Halakha and Ethics – Lesson 9

Table of Contents

• A division of values: morality and Jewish law
• Conversion and preferring religious criteria
• Rejecting standard divisions of commandments and turning “rational commandments” into decrees
• The source of moral obligation: reason and Rabbi Shimon Shkop
• A mistaken reading of Rabbi Shimon Shkop and “Torat Ha-Mishpatim”
• The Torah conveying moral expectation without command: Genesis and Cain
• “You shall be holy” in Maimonides: a comprehensive commandment that is not counted
• “You shall be holy” in Nachmanides: “a scoundrel within the permission of the Torah” and the paradox of counting
• The distinction between human values and moral values
• “And you shall do what is right and good” in Nachmanides: compromise and going beyond the letter of the law in the moral realm
• A critique of Rabbi Lichtenstein: not a technical difficulty but a different category
• The Maggid Mishneh on the law of the adjoining property owner and the difference between Torah and the details of character traits
• The count of the commandments and its status: the Vilna Gaon and the realm of Jewish law
• Process and levels: the seven Noahide commandments and the religious level
• “Do not murder,” indirect causation, and moral force versus religious force
• The Meiri and Ba’al HaHashlama: “liable by the laws of Heaven” as a moral duty of restitution

Summary

General overview

The text presents a dichotomous distinction between universal moral values and particular halakhic-religious values, and argues that Jewish law deals only with the religious dimension of actions and not with their moral dimension, even though the will of God and the Torah expect a person to address both. The author explains that morality obligates by the force of reason even before any command, brings Rabbi Shimon Shkop as a basis for the idea that rational obligations precede command, and interprets the fact that “You shall be holy” and “And you shall do what is right and good” are not counted among the commandments as expressing a desire to leave certain areas as expectation rather than halakhic command. He rejects Rabbi Lichtenstein’s explanation that their omission from the count is a technical problem of endless detail, and proposes that the principled reason is that morality is not Jewish law, while distinguishing between “human values” (such as “a scoundrel within the permission of the Torah”) and “moral values” (conduct between one person and another). In the end he proposes a reading of the Meiri and Ba’al HaHashlama regarding “liable by the laws of Heaven” as a category of moral obligation to make restitution that is not enforced in human courts.

A division of values: morality and Jewish law

The author divides between moral values and halakhic-religious values, and argues that Jewish law does not deal with moral values but only with religious values. He maintains that the Torah, or the will of God, deals with both, and therefore God expects both moral behavior and observance of Jewish law, but Jewish law is only part of what is required. He defines morality as universal by its very nature and argues that there is no such thing as “Jewish morality,” so whatever is morally binding is binding on all human beings.

He argues that what is uniquely Jewish exists only in the religious-halakhic values, and therefore everything in Jewish law is particular to Judaism. He gives the example of “Do not murder” and argues that the moral prohibition against murder is universal, whereas “Do not murder” in Jewish law refers to the religious dimension or the religious problem in the act of murder. He suggests that the formulation “Whoever sheds the blood of man, by man shall his blood be shed” is closer to a universal prohibition, while “Do not murder” in the Ten Commandments is a religious prohibition.

Conversion and preferring religious criteria

The author uses the distinction between morality and Jewish law to explain what is expected from a convert and what defines a Jew in the process of conversion. He argues that one examines a person’s “measure of Jewishness” through religious values and not through moral values, and therefore prefers criteria like eating kosher rather than “Do not murder,” despite the latter’s moral severity. He argues that a criterion for conversion needs to be unique to Judaism, and therefore an obligation like honoring one’s father and mother does not indicate a desire to be Jewish, because it is incumbent on every human being.

Rejecting standard divisions of commandments and turning “rational commandments” into decrees

The author presents an earlier division into three kinds of halakhic obligations: moral, anti-moral, and seemingly moral, and argues that this is an artificial division that is incorrect. He rejects the distinction between decrees and rational commandments and argues that even commandments that appear rational are really decrees. He explains that when one is commanded “Do not murder,” this is not coming to prohibit murder on the moral plane but to add the religious dimension to the act, and therefore even “Do not murder” is, in his view, treated as a decree.

The source of moral obligation: reason and Rabbi Shimon Shkop

The author argues that moral obligation emerges from reason, and that “why do I need a verse? Reason itself suffices,” so there is no need for a commandment as a source to obligate what reason obligates. He cites Rabbi Shimon Shkop in Torat Ha-Mishpatim and argues that there are meta-halakhic principles that obligate even before command. He quotes Rabbi Shimon Shkop’s claim that the question “Why obey something that has not been commanded?” turns into the question “Why obey a command?” and the answer is that reason obligates obedience to God’s command, so obligations of reason are more fundamental than obligations rooted in command.

The author adds an analogy to the materialism-dualism debate, and brings Descartes and the cogito to argue that what seems less basic may actually be more fundamental, just as reason is the basis for the force even of command itself. He argues that people have trouble accepting values that are not moral, and therefore get tangled up in questions of Jewish law and morality, whereas his picture resolves those complications.

A mistaken reading of Rabbi Shimon Shkop and “Torat Ha-Mishpatim”

The author describes a common mistaken interpretation of Rabbi Shimon Shkop according to which the meta-halakhic layer in the laws of property is only definitions without norms, and only the Torah adds the prohibition of “Do not steal.” He argues that this interpretation comes from the assumption that there cannot be obligation without command. He brings evidence that in Rabbi Shimon Shkop’s view the legal layer also determines prohibitions, including his claim that stealing from a non-Jew is prohibited by the force of Torat Ha-Mishpatim even if there is a dispute whether “Do not steal” applies to a non-Jew.

He argues that Rabbi Shimon Shkop’s very question, “Why obey?”, proves that he meant a real obligation and not a neutral definition. From here he concludes that a moral obligation, or even an anti-anti-moral one, needs only reason and does not require a command.

The Torah conveying moral expectation without command: Genesis and Cain

The author argues that the Torah does not leave morality in a vacuum of reason alone, but conveys a clear message that a person is expected to behave morally. He brings the example of Cain, where God reproaches him for the murder of Abel even before “Do not murder” was given, as proof that morality binds without command. He refers to the book of Genesis and to Rashi’s first comment as guidance to be “a decent person” and “an upright person,” and explains that the Torah expects moral behavior but does not command it, and therefore it remains in the category of expectation rather than Jewish law.

“You shall be holy” in Maimonides: a comprehensive commandment that is not counted

The author presents the fourth principle of Maimonides, which states that one should not count “commands that include the whole Torah” when they do not command a concrete act but merely repeat the observance of the commandments in general. He quotes Maimonides’ claim that “You shall be holy” and “Sanctify yourselves and be holy” are commands to keep the whole Torah, and therefore should not be counted as independent commandments. He adds a comment about a common mistake in understanding “comprehensive commandments,” and stresses that Maimonides means a general command to keep the commandments, not an all-encompassing “foundational commandment.”

“You shall be holy” in Nachmanides: “a scoundrel within the permission of the Torah” and the paradox of counting

The author brings Nachmanides’ interpretation at the beginning of Parashat Kedoshim, according to which “You shall be holy” commands abstinence even from what is permitted, so that a person should not become “a scoundrel within the permission of the Torah.” He quotes Nachmanides describing a situation in which the Torah prohibited forbidden sexual relations and forbidden foods but permitted meat, wine, and marital relations, so a person can be steeped in lust and still remain within the framework of halakhic permission. He stresses that Nachmanides describes an expectation of restraint in permitted things, less sexual indulgence, less wine, guarding one’s speech, and avoiding “disgusting speech,” using examples such as Noah and Lot.

