The Commandments and Their Enumeration – Lesson 5

Table of Contents

• A commandment as a decree, command verses, and positive commandments versus prohibitions
• The sixth and ninth roots in Maimonides: overlap between positive commandments and prohibitions
• Exceptions to the performance-based criterion and the shift to a linguistic criterion
• A logical difficulty and rejecting the equivalence between positive formulation and double negation
• The normative distinction: a desirable state versus a forbidden state
• Halakhic implications: reward, punishment, intention, money, human dignity
• Positive action and passive omission on the normative plane
• Positive commandment/prohibition overlap: there is no normative “zero”
• State law versus Torah: “only prohibitions” and the role of sanctions
• Robert Nozick: temptation versus extortion and an absolute scale
• Nachmanides on Parashat Yitro: remember and observe, love and fear, and a positive commandment overriding a prohibition
• Kiddushin 34: examples of positive commandments not caused by time, and Nachmanides’ answer
• A prohibition that reinforces a positive commandment: stick and carrot, charity, and Yom Kippur

Summary

General Overview

The text presents a distinction between positive commandments and prohibitions through Maimonides in the eighth and sixth roots, and rejects the “performance-based” criterion according to which a positive commandment requires action while a prohibition requires refraining. It argues that Maimonides assumes the possibility of overlap between a positive commandment and a prohibition, so the distinction cannot be performance-based, and instead proposes a normative distinction: a positive commandment points to a desirable, positive state, while a prohibition points to a forbidden, negative state. On that basis it explains exceptions such as “Do not stand idly by your neighbor’s blood,” reorganizes the halakhic implications (reward, punishment, financial expenditure, human dignity), and connects this to Nachmanides’ comments in Parashat Yitro about love and fear, as well as to a discussion of the difference between state law and Torah commandments and the meaning of overlap between positive commandments and prohibitions.

A Commandment as a Decree, Command Verses, and Positive Commandments versus Prohibitions

The text adopts, following Maimonides in the eighth root, the idea that a commandment is a decree represented in command verses, as opposed to declarative verses that describe facts, and places positive commandments and prohibitions as subcategories within command verses. It presents the “performance-based approach” (attributed to Aharon Shemesh, and possibly in a certain sense also to Saadia Gaon), according to which a positive commandment is fulfilled through positive action and violated through passive omission, while a prohibition is fulfilled through passive omission and violated through positive action. It argues that this approach cannot explain Maimonides’ sixth root regarding overlap between a positive commandment and a prohibition, because if the distinction is performance-based, there could not be substantive overlap between a demand to act and a demand to refrain.

The Sixth and Ninth Roots in Maimonides: Overlap between Positive Commandments and Prohibitions

The text presents Maimonides’ ninth root, according to which overlap within positive commandments or within prohibitions is not counted twice, but in the sixth root Maimonides qualifies this and says that overlap between a positive commandment and a prohibition is not considered overlap, and both are counted. It emphasizes two innovations: that we count two commandments and not one, and that the prohibition is counted among the prohibitions and the positive commandment among the positive commandments. It argues that the second innovation is hard to understand if the distinction between positive commandment and prohibition is performance-based, because on a performance-based view “you shall rest” on the Sabbath and “you shall not do any labor” are really the same prohibition, while the commandment of a parapet (“You shall make a parapet for your roof” and “You shall not place blood in your house”) is overlap whose content appears to be a positive commandment. This exposes the fact that Maimonides does not accept a performance-based criterion.

Exceptions to the Performance-Based Criterion and the Shift to a Linguistic Criterion

The text brings as a central example “Do not stand idly by your neighbor’s blood” as a prohibition that imposes a duty to act to save a drowning person, so that the transgression is through passive omission despite the negative wording. It presents Aharon Shemesh’s claim that in earlier strata the distinction was performance-based, and later became linguistic: a negative formulation (“beware,” “lest,” “do not”) creates a prohibition, and a positive formulation creates a positive commandment, even if the practical content is reversed. It rejects the linguistic criterion as a complete explanation, because the distinction between positive commandment and prohibition has many practical implications, and therefore the formulation is an expression of an essential conception, not the root of the distinction.

A Logical Difficulty and Rejecting the Equivalence between Positive Formulation and Double Negation

The text raises a claim of apparent logical equivalence between “I want you to be wearing tefillin” and “I do not want you to be without tefillin,” and from that asks how there can be a normative difference between equivalent formulations. It rejects the difficulty and argues that there is no equivalence, because the operators “not” and “want” are not commutative, and changing their order changes the meaning. It illustrates this through the distinction between “I want you not to do it” and “I do not want you to do it,” and through a philosophical distinction between two types of negation: nullifying negation and contrary negation, with the analogy of light and darkness as opposed to heat and cold.

The Normative Distinction: A Desirable State versus a Forbidden State

The text proposes that the essential difference is that a positive commandment points to a desirable, positive state, while a prohibition points to a forbidden, negative state. It argues that the command of a positive commandment is not identical to the command of a prohibition even when the practical act is similar, because in a positive commandment there is value in simply being in the positive state, whereas in a prohibition there is no value in the positive state itself, only a warning against the negative state. It formulates this as the gap between “to be righteous” and “not to be wicked,” and says that all four combinations exist: a positive commandment about an act, a positive commandment about inaction or cessation, a prohibition about an act (parapet/danger), and a prohibition about omission (“Do not stand idly by your neighbor’s blood”).

