The Commandments and Their Enumeration – Lesson 7

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[Rabbi Michael Abraham] What? There’s no connection between them? It’s a necessary connection; they’re two different things. There is a connection, I said that. Good behavior is often an expression of proper character traits, but they’re two… You know what, I’ll give you an example since you asked. Maimonides, in the Laws of Mourning, at the beginning of chapter 14—Maimonides brings there that there is a commandment, there is a commandment, the commandment of “love your fellow as yourself.” Maybe I’ll open it here. One second. Look. Maimonides, Laws of Mourning, chapter 14, law 1. Maimonides writes: “It is a positive commandment of rabbinic origin to visit the sick, comfort mourners, accompany the dead, bring in the bride, escort guests, and involve oneself in all the needs of burial—to carry on the shoulder, walk before him, eulogize, dig, and bury; likewise to gladden the bride and groom and support them in all their needs. These are acts of kindness done with one’s person that have no fixed measure.” Now look at the key sentence: “Even though all these commandments are of rabbinic origin,” as he said above, right, “a positive commandment of rabbinic origin,” “they are included in ‘love your fellow as yourself.’ Everything that you would want others to do for you, you should do for your brother in Torah and commandments.” I don’t understand—is this rabbinic, or is it the implementation of the positive commandment of “love your fellow as yourself”? That’s an enumerated positive commandment, a Torah-level positive commandment. What does that have to do with something of rabbinic origin? If you say that the Sages are the ones who shaped this Torah commandment, that still doesn’t answer the question, because even when the Sages interpret a Torah commandment, that defines the Torah commandment—it does not make it a rabbinic commandment. The Sages explained what the Torah is telling us. But at the end of the day it’s a Torah commandment; it’s not a rabbinic commandment. So how can Maimonides call it a commandment of rabbinic origin? It seems to me that what Maimonides means is that the Torah commandment is “love your fellow as yourself.” Love him. What? In your heart. That’s the commandment. The practical expressions—here I’m answering your question—the practical expressions of that love are these expressions, but those are rabbinic commandments. What would happen, for example, if I bring in the bride—yes, this is really a Litvak-style analysis of the issue—gladden the bride, accompany the dead, and so on, but in my heart I have no love for them. No, I’m completely indifferent to them. But I do these actions because the Sages established that there is a commandment to do them. No, no, it’s not just a textual support. No—I’m saying, if I do these commandments but have no love at all, I don’t love them, but I accompany the bride, make her happy, the dead, visit the sick, everything written here—then I have fulfilled a rabbinic commandment, but I have not fulfilled the Torah commandment of “love your fellow as yourself.” The rabbinic commandment I fulfilled; I did what the Sages said. Okay? If I love them but don’t do these actions, then I fulfilled the Torah commandment of “love your fellow as yourself,” but I did not fulfill the rabbinic commandment. Like with the sukkah—maybe I also didn’t fulfill the Torah-level one, because Tosafot says there that if you do the Torah commandment not in the way the Sages said to do it, then you also haven’t fulfilled the Torah obligation. Like someone who sat inside the sukkah while his table was in the house. Someone who ate in the sukkah while his table was in the house—they said to him: you’ve never fulfilled the commandment of sukkah in your life. Why not? Having your table in the house is a rabbinic rule, that it’s forbidden to eat in the sukkah that way. So Tosafot says that someone who doesn’t fulfill it in the manner established by the Sages does not fulfill even the Torah commandment. Fine, but Nachmanides disagrees with him there. But on the conceptual level, if I love my fellow and didn’t do these actions—I’ll say maybe I couldn’t even do them, so there isn’t even any claim against me; I couldn’t, but I love him—then I fulfilled the commandment of “love your fellow as yourself,” but I did not fulfill the rabbinic commandment, the rabbinic commandments. If I fulfill those rabbinic commandments out of the motivation that I love him, then I fulfilled both the Torah commandment and the rabbinic one. But here’s the example I brought you: you asked whether walking in the ways of the Holy One, blessed be He, and refining one’s character traits are the same thing. The answer is no. I can walk in the ways of the Holy One, blessed be He—behave properly—without really being built properly inside. I behave properly because there is a commandment to walk in the ways of the Holy One, blessed be He; I want to fulfill my obligation. Yes, like the well-known yeshiva joke about that fellow who goes out on dates, right? He meets all kinds of girls and rejects every one of them. So the spiritual supervisor in the yeshiva comes to him and says: listen, my dear fellow, what are you, some supreme authority? Meaning, no one is suitable for you? Sit down and work on your character traits. Stop dating for a moment, sit and work on your character for a whole year, then come back and meet them again. He worked on his character with great enthusiasm, came back after a year, meets again a whole series of girls like that, and again rejects every one of them. The supervisor asked him: what did you do all year? You worked on your character and nothing happened—you stayed just as arrogant as you were? He says to him: what are you talking about? Now I’m tremendously humble, he