall compose it in the language of the Mishnah, for that will be easier for most people.”

Biblical Hebrew is not rich enough in legal-halakhic terminology, and therefore Maimonides saw no possibility of composing such a work in that language. The natural option left to him was the language of the Mishnah, whose essential function is precisely the language of halakha.

Against this background it is especially interesting to note that Maimonides wrote the roots, and indeed all of Sefer HaMitzvot, in Arabic. This may be the reason why a number of Jewish sages were unfamiliar with the roots. See, for example, the Raavad’s misunderstanding of the basis of Maimonides’ method at the beginning of the laws of marriage. The matter is clarified in the second root, as the author of Kessef Mishneh notes there, but the Raavad apparently did not know the roots.

One may hypothesize that the roots were not intended for posterity and for the entire Jewish public. They were written for their own time and circumstance, in order to persuade the public to set aside the authority of the Bahag and accept Maimonides’ enumeration. Once that goal was achieved, and once Sefer HaMitzvot itself, written in Hebrew according to the author’s presentation, was already composed, disseminated, and accepted, Maimonides may no longer have seen much value in the roots. The limited attention paid to the roots in the generations after Maimonides indicates that this was indeed the result. The revolution succeeded, and now the ladder that helped us climb could be cast aside, for it was no longer needed.

In recent generations, however, when awareness of the importance of systematic investigation and examination of meta-halakhic assumptions has greatly intensified, the significance of the roots seems immeasurable, as a unique reflective meta-halakhic work by one of the greatest sages of Israel, as noted above. In any case, one must remember that the text of the roots in our hands is translated from Arabic, and therefore great caution is required when drawing conclusions from precise wording and close textual nuances.²²

It is worth noting that Maimonides himself, see responsum 368 in the Jerusalem printed edition, also printed in the Frankel edition of Sefer HaMitzvot, p. 9, regretted having composed it in Arabic, and even planned to translate it into Hebrew, a task that apparently he did not succeed in carrying out. We possess several different translations of the book, and we will use the edition that appears in the Bar-Ilan Responsa Project, as well as the Frankel edition, which is based on Ibn Tibbon’s translation.

The Time of Composition

Another important point is that the roots and Sefer HaMitzvot were composed several years before the Mishneh Torah itself. That means that a contradiction may exist between what emerges from the roots and from Sefer HaMitzvot and Maimonides’ final halakhic ruling, since it is well known that Maimonides changed his mind over the years. Much has already been written about this regarding his Commentary on the Mishnah and his Mishneh Torah, and some of it is even grounded in his own manuscripts, where many erasures appear. Therefore one must be cautious in drawing conclusions from such contradictions.

On the other hand, in his responsa, sometimes written after the Mishneh Torah, we can find direct evidence concerning positions that remained unchanged for Maimonides. For example, there is a responsum that refers to the principle laid down in the second root, that laws derived from interpretive derivations are rabbinic laws, and explains Maimonides’ words in his major code through that principle. This is clear evidence that the principle stood the test of time, and that Maimonides maintained it even when composing his halakhic work. There is therefore no room for the suggestion, raised in order to reconcile contradictions between the second root and many passages in the Mishneh Torah, that Maimonides later retracted what he had written in the second root.

The Structure and Character of the Roots

The roots enumerate fourteen principles that govern and guide Maimonides’ enumeration of the commandments.²³ We will present them now briefly, without explanation, and afterward classify them and present the order of our work. In Maimonides’ own language, at the end of his introduction to Sefer HaMitzvot:

1. The first root: one should not count among this total commandments that are rabbinic.
2. The second root: one should not count anything derived through one of the thirteen principles by which the Torah is expounded, or by textual amplification.
3. The third root: one should not count commandments that do not apply for all generations.
4. The fourth root: one should not count general commands that encompass the whole Torah.
5. The fifth root: one should not count the reason for a commandment as a commandment in itself.
6. The sixth root: when a commandment contains both a positive and a negative command, the positive part should be counted among the positive commandments and the negative part among the negative commandments.
7. The seventh root: one should not count the legal details of a commandment.
8. The eighth root: one should not count the absence of obligation together with a prohibition.
9. The ninth root: one should not count the formulations of the prohibitions and positive commands, but the matters prohibited and commanded.
10. The tenth root: one should not count preparatory steps that serve a single final purpose.
11. The eleventh root: one should not count the parts of a commandment separately, part by part, when their totality constitutes one commandment.
12. The twelfth root: one should not count each component act of a labor for which there is a command to perform it as a separate item.
13. The thirteenth root: the number of commandments is not increased by the number of days on which a particular commandment applies.
14. The fourteenth root: how the setting of bounds should be counted among the positive commandments.

