Yoma, Chapter 8, Lesson 4

Table of Contents

• Positive action and passive omission as frontal and passive conflict
• The nature of the positive commandment when there is both a prohibition and a positive commandment
• The four types of positive commandments in Maimonides' approach
• Eliminate leavened food: a duplication that does not determine the definition of the positive commandment
• A positive commandment of action and a positive commandment of result
• Maimonides in the laws of resting on the tenth: positive commandment and prohibition regarding labor and affliction
• A prohibition that supports a positive commandment: Nachmanides in Kiddushin and the implications
• Women on Yom Kippur and communal commandments
• We have heard the punishment; from where do we know the warning? Sefer HaChinukh and Maimonides
• A warning derived by legal reasoning in Maimonides' approach, and the Sifrei as the source for affliction

Summary

General Overview

The text reformulates the distinction between positive action and passive omission as a distinction between frontal conflict with the Torah’s will and passive conflict, and argues that the duplication of a positive commandment and a prohibition is sometimes meant to create a situation of “no zero state,” where there is no middle ground. It then presents different categories of positive commandments in Maimonides’ approach and examines, through the commandment to eliminate leavened food, how the very duplication of prohibition and positive commandment does not itself determine the nature of the positive commandment. From Maimonides’ laws of resting on the tenth day, it emerges that in his view there is both a positive commandment and a prohibition on Yom Kippur regarding both labor and affliction, but this raises linguistic and midrashic questions about the source of the positive commandment regarding labor and the source of the prohibition regarding affliction. Finally, the text presents Nachmanides’ approach about a prohibition whose role is to strengthen a positive commandment and its implications, and discusses a fundamental difficulty in Maimonides’ approach concerning a warning learned from exposition, until arriving at a Sifrei source that grounds the warning concerning affliction on the basis of the punishment for labor.

Positive action and passive omission as frontal and passive conflict

The text states that the distinction between action and inaction is only a physical expression, while the main point is the degree of conflict with the Torah’s will: an active act against the Torah’s will is frontal conflict, and passive behavior is non-frontal conflict. The text emphasizes that one can arrive at frontal or passive conflict both through action and through omission, so “doing what is forbidden” is not identical with “failing to do what the Torah wants.” The text presents the duplication of positive commandment and prohibition as a way of “grabbing both extremes,” so that there is no possibility of being in an intermediate state, and formulates this as a situation in which “there is no zero state” and “someone in the middle is wicked.”

The nature of the positive commandment when there is both a prohibition and a positive commandment

The text asks what exactly the positive commandment is when it appears alongside a prohibition, and suggests that the positive commandment is not necessarily an independent affirmative commandment but may instead be a positive commandment whose goal is to support observance of the prohibition, or vice versa. The text notes that regarding affliction the Torah explicitly writes only the positive commandment, “You shall afflict yourselves,” while regarding labor it explicitly writes only the prohibition, “You shall do no labor,” and raises the possibility that what is written explicitly is the main thing and the second component is merely “support.” The text points toward the idea that the duplication is not, in itself, proof that there is no middle ground, because the positive commandment can be interpreted as intended only to ensure that people do not fail on the negative side.

The four types of positive commandments in Maimonides' approach

The text lists four categories of positive commandments: an obligatory positive commandment that can either be fulfilled or neglected, so that non-fulfillment is a neglect of a positive commandment; an existential positive commandment that can be fulfilled, but non-fulfillment is not considered neglect; a prohibition inferred from a positive commandment, where it can be neglected but there is no way to fulfill it, so the result is neglect of a positive commandment rather than violation of a prohibition; and a fourth, “definitional” type that Maimonides introduces, such as impurity or annulment of vows, where “it is impossible either to fulfill or to neglect it,” because it is a definition of halakhic status. The text argues that Maimonides apparently understands “commandment” as parallel to “law,” and therefore the Book of Commandments includes also “definitional laws” that define concepts and statuses, alongside other laws that determine what is to be done as a consequence of those definitions. The text defines fringes as a conditional obligatory commandment: if one has a four-cornered garment without fringes, there is neglect of a positive commandment, and if one puts on fringes, one fulfills a commandment.

Eliminate leavened food: a duplication that does not determine the definition of the positive commandment

The text uses the commandment “eliminate” alongside “it shall not be seen and it shall not be found” to show that duplication is not enough to know the definition of the positive commandment. The text proposes possibilities for defining “eliminate” as an obligatory positive commandment, and within that distinguishes between a conditional obligation (“if you have leavened food, eliminate it”) and an unconditional obligation (“obtain leavened food in order to eliminate it”), and notes that defining it as an existential commandment here is difficult but possible if the positive commandment grants “fulfillment” to the act of elimination even though failure to act would not be neglect of a positive commandment. The text raises the possibility of a prohibition inferred from a positive commandment as a reasonable description, according to which “eliminate” does not require affirmative elimination but creates neglect of a positive commandment when it has not been eliminated, and argues that many later authorities ignore this possibility even though some medieval authorities point in that direction. The text discusses selling leavened food and nullifying leavened food, and notes that in the Talmud nullification of leavened food is defined as fulfilling elimination, and examines whether the nullification itself is the elimination or whether it removes the obligation to eliminate because there is no longer any leavened food. The text rejects applying “a prohibition repaired by a positive commandment” to “eliminate,” because that structure is a repair after transgression, whereas in the simple understanding of “eliminate,” it is a prior act meant to prevent violating the prohibition.

A positive commandment of action and a positive commandment of result

The text proposes another formulation of the distinction between an obligatory positive commandment and an existential positive commandment by dividing between a positive commandment of action and a positive commandment of result. The text suggests that the positive commandment can be either “the act of elimination” or “that the leavened food be eliminated” as a result, and even raises the possibility that the very absence of leavened food would count as passive fulfillment of the commandment. The text states that the distinction sometimes reflects “the other side of the coin” between an obligatory positive commandment and an existential positive commandment, and places the possible difference mainly in the question whether there is affirmative “fulfillment of a positive commandment” credited to the person or only the absence of “neglect.”

Maimonides in the laws of resting on the tenth: positive commandment and prohibition regarding labor and affliction

The text cites Maimonides at the beginning of the laws of resting on the tenth day: “It is a positive commandment to rest from labor,” and “whoever does labor on it has neglected a positive commandment and violated a prohibition,” with liability to karet if done intentionally and a sin-offering if done unintentionally. The text states that Maimonides learns the positive commandment regarding labor from “a Sabbath of complete rest,” and notes that this is difficult because in the Talmud “rest” serves as the basis for including three additional afflictions, and therefore “Sabbath” is understood as affliction regarding eating and drinking rather than labor. The text also quotes Maimonides regarding affliction: “Another positive commandment… to rest on it from eating and drinking… and whoever fasts on it fulfills a positive commandment… and whoever eats and drinks on it has neglected a positive commandment and violated a prohibition,” and attributes the warning concerning affliction to the fact that “since Scripture imposed karet on one who does not afflict himself, we learn that we are warned concerning eating and drinking on it.” The text notes that in Maimonides’ formulation regarding labor there is no explicit statement “he fulfilled a positive commandment,” as there is regarding affliction, and raises the possibility of drawing an inference that refraining from labor perhaps functions as a prohibition inferred from a positive commandment, whereas in affliction the positive commandment is a clear affirmative commandment because it is written explicitly in the Torah.

A prohibition that supports a positive commandment: Nachmanides in Kiddushin and the implications

The text quotes the question of Tosafot and Nachmanides in Kiddushin 34 about examples of positive commandments not caused by time for which women are obligated even though they have an accompanying prohibition, and brings Nachmanides’ novel idea that in commandments such as building a parapet, the prohibition “Do not place blood in your house” is not an independent prohibition but comes to strengthen the positive commandment “You shall make a parapet for your roof.” The text defines the meaning of this strengthening as follows: what the Torah primarily wants is the positive state created by the positive commandment, and the prohibition is meant to impose punishment in order to spur observance of the positive commandment. Therefore, if the commandment were time-bound, women would be exempt even from the prohibition, because it is “in the category of a positive commandment” or because there is no prohibition for one who is exempt from the positive commandment. The text suggests practical implications of this question, including whether one must spend all one’s money as opposed to only up to a fifth, and cites an application by the Maharil Diskin regarding charity: even though there is “do not harden your heart” and “do not shut your hand,” the prohibition is understood as supporting the positive commandment, and therefore there is no obligation to spend all of one’s money. The text also cites Divrei Yechezkel, who combines Nachmanides with the Magen Avraham, who argues that the prohibition against directly feeding a minor something forbidden applies only to a prohibition and not to a positive commandment, and therefore suggests that on Yom Kippur the prohibition may be considered “in the category of a positive commandment,” in which case one may feed a minor, while trying to support this from the measure of eating on Yom Kippur, which is the size of a large date and depends on the concept of affliction.

Women on Yom Kippur and communal commandments

The text challenges Divrei Yechezkel on the grounds that women are obligated in the affliction of Yom Kippur even though it is a time-bound positive commandment, and suggests that if the prohibition were only support for the positive commandment according to Nachmanides, one might have expected exemption. The text proposes explaining this through a model of a communal commandment similar to Hakhel, where “the community is obligated,” and therefore everyone who belongs to the community is obligated, without dividing between groups within the community. The text connects Yom Kippur to a communal conception in that the general rest provides “backing” for the High Priest’s entrance into the Holy of Holies and for communal atonement, and therefore the obligation includes women. The text expands on Hakhel through the dispute between the Sha'agat Aryeh and the Minchat Chinukh over whether the “little children” are obligated by Torah law or only under the laws of education, and proposes a principle according to which even in commandments imposed on the community, responsibility still rests on every individual so that the community will actually fulfill them.

We have heard the punishment; from where do we know the warning? Sefer HaChinukh and Maimonides

The text cites Sefer HaChinukh, commandment 69, which explains that punishment by itself does not create a prohibition, because without a warning one could understand the punishment as a kind of “transaction,” in which someone willing to pay the price would be allowed to do the act. The text raises a difficulty with Maimonides, who derives the prohibition regarding affliction from the verse of karet, “For any person who does not afflict himself… shall be cut off,” because this is a punishment verse and not a warning verse, and compares this to the Talmudic question, “We have heard the punishment; from where do we know the warning?” The text notes a conceptual use of Sefer HaChinukh’s words in Minchat Chinukh regarding Jonah and one who suppresses his prophecy, but also points to a fundamental puzzle: if punishment without warning can be understood as a kind of transaction, why does the Talmud always assume there is a warning and go searching for it? The text suggests the possibility that a warning verse is not merely a revelation of divine will but a “command” that turns the matter into part of Jewish law, and distinguishes between moral knowledge and the normative structure of command.

A warning derived by legal reasoning in Maimonides' approach, and the Sifrei as the source for affliction

The text quotes Maimonides at the end of the fourteenth root, where he states that punishment cannot exist without a warning, but when the warning is not explicit one may “derive it by analogy from Torah analogies” in cases where the punishment is written explicitly. The text emphasizes that Maimonides distinguishes between a warning learned from exposition by itself, which is not enough for a Torah-level prohibition, and a situation in which the explicit punishment requires that there be a warning, so that the analogical derivation “strengthens” the root-principle that “Scripture does not punish unless it has warned.” The text cites Maimonides in prohibition 196, that the Torah has no explicit warning against eating on Yom Kippur though the punishment is written, and cites the wording of the Sifrei, which derives the warning concerning affliction from the structure of the punishment for labor: “Just as the punishment for labor comes after a warning, so too the punishment for affliction comes after a warning.” The text concludes by pointing ahead to the continuation of the inquiry, which will open with the Talmud in Yoma 81a on the warning concerning affliction and the Talmud in Shabbat 114 on the positive commandment regarding labor, in order to complete the understanding of the sources of the positive commandment and the prohibition on Yom Kippur.