says. Only what? When I was arrogant, they weren’t suitable for me; so now that I’m humble, all the more so they’re not suitable for me. In other words, that’s what someone looks like who works on character because he was told to work on character—not because he truly understands the meaning of refining one’s character, but because, to fulfill his obligation, he worked on character. That is the reason why the Torah apparently did not command us to refine our character traits. The Torah did not command us to refine our character traits; if it had commanded us, it would have ruined it. Yes, there is Rabbi Chaim Vital there in Sha’arei Kedushah; he explains that the Torah speaks to human beings. If someone isn’t a human being, there’s nothing to discuss with him, and therefore there’s no point in commanding character refinement. In other words, character refinement is a condition for your being commanded. Meaning, if you don’t meet that condition, then what is the point of commanding you? It’s a bit like commanding someone to believe in the Holy One, blessed be He—Maimonides’ first positive commandment. Yes, there’s no point in commanding, because if you don’t believe then you’re not subject to command. Maimonides does say that, yes, so what Maimonides says there needs serious analysis; there are all kinds of answers that, in my view, are unconvincing, but still it needs serious analysis—it can’t be that that’s the commandment. So Rabbi Chaim Vital’s claim is that there is no point in commanding character refinement, and that character refinement is a condition for your being subject to command. But Rabbi Kook goes one step further and says: no, more than that—if they had commanded you to refine your character traits, it would have ruined it. Because then you’d be like that fellow with the dating. You’d basically refine your character because there’s a paragraph in the Shulchan Arukh that says you need to refine your character. Your character would not be refined that way. It’s like Adam HaKohen—there’s a story about the maskil Adam HaKohen, right, who wanted to repent on his deathbed in order to refute the saying of the Sages that “even the wicked, at the entrance of Gehinnom, do not repent.” Meaning, yes, so you can’t—these are the kinds of actions you can’t do like that. Meaning, if you truly repent, then you repented. If you don’t repent because you’re only doing it to refute a saying of the Sages, then you didn’t repent, so you didn’t refute the saying of the Sages. In other words, yes, there are certain things that cannot be merely technical actions. It just doesn’t work like that. So when you refine your character because there’s a paragraph in the Shulchan Arukh that says you need to refine your character, then your character is not refined. Meaning, refining one’s character is something that is supposed to come from your understanding that this is what a human being ought to look like. And therefore, Rabbi Kook says, not only did the Torah not command it because there was no need to command it, or simply because it was impossible to command it, but because it would have ruined it. If they had commanded it, then I would do it as one who is commanded and acts, while the Torah says that in these particular cases, greater is one who is not commanded and acts. Okay? How should one study Rabbi Kook? If it speaks to you, then it has value, and if not, then not. Torah in the person—that’s what I called it in a number of places. Subjective Torah, yes—that if it speaks to you, then good. And if it speaks to you, then The Critique of Pure Reason is about the same; in my eyes it’s the same thing. Philosophy or literature or whatever it may be. Anyway, so that’s regarding the… So what does that actually mean? I’m now returning to our line of thought, closing the parentheses. It basically means that around Jewish law there are additional peripheral circles of obligations or prohibitions that are not part of formal Jewish law, but the Torah still expects us to do them. Here I say: the Torah does not command us to do them, but expects us to do them. There is no command. Okay? Therefore “and you shall do what is upright and good,” for example—which is somewhat similar to “you shall be holy,” but that speaks about morality, while “you shall be holy” speaks about human values, not moral values. In both of these cases, they are not included in the count of the commandments. No one who counts the commandments includes them. Neither “and you shall do what is upright and good” nor “you shall be holy” in Nachmanides’ sense. Why? Because, as I said earlier, since there are things that by their essence lie outside Jewish law, the moment you establish them as positive commandments, then they will no longer be outside Jewish law. So I return to our issue. This means that a non-obligatory positive commandment—one that is fulfilled if done—apparently I would have expected it to be something that is simply an act of piety: if you want, do it; if you don’t want, don’t do it; but there is no obligation upon you to do it. So in what sense is it a commandment? It’s not a commandment. It’s an act of piety. It’s outside Jewish law. It’s an expectation of the Torah, not a command of the Torah. So why is such a thing nevertheless defined as a positive commandment? That’s actually the question I wanted to ask. So here I want to bring a few examples before I continue. What are examples of non-obligatory positive commandments—positive commandments fulfilled if done? Does anyone know of any? The four species? An example of a non-obligatory positive commandment. The four species. The four species—is that obligatory? The four species you are obligated in; if you don’t do it, you have neglected a positive commandment. A non-obligatory commandment means that if you didn’t do it, nothing happened. “The soul of every living being”?

