Halakha and Reality – Lesson 1

Table of Contents

• Rashi’s first comment on the Torah and the justification for opening with Genesis
• “To whom He saw fit,” “the Book of the Upright,” and a moral justification for the choice of Israel
• Commandment, command, and the distinction between imperative verses and descriptive verses
• Truth-falsehood claims, declarative statements, and imperative statements
• Maimonides, the eighth principle, and decree as a unifying term
• Negation of obligation versus warning, and the example of “she shall not go out as the slaves go out”
• Jewish law and reality, the naturalistic fallacy, and bridge principles
• The example from Bava Batra 5a: “A person does not repay within the term”
• Questions at the end: obeying the High Court, women’s immersion, and desire for food versus desire for women

Summary

General Overview

The text opens with Rashi’s first comment on the Torah in the name of Rabbi Yitzhak, who assumes that the Torah is primarily about commandments, and therefore apparently should have begun with “This month shall be for you,” and Rashi answers that Genesis is needed in order to justify giving the Land of Israel to Israel in the face of the nations’ claim, because “He declared to His people the power of His works.” The author argues that the formal answer—that the Creator owns the world—is not sufficient on its own, and suggests that the continuing narrative of Genesis also morally justifies the choice of Israel through “the Book of the Upright” and the portrayal of the Patriarchs as upright people. From there he moves to clarifying the concept of command: a commandment is not a utilitarian or evaluative statement but an obligation. On that basis he builds a logical-linguistic distinction between declarative statements and imperative statements, uses Maimonides in the eighth principle to show that a “negation of obligation” is not a warning, and concludes with a thesis about the relationship between Jewish law and reality: Jewish law depends on facts, but is not derived from them alone; rather, it operates through “bridge principles,” which are the essence of the Torah, as illustrated in the Talmudic passage about “a person does not repay within the term” in Bava Batra.

Rashi’s first comment on the Torah and the justification for opening with Genesis

Rabbi Yitzhak states that the Torah should only have begun with “This month shall be for you,” as the first commandment that Israel was commanded. Rashi explains that opening with Genesis is meant to answer the nations of the world, who will say, “You are robbers,” regarding the conquest of the lands of the seven nations, and Israel replies that the entire earth belongs to the Holy One, blessed be He: “He created it and gave it to whom He saw fit,” and by His will He took it from them and gave it to us. The author emphasizes that Rabbi Yitzhak’s question assumes that the Torah is supposed to focus on commandments, and that every part that is not a commandment requires justification, while Rashi’s answer gives justification only for the first “five quarters,” so it still leaves room for additional explanations for the rest of the non-halakhic sections.

“To whom He saw fit,” “the Book of the Upright,” and a moral justification for the choice of Israel

The author argues that Rashi’s answer could have sufficed with just the chapters of creation in order to show that the Holy One, blessed be He, is the owner of the world, so an explanation is needed for why the whole book of Genesis and the beginning of Exodus are included before “This month shall be for you.” He suggests that the expression “to whom He saw fit” hints to the fact that Genesis is called by the Sages “the Book of the Upright,” and the Netziv, in his introduction, explains that it is called this because it is the book of the upright and describes the Patriarchs, who walked in the upright path and even possessed natural uprightness before the giving of the Torah. The author connects this to Rabbi Kook’s pair of concepts, “upright and conquering,” and explains that in this way the narrative is not only a proof of formal power but also a presentation of a moral justification for the land being given to a people founded on pillars of uprightness, so that Rashi’s answer can explain the whole path up to the portion of Bo.

Commandment, command, and the distinction between imperative verses and descriptive verses

The author asks whether a command such as Sabbath observance means conveying information about spiritual or social benefit, and he determines that a commandment is not a description of benefit but a binding demand of “I need to do this.” He illustrates that the verse “Now the man Moses was exceedingly humble, more than any person on the face of the earth” is not a commandment, even though it may teach that humility is positive, because it is written in descriptive form and not in imperative form; if it had said “Be humble,” it would have been a positive commandment. He gives the example of a traffic light in order to distinguish between “it makes sense” or “it’s worthwhile” and obligation, and concludes that the halakhic part of the Torah is distinguished first and foremost by the language of command—do and do not do—whereas moral lessons learned from descriptions are not identical to obeying a command.

Truth-falsehood claims, declarative statements, and imperative statements

The author brings Aristotle, who defines a claim as a sentence to which one can attach a truth value of true or false, and distinguishes between sentences that are not claims, such as questions, and declarative statements that describe facts which can be examined and compared to reality. Opposed to declarative statements are imperative statements, to which true or false cannot be attached, because they do not describe a state of affairs but obligate action or abstention. He illustrates this with the distinction between “According to Israeli law it is forbidden to steal,” which is a declarative statement describing a norm in the law book, and “It is forbidden to steal,” which is a statement that also contains the assumption that the norm is binding on the addressee, and he emphasizes that a command becomes a command only when the norm is relevant and binding on the one who hears it.

Maimonides, the eighth principle, and decree as a unifying term

The author moves to Maimonides in the Book of Commandments and explains that the principles are rules for counting the commandments, most of which deal with sorting and classification rather than the question of whether something is Torah-level or rabbinic. In the eighth principle, Maimonides states that it is not proper to count a “negation of obligation” together with a warning, and defines a warning as part of a command instructing one to do or not to do something. Maimonides explains that Arabic lacks a term that groups together command and warning, and so one of those terms is used in place of the whole, whereas in Hebrew the inclusive term is “decree,” and the Sages call every commandment, whether positive or negative, “the king’s decree.” The author adds that Maimonides’ linguistic discussion shows how a lexical lack can limit one’s grasp of the distinction between positive and negative commandments, and he brings examples of the Pirahã tribe, which counts “one, two, many,” and of the Eskimo concepts for snow, to illustrate how language affects the precision of conceptual distinction.

Negation of obligation versus warning, and the example of “she shall not go out as the slaves go out”

Maimonides defines “negation of obligation” as negating a predicate of a subject without any element of command at all, such as “So-and-so did not eat last night,” and stresses that “there is no scent of command in it.” The author explains that Maimonides’ novelty lies in normative cases that look halakhic but are not commands, such as the verse “she shall not go out as the slaves go out,” which teaches that a Canaanite maidservant does not go free through the loss of extremities as a slave does; this is a negation of a law, not a warning. Maimonides argues that the author of Halakhot Gedolot counted this as a commandment by mistake, because the verse does not obligate or prohibit an action but defines where a law applies and where it does not apply, and therefore it is not counted among the commandments even though it appears on the halakhic plane.

Jewish law and reality, the naturalistic fallacy, and bridge principles

The author links the distinction between halakhic and non-halakhic to the distinction between declarative statements about reality and imperative statements about Jewish law, and presents this as an introduction to a series on Jewish law and reality. He states that Jewish law is connected to facts because a halakhic decisor or religious court must determine reality before applying a law, but Jewish law is not derived from facts alone because one cannot derive an “ought” from an “is,” according to David Hume’s distinction between ought and is, and he calls this the naturalistic fallacy. He explains that deriving normative judgments from facts requires a “bridge principle,” such as the assumption that “everything with many colors is beautiful” in order to move from “there are many colors” to “this is beautiful,” and he presents the Torah as the system of bridge principles that connects facts to directives.

