The Role of Reasoning in Halacha, Lesson 2

This transcript was produced automatically using artificial intelligence. There may be inaccuracies in the transcribed content and in speaker identification.

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[Rabbi Michael Abraham] Obviously, I’m just saying this as a matter of course. So indirect causation, or all kinds of things of that sort, killing with your left hand, selling the knife to a gentile, it doesn’t matter, all these technical tricks through some unusual manner—how do you know all of that is exempt? You need verses, or you need Jewish law to define what is permitted and forbidden, because reason alone would not yield that. Because by reason alone it’s obvious that someone who kills through indirect causation is a murderer in every sense. When we talk about indirect causation, at least according to some definitions, it means something that will definitely happen; I just did it in such a way that either there’s another stage in between, or something like that.

[Speaker D] But maybe “you shall not murder” was said precisely to teach us that someone who murders through indirect causation is exempt?

[Rabbi Michael Abraham] Right, exactly. Just as there are details within a prohibition—sometimes details that make it stricter and sometimes details that make it more lenient—so too it comes to teach me details within the prohibition. Okay? So one could say that, because in fact even with rational commandments, it’s clear that the halakhic definition is not parallel to the definition that reason gives. That’s obvious. “You shall not murder” is a classic example of this issue. All the discussions in tractate Sanhedrin are bizarre. You commit murder there with your own hands and still come out exempt.

[Speaker D] But do you come out exempt, or is the claim that it’s not that you didn’t violate “you shall not murder”? At least that’s how Maimonides explains it. He says: the murderer—I don’t remember one of those cases there—he says someone who does this is a murderer, except that we don’t punish him in a religious court.

[Rabbi Michael Abraham] No, it depends, it depends. He calls him a murderer, but that still doesn’t necessarily mean he violated “you shall not murder.” It could mean that morally it’s wrong; it depends what he means. But there’s room to discuss this—whether it’s only an exemption from punishment. Seemingly, if he is a murderer and he violated “you shall not murder,” then “you shall not murder” carries a punishment, so why is he exempt from the punishment? Only if he did it not through an act. You could maybe say—I don’t know whether one can somehow find a case where you murdered without an act—but murder through indirect causation is murder through an act; it’s just that between the act and the result there is some stage in between. But a necessary stage, again—not because there’s some doubt whether it will happen. It will happen. It’s just that I did it in this way.

[Speaker I] If for example—what?

[Speaker E] If a doctor—I just moved, I caused the puncturing instrument to move.

[Rabbi Michael Abraham] A doctor—the assumption is that that’s not indirect causation.

[Speaker E] But the Rabbi didn’t accept what the Rabbi suggested up to now.

[Rabbi Michael Abraham] No, obviously—he’s raising an objection against the Pnei Yehoshua, obviously. I’m defending the Pnei Yehoshua.

[Speaker E] No, according to this it’s still difficult, but the question for me is: why write things that are understood by reason?

[Rabbi Michael Abraham] When he says that if it were understood by reason then it would be rabbinic. The Tzelach, according to his own approach, says that something not written is not Torah-level—unless it is one law among the existing laws, but not a new commandment.

[Speaker E] But conceptually it’s still hard: why write “you shall not murder” if I understand it through reason, according to the Tzelach?

[Rabbi Michael Abraham] So that it should be a Torah-level prohibition. Otherwise it would be rabbinic.

[Speaker E] Just in order to establish it—

[Rabbi Michael Abraham] On the level where Jewish law determines prohibitions. If it doesn’t write it, there is no halakhic prohibition. There may be a moral prohibition, but there is no halakhic prohibition. In order to establish a halakhic prohibition, you need a command. That is all the Tzelach is saying; his whole thesis is that thesis. He asks the Pnei Yehoshua: you say that even without a command there is a halakhic prohibition—so then why do we need commands? According to the Pnei Yehoshua, that’s difficult. What I want to say is that a halakhic command—that is, as I said, one possibility is to say that it comes to teach all kinds of details, what he calls here one law among the laws.

[Speaker D] One could say that it was needed in order to make punishments apply.