In the end, what we have here is a kind of abstraction of the concepts of positive action and passive omission. Thank you very much. Positive action and passive omission—except that instead of talking about physical action and inaction, meaning non-action, we’re talking about a frontal clash with the Torah’s will versus a passive clash with the Torah’s will. There’s a difference between doing something the Torah forbids and not doing something the Torah wants. It’s not the same thing. The question is how frontal the clash with the Torah’s will is. And in that sense it’s still similar to the accepted distinction between a positive commandment and a prohibition. When you do an active act against the Torah’s will, then you’re really colliding head-on. If you do something passive, that’s not a frontal collision. Now I’m only saying that this can exist both in action and in omission. The collision is still either frontal or passive, but physically it can be either an action or an omission. That’s, in a nutshell, what we’ve done until now.

In the context of labor and affliction, if I go back there, then basically when we’re told that there is both a positive commandment and a prohibition—and that is at least Maimonides’ view; later we’ll see that there may be some dispute about this—there is both a positive commandment and a prohibition. Seemingly, and later we’ll see that even this still isn’t certain, but seemingly this means that the Torah is telling us that refraining from labor or from pleasures on Yom Kippur is a positive state, and doing forbidden labor or enjoying forbidden pleasures on Yom Kippur is a negative state—not merely the absence of a positive state. In effect, this captures both extremes. You can’t sit in the middle here and be average. Someone average is wicked. Meaning, they don’t allow us that option of being average. That is basically the situation in all these doubled structures—when there’s both a prohibition and a positive commandment, that’s what it’s trying to achieve. It’s trying to tell me: there’s no middle ground here; either wicked or righteous. Right, there’s no zero state, exactly.

Now, the question that arose—and that’s really what I opened with at the end of the previous class—is: when there’s a prohibition, what is the nature of the positive commandment? You could ask the reverse too, but in a moment we’ll see that it’s more complicated to ask it the other way around. Because this positive commandment can still be understood in several ways. I did say this last time: I gave the example—or really not an example but rather the scheme—of the different kinds of positive commandments there are in Jewish law. At least according to Maimonides there are four types. Three are clear. Maimonides innovates that there is also a fourth.

A mandatory positive commandment is a positive commandment that can be fulfilled and can be neglected—or in other words, one must fulfill it, and therefore if you did not fulfill it, that is the neglect of a positive commandment. A non-mandatory positive commandment is one that can be fulfilled but cannot be neglected—or in other words, you are not obligated to fulfill it, so if you didn’t fulfill it, nothing happened. A prohibition inferred from a positive commandment is the opposite case. You can neglect it, but there is no way to fulfill it. Meaning, you cannot fulfill a positive commandment that is a prohibition inferred from a positive commandment; you can only say that if you didn’t observe it then you neglected a positive commandment—not a prohibition, but neglect of a positive commandment. And Maimonides introduced a fourth type, and that is the definitional type, like annulment of vows or impurity. There Maimonides says you can neither fulfill nor neglect it. It is simply a definition of a state. The definition of the state is that if you touched a corpse, you are impure. What does that mean? You didn’t violate a prohibition, there’s no commandment here, this isn’t about prohibitions and commandments. But there is a halakhic definition of what your legal status is. Of course that has halakhic implications, but it’s only the status. And that counts as a positive commandment? Yes, according to Maimonides it counts as a positive commandment.

And I said briefly that it seems to me—here of course I can’t be certain—but it seems to me that Maimonides probably understands the term commandment as synonymous with law. The Book of Commandments is the halakhic parallel to a law book. Now, in a law book there are definitional laws, laws that define concepts. What is a minor for this matter? Who is obligated by this law? Who are we talking about? All sorts of things of that type. And those definitions are clauses in the law book even though they are only definitions. They are not about what to do with those definitions; that is dealt with by the other laws. In Jewish law too there are certain laws or commandments that are definitions. Other commandments tell us what to do with those definitions. For example, one commandment tells me that if you touch a corpse you become impure. That doesn’t tell me what is commanded or forbidden or anything else; that’s a definition. There are other commandments that say that someone impure may not enter the Temple, or may not eat terumah, or things of that sort.

And what about tzitzit? No, tzitzit is a mandatory positive commandment. No, if you don’t have a four-cornered garment? Then it’s a conditional mandatory commandment. I talked about that last time—it’s a conditional mandatory commandment. It isn’t even a non-mandatory commandment, certainly not a definition. The commandment of tzitzit can be fulfilled. It can be fulfilled and it can be neglected. If you put on tzitzit, you have fulfilled a commandment; it’s not like the fourth category. And if you have a four-cornered garment and did not put tzitzit on it, then you have neglected a positive commandment. So it is a commandment that can both be fulfilled and neglected. It’s a mandatory commandment, just a conditional mandatory one, as distinct from a non-mandatory commandment. Those are the four types. In practice there are a few more.

And here I’ll just add: I’ll show this through the commandment of eliminating leaven, the commandment of “you shall eliminate” regarding leaven. There there is a big discussion among the medieval authorities (Rishonim) and later authorities (Acharonim) about how to define it. Seemingly, it basically parallels “it shall not be seen” and “it shall not be found.” Right? You have a prohibition against leaven being seen or found in your possession, and you have a positive commandment to eliminate the leaven. Again, this is some sort of doubling just like we know from Yom Kippur or the Sabbath or the examples we’ve seen. Exactly. Exactly.

Now here the question is how to define the positive commandment. So the very fact that there is doubling is still not enough to understand how the positive commandment should be defined. Why? Because here, in the context of “you shall eliminate,” there are several possible definitions—and by the way, some of them are ignored by later authorities, so in my opinion the analysis is wrong. There are many options, and they don’t always take all of them into account.

One option is that it is a mandatory positive commandment. Meaning, you have to go and eliminate leaven. But even that could be either conditional mandatory or fully mandatory. Conditional mandatory means: if you have leaven, there is a mandatory positive commandment to eliminate it. Okay? Unconditional mandatory means: even if you don’t have leaven, acquire leaven in order to eliminate it. Okay? Meaning, you have a commandment to eliminate leaven. So that’s the difference between conditional mandatory and unconditional mandatory.

A non-mandatory commandment in this context is harder to define. What would a non-mandatory commandment be? That if you eliminated it, then you fulfilled a commandment, and if not, nothing happened. If you have leaven, it’s obvious that you need to eliminate it. At most you could say it’s conditional mandatory, but not non-mandatory in this context. Even though they’re similar, here it’s clearly conditional mandatory and not non-mandatory. Maybe you could say it’s non-mandatory in the following sense: they tell you like this—if you have leaven, then from the standpoint of the prohibition, you have violated “it shall not be seen” and “it shall not be found.” But from the standpoint of the positive commandment, you haven’t violated anything; it’s not even neglect of a positive commandment. If you eliminated it, then not only did you avoid violating “it shall not be seen” and “it shall not be found,” but you also fulfilled the positive commandment of “you shall eliminate.” And that really is the definition of a non-mandatory positive commandment, not a conditional mandatory one.

But then that really means that the prohibition and the positive commandment are not truly doubled. Notice this. If I define the positive commandment as non-mandatory, then the prohibition and the positive commandment are not really doubled. Because the positive commandment emphasizes the act of elimination. The prohibition emphasizes that you not have leaven. You don’t need to eliminate it. So if this were true doubling, I would expect that every time I violate the prohibition, I would also have neglected the positive commandment. Okay?

So that’s the next possibility. A third possibility is that it is a prohibition inferred from a positive commandment. A very plausible option, and for some reason many later authorities ignore it—I don’t know why. “You shall eliminate,” and I think in several medieval authorities (Rishonim) you clearly see that this is so—“you shall eliminate” is a prohibition inferred from a positive commandment. What does that mean? There is no positive commandment to eliminate, and even if you have leaven you are not obligated to eliminate it as a positive commandment. You must ensure that you don’t have it because of “it shall not be seen” and “it shall not be found,” but there is no obligation upon you to eliminate it. It isn’t even a conditional positive commandment, a conditional mandatory one.

So what is there? If you did not eliminate it, then you neglected the positive commandment. Not only did you violate “it shall not be seen” and “it shall not be found,” you also neglected the positive commandment. Meaning, if you did eliminate it, there is no fulfillment of a commandment; but if you did not eliminate it, then you transgressed—it is a prohibition inferred from a positive commandment, you committed neglect of a positive commandment. So this is a positive commandment that can be neglected but cannot be fulfilled. Okay?

You can understand why many medieval authorities don’t like this. Because if it says “you shall eliminate,” the simplest thing is to say that this means action. That is true of every prohibition inferred from a positive commandment. If it says “the produce of the land shall be for you to eat,” then simply speaking it means you have to eat. So what does “to eat” mean and not for commerce? Not in the same way as “you shall eliminate.” Why? “The produce of the land shall be for you to eat”—you have to eat. Then they say no, no, you don’t have to eat; you must not do things that are not eating. What’s the difference? Or “you may lend with interest to a foreigner.” That’s a positive commandment, right? So why do we say that it is only a prohibition inferred from a positive commandment, meaning that if you charge interest to a Jew then you have violated the positive commandment of “you may lend with interest to a foreigner,” but not that you fulfilled a positive commandment if you lent with interest to a foreigner. In every case, the whole point of a prohibition inferred from a positive commandment is that the wording is phrased like a positive commandment, but for various reasons—doesn’t matter now how—the Sages decided that here it should be interpreted as a prohibition inferred from a positive commandment. Meaning, the intention is not to perform an act that counts as fulfilling a positive commandment; rather, if you do not do it, then maybe apart from the prohibition—or whether there is a prohibition, doesn’t matter now—you have neglected a positive commandment. But you can only neglect it; you can’t fulfill it.

A definitional commandment, I think, is not an option in the case of “you shall eliminate.” So that depends on definitions. In general, who said you have to fulfill “you shall eliminate”? If it is a prohibition inferred from a positive commandment, then there is no such thing as fulfilling “you shall eliminate.” I didn’t understand. In a situation where you can actually eliminate the leaven? So what? There’s a commandment. So I’m saying: if it’s a mandatory positive commandment then perhaps your point has room, although even then I can still say: I’ll sell the leaven, and besides that I’ll buy other leaven in order to fulfill the commandment of elimination. What’s the problem? Why not? What’s the problem? I’ll buy some, then I’ll have it. If I… no, decide. If you say it’s a mandatory positive commandment, after all that’s the definition of the assumption. If it’s not a mandatory positive commandment, then what’s the problem with selling it? I won’t have leaven, and I’m not obligated. But you’re saying it’s a mandatory positive commandment. Fine—then that means I need to make sure I’ll have to eliminate leaven. So I’ll buy leaven so I’ll have some and I’ll fulfill the commandment of elimination. Nothing—suppose I want to sell the leaven, I didn’t want to eliminate all of it, I don’t have a fire big enough to burn all my leaven. So I sold all of it and left a little, or bought a little, in order to fulfill the commandment of elimination with it. It’s whichever way you look at it. Really, if it’s a mandatory positive commandment, then I can do it that way; if it’s a non-mandatory positive commandment, then in any case it doesn’t matter, you can sell it.

After all, in the Talmud itself it says that nullification of leaven is basically a fulfillment of elimination. And there too there’s room to discuss what exactly this means. Is the nullification itself the elimination, or after nullification there is nothing left to eliminate? Did I fulfill the commandment of elimination, or once I nullified the leaven I no longer have leaven, so the obligation to eliminate it no longer applies to me? That’s like the sale, and nullification is stated explicitly in the Talmud. Why not buy leaven in order to burn or sell it? If the sale is a form of elimination, then it doesn’t matter whether to sell or eliminate, however you want—yes, if it’s a mandatory positive commandment. Therefore I’m saying the question is not really a question, because the Talmud itself is talking about elimination, about nullification. So if the sale is a kind of nullification, then what difference does your point make here? You achieve here, you achieve here.