The author asks why Nachmanides, in his glosses, does not use this interpretation to defend Behag, who counted “You shall be holy,” and answers that one cannot count such a command because if it were counted it would turn “beyond the letter of the law” into the letter of the law and would nullify the very concept of “a scoundrel within the permission of the Torah.” He calls this “the scoundrel paradox” and argues that the Torah wants to leave these actions halakhically permitted while still expecting people to refrain from them, and therefore they do not enter the count of the commandments.

The distinction between human values and moral values

The author argues that “a scoundrel within the permission of the Torah” in Nachmanides is not a moral problem but a problem of human coarseness, because the acts described do not harm another person but reflect something “inhuman” or “not done.” He gives examples of an apparently moral disgust toward acts that harm no one, such as consensual relations between a brother and sister where no children are involved, and interprets this as a category of “human value” rather than “moral value.” He concludes that “You shall be holy” serves as a source for human values and not for moral values between one person and another.

“And you shall do what is right and good” in Nachmanides: compromise and going beyond the letter of the law in the moral realm

The author brings Nachmanides’ interpretation of “And you shall do what is right and good” in Deuteronomy and argues that here the examples are clearly moral. He quotes Nachmanides that it is impossible for the Torah to spell out all forms of human conduct with one’s neighbors, all business dealings, and all arrangements needed for the good order of society and states, and therefore after the specific commandments such as “Do not go about as a talebearer” and “Do not take revenge and do not bear a grudge,” the Torah includes a general command to do what is right and good. He presents Nachmanides’ words that include under this verse “compromise and going beyond the letter of the law,” “the law of the adjoining property owner,” and also “a pleasing demeanor and speaking gently with people.”

The author stresses that “And you shall do what is right and good” is not counted among the commandments by the major enumerators of the commandments, and argues that this serves as an example of an expectation that is not a halakhic command. He notes that the Sefer Mitzvot Katan counts “to act beyond the letter of the law” and defines that as paradoxical, because a positive commandment turns the “beyond” into the actual line of the law.

A critique of Rabbi Lichtenstein: not a technical difficulty but a different category

The author presents Rabbi Lichtenstein’s articles “Morality and Jewish law in the Jewish tradition” and “Jewish law and ways of conduct as foundations of morality,” and argues that the core of his claim is that the omission from the count stems from the difficulty of sharply defining thousands of details that change according to circumstances and personalities. He argues that according to Rabbi Lichtenstein this is an absolute halakhic obligation, only it is technically impossible to spell it all out. He rejects that and asks why one cannot at least count the general rule “And you shall do what is right and good” as a commandment and leave the details to context, just as broad commandments such as “Love your fellow as yourself,” “Love the Lord your God,” and “Fear your God” are counted despite the difficulty of defining them.

The author brings “the law of the adjoining property owner” and “we compel against the trait of Sodom” as examples where the Talmud describes the obligation as a moral consideration and not as coercion to comply with Jewish law, and concludes that this is evidence that “And you shall do what is right and good” is not a halakhic commandment. He argues that the principled reason it is not counted is that the Torah wants to leave moral obligation outside the realm of Jewish law, because Jewish law deals with religious values while morality remains a universal obligation that is not a “commandment” in the halakhic sense.

The Maggid Mishneh on the law of the adjoining property owner and the difference between Torah and the details of character traits

The author quotes the Maggid Mishneh in the laws of neighbors, who explains that “You shall be holy” and “And you shall do what is right and good” are general principles for refining character traits and upright conduct, and that it is not fitting to command the particulars because character traits and conduct vary with time and with different people. He emphasizes that the Maggid Mishneh adds that the sages wrote beneficial details, some of which became “full law” and some of which are “ideally, in the way of piety,” and all of that is from the words of the sages. Here too the author rejects the technical explanation and asks why one cannot count the general principle even without all the minute details.

The count of the commandments and its status: the Vilna Gaon and the realm of Jewish law

The author argues that the count of the commandments does not contain all of Jewish law, but it does contain only commandments, and therefore whatever is not Jewish law certainly will not enter the count. He brings a tradition about the Vilna Gaon that he did not involve himself with the count of the commandments, and his brother explains that this is because the count of the commandments has no decisive importance. He uses this to sharpen the point that “And you shall do what is right and good” does not enter the count because it is not a halakhic commandment but a moral obligation.

Process and levels: the seven Noahide commandments and the religious level

The author accepts the claim that there is a process in the giving of the Torah and presents a structure of a “first level” of being a mensch, a decent human being, and only after that a “second level” of the commandments given at Mount Sinai. He notes that Maimonides in the laws of kings describes stages of commands: the seven Noahide commandments, commandments that were given before the revelation at Mount Sinai, and then those given at Sinai. He cites Rabbi Chaim Vital, who explains that the Torah does not command the refinement of character traits because the Torah speaks to human beings, and one who is not truly a human being is not subject to command; from here it follows that basic humanity is a condition for the commandments.

“Do not murder,” indirect causation, and moral force versus religious force

The author agrees that there is a “seam” between the human and the divine, in that the same act can be wrong both morally and religiously, and he illustrates this with murder. He argues that halakhic distinctions such as indirect causation, “murder with the left hand,” and distinctions involving indirect action may be relevant to the religious-halakhic dimension, but they do not change the moral judgment, in which causing death is murder. He argues that morality rests on straightforward reason and does not depend on halakhic fine points.

The Meiri and Ba’al HaHashlama: “liable by the laws of Heaven” as a moral duty of restitution

The author cites the Meiri in Bava Kamma in the name of Ba’al HaHashlama on “four things that one who does them is exempt under human law but liable by the laws of Heaven,” and stresses that they understand this not as a heavenly punishment but as an obligation of repayment. He quotes the Meiri that “liable by the laws of Heaven means that he is obligated in restitution,” and that from here “the great authorities of the generations” wrote that one who is liable by the laws of Heaven is disqualified from testimony until he repays, because “the law of theft applies to him until he repays.” He interprets this as a genuine moral obligation to return money even when a religious court does not compel it, and argues that this is a “moral thief” and not a “halakhic thief.”

The author connects this to the Derashot HaRan about a double system in which the religious court deals with Jewish law while the king handles matters of social order and morality. He concludes that this reading fits his overall picture: there are binding moral obligations that are not part of Jewish law, and therefore one can be “liable by the laws of Heaven” without enforcement by human law.