[Rabbi Michael Abraham] Yes, that too is part of it, it’s the same thing. That is, to add this detail of liability to punishment. Fine. But it could be that there is something more here, and that relates to what I wrote on the site in my column about Rabbi Karim’s remarks, where I discussed morality and Jewish law. My claim there was that when the Torah commands “you shall not murder,” that is not the moral command. The moral “you shall not murder” really does emerge from reason, just as all human beings should understand that murder is forbidden even without a command. But when the Torah says there is a prohibition of “you shall not murder,” it adds a religious layer on top of that. Meaning: now when you murder, you violate a moral prohibition and also a religious prohibition. Now, if there were only reason and no verse, then in essence I would be violating the moral prohibition, but I would not be violating the religious prohibition. But here there’s a point that needs clarification, because the way I’m saying it now, the question is whether this is really a proper defense of the Pnei Yehoshua. Because the Pnei Yehoshua wants to claim that there can be a Torah-level halakhic prohibition from reason alone, and what I’m saying now would not actually produce that. What it would produce is only a moral prohibition, where indeed reason is a sufficient source, but for a halakhic prohibition you need a source verse. And the Pnei Yehoshua agrees with that too. So it’s not quite accurate this way, because again, I’m getting ahead of myself—these are things I’ll explain later in more detail—but I’ll say it here just to complete the picture. What happens if I’m in doubt? A doubtful murder—do I have to be stringent? I say that in essence I probably would have to be stringent, even according to the Pnei Yehoshua. And that means that there is here, despite the fact that it emerges from reason, a halakhic dimension that is Torah-level—but not fully so. That’s what I’m going to want to argue. Okay? Meaning, the command is needed not in order to turn it from rabbinic to Torah-level, as the Tzelach thinks, but to turn it from partially Torah-level into fully Torah-level. I’ll explain in a moment exactly what I mean. But that’s basically what the Pnei Yehoshua would say.

Now I’ll spell this out a bit more. There is an article by Rabbi Elchanan Wasserman, an article on repentance. And there he basically wants to argue—really he brings this from the Ramchal, from Mesillat Yesharim and Derekh Hashem—that in Derekh Hashem, Mesillat Yesharim is only a minor inference, but in Derekh Hashem the Ramchal writes that in every commandment and every transgression there are two aspects. One aspect is the content of the matter, and the second aspect is the command. Suppose I eat pork. First, I violated the command not to eat pork; I rebelled against the command. Second, I did something problematic, because if it were not problematic, we would not have been commanded about it. Meaning, the Torah did not command arbitrarily; it commands because there is something problematic here. Now, obviously the fact that it is problematic has nothing to do with the Torah’s command; it precedes the Torah’s command. The Torah commands because it is problematic. But after there is a command, the Torah has now added a halakhic prohibition on top of that problematic nature. What is this halakhic prohibition? Obeying and all of the Torah’s command. Someone who does not listen to the Torah’s command has done two things. One thing he would have done even if the Torah had not commanded—if he understands; if not, maybe he’s under duress—but in principle it exists even without the Torah’s command: pork is something that does, I don’t know, something problematic. And second, he violated the Torah’s command. There are two problems in every transgression, and likewise in every commandment. If you take a lulav—waving it is a separate matter—you take a lulav, then what? You are also doing something that presumably has some kind of benefit, a spiritual benefit or something of that sort, for the sake of which this commandment exists, and you are also fulfilling the Torah’s command. You’re really doing two things. He uses this for repentance; that’s not important right now. But that’s the distinction Rabbi Elchanan makes there regarding every commandment and every transgression.