Halakhic Implications: Reward, Punishment, Intention, Money, Human Dignity

The text explains that for positive commandments there is reward, while for a prohibition there is no “reward” for refraining, and for a prohibition there is punishment, whereas neglecting a positive commandment is not punished by a religious court. It connects this also to the need for intention in positive commandments, as opposed to the lack of significance of intention in prohibitions, and brings an example from a barbershop in Bnei Brak about intending to fulfill “five commandments,” including prohibitions. It explains why one must spend all his money in order not to violate a prohibition, whereas for a positive commandment only up to one-fifth (the enactment of Usha), and why human dignity does not override a prohibition but can allow neglect of a positive commandment, grounding the distinction in the idea that a prohibition defines wickedness while a positive commandment defines righteousness.

Positive Action and Passive Omission on the Normative Plane

The text argues that the intuition about fulfillment and violation through positive action or passive omission is preserved, but becomes abstracted from the physical plane to the normative plane. It defines neglecting a positive commandment as an indirect clash with God’s will—the absence of the desirable state—whereas violating a prohibition is a frontal clash—being in the forbidden state—even when in practical terms the picture is reversed. It applies this to the Sabbath (doing labor as neglect of a positive commandment alongside violation of a prohibition) and to the parapet (not building a parapet as a normative violation of the prohibition of “blood in your house”).

Positive Commandment/Prohibition Overlap: There Is No Normative “Zero”

The text explains that overlap of a positive commandment and a prohibition in the same area is not normative overlap but the creation of two values: both a positive state and a negative state, so there is no neutral condition. It argues that on the Sabbath, the positive commandment alone would create a situation in which doing labor is “zero” (just neglect of a positive commandment), and the prohibition adds that doing labor is “minus one” (a forbidden state). It presents this as an explanation for the idea of pairs that Maimonides discusses in the sixth root.

State Law versus Torah: “Only Prohibitions” and the Role of Sanctions

The text describes a conversation with Alon Harel and argues that in Israeli law there are really only prohibitions, because a law without a sanction is not perceived as law. It argues that obligations such as military service and paying taxes are, in the normative sense, prohibitions that require action, because they are enforced through punishment for non-compliance and not through reward for compliance. It reinforces this through the experience of a struggle against a local council head in Yeruham and the claim that administrative law without sanctions turns into a recommendation, and brings examples of a “one-shekel fine” as a sign of imposing a norm without really wanting to punish for it.

Robert Nozick: Temptation versus Extortion and an Absolute Scale

The text cites Robert Nozick’s question: why does the law permit temptation (“If you do it, you’ll get a thousand shekels”) but forbid extortion (“If you don’t do it, I’ll take a thousand shekels from you”), even though the gap is a thousand in both cases? It explains that the normative judgment works on an absolute scale: giving is positive, neither giving nor taking is zero, and taking without permission is negative. So the difference is not the gap between the options but their location relative to zero. It uses this as an analogy for the structure of positive commandments and prohibitions: increasing good is a positive commandment, harming rights is a prohibition, and remaining neutral is mediocrity.

Nachmanides on Parashat Yitro: Remember and Observe, Love and Fear, and a Positive Commandment Overriding a Prohibition

The text quotes Nachmanides on remember and observe: the “quality of remember” is alluded to in positive commandments and emerges from the quality of love and mercy, while the “quality of observe” is found in prohibitions and emerges from the quality of fear and judgment. It presents Nachmanides’ statement that a positive commandment is greater than a prohibition “just as love is greater than fear,” and his explanation that punishments of lashes and death apply to prohibitions and not to positive commandments, while for positive commandments there is at most coercion (“I am not performing lulav and tzitzit”). It resolves the tension between “the positive commandment is greater” and “the punishment for a prohibition is greater” through a distinction between the plane of fulfillment (a positive commandment creates righteousness) and the plane of violation (a prohibition creates wickedness), and connects this to the calculation behind a positive commandment overriding a prohibition by arguing that neglecting a positive commandment is a small negative value, while refraining from a prohibition is neutral and not a “small commandment.”

Kiddushin 34: Examples of Positive Commandments Not Caused by Time, and Nachmanides’ Answer

The text brings the baraita in Kiddushin 34 that lists positive commandments caused by time (sukkah, lulav, shofar, tzitzit, tefillin) as against positive commandments not caused by time (mezuzah, parapet, lost object, sending away the mother bird). It quotes Tosafot’s difficulty that in many of these examples there is also a prohibition (“You shall not place blood,” “You may not hide yourself,” “You shall not take the mother”), and if so women would not be exempt even if the commandment were caused by time, because “Scripture equated woman to man for all punishments in the Torah.” It quotes Nachmanides, who distinguishes that with a parapet “its primary commandment is a positive one,” and the prohibition “exists only to uphold the positive commandment,” so one who is exempt from the positive commandment would also be exempt from the prohibition—unlike the Sabbath, where the positive commandment and the prohibition stand as two independent obligations.

A Prohibition that Reinforces a Positive Commandment: Stick and Carrot, Charity, and Yom Kippur

The text explains that adding a prohibition to a positive commandment can turn a state of “not being righteous” into a state of “being wicked,” and therefore it strengthens the positive commandment in a model of stick and carrot. It brings later authorities’ use of Nachmanides’ principle: Maharil Diskin regarding charity (“Do not harden your heart and do not shut your hand”) as a continuation of the primary positive commandment, and therefore there is no obligation to spend more than one-fifth; and Divrei Yechezkel regarding feeding minors on Yom Kippur and the question of “Do not feed them” in light of the fact that on Yom Kippur there is both a positive commandment and a prohibition, with the claim that the prohibition there comes to ensure fulfillment of the positive commandment of “You shall afflict your souls.”