[Rabbi Michael Abraham] Okay, let’s begin. We’re in the topic of Jewish law and morality. I’ll summarize the picture I described last time, which I think is basically more or less what I wanted to arrive at in this series. And now I’ll talk a bit about meanings, implications, and so on. So the picture is basically this: I distinguish between two kinds of values. There are moral values and halakhic values. My claim is that Jewish law does not deal with moral values, but only with religious values. Halakhic, religious, something like that, whatever you want to call them. But the Torah, or God’s will, deals with both. Meaning, the Holy One, blessed be He, expects both things, but Jewish law is only part of what the Holy One, blessed be He, expects from us. Morality, by definition, is universal. There is no such thing as Jewish morality, so whatever is morally binding obligates all human beings, and what is unique to a Jew, what obligates him specifically as opposed to others, is only the religious or halakhic values. We talked a bit about the implications in terms of conversion, what is expected from a convert, what defines a Jew in that process of conversion. We want to diagnose him, to discern the extent of his Jewishness. How much does he want to be Jewish, and we do that דווקא through religious values and not through moral values, contrary to all sorts of objections people raise—why kosher food is preferred over “do not murder” or over things that are undoubtedly more severe. So my claim was that this is what defines the thing that is unique to a Jew. And if I want to propose a criterion for conversion or a measure by which I can identify Jewishness, then it makes sense to choose a measure that is unique to Judaism. Honoring father and mother is an obligation imposed on every person in the world, and it does not indicate in any way his desire to be Jewish or his decision to be committed to Jewish law. Even though honoring father and mother is a very important commandment—I’m not talking about that, I didn’t say its halakhic status isn’t important—I said that it is not unique to Jewish law or to Judaism specifically. And then I said that I divided Jewish law into three kinds of obligations: the moral ones, the anti-moral ones, and the seemingly moral ones. I won’t go over everything again, I’m only summarizing. And in short, what I wanted to argue is that this is really a false division. There is no such division. Meaning, for example, I’m not willing to accept the distinction between “rational commandments” and “revealed commandments.” I don’t think there’s any difference between them. Rational commandments are also revealed commandments. They are revealed in the sense that when I am instructed “do not murder,” that prohibition does not come to prohibit murder for me on the moral plane. It comes to say that beyond the moral prohibition there is also a religious dimension, or a religious problem, in someone who murders. And therefore I also do not call “do not murder” a rational commandment. For me it is a revealed commandment. Because reason says that it is immoral to murder, and that is true, but that has nothing to do with the halakhic prohibition of “do not murder.” The halakhic prohibition of “do not murder” is the religious dimension or the religious problem that exists in such an act. And therefore these distinctions, in my view, are not correct distinctions. And so morality in a certain sense is universal by definition; it is not in Jewish law at all, and everything in Jewish law is particular, belonging only to Judaism. Meaning this is a very dichotomous division between these two kinds of values. Even the prohibition of “do not murder” is really unique only to Judaism, because the prohibition of “do not murder” speaks only about the religious dimension or the religious problem involved in the act of murder. And that really is a specifically Jewish matter. The moral prohibition is of course a universal prohibition. Perhaps what is closer to the moral prohibition is “Whoever sheds the blood of man, by man shall his blood be shed,” which really applies also to killing a non-Jew, not only to killing a Jew. So that may be the moral or universal prohibition. But “do not murder” in the Ten Commandments is a religious prohibition. Therefore the first belongs perhaps to the Noahide commandments or to morality; the second belongs to Jewish law. That is the basic division. And now I said that despite the difference between moral obligations and religious obligations, people somehow—not in a very systematic way—ignore this possibility, that there are values which are not moral values. That is really my main thesis here in this whole discussion. And anyone who gets tangled up in these questions of Jewish law and morality, and in the many complications I talked about last time, I think my picture resolves all of them very smoothly. Why does everyone get tangled up in it? Everyone gets tangled up in it because they are not willing to accept, or do not feel that there is such a thing, do not identify with such a thing, as values that are not moral values. A kind of different sort of values, which are also proper to do, but the “proper” there is not in the moral sense but in some other sense, a religious sense. We also spoke about other kinds of values, a human sense and so on. So where does that other obligation really come from, the moral obligation? If I say that this too is God’s will and part of the Torah, even if it is not part of Jewish law, still it is clearly required of every Jew because it is required of every human being, and every Jew is also supposed—at least—to be a human being. So where does this come from? First, it comes from reason. Meaning, why do I need a verse if reason is enough? Meaning, once reason obligates something, then it obligates. You don’t need a source for that. I think I mentioned Rabbi Shimon Shkop’s claim when he speaks about the “theory of law”; he basically says that there are meta-halakhic principles that obligate us without a commandment, even prior to a commandment. And when he asks himself on what basis—why should I obey such principles when I have no commandment instructing me about them?—he says: and why am I supposed to obey a commandment? A good Jew always answers a question with a question. You assume that with a commandment it is obvious why one should obey. The question is why obey something for which we have no commandment. But the equally good question is: why obey something that does have a commandment? Why should one obey? So what if there is a commandment? The claim is that reason says that a commandment of the Holy One, blessed be He, is something binding. And therefore I must obey it. If so, says Rabbi Shimon Shkop, then the obligations of reason are more fundamental than obligations grounded in commandment. So the whole question falls away. The question asks: why obey something for which I have no commandment? The assumption is that if I do have a commandment, obviously I need to obey it, and the question is only why obey something for which there is no commandment. Rabbi Shimon Shkop says the situation is exactly the opposite. Even with something for which I do have a commandment, the whole reason I need to obey it is because reason says I need to obey it. So it turns out that reason is a more fundamental category than commandment. It is the basis even for the binding force of commandment. So by the same token, other things that reason tells me and for which I have no commandment, I am also obligated in them. Because what is the difference between this piece of reasoning and that piece of reasoning? Reason is really the basic source of obligation. This reminds me a bit, by association—just opening a parenthesis—of those arguments about materialism and dualism. Is there in the world only matter, as materialists think, or is there also spirit, as dualists think? And usually when people look at that debate, the assumption is that well, matter obviously exists, everyone agrees about that. Now the question is whether there is also spirit—about that there is a debate. But as Descartes basically shows in his cogito principle, yes, when he says “I think, therefore I am,” what existence does the cogito prove? It proves, of course, the existence of the thinking being, not the existence of the body, but the existence of the thing that thinks, of the mind. Okay? So really, what stands behind this is that even my recognition of the existence of material things comes from my spirit grasping that they exist. So it turns out that spirit is actually the more grounded, more fundamental thing—the recognition of the existence of spirit—and matter is specifically the second thing, the one about which one can really argue. There are solipsists or all kinds of people who think there is only spirit and no matter. Fine, to us that seems like some esoteric position; no one takes it seriously. But really, according to what Descartes says, materialism deserves even less serious treatment. Because in order to recognize the existence of matter, there has to be a consciousness that reaches the conclusion that there is matter. But that consciousness is something mental, not something material. So therefore the mental is the condition for recognizing the existence of the material, even though everyone is sure that the material is the more grounded and more certain thing to exist, and precisely the mental is what can be disputed. So similarly, that is what I am saying here too, and what Rabbi Shimon Shkop says. People think that what is written in the Torah is obvious; it needs no explanation why it should be observed, because there is a commandment. But what has no commandment—there the question is why observe it. Rabbi Shimon Shkop says: what do you mean, exactly the opposite. What has a commandment—why observe it? Because reason says to observe it. Why is there reason to observe it? That I don’t know how to answer. That is obvious, self-evident. So the force, the validity, of reason is something more fundamental than the force of commandment, even though people’s initial intuition says the opposite. Even regarding Rabbi Shimon Shkop himself, most of the people I have spoken to understand him in a way that is plainly incorrect, but that is the usual way of understanding him. They understand Rabbi Shimon Shkop as saying—he is mainly speaking about laws of property. And he says