And what about a prohibition remedied by a positive commandment? Meaning, “what remains of it you shall burn in fire,” meaning only if something remains do you have the commandment to burn it. Leaven would be like… No, a prohibition remedied by a positive commandment can’t be the case here, except perhaps according to the dispute between Rashi and Rabbeinu Tam, I think—the question whether the commandment of “you shall eliminate” applies during the festival or only before the festival. Because a prohibition remedied by a positive commandment is always after you have already violated the prohibition, and then you repair it by means of a positive commandment. But simply speaking, the straightforward understanding of “you shall eliminate” is that you do the positive commandment so as not to get ensnared in the prohibition at all. The positive commandment comes before the prohibition, and then the positive commandment repairs it, like returning stolen property, yes, or leftovers—burning the leftovers. But with leftovers, no, you don’t have a violation. Why do I have a violation? But with leftovers, yes, you do have a violation. I have a violation? I always have a violation. If I violated a prohibition then there is… a prohibition remedied by a positive commandment means the positive commandment repairs the prohibition. If someone steals, then he really committed a violation, and afterward he has the option of repairing it. But with leftovers it’s not a violation, because whatever remains, immediately you have the… No, no, no—it is a violation. “Do not leave any of it over until morning” is a violation, only if you do the positive commandment have you repaired it, and therefore one is not flogged for a prohibition remedied by a positive commandment. I didn’t understand. With theft you have the option not to steal, but say with leftovers—what is that? If you didn’t manage to finish the whole offering? Then eat it, finish it, give it to the registered participants, I don’t know. What do you mean you can’t? If you can’t, then you were under duress—that’s a different issue—but you still violated the prohibition. So you violated it under duress, you’ll be exempt, doesn’t matter. Not that you’ll be exempt, because for a prohibition remedied by a positive commandment you’re not flogged anyway. But in any event, you violated the prohibition, and the positive commandment repairs it.

So in short, in “you shall eliminate” we see all the possibilities. Because of this doubling vis-à-vis “it shall not be seen” and “it shall not be found,” you can see all the possible ways to define the positive commandment in light of what we said there.

Also, within this, let me just add: when we speak of a mandatory or non-mandatory positive commandment, you can phrase it slightly differently. It’s not completely clear to me whether this is exactly the same thing or not. You can speak about a commandment of action and a commandment of result. Is the act of elimination the positive commandment, or is it that the leaven be eliminated—that I not have leaven? It could be, and this is another possibility, that we are dealing with a mandatory positive commandment, only the commandment is fulfilled when I don’t have leaven—not through eliminating it, but simply because I don’t have it. I fulfilled the commandment. So I’m saying: you can call that a non-mandatory commandment, where only if you have leaven is there “you shall eliminate,” and if you don’t have it you don’t need to eliminate it. But why don’t you need to eliminate it? Because there is no fulfillment, or because you have fulfilled it passively? Once you don’t have the leaven, that itself is the fulfillment of the commandment. Once you define the commandment as a commandment of result, you’ve turned the non-mandatory positive commandment into a mandatory positive commandment of result. The only practical difference is whether in heaven they record for you the fulfillment of a positive commandment in this matter, or whether they simply don’t record for you a neglect. Okay? That’s the difference. But practically, in terms of the usual definitions, it’s the same thing. Therefore the distinction between a commandment of action and a commandment of result is often the other side of the coin of the distinction between a mandatory and a non-mandatory positive commandment. I can turn a non-mandatory positive commandment into a mandatory positive commandment of result. Okay? What? How should I know? Reward? All positive commandments—every Jew has reward. What reward does one get from a commandment? I have no idea what reward one gets. Do you know the reward for commandments? I don’t. The Sages didn’t know either, so I’m in good company. I don’t know—how should I know? “So that your ox and your donkey may rest”… right, “so that your donkey and your ox may rest.” And the question is whether that is a conditional mandatory commandment or a commandment fulfilled through the result, yes.

Okay, so let’s continue. On Yom Kippur itself—and this is only the introduction to bring us into the issue—on Yom Kippur itself, since there is this doubling between the prohibition and the positive commandment, and again I’m currently assuming Maimonides, who counts both a prohibition and a positive commandment both with regard to affliction and labor, one can discuss each of these possibilities. Since once there is doubling between prohibition and positive commandment, then to some extent it almost invites defining the positive commandment in some way that perhaps is not mandatory. Because if all it does is ensure that you keep the prohibition, then you can say that there is no positive value in afflicting yourself or refraining from labor, but rather they only come to make sure you do not stumble in the negative matter. Okay? But that contradicts your explanation from last year. No, it doesn’t contradict—it’s one, one and zero. I’m saying it doesn’t contradict; it’s an additional possibility. What I’m saying is that in doubling you may not have to get to a point where there is no zero-state, essentially. Maybe they are telling me: either righteous or wicked, no average. It could be that the whole point of the positive commandment is only to make sure you keep the prohibition—or vice versa, that the prohibition is only there so that you fulfill the positive commandment. What about all the other cases of doubling? Why do we need both a positive commandment and a prohibition? In a moment, in just a second, I’ll explain.

So in this context, since there is doubling, there is room to ask which is primary. Is the prohibition primary and the positive commandment comes to support it, or vice versa—is the positive commandment primary and the prohibition comes to support it? For example, I spoke about the fact that with pleasure and labor, the Torah explicitly writes only one commandment in each category. With affliction it writes only the positive commandment, “you shall afflict your souls.” With labor it writes only the prohibition, “you shall do no labor.” And one could have said that maybe indeed that is what is written, and the rest we need to see from where it is derived—we’ll talk about that soon—but that is what is written, and that is the primary thing. The primary thing is really the positive commandment in affliction and the prohibition in labor. The other is only some sort of support. I’ll still discuss later what exactly support means, in a moment.

Just to close this point in terms of the bottom line in Maimonides—and this is the accepted view—in chapter 1 of the Laws of Resting on the Tenth, law 1, right at the beginning of the laws: “It is a positive commandment to refrain from labor on the tenth day of the seventh month, as it says: ‘it shall be a Sabbath of solemn rest for you.’ And anyone who performs labor on it has neglected a positive commandment and violated a prohibition, as it says: ‘and on the tenth, you shall do no labor.’ And what is one liable for for doing labor on this day? If he did it knowingly and willingly, he is liable to karet, and if he did it unintentionally, he is liable for a fixed sin-offering.” So Maimonides says that performing labor involves both a positive commandment and a prohibition. The prohibition is written explicitly: “you shall do no labor.” Right? “You shall do no labor.” And what about the positive commandment? He derives that from “a Sabbath of solemn rest.” Later we’ll see how this fits with the Talmud. Maimonides understands that it is derived from “a Sabbath of solemn rest.”

Why isn’t that obvious? I remind you of what we talked about in the introductory classes. Because in the Talmud, in its plain sense, “a Sabbath of solemn rest” was not said about labor. It was said about affliction. From “rest” they include the three additional afflictions besides eating and drinking. So if “rest” on Yom Kippur includes… “Sabbath” is for labor. So I said: but if “rest” comes to include the other afflictions, that implies that “Sabbath” is the afflictions of eating and drinking, which are Torah-level obligations. Otherwise, if “Sabbath” is labor, then why would “rest” include the other afflictions—not eating and drinking, but only the other three? And simply speaking, “Sabbath” and “rest” complete one another. So if “rest” is the other three afflictions—anointing, wearing shoes, and marital relations—then “Sabbath” is the afflictions of eating and drinking, not labor. Maimonides takes it that from there one also learns labor. I’m saying therefore, fine, maybe he’s right; we’ll see it in the Talmud later, but explicitly in the Torah it is not written.

But Maimonides does say in the end, bottom line, there is both a positive commandment and a prohibition. More than that: this positive commandment is not a prohibition inferred from a positive commandment according to Maimonides. Why? Because Maimonides says that one who fulfills it… and not as a non-mandatory commandment either. Why? Because one who fulfills it—because one who fulfills it has fulfilled a positive commandment, says Maimonides, and one who neglects it has violated a prohibition and neglected a positive commandment. So this is a positive commandment that can be both fulfilled and neglected; therefore Maimonides understands this positive commandment as a mandatory positive commandment. And if we go back to the categories I discussed earlier, then according to Maimonides the doubling between the prohibition and the positive commandment—right now we read about refraining from labor, soon we’ll see affliction—is indeed one and minus one. Meaning, there is no intermediate state here; you are either righteous or wicked, like the ordinary kind of doubling we discussed in the laws of the Sabbath and elsewhere.

In law 4 at the beginning of the Laws of Resting on the Tenth he writes the same thing regarding the commandment of affliction: “There is another positive commandment on Yom Kippur, namely to refrain on it from eating and drinking”—we discussed the term “to refrain”—“to refrain from eating and drinking, as it says: ‘you shall afflict your souls.’” “You shall afflict your souls,” and not “a Sabbath of solemn rest.” Right? Earlier we said eating and drinking is from “a Sabbath of solemn rest,” the other afflictions are the others. No—eating and drinking is from “you shall afflict your souls,” which really is the straightforward plain meaning; we still need to understand what “Sabbath” means. “You shall afflict your souls”—by oral tradition they learned that affliction that affects the soul is fasting. “And anyone who fasts on it has fulfilled a positive commandment.” So now this is not… it’s not a prohibition inferred from a positive commandment. “And anyone who eats or drinks on it has neglected a positive commandment and violated a prohibition.” Okay? So here too there is a mandatory positive commandment concerning affliction. Right? A mandatory positive commandment. This is not a prohibition inferred from a positive commandment and not a non-mandatory commandment.

Where does Maimonides derive this from? We’ll see in a moment. “As it says: ‘For every soul that shall not be afflicted on that very day shall be cut off.’ Since Scripture punished with karet one who did not afflict himself, we learn that we are warned concerning eating and drinking. And anyone who eats or drinks on it unintentionally is liable for a fixed sin-offering.” So what, then? The positive commandment is “you shall afflict your souls,” and where is the prohibition from? From the punishment. From the punishment. And we’ll still have to understand how you derive a positive commandment from a punishment. After all, “we heard the punishment; from where do we know the warning?” A punishment isn’t enough to teach a warning; you also need a warning. So we’ll still see that.

Maybe only now I suddenly notice that there is nevertheless a slight difference between law 1 and law 4. In law 1 Maimonides does not explicitly write that one who refrains from labor has fulfilled a positive commandment. He writes like this—again I’ll read his wording: “It is a positive commandment to refrain from labor on the tenth of the seventh month.” That’s first of all the definition, okay? “As it says: ‘it shall be a Sabbath of solemn rest for you.’ And anyone who performs labor on it has neglected a positive commandment and violated a prohibition.” Compare this to law 4: “There is another positive commandment on Yom Kippur, namely to refrain on it from eating and drinking, as it says: ‘you shall afflict your souls.’ And anyone who fasts on it has fulfilled a positive commandment.” That does not appear above regarding labor. And one who does not fast has neglected the positive commandment and violated the prohibition. There it appears only regarding affliction; it does not appear regarding labor. I don’t know how significant this is. Perhaps someone could come and say that in the first clause, when he said that it is a positive commandment to refrain from labor, he only meant to say that there is such a positive commandment. He did not mean to say that one who refrains has fulfilled a positive commandment, meaning that it is a mandatory positive commandment. Rather, there is such a positive commandment. What kind of positive commandment is it? A prohibition inferred from a positive commandment, so that if you violate it, then you have neglected—you have neglected the refraining.