[Speaker C] No,

[Rabbi Michael Abraham] that’s not a commandment at all, with all due respect. Okay, so that’s already an example that starts getting closer. It’s not correct—we’ll soon see—but it’s beginning to get closer. Meaning, he is suggesting—Elimelech, right?—shechitah, ritual slaughter. Why does shechitah look like an example of a non-obligatory positive commandment? If you don’t want to eat, then don’t eat, but if you want to eat, then you need to slaughter properly. Right? Basically, if you did it, you have a commandment; if you didn’t do it, nothing happened. Okay, but that’s not correct. In a moment I’ll explain why not. There are various examples. Tzitzit—some people bring that as an example of a non-obligatory positive commandment. If you don’t want to, then don’t wear a four-cornered garment and you won’t become obligated in tzitzit. If you wear a four-cornered garment, you become obligated. That too is not correct. There are a few examples, but they are partial examples. For instance, the commandment of Torah study. The Talmud says—Rabbi Shimon says—that reciting the Shema morning and evening fulfills one’s obligation. Yes, one chapter in the morning and one chapter in the evening. A Talmud in Menachot 99, and Rabbi Shimon says: even if one recited the Shema morning and evening, he has fulfilled his obligation. What about everything else? Everything else is apparently a non-obligatory commandment. Meaning, if you did it—if you studied Torah beyond one chapter in the morning and one chapter in the evening—then you fulfilled the commandment of Torah study. If you didn’t do that, then you have not neglected a positive commandment. Yes, so what is the concept of wasting Torah study time? That’s a topic in itself; I don’t want to go into it now, but it is not a halakhic concept, the concept of wasting Torah study. On the halakhic level, there is no neglect of a positive commandment if you don’t study Torah aside from reciting the Shema morning and evening. So that’s one example. A second example is the commandment of charity. Maimonides says: one should not give less than a third of a shekel per year. But beyond a third of a shekel, if you gave, you have a commandment; and if not, nothing happened. So that is a non-obligatory commandment. Yes, there are a few more examples. But notice what all these examples have in common. What they have in common is that these are commandments with a minimal threshold that you are obligated to perform, and that obligation is positive—it is not merely non-obligatory. Beyond that minimal threshold, it becomes a non-obligatory commandment. Meaning, if you do more than the minimum, you have a commandment; if you don’t do it, nothing happened. But at the minimum, you are obligated to do it. Meaning, if you didn’t do it, then there is a claim against you—that is neglect of a positive commandment, okay? Is there a non-obligatory positive commandment that is entirely non-obligatory? Not beyond some minimal threshold, but entirely non-obligatory. At first glance, there isn’t. And that’s surprising—people don’t know this so well—but at first glance there isn’t. There is no such non-obligatory positive commandment in Jewish law. There is a suggestion by Rabbi משה Feinstein—Rabbi Moshe Feinstein—he claims that the commandment of settling the Land of Israel is a non-obligatory positive commandment. That whoever does it has a positive commandment, and whoever doesn’t do it—nothing happened. And here there is no minimal threshold, meaning this whole commandment is non-obligatory. And Rabbi Avraham Shapira has a section in his book where he debates him and argues: what are you talking about? Not only because he understands the commandment of settling the Land of Israel differently, but because he argues that there is no such category in Jewish law. There is no commandment in Jewish law that is entirely non-obligatory. Meaning, there are commandments that have a minimum threshold, and beyond that it is non-obligatory. There are different levels of fulfillment. But there is no commandment that is entirely non-obligatory. That’s his claim. And the truth is that at first glance he is right. Meaning, factually, I don’t think there is any entirely non-obligatory positive commandment in Jewish law.

[Speaker C] But what is Rabbi Feinstein’s claim?

[Rabbi Michael Abraham] He claims that there is one—what do you mean, what is the claim?

[Speaker C] The claim. And why here is it non-obligatory? What brings in the…

[Rabbi Michael Abraham] Why do we interpret it that way? Why, in Torah study, do we interpret it that only the Shema in the morning and evening is obligatory, and from there on it’s non-obligatory?

[Speaker C] Because there is a threshold. I’m asking: where does he get the novelty that there can be a non-obligatory commandment without a threshold?

[Rabbi Michael Abraham] Why shouldn’t there be? In principle I don’t see any reason it couldn’t exist. Just as the threshold can be at zero—as opposed to a third of a shekel—it could also be zero. What? Why only in settling the Land of Israel? Why did he come out with it there and not elsewhere? The fact that there is—it’s like “the tanna taught and omitted,” and then the Talmud asks: what else did he omit, that he omitted this? Meaning, when the Talmud brings a list of things, people ask: wait, but there’s something else, and the Talmud says: “the tanna taught and omitted.” As if—this thing wasn’t included, but it’s also there. So the Talmud asks: what else did he omit, that he omitted this? What does that mean? People always say: wait, if he omitted, then there has to be something else he omitted. One never omits only one thing. If you’re already omitting, there has to be something else you omitted. Why? Apparently because you don’t abbreviate by making a list and removing one item. That isn’t really shortening the list. If you abbreviate, then apparently you omitted more than one item. Otherwise there’s no point—just bring the full list already; why play games? Right, so you’re basically saying: if there’s only one example, then it can’t be—it has to be at least two examples for the category to stand. But no. When we make an abbreviated list, then yes, there’s logic in saying you don’t abbreviate a list by one item. But there can be a category in Jewish law that has only one item. So you can ask—

[Speaker C] Why specifically this one? Why is it the only category?