Perhaps a few examples were brought from the medieval authorities (Rishonim) where this dual aspect can be seen. The Talmud in tractate Bava Kamma—and there are also several parallels—says as follows: “Mar, the son of Ravina, said—to say that even…” never mind. Rabbi Meir says: “From where do we know that even a gentile who engages in Torah is like a High Priest? Scripture says: ‘which a person shall do and live by them.’ It does not say priests, Levites, and Israelites, but rather ‘a person.’ From this you learn that even a gentile who engages in Torah is like a High Priest.” What about “you are called ‘person,’ and they are not called ‘person’”? Fine, he doesn’t hold that way. They said: “They do not receive reward like one who is commanded and does, but rather like one who is not commanded and does.” For Rabbi Hanina said: “Greater is one who is commanded and does than one who is not commanded and does.” Fine. So a gentile who studies Torah or fulfills commandments receives reward, but less reward than a Jew who does so, because the Jew is commanded and does, and the gentile is not commanded and does. “Greater is one who is commanded and does than one who is not commanded and does.”

Now why is the one who is commanded and does greater? At first glance, the medieval authorities already note—and the later authorities also, and there are countless homiletic treatments of these matters—that reason would seem to say the opposite: greater is one who is not commanded and does. You do it voluntarily; you are more worthy of appreciation than someone who does it because he was commanded. And all the more so if there is punishment for violating the command, then you do it because you’re afraid of punishment; whereas someone who does it voluntarily does it purely out of love of God or the desire to serve Him, so he would seem greater.

[Speaker D] But maybe there too he’s doing it because he thinks he’ll get reward for it.

[Rabbi Michael Abraham] But there is—well—

[Speaker D] Voluntary reward.

[Rabbi Michael Abraham] Now you’d have to assume that the reward—we assume that one who is commanded and does is greater, so he gets less reward. Yes, but maybe even for that little bit of reward he wants to do it. In any case, the medieval authorities ask this question. The Ritva, for example, in Kiddushin 30—there’s a parallel on 34 there in Kiddushin—says this: “For Rabbi Hanina said, greater is one who is commanded and does than one who is not commanded and does. Our rabbis of blessed memory explained the reason for this: when he is commanded, Satan prosecutes against him; but in that case”—meaning the one who is not commanded—“Satan does not prosecute against him, and reward is according to the pain.” Yes, these are the homilies I meant. Satan tries to dissuade you from doing something if you are commanded, and if you are not commanded he doesn’t care. Meaning, okay, fine, in the laws of Satan I am too small to speak—maybe Rabbi Tzvi Yehuda would write something about that. “Our great rabbi of blessed memory explained that the commandments are not for the benefit of the blessed God who commands, but rather to benefit us. And one who is commanded fulfills the King’s decree, and therefore his reward is greater than one who did not fulfill the King’s command.” What is he saying? Why is one who is commanded and does greater? Because of Rabbi Elchanan’s principle: one who fulfills it as someone who is commanded and does has done two things. He not only did the good act in itself—there is the benefit produced by that act—he also obeyed the Torah’s command. Haven’t two things been done?

[Speaker D] To say that one who is commanded fulfills the King’s decree, while one who is not commanded maybe did not do—wait, there’s more. Maybe I should have read the continuation first.

[Rabbi Michael Abraham] But he did two things, and therefore his reward is greater. Fine? “Nevertheless, he too is fit to receive reward”—one who is not commanded and does also deserves reward, just less than one who is commanded and does. Yes, and in that too the wording of Rabbi Hanina’s saying—“greater is one who is commanded and does than him”—is a bit—

[Speaker B] It reminds me—

[Rabbi Michael Abraham] Of Rashi on this week’s Torah portion, I think, no? “And he offered sacrifices to the God of his father Isaac.” So Rashi says: from here we learn that a person is obligated in the honor of his father more than in the honor of his father’s father. He brings a Midrash of the Sages. And why does it say “the God of his father Isaac” and not “the God of Abraham”? Because one is obligated in honoring his father more than his father’s father. Now there is a dispute in the Shulchan Arukh, brought in the laws of honoring father and mother, whether there is an obligation to honor a grandfather. The Maharik, I think, argues that there is not, and the Rema writes that there is, and the Shakh there cites this Rashi and says: from this Rashi it is clear that there is an obligation to honor one’s grandfather. How is it clear? The word “more.” Because it says honoring one’s father is more than honoring one’s father’s father, implying that one must also honor one’s father’s father. Yes, that’s exactly the same thing as here. Okay? And there is an interesting Shakh there who cites this Rashi. And someone there comments—maybe the Taz brings this, I don’t remember—and the Shakh in Nekudot HaKesef asks: why are you citing Rashi? There is a Midrash; this is a Midrash of the Sages. Why do you need to cite Rashi? So someone answers there: fine, but people know Rashi better. They know Rashi. Well, there are all kinds of amusing things there.