What? If he can’t fast, does he fulfill the positive commandment of refraining? Again. Someone who can’t fast—does he fulfill the positive commandment of refraining from pleasure? Yes. Of refraining simply from labor, from not doing labor on Yom Kippur? Obviously yes. Refraining from labor and refraining from pleasure are two different commandments. You fulfilled one and did not fulfill the other; they are unrelated to each other. Otherwise it would be one commandment with two details. So here there may be room to infer from Maimonides’ wording that the positive commandment of refraining from labor is actually a prohibition inferred from a positive commandment and not a mandatory positive commandment. With affliction it is explicitly written that it is a mandatory positive commandment.

And notice carefully: this is rooted in the wording of the verses as well. Because the positive commandment of affliction is written explicitly in the Torah. The positive commandment of refraining from labor is learned from oral tradition or some exposition or interpretation; it is not written explicitly in the Torah. “Rest,” I said, in its plain sense speaks about the afflictions, not about refraining from labor. But in Maimonides he learns from here too that there is some sort of positive commandment, but it isn’t written explicitly. It could be that Maimonides is saying: why is it not written explicitly? Because in essence it is only a prohibition inferred from a positive commandment. The essence of refraining from labor is the prohibition—not to do labor. By contrast, in affliction, why does the Torah write the affliction and specifically not write the prohibition—we’ll still see from where the prohibition is learned—because with affliction, the essence, the really important thing, is the positive commandment. It is the refraining from pleasures, not that there is a prohibition against eating. There is no prohibition against eating; there is an obligation to refrain. That is really the primary thing. The prohibition is learned from somewhere else.

A prohibition inferred from a positive commandment is a positive commandment. Wouldn’t Maimonides say explicitly that it’s a prohibition inferred from a positive commandment? I mean “a positive commandment.” “A positive commandment.” No, but in other places where it is a prohibition inferred from a positive commandment, he says so explicitly. Not that it is a prohibition… I don’t remember all the places now, but I’m not sure it’s in every place. It is a positive commandment, and one of the types of positive commandment, as we discussed, is a prohibition inferred from a positive commandment. A prohibition inferred from a positive commandment is a positive commandment.

Okay, now here I’ll return to what I mentioned earlier about a prohibition that serves a positive commandment and a positive commandment that serves a prohibition. There is a Talmudic passage in Kiddushin 34a. There the Talmud brings examples of positive commandments not caused by time for which women are obligated. It brings four examples, and all of them are examples that have prohibitions attached to them. Meaning: sending away the mother bird, returning a lost object, building a parapet, and one more thing, I don’t remember the fourth anymore. Okay, those are the examples it brings. Tosafot and Nachmanides and all the medieval authorities there already ask: what kind of poor examples are these that the Talmud brings? The Talmud is bringing examples here of things for which a woman is obligated because they are not time-bound. Meaning, if they were time-bound, a woman would be exempt? That’s not true. Even if they were time-bound, a woman would be obligated because there is also a prohibition involved—like on the Sabbath, when there is both a positive commandment and a prohibition, then even if it is time-bound women are obligated because of the prohibition in it.

So Nachmanides asks there, Tosafot asks there: what kind of poor examples did they bring? They should have brought other examples, I don’t know, Grace after Meals. Grace after Meals is a positive commandment not caused by time, and therefore women are obligated. Inheritance of the land—there’s some issue there, doesn’t matter—other commandments, okay? Why did they bring these examples?

So Nachmanides there—this is a very famous Nachmanides, many later authorities use it, they make a lot of fuss over it—Nachmanides claims there that regarding the commandment of a parapet, he speaks specifically about parapet but it is probably true for all the commandments brought there, in the commandment of parapet there is “do not place bloodguilt in your house”—that is the prohibition—and “you shall make a parapet for your roof”—that is the positive commandment. Nachmanides says: the prohibition there exists entirely to support the positive commandment. It is not an independent prohibition. This is a special innovation: there is a special category of prohibitions that are not really independent prohibitions in their own right but come only to ensure that you fulfill the positive commandment.

First of all, what does it mean on the verbal level that the prohibition comes to ensure that you fulfill the positive commandment? Essentially, the Torah wants the positive commandment. Not making a parapet is not a negative state. Making a parapet is a positive state. So why create the prohibition “do not place bloodguilt in your house”? Because that will motivate you more strongly to build the parapet. Not really because failing to build a parapet is itself a negative state such that you deserve punishment for it, but we give you punishment for it in order to motivate you to build a parapet, because building the parapet is a positive act or a positive state—result or action, that can be discussed. Okay? That is what Nachmanides claims.

And what is the practical implication? In such a case, for example, if the commandment of parapet were time-bound, women would be exempt even though there is a prohibition. Even though there is a prohibition. Again: if it were time-bound, women would be exempt because there isn’t really an independent prohibition here; the prohibition is only reinforcement for the positive commandment. So if this were time-bound, women would be exempt from both the prohibition and the positive commandment, even though the rule is that women are not exempt from time-bound prohibitions.

But don’t you see that in Nachmanides himself? Yes, certainly, yes. No, there is such a prohibition. The Torah states a prohibition. The Torah’s purpose is to strengthen or ensure the fulfillment of the positive commandment, but there is such a prohibition—it is explicit. Rather, Nachmanides says that conceptually there isn’t really a designation of a negative state here. You receive punishment because it was very important to the Torah that you fulfill this positive commandment, so it decided to impose punishment for neglect of a positive commandment. It is basically punishment for neglect of a positive commandment. How do we know when it’s just reinforcement? That’s a matter of interpretation, I don’t know. Good question. Each case on its own. But Nachmanides claims that there is also such a category.

By the way, later authorities use this in several places to resolve various difficulties in this area. Or even before the use of it—say on the Sabbath, for example, it says that whoever is obligated in “remember” is obligated in “observe.” Right? Whoever is obligated in “observe” is obligated in “remember.” Therefore women are obligated in the commandments of the Sabbath even though it is a positive commandment caused by time. There Nachmanides would probably say that the prohibition stands on its own; it does not merely support the positive commandment. So there, indeed, whoever is obligated in the prohibition is obligated in the positive commandment. And even there, there is a dispute among the medieval authorities over exactly how…

The prohibition and positive commandment of Passover—the “you shall eliminate”… It’s not simple. The question of their relationship is not simple at all. Is there any practical difference? I mean, if it supports or stands independently? Yes. Are women obligated in it if it is time-bound, or not. For example, he says: what happens if you burned terumah? Tosafot talks about this. Tosafot there in Kiddushin on that same passage. What happens if you have impure terumah, which one may not burn on a festival? Because the positive commandment to burn impure terumah does not override the positive commandment and prohibition of a festival. He says that regarding women—since on a festival the positive commandment is time-bound, women are exempt from the positive commandment and obligated only in the prohibition—so for women it could be that the positive commandment of burning terumah on a festival would override the prohibition. If you understand that women are exempt even from the prohibition, then you don’t need to get into the whole issue of a positive commandment and prohibition at all. Okay. A woman too is obligated in the prohibition? What? A woman too is obligated in the prohibition? Of course—but only because it is not caused by time, not because of the prohibition. Because it is not caused by time. But if it were caused by time, she would be exempt even from the prohibition.

So even if it’s time-bound, women would still be exempt? One would not have to spend all his money on it. That could also be. That may depend on the next question perhaps. Because one can understand Nachmanides in two ways. One way is that since the prohibition by its essence comes to support the positive commandment, the prohibition has the status of a positive commandment. Essentially it is a positive commandment—it’s not a prohibition—it’s just a positive commandment for which one is flogged. That’s all. Okay?

A second possibility is to say: no, in essence a prohibition is a prohibition, only what is the prohibition? The prohibition is upon one who did not fulfill the positive commandment—that is the prohibition. Right? But if women are exempt from the positive commandment, then why should there be a prohibition upon them? After all, they are exempt from the positive commandment. The whole prohibition is a prohibition on one who failed to fulfill the positive commandment, but that applies only to someone who was obligated and failed. Someone not obligated has no prohibition.

Where’s the difference? Maybe the difference is as follows: what if I need to spend all my money to avoid this prohibition? If this prohibition has the status of a positive commandment in the sense, say, regarding women, I’m not sure it would have the same status as a positive commandment regarding spending all one’s money. Because in fact one does receive punishment for it. Otherwise, if there were no punishment for it, why add it? It was added in order to create punishment and thereby motivate you to fulfill the positive commandment. So maybe one is also required to spend all one’s money because it is an important positive commandment. Just as there is punishment for violating it, so too spend all your money.

But if the reason women would be exempt—if it were time-bound—is not because it itself is considered like a positive commandment, but because the whole point of the prohibition is to make sure you fulfill the positive commandment, then someone exempt from the positive commandment has no reason to be obligated in the prohibition. Then obviously you would not need to spend more than one-fifth of your assets. Because if you need to spend more than one-fifth of your assets, well, as far as the positive commandment is concerned you’re exempt; so if you’re exempt, why obligate you in the prohibition? The entire purpose of the prohibition is to ensure that you fulfill the positive commandment. So here there would be a difference. Okay?

This Nachmanides is used in several contexts. I’ll perhaps bring two, one relevant to our matter. One of them is by Maharil Diskin. Maharil Diskin asks: why with charity does a person not need to spend all his money? There is the enactment of Usha that one should not squander more than a fifth. But with charity there is also a prohibition. We talked about this in the previous class or the one before. There is “do not harden” and “do not shut your hand and do not harden your heart.” So there is also a prohibition. And for a prohibition, a person should spend all his money. So Maharil Diskin answers, in light of this Nachmanides, that in the commandment of charity the prohibition comes to support the positive commandment, and therefore the practical difference is whether one needs to spend all his money. The answer is no. He apparently adopts the first of the two understandings I mentioned in Nachmanides.

Truthfully this is difficult, this whole matter. As we saw in Maimonides in the previous class when I spoke about it—that this is not correct. The prohibition has its own independent definition and the positive commandment has its own independent definition. The prohibition concerns character refinement, while the positive commandment concerns improving the condition of the poor person. So in Maimonides’ view it is hard to say such a thing. But that is what Maharil Diskin says. That is one example of using this principle of Nachmanides.

A second example—what? Why is that unfair? Why? Once he spent all his money, he himself may fall upon the public. So he won’t give all his money; he’ll leave in his hands two hundred zuz. Two hundred—what is it? What he needs in order not to be considered poor. Still, though, more than a fifth. It depends how much he has, but if he has enough, he gives eighty percent of his wealth, not twenty percent, and what remains leaves him Bill Gates. What remains is still enough for him to live very well. So why shouldn’t he spend more than a fifth of his assets? He can stay perfectly fine—no, spend everything until he becomes poor, and then he is no longer obligated. It isn’t that they established a fixed boundary; rather, spend everything unless you become poor, in which case you’ll just be giving charity to yourself. That’s all. It doesn’t need a special rule.

At what level? Even someone who gave a third—if he gave a third of a shekel, yes, beyond that he did not… no, no, you can say that here you are not obligated. But if they ask of you more than a third, someone could come and say yes, you are obligated. Only if he asked. Yes, if you are in a situation where one is obligated, then there is room for interpretations here. So I’m saying, one can debate this, but that is what Maharil Diskin says.

In Divrei Yechezkel he brings the same point regarding Yom Kippur. There is a question: after all, we let minors eat on Yom Kippur. The Talmud in Yevamot says there is a prohibition against actively feeding a minor something forbidden. “You shall not eat them”—understood as “you shall not feed them.” It is forbidden. To actively feed a minor something forbidden—according to an absolute majority of the medieval authorities (Rishonim), that is a Torah prohibition. A one-month-old infant—it is forbidden to feed him pork. A Torah prohibition. The minor himself, of course, is not obligated in commandments and not in prohibitions. But if I feed him—more than that, if he eats on his own, I do not need to stop him. In practice, if a minor eats non-kosher food, the religious court is not commanded to separate him from it. That is what is written in the Talmud and ruled in practice. But if I actively give him the forbidden food, that is a Torah prohibition. Okay.