[Rabbi Michael Abraham] All right, let’s begin. Last time I started talking about the difference between a prohibition and a positive commandment. And the claim was that, following Maimonides in the eighth root, these are really two subcategories within the category called commandment, or according to Maimonides, decree, which is basically represented in the Torah by imperative verses, as distinct from declarative verses that describe facts. The commanding verses are Jewish law. Within the commanding verses we have positive commandments and prohibitions; these are two subcategories within the category of commanding verses. And then we got into the question of what exactly the difference is between these two subcategories. On the face of it, the view that, following Aharon Shemesh, we called the performative view, says that a positive commandment is a commandment that imposes on me a duty to act, while a prohibition imposes on me a duty not to act, a duty of omission, or in halakhic jargon: a positive commandment is fulfilled through positive action and violated through passive omission, while a prohibition is the opposite. That is, it is fulfilled through passive omission—when I do not do labor on the Sabbath—and violated through positive action. That’s what he called the performative view. But if that really were the view, and maybe I said that perhaps this is Saadia Gaon’s view, because Saadia Gaon does not accept Maimonides’ sixth root, but if this were Maimonides’ view, then you can’t understand what he does in the sixth root. Because Maimonides says in the ninth root that if there is duplication among positive commandments or duplication among prohibitions, then we don’t count all the commandments, only one. The Torah repeats twelve times the obligation to observe the Sabbath—we count one obligation in the enumeration of the commandments. Why? Because basically there is repetition there for reinforcement or whatever it may be; we spoke a bit about the significance of that. In the sixth root Maimonides qualifies what he said in the ninth root. He says: if the duplication is between a prohibition and a positive commandment, that is not duplication. That we do count in the enumeration of the commandments, both the prohibition among the prohibitions and the positive commandment among the positive commandments. And I said that Maimonides has two innovations here: one innovation is that we count both commandments, meaning it is not duplication, and the second innovation is that the prohibition is counted among the prohibitions and the positive commandment among the positive commandments. Seemingly, what is the significance of the second innovation? If we count them both, then obviously the prohibition goes with the prohibitions and the positive commandment with the positive commandments. No, that’s not obvious. Because if we have a positive commandment and a prohibition regarding doing labor on the Sabbath—“you shall not do any labor” is the prohibition, and “you shall cease” is the positive commandment—but both of them basically tell me not to do labor. According to the performative view, these are really two prohibitions. The fact that the Torah formulates one in positive language, “you shall cease,” doesn’t matter, because in practice what does it impose on me? Not to do labor. Meaning, this commandment is fulfilled through passive omission and violated through positive action. Therefore, if I accepted the distinction between positive commandment and prohibition as a performative distinction, then even if I accepted Maimonides’ first innovation—that duplicated positive and negative commandments are counted as two commandments—I would not accept the second innovation. I would not count the positive commandment among the positive commandments and the prohibition among the prohibitions. Rather, I would count both commandments in the category appropriate to them, and that is always one category. Because if there is duplication between a prohibition and a positive commandment, then it is always the same content—that’s what duplication means. Now, if this content commands me to do something, I would count both as positive commandments. If this content commands me not to do something, I would count both as prohibitions. But it will always command the same thing, regardless of the fact that it is phrased as a prohibition and as a positive commandment, because that is what duplication is. Or in other words, let me put it this way: if the criterion distinguishing prohibition from positive commandment is performative, there cannot be duplication between a positive commandment and a prohibition. So what is the sixth root talking about? How can there be duplication? A positive commandment tells me to do something and a prohibition tells me not to do something, so their content can never be the same. If Maimonides devotes a whole root to duplication between a prohibition and a positive commandment, that means he does not accept the performative criterion. It’s not true that the difference between prohibition and positive commandment is performative. And in fact, maybe I’ll just give two examples so we have this before our eyes. One example is ceasing on the Sabbath, what I mentioned before: “you shall not do any labor” is the prohibition, and “you shall cease” is the positive commandment. True, both the prohibition and the positive commandment basically require me to stop doing labor—they require non-action from me—therefore, at the conceptual level, both are prohibitions. On the other hand, “you shall not place bloodguilt in your house” and “you shall make a parapet for your roof”: “you shall not place bloodguilt in your house” is a prohibition, and “you shall make a parapet for your roof” is a positive commandment, but both of them basically require me to build a parapet on the house or to arrange the house so that there are no obstacles or dangers in it. In this case there is duplication between a prohibition and a positive commandment, but the content of the duplication is like a positive commandment, not like a prohibition. With the Sabbath, the duplication on both sides is like a prohibition; here, on both sides it is like a positive commandment. Meaning, when there is duplication, then by definition, by the very fact that we’re dealing with duplication, it will always be the same content—either the content is like a positive commandment, as with the parapet, or it is like a prohibition, as with the Sabbath. But there cannot be duplication between a prohibition and a positive commandment if the difference between them is performative, because then they are not duplicates—this one requires me to do something and that one requires me not to do something. So as I said before, the moment Maimonides introduces the possibility that there is a sixth root at all, even before what he says in the sixth root, the very fact that there is a sixth root at all