that the prohibition of “do not steal” or “do not rob” is a halakhic prohibition that the Torah innovated, but it sits on some platform, on some basis, of property law. You need to define which property belongs to whom, and after you define that you can begin to talk about robbery. If I take money that isn’t mine, then I’m a robber or a thief. But first there has to be some definition that defines when property is mine, which property belongs to whom, how the distribution of property is defined—and that is property law—and it almost does not appear in the Torah. Tractate Bava Batra is a tractate without verses; there are almost no Torah sources for the laws of ownership. There are a few here and there, but very few. So Rabbi Shimon Shkop says this belongs to the theory of law, meaning to meta-legal foundations. Now many people tend to interpret this itself in the following way: basically, before Jewish law, property laws of course exist, but they are not binding—they are only definitions, empty definitions. You define whose money is whose, what is my money and what is his money, how the division of property is defined. But I am allowed to take his money; there are no prohibitions, there are only definitions of legal facts, let’s call it that. But there are no obligations or prohibitions in that context until the Torah comes and says “do not rob,” meaning it imposes on me a prohibition to take property that is not mine. Then the claim is that the meta-halakhic layer does not determine norms, does not determine permitted and forbidden; it only determines definitions—who owns what—and only the Torah determines permitted and forbidden. And in Rabbi Shimon Shkop it is clear that this is not true; there are clear proofs that it is not so. But why do people tend to interpret him this way? Because they are so captive to this conception that it cannot be that we need to uphold something the Torah did not command, that they are unwilling to accept—even when Rabbi Shimon Shkop writes it—they are unwilling to accept such a principle. So they say no, no, obviously there are no prohibitions until the Torah commands them; there are only definitions. The definitions exist beforehand, and then the Torah comes and gives them halakhic force and says that it is forbidden to harm another’s property. The determination of what counts as another’s property is meta-halakhic, but the prohibition to harm property that is not mine is only halakhic. There cannot be prohibitions that precede the Torah’s commandment, and therefore they interpret Rabbi Shimon Shkop that way. That of course cannot be correct. It cannot be correct because first of all, in Rabbi Shimon Shkop it cannot be correct; there are several proofs that this is not so. Rabbi Shimon Shkop, for example, says that stealing from a non-Jew is Torah-forbidden, even though there is a dispute among the medieval authorities about whether “do not rob” applies also to a non-Jew’s property. Rabbi Shimon Shkop says: true, regarding the prohibition of “do not rob” there is a dispute among the medieval authorities, but there is the theory of law—it belongs to him, you cannot take it on the legal level even before the Torah’s prohibition. Here you see clearly that Rabbi Shimon Shkop sees the legal layer as also determining prohibitions, not only definitions. He is not only saying that this money belongs to the non-Jew and this money belongs to me, but that also means that if it belongs to the non-Jew, then I am forbidden to take it. That is clear. Another thing: Rabbi Shimon Shkop himself, as I mentioned earlier, asks: and if you say, why are we required to obey things the Torah did not command? According to the common interpretation of his words, there is no place for such a question. Because there is nothing to obey here. Nothing is imposed on me; it is only a definition—that this property belongs to him, this property belongs to me, and that’s all. There is no dimension of obedience here, because there is still no prohibition against taking property that is not mine until “do not rob” comes, according to the common interpretation. So what is this question Rabbi Shimon Shkop asks—how do we know that we must obey what exists without a commandment? Really, we don’t need to, there is nothing to obey. From the very fact that he asks this question, it is clear that he means what I said, not what people usually interpret him to mean—that also on the meta-halakhic level there is not only a definition of which property belongs to whom, but also a prohibition against harming property that is not mine. Only that prohibition is a legal prohibition, not a halakhic prohibition, and it precedes Jewish law. I want to argue here, therefore, that the fact that reason says one should behave morally, or not behave in an anti-moral way, is enough. You don’t need a commandment for that. But it turns out that the Torah nevertheless does address this plane as well. The Torah does not leave it in a vacuum. On the one hand, I already mentioned that the Holy One, blessed be He, reproaches Cain and says to him, “The voice of your brother’s blood cries out to Me from the ground,” even though he had not yet been commanded in “do not murder,” but it was obvious that a human being should understand that one does not murder. That is unrelated to commandments. So I think that is a simple proof. The whole book of Genesis—I also mentioned the first Rashi, which comes to say basically what it means to be an upright person, a decent person. So therefore the Torah does not ignore the moral dimension. There is in the Torah a relation to the moral dimension. The Torah does not leave it only to reason. There is the reason that one should behave morally, but the Torah also conveys this message to us very clearly, that we are expected to behave morally. But it does not command this; it only expects it. Meaning, all the moral dimensions are expectations, not commandments. It is a communication that the Holy One, blessed be He, expects us to act according to the feelings or conscience, and the natural moral intuitions planted within us. That we should know that this is not just some arbitrary thing planted within us, but that we are also expected to act in accordance with it. But it is an expectation and not a commandment. And therefore I say that although it is part of God’s will and part of the Torah, it is not part of Jewish law. Jewish law is only the part of the Torah that consists of commandments—positive commandments and prohibitions. Now there are two main sources, maybe more, but mainly two main sources, that challenge this point. There are two verses that do seem like commandments regarding this matter. One of them is “You shall be holy,” and the second is “And you shall do what is right and good.” There are also some from the Prophets, things from the Hebrew Bible, like “that you may walk in the way of good men,” and all kinds of things like that, but for now let’s focus on these two verses. These two verses seemingly command us to act morally, and this is phrased as a commandment, as a positive commandment. But it turns out that neither of these commandments is counted by almost any enumerator of the commandments within the count of the commandments. Neither “You shall be holy” nor “And you shall do what is right and good.” Now the question is why. But before the question of why, first we need to understand what each such commandment says. So look, in practice regarding “You shall be holy,” Maimonides—I’ll bring up Maimonides’ fourth root for a moment. The fourth root of Maimonides says this: the fourth root is that it is not proper to count commands that encompass the whole Torah. Meaning, if there are various commands, as we may see—Maimonides himself explains—there come in the Torah commands and warnings that are not about a specific matter, but include all the commandments, as though it said: do everything I commanded you to do, and beware of everything I warned you against, or do not violate anything that I commanded you concerning. And there is no way to count this command as a commandment in itself. So such commands are not counted as a separate commandment, because it does not command doing a particular act that would be a positive commandment, nor does it warn against doing a particular act that would be a prohibition. There is no concrete command here, neither positive nor negative, and therefore there is nothing to count in the count of the commandments. That is Maimonides’ claim. By the way, parenthetically, I’ll add here: this is what Maimonides calls general commandments. Again there are many errors, also among later authorities and in Rabbi Kook and others, who explain why, for example, the commandment of settling the Land of Israel is not counted—why Maimonides does not count the commandment of settling the Land of Israel. So Rabbi Kook writes somewhere, and the Tzitz Eliezer also brings it I think, that it is a commandment that includes the whole Torah, and therefore it is not counted among the commandments. Now first of all, even if you say it is a commandment that includes the whole Torah—in my eyes that is Zionist fantasy. I have no idea where they got that madness from. There is in Nachmanides “set up markers for yourself,” all kinds of comments in Torah interpretation, but I would not build overly grand halakhic towers from them. In Maimonides himself there is not the slightest hint of such a total status for the commandment of settling the Land of Israel. On the contrary, it seems fairly marginal. But beyond that, this is also a misunderstanding of what “general commandments” means. The general commandments in Maimonides are defined here, in the fourth root. General commandments do not mean fundamental commandments; rather they mean commandments that simply do not say anything except to warn you once again to keep the whole Torah, that’s all. It is not the idea people are trying to say there—that general commandments means some commandment so fundamental that it really includes the whole Torah. That is simply a mistake in understanding what a general commandment is according to Maimonides. A general commandment according to Maimonides means a verse that says: be careful, do everything I commanded you, or beware of everything I warned you against. Okay? That is “and you shall do all My commandments and keep them,” yes, the verses from the Shema. Okay, that is a general commandment. There