We can see that most of the roots are rules of exclusion; that is, they determine which commandments are not to be counted. There is only one exception, the sixth root, which presents a consideration of what should be counted: when there is a corresponding positive and negative command, both are counted, unlike two positive commands or two negative commands, as specified in the ninth root.

Non-counting, however, occurs for different reasons. Sometimes it is for substantive reasons, such as legal status: rabbinic commandments are not to be counted, first root. In the second root, Maimonides rules that commandments derived by interpretive means are also not counted, and he too calls them rabbinic commandments. These first two roots are therefore principles of exclusion based on legal status.²⁴ It seems that only the first and second roots belong to this kind.

Sometimes the reason is temporal. Such rules determine exclusion on the basis of the time axis. For example, in the third root Maimonides rules that commandments not applicable for future generations are not counted. In the thirteenth root he rules that the number of commandments is not multiplied by the number of days on which the commandment applies. These rules do not concern legal force, since the commandment is not excluded because it is non-biblical, but because it is already counted or because it is no longer relevant, though this already touches questions of legal status as well. It seems that only the third and thirteenth roots belong to this type.

Sometimes the reason is duplication. These rules determine counting and exclusion on the basis of the principle that there is no duplication within the 613 commandments. Here too the issue is not legal force, since by all opinions these are biblical commandments. The exclusion in such cases follows from the fact that the commandments in question are already included in other counted commandments. It seems that the fourth, sixth, and ninth roots belong to this type.

Another kind concerns the nature of the mitzvah as a command. For example, the fifth root determines that one should not count the reason for a commandment as a commandment in itself. On the face of it, though we will later see challenges to this, the reason is that the rationale of a commandment is not itself a command, and therefore should not be counted. So too with the eighth root, which says not to count the absence of obligation because it is not a prohibition. So too the tenth root, not to count preparatory conditions of a commandment, and perhaps also the fourteenth root. Some of these are connected to questions of legal status, others are not. It seems that the fifth, eighth, tenth, and perhaps also the fourteenth roots belong here.

A final kind consists of rules that prevent counting parts of a commandment. The seventh root, for example, determines that one should not count the legal details and fine points of a commandment. The reason is that the parts are already included in the counted commandment, and therefore there is no point in counting them separately. This category includes the seventh, eleventh, and twelfth roots, and perhaps also the fourteenth.

This classification is preliminary and by no means necessary, and we present it here only for convenience and to organize our work. In the course of our discussions the question will arise more than once where exactly to classify the root under discussion. It is not always clear whether it belongs in one category or another. We should note that the order of the essays we will send over the year follows this classification.

The Fourteen Roots: A General Observation

It is important to understand that Maimonides does not present all the rules he used. There is no reason to present rules that are agreed upon and obvious. Maimonides focuses on those rules that are not self-evident, or at least not agreed upon, mainly by the Bahag and his school. This is entirely understandable in light of Maimonides’ purpose in composing the work, namely to prove his method against the Bahag.

One can see this approach already at the beginning of his discussion of the first root, where he writes:

“Know that this matter, namely the first root, ought not to have required explanation at all. Since the Talmud says, ‘613 commandments were said to Moses at Sinai,’ how could one say that something rabbinic is part of the count? But we were moved to discuss it because many erred in it and counted Hanukkah lights and the reading of the Megillah among the positive commandments…”

From the very opening language of Maimonides it is clear that he sees no need to present rules that are self-evident. His words here show that the only reason he brings even a clear rule like the first root is that it is not accepted by all enumerators of the commandments, that is, by the Bahag and his circle. From this we learn two points about Maimonides’ method in the roots:

1. He presents only rules that are non-trivial, and probably presents them even when they are agreed upon, while omitting rules that are simple and obvious.
2. He also presents trivial rules if they are disputed, even though, in Maimonides’ eyes, the reason for disputing them is incomprehensible.