means that Maimonides does not accept the performative criterion. So what does he accept? Look, factually, we know several examples that depart from the performative criterion. I mentioned, for example, “do not stand idly by your neighbor’s blood.” “Do not stand idly by your neighbor’s blood” means that if I see someone drowning in the river, about to drown in the river, I have to save him. So “do not stand idly by your neighbor’s blood” imposes on me a duty of action—I have to save someone. If I stand by my fellow’s blood, if I refrain, that is the transgression. Meaning, the transgression here is through passive omission, so this is really a positive commandment, not a prohibition from a performative standpoint. But “do not stand idly by your neighbor’s blood” is phrased as a prohibition, and indeed the enumerators of the commandments count it as a prohibition, not as a positive commandment. But from a performative standpoint, the content is positive-commandment content. And there are many more examples of this. All duplicated commandments, of course, are examples of this, because either the prohibition is an example of it or the positive commandment is an example of it—one of the two is always an exception by definition. If there is duplication between a prohibition and a positive commandment, then by definition one of them is an exception. So we already know that, at least as we know Jewish law, the performative criterion doesn’t hold water. That’s not really the difference between a prohibition and a positive commandment. And I mentioned that Aharon Shemesh, in his article, says that there was indeed some change over the course of the Talmudic generations. In the earlier layers, then the criterion, the difference between prohibition and positive commandment, really was performative; but as the generations advanced, in the later passages the difference is what he called a linguistic difference. And what does that mean? The formulation in the Torah determines whether it’s a prohibition or a positive commandment. So when the Torah says “you shall not place bloodguilt in your house,” that is a prohibition even though it commands me to build a parapet, or “do not stand idly by your neighbor’s blood” is a prohibition even though it commands me to perform an act of rescue. Conversely, when the Torah says “you shall cease,” that is a positive commandment even though what it imposes on me is specifically non-action—not to do labor. So the Torah’s formulation is the criterion that determines whether something is a prohibition or a positive commandment. The question is whether this is a formulation of “take heed,” “lest,” “do not”—that’s the Sages’ wording: “take heed,” “lest,” and “do not” indicate a prohibition. I’m adding the word “not,” which doesn’t appear there, but obviously that too. So there has to be some kind of negating formulation, and once the formulation is of that kind we know it is a prohibition, regardless of whether the content requires me to act. If the formulation is negative, it is a prohibition; if the formulation is positive, then it is a positive commandment. So he says that the alternative—let’s say Maimonides’ approach, what I’m looking for in Maimonides’ approach—the alternative is that the criterion is not performative but linguistic: how the Torah formulates the commandment is what determines whether it is a positive commandment or a prohibition. And I said about this that it is not plausible—not that it isn’t plausible, rather that it isn’t complete, it isn’t a complete explanation. Why? Because the fact that the Torah phrases things differently is not something that stands by itself. When the Torah phrases things differently, clearly there is genuinely a different conception of the command behind it. Otherwise, what, did it just hold a lottery? This one it formulated as a positive commandment, that one as a prohibition? Why does it want us to relate to this as a positive commandment and to that as a prohibition? If both of these are really prohibitions, then why does the Torah phrase one positively and one negatively? This has many implications. For a prohibition one has to spend all his money; for a positive commandment only up to a fifth, the enactment of Usha. Human dignity overrides a prohibition of the Torah—only “do not deviate.” You can’t violate a prohibition for the sake of human dignity, but a positive commandment, yes—neglecting a positive commandment through passive omission. So that means there is a consequence to defining a commandment as a positive commandment or a prohibition. That means the Torah probably has some reason why these commandments are prohibitions and these commandments are positive commandments, and it has practical implications. So we still are not exempt from looking for a substantive distinction between prohibition and positive commandment. And the fact that the Torah phrases them differently means that there really is some different kind of command here. The formulation is only an expression of the fact that there is a different command here. The formulation cannot be the root of the matter. Now the question is: an expression of what? So what really is the substantive distinction? If it is not the performative distinction, which is a substantive distinction—if it is not the performative distinction, then what is it? What could the difference be between positive commandments and prohibitions? I added a logical angle to this difficulty. On the logical level too, this is difficult. If the Torah had said, “Do not be without tefillin,” “Take heed lest you be found without tefillin,” okay? Then that would be a prohibition. What would that prohibition say? Put on tefillin. Don’t be without tefillin. Now when the Torah says, “And they shall be as frontlets between your eyes,” meaning put on tefillin, that is a positive commandment. Now the positive commandment and the prohibition both have overlapping content. Basically, you have to put on tefillin. Okay? But because one is phrased with “take heed,” “lest,” and “do not,” it would be a prohibition, whereas if it were phrased as a positive commandment, as in fact it is, then it is a positive commandment. The performative content is the same content. Now I’ll say more than that: not only is the performative content the same, the logical content is the same. After all, we are dealing here with a double negation. I tell you, I don’t want you to be without tefillin—what is the difference between that and telling you, I want you to be with tefillin? Two negatives cancel out, right? Double negation cancels out. So there is logical equivalence between these two commands, or these two verses. Once there is logical equivalence, how can there be a difference? Now I’m no longer raising some general question. This is not a question, it’s a difficulty. Before, I asked a question: the performative difference doesn’t work. Okay, so what is the