Now if I give a minor forbidden food to eat on Yom Kippur—feed him on Yom Kippur—how is that permitted? Haven’t I violated a prohibition? Eh? Isn’t it a matter of danger to life, and therefore not forbidden, and therefore you can give it? What danger to life? There’s no danger to life there. A child fasting a whole day? I want to claim—the Minchat Chinukh, I don’t remember—they want to say something like that. It seems strange to me. What danger to life is there here? First of all, let him take a Bamba snack on his own; you don’t need to hand it to him. And second, he doesn’t enter a danger-to-life situation. And you know what? If it were danger to life, then let him eat once after half a day and that’s it. He’s already out of the category of danger to life. We never find anywhere such a definition that you have to stop once you’ve exited the category of danger to life.

So I think the Magen Avraham writes that the prohibition against actively feeding a minor something forbidden was not said regarding a positive-commandment prohibition, only regarding a negative prohibition. Positive-commandment prohibitions—giving a minor human flesh by hand is permitted. Human flesh, according to Maimonides, is only neglect of a positive commandment; there is no prohibition, only neglect of a positive commandment. So then it is permitted to give it to a minor by hand. The prohibition to feed a minor something forbidden by hand applies only to prohibitions.

Now, says the Magen Avraham—that’s what the Magen Avraham claims. Divrei Yechezkel says: now apply this to Yom Kippur, in light of Nachmanides. Nachmanides claims that if the prohibition comes to support the positive commandment, then it has the status of a positive commandment. And if so, then one can feed a minor food on Yom Kippur by hand. Why? True, there is a prohibition here, but the prohibition comes to support the positive commandment and therefore has the status of a positive commandment, according to Nachmanides. And according to the Magen Avraham, when there is a positive-commandment prohibition, there is no prohibition against feeding it to a minor by hand. The combination of Nachmanides and the Magen Avraham can resolve this issue.

What is Divrei Yechezkel assuming here? That the doubling of the prohibition and positive commandment on Yom Kippur is a doubling of a special kind—the kind of doubling Nachmanides talks about—where really this is not prohibition and positive commandment, one and minus one, righteous or wicked. In reality there is only one; there isn’t really a minus one. Enjoyment on Yom Kippur is not truly a negative state; rather, they imposed a prohibition on it in order to strengthen or ensure the fulfillment of the positive commandment. That is what he claims.

Actually, maybe I’ll first bring support for his view. We’ll see this later in the discussion of eating on Yom Kippur. We know that the measure is different from ordinary eating prohibitions. In ordinary eating prohibitions, the measure is an olive-bulk. So too with commandments involving eating, such as matzah or in the sukkah, yes, the measure is an olive-bulk. In eating prohibitions the prohibition is at an olive-bulk. On Yom Kippur it is the size of a large date. Why? Affliction—enough to settle his mind, affliction. And what about the prohibition? What about the prohibition? It comes to assist. The prohibition seemingly is a prohibition against eating—so it should be an olive-bulk. The positive commandment concerns affliction, so indeed the positive commandment would be not to eat more than a large date’s worth, a large date and up. But the prohibition—if the prohibition concerns “that he shall not be afflicted,” there is no language of eating in the prohibition. What? “Every soul that shall not be afflicted”—that’s the karet, that’s not the prohibition. Fine, from that they derive the prohibition—we’ll see that soon. But what I’m saying now is that if the prohibition too has the measure of a large date, that means that the whole point of the prohibition is to ensure affliction; it is not an eating prohibition. So the prohibition really serves to support fulfillment of the positive commandment. It is not something standing on its own. Because if it stood on its own, why assume that with the prohibition too the measure is a large date? Seemingly I would have said, as in all eating prohibitions, an olive-bulk. Rather, you see that even in the prohibition the basis is the obligation of affliction. And when you do not afflict yourself, there is a prohibition; it is not an eating prohibition. So we see that the prohibition serves to support the positive commandment, and the positive commandment is to afflict oneself.

Now, since you raised it, I’ll say this now; later I’ll note it more fully. If we… but this is not conclusive. This is support for Divrei Yechezkel, that on Yom Kippur the prohibition supports the positive commandment. Why is it not conclusive? Because one could say that the prohibition does not support the positive commandment—it is an independent prohibition—and still, even in the prohibition the issue is affliction, meaning ensuring affliction. Not ensuring the positive commandment, but rather that one who does not afflict himself violates the prohibition—not one who eats, but one who does not afflict himself. Not because the prohibition supports the positive commandment. Failing to afflict oneself is a negative state; afflicting oneself is a positive state. In that sense this is a doubled prohibition and positive commandment, just as we saw in the previous class; it is not a prohibition that supports a positive commandment.

True, the definition in both is the measure of a large date, because both speak about the concept of affliction, not about eating prohibitions. But that still does not mean the prohibition supports the positive commandment. Not necessarily. One could say that—but not necessarily. Especially if, as we’ll see later, Maimonides too, who says there is a prohibition regarding affliction, derives it from “the soul that shall not be afflicted and shall be cut off”—I said this earlier too—even though that is only the punishment, Maimonides derives from that the warning as well. There it says “the soul that shall not be afflicted.” Meaning, clearly the prohibition too speaks about affliction, not about an eating prohibition. And precisely for that reason too, the prohibition was not written explicitly, as we’ll see shortly. So that is not conclusive proof, but it is still possible.

However, I think it is very difficult to say what Divrei Yechezkel says. Why? Because according to his view, women really ought to be exempt from affliction on Yom Kippur. Right? It is a positive commandment caused by time. Right? And if the prohibition on Yom Kippur serves entirely to support the positive commandment, then it has the status of a positive commandment exactly like with parapet. And just as Nachmanides says about parapet that if that matter were time-bound, women would be exempt from both the prohibition and the positive commandment, that is exactly the situation on Yom Kippur. On the Sabbath there is still the exposition of “remember” and “observe”—whoever is included in “observe” is included in “remember.” But on Yom Kippur what is the problem? On Yom Kippur there is no “remember” and “observe.” Eh? “Every soul that shall not be afflicted”? That only means a soul obligated to afflict itself. Fine.

What does the Talmud say regarding prayer, regarding why women are obligated? The Talmud’s answer is: what, are they not entitled to pray for themselves? Same thing here—are they not entitled to atonement? Ah, so you’re saying that because of the content of the commandment of Yom Kippur we can infer that here the exemption of women does not apply, by such reasoning, or maybe from some exposition on “every soul that shall not be afflicted,” some special derivation. But on the conceptual level, I would have expected the Talmud to say that women ought to be exempt on Yom Kippur because it is a positive commandment caused by time, and then bring some exposition, reasoning, or something saying that women are obligated.

Another possibility is to say: you know, there is also a Talmudic passage in Kiddushin that says women are obligated in the assembly commandment. “Assemble the men, the women, and the children”—all are obligated in the assembly commandment. So the Talmud there brings a baraita that says every positive commandment caused by time, women are exempt, except—I don’t remember—tefillin, what else? I don’t remember. There are a few positive commandments caused by time for which women are obligated. I think the Talmud brings three commandments there. And then the Talmud asks: but what about the assembly commandment? That is a positive commandment caused by time, and women are obligated. So the Talmud answers: one does not derive rules from general statements, even where an exception was stated. Meaning, even when there is a rule worded in a very precise way—every positive commandment caused by time, women are exempt, except A, B, and C—there you would have expected that clearly the Talmud was being precise and listed all the exceptions. So obviously there are no other exceptions, because otherwise it would have had to mention this one too. The Talmud says no, don’t make too much of these things. One does not derive rules from general statements, even where an exception was stated.

I talked about this in several contexts in previous years; whoever heard me there has probably already heard this from me. One has to be careful with rules—the halakhic system is pretty dismissive of rules. This is one example. But still, the idea requires explanation. Fine, so I understand that there are exceptions. But these exceptions need some reason. Why indeed are these exceptions—why indeed are women obligated in these exceptions?

I think that with the assembly commandment—and this can be inferred from Sefer HaChinukh and elsewhere, and really from the wording of the Torah itself—the assembly commandment is a communal commandment. The community is obligated. Now of course each of the individuals has to be present there, because you know, if each individual exempts himself by saying this is only on the community, it has nothing to do with me, then it won’t happen. Meaning, in the end I have to impose the obligation somehow on the individuals, because otherwise the community also won’t fulfill it.

By the way—and this is a very interesting principle—Sefer HaChinukh writes there, and I’m saying this only parenthetically, in these classes we’re dealing a lot with general principles and I think these principles are very important and worth noticing. Sefer HaChinukh writes there that someone who did not come—on the one hand he says it’s a communal commandment, and therefore women are obligated and even children are obligated. The children are obligated not merely “to give reward to those who bring them,” as the Talmud brings in the simple sense, meaning that they are not obligated and this is only by the law of education. No—it is a Torah obligation. To the point that the Shaagat Aryeh, for example, wants to argue—and the Minchat Chinukh is astonished at him—that the Shaagat Aryeh wants to argue: how can children be obligated, after all they have no land? And only one who has land is obligated in the assembly commandment. So the Minchat Chinukh asks: what do you want? The children are not obligated; the parents are obligated to bring them by the law of education, “to give reward to those who bring them,” as the Talmud in Chagigah 3a says. But the Shaagat Aryeh says not so. The Shaagat Aryeh says the children themselves are obligated. And why? Because… what the community is obligated in—it is not an obligation on each individual as an individual. Anyone belonging to the community is obligated. Therefore just as children are obligated, women too are obligated. So what if it is caused by time? Women, in commandments addressed to individuals, if they are caused by time then they are not addressed to women. But a commandment addressed to the community—either the community is obligated or the community is exempt. And once the community is obligated, anyone who belongs to the community is obligated. There is no place here to distinguish between one segment of the community and another.

If one understands it this way, then maybe on Yom Kippur too this is the case. In light of the introduction I gave, that on Yom Kippur all the affliction and refraining are basically a collective action that backs up the High Priest’s entry into the Holy of Holies. This is really an action of the community. Thus we refrain in order to enable the High Priest to enter the Holy of Holies. If it is a commandment upon the community, then there is no question why women should not be exempt. Obviously they are obligated. They are obligated just as the whole community is obligated. And then we don’t need all those other answers.

But on the conceptual level, were it not for all these nice interpretations, the very fact that women are obligated on Yom Kippur indicates that the prohibition of Yom Kippur is not a prohibition of the type Nachmanides describes, one that comes to support the positive commandment. Because if it were so, since it is time-bound, women should have been exempt. So as I said, the gates of answers have not been locked—one can answer—but… Why is the Sabbath not a communal commandment? Why would it be? Because the whole community… Why isn’t the Sabbath a communal commandment? What “community” is there on the Sabbath? What does that have to do with it? On the Sabbath it is a commandment of refraining incumbent on each individual. On Yom Kippur we are backing up the High Priest who enters inside. The whole community must refrain. It is a communal act. The High Priest is effecting atonement for the community. His entry into the Holy of Holies atones for all of us. How does that happen for all of us? How are we partners in that act? First of all, he is our agent. Though yes, “agents of Heaven” and all that, but you know, according to the Talmud’s conclusion it is both ours and Heaven’s. But beyond that, the entire passage in Acharei Mot—with that I opened in the first class—the whole passage in Acharei Mot says that the community is supposed to take part in the action of the priest. How? By refraining from labor and from pleasures. That is the community’s part in the entry into the Holy of Holies.