The example from Bava Batra 5a: “A person does not repay within the term”

The author brings the Talmudic passage in Bava Batra 5a in the laws of plaintiff and defendant, where a borrower who claims he repaid within the term is not believed because of the presumption that “a person does not repay within the term.” He argues that if reality changes and people do in fact repay within the term for cultural or economic reasons, it would be unthinkable to rule against reality just because there is an “explicit Talmudic passage,” and therefore the passage should not be discarded but rather its novelty should be understood. He defines the Torah’s innovation not as the psychological fact about people’s tendencies, but as the bridge principle that allows one to use a factual presumption in order to shift the burden of proof and transfer the obligation of proof to the defendant even though he is in possession, so that the facts and the conclusions can change while the bridge principle remains. He concludes that the “Torah” is neither the factual assumptions nor the conclusions that depend on them, but the principles that connect reality to norm, and adds that this logic also applies in morality, where principles remain in place but their application changes according to what causes a person pleasure or suffering.

Questions at the end: obeying the High Court, women’s immersion, and desire for food versus desire for women

In the question section, it was argued that there is no justification for Yuli Edelstein’s refusal with respect to the High Court’s ruling, and it was said that even if there is criticism of the intervention itself or of the interpretation of the law, once there is a binding ruling one must obey it, while distinguishing between a dispute over the substance of the law and rebellion against authority. In the discussion, the possibility of conscientious objection was raised only when a person is willing to bear the consequences and when it is not merely self-interest, and it was said that in the case under discussion the intervention was required on the grounds of separation of powers between the government and the Knesset. Later, a question was asked about women’s immersion during the coronavirus period, and it was said that a letter had been received from Rabbi Amsalem proposing immersion in drawn water in a pressing situation even without forty se’ah, and the author agreed in principle but recommended presenting it as “Rabbi Ilai’s ruling” for damage minimization rather than as a blanket permit. Finally, a question was asked why Haredi society is stricter about not postponing gratification in the area of forbidden looking than it is about obesity, and the answer given was that the stringency stems from the halakhic prohibition itself and not from a general principle of non-postponement of gratification, while emphasizing the principle of legality that “as long as it is not forbidden, it is permitted,” and distinguishing between the reasons for commandments and halakhic determinations.

[Rabbi Michael Abraham] So I’m talking about Jewish law and reality, and I want to start with Rashi’s very first comment on the Torah. Rabbi Yitzchak said: The Torah should have begun only from “This month shall be for you,” which is the first commandment that Israel was commanded. So why did it begin with Genesis? Because of “He declared to His people the power of His works, in order to give them the inheritance of nations.” For if the nations of the world say to Israel, “You are robbers, because you conquered the lands of the seven nations,” they say to them: “The whole earth belongs to the Holy One, blessed be He. He created it and gave it to whomever was right in His eyes. By His will He gave it to them, and by His will He took it from them and gave it to us.”

So the question is: why, really, didn’t they begin with “This month shall be for you, the beginning of months”? Why begin with the book of Genesis? There’s roughly a chumash and a quarter that are unnecessary, and the answer is that it was necessary to tell the nations of the world—or really, to tell His people—the justification for why the Holy One, blessed be He, takes the Land of Israel and gives it to us, because He is the owner. He created the world, and whoever owns something has the right to do with what he created whatever he wants.

I’m using this only as a didactic opening for our topic. It’s not really the true point of departure, but I want to shed a bit of light on Rabbi Yitzchak’s question. Many times with things like this we rush quickly to the answer—let’s say, an answer that to my mind is rather questionable—but the question itself is an interesting one. Because Rabbi Yitzchak is basically assuming that if not for some special reason, the Torah should have started with the passage of “This month.” Why? So Rashi says here—and I’m emphasizing it—that this is “the first commandment that Israel was commanded.” In other words, the assumption is that the Torah was supposed to focus on commandments, and every part of the Torah that is not a commandment requires justification, requires explanation.

So in the question we already see some conception according to which the essence of the Torah—and by the way, even the root of the word Torah comes from instruction—the essence of Torah is the commandments, the halakhic part, the legal verses within the Torah. And the whole story around it—I assume the point is, well, what do I mean “I assume”? The question revolves around Genesis up until the passage of “This month,” up until the portion of Bo. But of course there are non-halakhic sections in the Torah after that too. So in the question we see that every section that is not a halakhic section needs justification. The answer offers an answer only for the first chumash and a quarter, meaning the other non-halakhic sections would need other explanations. But the question itself reveals to us the principle, and for us here that’s the important principle: basically, the commandments are the main substance of the Torah, and everything else is something that needs justification.

I’ll just say parenthetically, to complete the picture, that this question—actually, the answer, sorry, that Rashi proposes—doesn’t really explain not only the stories after the portion of Bo, but also everything that happens in Genesis and the beginning of Exodus after the creation story. After all, the answer basically says that the Holy One, blessed be He, had to show that He is the owner, and then He can give the land to whomever He wants. To show that the Holy One, blessed be He, is the owner, the first chapter of Genesis is enough. If you want, also the second chapter, fine, health and happiness. But that’s it. What about the rest of Genesis and the beginning of Exodus?

It seems to me—and again, I’m just saying this parenthetically to complete the discussion of this Rashi—it seems to me, I hope I’m right, I’m not sure, but this could be a good answer. I’m just not sure Rashi actually meant this. It says—and I’m emphasizing the phrase—“He created it and gave it to whomever was right in His eyes.” What does “whomever was right in His eyes” mean? The connotation that comes up here is that Genesis is called by the Sages “the Book of the Upright.” And the Netziv, in the introduction to his commentary, says it’s called the Book of the Upright because it is the book of upright people. Meaning: this book describes the Patriarchs, who were upright, meaning they followed the straight path.

Some attach this—and I think the Netziv himself also talks about this—to the fact that they had a kind of natural uprightness. Meaning, not only did they follow the rules of uprightness, they actually did so even before the giving of the Torah, before they were even given the rules of uprightness. Meaning they had some inner uprightness that they followed. In that sense, I think this is the pair of concepts of Rabbi Kook—what he calls upright and self-conquering. “Self-conquering” is someone who conquers his inclination and does the right thing, and “upright” is someone whose inclination itself leads him to do the right thing. In that sense, the Patriarchs were upright, and Genesis, which describes them, is called the Book of the Upright.

And so I think Rashi’s answer really does explain everything up until the portion of Bo, because that section—the narrative part of the Torah—has to give us an answer not only for God’s right to do what He wants with the Torah—formally, with the world, sorry. Formally, He created the world and He can do with it whatever He wants. But the fact that you can—that you have power—still doesn’t mean it’s justified. Or to put it differently: even if it is legally justified, that still doesn’t mean it is morally justified. And therefore, in order to justify it also on the moral plane, the Holy One, blessed be He, wanted to show why He gives it to the people of Israel, and the claim is that this is a people founded on pillars of uprightness. Let’s be optimistic—at least the Patriarchs were called upright—and because of that the land was promised to them and their descendants because of their uprightness. So Rashi’s answer gives a response to all of Genesis, not just the first two chapters. The first two chapters say that the Holy One, blessed be He, is the owner, and the rest of the chapters come to show why that owner chose to give the land specifically to this people: because the assumption is that it is given to those who walk in upright ways, or to upright people.

In any case, for our purposes, what matters here is that we learn from this Rashi that the essence of the Torah is the commandments. What distinguishes the commandments from the other parts of the Torah? First of all, even in what we might call the grammatical or logical-grammatical sense—what distinguishes them? Here I want to get a bit into the meaning of a commandment, or a command. What exactly is this thing? Or what is the relation between it and, say—I’ll formulate it this way:

When the Torah tells us, “Six days shall you labor, and on the seventh day you shall rest,” is it really trying to say that doing labor for six days is good, and resting on the seventh day is bad—sorry, and that resting on the seventh day is also good, and not resting on the seventh day is bad? Meaning, is it really just conveying information to us saying that if you rest, there is some spiritual or social benefit to it, however you want to interpret it, and if you don’t rest, then some kind of harm is caused? Is that the essence of the concept of command? Pretty clearly not. Apropos, these days we are very split between legal formalism and what is actually proper to do. That tension, it seems to me, is really accompanying our times right now. And here I think this really is the point at the center of the discussion.