We may conclude from this that Maimonides’ fourteen rules do not constitute a complete collection of his meta-halakhic rules concerning the enumeration of the commandments. Only those that are non-obvious, or those that are disputed, are presented here. Therefore the picture that emerges from the roots as a whole may look like fragmentation and deep disagreement over the most basic foundations of halakha, but that is not so. These roots focus deliberately on innovative points, and especially on disputed ones, and therefore one should not infer from them the general picture as a whole.

E. The Enumeration of the Commandments and the Meaning of Engaging in It

The Purpose of Engaging in the Enumeration of the Commandments

As already mentioned, the enumeration of the commandments was not a very common occupation among halakhic sages. Already in the Talmud this is clear, since there is almost no direct discussion of the subject at all, apart from one aggadic statement of Rabbi Simlai at the end of tractate Makkot, cited below.

With a few exceptions, most enumerations were written in the form of liturgical poems and azharot, mainly for the festival of Shavuot and around the Ten Commandments, and they convey a lack of precision in content. When the considerations are stylistic and aesthetic, halakhic precision is liable to suffer, compare Maimonides’ mockery of such enumerations cited above.

Beyond the poetic purpose, we find among those who enumerated the commandments, usually the later ones, several reasons for the importance of this activity.

As we noted above, Maimonides in his introduction uses the enumeration of the commandments as an important instrument in his attempt to set up the overall skeleton of the halakhic structure presented in his Mishneh Torah. This seems to have been the Bahag’s aim as well, since he presented the enumeration in laconic form at the opening of his halakhic work; we will draw conclusions from this in our essay on the first root. In both these enumerations the commandments are divided according to a substantial thematic order. These categories are themselves the point of the enumeration. As we shall see in several of the essays, this tendency gives the concept “mitzvah” a different meaning in Maimonides, namely, not necessarily a command. In his view it is an organizing category rather than a law. The mitzvah is a heading within halakhic classification, and not always does it contain any command at all, see, for example, his words in positive commandments 95 and 96, to which we will return later this year. The meaning of the concept “mitzvah,” then, is shaped by Maimonides’ methodological purpose in enumerating the commandments.

By contrast, the aim of Sefer HaChinukh, whose enumeration follows the order of the weekly Torah portions, appears more pedagogical: to extract a halakhic summary from each portion. That is why its order is different. The same is true of the various liturgical poets mentioned above. Beyond their poetic and aesthetic purposes, some of them also sought to present in this way a certain summary of halakha as it emerges from Scripture, and sometimes the entire material is classified according to the Ten Commandments.

In the introduction to the brief enumeration of the commandments by the Chafetz Chaim, which includes 77 positive commandments and 194 negative ones, all of them commandments applicable in our own time, it appears that the aim is the remembrance of the commandments, “and you shall remember all My commandments.” The Chafetz Chaim apparently understood that this is not only a theoretical matter of remembering the commandments, perhaps as part of the commandment of Torah study, but also a means to their fulfillment. That is why he focuses only on commandments that apply in our time. By contrast, from the perspective of Torah study, it is well known that the Chafetz Chaim strongly encouraged the study of commandments relating to sacrificial matters that are not practiced today.

Set against all this is an interesting phenomenon connected with the Vilna Gaon. It is well known that the Vilna Gaon left no stone in Torah and halakha unturned, without engaging in it, innovating in it, or emending it. Against this background it is all the more striking that his writings contain a lacuna with regard to the enumeration of the commandments. As far as we know, there is no discussion of it in his extant writings. This becomes clearer if we note what his brother, Rabbi Abraham, wrote in his name at the beginning of his book Ma’alot HaTorah: many were perplexed by the enumeration of the commandments, no one succeeded in creating a consistent method, and it appears from his words that the 613 commandments are only general categories and that the matter has no importance, since it has no halakhic or other consequence. His student wrote similarly in the introduction to his book Pe’at HaShulchan.

This approach leads us to the question of the consequences and significance of the enumeration of the commandments, but before that we will preface it with a brief discussion of the enumeration itself.

Are There Really 613 Commandments?

