Halakhic Thought – 5783 – Lesson 1

Table of Contents

• Rashi’s first comment on the Torah, the inheritance of the nations, and the Book of the Upright
• Rabbi Yitzhak’s premise: the Torah as a book of commandments, and the need to justify the non-halakhic
• Nefesh HaChaim: cleaving through His will and cleaving through His speech
• A hierarchy between Jewish law and aggadic literature, and the comparison of Psalms with Negaim and Ohalot
• Command vs. expectation: the difference between “forbidden/obligatory” and “okay/not okay”
• Self-evident commandments and the claim “Why do I need a verse? It is logical”
• “And you shall do what is upright and good,” the enumerators of the commandments, and the position that morality and Jewish law are disconnected
• Maimonides, the roots, and the eighth root: command versus negation of obligation
• “She shall not go out as the slaves go out” as an example of the error of the Behag and the mechanism of negating a norm
• Verses of command versus verses of statement, and defining the halakhic sphere
• Conclusion: mapping what Jewish law is, and moving on to the question of the meaning of command

Summary

General Overview

The text opens with Rabbi Yitzhak’s foundational assumption, cited by Rashi in his first comment on the Torah, that the Torah should have begun with the first commandment, this month shall be for you, and from there builds the claim that the Torah is essentially a book of Jewish law, while its non-halakhic sections require justification. It suggests that Genesis comes both to establish divine ownership of the land and to justify the choice of Israel through the “Book of the Upright,” and it goes on to draw a conceptual distinction between Jewish law as binding command and moral expectations in the sense of “okay/not okay.” Through Nefesh HaChaim and Maimonides in the eighth root, it formulates the difference between verses of command—norms of obligation and prohibition—and verses of statement—descriptions of facts—and argues that what is permitted is the default in the absence of a halakhic norm.

Rashi’s first comment on the Torah, the inheritance of the nations, and the Book of the Upright

Rashi cites Rabbi Yitzhak as saying that the Torah should only have begun from this month shall be for you, because that is the first commandment that Israel was commanded. Rashi explains that the opening with Genesis was intended as an answer to the nations of the world regarding the conquest of the lands of the seven nations, because “He declared to His people the power of His works, to give them the inheritance of the nations,” and the whole earth belongs to the Holy One, blessed be He, who created it and gave it to whomever was upright in His eyes. The text emphasizes that a claim of arbitrary ownership is not enough; there is also a need to justify why the choice is specifically Israel, and therefore the story from the patriarchs until Parashat Bo is needed in order to explain who “whomever was upright in His eyes” is, and the Sages call Genesis “the book of the upright.”

Rabbi Yitzhak’s premise: the Torah as a book of commandments, and the need to justify the non-halakhic

Rabbi Yitzhak assumes that the Torah ought to contain only commandments, and everything beyond that requires justification. The text states that Jewish law does not require explanation, because that is the essence of the Torah as instruction, whereas the narrative and aggadic sections are seen as an addition that needs a reason for being included in the Torah. The text sharpens the point that there are also verses in the Torah that are neither narrative nor Jewish law in the narrow sense, such as “and you shall do what is upright and good,” which is not counted by the enumerators of the commandments.

Nefesh HaChaim: cleaving through His will and cleaving through His speech

Nefesh HaChaim (Rabbi Chaim of Volozhin, Gate 4, chapter 6) states that Torah study is cleaving to the Holy One, blessed be He, because “He, blessed be He, and His will are one… and every law and halakha… is His blessed will.” The text presents this as opposed to the Hasidic conception of cleaving as an emotional experience, and argues that according to Nefesh HaChaim, engaging in Jewish law itself is a state of intellectual-metaphysical cleaving. It quotes that even one who studies aggadic teachings “which have no practical implication for any law” is still cleaving “to the speech of the Holy One, blessed be He,” because the entire Torah was said to Moses at Sinai, and thus a distinction is created between cleaving to His will in Jewish law and cleaving to His speech in aggadic literature.

A hierarchy between Jewish law and aggadic literature, and the comparison of Psalms with Negaim and Ohalot

The text concludes from Nefesh HaChaim that there is a hierarchy according to which, in studying Jewish law, one cleaves both to His will and to His speech, whereas in non-halakhic study one cleaves only to His speech. Nefesh HaChaim (Gate 4, chapter 2) cites a midrash that King David asked that one who occupies himself with Psalms should be considered as though he were occupied with Negaim and Ohalot, and from this he proves that studying the halakhic discussions of the Talmud in depth and with effort is loftier and more beloved than reciting Psalms; otherwise the request should have gone in the opposite direction. The text distinguishes between Nefesh HaChaim’s argument against viewing the experience of cleaving as the goal of study, and its own expansion of the issue into the status of the non-halakhic parts within the Torah itself.

Command vs. expectation: the difference between “forbidden/obligatory” and “okay/not okay”

The text argues that even if narrative or value-laden materials teach what the Holy One, blessed be He, expects, they do not become Jewish law without a binding command. It uses the example of a traffic light without a law in order to show that an act can be “not okay” even without legislation, but legislation creates a different category of “obligatory/forbidden” that allows punishment and legal definition. It defines the difference as the gap between what the Holy One, blessed be He, commanded and what He expects, and presents “beyond the letter of the law” as something praiseworthy but not obligatory.

Self-evident commandments and the claim “Why do I need a verse? It is logical”

The text explains that the Torah commands even things that are morally obvious, such as “you shall not murder,” because the command does not come to introduce the idea that the thing is merely “not okay,” but to establish that it is “forbidden” in the halakhic sense. It notes that Cain is considered a murderer even before any explicit command, but the command creates a binding normative status. It brings as an example Rabbi Amital’s claim about eating human flesh as a moral prohibition that is not halakhic in the absence of a command, and presents the position that pork is more severe because it is halakhically forbidden.

“And you shall do what is upright and good,” the enumerators of the commandments, and the position that morality and Jewish law are disconnected

The text insists that the fact that “and you shall do what is upright and good” is not counted among the commandments teaches that it is not a halakhic commandment but rather a moral expectation, even if there are certain cases of coercion by a religious court, such as “we compel against the trait of Sodom.” It argues that the Torah knows how to create command-structures such as vows or “do not deviate,” and therefore the absence of enumeration here is not accidental. It presents an extreme dichotomous position according to which morality and Jewish law are separate categories with no connection between them, while noting in advance that the issue will be discussed further later on.

Maimonides, the roots, and the eighth root: command versus negation of obligation

The text explains that the enumeration of the 613 commandments does not arise from a simple reading of the Torah, and therefore Maimonides formulated fourteen roots as a methodology for counting the commandments. It quotes from the eighth root that a prohibition is part of a command, but the “negation of obligation” is not a command at all; it is only a descriptive negation of a predicate from a subject. It emphasizes that the word “not” can indicate either a prohibitive commandment or a descriptive negation, and it brings examples such as “No prophet arose again in Israel like Moses” as a negation that is not a warning.

“She shall not go out as the slaves go out” as an example of the error of the Behag and the mechanism of negating a norm

Maimonides attacks the Behag, who counted “she shall not go out as the slaves go out” as a prohibition, and argues that this is a verse that negates an obligation rather than forbidding an action. Maimonides explains that the verse rejects the initial assumption that a Hebrew maidservant would go free through the loss of limbs, as a Canaanite slave does, and clarifies that there is no prohibition here but rather an absence of obligation. The text uses this to sharpen a tool of distinction between the language of command and the formulation of negating a law.

Verses of command versus verses of statement, and defining the halakhic sphere

The text defines Jewish law as the normative sphere of obligation and prohibition, and presents “permitted” as the absence of a norm rather than a positive norm. It explains that verses of statement are factual claims that can be judged true or false, whereas verses of command are not claims but instructions, like the linguistic distinction between indicative and imperative. It states that in order to forbid or obligate, you need a verse, whereas in order to permit you do not need anything, except in cases where it is necessary to negate a norm that would otherwise have been inferred by analogy.

Conclusion: mapping what Jewish law is, and moving on to the question of the meaning of command

The text concludes that today Jewish law was defined using a diagnostic tool that distinguishes between norms of “obligatory/forbidden” and descriptions and expectations that are not commanded. It states that the continuation of the discussion will deal with the meaning of commands, why one must fulfill them, and how one fulfills them. It ends with the lecture break and a promise to continue next week.