Because to say that Sabbath observance is beneficial—and I say beneficial not in an interested, self-serving sense, but beneficial in a value sense, spiritually and ethically beneficial—that’s not a commandment. That is not the meaning of a commandment. A commandment does not come to tell me that observing the Sabbath is useful and good spiritually and ethically. Maybe it says that too; there is room to discuss that. But first and foremost, what it says is that I need to do it. That is the concept of a commandment. The basic meaning of a commandment is command. And therefore, if the Torah had said, look, whoever rests on the Sabbath repairs the worlds and attains this or that spiritual benefit, that would not have turned the thing into a commandment.

It says, “Now the man Moses was very humble, more than any person on the face of the earth.” Those verses are not commanding verses, even though we can understand from them that humility is something positive. As far as I know, nobody counts that verse as a commandment to be humble. Why not? Because first of all, on the grammatical level, that verse is not written in what, in grammatical contexts, is called the imperative tense. It is written in the tense of description. In this case it’s some kind of present, but it’s not a command. It describes something; it doesn’t command anything. If the verse had said, “Be humble,” that would be a positive commandment to be humble. But if the verse gives me the message that humility is something positive, that does not turn it into a command.

Maybe I’ll give an example from a plain legal context. Suppose there were traffic lights on the road. Green means go and red means stop—like the old comedy sketch, “On green you drive.” Now if the Knesset had not legislated the law that it is forbidden to go through a red light—I assume that’s a Knesset law, or maybe secondary legislation, but there is a law that forbids crossing on red. If that law didn’t exist, obviously there would still be logic in not crossing on red but only on green, because it’s dangerous. But the fact that it’s dangerous still doesn’t mean I’m obligated to do that. It only means that it makes sense to do it, that it is beneficial to do it, or that it’s good to do it. But it doesn’t mean that I must.

A command, in essence—the essence of a command—means something that tells me I must do something, or I am forbidden to do something, in the case of a negative command. Therefore, we can say—and now it’s already a matter of interpretation—that perhaps behind every command there is an assumption that what is demanded of me is something good in one sense or another, but that does not exhaust the essence of the command. That’s only an underlying assumption, if that. There are those who do not even assume that, and say there are no reasons for the commandments, that they are all royal decrees. So they don’t even assume that the commandments are something good in any sense. But still, from their point of view, it is a commandment. Why? Because on one thing everyone agrees—both those who think there are reasons for the commandments and those who think there are no reasons for the commandments—that the command obligates us to do it.

By contrast, the fact that something is good only means that it’s worthwhile doing, but there is no command. As long as the law forbidding crossing on red has not been enacted, nobody can come to me with a complaint if I crossed on red. They can say I’m stupid, they can say I’m wicked, they can say I’m endangering life, they can say anything—but they cannot say that I did something forbidden. Because as long as there is no command that commanded me not to cross, or to cross only on green or not to cross on red, there is no obligation. There is only a rationale for doing so—moral rationale, practical rationale—but there is no commandment.

So in short, the concept of command, first of all in the linguistic sense, is a verse that has to be written in the imperative form. Verses that are written as descriptions are not commandments. So if I return to Rashi, what distinguishes the halakhic part of the Torah from the non-halakhic part of the Torah is first of all the grammatical form in which the verse is written. If the verse is written in the imperative, then it is a commandment, either positive or negative. But if the verse describes something, then even though many moral or other lessons can be drawn from those descriptions, drawing lessons is not obeying a command. Those are two different things. So in short, the halakhic part of the Torah is the commands, the commandments.

What this really means—maybe we can even place it in a broader perspective—Aristotle defined a proposition as a sentence to which a truth value can be attached, either true or false. A sentence is a collection of words that has meaning. The basic unit of meaning is a sentence. Because a word has reference; it doesn’t have meaning in the full sense—it points to something. But a sentence claims something or says something. There are certain kinds of sentences about which I cannot say whether they are true or false. If I ask someone, “What time is it?” that is a sentence, it has meaning, it’s a question. I’m asking you what time it is. Nobody can say that this sentence is true or false. Why? Because it doesn’t make a claim. Only if you claim something can one say that the claim is false or true.

So the sentences Aristotle calls propositions are those sentences that can be related to in terms of truth or falsity. For example: it is dark outside now; there is a table in front of me; a lamp is lit here; or the lamp is not lit. That too is a proposition—in this case a false proposition, because it is lit—but it is a proposition because it asserts something. Once it asserts something, we can discuss whether it is true or false. A sentence that asserts nothing cannot be assigned a value, neither truth nor falsity. So the definition that distinguishes between a sentence and a proposition is that a proposition is a sentence to which a truth value can be assigned—true or false.

The standard sentences, the ordinary sentences, are declarative sentences, as distinct from imperative sentences. Here I return to the distinction I made at the beginning regarding commandments. Declarative sentences are sentences that declare something, describe some thing, tell me something. They describe what I said earlier: the table before me is white. Okay, that’s a declarative sentence. That sentence declares some fact, places some fact before me. Now I can discuss whether that fact is correct or incorrect, and therefore this declarative sentence is essentially a proposition.

The second type of sentence usually set in contrast to a declarative sentence is an imperative sentence. An imperative sentence says: do such-and-such, or don’t do such-and-such. An imperative sentence cannot be assigned a truth value of true or false. When someone tells me, “You must observe the Sabbath,” truth and falsity are simply not relevant here. Why? Because with a declarative sentence, when I want to check whether it is true or false, what I basically do is some kind of comparison. I look at the content of the sentence and compare it to the state of affairs in the world that the sentence describes.

So if I say that the table before me is white, in order to know whether the sentence is true or false—the proposition is true or false—I need to look and see whether this table is white. If it is white, then the proposition is true, and if it is some other color, then the proposition is false. So in fact determining truth or falsity regarding a proposition is done by comparison. Some philosophers would get angry at what I’m saying now—it’s a bit simplistic—but for our needs this will suffice. With a command, I have no way to test it. How can I test whether the command “Do not murder,” or the command “Remember the Sabbath day to sanctify it,” is true? In what sense is it true? It doesn’t describe anything, so I have nothing to look at in order to check whether it is true or false. There is no comparison—no act of comparison that I can perform in order to decide whether this thing is true or false. Therefore an imperative sentence is not a proposition, in the terminology I used earlier, because it cannot be assigned a truth value of true or false.

If we take a legal example: suppose I say, “It is forbidden to steal.” Now I’m not speaking in a religious context; say in a legal context. I say it is forbidden to steal. Well, it depends. If I mean to say that stealing is forbidden in some ethical sense, I don’t really have a simple way to judge whether that is true or false—at least not in the straightforward sense; in a moment I’ll qualify that a bit. If I claim, “According to Israeli law it is forbidden to steal,” that is not an imperative sentence but a declarative sentence. It is a sentence describing some item from Israeli law. In principle you can open the law book and check: if there is a law there that forbids stealing, then that proposition is true, and if there is no such law, then the proposition is false. So the proposition “The law book says that it is forbidden to steal,” or “According to Israeli law it is forbidden to steal,” is not a command but a declaration. It merely describes what is in the law book. In itself it still does not command me to do anything—unless of course I feel bound by what is written in the law book. But in itself it is merely a sentence that describes some item from the law book.