[Rabbi Michael Abraham] Fine, that’s an interpretive question. The question is why specifically in this commandment he came out with that. I don’t remember his reasons right now. But in any case, there is a dispute here among these later authorities. There is a dispute about the commandment of settling the Land of Israel, but the dispute is of course a deeper one: whether there are any commandments in Jewish law that are entirely non-obligatory. But there are commandments that have a threshold from which onward they are non-obligatory. Those are the examples I brought earlier. Now I asked: why is such a thing defined at all as a commandment? What is the difference between it and an act of piety? After all, you are not obligated to do it. If you did it, you did something good. So it’s an act of piety. In what sense is it a commandment? We’re discussing the question of what commandments are; that’s our topic here. So in what sense is it a commandment? The claim is that there is a difference between a commandment and a good deed. That difference is categorical. Meaning, true, if you did it then it’s a good deed, and if you didn’t do it nothing happened—but if you did it, it’s not just a good deed; you fulfilled a commandment. And if you remember, at the beginning, when I spoke in the introduction, I discussed the claim of the Ramchal and Rabbi Elchanan Wasserman that every commandment and every transgression has two aspects. In a commandment, for instance, there is the aspect of obeying the command of the Holy One, blessed be He, and there is the aspect of the rectification that the commandment is supposed to bring about; that’s why we were commanded, because it produces some positive result. Okay? And a transgression is the same. Meaning, when I commit a transgression, first, I rebel against the command, and second, there is something problematic here; that’s why we were commanded not to do it. Now, when I speak about a non-obligatory positive commandment, my claim is that when you perform that commandment, then you have both obeyed a command and also gained some benefit from the act. Okay? Therefore it is a commandment. Something beyond the strict letter of the law has only the benefit that the act brings, but you are not responding to a command. There is no command regarding something beyond the strict letter of the law, because it is not law; we were not commanded about it. So therefore, even if the commandment is non-obligatory, it is still defined as a commandment. It is not just a good act; it is a commandment. There is a categorical difference between those two things. For example, I’ll give you a practical implication. The Ra’avad, at the beginning of his commentary to Sifra, discusses the question whether a non-obligatory positive commandment overrides a prohibition. Say, for example, women laying hands voluntarily on an offering. Women who lay hands on an offering—there is a dispute, but there is a view that says this is only optional for them. They are not obligated to do semikhah; it is only optional. Does that override the prohibitions of a Jewish holiday? This commandment of women—since it is a positive commandment… says the Ra’avad: since for women this positive commandment… no, not time-bound, sorry. Women laying hands is optional, it’s only optional—so apparently we would have expected that it does not override a prohibition. When you have a positive commandment, it overrides a prohibition, but here you have no command; it’s a good deed. You don’t do good deeds at the expense of prohibitions. The Ra’avad says: such a commandment does override a prohibition. Yes. The same is true of positive time-bound commandments for women. Positive time-bound commandments—for women, according to almost all the medieval authorities, are permitted and appropriate. There are some who say that women even recite a blessing on them; that’s already in the Rema and the Mechaber. But certainly there is value in their doing them. One might have thought that the fact that there is value in their doing them still does not mean it’s a commandment; perhaps for them it is like a moral act, an act that is an act of piety, okay? But the claim that emerges here from this Ritva is no—it is a real commandment. It’s just that for women, positive time-bound commandments are non-obligatory rather than obligatory, but they are still commandments and not merely good acts. And here is the implication: when I fulfill it at the cost of a prohibition, I can—not just can, I should—well, “should” never applies because it’s non-obligatory, but I can do it at the cost of a prohibition. The rule “a positive commandment overrides a negative one” applies here, because there is a positive commandment here. About a good act, an act of piety, no one would ever say to you: do this even at the cost of a prohibition. That does not override prohibitions. So here is an example, or an implication, of the claim that this is truly a commandment and not just a good act. Now, okay, so we saw examples of non-obligatory positive commandments, or at least commandments that become non-obligatory from a certain threshold onward. And now I still owe you an explanation why shechitah or tzitzit are not good examples of this. Try to think about it.

[Speaker B] Because there’s basically no threshold there?

[Rabbi Michael Abraham] No, no, unrelated to the threshold. I’m asking why tzitzit would not be a commandment like settling the Land of Israel—without a threshold. A non-obligatory positive commandment with no threshold, like Rabbi Moshe Feinstein’s understanding of settling the Land of Israel. What is the difference between Rabbi Moshe Feinstein’s commandment of settling the Land of Israel and tzitzit? Because there is—

[Speaker E] neglect of a positive commandment.