is no point in counting it among the commandments, because it is simply repeating to me: keep the commandments I commanded you. It is not saying anything else. There is no novelty in it. That is what is called a general commandment, not a fundamental commandment. Therefore this is simply a very, very common mistake. But back to our issue. What matters here is that Maimonides continues, and after he defines this root, he gives examples. He brings several examples here. He says this: and this is like “and in all that I have said to you, take heed,” and like “My statutes you shall keep and My ordinances you shall do,” “and you shall keep My charge,” and many others like these. Meaning all kinds of verses that warn in a general way to keep the commandments and not commit transgressions—there is no point in counting them; they add nothing specific. Now he says: and they already erred in this root as well, to the point that they counted “You shall be holy” as one of the positive commandments. And they did not know that the phrase “You shall be holy” and “Sanctify yourselves and be holy” are commands to observe the whole Torah. As though it said: be holy by doing everything I commanded you and being careful regarding everything I warned you against. Meaning Maimonides interprets the command “You shall be holy” as a general commandment. A general commandment meaning that “You shall be holy” means keep all My commandments—that is what sanctifies you. Okay, and therefore it is not counted. Why? Because it does not command anything specific. It simply repeats once again that we are obligated to observe the commandments. Okay. And the language of Sifrei is: “You shall be holy”—you shall be separated. Meaning, set yourselves apart. Rashi writes “you shall be separated” meaning beyond the strict law. But Maimonides says no: “you shall be separated” means keep away from disgraceful things. Meaning, separate yourselves from all disgraceful things I warned you against. Meaning from things forbidden by a prohibition, separate yourselves. That is what “You shall be holy,” “you shall be separated,” means. And in the Mekhilta they said: “And you shall be to Me holy people”—Isi ben Yehuda says: the Holy One, blessed be He, renews a commandment for Israel and adds holiness to them. Meaning, this command is not an independent command; rather it follows from a commandment that they were commanded in, and whoever fulfills that command is called holy. And there is no difference between “You shall be holy” and if it had said “Do My commandments.” Meaning Maimonides says that “You shall be holy” is not counted because “You shall be holy” is really just saying: keep the commandments—that is what the command “You shall be holy” says. And therefore it is not counted because it is a general commandment. If so, according to Maimonides, “You shall be holy” has nothing to do with our topic at all. We are used to Nachmanides’ interpretation. Nachmanides’ interpretation of “You shall be holy” is to act beyond the strict letter of the law. Maimonides says what are you talking about—“You shall be holy” means to keep the law. The strict law. It simply repeats once again the obligation to keep the commandments. So according to Maimonides, “You shall be holy” drops out. But Nachmanides really disagrees with him, and Nachmanides argues—by the way, here in the glosses he has a different interpretation altogether—but in his Torah commentary there at the beginning of Parashat Kedoshim, Nachmanides says that “You shall be holy” means to act beyond the strict letter of the law. One second. I’m sharing Nachmanides. “Speak to the whole congregation of the children of Israel: You shall be holy.” So he says here as follows; I’ll start here. “You shall be holy”—you shall be separate from forbidden sexual relations and from sin, for wherever you find a fence around sexual immorality, you find holiness. That is the language of Rashi. I mentioned this Rashi, who says “You shall be holy”—“you shall be separate,” meaning fences around forbidden sexual relations. In contrast to Maimonides, who says that being holy means keeping the commandments, Rashi says “You shall be holy” means being separate from sexual immorality. Being separate from sexual immorality means not merely keeping the prohibitions of sexual immorality, but being more than the formal prohibitions, yes? Beyond the strict letter of the law in the area of sexual relations. Nachmanides goes in a similar direction, but broadens it further. He says: but in Torat Kohanim I saw simply “you shall be separate,” without any connection to sexual immorality—just “you shall be separate.” And likewise they taught there: “And sanctify yourselves and be holy, for I am holy”—just as I am holy, so shall you be holy; just as I am separate, so shall you be separate. By the way, this is the same midrash that Maimonides brings, only Maimonides understands from here: what does “separate” mean? To guard oneself from transgressing prohibitions. Nachmanides understands “separate” to mean beyond what the prohibition forbids. Fine? Meaning to place restraints on myself regarding what is permitted. And in my opinion, says Nachmanides, this separation is not to separate from forbidden sexual relations as the rabbi—that is Rashi—says, but the separation is the one mentioned everywhere in the Talmud, where those who practice it are called “the separate ones.” And the matter is that the Torah warned against forbidden sexual relations and forbidden foods, but permitted a man’s relations with his wife and the eating of meat and wine. If so, a lustful person will find a place to be immersed in the licentiousness of his wife or many wives, and to be among wine-drinkers and gluttonous eaters of meat, and to speak at will all kinds of vulgarities, since this prohibition is not mentioned in the Torah—and behold he will be a scoundrel within the permission of the Torah. Nachmanides says: there are many, many things that are permitted. It is permitted to eat meat, permitted to drink wine, permitted to have marital relations with one’s wife, and permitted to speak idle things—there is no halakhic prohibition on idle talk. Therefore a person who does these things beyond a reasonable measure is called a scoundrel, but with the Torah’s permission. And that is the meaning of “You shall be holy.” “You shall be holy” means guard yourselves not to be scoundrels within the permission of the Torah. The basic direction is like Rashi’s—put restraints on what is permitted to you—but he broadens it not only regarding sexual matters but regarding many things. Meaning there are many disgraceful things for which there is no formal halakhic prohibition, and we are basically supposed to guard ourselves from them—and that is “You shall be holy.” Therefore, says Nachmanides, after Scripture listed the prohibitions it had totally forbidden, it then gave a general command that we should be separate from excesses. He should minimize sexual relations, as they said that Torah scholars should not be found with their wives like roosters, but should have relations only according to the need involved in fulfilling the commandment. And he should sanctify himself from wine by limiting it, just as Scripture calls the Nazirite holy, and he should remember the evils mentioned regarding it in the Torah in the stories of Noah and Lot—just remember that wine, too much wine, is not a good thing. And similarly he should separate himself from impurity, even though we were not warned against it in the Torah, as they mentioned, “the garments of the common people are impure for the separate ones”—yes, the “separate ones” are people who guard themselves even regarding things that in principle carry no halakhic prohibition. And just as the Nazirite is called holy by guarding himself from impurity from the dead, so too he should guard his mouth and tongue from defilement through excessive coarse eating and repulsive speech. But all this is halakhically permitted; it’s just that there are things that are permitted but you are still a scoundrel within the permission of the Torah, as Scripture mentioned: “and every mouth speaks vulgarity.” And he should sanctify himself in this until he reaches separation, as they said regarding Rabbi Hiyya that he never engaged in idle talk in his life. And in these and similar things, I’m reading this last paragraph, in these and similar things this general command comes after it has detailed all the sins that are completely forbidden, so that included in this command is cleanliness of hands and body, as they said: “And sanctify yourselves”—these are the first waters; “and be holy”—these are the final waters; “for holy”—this is fragrant oil. For even though these are rabbinic commandments, from the essence of the verse and similarly it warns that we should be clean and pure and separate from the masses of people who dirty themselves with excess and ugliness. Okay? So let’s try for a moment to summarize what Nachmanides is saying. Nachmanides says that “You shall be holy” warns me not to be a scoundrel within the permission of the Torah. There are things that are halakhically permitted, and the Torah still expects me to be cautious about them, to sanctify myself. Now if they had counted this in the enumeration of the commandments, “You shall be holy,” then it would come out that these actions become part of Jewish law. Right? Because now it is a counted positive commandment. So now if someone eats too much, he has actually nullified the positive commandment of “You shall be holy.” So now it turns out that this is no longer beyond the strict letter of the law, no longer “a scoundrel within the permission of the Torah,” but a scoundrel not within the permission of the Torah. After all, he is violating a positive commandment when he does it. Because if we counted the positive commandment of “You shall be holy,” we might perhaps achieve the result of preventing people from doing these things. But that result would be achieved by throwing out the baby with the bathwater. Why? Because the Torah basically expects us to guard ourselves from this even though it is not halakhically forbidden. The Torah wants us to guard ourselves from things that in principle are halakhically permitted to us, and nonetheless it expects us to be careful. If it were a positive commandment, then these would not be things permitted to us; there would be a violation of a