Therefore, this sentence is basically a declarative sentence, a descriptive sentence, a proposition. When I say, “It is forbidden to steal”—not that the law book says it is forbidden to steal, or that under Israeli law it is forbidden to steal. When I tell you, “It is forbidden to steal,” I am not speaking right now about a legal prohibition—not necessarily a halakhic prohibition either; the logic is the same. What I’ve told you is not only the proposition that the Israeli law book contains a prohibition on stealing. I said that too, but not only that. I also said something more: that the Israeli law book obligates you. Because if I say to some Australian fellow that the Israeli law book says it is forbidden to steal, he says okay, nice to meet you, that doesn’t obligate him—he’s not an Israeli citizen. Israeli law obligates Israeli citizens. Therefore I cannot say to an Australian citizen the legal statement “It is forbidden to steal,” unless I’m talking about Australian law. But if I mean forbidden under Israeli law, then it’s irrelevant. All I can do is give him the declarative sentence, the description that Israeli law contains a prohibition on stealing.

Meaning, when someone says to me as an Israeli citizen, “It is forbidden to steal,” two things are being said here. First, a fact or factual claim: that the law book says stealing is forbidden. Second, there is some assumption hidden behind this sentence, namely that what is written in the law book obligates you. And therefore without the second part, it isn’t a command. The first part is descriptive; it describes the existence of a norm, but it is still description. Once it turns that norm into a norm that is relevant to me, it becomes a command. And that is basically the essence of a command.

Now I want us to look for a moment at—I’m not going to address the chat in the middle because I simply can’t while speaking. I’d have to stop speaking and it’s not efficient. You can write there if you want, but we’ll talk about it after the class, whoever wants. So please forgive me for not addressing the chat.

Okay, I’m going to do some sharing again, and I’m moving into Maimonides’ eighth root, a very interesting root. I’ll remind those who don’t know: Maimonides, at the beginning of his Book of Commandments, prefaced the book with fourteen roots, and those roots are rules that determine exactly how commandments are counted, what gets included, what doesn’t, and so on. The roots are of various kinds. There are roots that define certain commandments as rabbinic commandments, and therefore they cannot be counted. Those are roots that depend on the authority of the commandment—meaning, a commandment isn’t counted because its authority is not Torah-level but only rabbinic. But most of the roots do not deal with the authority of the commandment, but with questions of classification and categorization. For example, if there are many details—like the four species—you don’t count that as four commandments but as one. Not because there isn’t a Torah-level obligation to take an etrog; obviously there is. So that root is not based on the authority of the commandment but on classification. If you have four details that combine into one commandment, it is counted as one commandment and not four, and so on.

In the eighth root there is a root which, within this classification between roots of authority and classificatory roots, is not completely clear where it belongs. It seems to me it belongs more on the side of roots of authority. But let’s read.

The eighth root: “It is not proper to count the negation of obligation together with a prohibition.” That’s the title of the root. There are things called “negation of obligation,” certain verses that Maimonides describes as negations of obligation, and it is incorrect to count them among the negative commandments. “Prohibitions” means negative commandments; a negation of obligation is not a prohibition. You cannot include it in the count of negative commandments.

Now Maimonides begins to describe what exactly a negation of obligation is. He says like this: Know that a prohibition is one of the two parts of a command. For you may command one who is commanded to do something or not to do it, as when you command him to eat and say to him “Eat,” or command him to keep away from eating and say to him “Do not eat.”

So a command has two parts, basically—in our language, positive commandments and negative commandments. You can command someone to do something or command him to refrain from doing something, to keep away from doing something. By the way, this is of course only a schematic description. Anyone who has been in the classes knows we’ve discussed this more than once: there are positive commandments that command refraining, and there are negative commandments that command action. This distinction between commanding refraining and commanding action does not overlap with the distinction between negative commandment and positive commandment. There is no overlap between the two things, but right now I’m ignoring that issue.

For example, there is a positive commandment to rest on the Sabbath. That commandment tells me to refrain, not to do. It tells me don’t do labor, but it says this in the language of a positive commandment: rest on the Sabbath. There is also “do not do any labor,” which is a negative commandment, but “rest on the Sabbath” is a positive commandment, and in the content of the commandment it is abstention—meaning, not to do some action. There are also negative commandments such as “Do not stand idly by your neighbor’s blood”—that is a negative commandment, but what it requires of me is to perform an act of rescue. When I see my friend drowning or in danger, I need to do something in order to save him. So this is a negative commandment that should seemingly command me not to do something, but no—the negative commandment actually instructs me to do something. Therefore the distinction between negative and positive does not overlap with the distinction between a command to act and a command to refrain from acting. In any case, Maimonides here intends only a schematic description. Maimonides of course was perfectly aware of this, so here it’s only schematic.

I continue. “And in the Arabic language there is no term that includes these two matters together.” Now this is a very interesting linguistic introduction. “And the scholars of logic have already mentioned this, and said as follows: As for command and prohibition, there is no term for them in the Arabic language that gathers them together.” That is, that brings them under one roof. “And we had to call both by the name of one of them, namely ‘command.’” In other words, there are positive commandments and negative commandments. In principle, “commandment” properly refers only to positive commandments. One commands me—that is, one says do something. A negative commandment isn’t really rightfully called a commandment; it’s something else, a prohibition if you like. But in Arabic—and remember, this work was originally written in Arabic; what we are reading is only a translation—there is no word in Arabic that gathers positive and negative commandments under one roof. There is no word like “decree,” say. Maimonides says it isn’t accurate, because “command” is a borrowed usage. In its true meaning, command applies to positive commandments. “Negative commandment” is not quite correct. And since there is no word in Arabic—soon we’ll get to Hebrew, but there is no word in Arabic that joins these two things—therefore they commonly call them positive commandments and negative commandments, “and we had to call both by the name of one of them, namely command,” as Maimonides says. “It has already become clear to you that prohibition is of the matter of command.” Maimonides says: it’s true there is no word that joins these two kinds together, but it is clear to us all that they are two species of the same genus. There is something shared by positive and negative commandments. He does not say what, but it is clear to us that prohibition is of the matter of command. It is not quite right to call it command, but it is not entirely alien either; it is no accident that we use the term command to describe prohibitions as well.

“And the well-known word in Arabic assigned to prohibition is the word ‘la.’” “La” here is not Hebrew “lo,” yes? “And this matter itself is undoubtedly found in every language, namely that one commands the commanded person to do a thing or not to do it.” So basically in every language there is some way of commanding one to do something and commanding one not to do something, but not in every language is there a shared term for both. Therefore one often uses a borrowed term like “commandment.”

“If so,” I continue reading, “it is clear that positive commandments and negative commandments are both full command, things that He commanded us to do and things from which He warned us from doing.” Again, He didn’t command us not to do them, but warned us against doing them. “And the name of the command to do them is positive commandment, and the name of that from which one is warned is negative commandment.”

Now notice: I remind you that this entire discussion is a translation from Arabic. When we read it in Hebrew, it sounds very strange; the translation here misses the point. Because when we read it in Hebrew, we don’t understand what he wants. You tell me that in Arabic there is no shared term, but in Hebrew there is—so why in Hebrew too are you calling them positive commandments and negative commandments? Use the shared term. After all, you’re telling me that “command” applies only to positive commandments, and in Arabic they borrowed it also for negative commandments. But in Hebrew you’re saying there is a concept—he hasn’t yet said what it is—but there is a shared concept. So why here do you use “positive commandments” and “negative commandments”? The answer is that if Maimonides had written this in Hebrew, it would not have been written this way. This is simply the translation. It was written in Arabic, and what is written there is positive commandments and those from which one is warned are negative commandments, because in Arabic you have to call them both “commandments.”

And now he comes to Hebrew. “And the term that includes them together in the Hebrew language is decree.” Yes—royal decrees. “And likewise the Sages called every commandment, whether positive or negative, a royal decree.” Meaning, Maimonides says that the Hebrew word that joins positive and negative commandments is gezeirah, decree. Therefore they really should have been called positive decrees and negative decrees. The terminology “positive commandments” and “negative commandments” is really a translation from Arabic. In Hebrew it is not correct to use this terminology, because the term “commandment” really belongs only to positive commandments and not to negative ones.