[Rabbi Michael Abraham] What do you mean?

[Speaker E] Rabbi compared it to Torah study, that if you didn’t do more then there isn’t—meaning if you did beyond the threshold, then beyond the threshold it’s not neglect of a positive commandment. But tzitzit is neglect of a positive commandment if you don’t do the—

[Rabbi Michael Abraham] it. Fine—if the condition exists, let’s put it that way. In the commandment of tzitzit, you’re right. Let’s take the commandment of tzitzit. The rule is basically this: if I wear a four-cornered garment, I have to put tzitzit on it. But I’m not obligated to wear a four-cornered garment. Meaning, if I didn’t wear one, then I’m not obligated in tzitzit, okay? So apparently—and this is how a number of later authorities express it—apparently that is a non-obligatory positive commandment. But that’s a mistake. It is not a non-obligatory positive commandment; it is a conditional obligatory positive commandment. What’s the difference between them? In a non-obligatory positive commandment, there is fulfillment of the commandment, but there is no way to neglect that positive commandment. It is a positive commandment for which neglect does not apply; neglect of a positive commandment is not defined for it. In tzitzit, neglect of a positive commandment is defined. If I wear a four-cornered garment and do not put tzitzit on it, I have neglected a positive commandment. That means that the positive commandment of tzitzit is one that can be neglected. Not like settling the Land of Israel, where if—according to Rabbi Moshe Feinstein—if you decide not to come to the Land of Israel, nothing happened. There is no way to neglect this positive commandment of settling the Land of Israel according to Rabbi Moshe Feinstein. Or giving charity beyond a third of a shekel a year—there is no way to neglect that positive commandment. You can fulfill it; you cannot neglect it. But in conditional positive commandments like tzitzit and the like—those, or shechitah or whatever—all of those are fully obligatory conditional positive commandments.

[Speaker C] Wait, and what about everything we said about Torah study? I mean, in Torah study really not neglecting the minimum—and that turns into something that can’t be neglected because what?

[Rabbi Michael Abraham] No. Up to the minimum I can neglect it. Beyond the minimum, if I did it, I have a commandment; if I didn’t do it, there is no neglect.

[Speaker D] And what about “you shall surely set over yourself a king”?

[Rabbi Michael Abraham] What about it?

[Speaker D] A non-obligatory commandment?

[Rabbi Michael Abraham] In the simple sense, that is an obligatory commandment.

[Speaker D] But if from the outset the circumstances were not obligatory? What are called the circumstances?

[Rabbi Michael Abraham] Appointing a king? That’s all the debates there—if the people asked for it, was that okay? Samuel versus the Torah. In the simple understanding, it’s an obligatory commandment. The question is what happens with Samuel, and the fact that Samuel rebukes them and so on. There are various explanations for that. It may be that he rebuked them because they wanted a king “like all the nations,” not because they wanted a king. The fact that they wanted a king—that is a commandment from the Torah, a king. “Three commandments were commanded to Israel upon their entry into the Land,” one of them is appointing a king. It’s hard to claim that this is not an obligatory positive commandment. Abarbanel, I think, wants to claim otherwise, but that was probably part of his biography—he suffered greatly from kings, so he somehow interprets it more in the direction of the book of Samuel, that this whole story was only a response to a whim or an improper desire of the people. But even if that were true, by the way—here’s another example, since you reminded me—what about the beautiful captive woman? The beautiful captive woman is also a passage that, basically, was only said against the evil inclination. A non-obligatory positive commandment is a commandment such that if you do it, you have a commandment. Here, you are only permitted to do it, even though it would not have been proper to do it. But not that if you did it you have a commandment—quite the opposite: if you did it, it’s not good. It’s just that I don’t define it as a transgression, because the Torah spoke against the evil inclination. It is willing to go along with us, to compromise with our impulses. So in any event, that is not a non-obligatory positive commandment. All right? But in any case, positive commandments—conditional positive commandments—like tzitzit, like maybe divorce, shechitah, something like that, are fully obligatory positive commandments. They are fully obligatory positive commandments, and the indication of that is that these positive commandments can be neglected. A non-obligatory positive commandment cannot be neglected even if you want to. There is no way to neglect a non-obligatory positive commandment. But in these commandments, they can be neglected. True, my obligation in these commandments is conditional upon the existence of certain circumstances. For example, in tzitzit, that I am wearing a four-cornered garment; in shechitah, that I want to eat meat; in Grace after Meals, that I ate to satiety—only then do I need to recite a blessing. I can choose not to eat to satiety and then not recite it, and there is no problem with that. No one would think to say that those commandments are non-obligatory positive commandments. But really these are fully obligatory conditional positive commandments, exactly like tzitzit, even though regarding tzitzit various people say that it’s a non-obligatory positive commandment. That’s a mistake. In tzitzit it’s exactly like Grace after Meals; there is no difference. In both cases, it is a positive commandment that is imposed on you when certain circumstances occur. If you ate to satiety, you must recite Grace after Meals. If you wore a four-cornered garment, you must place tzitzit on it. If you want to eat—shechitah. Or on the other days of Sukkot—if you want to eat, eat in the sukkah, and so on. So all of those are obligatory conditional positive commandments. Tefillin, for example, is not an obligatory conditional positive commandment; it is an obligatory unconditional positive commandment. Every day you have to put on tefillin; it isn’t conditional on certain circumstances coming about. But there are positive commandments that are fully obligatory: if you perform them, you have fulfillment of a positive commandment; if you don’t perform them, you have neglected a positive commandment. It’s just that the commandment takes effect, or is constituted—yes, is constituted—only when certain circumstances occur, and not all the time. Fine, that’s just part of the definition of the commandment, but it is an obligatory positive commandment. Therefore it isn’t even another category; it is simply another kind of obligatory positive commandment. It is absolutely not a non-obligatory positive commandment. The identification of the two is a big mistake; it is not correct.

