Talmudic Analysis – Lesson 10

Table of Contents

• Two-level models and two legal layers with a hierarchy
• Betrothal and marriage in Maimonides: a directive rather than constitutive system
• Regulative and constitutive: chess, traffic, and sports as a basic distinction
• Tzitzit and Sefer HaChinukh: proofs for a directive dimension within Jewish law
• Divorce as dismantling two levels: leaving the home versus the bill of divorce
• Halakhic examples of “returning to betrothal”: produce, ritual impurity, and “divorced in his heart”
• Civil marriage and Noahide marriage: Rabbi Dichovsky’s proposal
• Prayer before and after the giving of the Torah: “he receives reward for prayer”
• “Scripture repeated it to make it indispensable” in sacrificial law: offerings as directive service
• Jew and Noahide: two levels, the minor, and rational commandments versus religious ones
• An oath, a minor, and Ri Migash: obligation by reason before the Torah
• Rav Nissim Gaon and the seven Noahide commandments: “the understanding of the heart”
• Conversion, the logic of definition, and criticism of “why don’t they test morality?”
• Morality and Jewish law: there is no “Jewish morality” as a universal first level
• “Do not murder”: an existing moral prohibition plus an additional religious prohibition
• Summary and unifying pattern: the giving of the Torah as adding a level

Summary

General Overview

The text presents a model of “two levels” in Jewish law and thought, in which a single concept is built from two components arranged hierarchically: a basic natural/universal level, and a second formal/particular level that is added on top of it and directs it. The central claim is that in several areas the Torah does not “constitute” a new reality that cancels the earlier level, but rather “directs” an existing reality by adding a legal-halakhic layer. From this flow practical implications in betrothal and divorce, in religious service (prayer and sacrifices), in the status of a minor and the obligations of Noahides, and in the relationship between morality and Jewish law.

Two-level models and two legal layers with a hierarchy

The text defines a “two-level model” as a structure in which two components are not merely combined, but are arranged in a hierarchy of first level and second level. It distinguishes this from a case of two components without any essential order, such as damaging property, where ownership and negligence in guarding both play a role but there is no real conceptual significance to the question of “which comes first.” By contrast, there are structures in which the layers stand in chronological and essential order, and therefore the meaning becomes clearer when one exists without the other. The text presents the model as an addition built on an existing base, not as a complete replacement, and stresses that the practical implication is what happens when only one of the levels exists.

Betrothal and marriage in Maimonides: a directive rather than constitutive system

The text quotes Maimonides at the opening of the laws of marriage: “קודם מתן תורה היה אדם פוגע אישה בשוק… מכניסה לביתו ובועלה… ותהיה לו לאישה” (“Before the giving of the Torah, if a man encountered a woman in the marketplace… he would bring her into his house and have relations with her… and she would become his wife”), and after the giving of the Torah, “יקנה אותה תחילה בפני עדים… שנאמר כי יקח איש אישה ובא אליה” (“he must first acquire her before witnesses… as it says, ‘when a man takes a woman and comes to her’”), and “באחד משלושה דברים האישה נקנית כסף שטר וביאה” (“a woman is acquired in one of three ways: money, document, or intercourse”), and these acquisitions are “הנקראים קידושין או אירוסין” (“called kiddushin or erusin”). The text interprets Maimonides not as merely describing history, but as making an active halakhic claim: natural marriage, meaning shared life together, does not disappear with the giving of the Torah; rather, the Torah requires kiddushin to precede it as a formal level. The text states that someone who lives with a partner without kiddushin is “married… just not in the proper legal way,” and concludes that this is a directive system that commands how to carry out an existing reality, not a system that defines reality as existing only if the rules were performed.

Regulative and constitutive: chess, traffic, and sports as a basic distinction

The text brings a distinction from analytic philosophy between “constitutive” systems of rules and “regulative” ones. It explains that in chess, deviating from the rules is not a violation; it means that “you simply aren’t playing chess.” In traffic law, by contrast, deviating from the rules leaves you within the system but creates an offense and a sanction. The text uses the example of fouls in soccer and basketball to show that sometimes a “violation” functions as a tactic that the rules allow in exchange for a sanction, and therefore it does not take you out of the game. It then raises the question of how to understand Jewish law: the standard view is constitutive, but the text argues that in several areas Jewish law functions as directive.

Tzitzit and Sefer HaChinukh: proofs for a directive dimension within Jewish law

The text interprets the verse “והיה לכם לציצית” (“and it shall be for you as tzitzit”) as hinting that the concept of “tzitzit” exists in a broader sense even outside the halakhic definition, and that the Torah instructs how it wants “your tzitzit to be,” so that even if someone creates some other kind of “symbol,” it is still a symbol, but not the commandment of tzitzit. The text cites Sefer HaChinukh on the Torah portion Ki Tetzeh, which formulates that one who divorces “not according to the rules” has “neglected this positive commandment and his punishment is great,” and presents this as evidence that divorce is not merely an action defined as valid or invalid, but also a directive commandment: when one decides to dismantle the household, one must do so in the form the Torah established. The text defines this as a “conditional positive commandment,” similar to tzitzit: if one enters a certain framework, one is obligated to perform the act in the proper way.

Divorce as dismantling two levels: leaving the home versus the bill of divorce

The text argues that in divorce one must dismantle both the natural marriage and the formal kiddushin. Therefore, “giving the bill of divorce is the dismantling of the kiddushin; removing her from his house is the dismantling of the marriage.” Usually the two dissolutions happen together, but there may be situations in which the household has broken apart while the kiddushin still remains. In that case the woman is “forbidden to the whole world” by virtue of the kiddushin even though she is no longer in his house. The text uses Sefer HaChinukh to argue that someone who sends a woman out of his house without a bill of divorce leaves her “with nothing,” and therefore “you have neglected a positive commandment,” because the social breakup does not remove the prohibition against marrying others, which stems from the kiddushin.

Halakhic examples of “returning to betrothal”: produce, ritual impurity, and “divorced in his heart”

The text cites from tractate Gittin 17 the rule “משעה שנתן עיניו לגרשה שוב אינו אוכל פירות” (“from the moment he set his mind to divorce her, he no longer eats the produce”), and interprets this as proof that the decision to separate dismantles the household and returns the couple to a state similar to betrothal regarding usufruct property. It also cites from Bava Batra, in the name of Rashbam and Rashash, that a priest, “משעה שנתן עיניו לגרשה הוא לא נטמא לה” (“from the moment he set his mind to divorce her, he no longer becomes impure for her”), explaining that “she is no longer his close relative,” because the level of marriage has already come apart even though the kiddushin has not yet been dissolved. The text adds that relations with her in this state are forbidden by a prophetic-text-based prohibition as “גרושת הלב” (“divorced in his heart”), and presents this as a LIFO structure: when establishing the relationship, one begins with kiddushin and then marriage; when dismantling it, marriage comes apart first and only afterward kiddushin.

Civil marriage and Noahide marriage: Rabbi Dichovsky’s proposal

The text presents Rabbi Dichovsky’s proposal, based on the Rogatchover, to recognize civil marriage or cohabitation as “Noahide marriage” with halakhic standing. It says that this recognition follows from the claim that the Torah did not abolish natural marriage, but only added the binding layer of kiddushin. Therefore, even without kiddushin, a couplehood is created in the basic sense. The text notes that Rabbi Dichovsky wanted to argue that a bill of divorce would also be required, but the speaker says, “I think that’s not correct,” because a bill of divorce is meant to dissolve kiddushin, whereas the case under discussion is a relationship without the formal dimension. The text emphasizes that the issue may have contemporary implications, while also saying that it is difficult to derive a “complete picture” from the sources.

Prayer before and after the giving of the Torah: “he receives reward for prayer”

The text cites from Berakhot the rule that one who prays after noon, “שכר תפילה יש לו, שכר תפילה בזמנה אין לו” (“he receives reward for prayer, but he does not receive reward for prayer in its proper time”), and proposes an understanding according to which prayer exists as a meaningful concept even before the giving of the Torah, while the Sages or the Torah direct it into times and liturgical forms. It suggests that even according to Nachmanides, who holds that all this is rabbinic, it still makes sense that the act has value because it continues the ancient value of the prayers of the patriarchs. Therefore, failing to match the time pattern does not nullify the act of prayer itself, but only removes the status of “prayer in its proper time.” The text connects this to the broader idea that in some areas Jewish law does not abolish the natural, but adds a layer that defines the proper way to express it.

“Scripture repeated it to make it indispensable” in sacrificial law: offerings as directive service

The text proposes an explanation for the principle “בקדשים בעינן שנה עליו הכתוב לעכב” (“in sacrificial matters we require that Scripture repeat it in order to make it indispensable”), connecting it to the fact that sacrifices are a form of “service” that already existed before the giving of the Torah, like the sacrifices of the patriarchs. It argues that the default assumption in sacrificial law is that an unfulfilled detail does not invalidate the act, because there is no reason to assume the act loses all value if it resembles the earlier type of act that had value before the Torah. To determine that a requirement is indispensable, one needs “a separate source,” such as repetition, “חוקה” (“an absolute statute”), or some special indication that cancels the possibility of value “like Abraham our father offering a sacrifice.” The text explains that when the Torah really does introduce a cancellation of the first level—such as the prohibition on offering outside the Temple, “רק במקום אשר יבחר” (“only in the place that He chooses”)—that is an explicit innovation that replaces the earlier level rather than merely directing it. It argues that the Sages arrived at this rule through reasoning, not merely through a textual decree, and presents it as another instance of the two-level model surrounding the giving of the Torah.