difference? Maybe there is something, I just don’t know. Now I’m claiming more than that: there cannot be a difference. Not just that I don’t know what the difference is—there cannot be a difference. These are two statements that are logically equivalent. How can it be that two statements that are logically equivalent say different things? Whatever the difference may be, which I still haven’t found—how can there be any difference at all when the two formulations are logically equivalent? Something here makes no sense. Well, actually, it’s not logically equivalent. This needs a bit of… When I say, for example, I don’t want you to be without tefillin, is that the same thing as saying I want you to be with tefillin? On the logical level, not the halakhic level or anything else, the answer is no. Notice: I don’t want you to be without tefillin. There is “want” between the two negatives. There is commutativity of operators, right? “I do not want that you should not be with tefillin” is not “I want that you should be with tefillin.” It is not logically equivalent. When we say it is logically equivalent, we switch the position of the negation with the position of the “want.” We switch the order of operation of those operators. Right? I want you not to be without tefillin. But who said that the negation and the “want” can be interchanged? What in mathematics is called non-commutative operations. Switching them changes the meaning. Only if I can switch them, can I turn “I do not want you to be without” into “I want you not to be without.” “I want you not to be without” means I want you to be with tefillin. That is equivalent. But “I do not want you to be without” is not equivalent. You just had to know—in mathematics this is a simple distinction, you just define whether these things are commutative or not. But in life we often have some tendency to think that they are interchangeable. Think, for example—once I saw a puzzle. You know Martin Gardner? He was an American mathematical puzzler, wrote a popular puzzle column, I think it was in the New York Times, where he had a section of mathematical puzzles. So he asked there: find a point on the face of the earth such that if you go one kilometer south, one kilometer east, and one kilometer north, you arrive back at the same place. Three steps, not four. One kilometer south, one kilometer east, and one kilometer north, and you return to the same place. Right. So what? Right. The North Pole is one solution, correct? You go down one kilometer south, travel one kilometer along the circle, and go back up one kilometer, and you’re back at the North Pole. But there is another solution. Right. You go not one kilometer down, but to one kilometer above the place where the circle has a circumference of one kilometer. If you go one kilometer above that, descend one kilometer, make a full circuit that is also one kilometer, and go back up one kilometer—that is also a solution. But practically for our purposes, think of someone who goes south first and then east, or east first and then south—he does not necessarily reach the same place. So these are not necessarily commutative things, okay? They’re not interchangeable. We often miss these points. In any case, for our purposes, the claim is that on the logical level these formulations are not equivalent formulations. So the difficulty falls away. The question remains. The question still remains: so what really is the difference? But I removed the difficulty that there cannot be a difference. Yes, there can be, because it is not a logical equivalence. Fine, so what is the difference? I’ll propose the following. If you say, “I do not want you to be without tefillin,” all right? That sentence is not logically equivalent to “I want you to be with tefillin.” Why? Because when you say “I do not want you to be without,” for the two negations to cancel each other out they have to be adjacent. It has to be “not not,” and “want” sits in the middle: “I do not want that you should not.” Okay. If you switch the negation with the “want,” then you get “I want that you should not be without tefillin.” That is equivalent to “I want you to be with tefillin.” That is a logical equivalence. But you are not allowed to switch “want” with the negation—they are not interchangeable. You are changing the meaning. In other words, look—forget the logic for a second. There is a difference between “I want you not to do something” and “I do not want you to do something.” It’s not true that that means “I want you to do something.” Of course there is a difference, right? To say “I want you not to do something” is a positive aspiration. To say “it is not true that I want you to do something”—it’s not true that I want it. Do it, don’t do it, I don’t care; it’s just not true that I want it. And it’s also not true that I don’t want it—not true. You know, already in Greek philosophy they noticed that there are two kinds of negation. There is annihilating negation and opposing negation. Right? The opposite of one can be zero—that is annihilating negation. I nullify the one and turn it into zero. And the opposing negation of one is minus one. Both are negations of one, right? What’s the difference between them? Right, that’s what people always say: is darkness the absence of light, or is darkness an independent reality? So how do I know that darkness is only the absence of light? If when you combine darkness with light you get light, not dim light. Right? That means darkness is not minus one, it is zero. Meaning, if darkness and light related to one another like one and minus one, then a mixture of light and darkness ought to give me something neutral. Like cold and heat. Cold and heat—mix hot water and cold water and you get lukewarm water. The relation between cold and heat is like one and minus one. The relation between light and darkness is like one and zero. When you combine them, you get one. Okay? These are two kinds of opposites. Here too it is the same. When I say to you, “I want you to be with tefillin,” that is one. Right, I want a positive state—that you be with tefillin. When I negate that, it can be negated in two ways. I can say, “I do not want you to be with tefillin”—not that I want you to be without tefillin; I just don’t care. I do not have the desire that you be with tefillin. So what? Be with them, be without them, be on the moon, do whatever you want. All right? It is not true that I have the desire for you to be with tefillin. By contrast, “I want you to be without tefillin” is minus one. I want you to be without tefillin. That is positively directed toward the opposite state. It is not logically equivalent. These are two different kinds of negation. Okay? Therefore, the statement “I want you to be with tefillin” and the statement “there is a prohibition against being without tefillin” are not equivalent statements. Not practically—first of all, in meaning. The meaning is different. In a