[Speaker D] So if the commandment depends on something, then it would be a non-obligatory commandment? Again? So if the commandment depends—for example, sending away the mother bird only if you go to a place where there is a bird. Right. So would that be a non-obligatory commandment?

[Rabbi Michael Abraham] No. No. That would be a conditional obligatory commandment. Because the moment you are in those circumstances, you are obligated to send away the nest. If you didn’t send away the nest, you have neglected a positive commandment. A non-obligatory positive commandment is a commandment that you cannot neglect even if you want to, in any circumstances. Neglect of a positive commandment is not defined for it; only fulfillment is fulfillment, but non-fulfillment is not neglect. And in all these commandments—sending away the nest, tzitzit, shechitah, Grace after Meals, all these things—there is neglect of a positive commandment. If the circumstances existed and you did not fulfill the commandment you were supposed to fulfill, then you neglected a positive commandment. A commandment that can be neglected is not non-obligatory; it is an obligatory commandment. The thing that confuses people is that this commandment is a conditional obligation, and you are not obligated to enter the circumstances in which you will become obligated in the commandment. But if you are in the circumstances, then you are fully obligated, and if you didn’t do it, that is neglect of a positive commandment. Okay? Therefore it is not a non-obligatory commandment. A non-obligatory commandment is one whose performance is in my hands. A conditional obligatory positive commandment is one where being in the circumstances that obligate me is in my hands, but the obligation itself is not. The obligation itself is not in my hands. If I’m already in those circumstances, then I am obligated, and that does not depend on me. Okay? The Talmud says regarding the commandment of tzitzit—in Menachot—“an angel found Rav Ketina covered in a garment” that was exempt from tzitzit. He said to him: “Ketina, Ketina—summer cloak in the summer and winter coat in the winter—what will become of the tzitzit of tekhelet?” In every season you choose for yourself some garment that is exempt from tzitzit. Yes, like the story about Yeshayahu Leibowitz—that on the 14th of Adar he was in walled cities and on the 15th he traveled to unwalled cities. That’s a legend, by the way; it isn’t true. But here too, he made every possible maneuver to exempt himself from the obligation of tzitzit. So the angel says to him: “What will become of the tzitzit of tekhelet?” He said to him: “Do you punish for neglecting a positive commandment?” Meaning, what’s the problem? He said to him: “At a time of wrath, we do punish.” Of course he means, “Do you punish for neglecting a positive commandment?”—meaning for a non-obligatory positive commandment, or a positive commandment, yes, not non-obligatory, but in a situation where there is no neglect of a positive commandment. Without a four-cornered garment, I’m not obligated to put tzitzit on it, so if I didn’t put tzitzit on and I’m wearing a garment that isn’t four-cornered, then I have not neglected a positive commandment. That’s what he asked him: “Do you punish for neglecting a positive commandment?” Because if we were talking about a fully obligatory positive commandment, then obviously why shouldn’t they punish? In the heavenly court, a person is punished for neglecting an obligatory positive commandment. If you wear a four-cornered garment and didn’t put tzitzit on it, then you have neglected a positive commandment. That was not the question. “Do you punish for neglecting a positive commandment?” means: do you punish me for not fulfilling the positive commandment? Do you punish me for negating the commandment or for simply not fulfilling it? Okay, that is basically Rav Ketina’s question. So he says to him: “At a time of wrath, we punish.” And from here everyone derives support to go around with a four-cornered garment and become obligated in tzitzit, as we do today—yes, we wear a four-cornered garment in order to become obligated in tzitzit. But actually that’s not correct. Actually it’s not correct; several medieval authorities already wrote this, and I think it’s the plain meaning of the Talmud. Several medieval authorities wrote this. Clearly, someone who does not go around with a four-cornered garment is not punished—not in a time of wrath and not in a time without wrath and not under any circumstances. Rather, where the normal practice is to wear a four-cornered garment and you choose another garment in order to escape the obligation of tzitzit—in an ordinary situation, fine, you pulled a trick; in a time of wrath, they will punish you. Okay? But if you wear another garment because that’s what you want, that’s the garment you wear—today nobody normally wears a four-cornered garment; only people who want to become obligated in the commandment of tzitzit put on a four-cornered garment, and it’s in addition to the shirt, not instead of the shirt, only in order to become obligated in the commandment. So if someone doesn’t do that, then obviously they do not punish him, even in a time of wrath. Why would they punish him? He is simply dressing normally, that’s all. That is the whole meaning of the rule that I am not obligated in tzitzit if I’m not wearing a four-cornered garment. Okay? So the claim here basically is that this illustrates the point that in a conditional obligatory positive commandment there are two levels. I can avoid fulfilling the condition that obligates me in the commandment, and then I’m not in the game at all—that’s neither neglect of a positive commandment nor anything else. In a time of wrath, if I do that as a trick, then they will punish me. If I do it as my normal way, then that too is fine. But if I am in the obligating circumstances and do not fulfill the commandment, then that is neglect of a positive commandment like any obligatory positive commandment. Okay? Those are two different levels. And why was Rav Ketina punished like that? What?