Jew and Noahide: two levels, the minor, and rational commandments versus religious ones

The text presents a two-level model of halakhic identity: every Jew is also a “small Noahide,” and therefore “דליכא מידי דלבן נח אסור ולישראל מותר” (“there is nothing forbidden to a Noahide that is permitted to a Jew”). It cites Sanhedrin 56 and the discussion of stumbling and disgrace regarding an animal that was used for forbidden relations, emphasizing that the Talmud kills such an animal even when it was used with a minor. From this it infers that even though a minor is not punishable, there is still “stumbling” in the sense of belonging to the prohibition. The text then raises a difficulty from Yevamot 33 regarding liability arising “all at once” when two pubic hairs appear, and presents a resolution from later authorities: the distinction is between commandments “that have a rationale” or “rational commandments” and commandments that are “religious” or ritual. Universal obligations apply to a minor from the moment he understands, whereas religious ones apply only with formal halakhic adulthood. The text cites the Rosh and the Chatam Sofer to the effect that “fixed measures were not stated regarding a gentile,” and therefore a gentile’s maturity is “when he understands.” It concludes that a Jewish minor who understands is obligated in universal commandments by virtue of the first level within him.

An oath, a minor, and Ri Migash: obligation by reason before the Torah

The text cites Maimonides in the laws of hiring, where he explains: “שלא משביעים קטן לפי שאינו יודע עונש השבועה” (“we do not administer an oath to a minor because he does not know the punishment for an oath”), and notes precisely that the issue is not that there is no punishment, but that the minor does not understand the punishment and therefore the oath will not deter him. From this the text argues that the principle of an oath is a natural-moral obligation that exists even before the giving of the Torah, whereas lashes and court-enforced penalties are an innovation of the Torah. The text cites Avnei Nezer, Yoreh De’ah, section 306, about a written oath, and the responsum of Ri Migash, which forbids and obligates it, interpreting this to mean that formal verbal articulation is required in order to incur the prohibition and lashes, but the basic obligation to keep an oath exists “by reason” and therefore remains even without the halakhic form. It uses the Mishneh LaMelekh’s difficulty about “מושבע ועומד מהר סיני” (“already sworn and standing from Mount Sinai”) to argue that there was already an obligation to fulfill an oath even before the punitive system of “לא יחל דברו” (“he shall not profane his word”), thus once again constructing a two-level structure: a natural obligation with a formal layer added on top.

Rav Nissim Gaon and the seven Noahide commandments: “the understanding of the heart”

The text cites Rav Nissim Gaon’s introduction to the Talmud, where he argues that the “seven Noahide commandments” do not exhaust all obligations, because there are many dozens of duties that arise from reason rather than command. It quotes his formulation: “כל דבר שתלוי בסברה ובאובנתא דליבא כהבנת הלב, התחייב בו כבר אדם מעולם” (“anything that depends on reason and the understanding of the heart, that is, the heart’s comprehension, man has already been obligated in from the beginning of time”), and presents this as justification for the claim that the first level obligates even without the giving of the Torah. The text connects this to Maimonides in the laws of kings, where the Noahide commandments are described as commandments “toward which reason inclines,” and concludes that when the obligation is grounded in reason, no external commander is needed in order to obligate; it is enough that the person understands.

Conversion, the logic of definition, and criticism of “why don’t they test morality?”

The text deals with the “liberal” criticism of conversion according to which they examine kashrut and menstruation laws but do not test whether a person “doesn’t steal, doesn’t murder.” It gives the example: “Why is Yigal Amir a Jew who sinned, but someone who eats non-kosher food is not a Jew?” The text rejects this as a “logical mistake,” explaining with the help of the Aristotelian definition of genus and species that criteria of definition test for the distinguishing characteristic within the genus, not for the gravest feature. Murder damages the first level of being a human being, and therefore makes someone a “criminal Jew,” whereas parameters like kashrut belong to the second level and distinguish a Jew within the human species. The text concludes that conversion focuses on the distinctive components, not on the moral weight of transgressions.

Morality and Jewish law: there is no “Jewish morality” as a universal first level

The text argues that morality belongs to the first level and is therefore “by definition universal,” so that “Jewish morality” is an “oxymoron.” It rejects the view that “the moment the Torah was given, everything else ceased to exist,” and maintains that a Jew is also obligated in moral duties because he is first of all a human being. The text recognizes that there are conflicts between values, and mentions the problem of the “incommensurability of values” together with Sartre’s example of the dilemma between fighting the Nazis and caring for one’s sick mother, in order to say that difficulty in deciding does not cancel the very obligation to both values. It argues that the particular level does not erase the universal one, but joins it.

“Do not murder”: an existing moral prohibition plus an additional religious prohibition

The text asks, “Why did the Torah write ‘Do not murder’? Why do I need a verse? It’s obvious from reason!” It bases this on the fact that God brings a claim against Cain before the giving of the Torah. The text argues that the verse was not meant to establish the moral prohibition, which already existed “from time immemorial,” but to introduce an additional level of “religious prohibition” or “halakhic prohibition” against murder, complete with definitions and punishments. It cites the distinctions made in Sanhedrin between indirect causation, “מצמצם” (“confining someone so that death results”), and “מקרב הדבר אצל האש” (“bringing the object closer to the fire”), to show that these do not create a moral difference but a halakhic one concerning the applicability of capital punishment and the legal framework. The text presents this as another instance in which even within a prohibition usually seen as rational, there are two levels: universal morality and, on top of it, a formal halakhic pattern.

Summary and unifying pattern: the giving of the Torah as adding a level

The text unifies all the examples under a single pattern in which the giving of the Torah adds a formal-legal level onto a natural or universal reality, and only where there is an explicit innovation does it cancel the earlier level. It concludes that every Jew bears “two legal statuses” arranged hierarchically: the status of a human being/Noahide and the status of a Jew. Therefore, “first of all, be human beings,” and afterward, “good Jews.” The text ends by clarifying that all the examples are meant to show that many concepts in Jewish law and thought are built in a hierarchical two-level structure, rather than as a single system that erases what came before it.

What I want to do now is talk about what I call, at least in my terminology, two-story models. We spoke about two different laws of different kinds, which is really a law or concept made up of two components that join together, and the question is always which of them does what. In other words, if we have situations where one component appears without the second, or the second without the first, that will have various implications, because some implications depend on the first component and some depend on the second. Right? That’s the classic structure of two laws. In today’s lecture I want to talk a bit about two such components that have a hierarchy between them. That’s why I’ll call it two stories: there’s the first story and the second story. In other words, there’s an order here; it’s not just two things. Say, for example, what we discussed about damaging property. In damaging property, there’s my ownership and there’s negligence in guarding it. There isn’t really an inherent order there. You need both in order to incur liability, but it doesn’t make much difference to ask which comes first and which comes second, or what happens when one exists without the other. We’ll discuss whether this obligates or that obligates, or whether this is a condition and that isn’t, but the issue of order is less central. I wouldn’t call that a two-story model. Once I bring the examples, you’ll see why I do call these cases a two-story model.

I’ll start, maybe, with a two-story model in marriage. Maimonides at the beginning of the Laws of Marriage—yes, these are famous passages. It doesn’t matter, I didn’t open the board now because the sources aren’t so important to me at the moment; I’m just opening it because I want to read you a few lines from his wording. Before the Torah was given, if a man met a woman in the marketplace, if he and she wanted to marry, he would bring her into his home and have relations with her privately, and she would thereby become his wife. Once the Torah was given, the Jewish people were commanded that if a man wishes to marry a woman, he must first acquire her in the presence of witnesses, and afterward she becomes his wife, as it says: “When a man takes a woman and comes to her.” And these acquisitions are a positive commandment of the Torah. “Acquisitions” here means the act of taking commanded by the Torah; in a moment we’ll see what that excludes. And a woman is acquired in one of three ways: money, document, or intercourse; intercourse and document are from the Torah, money is from the Sages, and so on. And these acquisitions are what are called kiddushin or erusin everywhere, and a woman acquired by one of these three methods is called mekudeshet or me’orases.

So what is Maimonides really saying here? He describes a historical situation. Before the giving of the Torah, if a couple wanted to live together, establish a home, then the man would bring the woman into his house. Never mind the chauvinistic language right now; the point is they move in together, live together, run a household together. Want to separate? Fine, goodbye. She leaves the house, or he leaves the house, doesn’t matter for now, and they live separately—that’s the separation. What did the Torah add? The Torah added that before they begin living together, before they establish the home, they must first perform kiddushin. Kiddushin means money, document, intercourse, and so on. Erusin, kiddushin—these are more or less synonymous terms. There’s a lecture by Rabbi Gustman who wanted to argue that it’s not exactly like that, but for our purposes these are synonymous terms. That is, he argued that these are three different mechanisms that create the same state, and there are practical differences between them. If you say to a woman, “You are hereby consecrated to me,” or “You are hereby betrothed to me,” or the third expression—I don’t remember it now—then with each expression you apply something different, literally apply something different. The woman has three legal aspects, that’s what he argued. I don’t remember all the details anymore, but he argued that in kiddushin there are really three aspects: the prohibition with respect to the world, the permission with respect to me, the bond to me, and what else? I don’t remember, some third thing. I really don’t remember. And he says that when you “mekadesh” the woman you apply that law; when you “me’ares” the woman you apply that law; except that each of these three laws drags the other two behind it. The whole question is where you begin. Do you begin from this aspect, from that aspect…

Now this has practical implications. For example, there are situations where you won’t succeed in applying kiddushin. Suppose you say to a woman, “Half of you is hereby consecrated to me”—the Talmud in Kiddushin 7a, right? “Half of you is hereby consecrated to me.” There’s a rule that holiness spreads to the whole, and therefore, just like with offerings, the woman is consecrated, right? It spreads to the whole and she is fully consecrated, if this is something on which life depends, and so on. And once she is consecrated, then all the laws of kiddushin apply to her. But what if you say, “Half of you is hereby betrothed to me”? Nothing. She is not consecrated. Because the language of kiddushin, the term kiddushin, and this whole law that holiness spreads to the whole, comes from the laws of sacred things. So if you use the language of kiddushin, you’re trying to apply the aspect of holiness in the matter. Then it works with the laws of sanctity, according to which holiness spreads to the whole. But if you want to begin from the ordinary aspect, not the sacred one, then there is no such law that holiness spreads to the whole. If you make kiddushin on half a woman, there is no such thing as kiddushin on half a woman, so it won’t take effect. And once it doesn’t take effect, then there won’t be the holiness aspect nor any other aspect, because it never took effect. So the whole question is where you begin. He brings many proofs for this—a wonderful lecture. By the way, that lecture itself is a great example of two laws—really three laws—without hierarchy, but all within the concept of kiddushin. I want to talk about kiddushin and marriage, but he’s talking within the concept of kiddushin itself: there are three laws and each has implications. Very interesting, really a wonderful lecture.