positive commandment involved. The Torah wants to leave them as things that are halakhically permitted to us, not to break the boundaries of Jewish law in this sense, to leave these acts as permitted acts, and to define them as “a scoundrel within the permission of the Torah”—that I am expected not to do them but not commanded not to do them, because if I were commanded not to do them, then there would be a halakhic prohibition. The Torah wants to tell me, no, no, this is within the permission of the Torah—this vulgarity is vulgarity within the permission of the Torah. “Within the permission of the Torah” means there is no halakhic prohibition. But I, says the Torah, nevertheless expect you to guard yourselves and not do it, even though it is within the permission of the Torah. Therefore Nachmanides is apparently not willing to include “You shall be holy” in the count of the commandments. He himself, by the way, also does not add it to the commandments he adds to Maimonides’ count. After all, there are commandments that Nachmanides adds to Maimonides’ count. You will not find “You shall be holy” there. More than that, as I said earlier, when he comes to defend the Behag against Maimonides’ attack and explain why the Behag does count “You shall be holy,” he does not bring this explanation. Why not? Because this explanation cannot serve as a basis for counting the command “You shall be holy,” for including “You shall be holy” in the count of the commandments. Because if I were to include it in the count of the commandments, I would be sawing off the branch I myself am sitting on. Because the command tells me: do things that are beyond the strict letter of the law. If that were a counted commandment, then it would not be beyond the strict letter of the law; it would be the strict letter of the law. This is what I call the paradox of the scoundrel. Yes? It is “a scoundrel within the permission of the Torah,” so it has to be within the permission of the Torah in order to be called that. If you define it as a prohibition, then it is no longer within the permission of the Torah, and then he is a scoundrel not within the permission of the Torah. Then we are back to Maimonides’ interpretation, that “You shall be holy” simply tells me to keep the commandments, that’s all. But Nachmanides does not want to go with Maimonides’ interpretation; he wants to say that “You shall be holy” introduces something beyond the command to keep all the commandments—also keep things beyond what the commandments require. If so, then you cannot count it, in order to keep those things that this command is commanding outside the realm of halakhic obligation. Therefore “You shall be holy” cannot be counted in the count of the commandments according to Nachmanides. So first of all, seemingly there is from here proof that the non-halakhic moral matters—there is some interest of the Torah in leaving them outside the framework of Jewish law. These are expectations of the Torah from us without commandment. But that is not precise. Why? Because if you pay close attention, what exactly is… Look at the examples. What is “a scoundrel within the permission of the Torah” according to Nachmanides? It does not mean someone who does immoral acts. It means someone who does inhuman acts. Remember I distinguished between moral values and human values? Human values. Human—that means to behave like a civilized person, to behave like a human being. Not in the sense that you harm someone. If you gorge yourself and drink heavily, you are not harming anyone. And also excessive permitted sexual relations, say between husband and wife, that also harms no one. With both of their consent, everything is fine. No one is harmed. There is no moral problem here. But, says Nachmanides, there is a problem of human baseness here. You should not be overly occupied with low things—legitimate things, everything is fine—but not devote most of your life to them. And therefore, says Nachmanides, there is a problem here which is a human problem. I gave all sorts of examples of this, if you remember—Jonathan Haidt, the American psychologist, and other examples—all kinds of acts that basically do not harm anyone but are perceived by us as immoral, or not “not moral” but “not done,” yes, not immoral acts but inhuman acts. Say, for example, a brother and sister who live as a couple, have sexual relations as a couple. Both with full consent, both adults, everything is fine, no one is harmed, everything is wonderful. Let’s also say they don’t bring children into the world, so there are no defects in the children, as often happens with close relatives. Fine? Everything is fine. No one is harmed. And still, very many people see something problematic in this. How do you define that problem? So we already discussed this, and I said that apparently, if I read this correctly, there is basically what I called a human value here, not a moral value. Meaning it somehow harms your human image; it’s not because you are immoral, you are harming no one, but it is an act that is just not done. And from there one can also get to manners and decorum. We discussed Maimonides’ “conventional truths” right at the beginning of the series. There are all kinds of such values that do not necessarily hurt someone, and in that sense there is nothing immoral here. But there is a social convention, or even an understanding—it’s not necessarily just convention, insofar as it is actually true. But it is true not because it is immoral, but because it is inhuman. This is not how a person is supposed to behave, okay? Just spending your whole life on nonsense instead of things of value—there’s no prohibition, okay, but this is not how it is proper for a person to live. Fine? So values that are not moral problems are human problems. Now if you notice, the examples Nachmanides brings here for “You shall be holy,” for “a scoundrel within the permission of the Torah,” are all of that type. There is nothing immoral here; there are things that are humanly deficient. Yes, someone who constantly drinks wine and eats meat his whole life, always gorging and drinking—there is no moral problem; there is a human problem. Someone who increases permitted sexual relations—human problem, not moral problem. Therefore the examples he brings here, it seems to me that that is the meaning of separation. Separation is not moral righteousness. Separation is human righteousness, or a human level. Okay? And that is something else. Therefore, even if Nachmanides here explains that “a scoundrel within the permission of the Torah,” or the Torah’s expectation that we not be such scoundrels, cannot enter the count of the commandments, this is not really a source for why moral values are not counted, because this is not dealing with moral values; it is dealing with human values. So what about moral values? My claim is that the same move also exists with respect to moral values. First, in “And you shall do what is right and good”—look at Nachmanides here. Nachmanides on the verse “And you shall do what is right and good” in Deuteronomy. Here the examples really are moral examples. Not human examples. That is the difference between “You shall be holy” and “And you shall do what is right and good,” although many people mix them together. In Nachmanides it seems to me that “You shall be holy” is the source for human values, and “And you shall do what is right and good” is the source for moral values. But “And you shall do what is right and good” is also not counted. You won’t find that either in the count of the commandments. Not in Nachmanides, not in Maimonides. There is an occasional commandment-enumerator here and there, but that is esoteric. The main commandment-enumerators do not count it. So look at what Nachmanides explains on “And you shall do what is right and good.” “And you shall do what is right and good in the eyes of the Lord.” On the plain level it says: keep the commandments of God and His testimonies and statutes, and intend in doing them to do only what is good and right in His eyes. And that is a very interesting formulation—the question is whether he means here that even the commandments should be done, as Maimonides writes in the Laws of Kings, which I mentioned at the end of chapter 8, where Maimonides writes that the commandments should be done because the Holy One, blessed be He, commanded them, not because they seem good and right to me—“to do only what is good and right in His eyes.” If so, this is really a source for Leibowitz’s famous slogan, yes? “And you shall do what is right and good in His eyes.” Before God, always the emphasis is on “in the eyes of God,” not on “right and good.” “Love your fellow as yourself—I am the Lord.” All these sayings. “Walk humbly”—the slogan of the Reali school in Haifa, yes—“walk humbly with your God,” as yourself. But that always gets omitted. “And you shall do what is right and good in the eyes of the Lord,” “walk humbly with your God,” “love your fellow as yourself—I am the Lord.” Meaning, in the end it ends with God. And it may be that this first sentence of Nachmanides—I’m not completely sure—but this first sentence here does somewhat seem to say that. It seems to say that you need to do things in order to fulfill God’s will, not out of some motivation of being a good person—which is perfectly fine, but as a commandment, it is not. Then he says this: “that it may go well with you”—a promise—meaning that in your doing what is good in His eyes, it will go well with you, for the Lord does good to those who are good and upright in heart. And our rabbis have a beautiful midrash on this. They said: this refers to compromise and to acting beyond the strict letter of the law. And the meaning is that first it said you should keep His statutes and testimonies which He commanded you, and now it says that even regarding what He did not command you, pay attention to do what is good and right in His eyes, for He loves what is good and right. Here it is already pretty clear that he is talking about moral values, not human values like he said in “You shall be holy.” Now look at the continuation: “And this is a great matter, because it is impossible to mention in the Torah all a person’s conduct with his neighbors and friends, all his business dealings, and all the proper ordering of society and states.” Okay, it is clear here—these are moral values, conduct toward other people. “But after mentioning