[Speaker D] Because it was Rav Ketina—why was he punished like that?

[Rabbi Michael Abraham] I don’t know. He wanted to escape the commandment of tzitzit. You know why? Was it the local custom—

[Speaker D] in that place not to wear four-cornered garments?

[Rabbi Michael Abraham] The question is whether he did something that was the local custom. Apparently not, because otherwise Elijah the Prophet—the angel—wouldn’t have told him that they punish him in a time of wrath. If he says to him that they would punish him in a time of wrath, then apparently he sees his conduct as evasion. Meaning, basically, it was a garment—he could have, or it was accepted to wear garments that were obligated in tzitzit, and he chose garments that were not. Fine? So that is what the angel tells him: know that in a time of wrath they punish for this, even though you played a trick and exempted yourself. Okay, that is basically about—

[Speaker B] every conditional obligatory positive commandment?

[Rabbi Michael Abraham] Yes, yes, I think it’s not specific to tzitzit; I think it’s general. I’m saying: a conditional obligatory commandment—if you make sure not to eat to satiety so as not to become obligated in Grace after Meals, then I think it would be the same thing. I see no reason to say it’s specifically about tzitzit.

[Speaker D] For example, traveling to a rainy place during Sukkot?

[Rabbi Michael Abraham] If you want to travel there anyway, there’s no problem at all. But if you travel there in order to exempt yourself from the sukkah, it’s the same thing—that’s “in a time of wrath they punish.” Fine—again, I don’t know, who knows what exactly “in a time of wrath” means, whether they punish or don’t punish. It’s meant to say that it isn’t proper. I don’t care right now whether they punish or not. Practically speaking, it’s not proper. Meaning, don’t do tricks to exempt yourself from commandments, even though in principle you really are exempt. Meaning, if you are in different circumstances, then you are exempt. But they tell you: no, it’s not proper to do such a thing. Is… I haven’t heard of that. So what? Then it’s fine—what’s the problem?

[Speaker C] In two weeks—moving on, so we don’t forget. It’s not worthwhile to dodge the burden. What about the commandment to marry a woman? There isn’t one.

[Speaker D] There’s no commandment to marry a woman in principle.

[Rabbi Michael Abraham] There is a commandment to be fruitful and multiply; kiddushin only permits it.

[Speaker D] So I always have the option, heaven forbid, to neglect it—not marry a woman, not bring…

[Rabbi Michael Abraham] Neglect it—what’s the question?

[Speaker D] Is there here “in a time of wrath”?

[Rabbi Michael Abraham] No, there too—even without a vow—you got married.

[Speaker D] I can come and say I’ll do it at a later stage.

[Rabbi Michael Abraham] Why would there be… At a later stage—then do it, no problem. But if you don’t do it, that’s another question. It could be that if I postpone a commandment, then maybe you don’t have the virtue that the diligent perform commandments early—you didn’t do it as early as possible—but at some point, do it. If in the end you don’t do it at all, then you neglected a positive commandment. Will you be punished for that? Not “in a time of wrath.” Now, with kiddushin, that is not the neglect of the positive commandment; rather, it permits procreation. Kiddushin is not itself a positive commandment. True, Maimonides counts a positive commandment of kiddushin, and everyone thinks Maimonides sees it as a commandment unlike other medieval authorities—they make it into a dispute among the medieval authorities—but I think that’s not correct. Later on he counts all kinds of commandments there that aren’t really commandments in the standard definitions. Yes, another example: divorce. What happens with the commandment of divorce? An important commandment, right? That he should divorce his wife with a get; there is a commandment upon every person to divorce his wife with a get. How do we define that commandment?