In any event, that isn’t important for our purposes. For our purposes, yes, it’s all the same thing: the woman is consecrated. The Torah basically wants me to place kiddushin before marriage. Okay? So if I do that—after the Torah is given, I place kiddushin first—then it seems that this is a new game. Meaning: what happens if I didn’t perform kiddushin and just started living with her ordinarily, the way people used to do? The accepted view today in the Jewish-law world is that nothing happened, it has no significance. Once the Torah was given, the previous state was canceled and a new state begins.

I don’t think I spoke about this here—I don’t remember anymore—but remind me if I did. I said that in analytic philosophy they distinguish between regulative and constitutive systems of rules. Did we speak about that? I don’t remember. Constitutive systems establish, and regulative systems direct. For example, take the rules of chess. In chess, say you move the knight three and one instead of two and one—let’s say for argument’s sake; really it’s two and one. Okay? Are you a criminal? No. You’re simply not playing chess. The rule system constitutes the game. If you don’t act by the rules, nothing bad happened—you’re simply not playing the game. Okay? By contrast, with traffic laws or state law, if you don’t follow them then you’re an offender. Why are you an offender? You are driving on the road. You can’t say that if you don’t drive according to the law, then you’re not driving on the road. You are driving on the road, just not according to the law, right? So you deserve punishment; you’re an offender. That means you’re still inside the game, even though you didn’t do it according to the rules. All the law says is that since you played this way, you deserve punishment.

There’s a very interesting question here, by the way. I once heard a lecture about this in a pub in Tel Aviv—a lecture on the philosophy of sport during the World Cup, I don’t know, ten years ago or something. Two guys from the Open University, who work in philosophy of sport, came and gave a lecture there on the philosophy of football. Among other things they discussed how to relate to fouls in football or basketball—it doesn’t matter, same idea. A foul usually sounds as if you did something wrong, as if you deviated from the rules of the game. But you understand that nobody really treats it that way. A foul means a tactic. If you commit a foul, the ball goes to the other side, but you stopped the attack, right? So the coach and player calculate whether it’s worth committing the foul or not. So in effect a foul becomes something that is not a constitutive rule. It’s not that if you committed a foul you weren’t playing the game because it wasn’t according to the rules. No. The rule says that if someone commits a foul he gets some sanction, but even if you committed the foul, you’re still inside the game. Okay? With a technical foul, for example, that already looks like something improper to do. But an ordinary foul—there’s no claim at all that it’s improper; it’s a tactic, whether it’s worthwhile or not. With what’s called an unsportsmanlike foul—that’s a foul that really shouldn’t be done, it isn’t okay. And still, even there there is a sanction, but you’re still inside the game. In extreme cases they remove you, and that really shows that you’re simply not playing the game. But those are very extreme cases. Here, even if they throw you out of the game, the game continues—you’re just no longer in it. Yes, but that’s as a punishment. So that can be debated; in philosophy one can debate that. But yes, נכון.

So I’m saying this is an example of the tension between a constitutive and a regulative system of rules. Okay? Now the question is: how should we relate to the laws of Jewish law? Are they constitutive or regulative? Usually we’re accustomed to thinking that the system of Jewish law is constitutive. That is, if you consecrated a woman not according to the Torah’s rules, you simply did nothing. It’s not criminality. If you consecrated a woman with half a perutah, okay—are you a criminal? No. There simply is no kiddushin. Right? So that’s a constitutive system of rules, not a regulative one. It simply defines the game; if you don’t play by the rules, then it isn’t the right game, you’re simply not in the game. Okay?

But in a number of places you can see that this isn’t right. For example, my favorite example in this context is a verse from the section of fringes in Shelach, at the end of the parashah, the section of fringes, what we say every morning in the Shema—not only every morning, in the Shema. What does it say there? “And it shall be for you as fringes.” Now think for a second: what does the sentence “and it shall be for you as fringes” mean? If I understand that the concept of fringes is defined in that passage, then if you didn’t make the fringes according to the rules, it simply isn’t fringes. There are laws that don’t invalidate—blue does not invalidate white, okay—but let’s say you did something unlawful; it isn’t fringes. Fine, so it simply isn’t fringes, right? So what does the sentence “and it shall be for you as fringes” mean? It means that if you do what I command you—make the fringes with threads and knots and everything required—this is what I want your fringes to be. That means the concept of fringes exists beforehand; the Torah is only saying: I want your fringes to be this way and not some other way. That means the concept of fringes is broader. The Torah wants us to do it this way and not another, but it’s not that the Torah defines the concept, constitutes the concept. Even if I made fringes differently, they are fringes; they’re just not the fringes the Torah commanded. Okay? But it’s not true that they simply are not fringes. No—they are fringes. What are fringes? Ibn Ezra, for example, says it’s like the tuft of hair on the head—a kind of symbol. Fringes are the symbol of the Jew. I can make some other symbol—I don’t know, sew a yellow patch here and write on it “Jew,” okay? Or however you want to say it. I can write that—that’s also a symbol, right? But that doesn’t fulfill the commandment of fringes. Why not? Not because it isn’t fringes, but because it isn’t the commandment of fringes. But it is fringes, because it too is a symbol. Exactly. The Torah wants our symbol to be made this way and not another way. I only brought Ibn Ezra as an example; it doesn’t matter. Find any interpretation you like. I’m just saying that the formulation of the verse—“and it shall be for you as fringes”—I think means that the concept of fringes is not constituted by this passage. This passage doesn’t constitute the concept; it regulates it. It says how I want you to make your fringes: this way and not another. Not that this is the concept of fringes and if you didn’t do it this way then you simply didn’t make fringes. No. You made fringes, just not the fringes the Torah commanded. So this, for example, is a case of regulative rather than constitutive rules.

The same thing appears, for example, in Sefer Ha-Chinukh, in Ki Tetze. There is a commandment to divorce one’s wife with a bill of divorce, a very important commandment that everyone should be sure to fulfill—a commandment to divorce one’s wife with a bill of divorce. That commandment ends by saying that one who violates this and divorces his wife not according to the—I don’t remember the exact wording—not according to the rules, has neglected this positive commandment and his punishment is great. But if you did it not according to the rules, then she simply isn’t divorced. What does it mean, “he neglected this positive commandment and his punishment is great”? She just isn’t divorced, that’s all. I don’t think anyone would naturally say such a thing. People don’t know this Sefer Ha-Chinukh so well, but when I said this to people they were left open-mouthed. What do you mean? If you divorced her not according to the law, then there was no divorce—what positive commandment did you neglect? You remained her husband, that’s all. But Sefer Ha-Chinukh doesn’t say that. He says you neglected this positive commandment and your punishment is great. What does that mean? I want to argue that divorce is a regulative commandment, not a constitutive one. And I think this is the message of Maimonides here at the beginning of the Laws of Marriage.

Maimonides says this: basically there is the natural concept of marriage or couplehood—a man and woman want to live together, establish a home. That always existed; it existed before the Torah too. How is it done? Not through something formal. Society simply recognizes the existence of a married couple. How? If both parties agree. There are no special ceremonies that need to be performed. If both parties agree, they simply decide to live together. If they don’t want to, they separate and each goes home his own way. That’s all. That’s the natural state. Then the Torah comes and says: no, you need to place kiddushin before this. But the Torah did not abolish the natural concept of marriage. It came to regulate it. It came to say how to do it properly. How do you create marriage? Not just by entering the house together. First of all: kiddushin. Once you have done kiddushin, now return to everything that existed before the Torah was given. Take her after twelve months—back then it was twelve months—bring her into your home and live together as before. You just have to place the concept of kiddushin before it.

What is the practical difference? If, for example, I live with a partner without prior kiddushin, are we married? The answer is yes, of course we are. Just not according to the law. It is a transgression, the neglect of a positive commandment in this case or something like that—it doesn’t matter, there’s a dispute between the Rosh and Maimonides, and one can also split hairs about that. This has all kinds of implications that have to be discussed. Not everything is written explicitly; you can infer it from many places. I wrote a few articles about this once. But these are sources from which it is very hard to extract a full picture, though from many places one can see that this really is the situation. So I don’t know how to answer every question about what exactly this means, but some of the questions yes, and I’ll try to explain.

The basic claim is this: the concept of kiddushin, or the Torah’s concept of couplehood, is not constitutive but regulative. Natural couplehood existed and remained, even after the Torah was given. All the Torah wants is that we add another story on top of it—or build another story beneath it, if we speak chronologically. Kiddushin comes first and marriage comes afterward. That’s all. But it doesn’t cancel the basic story. That’s why, for example, there was once the proposal of Rabbi Dichovsky, based on the Rogatchover, that one should recognize civil marriage or cohabitation of a couple—as is common today among many people—as Noahide marriage. And this has halakhic significance too. He wanted to argue that it also requires a bill of divorce. I think that’s wrong, but never mind; he wanted to say that this has halakhic status. It is Noahide marriage. It wasn’t done according to the law because they didn’t first perform kiddushin, but it has status. The Torah recognizes it just as it existed before the Torah was given. The Torah does not change what existed before the Torah; it only adds to what existed before the Torah. If you didn’t do it the way the Torah said, then you did something improper, but you can’t say you aren’t married. You are married.