Now here I want to note something. It’s a very interesting point on the linguistic-philosophical level. A rather amateur linguist but very famous one named Whorf pointed this out, and afterward there were many discussions of the matter. Very often, when we do not have suitable terminology in a language, that imposes limits on our thinking as well. The example I’ve already given—also in the Petah Tikva class, I think more than once—is that I once read an article, in Nature or Science, I no longer remember, about sociologists or anthropologists who went to study a tribe in the forests of Brazil called the Pirahã tribe—I’m spelling it as it appears in Hebrew; I don’t remember exactly how it is in English.

That tribe belongs to a group of tribes around the world—there are other places where this exists—whose counting system is divided into three. In English it’s called a one-two-many system. That is, their counting system contains three elements: one, two, and many. What does one, two, and many mean? It means that if you show them five stones and ask how many stones there are, they say “many.” If you show them fifteen—many. Five hundred—many. For one or two they have separate words.

Now that article described in a very fascinating way—even though there were several conclusions there that I didn’t agree with, at least based on what they described—but it really was a fascinating description of the process they went through there. They started asking the people there all kinds of questions that to us seem really stupid. When you compare, say, three and one, and ask this tribesman where there is more, then of course he points to three, because that is many and that is one. Many is more than one. But when you ask him where there is more, three or four, he does not know how to answer. He doesn’t know what there is more of. This is many and that is many.

Now what is interesting, as far as I remember, is that if you place before him, say, three versus a hundred, then he does know how to answer. Meaning, he understands that there is such a concept as “more” even within this general concept called many. He understands that under “many”—under the enormous umbrella, yes—under that “many” there are all sorts of quantities, and there is more and less even under that concept. But his resolution is limited because of the words in the language. Meaning, he has the understanding—the basic understanding. He understands what “more” means even when we go beyond one and two. But he cannot answer the question of which is more between three and four, because he doesn’t have two words in the language to say that this is three and this is four.

And indeed, after they quickly taught them the next numerals there—three, four, five, six—they immediately succeeded in answering which is more, three or four, five or six, no problem, because the basic ability of course was there. What limited them was the lack of linguistic ability. In other words, their language didn’t enable them to make those fine distinctions. There were all sorts of claims there about what comes first, thought or language. I think it’s pretty clear that it goes back and forth, each influences the other. There the conclusions seemed to me a bit simplistic. But in principle it is clear that there is also an effect of language on thought, and not only the other way around.

The example always given in this context is the number of terms in Eskimo languages for snow. We may see two things like that and for us it’s just snow and snow, but the Eskimo would probably look at us as people who are simply blind: what, you don’t see that these are two different things? This is snow and this is slush. Meaning, it doesn’t look the same to him at all. And we don’t have words in the language, and so it is difficult for us as well to distinguish between those two concepts.

Why am I giving this introduction? Because let’s return for a moment to the distinction Maimonides makes here between positive and negative commandments. Positive and negative commandments have what Maimonides calls an ambivalent relation. On the one hand, they are not the same thing. It is not correct to call a negative commandment a “commandment”; it is only a borrowed use of the term commandment. On the other hand, Maimonides says—and he says this in the same sentence—they have something in common. There is something of the matter of command also in negative commandments.

Now in languages where there is no distinction—where there is no word that describes positive and negative commandments differently—then one of two things happens. If you understand that they have something in common, then you attach a borrowed word to them, and you call negative commandments also “commandments,” and you lose the ability to understand that these are two different things. You don’t understand at all, at first, what Maimonides is writing here, that it’s not the same thing. What do you mean it’s not the same thing? They are commandments. There is a commandment to observe the Sabbath, there is a commandment to honor parents, and there is a commandment not to eat pork. True, they are different commandments with different content, but the commanding dimension in them is the same thing, what’s the difference?

And I think most people among us, if you ask them, that’s the initial conception. The initial conception is that it’s basically the same thing. There is no principled, logical, linguistic difference between positive and negative commandments any more than there is between two different positive commandments that command different content. There is nothing essential about commanding no as opposed to commanding yes. Especially if we remember that there are negative commandments that can command me to act. Meaning, it’s not even a difference in the form of execution or fulfillment.

And therefore I’m saying that if we have this understanding—this tension—that on the one hand there is something shared by positive and negative commandments, but on the other hand they are not the same thing, they are two species under one genus. That’s usually how things are classified: the world is classified into genera, and under each genus there are various species, and so on. So we can say that positive and negative commandments are two species under one genus. The genus is decree, and the species are positive commandment and negative prohibition. These are two species under the genus decree.

Now this structure is a complete structure. Why? Because it describes both the fact that both fall under the same genus—there is a connection between them—but also the fact that they are two different species under the same genus. It’s not the same species. Meaning there are also differences between them. Now linguistic expressions can make it hard for us to grasp one or the other of these two aspects. Either we won’t grasp that there is any difference between the two things at all, or we won’t grasp that there is a connection between the two things. Maybe they are two completely different things. Someone could look at them and say, what’s the connection? Here they command you to do something, here they tell you not to do something, or prevent you from doing something. What is shared between those two things at all?

And the linguistic expressions—the linguistic expressions therefore—and Maimonides takes the trouble here to give some kind of introduction because he understands there is a linguistic-logical confusion here, and the limits of language often project onto an inability to grasp the essence that the language describes. We’ll soon see how he applies this in the root. But for that reason he devotes this fairly long paragraph to giving this linguistic introduction. Why is it important? Because Maimonides really understands that there is a subtle point here, and it is subtle in both directions. It is subtle also in the sense that there is, after all, something shared by positive commandments and negative commandments—they are not totally alien to one another—and on the other hand it is not exactly the same thing. There are differences too. It is not exactly the same thing to tell a person to do and to tell a person not to do.

I’ll just give you an example from modern legal systems—not only modern ones, but mainly modern. In principle there are no positive commandments. There are only negative commandments. Since a modern legal system in a democratic state at least is a system that does not tell you what to do; it only tells you what to avoid: don’t harm someone else. Of course, practically, as I said earlier, there certainly are legal commands in the Israeli legal system, for example. There is a command to serve in the army; there is a command to pay taxes; those seem to be positive commandments. But on the conceptual level they are really negative commandments. There is punishment for someone who does not pay taxes or does not serve in the army. There are no positive commandments; the legislator does not give reward to one who fulfills these things. It only has practical significance for punishment of one who does not fulfill them. Therefore in the essential sense, in law there are really no positive commandments; it is all negative commandments. Only some negative commandments expect me to perform something, like in Jewish law, and some negative commandments expect me to refrain from performing something. But both are two kinds of negative commandments. Because basically the essential aspect in them is the negative aspect: what happens if you do not do it? Then you are punished. The fact that you did do it—fine, you won’t get a prize for that. There is no positive commandment here.

Here’s an example: if a person lived in a world where there was only law, with no halakhic context at all, I can imagine a person who simply would not understand what a positive commandment is. He would understand only negative commandments. Again, negative commandments including those that tell you to do something, but in the sense that if you do not do it, you will be punished. But he would not understand the essential concept of a positive commandment. By the way, I think lawyers—I’ve spoken to several, incidentally—when I speak with them about this matter, I think they don’t really understand what a positive commandment is. They really identify a positive commandment with actual action. In Jewish law it is not like that, and the essence of a positive commandment has nothing to do with actual action versus refraining from action. And I think this mistake stems precisely from the fact that in their world there is no such thing. All there is are only negative commandments, some of which tell you to do, like taxes and army service, and some of which tell you not to do, like not going through a red light.

So linguistic limitations often dictate some lack of understanding of the contents that language describes. And now that is basically what was important for our purposes, but I’ll continue a bit more just so you can see what Maimonides does with it.