Okay, so we’ve talked more or less about the topics we’re going to deal with. I want to begin with this issue of what Jewish law is, what a command is, what the meaning of these things is. So maybe I’ll start with the very first Rashi on the Torah. The first Rashi on the Torah—Rabbi Yitzhak said—I’ll open it here. Actually, maybe the link to this monster would have been not bad. I’ll check, maybe before the next class, exactly how to do that. I’ll just read it to you: Rabbi Yitzhak said: The Torah should have begun only from “This month shall be for you,” which is the first commandment that Israel was commanded. So why did it begin with Genesis? “He declared to His people the power of His works, in order to give them the inheritance of nations.” For if the nations of the world say to Israel, “You are robbers, for you conquered the lands of the seven nations,” they can say to them, “The whole earth belongs to the Holy One, blessed be He. He created it and gave it to whomever was right in His eyes. By His will He gave it to them, and by His will He took it from them and gave it to us.” So Rabbi Yitzhak is asking here: why do we need the book of Genesis at all, and the beginning of Exodus? Why not start from “This month shall be for you,” the first of the months? Fine, these are well-known things, but I want to point out something here that people maybe pay less attention to. First of all, the answer is a well-known answer: why did the Holy One, blessed be He, need all this? “He declared to His people the power of His works, in order to give them the inheritance of nations.” That the Holy One, blessed be He, is the owner of the whole thing. Since He owns the world, He created it, He can give it to whomever He wants. And therefore if He gives it to us, that is His right. So I’ll just make a parenthetical comment: why? So I understand why we need the creation story—to show that the Holy One, blessed be He, is in fact the owner, He gave it to us, He can give it to whomever He wants, and He gave us the land—sorry, the land. But why after the creation story, from chapter 1 on? You might say: the Holy One, blessed be He, created the world, okay, and now the Exodus? Why do we need the stories about the patriarchs? The first commandment is in Parashat Bo? So then everything else is unnecessary? You’re saying the whole question was only about the order—why begin with Genesis? So what’s the answer? If they had put it in the middle, then we wouldn’t know that “He declared to His people the power of His works, in order to give them the inheritance of nations”? Why? If so, then there’s no answer here. If it had appeared in the middle of the Torah, not at the beginning, then I couldn’t tell the nations: listen, the Holy One, blessed be He, created the world, He owns it, He gives it to whomever He wants? So no—the question isn’t about the order. The question is why this whole story appears at all, right? Before he asks this, in the whole story of the Torah, how is that possible? Which part is chosen? Maybe I agree, maybe I’ll sharpen it a little more. That’s not really my point right now, just parenthetically, but I’ll sharpen it a bit more. There is the Holy One’s right—He owns the world, He can give it to whomever He wants. But that sounds arbitrary. Okay, so He could also have given it to the Assyrians, He could have given it to monkeys. The Torah probably isn’t satisfied just with explaining why He has the right to do what He wants; it also wants to justify it. And it also wants to explain why it is actually right that, yes, He can give it to whomever He wants—but He chose specifically… the Jewish people. Why? What is the justification for that? So we need the creation story to show that He is the owner, and He can give it to whomever He wants. After that, we need to explain what justifies the fact that He chose specifically us, and that’s the whole story up until Parashat Bo. That’s why Genesis is really called the Book of the Upright, the book of the upright ones in Hazal, to explain why. And I think that’s also in Rashi. Rashi writes: why did it begin with Genesis? They say to them—and the Jewish people answer them—“The whole earth belongs to the Holy One, blessed be He; He created it and gave it to whomever was right in His eyes.” And you have to tell that He created it, and therefore He is the owner, and after that you have to explain who is that one who was right in His eyes to receive the land, and that is the Book of the Upright, Genesis. So Rashi hints to this: that He gives the land to the one who is right in His eyes. Meaning, there is not only the forceful claim—that the Holy One, blessed be He, has the right because He is the owner, He created it and can give it to whomever He wants—but He also wants to justify and explain: okay, He can give it to whomever He wants, but He also did something just and upright, and for that you need to explain why the Jewish people are in fact right in His eyes. Fine, that’s the end of the parenthesis. But let’s go back to the more interesting question. What is the question? Why shouldn’t it start with Genesis? I mean, that’s where the whole story began, no? Why should it start with “This month shall be for you”? That is to say, Rabbi Yitzhak assumes that, were it not for one reason or another, it should have started with “This month shall be for you,” the first of the months. We said there is a need here, and therefore it begins with Genesis. I’m asking about the question: why is the assumption that it should begin with “This month shall be for you”? What do you say? Rather, right? It seems to me that this is the simple explanation. That is, Rabbi Yitzhak is basically assuming—and this is what brings us to the claim I want to make here—Rabbi Yitzhak in fact assumes that the Torah should have contained only commandments. That’s it. Anything beyond that requires justification. Fine, he found a justification; there is at least a justification for Genesis. The other stories would require a justification of their own, as you asked before. But the basic assumption, the subtext of Rabbi Yitzhak, is in my view more interesting than the question and the answer. He basically assumes that the Torah is about commandments. That’s it. Torah—even the root of the word is the root meaning instruction. Right? Torah means instructions, Jewish law. The Torah really ought to have been a halakhic book. Just laws. Just the legal sections of the Torah. All the parts of the Torah that are not legal parts require explanation. What are they doing here? Why do they appear here? So we found one explanation or another. But this assumption itself is interesting. Because it basically says that, in the essence of Torah, it is a book of Jewish law. Everything beyond that, for one reason or another, still had to appear—but I would even say it is second-tier. Maybe less important. From the perspective of Torah—the books of the Prophets don’t look like law books. But Rabbi Yitzhak is talking about Torah, the Five Books of Moses. And from the perspective of Torah, Rabbi Yitzhak seems to understand it basically as a book of Jewish law plus additions that are needed for specific reasons. But in essence—about Jewish law he doesn’t ask. If it had started with “This month shall be for you,” the first of the months, would he have asked why the Torah started with “This month shall be for you,” the first of the months? Would he have searched for explanations? Where is the explanation for why “This month shall be for you” appears here? That needs no explanation at all; it’s obvious. The narrative parts need explanations. The legal parts need no explanation. That’s obvious. Why? Because the Torah in its essence is a book of instruction, instruction in Jewish law, instructions, teaching, right? And therefore, from Rabbi Yitzhak’s question I learn that in the essence of Torah it is basically a book of Jewish law. Everything beyond that, I would say, is a side issue. But here I’m not sure—don’t grab me and say no, it’s not a side issue, it just requires explanation, and once there are explanations it’s no less important. Fine, you can debate that. But one thing is clear: there is something essential, and that is Jewish law; it does not require explanation. It’s obvious, it needs to appear here. Everything else requires explanation. All the other things require explanation. So that means that if we now look at the Torah, we can actually distinguish between two genres within this composition, this text. One genre is the halakhic genre. The legal parts of the Torah, which in essence are really the parts that ought to appear here. The second part, the second category, is the non-halakhic parts—what you call stories, aggadah, everything happening around it. By the way, it’s not only stories. There are certain things like “And you shall do what is upright and good.” It looks a bit like a command; it doesn’t belong to the narrative part, but among the enumerators of the commandments it does not appear. The enumerators of the commandments do not count this verse, “And you shall do what is upright and good.” We’ll discuss later why, but for example that too is apparently not part of the halakhic section, because it doesn’t appear in the count of the commandments, and it also isn’t narrative. Meaning, there may be other certain parts of the Torah that are not narrative but also are not Jewish law in the pure sense, in the narrow sense. So in principle the Torah should have contained laws. Everything beyond that is there for certain reasons, for specific reasons. I want to look at the same issue from a slightly different angle, and that is basically to look at—there is in the book Nefesh HaChayim by Rabbi Chaim of Volozhin. He says the following in chapter 6 of section 4. Section 4 deals with Torah. So he says: “He should intend in his study to cleave, through the Torah, to Him—to the Holy One, blessed be He. That is, to cleave with all his powers to the word of God, which is this Jewish law. And by this he is truly cleaving to Him, blessed be He, as it were, for He, blessed be He, and His will are one, as it is written in the Zohar. And every law and legal ruling from the holy Torah is His blessed will, for so His will decreed that this should be the law: fit or unfit, impure or pure, forbidden or permitted, liable or exempt.” Rabbi Chaim of Volozhin basically wants to claim that Torah study is a kind of cleaving to the Holy One, blessed be He. Why? Because He and His will are one, as it says in the Zohar. So if I am engaged with His will, the Torah is basically His will, then it’s like grasping the Holy One, blessed be He, Himself. By the way, the Tanya says very, very similar things—from opposite sides of the divide, as is known. Nefesh HaChayim is basically a work written against Hasidism, but the resemblance between Nefesh HaChayim and the author of the Tanya is astonishing, considering these are two views that basically clash or