moment we’ll get to practice, but the meaning is different. You agree, right? There is a difference. Now let’s formulate that difference. Let’s put it this way: a positive commandment points to a desirable state. Say they tell me, “I want you to be with tefillin”—what does that mean? Being with tefillin is a desirable state, and I want you to be in it. Okay? A prohibition points to a forbidden state, an undesirable state, a negative state. Not just undesirable, but undesirable in the sense of negative. And when they tell me, say, “I do not want you to be without tefillin,” they are not telling me that the state of being with tefillin is a positive state. They are telling me that the state of being without tefillin is a negative state. Now in both cases, seemingly, they are basically telling me to put on tefillin. In the first case they say, put on tefillin because that is a positive act. In the second case they say, put on tefillin because if you are without tefillin, that state is negative. But you understand that this is something different? A completely different statement. In the second case there is no value in putting on tefillin. It is only the way for me to escape the state in which I am without tefillin. The only way is to put on tefillin. Or for example, what happens if I am in a situation where I am coerced and cannot put on tefillin? In such a situation, from the standpoint of the prohibition there is no problem, right? I did not violate the prohibition because I was coerced. But I did not fulfill the positive commandment. Bottom line, you can’t say that I put on tefillin. It is not true that I didn’t put on tefillin—in the conceptual sense I did not put on tefillin—but from the standpoint of the prohibition, it is not true that I failed to put on tefillin, because I was coerced, I am exempt. But it is also not true that I did put them on. So if it were a positive commandment and I was coerced regarding it, coercion is not considered as though one acted, in the language of the Talmud. If it is a positive commandment and I was coerced, practically I did not fulfill the positive commandment. But if it is a prohibition that says to me, don’t be without tefillin—what do you want from me? I didn’t violate the prohibition, I was coerced. Coercion is considered as though one did not act—that everyone agrees on. But coercion is not considered as though one did act—that is a dispute between Reish Lakish and Rabbi Yohanan. The Babylonian Talmud and the Jerusalem Talmud reverse the opinions, but it is still a dispute between Rabbi Yohanan and Reish Lakish. Meaning, there is a difference, and for example this is one example of the difference between a prohibition and a positive commandment. You asked about the practical difference—that is the practical difference. Say I bought a house and there is no parapet on the roof. So what did I do? I sold the top floor to a non-Jew. Now I’m no longer obligated to put up the roof—the roof isn’t mine. I’m not obligated to put a parapet on the roof. You can’t say that I violated the prohibition of “you shall not place bloodguilt in your house,” but can you say that I fulfilled the positive commandment of “you shall make a parapet for your roof”? I did not fulfill the positive commandment. I wasn’t required to—it wasn’t incumbent on me—but you can’t say that I fulfilled the positive commandment, right? By contrast, I certainly did not violate the prohibition. I do not have a house without a parapet. There is no bloodguilt in my house. Therefore there is a big difference between the formulation “you shall make a parapet for your roof” and the formulation “you shall not place bloodguilt in your house.” Also a practical difference. But the root of the practical difference—what is the difference in meaning? The difference in meaning lies in whether the commandment points to a desirable state, in which case it is a positive commandment, or whether the commandment points to an undesirable state, in which case it is a prohibition. A prohibition warns me against being in state X. State X is negative, it is forbidden. A positive commandment says to me: I want you to be in state Y, or in the opposite of not-X, and that is not the same thing. This has various implications. But before the implications, see why this solves our problem. The positive or negative state to which the commandment points can be a state in which I do something or a state in which I do not do something. For example, the commandment of ceasing on the Sabbath—according to Maimonides, that is a positive commandment, right? Because it says “you shall cease”; the formulation is positive. But in terms of content, I asked, and in terms of performative content it is a prohibition, because it tells me not to do labor. Ceasing on the Sabbath means not doing labor. So in what sense is it a positive commandment? The answer is that on the Sabbath, from the standpoint of this commandment, doing labor on the Sabbath has no problem in itself. You need to cease. The ceasing is an act, it is a positive state—so, “you shall cease.” But doing labor has no problem in itself except that when you do labor, you are not ceasing, so you are not fulfilling the positive commandment. When you do labor, you merely neglect a positive commandment; you do not violate a prohibition. By contrast, in the case of the Sabbath the Torah also tells me, “you shall not do any labor.” Besides the positive commandment, there is also a prohibition. Now from the perspective of the prohibition, the state is the opposite. That is, if I do labor, I have done something negative. But if I did not cease, nothing happened—I didn’t neglect a positive commandment because there is no positive value in ceasing. There is negative value in doing labor. So there is a big difference. For example, “do not stand idly by your neighbor’s blood,” which somewhat goes against our intuition. “Do not stand idly by your neighbor’s blood” is a prohibition. But what it imposes on me is to perform an act of rescue. I see a friend drowning in the river, I have to do something that saves him. Saves him. Okay? So seemingly this should have been a positive commandment according to the performative criterion. Why is it a prohibition? My claim is: because standing by and not rescuing is a negative state. The rescue itself is not a positive act from a halakhic standpoint. Morally, certainly it is. From a halakhic standpoint, the act of rescue is not positive. Standing aside without saving is a negative state. Now that is formulated in the language of prohibition, because a prohibition comes to point to a negative state, not to a positive state. In this case the negative state is non-action, and therefore it resembles a positive commandment somewhat. But since the Torah points to the negative state and not to the positive state, it is a prohibition, not a positive commandment. There—we have detached the distinction between