So now I’m reading just a little from the next paragraph. “However, negation of obligation is another matter.” Remember, the topic of the root is that negation of obligation is not counted among the commandments. “Negation of obligation is another matter, and that is when you negate a predicate of a subject, and it has nothing at all of the matter of command.” Meaning, what distinguishes negation of obligation? That it has no connection to command.

Now notice—command, the text was written in Arabic. It’s very important to be aware of that, because when he says “it has nothing of the matter of command,” a correct translator really should have translated here “it has nothing of the matter of decree,” not “command.” Since he is really speaking about negative commandments. And what he wants to say is that negation of obligation is not a negative commandment. But how does he say that in Arabic? In Arabic there is no word for it, so he says, “it has nothing at all of the matter of command.” The correct Hebrew translation should have been “it has nothing at all of the matter of decree,” or “of the matter of prohibition,” if you like.

“As when you say: so-and-so did not eat last night; so-and-so did not drink wine; Reuven is not Shimon’s father; and the like. All these are negation of obligation; there is not a trace of command in them.” What does that mean? If I say, so-and-so did not eat dinner last night, then I said “not.” Is that “not” a command? No, it negates. You negate a predicate of a subject. So-and-so did not eat dinner. Okay? So basically, in the language I started with—and here I’m closing the circle—this is a declarative sentence, not an imperative sentence. And if so, it does not belong to the world of commandments. You cannot count such a verse or sentence as a commandment—not as a positive commandment, obviously, but also not as a negative commandment, because the “not” is not a prohibitive “do not.” It simply comes to negate a predicate of a subject. That’s all. It is not descriptive? No—it is “not” in declaration, not “not” in command. “All these are negation of obligation; there is not a trace of command in them.”

Now that is of course trivial. It’s trivial because what exactly would we expect to count if it says so-and-so did not eat last night? What would you expect to count among the commandments? Suppose I were not alert to Maimonides’ distinction between negation of obligation and prohibition—how could I interpret such a thing as a prohibition? What does “so-and-so did not eat last night” mean? It describes something. No one would ever think to count that among the commandments. Maimonides means to say—he continues here with more linguistic introductions, about the relation between command and future tense. He claims that in every language command is expressed in the language of the future. I’m not sure; I’m not proficient enough in languages. But command and future are similar grammatical forms.

But here, let’s just take one example briefly. “And this escaped our predecessors,” he means the Behag, “to the point that he counted ‘She shall not go out as the male slaves go out,’ and he did not know that this is negation, not prohibition.” Now “She shall not go out as the male slaves go out” is not already a sentence like “Reuven did not eat dinner last night,” right? Why not? Because “Reuven did not eat dinner last night” is the description of a fact. It doesn’t matter whether it’s a positive fact or a negative fact, but facts do not enter the count of commandments, right? Because they are declarative sentences and not imperative sentences. That’s what I discussed at the beginning.

Maimonides made all these introductions in order to get to this sentence. What do we do with a verse that says, “She shall not go out as the male slaves go out”? It is speaking about a Canaanite maidservant, who if the master damages one of her limbs, she does not go free, unlike a male slave. So Maimonides says such a thing is negation of obligation and not prohibition, and therefore it is not counted among the commandments. Here it is no longer trivial. “So-and-so did not eat dinner last night” is trivial—who would ever think to count that? But this sentence is a sentence connected to Jewish law. Basically it tells me that there is no emancipation through injury to limbs in the case of a Canaanite maidservant. So Maimonides’ claim is that this is negation of obligation and not prohibition, and therefore still it is not counted.

I won’t read it inside; I’ll just explain orally. What Maimonides is basically saying is that “She shall not go out as the male slaves go out” is not commanding you anything. What it tells you is that the law that exists for a male slave does not exist for a maidservant. That’s all. For a slave, when you instruct regarding emancipation through injury to limbs—if you injured him in some major limb, then he goes free—that’s a commandment: you have to set him free if you injured him. With a maidservant… with a maidservant they’re not telling you—there is no prohibition on setting her free, no obligation to set her free; they are saying that the law of emancipation through injury to limbs does not apply to her. It is the negation of a certain law in a certain circumstantial context. Meaning, that law does not exist regarding a maidservant. Therefore this thing commands nothing. There is nothing of command in it, and Maimonides calls it negation of obligation, and this thing is not counted among the commandments. You will not find in Maimonides a commandment stating that a Canaanite maidservant does not go free through injury to limbs. By the way, in the Behag it is counted among the commandments. Therefore Maimonides says this escaped our predecessors—the Behag—who did count this as a commandment. And Maimonides says that is a mistake: this thing is negation of obligation and not prohibition.

What distinguishes this sentence from the sentence “So-and-so did not eat dinner last night”? The difference is that neither commands me anything. Both are negation of obligation, but there is still a difference. The claim that emancipation through injury to limbs does not apply to a maidservant is a claim that belongs to the normative plane. It is a claim whose subject matter is Jewish law. “So-and-so did not eat dinner last night” is a claim about life, describing some fact, a neutral fact. Therefore there isn’t even a first thought of putting it into the count of commandments.

This sentence, “She shall not go out as the male slaves go out,” is a sentence that categorically belongs to Jewish law. After all, it will appear in the Shulchan Arukh. The Shulchan Arukh will say that with regard to a maidservant the law of emancipation through injury to limbs does not apply. But it will not be a negative commandment. Why? Because it does not command me anything. It only defines where the law applies and where it does not apply. It neither commands nor forbids me anything. There is no prohibition on me setting her free. That’s not what it comes to prohibit. It comes to negate, lest you think there is an obligation here to set her free—no, there is no obligation here to set her free.

So the claim belongs categorically to the halakhic sphere, not to the factual sphere like “So-and-so did not eat dinner last night.” But even in the normative sphere there are claims—there are sentences—that do not command me anything, do not prohibit me, neither prohibition nor positive command, and therefore they are not counted. And this now returns us and illuminates in an additional light the map that Maimonides described.

And now I connect this also to the introduction I gave. Maimonides is basically telling us that there are positive commandments and negative commandments, and they both belong to the same genus, what he calls decree in Hebrew, with positive commandment and prohibition—let’s now call them positive commandment and prohibition, because “positive commandment and negative commandment” is just the translation from Arabic. So really what should be here? A genus called decree, under which there are positive commandments and prohibitions. Okay? Now what does this structure really say? That prohibition and positive command share something. They are both decrees, but they are not the same thing.

Now why are they not the same thing? That’s pretty clear. One expects me to do something, a positive thing, and the other tells me to refrain. Right now I’m using this understanding of positive and negative commandments. But what do they share? What they share is that both are sentences that do not belong to the category of declarative sentences. Both, in the linguistic sense, are imperative sentences. Why? Because as opposed to a declarative sentence, an imperative sentence is not neutral. You can tell me “Murder is very bad.” “Murder is very bad” is a neutral description, because as far as I’m concerned it still doesn’t tell me whether I am obligated to do something about it or not. Maybe it’s a recommendation. Maybe if I decide I don’t want to do something bad then I won’t do it. But this thing is only a description. A description is a sentence with no color; it is neutral.

By contrast, a command is a sentence that says to you, is supposed to spur you, direct you in some direction. Push you to do, or stop you and tell you don’t do. It is not a neutral sentence, not a sentence you can just pass by and keep cheerfully humming as you continue. When you pass by it, it is supposed to do something to you. Either stop you or push you forward. Unlike a descriptive sentence, where okay, it said some fact—maybe I’ll draw conclusions from it, maybe not, but I don’t have to. In other words, what I do with it is up to me.