differ. The whole significance of Nefesh HaChayim as a book written against Hasidism, while saying things very, very similar to what the author of the Tanya writes. He actually elaborates there more; I just read a small excerpt. He basically tries to argue that the concept of cleaving, which Hasidism focuses on—the idea that the goal is to cleave to the Holy One, blessed be He, and the goal of study is to cleave to the Holy One, blessed be He—in Hasidism cleaving is a matter of experience, creating an experience of cleaving. And Nefesh HaChayim, this classic Lithuanian book, for him experience is—the very engagement with the laws. You don’t need an experience to be produced as a result of engaging in the laws; engaging in the laws itself is what it means to cleave to the Holy One, blessed be He. No need for experiences. It’s not an emotional matter, not a feeling-centered matter, not an experiential matter. The very engagement with the laws is itself a state of cleaving. Why? Because He and His will are one. He and His will are the same thing. The moment I engage with His will, then I am cleaving to Him, because His will is present in my mind and I am engaged with it, and He and His will are one, therefore I am basically in a state of cleaving to Him. Not because there is an experience of cleaving; cleaving is not an experience. Cleaving is a state—a metaphysical state, I would even say, an intellectual-metaphysical one, something like that. And now look at an interesting comment: “And even if he engages in aggadic teachings that have no practical implication for any law, he is still cleaving to the speech of the Holy One, blessed be He, because the whole Torah, in its general principles, details, and nuances—even what a young student asks his teacher—all came forth from His blessed mouth to Moses at Sinai.” Again, subtext—what does it mean “even if he engages in aggadic teachings that have no practical implication for any law”? What difficulty is bothering him here? What is he trying to answer? Okay. Why not? Other things—you mean things that are not His will, not commands, not Jewish law. So he is dealing with exactly the distinction I made before between the halakhic parts of the Torah and the non-halakhic parts of the Torah, right? He is basically saying: when you engage with the halakhic parts of the Torah, the commandments, right, the halakhic parts of the Torah, then you are cleaving to the will of the Holy One, blessed be He, and He and His will are one. So if you engage in Jewish law, you are cleaving to the Holy One, blessed be He. Now it is also clear what bothers him, what he is trying to resolve, what he is trying to explain. If you engage in non-halakhic parts of the Torah, or in aggadic passages in the Talmud, or stories in the Bible—various things that are not Jewish law—then you can’t say that you are engaging in the will of the Holy One, blessed be He. It’s not His will. Stories—it’s not that He is expressing a will here: do this, don’t do that—that’s His will, right? When you engage with stories, with aggadah, with all that, that’s not the will of the Holy One, blessed be He. So if it’s not His will, then it isn’t called cleaving to Him. So why is that considered Torah study? Torah study, in the Lithuanian definition, is cleaving to the Holy One, blessed be He, right? So it’s cleaving to the Holy One, blessed be He. It’s not cleaving to Him because He and His will are one—but what is not His will is not part of Him. So he says—notice his wording exactly—even if they have no practical implication for any law, “for example, if he engages in aggadic teachings that have no practical implication for any law, he is still cleaving to the speech of the Holy One, blessed be He.” Not to His will—to His speech. What does that mean? “Because the whole Torah, in its general principles, details, and nuances—even what a young student asks his teacher—all came forth from His blessed mouth to Moses at Sinai.” He said it. The Holy One, blessed be He, said it. So if we engage with it, we are not cleaving to His will, because it is not His will, but it is still Torah study because it is the speech of the Holy One, blessed be He. Basically, he is giving another conceptualization of the same distinction I made earlier in Rashi. The Torah consists of two parts, mixed together of course, but in principle there are two types of verses here, two types of genres, two types of texts in the Torah. One text is the will of the Holy One, blessed be He, and that is Jewish law. The second text is not the will of the Holy One, blessed be He, because it is not dealing with commands, not do and do not—it is the speech of the Holy One, blessed be He. He said it, and that is another way of cleaving to Him. One can cleave to Him by engaging with what He said at Sinai, and one can cleave to Him by engaging with what He wants me to do or not do. Okay? This is cleaving through His speech, and that is cleaving through His will. Two kinds of cleaving. By the way, obviously the legal verses too were spoken by the Holy One, blessed be He—not only are they His will, they are also His speech. Now here it seems to me that the hierarchy between the halakhic part of the Torah—I said earlier that I’m not sure a hierarchy can be proven from Rashi, though the distinction certainly is there—but here it already seems that there is also a hierarchy, because when we engage with the will of the Holy One, blessed be He, with verses that deal with Jewish law, we cleave to the Holy One, blessed be He, both because He and His will are one and because we are engaging with His speech. By contrast, when we engage with verses that are not Jewish law, then we are engaging with His speech, but not with His will. Okay? That is, I think that here there really is some kind of hierarchy between the halakhic and the non-halakhic parts. And this is also a hierarchy of importance, because if you cleave to the Holy One, blessed be He, through two channels, that is a stronger cleaving than through one channel. It seems to me that is the straightforward reasoning. But then what does that difference mean? This is text and that is text—I agree. The Holy One, blessed be He, said all of it. But if you ask me which Torah study is more Torah study, in which one is a person more attached to the Holy One, blessed be He—the study of Jewish law. That’s what emerges from here. Okay? That doesn’t mean this is from the Holy One and that isn’t—it’s all from the Holy One. But still, when I engage with this, it is cleaving on a higher level than when I engage with that—with non-halakhic text. Look, at the beginning of chapter 2 there—it was chapter 6 that I just read. At the beginning of chapter 2 he makes some pilpul, a kind of Hasidic pilpul. “The true and clear meaning of studying Torah for its own sake is that ‘for its own sake’ does not mean cleaving, as most people think”—the Hasidim. By cleaving he means an experience of cleaving. “For our sages said in the Midrash that King David, peace be upon him, requested before Him, blessed be He, that one who studies Psalms should be considered by Him as if he were studying the tractates Negaim and Ohalot.” Right, the Midrash says that King David asked the Holy One, blessed be He, that one who says Psalms should be considered in the eyes of the Holy One, blessed be He, as if he were engaged in Negaim and Ohalot. Now, says Nefesh HaChayim: “Thus, engaging in the legal discussions of the Talmud with analysis and toil is a matter loftier and more beloved before Him, blessed be He, than reciting Psalms. And if we say that ‘for its own sake’ means specifically cleaving, and that on this alone depends the whole essence of Torah study, then there is no more wondrous cleaving than reciting Psalms properly all day long.” And if the Hasidim are right that the goal of study is really to bring us to an experience of cleaving to the Holy One, blessed be He, and that is basically the value of Torah study, then if so, Psalms is far more Torah study than Negaim and Ohalot. Abaye and Rava should have asked the Holy One, blessed be He, that someone engaged in Negaim and Ohalot should also be considered as if he were saying Psalms. So if King David asks the Holy One, blessed be He, that the recitation of Psalms be counted like Negaim and Ohalot, that means that Negaim and Ohalot is Torah study in the essential sense, and King David is asking that the recitation of Psalms also be considered Torah study. Fine—from the request it could be that that too is considered Torah study. But again, even here I’m not sure one can derive a hierarchy from this, though I’m not sure one can’t. If he shifts it to the Bible? What? Without it being in the Bible—just like the poetry of Rabbi Yehuda HaLevi—the same thing, it should also have been more than Negaim and Ohalot. But I’m saying he claims—he, not I—no, no, again, we need to distinguish between two things. What Nefesh HaChayim is doing is not what I was talking about. He is addressing the question whether the goal of study is the experience of cleaving, or whether the very engagement with the will of the Holy One, blessed be He, is itself cleaving. And in that sense he brings proof from King David and Psalms, because Psalms in fact brings you to an experience of cleaving much more than Negaim and Ohalot. In that sense it’s a good proof. I’m extending it in a different direction, and there your comment comes in, because I’m trying to take it to a place where there is also a difference between the non-halakhic parts of Torah and the parts that are Jewish law. Leave aside Psalms, which is outside the Torah—inside the Torah itself. Okay? No, so I’m saying clearly, my argument is not the same as his. So for his argument your comment isn’t correct. You’re commenting on my argument, but I haven’t gotten there yet. Okay? So when he basically wants to say that the goal of the engagement is not creating an experience of cleaving, but that the engagement itself is a state of cleaving—and that he proves well from the hierarchy we see here between Psalms and Negaim and Ohalot. I want to continue that further, and that is not what he is doing. I want to continue it further to what he seems to be doing in chapter 6. Because in chapter 6 he also talks about the parts in Torah or in the Talmud, it doesn’t matter—the relation between the non-halakhic parts and the halakhic parts. In light of chapter 6, it seems to me that what he does in chapter 2 also connects to this. And he basically does not mean only to say that Psalms is not in the Torah and the request was that it should be like Torah, but rather he is talking about parts that are not Jewish law and the relation between them and the halakhic parts. Right? That is what is going on in chapter 2. But in light of what he does in chapter 6, I want to connect those two things because this is a whole move—one can read it as one move in his thought. All these chapters are one move. And