Let me continue, and maybe it will become clearer. What I really want to say is that when Maimonides describes here the pre-Sinai situation, this is not a historical story. It is part of the law. He is saying that in the marriage process there are two stages. Stage one is kiddushin, and after that there remains the natural stage that always existed; you just have to place the kiddushin stage before it. That’s all. This is the two-story model I spoke about earlier. That’s why he brings the history here. He doesn’t bring the history so we’ll know what happened then. It exists today too. Today too it exists. You are married in every respect if you live together without prior kiddushin. It just isn’t proper, because kiddushin is supposed to come first.

By contrast, there is the process of divorce. In divorce, we basically have to dismantle both components. If we want to dismantle the home, we must dismantle the kiddushin and dismantle the marriage. How do you dismantle the marriage? Just like before the Torah was given: he simply sends her out of his house. But you haven’t dismantled the kiddushin. Kiddushin is a formal halakhic legal act, so to dismantle it you also need a formal halakhic legal act, and that is called divorce—the bill of divorce, giving the bill of divorce. Giving the bill of divorce is the dismantling of the kiddushin; sending her out of his house is the dismantling of the marriage. Usually this happens together. When you give the bill of divorce, the home is thereby dismantled too, and the two things are done together. But not always, as we’ll soon see. Not always. Sometimes we dismantle the marriage, but we still remain in a state of kiddushin until a bill of divorce is given.

And this is what Sefer Ha-Chinukh means. Sefer Ha-Chinukh says that if you send the woman out of your house, you have divorced her—she is divorced. But you did not permit her to the market, because the prohibition with respect to the outside world is due to kiddushin, not due to marriage. Okay? So once you didn’t give her a bill of divorce, you didn’t dismantle the kiddushin. So you send her out of your house and leave her with nothing. She cannot marry anyone because she is forbidden to the whole world, and to you she is no longer your wife because you sent her out of the house—this is a great injustice. One may not do such a thing. If you want to dismantle the marriage, you must give a bill of divorce. If you want to dissolve the marriage and he did not give a bill of divorce, he neglected a positive commandment. That is a neglect of a positive commandment. There is also no punishment for this if you did not give a valid bill of divorce—of course, when you want to dismantle the home. Therefore there is no commandment incumbent on everyone to divorce his wife with a bill of divorce. But if they decide to divorce, they must do it according to the law. And if you do not do it according to the law, that is neglect of a positive commandment. A conditional positive commandment, right? Like fringes. If you have a four-cornered garment, then you put fringes on it; same here. If you want to divorce, this is how you do it. If you don’t want to, then of course don’t do it. And if you do want to divorce, this is how it is done. It’s a conditional obligation.

So what does that really mean? It means that kiddushin and divorce are a regulative system rather than a constitutive one in Jewish law. The laws of kiddushin and divorce are a regulative system. Notice: tractate Kiddushin deals with kiddushin; tractate Gittin deals with divorce. All the tractates deal exclusively with kiddushin and the bill of divorce. Almost nobody talks about marriage itself. There are almost no discussions about marriage. You don’t need witnesses either; it isn’t a ceremony. Some claim you do, but I don’t think that’s right. It isn’t some formal ceremony in a legal sense. Why not? Because this is what people always did. We do the same thing today too: decide to live together. The formal, legal, halakhic part here is kiddushin. That is what the Torah tells us to add beyond the natural process. Okay? And regarding that there are all kinds of definitions: how one performs kiddushin, how one does not, what one does and doesn’t do, and so on. This takes effect, that doesn’t, because all of that requires juridification—it’s the legal dimension of the matter. There is the human, natural, ordinary dimension—living together or not living together. There are no definitions there. If you live together, you live together; if not, not. Is marriage not an acquisition? It is an acquisition—what do you mean? Why not? What does that have to do with it? No, maybe it’s simply the stage of living together. It’s an acquisition that has to be placed before living together. Not an acquisition in the sense that she belongs to me, if that’s what you mean.

Okay, I’m saying: if kiddushin is the halakhic part and marriage is the natural thing, then the wedding canopy, for example, isn’t some acquisition that is done between the couple? Of course not. The wedding canopy means bringing her into his house. That is the marriage. Right. There is Rav Huna on Kiddushin 5a, the question whether a canopy acquires by an a fortiori argument, and the whole discussion there in the Talmud—that’s another matter. There it may be that the canopy could also create the formal aspect. But the canopy as we define it in the conclusion of the discussion is not that; only money, document, or intercourse. In the end, what the canopy does is simply bring her into his house, that’s all. Under the canopy there shouldn’t need to be two witnesses in my opinion. It isn’t necessary, just… What? But for the seclusion room in the evening you don’t need two witnesses? No, in my view no. Once it is publicly known that they live together, then they live together, that’s all. You don’t need to designate two witnesses so they’ll stand there and see. It has to be publicly recognized. In Noahide marriage too, if you live together and the public doesn’t know about it, then you are not married as Noahides. It needs to be something established in the social sense, but not in the legal sense. That’s the point. It doesn’t need witnesses as a legal requirement. It needs to be publicly known, and people should recognize you as a married couple, that’s all. The Rosh writes that there are witnesses at every entry… No, in my view no.

So that is the claim. Now let me try to pour a bit more content into it. Because this is the two-story structure I spoke about earlier. Now let’s see what these two stories mean and what the order between them is. You understand that this is a structure of LIFO first of all—Last In, First Out. You begin with kiddushin, continue to marriage. In dissolution, you dismantle the marriage—you send her out of his house—and then you dismantle the kiddushin. Right? What happens if you sent her out of your house but haven’t yet given her a bill of divorce? You are engaged. You’re not married—she is no longer married, she isn’t in your house. But no one can have relations with her because you haven’t dismantled the kiddushin. You have returned to the state of engagement. That’s my claim. And if someone has relations with her, is she treated like an engaged woman? Yes, of course. In every respect. She is an engaged woman. And between them too they may not have relations—he may not have relations with her? Yes. That is exactly the Talmudic case—this is called “divorced in his heart.” Between the bill of divorce and the sending out of the house—yes, “divorced in his heart” is the term—there is a prohibition from the Writings to have relations with her. So that is one of the examples I’m going to bring now.

Look what the Talmud says in Gittin 17: from the moment he set his mind on divorcing her, he no longer has rights to the produce. Notice: not from the moment he gave her the bill of divorce, but from the moment he set his mind on divorcing her. Why? What does it mean that once he set his mind on divorcing her, he no longer has rights to the produce? Because from the moment he set his mind on divorcing her, she is “divorced in his heart.” The home no longer exists. He hasn’t yet given the bill of divorce; there’s procedure, arrangements, you need to organize the rabbi, the scribe, the witnesses, all those things. Fine. But you already decided to be separated, what today’s world calls separated. This is exactly the state of separation. You have returned to the state of engagement. What happens in engagement? He does not have the usufruct of her melog property. That belongs only to marriage. So when he sets his mind to divorce her, they revert to being engaged. That’s all. He has no produce rights.

There is a Talmud in Bava Batra, and the Rashbam there, and afterward the Rashash adds some more things there, that from the moment he sets his mind to divorce her, he may not become impure for her. That is already Torah law. Produce rights are rabbinic law, relating to melog property. But not becoming impure for her is Torah law. A priest may become impure for his wife: “his close relative”—that means his wife. She is no longer his close relative from the moment he sets his mind to divorce her. Why? Because she is not his wife; she is his fiancée. She has returned to the state of engagement. There are questions about redeeming her and all sorts of things—I brought them in the article; if you want I can send the article. I brought there all kinds of implications. Of course having relations with her is forbidden; that is from the Writings. “Divorced in his heart,” one of the nine defective types. So the moment he wants to send her away, they may not have marital relations. Exactly like engagement. Now it’s not like an unattached woman. There is still a bond between them. And as long as there was engagement but not yet marriage, there should be no intimate relations between them. Because it is a state of engagement, as long as there was no marriage. So this is a state of engagement: once he set his mind on divorcing her, they returned to being engaged. That’s all. He may not have relations with her. Obviously not a prohibition of another man’s wife, but a prohibition based on propriety, because they are not yet married, that’s all. Okay? And there are several more examples one can show.

For example, a priest married to a divorced woman becomes disqualified. He must separate from her. From the moment he vows to remove her, he may return to Temple service. There a vow is required; it’s not enough merely to decide, because that’s a more serious matter. It has to be clear that after this the home is dismantled. The bill of divorce is still missing, but the home is dismantled. And still we see that even without the bill of divorce he may return to service. He is no longer disqualified. That means there are all kinds of examples—there are more examples—various examples from which one can see this. It’s all scattered here a little and there a little. Nobody presents this picture in an orderly way. But it seems to me that when you collect all these things together, what emerges is that kiddushin and divorce form a two-story model. There is the natural story, and the Torah adds another formal story. On the way in, it adds it beforehand: first kiddushin and then marriage. On the way back, it is added afterward—that is, first separation and then giving the bill of divorce.

No, only because you said the first story is not necessary for the second story. What do you mean not necessary? I mean I don’t need the first story in order to define the second story. You do need it because the Torah requires that you perform kiddushin before marriage, halakhically. How does it happen among non-Jews, for example? You will be married even without the first story. You’ll be married in Noahide marriage. Yes, because according to this the first story is somehow necessary for the second story. No, no. The first story is a halakhic requirement that conditions the second story halakhically, but that’s exactly the point. Even if you didn’t do it, the concept of marriage is created here. In other words, you are married.

So for example, I really think that in this sense it may have many implications today—recognition of civil marriage, one can talk about Noahide marriage in many contexts, even where there is a prohibition or Jewish law in general does not permit such a thing, and so on. It doesn’t matter. There is a concept of marriage that has some kind of standing, even in the halakhic sense. Now Rabbi Dichovsky argues that it also requires a bill of divorce, at least as far as I remember. In my opinion that is not correct, because the role of the bill of divorce is to dismantle the kiddushin. And when I speak about these marriages, I mean precisely doing it without the formal dimension. Rather, doing—yes.