positive commandment and prohibition from the performative plane. There can be a positive commandment that commands doing something, there can be a positive commandment that commands refraining from action, and there can be a prohibition that commands action and a prohibition that commands refraining. Everything is possible; all the combinations exist, and they do exist in Jewish law. All the combinations exist. Just incidentally, the two commandments of the Sabbath and the two commandments of the parapet are the four combinations. Fine? The two commandments of the Sabbath are a positive commandment concerning omission and a prohibition concerning omission. And the two commandments of the parapet are a positive commandment concerning action and a prohibition concerning action. There, all four combinations. They all exist in Jewish law. And that means that the distinction between prohibition and positive commandment is not a performative distinction. People don’t notice this. If you ask people what the difference is between a prohibition and a positive commandment, they answer: what’s the problem? A positive commandment tells you to do something, and a prohibition tells you not to do something. Not true. Mistake. That is not the difference between a prohibition and a positive commandment. Maybe, as I said, in the earlier strata, in earlier Talmudic passages, maybe that was the difference. But in our Jewish law today, that is absolutely not the difference. There are many exceptions that show this is not true. That is not the difference. Now look how all the implications fall into place in a completely natural way. What differences did we see between prohibition and positive commandment? One difference: for a positive commandment you receive reward. For a prohibition, no, because avoiding a prohibition is not reward-worthy—you simply remained okay, that’s all. By contrast, one who violates a prohibition receives punishment. For a positive commandment there is no punishment, certainly not in court. Neglect of a positive commandment carries no punishment. Okay? I saw—I mentioned perhaps—that once in Bnei Brak I saw in a barbershop there that it said that whoever sits there should have in mind five commandments, right? Have in mind five commandments: “do not keep overnight the wages of a hired laborer,” and also “on that day you shall give him his wages,” “you shall not round off the corners of your heads”—there was a wonderful innovation there, to have intention for prohibitions. No—prohibitions do not require intention. Because prohibitions you do not need to fulfill; you just have to make sure you do not violate them. A positive commandment is something that requires you to fulfill a commandment. A commandment, really, is only a positive commandment—not a prohibition. We saw in Maimonides in the eighth root that what both share is decree, but commandment is only a positive commandment, where you fulfill a commandment. When you avoid a prohibition, you are not fulfilling a commandment. You are avoiding a prohibition. So what difference does it make whether you intended or not? If you didn’t intend, you didn’t discharge your obligation? You don’t need to discharge an obligation. There is no obligation to discharge. You just need not to stumble into a prohibition. Okay? So therefore positive commandments require intention, but prohibitions do not require intention. There is one difference. A second difference: for a positive commandment there is reward; for a prohibition there is no reward. A third difference: for a prohibition there is punishment; for a positive commandment there is no punishment. A fourth difference: for a prohibition one must spend all his money; for a positive commandment only up to a fifth. A fifth difference: human dignity does not override prohibitions, but it does override—or allow the neglect of—a positive commandment. It also overrides the obligation to fulfill a positive commandment. Okay? How do I explain all these differences? In light of the comparison I made here, I think the difference is very simple. The derivation of all these differences, all these implications, from the distinction I made, is quite compelling. Basically, what am I saying? A positive commandment tells me: be righteous. If you are in state X, you are righteous. Right? That is what it tells me. State X is positive. If you are there, you are righteous. A prohibition tells me: if you are in not-X, if you are not in state X but in state not-X, you are wicked. If you are in state X, you are not righteous; you are simply not wicked—you weren’t in state not-X. Right? That is essentially the difference between prohibition and positive commandment. Now if so, then everything is clear. If there is a positive commandment to do X and I did it, I am righteous, I deserve reward. But if there is a prohibition against being in state not-X and I did not fail, meaning I was in state X, I wasn’t in state not-X, which is a negative state—do I deserve reward? For what? I didn’t do anything positive. I only refrained from doing something negative. Why should I get reward? As for punishment, the opposite. If you did something negative, you deserve punishment. If you didn’t do something positive, you don’t get the volunteer-of-the-year award. Okay? But you don’t deserve punishment for such a thing, for not being righteous. You won’t deserve reward. And the righteous deserve reward. Okay? So all these implications—why must one spend all his money for a prohibition? Because a prohibition is a serious transgression. To spend all one’s money in order to fulfill a positive commandment, to be righteous—that is not such a fundamental demand. You do not have to spend all your wealth, only up to a fifth, no more than that. Meaning, all the halakhic implications of the difference between prohibition and positive commandment really derive, I think, entirely naturally from the difference I pointed out here. No less naturally, and perhaps even more so, than on the performative plane. The performative plane basically has to assume that a negative act, an active sinful act, is something more serious than a transgression by passive omission physically, meaning than simply sitting and not doing something. But that is not always true. Why should there be a connection between the gravity of the transgression and the manner in which the transgression is performed? Whether it is an active action or inaction? If the thing is serious, it may be serious also in omission. By contrast, the way I’m putting it, it comes out in the most natural way possible, according to the criterion—I’ll call it the substantive criterion, not the performative one. According to the substantive criterion, it is obvious that being righteous is greater than merely not being wicked. But being wicked is much more serious than merely not being righteous. Okay? That follows from the very definitions of the concepts.