In any event, for our purposes, the Ritva is basically saying that someone who fulfills this as one who is not commanded and does receives reward because after all he performed a worthy act, meaning an act that has some sort of benefit, but he does not receive reward for obeying a command. And one who does it as one who is commanded and does receives double reward because he has both aspects—which seems to me exactly what Rabbi Elchanan says.

The same idea appears in the Tosafot HaRosh there in Kiddushin. He says: “Greater is one who is commanded and does, even though we say in tractate Megillah, chapter 2: a parable of a king who told his servants to rise early to his gate—for whom should one show greater appreciation? For women, whose way is not to rise early as men do?” Yes, if women rise early—and it is not their way to rise early like the men—and yet they rose early, then they deserve—yes, I assume this is from an era when people went out to work in the fields at four in the morning and women did not go out; if you ask people from the kibbutzim, they still won’t understand that.

[Speaker D] In any case, here I understood the intention to be that it is not women’s way to rise early to the king’s gate because it is not their way to appear in public institutions.

[Rabbi Michael Abraham] Ah, that’s how you understand it?

[Speaker D] Maybe. Not sure, but that’s one possible way to understand it.

[Rabbi Michael Abraham] Could be, maybe, could be. Fine. So if that’s the case, it’s not related. So he says: “It is not comparable to that case there. There both are commanded, and the one for whom it is not usual is preferable when she does it.” But that is not connected to one who is not commanded versus one who is commanded. So what does he say? “And this is the reason”—no, so here you see that it’s not true that both are commanded. Rather, both the woman and the man are commanded to rise early to the king’s gate. But it is the man’s way to rise early, and when the woman rises early, although she too is commanded, she receives greater reward because it is not her way to rise early.

[Speaker D] Still, once again, the point may be—that is, it sounds more like what the Rabbi said earlier, and one can understand it as meaning that she gets more reward because it is harder for her to come, to arrive at a public place, because—

[Rabbi Michael Abraham] Okay, doesn’t matter. Still it’s the same idea. In any case, for our purposes, he says: “And this is the reason that one who is commanded and does is preferable: because he is constantly worried and distressed, fearing lest he transgress, and he must compel his inclination more than one who is not commanded, who if he wishes may simply refrain.” This is a psychological translation of the Ritva’s mysticism. Yes, the Ritva speaks of the evil inclination provoking and Satan prosecuting, and he translates that into inclination, which is psychology; no need to get into metaphysics. “And additionally”—and this is the point important for us—“the Holy One, blessed be He, needs nothing from all the commandments; He merely speaks, and His will is done.” He doesn’t need us. If He wants to accomplish something, He can do it Himself. Yes, as Turnus Rufus asked Rabbi Akiva: if the Holy One, blessed be He, loves the poor, then why does He not support them? Yes, He can support them Himself. He answered: so that we may be saved through them from the judgment of Gehinnom. In short, even the poor were created for our sake. “Therefore one who is commanded and does performs His will, but one who is not commanded and does—one cannot say of him that he performs the will of his Creator, for He did not command him anything. Nevertheless, there is reward.” Again, the same distinction. One who is commanded and does both performs the will of his Creator and does something beneficial. One who is not commanded and does is rewarded because he does something beneficial, but he receives no reward for the command itself.