many of them, such as ‘you shall not go about as a talebearer,’ ‘you shall not take vengeance nor bear a grudge,’ ‘you shall not stand idly by your neighbor’s blood,’ ‘you shall not curse the deaf,’ ‘you shall rise before the aged,’ and the like—He went back and said generally that one should do what is good and right in every matter.” So that this includes compromise and acting beyond the strict letter of the law, and such as what they mentioned regarding the law of the neighboring boundary, which I mentioned in Bava Batra, and even what they said, “his appearance should be pleasant and his speech gentle with people,” so that in every matter he should be called wholesome and upright. So Nachmanides says that also regarding moral commandments there is a kind of general statement here that does not enter the count of the commandments, and that is “And you shall do what is right and good.” But—maybe even before I get to the “but”—look now at the end, I skipped the end of Nachmanides on Parashat Kedoshim. I’m going back up now. After everything we read above, Nachmanides adds another paragraph on Parashat Kedoshim: “And this is the way of the Torah, to detail and then generalize in matters like this. For after warning about the particulars of laws in all business dealings between people—‘you shall not steal,’ ‘you shall not rob,’ ‘you shall not wrong,’ and the rest of the warnings—it then said in general: ‘And you shall do what is right and good,’ so as to include in a positive command fairness and balance and everything beyond the strict letter of the law, for the benefit of others, as I will explain when I reach its place, with the will of the Holy One, blessed be He.” Of course that is the interpretation we just read now on that verse, “And you shall do what is right and good.” “And likewise regarding the Sabbath, it prohibited labors by a prohibition, and burdensome activity by the general positive command, as it is said: ‘you shall rest.’ I will explain this further with God’s help.” So here, apparently, he does mix moral values with human values also in “You shall be holy,” but that is not correct. Notice, when he explained “You shall be holy,” it was only about human values, not moral values. Only at the end he says why they did not include it in the count of the commandments. Now look at the point: why did they not include it in the count of the commandments? Nachmanides says because the way of the Torah is to write several clear things that are definite halakhic obligation, but there are many more details around them that the Torah does not include, and it gives you some general statement that includes all of them. And therefore it does not include them. Now he brings examples. What are the examples? For instance “And you shall do what is right and good,” which is one example, or in the commandment of Sabbath: you have the thirty-nine primary categories of labor and their derivatives, but there is also some general commandment of rest on the Sabbath, to rest on the Sabbath, to do general things of rest there. So you see that Nachmanides does not include moral values inside “You shall be holy”; “And you shall do what is right and good” refers only to moral values. He brings moral values as another example of things the Torah wants but does not command, and instead only gives us some general expectation regarding them. One example is moral commandments; another example is the laws of Sabbath, and so on. These are examples. They are not things also included in “You shall be holy.” What is included in “You shall be holy” is only human values, not moral values. Now the important point is: so why indeed is it not counted? I said earlier that with “You shall be holy” there is an explanation why it is not counted. Why? Because if it were counted, then you would not be a scoundrel within the permission of the Torah; you would be outside the permission of the Torah, because if it were counted then by doing it you would be nullifying a positive commandment. So you are not a scoundrel within the permission of the Torah; you are a scoundrel outside it. But regarding “And you shall do what is right and good,” there is no such issue that we should do things beyond the law. Why? There is no special value in that—it’s not some extra pious enhancement. The Torah expects us to be moral people; that is not some special enhancement. The rationale for why “You shall be holy” is not counted does not work with respect to “And you shall do what is right and good.” This is another example of a Torah expectation that did not enter Jewish law. But it still needs explanation why. Why did the Torah really leave this only as an expectation and not put it into Jewish law? With “You shall be holy,” the explanation is the paradox of the scoundrel, but with the moral values in “And you shall do what is right and good” there is no explanation. So what is the explanation? Why did the Torah really not command this explicitly? Why did it not include it in the count of the commandments? Rabbi Lichtenstein has a long article dealing with this. Maybe you should take a look at it. I don’t know if you can see this too—“Morality and Jewish Law in the Jewish Tradition.” Let me do this—there, good, there. It appeared in De’ot in 1976. Yes, on the Da’at website they bring the articles without footnotes, but they bring the articles from elsewhere, so you can see it there. I think he returns to these principles in greater detail in some article with a strange title called something like “Jewish Law and Ways as Foundations of Morality.” I have no idea what he means there, honestly I don’t understand those words. But that is what his article is called, and I think there too he elaborates on the matter. And the essence of his words is basically based on what Nachmanides we just read said. I’ll just show you—I don’t intend to read it—what Nachmanides said that… one moment, sorry. The gist of his words is that Jewish law does not count “And you shall do what is right and good” because it is impossible to count so many details; this is something hard to define sharply. Every situation behaves a bit differently. This is what Hayuta would have placed into aggadic literature. Meaning it is something that gives you the spirit of the thing, but you cannot state hard-and-fast rules here, because in every situation it works a little differently and you need a kind of intuition. Therefore it is difficult to put it into formal Jewish law, and so they did not count it. And the proof he brings is really this Nachmanides we just read, and indeed that is how Nachmanides sounds. Let’s read once more this… one moment. Let’s read that Nachmanides again. Yes—“this is the way of the Torah to detail and then generalize,” that is the last paragraph I read. What does that mean? After it gives several things that it commands—“you shall not steal,” “you shall not rob,” “you shall not wrong,” etc.—it says generally, “and you shall do what is right and good,” to include all the things inside because it is impossible to state them all explicitly. Or the same thing here—here it is much more explicit in what he said: “And this is a great matter, because it is impossible to mention in the Torah all a person’s conduct with his neighbors and friends and all his business dealings and all the proper ordering of society and states.” It is impossible to mention all these details, and this also changes in every context. So then what? After he mentions many of them, such as several things that did enter the count of the commandments, he says some general thing. Rabbi Lichtenstein says that is basically the argument. Now we need to notice carefully what this means. Rabbi Lichtenstein is basically arguing that all these things are absolutely halakhic obligations. The reason they were not put into Jewish law is simply that they cannot be described precisely. That’s all; it’s a technical difficulty. But in principle, if you are in a certain situation and you do not behave according to what that situation requires, then you have essentially violated a halakhic prohibition. The reason they were not inserted as halakhic prohibitions is only because you cannot put ten thousand commandments into the Torah, or I don’t know, a hundred thousand, however many. To tell you in every situation what to do is technically impossible. But that is only a technical problem. In principle, it has the same status as Jewish law. He repeats this throughout that whole article I brought earlier. And in my eyes, these are things that cannot be said. They cannot be said, first of all because this does not explain why “And you shall do what is right and good” is not counted. Fine, then count it—count “And you shall do what is right and good” in a general way, give it halakhic meaning, and don’t detail all the details because you can’t detail them. Okay, so you leave it to me to decide in each situation. Fine, so write a counted commandment, “And you shall do what is right and good,” and in every situation a person must understand what is required of him. That’s all. Why, if I cannot detail all the specifics, can I not count the general thing? More than that, what about the commandment “Love your fellow as yourself”? Isn’t that also something dependent on details and changing according to nuances and according to circles of closeness? You cannot count all the details, and yet they counted it as one of the commandments. “Love your fellow as yourself”—why did they count that? If you cannot count things that cannot be sharply cut and defined, what about “Love the Lord your God” or “Fear your God”? All these things are also very hard to define in sharp halakhic categories—when yes and when no, in which situation, each person according to his level, and all kinds of things like that—and they still enter them into the count of the commandments. Jewish law is not frightened by commandments that are not sharply defined. Rather, it establishes them as some commandment and leaves it to us, perhaps with this or that hint—aggadic literature if you like—but it gives us the possibility of interpreting in every situation what is required of us. So why not put the title itself in as one of the counted commandments? Rabbi Lichtenstein’s approach does not explain that. Why is “And you shall do what is right and good” not included as a commandment whose interpretation remains context-dependent? I understand why they did not count all