It would be interesting to check whether the other two examples there in the Talmud are also communal commandments. The other two examples of positive commandments caused by time… I don’t think so. For each of them there could be a different explanation. I’m saying that this is the explanation regarding the assembly commandment. As for the others, I don’t know. But I’m saying that every exception still requires explanation. Why? So why is it an exception? Fine, I understand there can be exceptions, but the question is why.

Do we have an example from the medieval authorities or the enumerators of commandments that children themselves are obligated in a commandment? Aside from parental education. I didn’t understand. That the Torah says: “assemble the men, the women, and the children”—the Torah says this. Why? Because usually people… Why interpret that the children themselves are obligated? Why? The Talmud interprets it that all are obligated. What does it mean, all are obligated? Usually people understand “all are obligated” to mean the parents are obligated regarding them by the law of education. The Shaagat Aryeh says: what do you mean? The children are obligated—that’s what the Torah says. Is there anyone before him who said that children are obligated? I don’t remember right now. I don’t remember a clear proof. What do you mean? It’s not simple—nothing is simple. What does “in commandments” mean? In this specific commandment the Torah says so—that is what the Shaagat Aryeh claims. The Torah itself says that this commandment is exceptional.

Do the enumerators of commandments say that the child is obligated in the assembly commandment too? But he says yes. I don’t know. Sefer HaChinukh says… You would interpret Sefer HaChinukh too like the Shaagat Aryeh. He doesn’t say anything. Ah, meaning one could interpret… Obviously. In all of them—in the Talmud, in the medieval authorities, in everyone. It’s a dispute between the Minchat Chinukh and the Shaagat Aryeh how to understand all of this. Is it only “to give reward to those who bring them,” as the Talmud says? Understand, the concept of educational obligation is a rabbinic commandment. Education is a rabbinic commandment. So what? But here bringing the children is Torah law. So from where do they learn from here that education is Torah law? Why does everyone hold that education is rabbinic, when the Talmud explicitly says it is rabbinic? There’s a difference between the obligation and the performance, certainly. What does that mean? Meaning, there is an obligation on the child but he can’t perform it, as with redemption of the firstborn, honoring one’s father… No, that’s a different question. The Pri Megadim in his General Introduction says that all exemption of children from commandments is only exemption due to duress. Essentially they are obligated, only because they lack understanding we do not demand it of them. Fine, that is an unusual approach, and simply speaking it is not correct. Simply speaking it is not correct. But I’m saying: even if you don’t understand it that way, the Shaagat Aryeh claims that in the assembly commandment it is indeed so. Okay? The minors themselves are obligated.

By the way, that is why Sefer HaChinukh writes that someone who did not come to Jerusalem for the assembly commandment has neglected a positive commandment. Why has he neglected a positive commandment? The commandment is imposed on the community. The community was there, mostly all of it, and they fulfilled the assembly commandment. How can the commandment have both been fulfilled and neglected at the same time? The one obligated in the commandment is the community, the community fulfilled the commandment—what is the problem?

The point is this: in commandments that are imposed on the community, a duty is always imposed on every individual as well—exactly because of what I said earlier. If we leave the duty as some abstract duty on the community and exempt the individuals, then none of the individuals will come and the community also won’t fulfill it. So true, the definition is that the commandment is imposed on the community, but the Torah says: yes, however, the neglect will apply to every individual who does not do his part. Because that is the Torah’s way of ensuring that the community fulfills its duty.

And that resolves several difficulties. For example, in the Mishnah Berurah there is a contradiction regarding Torah reading. With Torah reading too there is a discussion whether it is an obligation on the community or on each individual—say, on Monday and Thursday. If it is an obligation on the community, after all there is no principled obligation to pray with a congregation; it is only a matter of value, in the straightforward understanding. In the Shulchan Arukh it does not appear. There is some hint somewhere that people infer from, but in the Shulchan Arukh there is no obligation stated to pray with a congregation. And the Talmud too indicates that it is an added virtue in prayer, not an absolute obligation. Okay?

Now the question is whether that is said about the community or about each individual. So from one place in Mishnah Berurah people infer that it is on the community—doesn’t matter now whether a Torah scroll must be brought, and so on. In another place it says that one may not leave. Someone who is present at Torah reading may not leave and say the community will fulfill it. So several later authorities from our time, after the Mishnah Berurah, ask how this can be reconciled. What do you mean one may not leave? It is an obligation on the community; I leave and the community will fulfill it. It’s like Sefer HaChinukh: the assembly commandment too is an obligation on the community, but one who does not come neglects a positive commandment. Why? Because if you leave it as an obligation on the community and exempt all the individuals, then all the individuals will leave during Torah reading. So who will remain? The way to ensure that the community fulfills its obligation is to say that every one of the individuals who does not contribute his part has neglected a positive commandment. Okay?

So I’m saying that even when someone neglects a positive commandment, that does not mean the positive commandment is not a communal one. It is a communal positive commandment. But still, the way to ensure the community fulfills it is to impose a mandatory obligation on each individual, and every individual who does not fulfill it has neglected a positive commandment. What? If you really did neglect it, it’s like a prohibition inferred from a positive commandment—you neglect the positive commandment if you’re not there. It’s like the categorical imperative. By the way, that’s actually a source for the categorical imperative. Kant’s categorical imperative says that you should perform all your actions in such a way that you would want them to become a general law. Does Jewish law also recognize this principle? I claim that it does. I once wrote an article about it in Tzohar. I claim that it does. And it has many very interesting implications. One of the implications, I think, is right here.

Because after all, what is the essence of the categorical imperative? People think that acting in such a way that you would want your behavior to become a general law means that if you don’t do it, then others won’t do it for you either, and in the end it won’t happen. That’s a mistake. To perform your actions in such a way that you would want them to become a general law is a criterion for an action even when there is no concern that the general law will be harmed. For example—and this is timely—an ongoing argument I have with my son: whether one should go vote in elections. I say yes, he says no. Why not? Because it has no effect. It has no effect not because everyone does the same thing—that’s also true—but because each individual has no significance at all. When does one single person affect the election outcome? Only when the party he wants is a party that received an exact round number of votes relative to mandates. If the number of votes modulo the mandate is zero. Only in that case do you have an effect, right? Because what does effect mean? If you voted, the result is such-and-such; if you didn’t vote, the result would be different. How can it be that one person didn’t vote and the result is different? Only where the number of votes your party got together with your vote is exact—or where without you it lacks only one vote. Right? What are the odds that this will happen? The number of votes per mandate is thirty-something thousand for each seat. The chance of this is one in thirty-something thousand. It will never happen. It never happened and it never will happen. No chance. Therefore it is not that your influence is small—your influence is absolutely zero. You have no effect. No effect. It’s not a small effect and everyone adds up to a big effect; there is no effect. You go vote even though there is no effect at all.

Now, what is his argument, my son’s? So someone says, what, everyone will say that? His argument is: so what’s the problem? I don’t vote and it has no effect whatsoever. Then people always argue with him—what do you mean, then everyone will say that? He says no, no, I say it quietly, I don’t tell anyone. The action I do affects no one. So whether they vote or not, maybe—but I myself have no effect in any case. Because if they don’t vote, then even if I vote it won’t make any difference. I myself affect nothing. What others do is what they do. It’s true that if everyone did this there would be a problem. But whether others do or don’t has already happened; it has nothing to do with me. Quietly, I won’t vote—or won’t pay income tax, you know what? Same question. All sorts of things. Okay? This is basically doing something that has no effect whatsoever.

The only answer that can be raised against such a thing is the categorical imperative. It says that you must do your actions in such a way that you would want them to become a general law. What does that mean? It is a hypothetical thought experiment. It is not the question of what will happen in practice. It is not the claim that if you do it then in practice there will be a problem—no. It is a conceptual question: let’s do a thought experiment. Suppose everyone acted like you. That won’t happen, but suppose everyone acted like you. Is that a good situation? No. Ah—if that is not a good situation, then this action is not moral and one must not do it. That is Kant’s claim. Not the claim that because in the end this will happen, but rather the claim that it is a thought experiment that serves as a criterion for determining whether the action is moral or not. It is not that if you do this then everyone will do it and there will be a problem. It is a thought experiment: suppose everyone did. Not everyone will, but suppose everyone did. Is that a state you would want? If not, then it is an immoral act.

Now if that is indeed so, that is exactly what is happening here in Sefer HaChinukh. I say: I leave during Torah reading. Quietly—no one will notice. I leave quietly, no one will pay attention. What’s the problem? A broad minyan remains, forty people remain in the synagogue. They will read from the Torah, all is well, it is a commandment on the community. Right? So the minyan remains—yes, but everyone will do as you do. No, they won’t. I’m leaving quietly, no one will notice. The point is not that everyone will actually do as I do. Rather, if when everyone does as I do the commandment would be nullified, then I myself am forbidden to do it even if it won’t bring about a situation in which everyone acts like me. Kant’s categorical imperative—that is what is written in Sefer HaChinukh. What is written there is that you are forbidden to do this not because everyone will do as you do; you have neglected a positive commandment even if everyone else remained there. What? There is an idea of being righteous—why? Because if the world is exactly half and half, he tips the whole world. What are the odds that it is exactly half and half? Zero. That’s the afternoon class. The afternoon class that I started last week, one day in the afternoon I’ll discuss that.

For example, if everyone had to be a doctor? Why? Say I love music, but they tell you: if everyone were like you and became musicians, there would be no doctors, Heaven forbid. So… I don’t want to turn this into a class on the categorical imperative. There, with Torah reading, you ask the same as about doctors: there will be doctors. Why not? What you are asking is an objection already raised against Kant. The claim is—and the answer to it of course somewhat undermines the ground under Kant’s principle—the answer is that we would not want the whole world to be musicians, but we would want the world to be divided into five percent musicians, five percent doctors, ten percent economists, lawyers, etc. That is the ideal state we would want. The ideal state may be a complex one. We would not want there to be no doctors at all in the world. We would not want that. But we also would not want the whole world to be doctors. Fine—“the best of doctors to hell.” Okay.

To leave the synagogue during Torah reading is disrespect and a violation of the honor of the Torah. Why? If it is not neglect of a positive commandment, then what is the problem? That’s the preacher’s nice idea. The question is what the halakhic prohibition is. It is a neglect of Torah reading—the halakhic prohibition. So I’m talking about the halakhic prohibition. I’m talking about the halakhic prohibition. I’m going outside for a very important commandment, I’m not disrespecting the Torah. There is a very important commandment here, there is… No, who said it is permitted? Only if it can be done by someone else. It cannot be done by someone else. If it can be done by someone else—there is no disrespect here, I am going to do an important commandment. That’s not it. I’m asking what the halakhic prohibition is. And I claim there is a halakhic prohibition. It is neglect of the commandment of Torah reading—the commandment here being a rabbinic positive commandment. Even though the commandment is fulfilled by the community. True. But according to the principle of the categorical imperative, someone who leaves has neglected that commandment. That is my claim.

It seems to me there is some place in the halakhic midrashim or in Yalkut Shimoni somewhere that when they would read the Torah on Yom Kippur, people would go to see the burning of the ashes. Okay. So they left the Torah reading. Fine. Do you think they neglected a positive commandment? I don’t know. Or perhaps it is permitted because there is some value in doing that. One needs to check each case on its own. But the burning of the ashes—there is some value there—I don’t know. Okay, so that is… Fine, let’s return to our issue.