Therefore, what positive and negative commandments share is that both belong to the domain we call—and I don’t know whether this comes from Arabic, but it is accepted in Hebrew too—the domain of imperative sentences, as distinct from declarative sentences. And if I distinguished in the Torah between these two kinds of sentences at the outset, then of course when Rashi says “This month shall be for you the beginning of months,” and all the commandments are the essence of the Torah, he obviously means both positive and negative commandments. That is as distinct from declarative sentences that describe—events, describe who knows what, things that happened there, describe people—but they only describe. They are neutral sentences.

In analytic ethics and philosophy this distinction is called descriptive sentences and prescriptive sentences. Descriptive means they describe something. Descriptive sentences can also describe a norm. “According to Israeli law it is forbidden to steal.” That is still a neutral sentence. Neutral, because as far as I am concerned it still doesn’t say anything. Only if you add that this is Israeli law and it obligates me, then it becomes something prescriptive. Something I can’t just pass by and say okay, nice to know that fact, I’ve been enriched by one more fact, and move on. No—the fact tells me something that obligates me, either to do or not to do. That is basically this world of imperative or prescriptive sentences.

Now when we speak about Jewish law and reality, basically behind this distinction between Jewish law and reality sits the distinction I’ve discussed here. Therefore all this is a conceptual introduction to the topic of Jewish law and reality, which is the topic of this series. Because reality by its very nature is described by declarative sentences. Fine—there are declarative sentences, and even laws of physics are declarative sentences. They are sentences that describe the world, the physics of the world. Okay? Declarative sentences. They can be sophisticated, they can perhaps be disputed, one can argue about them, but fundamentally they are declarative sentences. They are sentences of which you can say true or false.

Jewish law, like ethics in the moral sense, or law, or the rules of basketball, or something like that, consists of sentences of a different type. These are not descriptive sentences but prescriptive sentences. They are sentences that command me or forbid me—yes, or warn or command. So the difference between Jewish law and reality—one of the differences, the linguistic difference—is the question of what kind of sentences governs each of these categories. In the category of facts, the type of sentence is declarative. In the halakhic category, the type of sentence is imperative. And if I return to the red traffic light, until there is a command, there is no law. Therefore one can tell me that going through a red light is dangerous, going through a red light is inconsiderate, it’s immoral—everything can be said to me. But all of that is still declarative language. Only from the moment a law was enacted forbidding crossing on red did it become a prescriptive sentence, a commanding sentence. I am assuming a certain premise here—yes, there is a dispute in legal theory between positivism and natural law. I’m assuming a positivist view for the moment.

Now the point I want to expand on at this stage, in light of what I’ve said, is that we need to understand two things: what the relation is between declarative sentences and imperative sentences, or between facts or reality and Jewish law. These are parallel questions—not identical, but parallel. And now that really takes us into the topic; until here it was all introduction.

So here again there is a double relation. On the one hand, every halakhic ruling deals with a given factual situation. Suppose a religious court or a rabbi has to decide a halakhic issue. At the first stage, he is supposed to ascertain reality. What are the facts? After I clarify the facts, I can apply the halakhic instruction to those circumstances. What does Jewish law say is permitted, required, or forbidden to do in those given circumstances? Therefore there is a close connection between Jewish law and reality. Jewish law always speaks about reality. There are halakhot for messianic times, or laws dealing with matters that are not realistic, and the Talmud already asks: what is the halakhic significance for messianic times? The Talmud asks: what practical difference does it make? Jewish law is always supposed to deal with factual circumstances—not only existing ones, but probably also circumstances that are applicable in practice. Sometimes one discusses impractical circumstances, but only in order to clarify the principle, and afterward to apply it in more realistic circumstances. So that is one connection between facts and Jewish law, or between reality and Jewish law.

The second connection goes the other way. Jewish law can never be derived from facts alone. This is what is called David Hume’s distinction between ought and is. Ought—what ought to be, the normative—and is, the existing. The is is the facts—what exists, what is true, what is here. The ought is what ought to be. You cannot derive ought from is. Following Moore in a later period, people often attach to this the label “the naturalistic fallacy.” Philosophical purists get very annoyed when it’s called that because it’s not exactly the same thing. The naturalistic fallacy is something a bit different, but for our purposes it doesn’t matter. We can call it the naturalistic fallacy—that’s the common term.

So the naturalistic fallacy basically tells me that normative claims, or the category of decrees—what Maimonides called it earlier—cannot be derived from facts. When I say “Murder is forbidden,” that is simply the result of what I described until now. When I say “Murder is forbidden,” can I derive that from the factual claim that murder causes suffering, say, to the family of the murdered person? Let’s say I murdered him painlessly, but his family still suffers, for example. Okay? And let’s say this really were the rational or, I don’t know, moral basis for the prohibition on murder. It probably isn’t the basis, but suppose it were. Still, even if it were the basis, that basis would not be enough. If I tell a person that murder causes suffering to these or those people, I still have not told him the sentence “Murder is forbidden.” The claim that murder is forbidden is a command, a norm, and it cannot be derived from declarative sentences alone. That is called the naturalistic fallacy.

When I say, “This picture has many colors in it, therefore this picture is beautiful,” that is an invalid argument at the logical level. Why? Not because many colors are not always beautiful—let’s even say I think they are. That’s not the problem. The problem is not aesthetics; the problem is logic. When I say there are many colors here, I described something. That is a declarative sentence: this picture has many colors in it. In order to determine that it is beautiful, I need to add another assumption: that what has many colors in it is beautiful. Right? Without that I cannot derive the conclusion that this picture is beautiful.

Now for our purposes, aesthetic judgment and ethical judgment have the same logic. Meaning, those two kinds of judgment—and also halakhic judgment and legal judgment—all kinds of judgment or norms cannot be derived from facts. Someone who derives judgments from facts is making a logical mistake. It cannot be; it is a fallacy. What is needed in order to derive judgment from a fact? You need to add a bridge principle. As I said earlier, for example, if the assumption is that this picture has many colors, how can I jump from that to the conclusion that the picture is beautiful? If I add the assumption that what has many colors is beautiful. What is the nature of this additional assumption? Is it factual? Is it normative? To which of the two categories does it belong? It turns out that it belongs to neither of them, but is a bridge principle. It is the principle that ties me from the facts to the norms.

I want to sharpen this point a bit more. I’ll bring an example that I also gave in previous classes in Petah Tikva. Let’s take the Talmud in Bava Batra 5a. The Talmud there discusses laws of claimant and defendant. A person borrowed 100 shekels from his friend, and now the lender comes and demands the borrower. He says: return the 100 shekels that I lent you. The borrower—this is an ordinary loan, where an unstipulated loan is for 30 days. The claim came after a week, okay? He lent it to me a week ago, and after a week he comes and says please bring back the money. I could tell him: wait another three weeks, because an unstipulated loan is 30 days. But I didn’t tell him that. I told him: what do you want? I already returned it to you yesterday. I already repaid you.

The Talmud says I am not believed. Why? Because there is a presumption that a person does not repay within the term. If you say you repaid within the term, you are apparently lying—or at least the burden of proof is on you—because a person generally does not repay before he is obligated to. Yes? An assessment of reality. Okay.

Now suppose we come to another period or another place where the factual assessment has changed. People do repay within the term. I don’t know—because of cultural reasons or economic reasons of one kind or another. For example, in a place where there is a heter iska, so in effect you pay interest. Maybe it’s not called interest, but it’s basically interest. Halakhically maybe it’s not called interest, but in principle you’re paying interest. So obviously if money suddenly falls into your hands and you can repay the loan, there will be quite a few people who say okay, I can, like with a mortgage, pay off the mortgage so as not to accumulate or have to pay the expected interest if I keep holding it. Under such circumstances, it is entirely reasonable if a person comes and says I repaid, even if it’s within the term. Right?