The basic foundation of Maimonides’ project of enumerating the commandments is the statement of Rabbi Simlai, an amora of the second generation, at the end of tractate Makkot, Babylonian Talmud, Makkot 23b:

“613 commandments were said to Moses: 365 negative commandments corresponding to the days of the solar year, and 248 positive commandments corresponding to the limbs of a human being.²⁵

“Rav Hamnuna said: What is the verse? ‘Moses commanded us Torah as an inheritance.’ The numerical value of the word ‘Torah’ is 611; ‘I am the Lord your God’ and ‘You shall have no other gods’ we heard from the mouth of the Almighty.”

This statement contains the claim that 611 commandments were given to Moses, plus two that were spoken by the Almighty Himself, for a total of 613 biblical commandments.

Maimonides also cites a parallel passage from Midrash Tanhuma, Ki Tetze 2, which serves him in the course of his discussion of the various roots:

“Rabbi Ada said: There are 248 positive commandments in the Torah, corresponding to the limbs of the human being, and every day they cry out to a person: fulfill us, that you may live by our merit and prolong your days. And there are 365 negative commandments, corresponding to the days of the solar year, and every day from sunrise to sunset the sun cries out and says to a person: I charge you, by Him who has brought your days to this day, do not transgress me by this sin, and do not tip yourself and the whole world to the side of guilt. Thus there are 613 commandments.”

This count is accepted by almost all those who enumerate the commandments. There are a few exceptions, such as Gersonides, the Tashbetz, and others. Nahmanides, at the beginning of his glosses to the first root, raises doubts about this number:

“Before I begin speaking with myself about this matter, I will say what gave me pause, though I know that everyone takes it for granted, and that concerns what they said at the end of tractate Makkot, 23b-24a: Rabbi Simlai expounded… On the basis of this statement the author of Halakhot Gedolot came and counted them one by one to arrive at the number, and after him the matter spread widely and was accepted among all the sages and students, and became public among the masses that this is the total number of the commandments. Songs, liturgical poems, and azharot of sweet melodies were composed about it, many of them by the sages of Spain in the land of Andalusia, as the Rabbi, may his memory be blessed, mentioned in his introduction, and others in other lands in all the corners of the exile. And the Rabbi himself said there that this is something no one who counted the commandments could fail to know, that this is their number.

“Yet I, in my poverty, had a doubt about this statement, whether it is the view of all or whether there is disagreement about it. I had another doubt as to whether it is a law given to Moses at Sinai, meaning that the Almighty said to Moses: such and such a number of commandments I deliver to you to command Israel as an inheritance; or whether it is merely an asmachta based on this numerical interpretation, so that this sage, Rabbi Simlai, found the commandments to come to this number according to the way he counted them and gave signs for them, and Rav Hamnuna after him merely attached this number to that numerology.²⁶“

Two questions occupy him. First, is this number accepted by all the sages of the Talmud, or is it only Rabbi Simlai’s opinion? Second, does Rabbi Simlai’s method rest on a received tradition that this is the number of the commandments, or is there no such tradition? If so, where did Rabbi Simlai get this number from? Perhaps he simply counted all the commandments in the Torah according to his own understanding and arrived at this number. If so, 613 is the number according to Rabbi Simlai, but no one else is bound by it.

The reason for this doubt is described by Nahmanides in the following words:

“What brought me to this doubt is that we find disagreements in the Gemara about many verses as to whether they are command or permission… For according to the one who says they are obligatory, they belong to the count of the 613 commandments, while according to the one who says they are optional, they are not counted, and he must bring other commandments in this count of 613 in their place, completing a positive commandment in place of a positive commandment and a prohibition in place of a prohibition. And those things that he brings into the count must not be commandments according to the one who says that these are obligatory. But we do not have matters of this kind in the Torah. Moreover, according to their usual manner in the Talmud, they should have challenged and said: according to the one who counts these, he has too many commandments; or, according to the one who excludes these, by what does he complete the number?”