So basically right now we are talking about the fact that there is both a prohibition and a positive commandment both in pleasures and in acts of labor. Where does this come from? We saw in Maimonides that Maimonides brought this from “every soul that shall not be afflicted and shall be cut off.” That speaks about the prohibition of affliction. The positive commandment of labor comes afterward. First of all, the prohibition of affliction—where does the prohibition of affliction come from? Maimonides says it is learned from the punishment. But a punishment is a punishment—how do we know the warning? And the rule is that punishment is not enough. The Talmud asks in many places: “we heard the punishment; from where do we know the warning?” Meaning, the fact that there is a punishment somewhere does not itself tell us there is a prohibition. We need an explicit warning besides the punishment. Therefore to bring the verse of punishment, “every soul that shall not be afflicted and shall be cut off,” is not enough.

So in order to understand this, I’ll first preface what… maybe distribute the sheets here. I’ll first bring the explanation found in Sefer HaChinukh for the necessity of a warning itself. Why indeed is a warning needed? Go ahead, pass around the sheets. There are also some in that row. Hand them out to each row. I hope there are enough. I think so. Okay, does everyone have one? Look at the first source you have, Sefer HaChinukh, commandment 69. There Sefer HaChinukh explains that there is a prohibition against cursing judges. “God…” yes, “you shall not curse a ruler among your people,” or “you shall not curse God”—rather “you shall not curse God,” meaning judges, “whom God shall condemn,” yes, we see that Scripture calls judges “God.” Also at the beginning of tractate Sanhedrin they derive that you need three judges on a court from the fact that the word “God” appears three times in the section dealing with monetary law.

“And Scripture used the term God so that another prohibition should be included within this prohibition, namely the prohibition of blessing the Name, may He be blessed”—obviously in euphemistic language. “As our Sages said in the Mekhilta and the Sifrei, the warning for blessing the Name is from ‘you shall not curse God.’ And what is written elsewhere, ‘one who pronounces the Name shall surely be put to death’—that is the punishment, but the warning is from here.” “‘One who pronounces the Name shall surely be put to death’ is only the punishment; from there you cannot learn that there is a prohibition. The warning is from here: ‘you shall not curse God.’

“For merely mentioning the punishment in a commandment without a warning would not suffice for us. The fact that a punishment is written—seemingly what is the problem? A punishment is written; why not enough? Why also need a verse of warning? This is what our rabbis of blessed memory always say: ‘we heard the punishment; from where do we know the warning?’ The fact that there is a punishment is not enough; you need a verse that warns. And the matter is this: if there did not come to us in the matter a prevention from God—that the Holy One, blessed be He, forbids this to us—but instead it only said in the Torah, one who does such-and-such shall be punished in this way, and that’s all—there were no warning verse—then it would imply that anyone who wanted would have permission to accept the punishment and not care about its pain, and violate the commandment, and by doing so he would not be acting against the desire of God, may He be blessed, and His commandment. The matter of the commandment would then become something like a commercial transaction. That is, whoever wants to do a certain thing shall pay such-and-such and do it, or shall consent to bear such-and-such and do it.”

What is he saying? If there were no warning verse and only a punishment were written, then basically you would think that doing that thing is not defying God. It would be permitted to do it; the Holy One, blessed be He, would have no issue with it, only that if you do it you’ll get hit. You’ll get hit not as a sanction because you did something criminal, but as a kind of stipulation, like a sale transaction—the price. Do it, and the price is such-and-such. No problem. You want to do it and pay the price? Fine. Therefore, he says, a punishment verse alone is not enough. Because if only a punishment verse were written, we would think it is just a stipulation like a sale transaction. You need a warning verse that also forbids.

And he says: “But this is not the intent of the commandments. Rather, God, for our benefit, restrained us in these matters, and in some of them informed us of the punishment that reaches us immediately, besides violating His will, which is harder than all. And this is what the Sages, of blessed memory, said everywhere: Scripture does not punish unless it has warned first. Meaning, God does not make known the punishment that will come upon us for violating the commandment unless He first made known to us that His will is that we not do the thing for which the punishment comes.”

So Sefer HaChinukh says this: why do you need a warning in addition to a punishment verse? As on Yom Kippur, “every soul that shall not be afflicted and shall be cut off”—not enough. You need also a verse that warns. Why? Because otherwise we would think that what is here is just a stipulation like a sale transaction. We would not understand that it means doing something against God’s will. Therefore you need a warning.

If so, then Maimonides’ words are problematic. Because Maimonides, whom we read earlier, says that we learn the prohibition from “the soul that shall not be afflicted and shall be cut off,” but that is a punishment verse. In order to establish a prohibition, you need a verse that warns; punishment alone is not enough. “We heard the punishment; from where do we know the warning?”

I’ll add, parenthetically, that here too the later authorities make a bit of a fuss about this principle of Sefer HaChinukh—not much; I found basically one, the Minchat Chinukh. Regarding a prophet withholding his prophecy, the Talmud says that one who withholds his prophecy is flogged. Tosafot ask there: where is the warning? A Talmudic passage in Sanhedrin—after all there is no warning, there is no prohibition telling a prophet not to withhold his prophecy. There is a commandment to prophesy, but no prohibition against withholding one’s prophecy, that is, not delivering it. So Tosafot ask: from where is this derived? Tosafot discuss whether perhaps this is disciplinary flogging because it is for neglect of a positive commandment, and so on.

The Minchat Chinukh wants to claim, in light of these words of Sefer HaChinukh we just read, that perhaps indeed there is no prohibition, and these lashes are only like a commercial arrangement. Here it is a case where there is punishment—we need to understand from where that is learned, not important now—but there is no warning, and then, as Sefer HaChinukh says, where there is punishment and no warning, it is like a commercial arrangement. And with this he wants to explain Jonah. Jonah was a prophet. He flees from the Holy One, blessed be He, like a little child. The Holy One, blessed be He, tells him: go prophesy to Nineveh, and he runs away from God so God won’t catch him. What are you doing, making a joke? The Holy One, blessed be He, sends you to prophesy and you run away? What are you running away for? There is a commandment to prophesy—a prophet withholding his prophecy. So he says: no, Jonah understood that with withholding his prophecy there is no prohibition. If he withholds his prophecy, as long as he bears the consequences, it is like a commercial arrangement. There is no warning. So since that is so, he says, I will bear the consequences. He had a theological argument with the Holy One, blessed be He, which is an interesting story in itself. He had some theological argument with God as to whether it is right to bring people to repentance or not. Okay, so he decided: no, I stand by my position, I’m running away, and I’ll take the hit. He knew he would take a hit. Fine. But he says, it’s like a commercial arrangement. The Minchat Chinukh says this cannot be, and he brings a different explanation.

But this is from another place that I found. Once I saw an article by Rabbi Dov Landau, the head of the Slabodka yeshiva. I don’t even remember where I saw it, in what memorial volume for some student who was murdered, and since then I haven’t found it. But I saw it in some short article of his. He brought these two examples. One example from the Minchat Chinukh, and the second example is Rabbeinu Gershom at the beginning of Temurah. The Talmud there discusses how one gets flogged for an oath. Never mind now how it comes out that one is flogged for an oath. One possibility the Talmud raises is for a true oath. When a court, say, requires a guardian to swear—or whatever, in a certain situation—he swears and gets flogged. What does it mean he swears? The Torah requires him to swear—how would he get flogged? Is he violating a prohibition? He is fulfilling a commandment. The court requires him to swear. How can you flog him? According to Rabbeinu Gershom there, it indeed comes out that this is flogging even though you did not commit a prohibition, you did not go against God’s will. And there it is not only that you are allowed to do it and get flogged—you are obligated to do it and get flogged, which is really strange. True, there it is only an initial suggestion that is later rejected. But perhaps what is rejected is only the possibility that you are obligated to do it and get flogged. Maybe the option that you are permitted to do it and get flogged is indeed possible—I don’t know. Bottom line, there is no practical example of this.

Bottom line, there is no practical example of this, and indeed the words of Sefer HaChinukh are puzzling. Why? Because after all, the Talmud asks everywhere, “we heard the punishment; from where do we know the warning?” What’s the question? We heard the punishment and there is no warning, therefore it’s like a commercial arrangement—what’s the problem? Rather, clearly the Talmud already assumes there are no prohibitions that are like commercial arrangements. Otherwise what is the problem of “we heard the punishment; from where do we know the warning?” We heard the punishment and there is no warning, and therefore it is like a commercial arrangement. What’s the great difficulty? There is something very interesting here.

I once thought that maybe, maybe, maybe, one can say like Sefer HaChinukh but only go halfway. It is not a commercial arrangement. So why indeed do you need a command in Jewish law? People do not understand this correctly. You can see this in the eighth principle of Maimonides; I won’t go into it here. What is the meaning of a command in Jewish law? Why is a command needed? What does the command do? People usually think that the command comes to let us know that the Holy One, blessed be He, does not want us to steal, or, I don’t know, to eat pork. And therefore the Torah writes a prohibition about it. But that is not correct. There are things we know the Holy One, blessed be He, does not want us to do, and they are not halakhic prohibitions. Maybe a moral prohibition, beyond the letter of the law, but not a halakhic prohibition. A command does more than that. A command commands us not to do it.

A verse of obligation and a verse of command are two different linguistic entities. When the Torah reveals to us that the Holy One, blessed be He, does not want us to do something, that is a verse of obligation. It tells us a fact: the Holy One, blessed be He, does not want you to do such-and-such. Okay, one may weigh it—I will heed Him, I will not heed Him; that is, I will do His will or not do His will. A verse of command does not leave me room to weigh it. The Holy One, blessed be He, commands me to do such-and-such or not to do such-and-such. That is a different linguistic and logical entity. Jewish law is founded on commands. The command “do not steal” does not merely mean to reveal to me the fact that the Holy One, blessed be He, does not want me to steal. It is not just that. That too—but not only that. There is something else here: a command.

There is also the rule that one who is commanded and does is greater than one who is not commanded and does. Therefore one who is commanded and does is greater than one who is not commanded and does. Because one who is commanded and does, besides fulfilling God’s will and also bringing about the benefit for whose sake the commandment was said, he also responds to a command. Therefore Tosafot HaRosh and Ritva write that one who is commanded and does is greater than one who is not commanded and does.

In any event, that is the meaning of a command. So this means that if there were no command—say there were only a punishment but no command—then it wouldn’t be that this was like a commercial arrangement and God didn’t care. Obviously there’s no such thing. But it could be that this would only be a moral issue and not a halakhic one. Meaning, obviously it would be improper to do it, and the Holy One, blessed be He, would not want us to do it. But as long as there is no command, there is no command, and therefore it is not part of Jewish law. That was Sefer HaChinukh’s initial assumption. And that is why we search for warnings—to see whether, if there is punishment, this is apparently part of Jewish law. So if it is part of Jewish law, there must be a command. It is not enough that from the fact that there is punishment we can learn perhaps that God does not want it. But how does it become part of Jewish law? In order for it to become part of Jewish law, you need a command. Maybe. I don’t know.

In any case, because of the question about the count of 613 commandments, you entered a certain issue of commands, and now you entered obligations. Right. What’s the problem with that? Why? Who said we need to get to that count in order to distinguish between command and obligation? Not who said—the count is the count of commands. That’s not an additional claim; that is the claim itself. No, that’s a different question—where do we know the number from? That’s another question. Nachmanides discusses it at the beginning of his glosses on the principles, and the Tashbetz as well. No, it works the other way around. First of all there is a distinction between command and obligation, and now they tell you: besides that, know that there are 613 commands, and now I need to see what those 613 commands are. Yes, clearly there can be more. A half-measure, for example, is Torah-level and yet it is not part of the 613. But Jewish law rules like Rabbi Yohanan that it is Torah-level. So that is one point.