his claim, it seems to me, says something broader than emotion versus intellect. Rather, there are emotion—or emotions, or things that are not Jewish law, emotion is only one of them—versus things that are Jewish law. And Negaim and Ohalot is basically the parts that are Jewish law. He does not say Psalms versus the stories of Abraham our father, but Psalms versus Negaim and Ohalot. So when you look at the whole picture from chapter 1 to chapter 6 and afterward as well, it seems to me that what emerges here is some picture in which he is really struggling to include the non-halakhic parts of Torah and the Bible and everything around it so that those too count as Torah study. Okay, but when we deal with Psalms, it’s not only… Okay, right, right—but he is talking about studying Psalms, I assume, because in his third section, section 3, he deals with prayer; section 4 is Torah. Okay? So here he is referring to Psalms as a kind of Torah study. We often also use Psalms in prayer, and there is a difference. We study Psalms as Bible study, or we say chapters of Psalms as part of our prayer. Not necessarily—no, no. Why? When you study Psalms, you study the poetry in it; you are not saying the poetry, you are studying the poetry. But it is certainly something that can arouse in you experiences of cleaving, even in study, not only in recitation. On the contrary, in a certain sense I think study does that more than recitation. Recitation is recitation, but study—I think that… Well, that can be argued. I think it is the study of a poem. The study of the poem, not the recitation of the poem. When you read a poem, do you need to say it out loud in order for…? Or do you look at it, reflect on its meaning, and that is what arouses the experience in you? Okay. So that’s… no, I’m not talking about what arouses stronger emotions in you. I assume that recitation arouses more, but the depth of the experience of cleaving—an experience of cleaving is not necessarily the emotions you feel when you recite poetry. The experience of cleaving is when you look at what stands behind the words; you create some emotional connection with the Holy One, blessed be He, even if it’s not a storm like in the recitation of Psalms. It’s a nuance, it’s not important to me, but I’m saying I don’t think you’re right in that sense. It may be more stirring emotionally, but what creates more connection with the Holy One, blessed be He—more of the experience of cleaving—I think that is the contemplation of the meaning of the poem. Okay, but it still isn’t Negaim and Ohalot. Not intellectual analysis in the sense of intellectual insights, the structure of the poem and so on, but what it says—meaning, what this poem is describing. You think about what it describes, you don’t only say it. Understand? I don’t mean the question of whether it’s built this way or that way, some poetic discussion or literary analysis of the text, but reflection on what it says. Okay? Fine. On that maybe I’ll add something later, because on that nuance I don’t really agree, I don’t really accept it. But let’s move on for a moment. What I want to say, basically, is that the Torah consists of two parts—I’m going back now to the Torah itself, the Written Torah for the moment, although one can also say this about the Talmud. It has its halakhic part and its narrative part. Also in the Talmud, there are the halakhic passages and the aggadic passages. Okay, and this division is the starting point for the whole move I want to make here. Because there is this part of laws, of commands—it is basically the part that requires no explanation, it is Torah in the straightforward sense. Everything else, in order to say that it too is Torah, requires explanation. Okay? That is basically the claim. Now, what exactly is the difference between these two things? One could say that the non-halakhic parts of Torah also come to tell us something that the Holy One, blessed be He, wants. We spoke earlier about the first Rashi, and we said that all of Genesis after the creation story, the whole of Genesis, basically comes to say that it is the book of the upright—what is upright in the eyes of the Holy One, blessed be He. Why is that important? Suppose it is important in order to learn how one ought to behave—not just for the polemic we will have with the nations about the Land of Israel, but to teach us what uprightness is, what the Holy One, blessed be He, expects. The Book of the Upright. So that too basically teaches us the will of the Holy One, blessed be He. So one could say that in a certain sense the whole Torah is the will of the Holy One, blessed be He. There are forms of will transmitted through story, and forms of will transmitted through command. But that is not precise. Let me—I’ll jump to the end for a moment and then come back to it more gradually. Let’s say, let’s say the Holy One, blessed be He, tells me, “And you shall do what is upright and good.” Let’s say that by this He is telling me that He expects moral behavior from me. Okay? Without specifying; everyone understands what morality demands of us, and the Torah says “And you shall do what is upright and good,” the Holy One, blessed be He, expects moral behavior from us. Someone who did not do that—he has not failed to fulfill a positive commandment, right? Because it is not a positive commandment, it is not counted among the commandments, “And you shall do what is upright and good.” So he has not failed to fulfill a positive commandment. But he has done something that is not right. What is the difference between that and failing to fulfill a positive commandment? What is the significance of the fact that it is not counted among the commandments, that it is not part of Jewish law? Maybe—even though, you know, “we compel against the trait of Sodom,” so a religious court sometimes compels even things that are moral. What does that mean? You’re saying sharp lines, black and white, and here it’s grayer. There is a Nachmanides on “And you shall do what is upright and good,” and the Maggid Mishneh at the end of Hilkhot Shekhenim basically repeats Nachmanides’s words. I don’t agree with them at all, and I’ll talk about that later. I really don’t agree. There are parts that are Jewish law and are completely gray. What is love of God? Fear of God? What is faith? “I am the Lord your God.” Why? Can you define the commandment of faith? Can you define—leave aside the commandment of faith—what is the commandment to love God? I don’t know; there are many levels, many situations, many… Exactly, but also in morality there are many levels and many situations, and there too. In love and fear of God, do you have a clear tool to know what is and is not included? That is a self-conception, but it can be very unclear; there are very unclear parts. Very non-univocal. Clear? Even in their halakhic applications—sanctifying God’s name, dying for the sanctification of God’s name, and things like that, which the Talmud links to the commandment of loving God. “And you shall love the Lord your God with all your heart and with all your soul and with all your might”—even if He takes your life. How far does that go? One can debate it. Why is that different? What is the difference between halakhic discussions and moral discussions? Well, and also in morality, what is the difference? There too I do not know what is right and what is not right. So there too it is like that. No, because I do not know what is moral. What is the difference? I don’t understand the difference. That there is doubt regarding the commandment “And you shall do what is upright and good,” and there is doubt regarding the commandment to love God. Why is that more defined than this? Than love? Love, fear, joy. What is “And you shall rejoice on your festival”? That is a commandment. Well-defined? More well-defined than being good, than “what is good”? No, the Talmud brings definitions into it… Fine, so I can also bring definitions into morality. The Talmud introduces definitions, or Jewish law introduces definitions; the concept itself is completely gray. And it has black-and-white edges on both extremes, and a lot of gray in the middle. I don’t think it is correct to define that anything gray does not enter Jewish law. There are many gray areas in Jewish law. Fine, but we’ll discuss that later. No, the Chafetz Chaim doesn’t talk about this. It’s Nachmanides and the Maggid Mishneh. Not the Chafetz Chaim. I didn’t understand—but love of God is Jewish law. What—love of God? But how do you define it? It says “And you shall love the Lord your God”—how do you define that? But within the corpus of Jewish law you already take that as a given. I’m saying: so then put “And you shall do what is upright and good” into the corpus of Jewish law too. Put in definitions and everything will be fine and it will be a positive commandment. Huh? No problem. But within “And you shall do what is upright and good,” for example, “we compel against the trait of Sodom,” there are passages that compel, defining what is included in the trait of Sodom. So did that become Jewish law? No. There is no such commandment. The commandment is not listed—“And you shall do what is upright and good.” “We compel against the trait of Sodom” is compulsion toward morality. There is no Jewish law. You did not fail to fulfill a positive commandment, you did not violate a prohibition, nothing. And that’s exactly my point; I return to my question. So I return to the question: what is the difference between transmitting the will of the Holy One, blessed be He, indirectly through non-halakhic passages and transmitting His will in the form of a command? These are just two ways of conveying His will to me. Why are these two different types? Why is this Jewish law and that not Jewish law? Aren’t both of them Jewish law? There are forms of transmitting Jewish law this way, and forms of transmitting Jewish law more directly. What is the difference? There is a difference. I’ll jump to the end already. Suppose—let’s think now about state law, okay? Suppose people behaved the way they do today—that is, they stop at red lights, cross on green, in the best case. They stop at red and go on green, but there were no law requiring it. There was no such law. That was just the practice. Okay? Now suppose someone crossed on a red light—a pedestrian crossing on red. That would be not okay. He endangers himself, endangers others. Right? Can we say that he violated the law? No. There is no law. Right? So now I ask: what does legislation add? If it is not okay even without a law, what happens once legislation is created? Right? Meaning, we understand that there is a categorical difference between something that has a command attached to it—in both law and Jewish law—and something that is simply okay or not okay. There is okay and not okay even outside the law. But when there is a law, that turns it into a different category. Now you are obligated. There, if you did