Nahmanides remains uncertain, but after all these doubts he too concludes that we must rely on this number despite the questions, mainly because of the tradition from all our sages, among whom we find no one who disputes it:

“I also saw that many midrashim and supporting interpretations were said on this matter. It is astonishing to me that they expound regarding fringes, ‘and you shall remember all the commandments of the Lord,’ that the numerical value of ‘fringes’ is 600, and fringes have eight strings and five knots, making 613. Rashi wrote this in his commentary on the Torah at the end of Shelach. I do not know whether this is aggadah. In any case, it is not from the Torah, for the school of Hillel says that the strings are only three, tractate Menahot 41b, and then two are lacking from this sign. And how are there five knots as a matter of Torah law, when the Torah obligation is only two knots, as stated in the chapter HaTekhelet, Menahot 39a: ‘Infer from this that the upper knot is from the Torah, for if you were to say it is not from the Torah, why did the Merciful One permit wool and linen together in fringes? after all we hold that one stitch is not a connection. Rather infer from this that the upper knot is from the Torah.’ Perhaps we should therefore say that Rabbi Simlai’s statement is not agreed upon by all, and there is disagreement about it. Rabbi Simlai counted the commandments according to his own view and reasoning and found them to reach this number, and then built this exposition on it. Therefore no challenge was raised from it against Rabbi Ishmael for lacking three positive commandments, or against Rabbi Shimon for lacking two negative commandments. If those are lacking for them, they do not accept this asmachta or this count.

“But even if we say that it is disputed, we must admit that it is the law, because the sugyot in the Talmud proceed that way. As they say in tractate Shevuot 29a and tractate Nedarim 25a: ‘Why not say to them: uphold idolatry and the whole Torah? Or 613 commandments were stated…’ From this we learn that for them this is indeed the number of the commandments. Though it can still be said that the first challenge, ‘idolatry and the whole Torah,’ was according to all views, while the second, ‘613 commandments,’ was said according to Rabbi Simlai’s view, because no other number is mentioned in the Gemara.

“And in tractate Shabbat, in the chapter Rabbi Akiva, 87a, they said concerning Moses’ breaking the tablets: ‘What did he expound? If the Passover offering, which is one of the 613 commandments, the Torah said of it: no foreigner shall eat of it, then here, where the whole Torah is present and the Israelites are apostates, how much more so.’ In tractate Yevamot 47a they said regarding Naomi’s words to Ruth: ‘We are commanded 613 commandments.’ Moreover, this number spread very widely in the aggadot, as they said in Genesis Rabbah 24:5: ‘Rabbi Yudan bar Rabbi Simon said: Adam ought to have been the one through whom the Torah was given. What is the reason? This is the book of the generations of Adam. The Holy One, blessed be He, said: He is the work of My hands and I will not give it to him? Then He reconsidered and said: I gave him six commandments and he could not withstand one of them, so how can I give him 248 positive commandments and 365 negative commandments?’ Likewise in Midrash Tanhuma at the end of Korah, Ki Tetze 2, Vayelekh 2, and in other aggadic midrashim, they regularly mention this total. But I saw in Shir HaShirim Rabbah 1: Rabbi Joshua ben Levi and the rabbis: Rabbi Joshua ben Levi said that Israel heard two commandments from the Holy One, blessed be He, ‘I am the Lord your God’ and ‘You shall have no other gods,’ as it is written, ‘Let him kiss me with the kisses of his mouth,’ not all the kisses. And the rabbis say that Israel heard all the commandments from the Holy One, blessed be He. Rabbi Joshua of Sikhnin in the name of Rabbi Levi gave the rabbis’ reason: after all the commandments it is written, ‘You speak with us and we will hear.’ What does Rabbi Joshua ben Levi do with this? He disagrees, for there is no earlier and later in the Torah. Or perhaps ‘You speak with us and we will hear’ was said only after two or three commandments. Rabbi Azariah and Rabbi Judah bar Rabbi Simon said: Rabbi Joshua ben Levi stays true to his own view. It is written, ‘Moses commanded us Torah.’ The whole Torah all of it is 613 commandments. The numerical value of ‘Torah’ is 611 commandments, which Moses spoke to us, but ‘I am the Lord your God’ and ‘You shall have no other gods’ we did not hear from Moses, only from the Holy One, blessed be He. Thus it says, ‘Let him kiss me with the kisses of his mouth.’ End of that aggadic passage. Now Rav Hamnuna’s exposition, that ‘Moses commanded us Torah’ yields ‘Torah’ by numerical value, appears there as the opinion of an individual, while the rabbis disagree with him. It is not clear there whether they disagree completely, meaning with Rabbi Simlai’s own exposition that 613 commandments were given to Moses at Sinai, or whether that number is a tradition in their hands and all agree that this is the sum of the commandments, for there too in Shir HaShirim Rabbah this total is mentioned many times. Because this number is so widespread there and everywhere else, we must say that it was handed down to them from Moses our Master at Sinai. Even so, this does not prevent disagreement about one or another commandment, where one says it is optional and another says it is obligatory, because the one who says it is optional knows that there is another commandment filling out the number. They did not trouble in the Gemara to ask this or to count it, because of the depth and remoteness of the matter; they were not going to explain the whole Torah and count its commandments, as they said regarding something simpler than this, in tractate Kiddushin 30a: ‘Let us bring a Torah scroll and count’ — ‘we are not proficient.’ But as a matter of presumption, they rely on this count because it is what they received.”