So this means that in commandments—and this is what Rabbi Elchanan Wasserman says—every commandment or every transgression has a dual aspect. There is the essential, substantive aspect, and there is the aspect of command. Now, if we truly understand it this way, then regarding the essential aspect, it is obvious that as one who is not commanded and does—if I understand that it is indeed proper to behave this way, or improper to do something else in the case of prohibitions—then obviously I must do it even without a command. The essential aspect exists even without a command. That is exactly the status of one who is not commanded and does. For him there is no command, but he does it because he understands by reason that this is the right thing to do, or because this is what the Holy One, blessed be He, expects of him. Okay? So he has the essential aspect, but not the aspect of command. Now even if there were no command at all—not just a specific person who is not commanded and does—still, we would have the essential aspect even without the command. What is missing, what the command adds—and now I return to what I said before regarding the Pnei Yehoshua—so why do we need the command? The Tzelach asked: if it comes from reason, why write it? Why does the Torah command it? The Torah commands it in order to give us the aspect of command, the aspect of responding to the Torah’s command, which is the additional aspect present in every commandment. But it is true that the essential aspect exists even without the command, in a place where the essence really exists and I understand it. Sometimes the command is needed because without it I would not even understand that there is any issue here. Fine. But when he asks about rational commandments, he is asking about commandments that I would indeed understand even without a command. And regarding those, I still say that a command is needed in order to add this aspect of being one who is commanded and does.

Now this actually takes us one step further. What this in effect means is that even according to the Pnei Yehoshua, if I am right, it is not true that reason has exactly the same status as command. Because reason really only teaches me the essential aspect of the commandment—that there is value in such an action. But without the command there still will not be the duty to obey or the prohibition against rebellion, the dimension of obedience or rebellion. A state, for example. Fine? It is obvious that, say, running a red light is dangerous. So even if the Knesset or the Ministry of Transportation or whoever said it had not prohibited it, I assume it would still be advisable to be careful and not run a red light. But as long as it has not been prohibited, there is no legal prohibition against running a red light, even though the logic of not running a red light could exist even without that. Of course, assuming people obey, because it could be that if there is no command then the red light itself says nothing.

[Speaker B] There’s that familiar legal distinction between mala prohibita and mala per se. Mala means wrongdoing; mala prohibita means you’re only violating because it was prohibited, and per se means it is inherently substantive.

[Rabbi Michael Abraham] Right. But here one really has to pay attention. I think that here the distinction I’m making is correct, a distinction that the Tzelach already made and I think maybe the Pnei Yehoshua also makes, between one law among the laws and a new commandment. There won’t be an inherently substantive prohibition for something that is entirely new; rather, perhaps a detail or a certain interpretation of the law. There are things that are obvious—the legislator doesn’t need to say that this is what he means—as long as he has in fact said there is a prohibition. But if he never said there is any prohibition at all, and you have to figure out on your own that the legislator prohibits running a red light—I don’t think one can say such a thing.

[Speaker D] So basically, I can imagine certain situations involving something not regulated by law—for example, if there were no specific law dealing with a certain type of—

[Rabbi Michael Abraham] Certain damage, let’s say there were no law. But to found all the laws of damages without the legislator having said anything—how would you do that? It’s obvious that causing damage is improper. But to establish sanctions and determine that it is legally prohibited—that has to be enacted.

[Speaker M] Like, for example, the whole matter of driving on the right side of the road. Someone has to decide that; once they decide it, then it becomes dangerous to do otherwise.

[Rabbi Michael Abraham] No, there there is no “inherently substantive” issue at all. There it is only the decision that creates it, because there it’s obvious that they could just as well have decided the opposite. There is no sanctity specifically to the right side. One only has to preserve consistency, meaning that everyone drive in coordination. There the role of the legislator is more to regulate than to command.

In any case, the point I want to make is that maybe even the Pnei Yehoshua does not mean to say what he seems to be saying—namely, that when there is a new command it has a status really just like a verse. It is very hard to say such a thing. Without a command there cannot be punishment for it; it cannot be a fully halakhic prohibition, unless it is one law among the laws, as I said. But a new commandment—even the Pnei Yehoshua would not say that. Except perhaps in the case of a blessing, where maybe there is room to say it, because with a blessing, even if there were a command and even if there were no command, there is no punishment for it anyway, meaning the command does not actually add any category there. So there indeed one may not need a command, because reason brings me to the same place as the command. But if it were a prohibition, for example, then without a command you obviously could not administer lashes. So certainly there the Pnei Yehoshua would not say, “Why do I need a verse? It follows from reason.” After all, even from formal legal reasoning we do not derive warnings. You make an a fortiori inference, you derive a prohibition through a fortiori reasoning, and still you do not punish, because it was learned by a fortiori reasoning. So obviously, if I learn something from reason, no one is going to receive lashes for something that seems to me by reason to be forbidden. You need a warning, right? The warning is the verse that prohibits. Does the Pnei Yehoshua deny that? I don’t think so. It’s not plausible.