[Speaker E] Exactly. That makes it more tangible.

[Rabbi Michael Abraham] Yes, exactly. I think that analogy is the best analogy to accompany us on this issue. A positive commandment is one—be in a positive state. A prohibition says that minus one is a negative state, and zero can be either neglect of a positive commandment or non-violation of a prohibition. It’s as if you did nothing—you’re neither righteous nor wicked, you’re average. Okay? That’s basically the meaning. Maybe I’ll formulate it through something else. I once discussed this with some law professor at the Hebrew University, Alon Harel. I was referred to him as someone who deals a lot with philosophical questions of law, because I was interested in how the legal world understands the difference between positive commandments and prohibitions. I claim that in Israeli law there are no positive commandments; there are only prohibitions. In law generally—Israeli law is an example. So I went to speak with him and presented him with this claim, and he said, what are you talking about, there are many positive commandments. There is a positive commandment to serve in the army, there is a positive commandment to pay taxes. And of course there are prohibitions: do not murder, do not steal. Although, regarding the prohibitions, by the way, you know there is no law that prohibits murder or theft. It says that the murderer’s punishment is such-and-such, that the thief’s punishment is such-and-such. It does not say that it is forbidden to murder or that it is forbidden to steal. There are liberal interpretations of law that claim that indeed the law cannot forbid me anything nor command me anything; I am an autonomous person, sovereign to do what I want. The law cannot determine for me. The law speaks to those who work for it, the police and the judges—they work for the law. So they tell them: look, if someone did this, then you need to give him such-and-such a punishment. But you cannot speak to the citizen; the citizen is an autonomous being that nobody can tell what to do. Okay, that sounds a bit sophistical to me. In any case, for our purposes, his claim was: of course there are duties to act and duties not to act. What is he assuming, of course? The performative distinction, right? Why are paying taxes and military service different from not murdering? Because that requires me to do an action, to go pay or go serve in the army, so it requires me to do an action. From his perspective it was obvious that this is a positive commandment. But if I accept the substantive criterion—I don’t even know what to call it—the normative criterion, which distinguishes prohibition from positive commandment, not the performative one, then from that perspective I think there are no positive commandments in law at all, only prohibitions. There is positive value in many things, but the question whether the law sees that as a positive commandment—that is not the same thing. Meaning, for example, when there was a debate over Hanan Porat’s law, “do not stand idly by your neighbor’s blood,” whether to put it into law—what in legal circles is called the Good Samaritan law. In many legal systems around the world they do not put that into law. Now nobody would say it is not positive to save someone who is in distress. It has no legal value? No, I’m saying it has no legal value; it has moral value, but morality is not law. They are two different things. Ultimately, in the discussion about this law of “do not stand idly by your neighbor’s blood,” nobody would argue that it is proper to help someone in distress. There is no dispute about that. But there was a fierce dispute about whether to put it into the law books. Because the question was whether it is proper for the law to require this. Am I obligated to help someone in distress? No, I’m not obligated. I’m not allowed to cause him distress. But I’m not obligated to help him. It’s not my fault. Let the police help him—there are people who get paid for that. It sounds terribly cynical and terribly immoral. Fine, morally I’m really not okay. But the question is whether the law can demand this of me. What stands in the background? From the standpoint of law, there is no such thing as a law without a sanction attached to it. If the law obligates me to do something and I didn’t do it, a sanction is imposed on me. A law without a sanction attached is not a law. That is the accepted legal view. You understand what that means. It means that all laws are prohibitions. Because there has to be a punishment for someone who violates the law. And a positive commandment, in essence, is a commandment where we expect you to do something, but there is no punishment if you don’t do it. There is no such thing in law. A law with no punishment attached is inconceivable—there’s no such creature. Look, there is another legal point. I once had this realization. Often, you know, they give a punishment of one shekel because they want to say: this is a norm I’m not willing to punish for, but the law says—and there is no law without punishment. For “do not stand idly by your neighbor’s blood,” for example, there have already been cases where they punished someone with a fine of one shekel. I think also for failure to prevent a crime—apart from Margalit Har-Shefi, who really got hit for that—but I think there were others who were tried for it and also got one shekel or something like that. Meaning, the judge was basically saying: give me a break, this should not really be a law in the law books. But the indication is that he did not impose any real punishment for it. Meaning, because indeed law in its essence is basically a prohibition. Where did I have this realization on the matter? When I was in Yeruham, toward the end of my term there, there was a very corrupt council head there, and he simply destroyed the town from top to bottom. And this went on for a long time; he abused employees and residents there, and there was also violence and all kinds of things like that. So we began some sort of struggle to remove him. And we gathered all sorts of data on actions he had taken, illegal actions he had taken, scandalous things. And he was doing these at a hundred miles an hour; I mean, the quantities were unbelievable. Now we started chasing after the Ministry of the Interior and the police, and we filed complaints, and with all this we gathered all the material and everything. Nobody cared about anything, of course. It’s Yeruham, not Tel Aviv. So nobody cared. It took a whole year; in the end they somehow removed him, and even that was only because it somehow reached television. But during that whole process, suddenly it dawned on me that there was some essential asymmetry between him and us. Each of us has his own work, his own occupations; he is the council head—that’s his job. Now he commits a hundred violations an hour, more or less. Maybe I’m exaggerating a bit, but five violations an hour sounds pretty realistic to me for what he was doing there. Okay, now what happens? Most of those violations, to be extreme, could be seen as criminal. But for that you need solid evidence; the criminal threshold is high. That means you have to prove things beyond any reasonable doubt. Okay? But there were administrative violations there, yes—as I said, five an hour. Now what is an administrative violation? Say he awarded something without a tender. A council job without a tender; he gave it to someone without a tender. Now suppose you went through the entire Via Dolorosa, you tracked down the information, you even got wind of the rumor that he awarded something without a tender, you gathered the data, you filed a complaint with the police, the Ministry of the Interior, you complained, everything’s fine, you conducted a trial, paid a lot of money to a lawyer, ran the trial, and after a year the trial ended and it turned out that indeed he acted improperly. What’s the result? They cancel the tender and tell him: do another tender. That’s it. So from his perspective, it’s a gamble with only upside. Right? He gambles, commits the violation, and at most they’ll tell him: the act was unlawful, go back and do it according to the law. Meaning, do it by tender. So what did he lose, exactly? He had to do it by tender anyway. So he tries. There’s no punishment. As long as it didn’t cross the threshold in administrative court, as long as it didn’t cross the criminal threshold, there is no punishment. All there is is that they cancel the validity of the administrative action he took. That’s all. Now you understand how much effort has to be invested in order to do all this. And after a year at most they’ll cancel it and tell him to do a tender. And he’s doing five of these an hour. How can you deal with something like that? You can’t deal with something like that. This means that when there is a branch of law—administrative law—there is a branch of law that has no sanction attached to it, then it is not law; it’s a recommendation. And if these are recommendations, then he’ll decide whether or not to accept that recommendation. And that is exactly what he did: recommendations. He happened not to accept those recommendations. Okay? That’s all. No price to pay. There is some rationale here that the price will be paid at the ballot box. Right? Meaning, if he behaved improperly, then they won’t vote for him. What nonsense. It’s an absurd situation. But indeed, in the simple conception, in criminal law of course—and again, also in administrative law, when you are extreme enough it’s said that you crossed the criminal threshold. And then punishment is also imposed on you. They’ll personally detain you. What? They’ll personally detain you. Right, exactly. That is an indication that in, say, the halakhic world, a positive commandment has significance because there are rewards in the World to Come, the Holy One, I don’t know—but He gives some sort of reward for what we do as well. So it has meaning to tell me there is a positive commandment to do this, even if there is no punishment attached to it. Fine? But in the legal world that has no significance.

[Speaker G] Isn’t national service law that kind of law, where it allows you to do national service and you have a reward attached to it? What reward? The conditions of the service.