Thus Nahmanides there also cites additional Talmudic sources that confirm this number as an accepted count, and it seems that in the end he too agrees with it.²⁷ Indeed, Nahmanides adds both positive and negative commandments to Maimonides’ count in such a way that the total number remains 613, see the work Derekh Mitzvotecha by Rabbi Judah Rosanes, author of Mishneh LaMelekh, who points this out.

In the end, a broad consensus emerged, across the board, regarding this number. In prayers and liturgical poems, as well as in halakhic responsa, the expression “the 613 commandments” became an idiomatic commonplace.²⁸ In the esoteric tradition many matters were attached to the number 613, but that does not concern us here.

The Significance of Engaging in the Enumeration of the Commandments

The great question raised by the Vilna Gaon is the question of the significance of the count. Maimonides, as noted above, engaged in enumerating the commandments as a methodological device for establishing his comprehensive halakhic structure. But is there also halakhic significance to this count? Does any halakhic consequence follow from the fact that a particular directive is included in the count or not? On the face of it, there appears to be no such consequence. As we have already seen, most of the rules of enumeration do not concern the legal force or status of the commandments. The considerations of counting concern duplication, details included within a more general commandment, and so forth. For this reason, in most cases the fact that a commandment is not included in the count says nothing at all about its character or status. Many biblical commandments are not included in the count for various technical reasons, and therefore the fact that a certain commandment is not included does not show that it is not biblical. If so, why engage in this topic at all?

Moreover, if the goal is really only organizational, why argue over the inclusion or exclusion of this or that commandment from the count? Let each person choose the organizational method that seems best to him. At first glance, this does not seem to be a matter of truth and falsehood. These debates indicate that there must be some halakhic significance to whether a particular commandment is included or not included in the enumeration.

Set against these considerations is the fact that a great many halakhic consequences do in fact emerge from discussions of the enumeration of the commandments. Tens and hundreds of halakhic conclusions are drawn by commentators from the disagreements between Maimonides and Nahmanides regarding the enumeration of the commandments. How can this be, if the enumeration itself has no halakhic consequences?

Before answering that, let us briefly present several suggestions for possible halakhic consequences of whether or not a commandment is included in the count.

1. Lashes. In a responsum of Maimonides, Jerusalem edition no. 368, printed in the Frankel edition of Sefer HaMitzvot before Maimonides’ introduction, it appears that there is a practical consequence with regard to lashes: a counted prohibition receives lashes, and if it is not counted, it does not. But it seems that his words there should not be understood in that way. Maimonides there refers only to the roots that deal with separating commandments into their component parts, the relevant roots being 7, 9, and 10-12. There the indicator for counting is lashes: if one receives lashes for a given component, it is counted as an independent prohibition; if not, it is not counted independently. But this is not necessarily a general statement that one never receives lashes for an uncounted prohibition, and one can even bring contrary examples. We will address this in the essay on the sixth root.

2. Legal status. The Pri Megadim, at the beginning of his “Comprehensive Introduction,” raises several possible practical consequences of inclusion in the count, the main one being that commandments not included in the count have the status of rabbinic commandments. But these claims are very puzzling. As we have seen, only the first two roots provide principles that depend on the force and legal status of the commandment. He proves his point there from the Ran, Nedarim 8a, whose words will also be discussed in our essay on the second root, that an oath can take effect on commandments not explicitly stated in the Torah. But the Ran can absolutely be interpreted otherwise, and as we have seen there is even strong reason to interpret him otherwise. Beyond that, he claims that in such cases consuming less than the minimum measure would be prohibited only rabbinically, doubts concerning them should be treated leniently, and so forth. We will return to these points during the year and see several examples that apparently contradict these assertions.