it, you might get a commendation from the president, you were a good person, come get a medal—a commendation, yes, from the president. If you were not okay. But they can’t put you in jail, they can’t punish you. Right? It is not prohibition and commandment. Okay? We’ll discuss whether there are absolute laws that are only prohibitions—that’s also something we’ll discuss. But as long as there is no command, you can’t say that you are obligated. You are not obligated. There is okay and not okay; those concepts exist even outside the world of obligations. But obligation is not here. Right? No. In heavenly judgment that is something else, but in a religious court—a religious court may impose punishment beyond the strict law, but that is only to solve problems. They cannot punish. Punishment exists only for something that is a halakhic transgression. Only for that. Therefore there is a different category between obligations—which I call obligations meaning both commandments and prohibitions—halakhic obligations, and okay or not okay even in the eyes of the Holy One, blessed be He. There is a difference between what the Holy One, blessed be He, commanded me and what the Holy One, blessed be He, expects of me. Two different categories. “And you shall do what is upright and good” is an expectation of the Holy One, blessed be He, as to how I should or should not behave. It is not a command. Again, according to the interpretation of the enumerators of the commandments who do not include it in the count of the commandments. We’ll still talk about why, but right now I’m assuming it as a given. So this thing does not—so this does not mean that these expectations are neutral. The Holy One, blessed be He, cares that we behave morally and not immorally. But that is a concern. In Jewish law, the Holy One, blessed be He, commands. Exactly like a legislator, same thing. It is a different category. The consequences are that one can punish or not punish and various things like that, but those are only consequences. I think everyone intuitively understands that there is a difference between what I am obligated or not obligated to do and what is okay or not okay. Two different things. Going beyond the letter of the law is still perfectly fine; someone who does that is praiseworthy, but he is not obligated. Once there is a command, you are obligated. Okay? Therefore the significance of commands is basically to create a halakhic category. Without a command, you are not in the halakhic category. You may be in the category of okay or not okay—moral, value-based, whatever—but not halakhic. Without a command, that is not Jewish law. This is a very important point. I’ll jump even further ahead. People often wonder why the Torah commands things that are obvious, like “Do not murder,” “Do not steal,” honoring parents. Why does the Torah command this? Seemingly: why do I need a verse? Reason alone should be enough. If it’s superfluous, then there are various answers, maybe in order to assign punishment—all of that question. If the Torah had not commanded it, would murder be not okay? It would be not okay. After all, with Cain, the Holy One, blessed be He, says to him, “Where is Abel your brother? The voice of your brother’s blood cries out to Me from the ground.” Meaning, the Holy One, blessed be He, relates to Cain as a murderer even though there had been no command “Do not murder.” Or “Whoever sheds human blood, by humans shall his blood be shed”—that hadn’t yet been said. But obviously murder is not okay. So, we know murder is not okay even before the command. Right. But no—with the Noahides too, even the Noahides had not yet been commanded. “Whoever sheds human blood, by humans shall his blood be shed” was said later. For the Noahides it is not so simple that it was to Noah—it doesn’t matter, but it was later. In the Torah it appears later. So what, then what is the difference? Because once the Torah commands it, it turns from not okay into forbidden. And that is the reason the Torah commands. The Torah wants to say that the prohibition of murder is not only a moral prohibition; it is also a halakhic prohibition. Therefore you need a command. Not in order to teach me something, but in order to establish categorically that this thing, which I already knew before—I don’t need the command to know that murder is wrong, that it is not okay to murder. I know it is not okay. The command says that it is forbidden. Forbidden is not the same thing as not okay. Like with the red traffic light. Therefore all these questions arise from a lack of understanding. The purpose of the Torah is not to teach me anything that I would know without a command. People often ask: why does the Torah command it, I would know it without a command. There is no category, there is nothing you can know without a command. Nothing. Anything I would know without a command, I would know is not okay. I would not know that it is forbidden. An example? Well. Nothing—what kind of example is that? A prohibition by positive command according to Maimonides, but not everyone agrees, but let’s say even if there isn’t a positive command according to Maimonides or there is no prohibition at all. What example—what is it an example of? An example of what I’m saying. The prohibition on eating human flesh is a moral, non-halakhic prohibition, because there is no command about it. And that is the point. It is true that I know it is not okay even without a command, as Rabbi Amital was famous for saying. It is true that I know it is not okay even without the command—that is exactly the point. But that does not make the command unnecessary, because the command is not coming to say it is not okay; the command is coming to say that it is forbidden. By the way, I disagree with Rabbi Amital—if you have the option of eating human flesh or pork, eat human flesh. It is not forbidden, and pork is forbidden. And that is exactly the point. It is the same mistake in my view; it is a failure to understand the difference between not okay and forbidden, or between okay or praiseworthy and commanded. What? It has nothing to do with a positive prohibition, not important, but I’m talking in general—just as an example. Why do you object? Take something else: the trait of Sodom, “we compel against the trait of Sodom,” bar metzra, the law of the adjacent neighbor, okay? The law of the adjacent neighbor is included in no commandment. Okay, but we compel it. Why? Because it is immoral to behave that way. Immoral, but there is no halakhic prohibition. So in what sense is it more severe? In heavenly judgment maybe, I don’t know. I think in our general orientation the halakhic usually comes before the non-halakhic not-okay, although we’ll still discuss that because I’m not sure even about that. Not sure. But in the straightforward view for now, let us assume so—what I said before about pork versus human flesh. No, it’s a will, not a command but a will. What? A command is not just the will of God, and that is the point here. A command is not the will of God; a command is God’s command. What he calls the will of God—he means the command of God. Let’s say I tell you, “I would very much like you to cross only on green and not on red”—that is my will. The legislator would come and plead with me, all 120 legislators would come and say to me: look, we would very much like you to cross only on green and not on red. That is different—understand the difference between that and the legislator establishing that it is forbidden to cross on red. Right, when he says God’s will he means God’s command. No, no, that’s obviously how it is. No need to get hung up on the words. Leave it—if from the start I had used not the words command and will, but will versus desires, okay? It’s just words, I chose words. So what he calls will is what I call command. When the legislator legislates a law, that is what is called wanting. What they personally want, all 120 legislators, is not supposed to interest me especially. Even if it is just, even if it is something it is proper to do. For me, when a legislator wants, the legislator’s will is expressed in his command, not in confessions to the psychologist about what he wants and doesn’t want. I didn’t understand. If the legislator established that everything the legislators want must be fulfilled—that’s fine, that is a law in every respect. There are such laws, by the way—laws of delegation, authorization processes. I think—and how would I know? In law there is legal certainty; you need to know what. Say “the reasonable person,” not the inspector—it’s the reasonable person. Fine, usually that too is some kind of legal rule. In traffic law there is a clause saying that someone who did not drive reasonably according to road conditions can be punished as though he violated the law, even if he was driving, I don’t know, the sign said 90 and he drove 90. But if the road was slippery and crowded and you drove 90, they will sue you in court and you will be punished. There’s a name for it, I forgot the name in traffic law. That’s obvious, but “the reasonable person” is not the inspector. If you make it “the inspector,” then the inspector has to tell me what she wants. If you authorize someone, you have to say that; otherwise you don’t. No, I’m saying—it could have been interpreted that way. That’s why I said I’m not yet explaining why it was not interpreted that way, but in fact the enumerators of the commandments did not interpret it that way. It does not enter the count of the commandments. If they had interpreted it that way, it would have entered the count of the commandments. Never mind, but there’s no reason for that to be a separate commandment, okay, but it’s not part of another commandment. It should be counted. What do you mean? None of the roots of Maimonides come to explain to you why it is not counted. Think, for example, of the prohibition of a vow: “He shall not break his word”; “according to all that proceeds from his mouth he shall do”—there is a positive commandment and a prohibition. Okay? The prohibition of vows doesn’t tell you what is forbidden; whatever you vow is what you say must be fulfilled. But there is such a commandment in the Torah. The Torah has no problem establishing a commandment that is a framework whose details you fill in. Or “Do not deviate” regarding the sages. The sages determine what is forbidden, and after they determine it, the Torah says that I must obey them. And here too the Torah could have said: whatever morality says is a prohibition, and now we need to determine what morality says. That still should have been counted among the commandments. If it is not counted among the commandments, that means it is not a commandment—even after you know what morality says, it is morality, not commandment. Unless there is some explanation why it is not counted, a halakhic explanation. Maimonides—those are the 14 roots of Maimonides explaining why… He explains all sorts of