the details, but why not count the general rule as a commandment, with the details then as details within the rule? On the contrary, that is much better. After all, you want to tell me that all these details have fully halakhic status, like the commandments we are commanded in. Fine—but there is no command here. Why? Why does the Torah not command it? Then everyone would understand what you had to write a whole article to explain. If the Torah had commanded it, then all of us would understand that it really is a full commandment. It’s just that it is impossible to put all the details in as explicit commandments; rather each person needs to understand in each context what he must do. If he doesn’t understand, then okay, he’s constrained. But in principle he is required to understand what he has to do. Therefore I do not accept this argument. Notice, there is another source that he brings, also a famous source—the Maggid Mishneh in the Laws of Neighbors—which is almost a copy of Nachmanides. In the Laws of Neighbors, the issue is the law of the neighboring boundary. The law of the neighboring boundary is the law that Nachmanides also mentioned, one of the examples brought in Bava Batra in the first chapter; there are other examples too. One example is two brothers dividing an inheritance, say a field of their father. One of them has another field bordering this field. Now they divide this field into two parts, and each one is supposed to get half. Now the owner of the other field asks his brother: give me the half adjacent to my field, what difference does it make to you? These are two equal halves—let’s assume for the sake of the discussion that there is no difference in soil quality and so on—they are equal halves. Give me the half next to my field because then I can work both at once, it is much more convenient for me. And you don’t care; this one benefits and that one loses nothing. What difference does it make to you? Now the Gemara says that the brother is not obligated to agree. Fine, it’s my right; I want a lottery. I’m not willing to give up that half, I want a lottery. Why? Because I feel like it. Fine? So according to the strict law, you are not obligated. But beyond the strict letter of the law, the Gemara says this is the trait of Sodom. It is the trait of Sodom—what difference does it make to you? Give it to him; after all, you lose absolutely nothing. The Gemara says one compels against the trait of Sodom. That is what is called the law of the neighboring boundary. “Neighboring boundary”—the one who sits on the boundary of the field gets the part of the field that borders his own field. Okay? That is the law of the neighboring boundary. This is an example of “And you shall do what is right and good.” But why is there compulsion against the trait of Sodom? One compels regarding the commandment of “And you shall do what is right and good,” no? No—because there is no such commandment. And here you can see already in the Gemara itself—from here the commandment-enumerators derived that in the Gemara itself you already see that this is not a commandment. Because if it were a commandment, then this would not be compulsion against the trait of Sodom; it would be compulsion to obey Jewish law. That is the law—what do you mean? Just as one compels with any law, so too with this one. Why does the Gemara define this as compulsion against the trait of Sodom, “this one benefits and that one loses nothing”? Because the Gemara says that legally you have the right to insist. I have no right to receive the half adjacent to my field; you have the right to demand a lottery. But morally this is intolerable—you lose nothing, so why do you care if I get the half that is more convenient for me? So on that one compels—on the moral issue. What about “And you shall do what is right and good,” from which this is derived? “And you shall do what is right and good” is not a commandment. It is not counted in the count of the commandments. Therefore commandment-enumerators do not count it, in my opinion; almost all commandment-enumerators do not count it. By the way, here the Sefer Mitzvot Katan does count it. You see? The Sefer Mitzvot Katan. Commandment 49: to act beyond the strict letter of the law—which is really completely paradoxical. There is a positive commandment to act beyond the strict letter of the law. Well then now doing it is already a positive commandment; it is no longer beyond the strict letter of the law. So I don’t understand what he wants here. In any case, most commandment-enumerators really do not count it. And this is very well grounded in the Gemara. So here in the Laws of Neighbors, when the law of the neighboring boundary is brought, the Maggid Mishneh says as follows—I marked the passage. It is explained in the halakhic rulings, and he wrote as follows: regarding the matter of the law of the neighboring boundary, our perfect Torah was given for the refinement of human character traits and conduct in the world, as general principles in the statement “You shall be holy,” and the intention is as they of blessed memory said: sanctify yourself in what is permitted to you, so that one should not be immersed in lusts. And similarly it said “And you shall do what is right and good”—you see, he brings both here—“And you shall do what is right and good,” and the intention is that one should conduct himself in good and upright ways with people. Like Nachmanides. And it was not fitting to command all this in details, because the commandments of the Torah apply at all times and in every circumstance and must necessarily be done, but a person’s character traits and conduct change according to the time and the individuals—and the sages of blessed memory wrote some useful details that fall under these principles. Some of them they made into full law, and some of them are lekhatchila, by way of piety, and all of it is from their words. And therefore they said: the words of the beloveds are more precious than the wine of Torah, as it is said: “for your love is better than wine.” The Maggid Mishneh says: when they said “one compels against the trait of Sodom,” they brought this moral matter into Jewish law. I mentioned this when we read the Hazon Ish. But it remained a rabbinic law. Because this is a rabbinic enactment, and through the enactment it entered Jewish law; it was not binding by the strict law. This is really an extra-halakhic matter. The sages decided to obligate it nonetheless. There are things they decided not to compel. They remain outside Jewish law, even rabbinically, and remain only a moral matter. That is what the Maggid Mishneh says. Meaning, he is essentially following Nachmanides; it is almost copied from Nachmanides. And again, the explanation is the same explanation as in Nachmanides—because it is impossible, because it changes according to the individuals and according to the circumstances, and therefore you cannot command it as clear-cut commandments. And once again I ask them: then why not count “And you shall do what is right and good” without setting clear-cut commandments? Establish “And you shall do what is right and good” as a positive commandment, and now each person will understand in each situation what is incumbent upon him, and that will be the definition of “And you shall do what is right and good.” I don’t understand how they explain this—why the Torah does not define a positive commandment of “And you shall do what is right and good” without defining all the details, which really cannot be defined. Therefore my claim is that these explanations are not correct. My claim is that the reason they do not count these two—mainly “And you shall do what is right and good”; I’m not talking right now about the human issue, because there it is paradoxical, you cannot count it because if you counted it then it would no longer be a scoundrel within the permission of the Torah. That I already explained; that is not a problem. But why do they not count “And you shall do what is right and good,” where these are moral commandments, not human ones? So I say: they do not count “And you shall do what is right and good” because the Torah wants to leave it as a moral value that is outside Jewish law. Because by definition Jewish law does not deal with morality. Jewish law deals with religious values. And moral values remain outside Jewish law. Therefore, specifically, the Torah is careful—or Jewish law is careful—not to count “And you shall do what is right and good” in the count of the commandments. Not because it is unnecessary, not because it cannot be defined, not because of all those things. There is simply a different category here. I cannot put it into the count of the commandments because then it would become a religious value. The Torah wants to tell me that it expects me to behave morally. If it entered Jewish law, it would become just another commandment. But the Torah wants to say exactly this: I require you to behave morally just as I require every non-Jew. Don’t think the commandments are the only thing incumbent on you. What is incumbent on you is also to be a mensch, to be a human being. Exactly as every non-Jew must be a human being. And that is what is written in “And you shall do what is right and good.” Therefore it cannot be put into the count of the commandments. According to the picture I described earlier and last time, this question too solves itself. It doesn’t even arise. You do not need all this entanglement of Rabbi Lichtenstein, and Nachmanides, and the Maggid Mishneh, and all the rest… You don’t need it. The question simply does not arise. Because the Torah is not speaking—even when the Torah commands “Do not keep overnight the wages of a hired worker,” and all the examples they bring there, “do not rob,” “do not steal”—it is not talking at all about the moral matters. It is talking about the religious matters. The moral matters belong to the seven Noahide commandments, to the principles of morality that obligate the whole world. Not only Jews. Jewish law deals altogether with the religious matters. And in these particulars there is no religious matter—I meant halakhic matter—but only the moral matter. Therefore “And you shall do what is right and good” is not counted, very simply. The question does not arise, and there is no need for excuses and no need to get tangled up. Everything is fine. It is simply because these are two different, independent categories.