A second point: Maimonides writes very clearly that a warning cannot be learned from an exposition, and of course cannot be learned from a punishment either, as the Talmud says, “we heard the punishment; from where do we know the warning?” Okay? If that’s the case, then according to Maimonides the situation is even more difficult. How do we know there is a prohibition concerning affliction when all I really have is karet, and at best there is no explicit verse; at best you can bring me an exposition. But an exposition is not sufficient to create a warning. So according to Maimonides this is a tangle with no answer—how can there be a prohibition regarding affliction according to Maimonides? Regarding the prohibition of affliction. The same question applies… I’ll mention that later. First of all I’m talking about the prohibition of affliction. Okay?

So look at Maimonides in the introduction to the enumeration of the commandments. This appears at the end of the fourteenth principle. There there is some blurring in the standard editions about where the fourteenth principle ends and where the introduction to the enumeration of the commandments begins. It really belongs to the introduction to the enumeration of the commandments. The blur arises because the fourteenth principle deals with punishments—that punishments are not counted in the enumeration of commandments—and here too he is discussing punishments, but as an opening to the enumeration of commandments, so it somehow looks as though it could belong both here and there.

So look at the passage: “Everything that is written in the Torah that one who does such-and-such shall be put to death or shall incur karet—we know in truth that that act is warned against and that it falls under a prohibition.” Yes, if a punishment is written then clearly there is a prohibition. “And sometimes the warning is made clear in Scripture”—there is no such thing as a commercial arrangement—“and the punishment is not made clear. Sometimes the punishment is mentioned and the warning is mentioned,” meaning there are both punishment and warning, “as with desecration of the Sabbath and idol worship, where it says ‘you shall do no labor’ and ‘you shall not worship them,’ and afterward it imposes stoning on one who performed labor or one who worshipped. And sometimes the warning will not be made clear in Scripture by a plain prohibition, but only the punishment is mentioned and the warning omitted.” This is exactly what happens on Yom Kippur, right? There is only punishment and no warning.

By the way, what happens when there is warning but no punishment? Flogging. The punishments explicitly mentioned in the Torah are all the punishments other than flogging. A plain prohibition for which no punishment is mentioned is punished with flogging. Every prohibition that has a punishment other than flogging—the punishment has to be written. Okay? Regarding flogging there is “the judge shall cause him to lie down and beat him,” and from there they learn that every prohibition—I’m talking about a prohibition involving an act, and not one remedied by a positive commandment, with certain conditions—is punishable by flogging. That is the default. Therefore the punishment need not be written; a warning is enough. Of course, if the punishment is not written then it is only flogging; if the punishment is written, then whatever is written is written. But if there is punishment and no warning, then seemingly there should be a prohibition, but without a warning there is no prohibition, so we have a problem.

And on this Maimonides says: “But the principle with us”—notice, 81, this is exactly the Talmudic passage we’ll see later, I don’t know if soon but later on—“Scripture does not punish unless it warned first, and it is impossible for there not to be a warning for anything for which a punishment was imposed.” There cannot be no warning where punishment is written. “We heard the punishment; from where do we know the warning?” “And therefore they say in every place: we heard the punishment; from where do we know the warning? Scripture says such-and-such. And when the warning is not made clear from Scripture, they will derive it by analogy from one of the Torah’s analogies”—an exposition—“as they mentioned in Sanhedrin regarding the warning for one who curses his father and mother and one who strikes his father and mother, which is not made clear in Scripture at all.” It does not say “do not curse your father”; it says “one who curses his father or mother shall surely be put to death.” The punishment is written, not the warning. Nor does it say “do not strike your father”; rather it imposes death on one who struck or cursed. “Thus we know that these are prohibitions, and we extracted for them and similar cases the warning from elsewhere by way of analogy.”

So in a place where punishment is written, the warning can be learned from an exposition. Maimonides continues: “And this does not contradict their statement: one does not derive warnings from logical inference,” and their statement “does one derive warnings from logical inference?” Seemingly, the rule is that one does not derive warnings or punishments from logical inference. How does Maimonides interpret this? Usually how do people interpret “one does not derive warnings or punishments from logical inference”? Only from a kal va-chomer. Only a kal va-chomer is insufficient. Maimonides interprets it as applying to all expositions, all hermeneutic methods, not just kal va-chomer. And Nachmanides in his glosses on the second principle attacks him very forcefully on this. In the plain sense of the Talmud, it is only about kal va-chomer. Maimonides applies “one does not derive warnings and punishments from logical inference” to all expositions. When we derive from logic, “logic” means all hermeneutic derivations, not only kal va-chomer. According to Maimonides’ view in the second principle, everything that emerges from exposition is rabbinic, and therefore when it says “one does not derive warnings or punishments from logical inference,” that is simply because something learned by exposition is rabbinic. And that is what Maimonides writes in the second principle, in the article I sent you there: “We say ‘one does not derive warnings from logical inference’ only in order to forbid something for which no specific prohibition was made clear by way of the analogy.” It must be explicit in the Torah. If the warning is not explicit in the Torah but is learned from exposition, there is no prohibition. It is rabbinic, not Torah law. According to Maimonides it is rabbinic—not merely that one would not be flogged.

However, says Maimonides—and this is his innovation here—“when the punishment is found explicitly in the Torah for one who does that act, we know necessarily that it is a forbidden act warned against. And we derive the warning by analogy in order to reinforce for us the principle of their saying: Scripture does not punish unless it warned first. And after the warning for that matter has been arrived at, then one who transgressed and did it becomes liable, whether karet or death.”

Maimonides says as follows. A warning that comes from exposition is not really a warning—it is rabbinic, not Torah-level. A punishment without a warning does not create a warning. But if there is a warning from exposition and another verse that imposes punishment for the act, then the warning from exposition is Torah-level. Why? Because the punishment tells us there is a prohibition, right? We only still need to locate the warning. Once the exposition gave us a warning, the punishment reveals that this warning is Torah-level, because otherwise there could not be punishment for such a thing. So this is a special case. A warning from exposition alone is rabbinic. But where there is punishment, and then it is clear to us that there somehow must be a warning, then it is clear that this warning creates a Torah prohibition.

And now if we come to Yom Kippur, how does this fit? “Does one derive warnings from logical inference?” So we said that we say “one does not derive warnings from logical inference” only in order to forbid something for which no specific prohibition has been made clear by analogy. Correct. But in a place where punishment is written, then even a warning by way of analogy can count as a warning. And on Yom Kippur, where there is punishment—“every soul that shall not be afflicted and shall be cut off”—if I find an exposition… What? Meaning, say in a prohibition where there is no… No, then it does not help. If it is only an exposition and there is no explicit punishment, how do you know there is punishment for such a thing? Only because there is a prohibition—but the prohibition itself comes from exposition. Meaning, really, all the Talmud said was only about a prohibition. Right. In a place where the punishment is written explicitly, there the warning can also be established by analogy. And now we really have a conceptual possibility—we only still need to look for where the exposition is—and we have a conceptual possibility of understanding why there is a prohibition concerning affliction on Yom Kippur. If we find an exposition together with the fact that there is a verse imposing karet, then it could work. If there is, in the Talmud, right? If there is an explicit warning and the punishment is learned by analogy, would that also be Torah-level according to Maimonides? Does he discuss that at all? I don’t know an example of that. It could be.

Because this resolves for us the phrase “a Sabbath of solemn rest.” There? There the punishment is from exposition, and the warning regarding labor is explicit—sorry, yes: “you shall do no labor.” So? The punishment is from there—no, not the punishment, right, it’s not a punishment, true, it’s not a punishment, it’s a prohibition and a positive commandment. Maimonides…

So in the glosses, Nachmanides—I’ll skip that now because we need to start moving toward a conclusion—this is the Nachmanides I mentioned earlier on the second principle, where he is amazed at Maimonides. He claims that “one does not punish from logical inference” applies only to kal va-chomer. But according to his own view, all hermeneutic methods produce Torah-level laws, so there is no problem. A warning learned from exposition is a full warning; he does not need Maimonides’ answer. But Maimonides, who says that a warning learned from exposition is rabbinic, says yes—but if there is punishment explicitly written, then even if the warning comes from exposition, it works.

Now look at Maimonides in prohibition 196, the last source on your page. Commandment 196 is that “He warned us against eating on Yom Kippur. And there is no warning in the Torah for this act, but the punishment is mentioned, and karet is imposed on one who eats,” right, that’s the verse, “every soul that shall not be afflicted and shall be cut off.” “And we know that eating is warned against.” So because of the punishment we know there is a warning—not completely. We have an indication that there must be a warning, but we still need to find it, right? There is no punishment without warning. But we still need either a verse or at least an exposition that gives us the warning. The fact that the Sages say there is punishment only means they had a source, but he still hasn’t brought the source.

And he says: “And it says: ‘for every soul that shall not be afflicted on that very day shall be cut off.’ And at the beginning of tractate Keritot, when they counted those liable to karet, they included among them one who eats on Yom Kippur, and they explained there that everything for which one is liable to karet is a negative commandment, except for Passover and circumcision.” So how can there be karet on Yom Kippur? Apparently because on Yom Kippur there is also a prohibition. Fine, “apparently” is nice—but still, the question is where the source is. We need a source from the Torah or from an exposition, even an exposition. There is a punishment verse, but you still need to bring me either a textual source or an exposition. The fact that the Sages say there is punishment only means there was a source, but he still has not brought the source.

So he says: “And behold, it has already been confirmed that eating on Yom Kippur is a negative commandment, and therefore one is liable for its intentional violation to karet and for its unintentional violation to a fixed sin-offering, as they explained at the beginning of Keritot, and as explained in tractate Horayot that this rule applies only to a negative commandment, from the verse, ‘from all the commandments of the Lord which shall not be done.’” There is also a sin-offering for unintentional violation on Yom Kippur, and that basically means there is a prohibition. Right? Fine, that’s an indication from the Sages that there is a prohibition, but he still hasn’t explained what the source is. We need a source, either from the Torah or from an exposition, for the prohibition.

Then he says: “And the language of the Sifrei is: ‘For every soul that shall not be afflicted and shall be cut off’—that is the punishment for affliction. But the warning for affliction for the day itself we have not heard. When it says the punishment for labor”—regarding labor, after all, we saw punishment—“which need not be stated, for it follows by kal va-chomer. If affliction, which does not apply on festivals and Sabbaths, is nevertheless punished, then labor, which does apply on festivals, is it not logical that it should be punished? If so, why is punishment stated regarding labor? To teach from it the warning regarding affliction. Just as punishment for labor comes after warning, so too punishment for affliction comes after warning.”

He learns indirectly from that kal va-chomer that in labor there is a kal va-chomer, because otherwise the verses regarding labor would be superfluous. From that he learns that there is a warning for affliction. Because if there were no warning for affliction, then the verses concerning labor would be superfluous. Why would they be superfluous? Because then we would not know that the punishment for labor comes after a warning. And this is a kal va-chomer that can be challenged—after all, one does not punish from logical inference? No, because when there is a punishment verse, it is not exactly a kal va-chomer. The kal va-chomer indirectly teaches me about the warning. But there is a punishment verse, so even an indirect derivation is enough. If there were no punishment verse, an indirect derivation would not be enough.

Now this is basically spelled out more fully in the Talmud in Yoma 81a, which I referred you to—or was supposed to refer you to, I don’t remember what I wrote and didn’t write in the email because I missed something there. That is the Talmudic passage with which we will open next time—the passage in Yoma 81a regarding the warning indeed for affliction. Reish Lakish says: why was no warning stated regarding affliction? There is no warning regarding affliction. So the question is from where we know whether there is a warning or not—that is the Talmud there. After that we may also understand Maimonides better.

So that will be next time, and then we’ll move on to the positive commandment regarding labor as well. Regarding the positive commandment in labor, the Talmudic passage is in Shabbat 114—I referred you there too; if not, then in the next email I send I’ll refer you again. Okay? Then we’ll finish the prohibitions and the commandments and return to the actual topics themselves.