When my eldest son got married, I spoke there under the wedding canopy. I said: why do we read the ketubah under the canopy? It’s really a depressing thing. “From where payment may be collected, from the cloak on his back, and from dowry assets and non-dowry assets…” Everyone sees cupids flying in the air, arrows flying, angels, rosy-winged creatures, and meanwhile you’re reading: from where will they collect from him—from the cloak on his back, and these properties and those properties. “We are witnesses,” and two hundred zuz and so on. The whole public suddenly turns into one huge legal forum. What is this? Well, people always say it’s to separate between marriage and kiddushin; fine, you could also do a short hora dance to separate them. Why read the ketubah?

I think there is an idea behind this—again, probably not consciously—but I think there is a very correct idea behind it. Before you get into the cupids and angels, first of all know that there is a contract here. And this contract must be honored. First of all. Put the romance aside. Romance—afterward, if it comes, welcome, wonderful. But this is not built on romance; it is built first of all on commitment. And therefore the contract must be read. After that he’ll give her a ring and everyone will dance and see all kinds of angels. But yes, I once heard from Rabbi Big—he officiated at the wedding, that’s why I remembered this in connection with him—I once heard in his name from Gush that under the canopy he actually sees flying vertebrae, not angels. So I really connected to that; I’m like that too.

In any event, the claim is that the formal dimension that the Torah adds—kiddushin on the way in and divorce on the way out—regulates the way we perform marriage. But it’s not that without it nothing happened. Were you together without kiddushin? The children still are not mamzerim. Because there is no prohibition of intercourse. Mamzer is a halakhic concept. If there is a prohibition of intercourse, it is by virtue of kiddushin. If there is no kiddushin, there is no prohibition of intercourse. There is a Noahide prohibition of intercourse, which is more of a moral prohibition, let’s call it that, or something like that. But you don’t get a “moral mamzer,” maybe, for the child—I don’t know. Mamzer is a halakhic concept; there is no moral mamzer. Mamzer means something legally defined; to say “moral mamzer” is a contradiction in terms.

So the basic claim is that the legal system of kiddushin and divorce regulates the concept of marriage and does not constitute it. That is why Sefer Ha-Chinukh says that if you divorced her but did not give a valid bill of divorce, then you are divorced outside the house, but you did not permit her to the outside world. Not okay. You neglected a positive commandment.

Let me perhaps bring another example of this issue of the giving of the Torah, because two-story models are usually connected to the giving of the Torah. I once wrote an article about the rule “the verse repeated it in order to invalidate.” Are you familiar with this rule? There is a Talmudic rule that with sacred offerings we require “the verse repeated it in order to invalidate.” Usually when a law appears in the Torah, it is indispensable. If there is such a law, then it is indispensable. Non-indispensable laws maybe need special indication to show that they are not indispensable. But in principle, laws are indispensable. In sacred offerings, they are not. In sacred offerings the assumption is that if a law is written, it is not indispensable unless the verse repeats it—unless it is written again. If Scripture repeats it, writes it again, or writes “an eternal statute”—there are various hints the Torah can give—then it also becomes indispensable. But the default is that if there is nothing additional, the mere fact that a law is written does not make it indispensable. With sacred offerings we require “the verse repeated it in order to invalidate.” The question is why. And why specifically with sacred offerings?

My claim was based on the Talmud at the beginning of chapter four of Berakhot. The Talmud says: what happens if someone prayed after noon? The Talmud says: he has the reward of prayer, but not the reward of prayer in its proper time. Now the question is how to understand that. According to Maimonides I can understand it, because Maimonides says that prayer itself is a Torah obligation, while its times and text are rabbinic. But the basic prayer is a Torah obligation. So if you prayed not according to the Sages’ rules—the times are rules of the Sages—then the Torah-level element exists and the rabbinic element does not. You have prayer, but not prayer at its proper time, and prayer at its proper time is rabbinic. But according to Nachmanides, who says it is all rabbinic, how should we understand this?

So I argue that the concept of prayer existed before the Torah was given. The patriarchs prayed. The concept of prayer was not created at Sinai. Rather, the Torah came and said: pray—according to Maimonides—or according to Nachmanides the Sages came and said: do it this way, do it that way, three times a day, at these times, with this text, and so on. Did they come to uproot what existed before the Torah was given and replace it? In other words, if today I pray not according to the Sages’ format, is it worthless? What Abraham did—if I do exactly the same thing—he received great reward for it, it was something beautiful, he prayed to God, he served Him, and I do exactly the same thing: nothing? Worthless? Nonsense? Superfluous? I did it after noon, the time for acceptance is over? That doesn’t sound plausible, right? Far more plausible to say: reward as prayer, though not prayer in its proper time. Just as Abraham had, so I too have. The Torah did not come to uproot what existed before the Torah was given. If something had value before Sinai, why assume that after Sinai it lost its value? The Torah is only saying: I want to direct you to do it properly. Do it—or the Rabbis in this case—at these times, in this text. Didn’t do it? Fine, then you have prayer but not prayer in its proper time. Seems obvious to me, right? There is no reason to assume the Torah came to uproot something we know has value naturally, not by virtue of the Torah.

And that is the claim regarding prayer. What is common to prayer and offerings? Both are forms of worship. Right? “What is worship of the heart? Prayer.” But the Book of Worship in Maimonides is about offerings. Okay. The concept of worship of God is first of all a natural concept; it was not created by the Torah. The Torah regulates it, not constitutes it. What does that mean? The patriarchs also offered sacrifices. Did they do it according to all our rules—sprinkling and timing and piggul and all those things? Obviously not. They offered a sacrifice to the Holy One, blessed be He. If I do the same thing now as the patriarchs did, is it worthless? Worth nothing? No, of course not. Just as what they did had value, so too when I do it, it has value. The Torah says to me: yes, but you need to do it in such and such a way—eat it within a day, not beyond its time, not beyond its place, all sorts of things like that, for its own sake or not for its own sake, and all those discussions. The Torah tells me how to do it most properly, how to do it in a more perfect way. This is the proper way to do it. But if I didn’t do it that way—fine, then I have reward as an offering, just as Abraham offered, not prayer in its proper time but prayer itself; similarly with offerings.

What does that really mean? It means that for a Torah law to invalidate—what does “invalidate” mean? It means that if you didn’t do it, what you did doesn’t count. It’s worth nothing. It is disqualified; what existed before the Torah was given has been disqualified. For that you need a separate source. If the Torah tells you to offer the sacrifice in a certain way and I didn’t do it that way—I did it like Abraham—why shouldn’t that still be regarded as valuable? If the Torah wants to say, “Look, I am telling you that what Abraham did is now canceled, it has no value anymore,” then it has to write it again, or write “an eternal statute,” or give us some indication that this really comes to replace the previous situation and not simply add to it. Whenever something is indispensable, that’s what it means. Of course many things are indispensable, because they have “eternal statute” or repetition and so on. But basically an additional source is needed to make it indispensable. Once it is indispensable, fine, then there is liability to death—yes, yes, then nothing remains. If it is indispensable, nothing remains. The novelty of repetition or writing “an eternal statute” is exactly that. It tells you: no, the worship that existed previously has ended; we are coming to replace it, not to add to it. And therefore we need the verse to repeat it in order to invalidate; it has to write it again, it has to write “an eternal statute,” because without that, why should we assume that what was good then is no good now? It may be better—do it perfectly and that will be excellent. But if you don’t do it perfectly, it may still be very good, just not perfect. What’s wrong with that? Unless the verse repeated it, or it says “an eternal statute,” or things like that. Exactly as we saw regarding prayer.

And the whole idea of worship—prayer and offerings—is that worship of God existed before the Torah was given. And there is no reason to assume that after the Torah was given, that worship would lose its value. It is worship of God; it is offerings, it is prayer, and everything. In those places where it was decided that it nevertheless loses its value, that the Torah came not to regulate but to constitute—that is, it cancels what existed before and doesn’t merely regulate it, saying “do it better”—for that one needs a separate source, an additional source. That’s all.

This is exactly the same thing we saw before with this Maimonides on divorce and kiddushin, except that here it really remains—they did not cancel it; they added to it. In sacred offerings too, the default is not cancellation but addition, unless Scripture states that it is canceled. If Scripture states that it is canceled, then fine. But it is a two-story model in which the second story can sometimes newly declare that the first story has been canceled. And when it does not declare that, then it truly is a second story while the first story remains in place. But in principle this is a two-story model. And the two-story model is always Sinai. Before Sinai there was a certain state; the question is whether the Torah came to regulate the existing state or to constitute a new one, meaning that the old state no longer exists. Now if you didn’t do what the Torah says, then you did nothing, it has no significance, nothing happened—that is what “constitutive” means. And I claim no: this system is a regulative system, not a constitutive one. And the system of offerings too, which looks more like a pure scriptural decree, is also a regulative system, not a constitutive one. Therefore the sacrifices offered by the patriarchs—they didn’t do them according to the rules, fine, it was some kind of religious impulse, I don’t know exactly why—they thought it was right to offer a sacrifice to the Holy One, blessed be He. Someone who does that today as well, that’s something of great value, everything is fine.

Now offering outside the Temple really is an invalidating condition and a prohibition. Why? Because it was newly established that it invalidates. They told you: no, only in the place that He will choose; only there shall you sanctify and offer, and do not offer outside. That is a special innovation that has to be stated. If it is stated, then very good. But if it isn’t stated, why assume that is so? Offer wherever you want. So I’m saying this parallels what we saw here in divorce and kiddushin. Basically this is a kind of two-story model.

One can see—I explained by means of this various difficulties in that discussion of “the verse repeated it in order to invalidate”; it also appears only with a prohibition and not a positive commandment, and there are all sorts of derived prohibitions from positive commandments, and medieval authorities and later authorities discuss all kinds of things there, and it all looks like scriptural decrees. But once you understand it this way, it becomes very sensible, simple reasoning, quite compelling.