reasons: for example, something included within something else, or things like that, or if there is duplication, and all kinds of roots of that kind. But otherwise yes—otherwise it is not a commandment. It is not Jewish law. Or if it’s rabbinic law, that’s another class. But Torah law—Jewish law transmitted to Moses at Sinai is not counted among the commandments because laws given to Moses at Sinai are not counted. That too is Jewish law. Things derived from interpretive exegesis, according to Maimonides, also are not counted, and that too is Jewish law. Every such thing has a reason why it is not counted according to the rules of counting. But for “And you shall do what is upright and good,” if you look through all the roots of Maimonides, you will not find a root explaining why it is not counted. It is not counted because it is not Jewish law. Okay? In Maimonides there are very few roots dealing with something not counted because it is not Jewish law. Most of Maimonides’s roots deal with the question of why something is not counted even though it is Jewish law—for example duplication and things like that. And here and there there are a few roots that point to something that is not Jewish law, and therefore it is not counted—reasons are not counted. “He shall not multiply wives for himself, lest his heart turn astray.” And “lest his heart turn astray” is not counted. And Maimonides asked why it is not counted? Because it is not a command, it is a reason. So there indeed it is not counted because it is not Jewish law, it is only an explanation of the law, a reason for the law. Okay? So there are certain roots explaining why something is not counted even though it is Jewish law, and there are other roots explaining why something is not counted because it is not Jewish law. “And you shall do what is upright and good” is not counted, just as “In the beginning God created the heavens and the earth” is not counted. Maimonides does not need to explain why “In the beginning God created the heavens and the earth” is not counted, because there is nothing there to count—it doesn’t say anything normative. Now, “And you shall do what is upright and good,” for Maimonides, is like “In the beginning God created the heavens and the earth.” There is no explanation, and it does not enter the count of the commandments, because it is not Jewish law. We’ll still talk about morality and Jewish law; in fact I am quite extreme in the dichotomous distinction between morality and Jewish law, that there is no connection between the two categories at all—but that is for another time. So let’s return to our topic. Basically, there are two categories here, and the fundamental difference—there are consequences to the differences between them; you punish for this and not for that and so on—but the difference itself, not its consequences, is like the difference between improper and forbidden, or between proper and commanded, obligation, commandment. There is basically a categorical difference here, which has consequences, but that is the basic difference. When we speak about Jewish law, we are speaking about everything that belongs to obligation and prohibition, not propriety and impropriety. Propriety and impropriety are outside Jewish law. Obligation and prohibition—that is Jewish law. Where do these things appear in the sharpest form, it seems to me? In Maimonides. I mentioned earlier the roots of Maimonides—specifically root number 8 of Maimonides. Root number 8 of Maimonides—and one more word about the roots: on Yevamot I wrote a thick book about this. Maimonides’s roots are 14 rules in which he details how he built his count of the commandments, how he arrived at the 613, the 248 and the 365. He explains which commandments he excluded, which he included, what is duplication, what is not, all the rules—how exactly he organized the commandments. You have to understand: we are accustomed to saying there are 613 commandments. Look—go through the Torah and try to mark every place that is a commandment; you will not reach 613 even by accident. No chance in the world. No one will reach 613. There are far more or far fewer, depending on how you count, depending on what you count. It is very complicated exactly how to reach 613. Therefore Maimonides, as someone with a very reflective methodology, looks at his own method of work and formulates the rules according to which he is operating. The roots are the rules that let us understand how he got to 613 commandments. The eighth root of Maimonides goes like this—I’ll read the first part of the root. The eighth root: “It is not proper to count the negation of obligation together with the prohibition.” And this is the rule. What does it mean? There are verses that Maimonides calls “negation of obligation”; they do not enter into what is called a prohibition. A prohibition is a negative commandment. Negation of obligation is not a prohibition, and therefore one does not count it among the negative commandments. What does he mean? And then he elaborates: “Know that a prohibition is one of the two parts of command.” A prohibition is a negative commandment. There are two parts of command: positive commandments and negative commandments. Prohibitions are negative commandments. So a prohibition is one of the two parts of command. “This is because you command the commanded person either to do something or not to do it”—a positive commandment or a negative commandment. “As if you command him to eat and say to him, ‘Eat,’ or you command him to keep away from eating and say to him, ‘Do not eat.’ And there is no word in Arabic that includes both these matters together.” As is known, the book was written in Arabic—not the Mishneh Torah, but Sefer HaMitzvot and also the roots were written in Arabic. In Arabic there is no word that combines positive commandments and negative commandments into one word. There is no such word. And in a moment we’ll see—he says there isn’t. “And the scholars of logic have already mentioned this.” Logic here, by the way, doesn’t mean formal logic. Hegayon comes from “to utter,” to speak, language. The science of language? Yes, exactly. “And they said in this language: command and prohibition have no word in Arabic that gathers them together, and we have had to call both of them by one of their names, namely ‘command.’” In Arabic. Basically, in Arabic “command” means a positive commandment, and “prohibition” means a negative commandment. Since there is no term that contains both under one category, they use the word “command” in an extended sense as something that includes both categories. This is very interesting—it sounds very strange to us. We are already so used to using the word commandment for both positive and negative commandments that we don’t understand what he wants. But notice: Maimonides, at least in Arabic—I didn’t check how this whole business developed from Arabic into Hebrew, and when it first appears in Hebrew, when “negative commandment” first appears in Hebrew. How mistaken are you? Right, so I don’t know—that’s an interesting example, because I think that at least from this Maimonides it sounds as though this usage came to us from Arabic. Later on he says that the Hebrew word is gezerah, royal decrees. That includes positive and negative commandments, commandments and prohibitions. But mitzvot means only positive commandments. And in Arabic there are commandments, there are prohibitions, but there is no gezerot. The word gezerot has no equivalent in Arabic. Okay? And therefore in Arabic they use the word mitzvah in an extended sense also as a general term for positive and negative commandments. By the way, in today’s political correctness—the claim that masculine language is used to speak of a group that includes both men and women, which feminism dislikes. Okay? Originally this is indeed an extended usage, and therefore there should be no feminist problem with it at all. We say “you are going,” using the masculine plural, and I am speaking to women and men together—the word “you” here is not functioning as masculine. Okay? Exactly, it functions as an unmarked group, which is an extended usage of the masculine plural. The masculine plural in its literal use really is for males, as opposed to the feminine plural. When there are men and women together, the expression in the masculine plural does not come from erasing the women, but from the fact that in Hebrew the unmarked gender was chosen to be the masculine form, that’s all. Just as with commands, with commandments, we choose the word mitzvah, which in origin really means a positive commandment, in order to describe the whole set of commandments, including prohibitions as well. It is simply the extended usage: if you have to choose one of them, we chose one. Okay? Heard? Ah, “Shema.” That is already in the Mishnah—interesting. When is that? Presumably Maimonides knew it. So he probably doesn’t mean a historical claim here, but in Arabic it is like this. It is not certain that Hebrew got it from Arabic, because he describes Hebrew as though in Hebrew there is no problem at all: mitzvot means only positive commandments, prohibitions means only negative ones, and gezerah is the term that includes them both. Okay? “The King’s decrees”—he brings this from Hazal. I don’t know whether the word gezerah is actually used—I don’t think it is used in rabbinic literature, I don’t think it is true that gezerah is the term used to unify positive and negative commandments. I don’t know, but that is what Maimonides claims. Okay? In any case, so in Hebrew—think for a moment, this is an interesting philosophical question. There is a language scholar—not formally trained in it, but a thinker much discussed—named Whorf, Benjamin Whorf. He dealt a lot with the influence of language on thought. I once read an article in Nature describing a tribe in the Brazilian rainforest, the Pirahã tribe. And they—there are a few other such tribes around the world too—their counting system is a one-two-many system. Their system of numbers consists of one, two, and many. What? Monkeys and raven chicks, yes… so the evolution between us… apparently they are closer. These tribes have in their world of numbers one, two, and many. That’s it. And indeed they did all sorts of experiments: distinguishing between seven and eight—they can’t. It looks more or less the same to them. Between five and twenty they did distinguish, by the way, but seven and eight, or ten and eleven, they don’t distinguish. And of course you can teach them—it’s not lack of intelligence. They have intelligence, they can grasp it. Once taught, they got it very well. So twice—it counts. Yes. There are even clearer examples of this issue. Among Eskimos, as is well known, they have some thirty concepts for snow. Every little nuance has a different name altogether. For us, from our perspective, we call everything snow, and we wouldn’t even see a difference. It looks the same—to someone