Now I don’t think there would be any halakhic authority who would imagine that if I live under circumstances where people do repay within the term, then because the Talmud says that a person is not believed to say “I repaid within the term,” we therefore would not accept that claim. An explicit Talmud! I don’t think there is any judge or decisor who would say such a thing. Why? Because it is obvious that the Talmud spoke about certain circumstances that prevailed then. But if at another time or place different circumstances prevail, then adapt your conduct accordingly.

Now the big question is: as a result, am I supposed to cut Bava Batra 5a out and throw it into the Cairo Geniza, because the passage is unnecessary? Right? There is nothing to learn from it—it’s no longer relevant to us, reality is different and therefore the ruling of the passage is no longer relevant. I argue no. Why? And here this returns me to what we said earlier.

I argue that what the passage comes to teach me is not the fact that people are not inclined to repay before the due date. That is a psychological fact. Go to the psychology department or just look around and get an impression and arrive at a conclusion about what people tend to do and what is likely or unlikely. The Talmud does not come to teach me facts. The Talmud comes to teach me the rule that says that if there is some presumption or other, then one may use it to extract money, which is a major novelty. Because according to—the Torah says “by the testimony of two witnesses shall a matter be established.” And if you want to extract money from me, the burden of proof is on you: one who seeks to extract from another bears the burden of proof. In principle you are supposed to bring two witnesses. With fewer than two witnesses you cannot extract money.

Now notice: here the lender is claiming money from me, and I say to him, “I repaid.” Who is in possession? Who is the extractor? The lender is the extractor and I am the one in possession. In principle the burden of proof should have been on him. And here suddenly they tell me no: you claim that you repaid within the term? Prove it. The burden of proof is on you even though you are in possession. Why? Because there is a presumption against you. The presumption is that people do not repay within the term. What you are saying is not plausible. Okay? Therefore the burden of proof flips, and now you are the one who will have to bring evidence or witnesses that you repaid within the term.

That is the novelty of the passage. The novelty of the passage is not the fact that people are not inclined to repay within the term. The novelty of the passage is that if there is some fact—and I don’t care which fact, facts can change, check this however one checks psychological facts—but given a fact, once you concluded that the relevant prevailing fact here is this fact, that can reverse the legal burden of proof, and can place the burden of proof on the defendant instead of the plaintiff. That is a novelty in Jewish law, not a novelty in facts.

And that brings me back to what I said earlier. Meaning, the halakhic ruling issued in Bava Batra is a ruling that speaks about facts. If the facts are that a person does not repay within the term, the halakhic rule relevant to that matter says that if you claim to have repaid within the term, the burden of proof is on you. This demonstrates the first connection between Jewish law and facts: that Jewish law always applies to certain factual circumstances.

On the other hand, the circumstances themselves have no sanctity. They can change. That is not Torah. So what is? The circumstances also do not dictate the Jewish law. What dictates the Jewish law? What dictates the Jewish law is the bridge principle. And this really means the following: the assumption is that a person does not repay within the term. I’m now laying this out in a logical structure. The assumption is that a person does not repay within the term. The bridge principle says that if there is such an assumption, it creates a presumption, and that presumption can reverse the burden of proof. Conclusion: when a person claims “I repaid within the term,” given that in this environment people do not repay within the term, the burden of proof shifts to him. That is the conclusion.

So I have an assumption that is factual: people do not repay within the term. I have a bridge principle that says: if you have such a factual assumption, you may use it in the laws of claimant and defendant. The conclusion: the burden of proof is on the one who says “I repaid within the term.” Which of these three components is Torah? The assumption, the conclusion, or the bridge principle? I argue that it is neither the assumption nor the conclusion. The assumption is a fact, and the conclusion is the result of applying the bridge principle to the fact. Torah in its essence is the bridge principle. And therefore there is no need to throw Bava Batra 5a in the trash. Bava Batra 5a teaches me a lesson that is very important for me also today, because it teaches me that if there is some presumption, whatever the presumption may be—it changes by time and place—but after I have checked and reached a conclusion about what the relevant presumptions are, now the bridge principle comes and says that these presumptions can shift the burden of proof. They operate on the evidentiary playing field. And I learned that from the Talmud in Bava Batra.

Now what will the conclusion be? The conclusion will be that if I claim I repaid within the term, I will be believed. So it turns out that my assumption does not fit Bava Batra, because my assumption is that people do repay within the term, whereas there it says they do not. My conclusion also does not fit Bava Batra, because I say I am believed to claim I repaid within the term—that is, the judge says I am believed—and in Bava Batra it says I am not believed. So it doesn’t fit either in the assumption or in the conclusion. What does remain the same? The bridge principle. Because the same bridge principle, when it operates on a different factual situation, will yield a different conclusion. And the essence of Torah is only the bridge principles, not the assumptions and not the conclusions.

This is an important point, because in the end when I say that the naturalistic fallacy tells me that I cannot derive a normative conclusion from a fact, what do I need to add? I need to add the bridge principle that ties the facts to the judgment—whether aesthetic, ethical, halakhic, and so on. Torah—what is Torah? It is only the bridge principle. Torah is the bridge principle alone. Therefore when someone brings me the Talmud in Bava Batra and says, wait a second, a person is not believed to say he repaid within the term, and I rule that a person is believed—he claims he repaid within the term and I say he is believed—am I going against the Talmud? The answer is no. Because what the Talmud says is not the conclusion but the bridge principle. It is the Talmud’s bridge principle that I am following. I am acting exactly in accordance with it. It’s just that because the circumstances are different, the result is also different.

Therefore what I want to claim—and with this I’ll finish—is that in this gap between facts and halakhic determinations sit bridge principles. And Torah is the bridge principles, not the facts. And this brings me back to Rashi, and with this I’ll finish. We find that in the Talmud there is really a very similar characteristic to what we saw in Scripture, or in Rabbi Yitzchak’s difficulty on Scripture in Rashi. There too he assumed that the main thing is the norms and not the facts, and here too we see that the facts have no sanctity. The facts that the Talmud establishes can change, and I will assume the relevant facts, not the facts that appear in the Talmud.

So what is important? What is important is the normative determination of which norm applies to these facts. That is the essence of the Talmud and also the essence of the Torah. And that is, in short—or that is the initial summary—of the relationship between reality and Jewish law. Reality is factual claims; it is declarative sentences. Jewish law is imperative sentences. But the essence of Torah is the bridge that moves me from declarative claims, from declarative sentences—or factual claims, that’s a better way to say it—to imperative sentences. That bridge principle is what is called Torah. Or, by the way, that is true also of ethics; that is also what is called morality.

In morality too, at the principled level—say, I am not allowed to hit someone, right? That’s a moral principle. But if there is someone who is a masochist, and he very much likes being hit, I assume it would be permitted to hit him. Is that a different morality in such a place? No, I claim it is the same morality. Morality says one should do what is pleasant for a person and not do what causes him suffering. What is pleasant for a person and what causes him suffering may depend on time and place. And therefore moral principles too are built according to exactly the same logic. Moral principles too are only bridge principles. They are not the factual assumption and they are not the norms that apply to the facts, but rather the connection between the norms and the facts. That is really the moral principle—not the conclusion and not the assumption. And the same is true of the halakhic aspect. Maybe next time I’ll dig a bit more into this point before we continue.

I’ll stop here, and I’ll open the microphones. I’ll release the—first of all, let’s cancel the—one second. Okay, I’m now allowing everyone to unmute themselves, whoever wants. And I just ask, still leave it off by default; now it depends on you, not on me, and only whoever is speaking should open the microphone, because otherwise it will just be hard for us, hard to talk. So first of all maybe we’ll start with comments or questions relating to the class itself, and afterward if there are other things people want to discuss, that’s also possible. Okay?