By the way, regarding this rule that “the verse repeated it in order to invalidate” in sacred offerings, there is no source, at least none that I know of. In other words, the Sages arrived at this idea by reasoning. Ask any learner and he’ll tell you: fine, this must be a scriptural decree. Why should sacred offerings not be invalidating while all other places are invalidating, and with sacred offerings we require “the verse repeated it in order to invalidate”? Where does that come from? Or maybe it’s a tradition from Sinai, a law to Moses from Sinai—there’s no source. No. Here, it’s a simple rationale. There’s a very simple explanation. If you look at it this way, I think it’s very straightforward.

Okay, I’ll bring yet another example of such a model, which is also connected in one way or another to Sinai. And that is the model of Jew and Noahide. Basically it’s like what we saw in Maimonides: divorce and kiddushin are a model where among the Noahides, on the universal level, there is natural marriage and divorce. And among Jews there is a regulation to do it with a prior story, with a lower story, okay? A certain regulation. But once again it’s a two-story model where the first is universal and exists throughout the world for all humanity, and the second is our particular one, for Jews.

Okay? I want to argue that the same thing exists not only in divorce and kiddushin but in other places too. Let me bring an example. In Sanhedrin 56 the Talmud discusses “stumbling block and disgrace.” If an animal was used in a sexual transgression—someone had intercourse with it, violated it—then the animal is killed. The question is why it is killed. There are two opinions there in the Talmud: either because of stumbling block or because of disgrace. “Disgrace” means that when it passes through the market, people will say, “This is the animal with which so-and-so committed the act,” and that disgraces so-and-so. If “because of stumbling block,” that means a transgression came about through it—that is, yes, these are two reasons.

Now the Talmud there discusses the case where an animal was used by a minor, and even then the animal is killed. The question is why. According to the reason of stumbling block at least—set aside the reason of disgrace—but according to stumbling block, what’s the problem? There was no transgression here; he is a minor. There was no transgression. A minor is not subject to commandments. So if a minor had intercourse with it, he did not commit a transgression, so no stumbling block occurred. Several later authorities ask: then what’s the problem? We see from here that a minor also, in some sense, belongs to the realm of commandments. This too is called a stumbling block. He is not punished, but the transgression exists. The Pri Megadim goes very far. He argues that all prohibitions apply to a minor, in his general introduction. He just says there are no punishments on him. And he compares him to a mentally incompetent person and a deaf-mute: the mentally incompetent and the minor lack understanding, so in terms of responsibility they have no responsibility, but in principle the halakhic obligation exists in all of them. That is very hard to say, because then why does he not discharge someone else’s obligation if he himself is obligated? I don’t know—one can debate a lot about what he says; I think he took it a bit too far. But on the conceptual level, several later authorities say this. The Chelkat Yoav, Rabbi Isaac Elchanan in some responsum, and Or Sameach in one place. There are several later authorities who say this: that we see from the discussion of stumbling block and disgrace that the minor is really connected to commandments too.

On the other hand, all these later authorities ask from Yevamot 33. The Talmud there discusses the rule that one prohibition does not take effect on top of another. It asks there what is a case of two prohibitions taking effect simultaneously—because when prohibitions take effect simultaneously, one prohibition can take effect on another. If they are inclusive, adding, simultaneous, or if the second is more severe—there are several exceptions to the rule that one prohibition does not take effect on another. So what is “simultaneous”? The Talmud gives the example of a minor who served in the Temple in impurity and then developed two pubic hairs. So he also violated Sabbath and also served in the Temple, and this is called simultaneous because from the moment he developed the hairs, he becomes liable. Both liabilities take effect on him at once.

So these later authorities ask: what do we see? That until he developed the hairs, the liabilities did not take effect on him. So a minor does not belong to commandments, because clearly the liabilities take effect only from the moment he developed two hairs. So how does that fit with stumbling block and disgrace? That’s what they ask. Ah—so all these later authorities, four or five of them, each in his own style, basically say that the distinction depends on what type of prohibition we’re talking about. Is it a prohibition that has a rationale, what one might call rational commandments, or ritual/religious commandments—however you want to call them? The prohibition of a non-priest serving, or serving in impurity, or something like that, is a religious commandment. Right? A religious commandment exists only once he develops two hairs, only in adults. But bestiality, or what we might call moral or rational commandments, there they argue that it applies even to minors. What is the proof? A gentile is also obligated in these commandments. And a gentile does not become obligated at bar mitzvah, right? With gentiles there are no fixed measures. The Rosh writes this, and then the Hatam Sofer expands it: with gentiles there are no legal measures. Measures are a law to Moses from Sinai. Gentiles were not given measures. So what is the measure of adulthood for a gentile? That too would be a measure. Two hairs or age thirteen—it’s a rabbinic presumption, doesn’t matter—but there is some measure. What is the gentile’s measure of adulthood? From the moment he understands. Substantively, not as a fixed measure. As soon as he understands, then there’s no talking. From the age of understanding, he is obligated. That’s what Hatam Sofer says in light of the Rosh, who says that measures were not given to gentiles.

So what does that mean? That a gentile is obligated in moral or rational commandments from the moment he understands. Right? But only in those commandments. In religious commandments there is a rule that says only from adulthood, only after two hairs, age thirteen, something like that. Now what happens with a Jewish minor regarding commandments that gentiles are also obligated in? It can’t be that the gentile is obligated and the Jew is exempt, because the Talmud there in Sanhedrin, almost in the same place—on the previous page, I think—says: “There is nothing prohibited to a Noahide that is permitted to an Israelite.” In other words, what does the Talmud say? That within every Jew there is also a small Noahide. Every Jew is also a little gentile. Yes, I mentioned here once, right? What is a “great nation”? “A great nation” is only said about Jews, right? Have you ever heard anyone say “a great nation” about an actual non-Jew? If someone says “he’s a great goy,” obviously he means a Jew, right? “A great goy” is only a Jew. So in every Jew there is also a small gentile.

In other words, the model is two stories. Every Jew is first of all a human being, ordinary like every other human being, and besides that he has another story—we’ll call it halakhic for now, without speaking about mystical qualities, the Jewish point, and all those things. But on the halakhic level, first of all he is a human being obligated in all the obligations of human beings, and on top of that he is obligated in the particular obligations of Jews. Right? Now in the obligations that Noahides are bound by, they are bound from the time they understand—say age seven for the sake of discussion. I don’t know why people always say six is the age of understanding; there’s no such concept. So I deliberately said seven. Fine, say age seven. Then a Jewish seven-year-old who understands will be obligated just like Noahides, by virtue of the Noahide within him. Okay? The commandments newly imposed on us by the Torah—the Torah says those are only for adults. The one who forbade is the one who permitted. The Torah imposed them and the Torah said it imposed them only on adults; minors are not obligated.

But commandments that I am obligated in by reason—if I am obligated by reason, then from the moment I understand the reason I am obligated. It has nothing to do with Torah obligation. It’s not that the Torah neither exempted nor obligated me; I understand it by reason. The formal obligation may begin at age thirteen, but the rational obligation exists always from the moment I understand. I am no worse than a gentile. There is nothing prohibited to a gentile and permitted to an Israelite. So what does that mean? That if it is prohibited to a gentile, then it is prohibited also to an Israelite. No difference. So, for example, bestiality—in that very discussion of stumbling block and disgrace, where the gentile too is obligated in it—therefore the age from which you are obligated, or at least connected to it, is from the moment you understand. In Yevamot, where we are talking about Temple service in impurity or by a non-priest or something like that, that is a religious prohibition. The Torah established the prohibition and the Torah also said it applies from age thirteen, from two hairs. Therefore there it does not apply to a minor. There is an example—what? In a case where he doesn’t understand regarding the animal? Then no. Is that not a stumbling block? No. That is what I want to argue according to this explanation, yes.

Let me bring another context where this appears. Maimonides writes, I think in the Laws of Hiring, that one does not administer an oath to a minor because he does not understand the punishment for an oath. Why do you administer an oath to someone? Because he is afraid to lie if he swears, right? Without the oath he’ll lie. But if he swears, he is afraid to lie. If you don’t understand the punishment for an oath—you are a minor, you have no understanding, you don’t understand the punishment for an oath—then what is the point of swearing him? You won’t gain anything. Okay? Therefore one does not administer an oath to a minor because he does not understand the punishment for an oath.

But that wording is very strange. It should say: one does not administer an oath to a minor because the punishment for an oath does not apply to him, not because he does not understand the punishment for an oath. It doesn’t apply—he’s a minor. If the minor is a genius, would you swear him? He understands the punishment for an oath. Of such a child I would be most careful. If he’s a genius, then he knows that the punishment doesn’t apply to him, so he’ll certainly swear without a problem. So what does it mean, “he does not understand the punishment for an oath”? It should be because no punishment applies to him, not because he doesn’t understand it. What kind of strange wording is that?

Rather, what follows? The punishment does apply. Why? Because an oath is an obligation of reason, and therefore there is punishment even for a minor who swears. Not court punishment—punishment from Heaven, doesn’t matter. Court punishment is only for adults. Why? Because court punishment is a Torah innovation. The transgression involved in an oath is a natural transgression, a moral or human one, however you want to call it, and so it exists also in a minor. The punishment, lashes—those are Torah innovations. Torah innovations were said only regarding adults. So he does not deserve punishment, but he committed the transgression. It can deter him; in principle you could administer an oath to him. Say there is a minor who understands the punishment of an oath—then indeed one could administer an oath to him, because punishment does apply. The whole question is whether he knows. If he doesn’t know, that too is relevant to punishment, because then he would also not be punished, since he is under compulsion. But on the conceptual level, what matters is that punishment applies to him, not whether he knows. That’s the point.