unfamiliar, it looks the same. For Eskimos these are totally different phenomena. This is one kind of snow, that is another kind, that is another—it doesn’t matter. They have thirty such concepts, and each one is a different phenomenon. So much so that I’m not even sure that, from the Eskimos’ perspective, this is really thirty subtypes, thirty shades of the same phenomenon—thirty shades of white, so to speak. It may be that for them these are simply thirty phenomena. Who says they even see these as different species of one type? I don’t know. You won’t feel it—no, I’m telling you, beyond the names, not only will you not know what to call them, you won’t feel it. If it’s a big difference, yes; if it’s a small difference, no. Like with seven and eight. You won’t feel it; you’ll see the same thing. What? Yes, in Hebrew. Fine, that we do understand—when they explain it, we understand; we simply don’t know the word. To fence, to prune, yes? Yes. Schlemiel, schlimazel, yes. So very often linguistic inability, or lack of linguistic vocabulary, interferes with our thinking. Sometimes that vocabulary is missing because in our thought we don’t have that distinction. It’s very interesting what creates what. It’s not at all clear. There are interesting paradoxes around this, because the word cannot be created if you don’t understand that there is a difference. Right? You wouldn’t create a different concept if you didn’t understand there is a difference. But you don’t always understand the difference if you don’t have a word. They create the terminology and through that make it clear to everyone else. That could be; that is one possible origin. Okay? But in any case, for our purposes, terminology very often helps us perceive the distinctions themselves. That is to say, a lack of terminology—as is known in the name of Rabbi Chaim—a deficiency in explanation is a deficiency in understanding. So someone who doesn’t explain well usually also doesn’t understand well. If you understand well, you’ll know how to explain well. That’s not always true, but there is something to it. Okay? Why am I saying this? Because try to imagine for a moment a world like the Arabic-speaking world, where you have an expression for positive commandments, an expression for prohibitions, and no word connecting the two. It is quite possible to imagine that people would not even think that there is any connection between these two things. What connection? These are commandments telling me to do things, and those forbid me from doing things. Why should they be two species of the same genus at all? It may be that people would not even think that these are really two sub-shades of one type, but would simply see them as two different things. Until that one person comes along with a finer understanding and says: wait, notice, these two really belong to the normative sphere, and within the normative sphere there are positive norms and negative norms. So the normative sphere is the category that gathers these two kinds of commandments together. Okay? And in Arabic one had to conceptualize this somehow—even though there is no word for it—but the word mitzvah is used both to describe the species, namely positive commandments, and also the genus. The genus is commandments in general, positive and negative. Okay? Now why is this important? Because what exactly is the difference between using the word mitzvah in the first sense and using the word mitzvah in the second sense? In the first sense of mitzvah, this is action. Something very concrete. In the second sense of mitzvah, this is something much more abstract. I would actually call it, in modern Hebrew, norm. I switched to modern language for that. Norm. There are norms of action and norms of non-action. What is a norm? A norm is exactly the difference between forbidden and obligatory on the one hand, and… By norm I mean norm in the legal sense, yes? Not norm in the everyday sense of what people usually do in society. I mean norm the way jurists talk about a norm. Okay? When I speak about positive and negative commandments, the difference between them and other wills or desires is that they belong to the normative, legal sphere—obligatory or forbidden—as opposed to proper and improper, which does not belong to that sphere. The word mitzvah in its abstract use speaks of that. Right? The distinction Hazal make between statutes and ordinances is not this. Statutes are without reason, ordinances are with reason. It depends how you interpret those concepts. But for our purposes right now it doesn’t matter what terminology you use; what matters is what the terminology points to. Use whatever term you like, but I only want to sharpen the distinction between these two things. When I say, for example—think, for example, it’s actually quite hard for me to explain this. Even though it’s clear to all of us. Because who among us doesn’t understand this difference? Even though we don’t know how to define it. Think, for example, when I say the sentence “Murder is forbidden,” and the sentence “It is night now. It’s dark outside now.” Do these strike you as different kinds of sentences? The same kind? This is a sentence and that is a sentence. That’s already—right? “Murder is forbidden”—is that a factual claim? No. “It is written that murder is forbidden” is a factual claim. “Murder is forbidden”—not “it is written that murder is forbidden.” I’m asking about the claim “Murder is forbidden.” You are assuming a lot there. I agree with those assumptions; I think I know your line of thought. But I agree that “murder is forbidden” is the result of some sort of moral reflection. But that is one assumption. There are many people who do not accept that assumption. And according to them, the claim “Murder is forbidden” is not at all the same kind of thing as “It’s dark outside now.” To check whether the claim “It’s dark outside now” is true or false, one has to look outside and see. If it is dark outside—if there is correspondence between the state of affairs in the world and the content of the claim—then the claim is true. If there is no correspondence, the claim is false. Right? But when I want to check whether “Murder is forbidden” is a true claim or a false claim, what am I supposed to check? Look in the law book? The claim “Murder is forbidden” does not mean there is a law forbidding murder. The claim “There is a law forbidding murder” is a simple factual claim. Obviously. To check it, one has to look in the world—in this case, in the law book—and see. But I am not talking about the claim “There is a law forbidding murder.” I’m talking about the claim “Murder is forbidden.” What am I supposed to check in order to see whether that is a correct claim or not? There is nothing to check. Therefore many people argue that it is not a claim at all. For Aristotle, a proposition is something that can bear truth or falsehood. That is what a proposition is. You compare it to something, you see whether it is true or false. The statement “Murder is forbidden” is like when I ask you, “What time is it?” Is that a proposition? “What time is it now?” Is that a proposition? No. Because you can’t say of it either that it is true or that it is false. It is a question. I am not asserting something; I am asking. Right? You can’t say true or false about that. No, you can make claims without checking. But they are defined as claims because in principle they can be checked. They assert something about the world, and one can check whether it is true or false. Huh? Just saying. Check everywhere in the world and see that there is no vacuum. In principle this is a claim that can be checked. Hypothetically at least. It says something about the world, so there is something against which to compare it. We may not always succeed in doing so, but there is something against which to compare it. But “Murder is forbidden”—it is not clear there is anything against which to compare it at all. Not because we can’t, but because there isn’t. There is nothing against which you compare it. Exactly—that’s the same question. Like when I ask you what time it is. That isn’t a proposition, right? Now, how do you test—what does “better” mean? Do you mean you feel better in joy than in sorrow? That is a factual claim. But once you have to define what “better” means—better means you feel more comfortable with it? That can be checked by asking people, no problem. But if you make it into a value claim—joy is preferable to sorrow—what are you supposed to check? Either yes or no, there is nothing against which to check it. I’m saying: if you make it into a value claim, “It is better to be joyful than sorrowful,” if you mean “better for me,” simply “I feel more comfortable that way,” no problem—that is a simple claim, psychology, so to speak. Okay? In short, what do you mean? There are many, many sentences that are not propositions. Questions are not propositions. Sentences like ethical or moral claims—many people will also say those are not propositions. Likewise norms, commandments, the forms of command, positive and negative, are not propositions. “In the beginning God created the heavens and the earth” is a proposition. He created the heavens and the earth—that can be checked. Theoretically it can be checked. We could have looked and seen whether He created it first—not if it was first, but in principle it is something that can be compared against the proposition to see if it is true or false. Therefore it is a proposition. But “Do not murder” is not a proposition. “Do not murder” does not say something about the world; it commands me. In language, as you know, we distinguish between indicative and imperative sentences. Imperative is one of the tenses, right? There is past, present, future, and imperative. They call it a tense. I don’t know why. But it is clear that this is a different kind of sentence. Past, present, and future are all declarative propositions. Yesterday it was dark, today it is dark, tomorrow it will be dark. All of those are factual claims about the past, present, or future. Okay? When we speak about a sentence in the imperative “tense”—in quotation marks imperative—it means that command is a different kind of sentence from propositions. Propositions can be past, present, future; command is something fourth. That is why I think it is also called a tense. Because there is no imperative in present, past, and future; an imperative is always about the future. I command you to do something in the future. But that isn’t why—still, it is considered a different tense. Why? Because command is a different type of sentence. There is a declarative sentence and an imperative sentence. A declarative sentence states some proposition. It says something. And that proposition can be checked—true, false—in the present, regarding the past, regarding the future. Okay? A command—there is nothing to check. It is not asserting anything. It is commanding. It is like asking. Just as a question