Obviously the Pnei Yehoshua does not mean that reason is literally just like a verse. What he means to say is that if there is reason, then it too is Torah-level prohibited. As for punishment, for example—no. That is not enough to punish. There you need a verse. But it will still be Torah-level. A practical difference would be that in a case of doubt, even when it comes only from reason, we would indeed go stringently in the case of doubt. And the Pnei Yehoshua would accept that.

[Speaker L] Why is it that everywhere they say, “Why do I need a verse? It can be learned from reason,” it still wouldn’t be Torah-level?

[Rabbi Michael Abraham] So I’m saying: according to the Tzelach it would not be Torah-level, unless it is one law among the laws, unless it is a detail within an existing commandment.

[Speaker L] And the Talmud deals with this a lot.

[Rabbi Michael Abraham] Right, and the Tzelach comments on that. I called it “the enlightening Tzelach.” We saw that earlier. That’s exactly what he says: when it is one law among the laws, adding a detail within a commandment, then in those cases it is Torah-level.

[Speaker L] But not a new commandment.

[Rabbi Michael Abraham] So it emerges that even the Pnei Yehoshua does not mean to say that reason and verse are exactly the same thing. He only says—but still, reason can establish a law that is Torah-level. That is where he differs from the Tzelach; I’m not collapsing them into one another. It is a Torah-level law, but not a fully Torah-level law. Meaning, until there is a command, you cannot, for example, punish for it. But in a case of doubt, for example, perhaps we would still be stringent. Later I’ll explain why it seems very plausible to me that in a case of doubt one should be stringent. Fine? The Tzelach says no, it is a rabbinic law; one cannot innovate such a thing. It is not a Torah-level law, and therefore in doubt we would also rule leniently, not stringently. Fine. So there is a disagreement here, but it is not that someone actually wants to claim that reason is literally Torah-level in the full sense. And on that point—here—this is what I said: I do not agree with the Pnei Yehoshua, or with what seems to emerge from the Pnei Yehoshua, even though at first I was sure the Pnei Yehoshua was right and I didn’t understand at all what the Tzelach wanted. Now it is clear that at least he doesn’t mean that at all—not that he is right; rather, he doesn’t mean that.

Okay, so here we actually come to the next stage. Because if so, then our conclusion—my conclusion; “our” was a slip, maybe you disagree—is that if there is reason and there is no command, it is definitely possible that the law will be a Torah-level law. The law will be Torah-level even without the command. But it will not be fully Torah-level. Meaning, we will not be able to punish for it. It seems to me—I don’t remember if I mentioned this last time, but at some point I think I spoke about it—there is a contradiction in the ninth root of Maimonides. In the ninth root Maimonides writes that if there is a command that recurs several times in the Torah, we count it in the enumeration of the commandments only once. For example, suppose there are twelve mentions of the obligation to observe the Sabbath—we count in the enumeration of the commandments one commandment to observe the Sabbath, not more. That is the first part of the ninth root. In the second part of the ninth root Maimonides discusses a general prohibition. Meaning, for example, “You shall not eat over the blood”—I think I mentioned this, right? “You shall not eat over the blood.” From that they derive all kinds of prohibitions: that a religious court which hands down a death sentence must fast that day, it may not eat. Maimonides writes that it is forbidden to eat before prayer; it appears there in Maimonides that this is a Torah prohibition—a great novelty, a Torah prohibition to eat before prayer, and its warning is from “You shall not eat over the blood,” a prohibition. And several others as well—and of course the warning for the stubborn and rebellious son is also learned from there, and so on. About that Maimonides says that we do not count it. A general prohibition is counted once. Meaning, for example, “You shall not eat over the blood” he brings as the warning for the stubborn and rebellious son. But he does not bring the other prohibitions as Torah prohibitions: not eating on the day a death sentence is passed, not eating before prayer, and so on.