Where do we see such a thing? There is a responsum of Avnei Nezer, Yoreh De’ah 306. Avnei Nezer discusses there the question of a written oath. As is known, the later authorities disagree about this—Rabbi Akiva Eiger and others. What happens if someone swears in writing? In principle an oath requires explicit verbal articulation. An oath or vow needs spoken expression. But writing is like speech, and therefore some later authorities want to argue that a written oath is also binding, like speech—writing is like speech. And others say not. Avnei Nezer discusses this and brings a responsum of Ri Migash. Ri Migash addressed this explicitly and says: it is prohibited; a written oath is binding. Then Avnei Nezer explains why.

He says: yes, explicit articulation is needed for lashes; in order to violate the Torah prohibition, explicit articulation is needed. But the obligation to keep your oath is an obligation that existed before the Torah was given and is not connected to the command at Sinai. Why assume that this obligation only applies with explicit articulation? As long as you swore, you must keep your word. You won’t receive lashes if you don’t keep your word—that goes back to what I said before—but certainly there is an obligation of reason to fulfill it. And he has proof for this. What is the proof? Mishneh La-Melekh asks: the Talmud says in several places that an oath does not take effect with respect to a commandment, because one is already sworn from Sinai. One oath does not take effect upon another, and you are already sworn from Sinai to fulfill the commandments. So if you swear to fulfill a commandment or not to fulfill a commandment, it does not take effect; one oath does not take effect upon another.

Okay—where did we swear? I have no idea. It is not described anywhere that we swore at Sinai. I think it is a fiction, a legal fiction, like the social contract or something. They fit it into the pattern of an oath, but not that there was literally a historical oath there. It’s like the social contract. The social contract is the basis of moral obligation. Did any of you ever sign the social contract? I didn’t. But the assumption is that there is some fiction here according to which everyone is implicitly signed, and therefore is obligated by it. These are legal fictions, and this too is a legal fiction. Like agency by proxy and other fictions in Jewish law. So the claim of Mishneh La-Melekh is that we swore at Sinai. If the Talmud says that we stand sworn from Sinai, then he doesn’t understand: how can we have been sworn at Sinai to keep the commandments? After all, our whole obligation to keep an oath comes from the commandments. So how can we swear to keep the commandments? The tail is in its own mouth—a loop.

Avnei Nezer’s answer—I think Mishneh La-Melekh remains with this unresolved—is exactly this. What does it mean? There is an obligation of reason to keep oaths. Obviously. Abraham and Eliezer swore; they both swore there; there are oaths even before Sinai. Oaths are something binding not at the halakhic level—there are no lashes if you don’t keep them—but clearly this is a moral, human, evaluative principle: you must keep your oaths. And when the people of Israel were sworn before the Torah to keep the Torah, maybe there would not yet be lashes for that, but there was certainly an obligation to keep the oath. That is the concept of an oath. And after we swore to keep the commandments, now we also accepted upon ourselves “he shall not profane his word,” and now we would also receive lashes if we do not keep the oath.

In other words, before Sinai we have an obligation to keep an oath, a moral obligation, okay? After we accepted the Torah, now all the halakhic patterns begin—laws and so forth. This is his proof. So therefore, of course with a written oath too, there is an obligation of reason to keep oaths regardless of the Torah, even before the Torah. And if so, then also—by the way, many difficulties in Maimonides can find a solution in Ri Migash. Ri Migash was the teacher of Maimonides’ father, and Maimonides as a little child still saw Ri Migash. He writes about him and says: “I saw the face of the man who resembled an angel of the Lord of Hosts.” He saw Ri Migash as a small child. And he was the teacher of his father, Rabbi Maimon the judge. I think quite a few things over which people become very tangled in Maimonides can be traced back to Ri Migash. One can see that it explains Maimonides. And here too it is so. Maimonides, when he says that one does not administer an oath to a minor because he does not understand the punishment for an oath—that’s because an oath does have punishment. He doesn’t know about the punishment, so don’t swear him, but there is punishment for an oath. Punishment by Heaven, not in court. Okay?

And this is exactly like this Ri Migash regarding a written oath. Suppose in this case—I don’t know whether there would be implications—but if there was an oath before Sinai, then perhaps we would also need “the verse repeated it in order to invalidate.” What do I mean? Because with sacred offerings we need “the verse repeated it in order to invalidate.” If I want to exempt something then I need… In other words, perhaps with oaths too there should be a rule of “the verse repeated it in order to invalidate.” Maybe. I hadn’t thought about it. Could be, yes, sounds logical. Yes.

Apparently there would be a proof, a difficulty for Rabbi Butchko, regarding monetary law: does it obligate or is it just a proprietary definition? It has to be that it obligates. Yes, because merely to define an oath has no significance. Yes, that’s basically the same claim I made about property itself. The same with an oath, right? That’s another solution. Right. Although you could define that this is an oath without punishing for it. It’s like defining that you are an owner but I’m allowed to take from you. I don’t see the difference. There too it’s the same thing; it is equally absurd.

So what I see here in Maimonides is that the prohibition of an oath also belongs to those prohibitions like bestiality, and therefore it applies to minors too. That’s what one sees. There is Rav Nissim Gaon in the introduction to the Talmud—you know, in the first volume of the standard printed Babylonian Talmud there is a little page in small print with Rav Nissim Gaon’s introduction to the Talmud. There in the introduction he asks: we know there are seven Noahide commandments. But if you count, there are many more. Thirty, or even more than thirty. And not only that, but each of those thirty corresponds אצלנו to several commandments, because in our system it’s more detailed. Gentiles are obligated in dozens, even hundreds of commandments. It’s just divided there into categories. אצלנו each such thing is a separate commandment. Sexual prohibitions are one thing there; אצלנו there are many separate prohibitions. Gentiles are obligated in many commandments. So why do we say seven Noahide commandments?

He answers that seven things were specifically commanded. All the other things—he says—they are obligated in not because they were commanded, but because anything that depends on reason and understanding of the heart, every human being has always been obligated in it from the beginning. Every person is obligated in it; no command is needed for this. And that is really what I want to claim here. Okay? No command is needed, and therefore a Jew too, even when not yet commanded—because he is only commanded from age thirteen—but no command is needed; he is obligated in it even without a command. Therefore the claim is that all the commandments incumbent on Noahides—and Maimonides writes about this in the Laws of Kings, chapter 10—he says they are commandments toward which reason inclines. Noahide commandments are commandments that have a rationale. All the Noahide commandments, at least according to Maimonides. And that means that once there is a rationale in these commandments, the Jew too is obligated in them. So what if he was not commanded? Since there is reason here. In matters of reason, everyone who understands the reason is obligated. You don’t need definitions of who is obligated in reason and who is not. Okay? If you understand the reason, then you are obligated.

So therefore the claim is that a minor is obligated in these commandments. The later authorities I mentioned earlier don’t formulate it this way. They go formally. They say: since the gentile is obligated, and for a gentile the age is young—from age six—and there is nothing the gentile is obligated in while the Jew is exempt, therefore the Jew too from age six is obligated, or from the age he understands. That is true, but that’s only the syntax, not the semantics—or the other way around: only the syntax, not the semantics. That’s the bare logic without the explanation. What is the explanation behind it? The explanation is that gentile commandments are commandments of reason, and commandments of reason bind everyone who understands the reason, so therefore the Jew too is obligated. That’s the point.

So what does this really mean? It means, once again, that we have a two-story structure. First there is the universal platform, the platform of the Noahide, the human being as such. On top of that there is a second story, the Jew. Fine? And the Jew is both stories; he is not only the second thing. Let me perhaps give a practical implication. There are various people, usually from the liberal side, who criticize the conversion process. They say: why do you check kosher observance or family purity, and not moral commandments? That he not steal, that he not murder. Someone once wrote: why is Yigal Amir a Jew who sinned, but someone who eats non-kosher is not a Jew, not religious? Fine? What—murder is less severe than eating non-kosher? Very reasonable question. But completely wrong. It’s just a mistake in logic. Why? Because it has nothing to do with severity. What does severity have to do with it? When you define—what does Aristotle say? How do you define something? To define something, you need to give the genus and the species. For example, the human being is a speaking animal. That is the definition of human beings, a speaking spirit. “Speaking spirit” means a speaking animal—that’s the Aristotelian definition. What does that mean? “Animal” is the genus, right? We belong to the class of animals. And the species is a category within that genus: the animal that speaks. There are animals that do not speak; they are other species within that genus. So a definition always says what broad class it belongs to, and what distinguishes this specific species from other species in that class.

Now, when you define a person or define anything, you have to say what class it belongs to and what features are unique to it as opposed to the other species in that class. Right? Would you define a human being by the fact that he has legs? It’s true, every human has legs. Is that a good, successful definition? No. Is that because legs aren’t important? No. It’s because there are other animals that have legs. There is no point defining a human being by a parameter that is not unique to him. It’s simply not a good definition.

When you want to test whether someone is a Jew, you need to examine not the important things, but the things that distinguish Jews. So if he doesn’t eat kosher, then he is not a Jew—not religious, rather. Okay? If he is a murderer, then he is a criminal Jew. He doesn’t have story A, but he has story B. Therefore there is no logic in this—not because murder isn’t more severe; murder is obviously much more severe than eating non-kosher. But when you seek a definition, conversion means defining a person as a Jew. When you ask by what parameters you should test whether he fits the definition or not, the relevant parameters are not the important ones at all, but the ones unique to him relative to the other species in the same genus. That is what matters, not the important parameters.

And that is exactly the point: every Jew also first of all has to be a human being. But it is not right to define his Jewishness—or Judaism בכלל—by parameters of being a human being. It’s just not a successful definition. Therefore all those populist claims are mistaken—a mistake in logic, not in worldview or whatever. A mistake in logic.