is not a proposition, so a command is not a proposition. No? No no no no no. Once you put it into past, present, and future, you are no longer talking about murder itself; you are talking about norms that prevailed in a particular society. That is a simple factual claim. “In this society it is accepted that murder is forbidden” is a factual claim. But that is not the same claim as “Murder is forbidden.” The first claim is descriptive, it describes a fact. You may disagree with that society. But that society thinks murder is forbidden—that’s perfectly fine. Or “The law book says murder is forbidden”—that is a factual claim. Check the law book and see. By the way, that claim is incorrect. It doesn’t say murder is forbidden; it says that the murderer’s punishment is such-and-such, and that only a court should impose punishment on you. It does not say murder is forbidden. But it is still a proposition—even a false proposition is still a proposition. A proposition that can be checked is a proposition, whether true or false. But types of sentences that cannot be checked are not propositions. Questions are not propositions, commands are not propositions. Moral norms are not propositions—not descriptions of what is accepted in a certain society, but what morality says. That is not a proposition. So suddenly you see this is a completely different world. The world of positive and negative commandments, the verses that express positive and negative commandments, are imperative sentences, not declarative sentences. And that is the point distinguishing these two parts in the Torah. Declarative verses versus imperative verses. Imperative verses are verses that basically belong to the normative sphere; they are not propositions. Declarative verses are verses talking about facts. The parts of the Torah that are factual—it may be that I learn from them things the Holy One, blessed be He, wants, otherwise He wouldn’t have put them in the Torah. But the verses themselves are declarative verses, so they are not Jewish law. And this is a big problem why this is considered a positive commandment regardless of what I’m saying. People already pointed this out about this Maimonides; it’s a very big problem. First one has to explain Maimonides and then try to think why this thing is defined as a commandment. First one has to understand what—what does “commandment” even mean? It is not at all clear. How can you command someone concerning the fact that God is the commander? If I don’t accept Him, then I also won’t do that commandment. For many reasons this commandment is completely problematic. Yes, but they are not entering the count of the commandments; they are two utterances, two statements the Holy One, blessed be He, said. “I am the Lord” and “You shall have no other gods”—we heard them from the mouth of divine might. But the fact is that other enumerators of the commandments disagree with Maimonides. They do not count Maimonides’s “I am the Lord.” You can’t count it. Explain the Talmud in Makkot, which counts these commandments. So if I want now to return and summarize: basically the commanding verses are their own category. That part of the Torah that consists of imperative verses is a category unto itself, a different type of verse. That is what is called Jewish law. Jewish law is what emerges from those verses. What emerges from other verses are desires, wills, expectations that the Holy One, blessed be He, has of us. They are not commands; they are not Jewish law. Look at Maimonides here in the eighth root; he continues to elaborate at great length. Where is he heading after all this introduction? He wants to argue—after making this introduction, he says: “But negation of obligation is another matter,” meaning it is not counted among the negative commandments. “It is when a predicate is denied of a subject, and there is nothing of the meaning of command in it at all. As when you say: So-and-so did not eat yesterday; so-and-so did not drink the wine; Reuven is not the father of Shimon; and similar things.” All these are not imperative verses, and therefore obviously they are not negative commandments, even though the word “not” appears in them. After all, Hazal say that words like hishamer, pen, al—these are our indicators for prohibitions, right? How do we identify a verse as a prohibition? One of the words hishamer, pen, al, or lo must appear. One of these four. Maimonides says: but not every verse with lo is a prohibition, and not every verse that has lo is indeed a negative commandment. Sometimes lo appears as negation of obligation, not as command. “Do not cook a kid in its mother’s milk” is a command, a negative commandment. But “I did not like dinner yesterday” is a descriptive not, not a commanding not. That is a declarative sentence. There are many such examples in the Torah. In a moment. But then he says: “So-and-so did not eat yesterday, did not drink the wine, Reuven is not the father of Shimon”—all those are negation of obligation. The word lo appears there, but obviously these are declarative and not imperative. But that is trivial; he wouldn’t have made a whole root for that. He says, by the way, that in Arabic these are two different words: la and ma. I don’t know Arabic, but that is what he writes. La is prohibitive negation, ma is descriptive negation, that is what he claims. “And they also used the word la and the word laysa”—I don’t know Arabic. In Hebrew the word lo is used in both contexts, so Hebrew here is poorer than Arabic or what came before it. In Hebrew we say lo in both contexts, and therefore it is confusing. Why is it confusing? All those verses—“I did not like so-and-so”—no one counted that as a negative commandment, right? But now look where it can indeed become confusing. He says, for example: “No prophet ever arose again in Israel like Moses”—there, you wanted an example. It is obvious that this is not a negative commandment, right? It is a descriptive negation. It is not a negative commandment instructing us not to treat any prophet like Moses. But this… and similarly “God is not a man, that He should lie,” in Balaam. “Trouble shall not arise a second time.” “No man stood.” “And none remained or escaped.” All these negations are descriptive, not commanding. Okay? Therefore they are certainly not negative commandments, says Maimonides. But those are easy. Look at what comes next. He says: “And this escaped others”—the author of Halakhot Gedolot, whom he always attacks in the roots—“to the point that he counted ‘She shall not go out as the slaves go out.’ And he did not know that this is a negation, not a prohibition.” Now that really can be confusing. “She shall not go out as the slaves go out” sounds like a command-verse, right? It’s a halakhic verse, it’s not describing something that happened. Why shouldn’t it be a negative commandment? This is subtler already. So Halakhot Gedolot indeed counts it as a prohibition. Exactly. Maimonides says: “And I will explain this as follows.” “For God had already legislated regarding one who strikes his Canaanite slave, male or female, and removes one of the limbs during the striking, that the slave goes free.” Right, release because of injury to one of the extremities. If a master strikes a slave and one of the twenty-four extremities is damaged, the slave goes free. Okay—a Canaanite slave, male or female. “And it might have occurred to us that if this is so for a Canaanite slave, all the more so for a Hebrew maidservant, and if one of her extremities is damaged she should go free. Therefore Scripture negated this law regarding her, saying: ‘She shall not go out as the slaves go out.’ Meaning: she is not entitled to go free through the loss of one of her limbs.” The law of release because of injury to the extremities applies to a Canaanite slave and not to a Hebrew maidservant or a Hebrew slave. So the “not” here is not prohibiting, it is not a negative commandment forbidding us to release them as slaves go out. It negates the obligation to release them as slaves go out in the case of a Hebrew slave. This is not a command-negation. It’s much subtler already. Okay, but the principle is clear. And Maimonides sharpens the principle here in the most successful way I know—the distinction between imperative and declarative verse, between a commanding “not” and a descriptive “not.” That is the parallel. Okay? And that is basically the bottom line I wanted to make. When we want to know what defines the halakhic domain in the Torah, in the Talmud, or wherever, it is when we are dealing with norms of forbidden and obligatory. That is the halakhic domain. Permitted, of course, is the absence of a norm. Permitted is not Jewish law; it is the absence of Jewish law. Yes, once I heard that the Rebbe of Klausenburg said that if it were not written that it is permitted, he would not even cut challah on the Sabbath with a knife. Everything is forbidden unless it is clear that it is permitted. And obviously that is not true. In Jewish law it works the other way around. Everything is permitted, just as with the principle of legality in law. Everything is permitted unless there is a law that forbids it or obligates it. The default is that if I have no source forbidding or obligating it, then it is permitted. Fine? If you want, do it; if you don’t want, don’t do it. The absence of a norm is the default. Jewish law imposes a norm—either forbidden or obligatory. If there is no halakhic norm, then it is permitted. One needs a special reason to say that something is permitted only in cases like this, for example here, where there was reason to compare a Hebrew slave to a Canaanite slave and say that a Hebrew slave goes free through injury to the extremities. There the Torah has to tell me that there is no such obligation, that the norm does not apply. There was room to compare and say that the norm written there applies here too. Basically, in order to forbid you need a verse, and in order to obligate you need a verse. In order to permit, you need nothing. Okay? So the definition, if I may conclude here, of the halakhic sphere that includes positive and negative commandments, is the normative sphere: what is forbidden or obligatory. That is what he calls “will,” according to Nefesh HaChayim of Volozhin. Okay? What—what is subject to law. What belongs to the legislated system. That is Jewish law. Everything outside that is not Jewish law. Okay? That is basically the bottom line. I want later on—let’s stop here—I want later to talk about the meaning of Jewish law. That is, why we need to observe Jewish law and how we need to observe Jewish law. After all, what I did today was define what Jewish law is. Okay? I gave a kind of diagnostic tool to try and understand whether the thing before me is Jewish law or not Jewish law. Okay? Later we’ll talk a little about what one does with these commands—why, and what one does. Okay. Let’s stop here, and we’ll see each other next week.