3. Consequences of the total number. The necessary practical consequence of the enumeration of the commandments appears in Rabbi Yerucham Fishel Perla’s introduction to Rabbi Saadia Gaon’s Sefer HaMitzvot, section 10, p. 56, which is devoted entirely to clarifying the question of the practical consequence of enumerating the commandments. His main claim there is that the total number itself constitutes the most important practical consequence. The reason is that anyone who removes one commandment from the count must point to another commandment that will enter in its place, in order to complete the total number of 613, which is what we have received.

And indeed, anyone familiar with the writings of the early enumerators of the commandments sees that this is the focus of most of their discussion. Many practical consequences emerge from these debates, because including or excluding a commandment from the count can certainly be done on substantive grounds, such as determining that a certain commandment is rabbinic rather than biblical, or that it is part of another commandment. These determinations are a direct result of the constraints imposed by the enumeration of the commandments, and they can have many halakhic consequences. This is precisely the explanation for the fact noted above, that many halakhic conclusions are derived from debates about the count of the commandments. Nearly all of those conclusions arise in this way, through the explanation proposed for why a certain commandment is included in the count or not.

Maimonides himself, in the third root, uses such a consideration against the Bahag: “Others too erred in this root, and counted because their ability constrained them…” His meaning is that the Bahag counted certain commandments because he was lacking several commandments to complete the total count of 613.

The Tashbetz writes similarly in his Zohar HaRakia, positive commandments no. 11:

“The upshot of all this is that the words of the Gaon, that is, the Bahag, are closer to the plain sense of Scripture and the plain meaning of the sayings of the sages, unless the count compels us otherwise, because we do not find a way to complete the 248 positive commandments unless we include the utterance ‘I am the Lord your God’ in the count.”

It should be noted that this is not really a direct halakhic consequence of inclusion in the count itself. For example, the fact that honoring father and mother is included in the count has no direct halakhic consequence whatsoever. But the total count may force us to exclude the commandment of conquering the Land from the count, and in order to justify that we will need various discussions and innovations concerning the character and halakhic meaning of that commandment. Those discussions will involve conclusions of halakhic significance about that commandment and more generally. Thus, the mere fact that a particular commandment is included in the general enumeration of the commandments grants it no special status in any direct sense. Yet the activity of enumeration as such is of great importance and rich in halakhic consequences, as anyone who studies Maimonides’ roots and their commentators can see.

Rabbi Yerucham Fishel Perla brings many examples there of the influence of this numerical constraint in the Gemara and among the early authorities, and concludes with the following paragraph:

“All this is because necessity forced them to complete the number 613 exactly, with neither addition nor subtraction, each according to his own method. It follows that this tradition of the number 613 is the source of many commandments and prohibitions which otherwise would have no other source at all. If we were not compelled to fit this number exactly, it would never occur to us to make them commandments and prohibitions without any source for this. Likewise, many commandments were excluded from the general total only because otherwise we would have more commandments than the number 613, as you can see in the Tashbetz, Zohar HaRakia, positive commandments no. 11, who wrote: ‘The upshot of all this is that the words of the Gaon, the Bahag, are closer to the plain sense of Scripture and the plain meaning of the sayings of the sages, unless the count compels us otherwise, because we do not find a way to complete the 248 positive commandments unless we include the utterance “I am the Lord your God” in the count,’ end quote…”

It should, however, be noted that, as we saw in the passage from Nahmanides cited above, the sages of the Talmud themselves never make such comments; that is, they do not challenge someone who holds that a given commandment is rabbinic or non-obligatory by asking what he will do to complete the count.

As we have already mentioned, these halakhic consequences are indirect and secondary results of the discussion, but most classical commentators deal almost exclusively with them. By contrast, our concern here is not with those consequences but specifically with the basic principles discussed in the roots themselves.

Conclusion: Technical Notes on Philology and Text

In our essays we will use the text of Maimonides and the roots, including Nahmanides’ glosses, as they appear in the Frankel edition. For convenience, however, quotations in the body of our discussion are taken from the Bar-Ilan University Responsa Project. Because of limited time and resources, we will pay almost no attention to textual variants.

All references to Maimonides, Nahmanides, and their commentators are according to the page numbers of the Frankel edition.

Footnotes