So this basically means that the Jew is a kind of two-story structure. There is a human being who has certain traits of a Jew. What traits? Legal traits—he is obligated. Again, I don’t want to talk about mysticism. In my opinion there is nothing structurally different in a Jew from a gentile, certainly not the body and not even the soul. I don’t believe in all those things. But in terms of the kinds of obligations that apply to him, yes, it is two stories. There apply to him the obligations that apply to all humanity, and in addition he has obligations belonging to the second story that the rest of humanity do not have. Again, this is a two-story model. And the giving of the Torah came to add the second layer, not the first. Exactly like kiddushin. The giving of the Torah came to add the second layer, story B. Story A is already the Noahide layer. The seven Noahide commandments existed before Sinai. In fact even the Noahide command itself is unnecessary; everyone understands he has to be a human being. Therefore that too—and a Jew is obligated in that as well. Obviously a Jew is also obligated to be a human being. Besides that, he has more.

Yes, there are those who think—the common view, I don’t know if it’s the accepted one, but the common view is that once the Torah was given, everything else disappears: there are no moral obligations, no other obligations, because there is Torah. No. First of all you are a human being, and all the obligations that apply to every human being apply to you. In addition, you also have Torah obligations. There are situations of “the verse repeated it in order to invalidate,” meaning that there are situations where the Torah defines things in a way that may return and cancel something from story A. That may happen. But if it did not happen, then story A obligates you just as it obligates any other person. And if there are situations of conflict, say? No, no—what? There is conflict, right. There is conflict within story A too; there are conflicts within story B itself as well. So also between story A and story B. Usually there are definitions inside story B that handle it. Not always, not always. We do find definitions; one can find definitions here too. And the fact that there are conflicts proves nothing. There are conflicts within a system too. These are values on different planes, as it were. Okay, and therefore what? Substantively it will be harder to decide between them. Fine, then we have a practical problem, but no conceptual problem. The fact that there is a conflict between two things—so what? I am obligated to two values that conflict; okay, then I have to think what to do.

In fact, even in a conflict between two moral values there is the same problem. What in philosophy is called the incommensurability of values. Incommensurability means a lack of common measure. Values have no common scale. So if you ask yourself—for example Sartre’s example, where he spoke of a student of his during the Holocaust in occupied Paris. The student came to consult him whether to enlist in the Free French army, leave the country and fight the Nazis, evil itself, or remain to help his elderly sick mother, who had no one else—his brother collaborated with the Nazis, his father had been killed, and she was left alone. Okay? So that’s a dilemma. How do you decide such a dilemma? Very difficult question. And it is especially difficult because, yes, Leibowitz defined a value as something that is an end and not a means to something else. When you explain why something should be done, you point to a value that is realized or not realized, and that explains what should be done. But when you ask: and why uphold the value? There is no answer—just because. That is what should be done. I can’t ground the value in something more fundamental than itself. Values are the fundamental things in terms of which we ground other things.

And once you understand that, you see that when two values conflict, there is no way to decide between them. Because if a value serves nothing else, how will you measure two values on a common scale and decide which is more important and which less? For example, fighting evil versus helping one’s mother. In order to decide between them, you’d need to translate them both into the same unit and say: this one has seven units and that one has five units, therefore this is more important. But there would have to be a common scale by which you can measure both this value and that value. There is no such scale. Because if there were such a scale, what would that mean? That the value serves some further purpose, and then you can say this serves it a lot and that serves it less, and therefore there is a hierarchy between them. But if the value serves nothing, then in terms of what will you measure it? You can’t measure it. So how will you decide? That is the problem of incommensurability of values. And that is within morality itself, not between morality and Jewish law. Within morality itself there is, apparently, no way to decide. There is an answer to that too, and that answer also answers this issue in my opinion, but we won’t go into that here.

So the bottom line is that the two-story model is built exactly as we saw in kiddushin. There are universal obligations that apply to all humanity, and of course to Jews as to any other person, and then there are particular obligations. But the particular obligations do not erase story A; they are added to it. They do not erase it. Therefore moral obligations also apply to a religious Jew—this is news to some people, but that’s how it is. Religious people are also obligated in moral obligations. Why? Because they are like any other human being. More than that: morality by definition is universal. There is no Jewish morality and gentile morality. Morality belongs to story A, and since it belongs to story A it is by definition universal. There is no morality of the Torah and morality not of the Torah. There is morality, and whoever is obligated is obligated in that morality. There is no such thing as Jewish morality and some other morality, because morality belongs to story A, not story B. In story B there are things that belong to us and not to others. What belongs to story A obligates everyone who is on story A. Conceptually it is a mistake to speak of Jewish morality. Jewish morality is simply an oxymoron. That’s like saying there is a Jewish story A. There is no Jewish story A. There is story A, and story B is Judaism.

Interest, for example? Yes. Could that be understood as a kind of Jewish morality? No, a Jewish prohibition has nothing to do with morality. Interest? Yes, obviously. Is that a moral prohibition? Would you expect gentiles also to observe it? More than that, I myself too should not lend—even to a gentile? Because it’s immoral? Chaim Soloveitchik has a book—the professor, the son of Rabbi Soloveitchik—he is a historian. He has a book on Jewish law, economy, and self-image, about the laws of interest in the Middle Ages in Ashkenaz and Sepharad. He writes there that he searched through all the Torah commentators—not all, but all the central ones—and did not find anyone who saw a moral problem in interest. Why? He says: the Torah commentators offer no explanation. Why can you rent out a car but not rent out money? I rent you a car, you pay me a hundred shekels a day. I rent you a thousand shekels, pay me a hundred shekels a day. What’s the problem? What is immoral about that? It’s doing business. Are businesses forbidden? It’s my property; I want to do business. If you don’t want to, then don’t. No problem. What is morally wrong with that? It is an entirely religious prohibition; he sees no moral problem in it at all. There can be extreme situations: someone is poor and starving, and you lend to him with interest, and he has no choice and will die of hunger. Fine—but those are Korach-style descriptions. Usually when you lend with interest, you lend and things are fine; they take the loan. That’s not it. Yes, those descriptions of Korach, that poor woman and all those stories that come to provoke.

The basic claim, and here I’ve really reached the last example, is that morality and Jewish law too are a two-story model. Just as Jew and gentile are a two-story model, they are the same two stories everywhere—you have to understand that. The same two stories. Two stories means the universal story of every person, every gentile, every human being, and the particular Jewish story. This has an aspect of Jewish law and morality, kiddushin versus Noahide marriage, obligations and commandments of gentile versus Jew. But it is all the same thing. It is all a two-story model that says that a Jew first of all has to be—yes, like my father said to his students as a school principal: first of all, be human beings. And then also be good Jews. First of all, be human beings. That’s an instruction many people don’t take very seriously. And what do all these examples really say? That we have a concept made up of two components, similar to two laws. In every Jew there are two laws. There is the law of Jew and the law of gentile. Right? But it isn’t just two laws; there is hierarchy between them. One is more general and more fundamental, and the second is more specific, more particular. Okay? It is basically a species within a broader genus. Okay? Therefore all these examples are a very specific kind of two laws. Two laws with hierarchy. That’s why I called them two-story models.

Let me perhaps give a few examples regarding moral obligations. There is the question: why did the Torah write “You shall not murder”? Why do I need a verse? Reason tells me! The Holy One, blessed be He, reproaches Cain long before the Torah was given, before “whoever sheds human blood,” before “You shall not murder,” right? “Where is Abel your brother?” “The voice of your brother’s blood cries out to Me from the ground.” Then He punishes him and everything. For what? He wasn’t commanded, nothing. So why does God reproach him? Because it was obvious. He should have understood that one does not murder. Right? No command is needed for this. Fine—so if it is obvious by reason, why do I need the verse? Why do I need the biblical verse?

There are all sorts of explanations, this one and that one. The explanation that is not only simpler but also correct is that “You shall not murder” does not come to say anything moral. It comes to say something halakhic. The moral prohibition of murder always existed from time immemorial, regardless of the Torah and regardless of God’s command. The Torah says that besides the moral prohibition of murder, there is also a religious prohibition of murder. That’s all. And for that you need a verse. There reason doesn’t help. What is reason? By reason you don’t derive a religious prohibition. Reason tells me it is immoral. But how would I know that it is forbidden in the halakhic sense? The verse tells me there is also a prohibition here.

One can see implications of this. Exactly, yes. In Sanhedrin we find cases of confinement, bringing the matter close to the fire, indirect causation, and all that whole business of murder done in unusual ways. If it is done in those ways, I may be exempt from execution. But morally I am a murderer in every respect. What’s the difference? All those distinctions are very strange distinctions. It is perfectly clear that you are a murderer. You are entirely a murderer, whether you did it this way or that way—locking him in, bringing the matter close to the fire, indirect causation, all those tricks there in Sanhedrin—it is all murder. All murder, murder, murder, exactly the same. There is no difference whatsoever on the moral level. They are all murderers. The difference is only with respect to the halakhic plane: when do you violate the halakhic prohibition of “You shall not murder”?

A practical implication, for example, is that capital punishment is imposed for the halakhic prohibition, not for the moral prohibition. So it will depend on all these definitions: bringing the matter close to the fire, confinement, indirect causation, things of that sort. This means that even within prohibitions we perceive as moral prohibitions—what are sometimes called rational prohibitions—there are two stories. It is not only that there are universal moral prohibitions, and on top of that also religious prohibitions. No—even the prohibitions we take to be moral have two stories. There is the universal story, like everyone else, that it is forbidden to murder, and there is the particular story that says there is a religious prohibition to murder, a halakhic prohibition to murder, with all the definitions and punishment and everything else. So this too is another appearance of this two-story model, this two-story model.

Okay, I think we’ll stop here. If you’ll permit me, I need a few minutes; I also have another Zoom meeting now. In any case, I’m finished. So this is the end of this semester. I don’t know what your plans are for next semester, whether you’re continuing or not continuing, so we’ll see—either we’ll meet next semester or we won’t meet. We’ll see then. Okay, that’s it. Thank you very much. My pleasure.