So Rabbi Yerucham Perla asks on the ninth root—in the introduction to the Sefer HaMitzvot of Rav Saadia Gaon, where he goes through Maimonides’ roots—in the ninth root he asks: there is a contradiction. In the first part Maimonides tells us that we follow content, not commands. Right? If there are twelve commands with one content, we count once. Because it doesn’t matter how many commands there are; what matters is the contents. In the second part of the root he says the opposite. If there are five contents and one command, we count once. Meaning we follow the command, not the contents. So is there a contradiction in Maimonides’ words? What do you say?

[Speaker F] Both. Yes.

[Rabbi Michael Abraham] Obviously. There’s no contradiction at all; I don’t know what he wants. Obviously what Maimonides means is that in order for something to be a Torah-level law, two things are needed. It needs to have its own unique content, and it needs a command. Meaning, you need both things. And what’s the idea? I say: in a general prohibition, the command is lacking, and therefore it is not counted. In repeated prohibitions, the content is lacking, and therefore it is not counted. Because in order to count, you need both. That is what he said.

Now why do you really need both? I think this is exactly what we saw earlier. The unique content means that there is some problem here, right? And that is why it was prohibited. And the command says that there is a command which it is forbidden to rebel against, and which must be fulfilled. In order for me to have the two aspects, in order for the thing to be fully countable as Torah-level—not just Torah-level in the Pnei Yehoshua’s looser sense, but fully countable as Torah-level—you need both aspects. You need it to have its own content, unique to itself, meaning that it is a problematic act in terms of what it does, and besides that there must be a command on it so that it is an instance of one who is commanded and does. I think that is exactly what Maimonides says: you need these two aspects for the thing to be fully Torah-level.

And indeed Maimonides writes in several places where you can see this. For example, in the second root. In the second root Maimonides writes that laws learned from interpretive derivations are rabbinic enactments. I mentioned this earlier. Now Maimonides explains why this is rabbinic. He says that one does not punish for it because “we do not punish”—meaning, he explains that one also does not punish for it. Why? He explains this in the introduction to Sefer HaMitzvot, not in the second root, but after the fourteenth root in the introduction. He says that one does not punish for something learned through one of the thirteen hermeneutical principles. Why? Because warnings are not derived from formal legal reasoning. Which is a novel interpretation. Usually Nachmanides attacks him for this: “warnings are not derived from formal legal reasoning” usually means from an a fortiori inference. That’s how most medieval authorities understand it, and that is apparently explicit in the Talmud. But here “formal legal reasoning” means an interpretive derivation? Yes. Maimonides says that “warnings are not derived from formal legal reasoning” means: something learned by derivation. “Reasoning” is a general term for derivations in general, not only for a fortiori arguments. That is his claim. “Is it not logical?”—after all, many times “logic” is a word for a fortiori reasoning. But Maimonides says no: “reasoning” is—according to Maimonides, look for example in the Talmudic Encyclopedia, they bring this—but in Maimonides there is another explanation: he says that one does not punish if there is no warning. It is not a question of stringency or possibility of refutation or anything like that; even if there is no refutation and nothing of the sort, without a warning you cannot punish. We punish only where there is a warning. And when you learn something by derivation, that does not count as having been warned. Being warned means that it is written in the Torah. Meaning, Maimonides understands that the command has significance in constituting this prohibition in such a way that punishment can apply. Without a command you cannot punish. It is not a full prohibition. This only completes what I said before: that is why you need the command.

More than that: Maimonides is even stricter. He argues that if you derive it from a verse through interpretation, that is still not enough for it to count as a command. Not only do you need a command—you need a command written explicitly in the Torah, meaning a thing the Sadducees would also admit. Not something learned by derivation.

[Speaker D] Then one could say that the issue is from the standpoint of a person’s responsibility. What is not explicit in the Torah, a person is less warned about.

[Rabbi Michael Abraham] Meaning, this is just a category within the laws of punishment. You cannot punish a person if you did not warn him. But that is not from the standpoint of the severity of the transgression. Very good; that is certainly a possible way to understand it. And still, there is something here that the command adds. If you asked earlier regarding the Pnei Yehoshua why the Torah writes rational commandments, then the answer is that there is something the command adds—either it adds warning, or it truly turns it into a full Torah-level law.

[Speaker D] But here one could ask why the Torah writes it in cases where there are no punishments—where there is no punishment. I understand. So the question is why the Torah—

[Rabbi Michael Abraham] No, so I’m saying that within Maimonides himself you see that this isn’t correct, because Maimonides himself says that something learned by derivation is not Torah-level at all, not just that one does not punish for it. I’m only saying that perhaps one could explain it differently, as you said, but Maimonides may not have understood it that way. Maimonides argues that if you derive it by interpretation, it is not Torah-level because it is not written in the Torah. He understands the derivations as probably extending what is written in the Torah beyond what is actually there. They do not reveal layers embedded in the verse; rather, they expand the spirit of the verse or something like that. The spirit of the verse is not a command. Meaning, you need a command for what we spoke about with “do not stray,” right? You need a command in order for the thing truly to be Torah-level. And this complements what Maimonides said earlier, basically.

Maybe I’ll just finish with one more sentence so we reach some integral boundary. That was in the second root and the ninth root. In the eighth root too Maimonides says something similar. There Maimonides says in the eighth root that it is not proper to count the negation of obligation together with a prohibition. Meaning, there are places where the Torah says “do not do such-and-such,” and yet it is not a prohibition. Why? It only comes to negate something; it is not coming to command “do not do,” but rather to negate. For example: “Know that a warning is one of the two parts of a command,” and so on. Then he says—yes, he has a very interesting linguistic remark there about Arabic and Hebrew, that there is a difference between them—“But negation of obligation is another matter, namely that some matter is denied of some subject, and it has no element of command in it at all. As when you say: So-and-so did not eat last night, and So-and-so did not drink wine, and Reuven is not Shimon’s father, and the like—all of that is negation of obligation. There is not even the scent of command in it.” The “not” that appears there is not a prohibitive “not,” not one warning you, but rather one negating something of some subject. Okay? And then he says—and yes, he has various linguistic notes there—that in Arabic the word usually used for negation is such-and-such, and they also negate with this and that. In any case, further on he brings an example, I didn’t quote it here, from “for she was not freed,” I think, regarding a maidservant and cases where slaves go free through loss of limbs. He says there that this is not a prohibition, or that it is not a command to free him through loss of limbs, but rather a negation of obligation. Meaning, this is not a trivial statement by Maimonides. He argues that every slave, in order to go free, needs a writ. In the case of loss of limbs, the Torah negates the need for a writ in order to free them. They go free without a writ. It is not that there is a prohibition against injuring a slave, or a command to free him; rather, it only comes to negate the requirement of a writ in order to free them. That is negation of obligation, and therefore it is not counted as a prohibition.

So again we see that for Maimonides, the Torah needs to write a command in the sense of a command. It has to be a commanding verse, not an informative verse. Meaning, it is not merely telling me facts, which would not belong here; rather, it commands me. And only then does the matter become Torah-level, either a prohibition or a positive commandment. Without that, it is not Torah-level.

Okay, and that is basically what answers the Pnei Yehoshua’s question: why do we need the command for rational commandments? Here I’m just closing the circle—to add this dimension that exists in every Torah-level commandment, or to make it fully Torah-level. And if so, then even when the Pnei Yehoshua says that reason is like a verse, he does not mean—at least not necessarily mean—that it is fully Torah-level. For punishment, for example, I assume he would not punish without a verse. Okay? He means to say that it has a Torah-level category or force in the sense that, for example, in a case of doubt we would rule stringently, or something like that. It would not enter the enumeration of commandments, and there would be no punishment for it. Meaning, it would be a kind of partial Torah-level status. Fine? That is what he means there. Okay, we’ll continue.

[Speaker L] Chapter five, tomorrow.