[Speaker E] Like shechitah?

[Rabbi Michael Abraham] What? That it’s also a conditional obligatory positive commandment? Actually it’s not so simple, but okay, let’s leave that for another moment—I’ll get to it in a moment. All right?

[Speaker E] You don’t start with divorce because it costs you 50% of your money.

[Rabbi Michael Abraham] Huh? It costs you 50% of your money, so you don’t start with divorce. Then don’t pay the 50% of your money. What can I tell you? Then don’t pay. If they compel you, then apparently that’s what needs to be done. If it doesn’t need to be done, then they won’t compel you to do it. It’s not—you know—it’s like Rabbi Chaim, the story about Rabbi Chaim, where a yeshiva student came to him and said: look, according to Jewish law we rule that one honors one’s parents from their means and not from mine. There’s a dispute in the Talmud, and according to Jewish law we rule that one honors one’s parents not from my money but from their money. Okay? So he asked him: should I travel to my parents during bein hazmanim to visit them? The train costs a lot of money and so on, and they didn’t give me money for it, so I’m not supposed to do it—it’s from their means and not from mine. He told him: you’re right—go on foot. Now there’s something in that that isn’t totally silly. The question is whether the money for the train you are spending is for them or for yourself. From their standpoint, you can walk. You want it to be convenient for you, so you go by train; then you’re paying for yourself, not for them. Yes, it’s a bit similar to what you said here. You have to divorce your wife when the religious court decides that you must, or not necessarily that—say you decided to divorce her. What happens afterward will happen, fine. If you have to pay, then the religious court will decide whether you need to pay or not. If the religious court decided yes, then you need to pay. By the way, even when the religious court says that you need to pay, in the simple sense you have to pay because that money is hers. You are not giving her money from your own. That money is hers. Half the money belongs to her and half belongs to you. So it isn’t called that you are transferring half your assets to her; you are simply dissolving the partnership and giving her her half and taking your half. Anyway, so in the meantime we’ve seen two kinds of commandments here: obligatory commandments and non-obligatory commandments, and conditional obligations are just another kind of obligatory commandments. Okay? What is the difference? We have obligatory commandments—these are commandments such that if I fulfill them, I have fulfillment, and if I neglect them, I have neglect of a positive commandment. Non-obligatory positive commandments are commandments such that if I fulfill them, I have fulfillment; if I neglect them, nothing happened. Right? Now of course basic combinatorics tells you that there ought to be two more kinds. There ought to be two more kinds. One kind would be commandments that can be neglected but cannot be fulfilled, and a fourth kind would be commandments that can neither be neglected nor fulfilled. Right? Those are the four possibilities. Commandments that can be fulfilled and neglected are obligatory commandments. Commandments that can be fulfilled but cannot be neglected are non-obligatory commandments. Now, do we have the other two kinds as well—commandments that can be neglected but cannot be fulfilled, and commandments that can neither be neglected nor fulfilled? What? Is there—I’m asking—are there commandments of those two kinds? You’re saying there is a commandment of the third kind. Commandments that can be neglected but cannot be fulfilled—are there such things? What do you say?

[Speaker D] If it can’t be fulfilled, then it won’t be a commandment for us in the first place.

[Rabbi Michael Abraham] No, not “can’t be fulfilled” in the impossible sense, but rather that if you do it, you don’t have a commandment—only if you don’t do it do you have the transgression of neglecting a positive commandment. No, it’s not a negative commandment; I’m talking about positive commandments.

[Speaker E] Positive commandments that are physically passive omissions?

[Rabbi Michael Abraham] Why? That’s unrelated. I said fulfillment and non-fulfillment are unrelated to the practical mode of action. Fulfillment and non-fulfillment are normative. Is… what? What do we have here? What?

[Speaker C] A parapet?

[Rabbi Michael Abraham] You could say there’s no commandment to do that. What? A guardrail? You put a guardrail on your roof—what do you mean? There’s “do not place blood in your house,” that’s the prohibition, but there’s also the positive commandment of “and you shall make a guardrail for your roof.” That’s a positive commandment in every respect, obviously. There’s what’s called in the Talmud a prohibition derived from a positive commandment, or among the later authorities they call it a positive-command prohibition. That’s this. For example, yes, it says: “And the Sabbath produce of the land shall be for you to eat, for you and for your servant and your maidservant and your hired worker and your resident who dwell with you.” Yes, this is talking about Sabbatical-year produce. Okay. So basically from here we learn that there is, ostensibly, a positive commandment to eat Sabbatical-year produce, right. But the Sages in several places—the Sages in several places—learn from here a whole series of prohibitions. “To eat” and not for commerce, “to eat” and not for waste, yes—that it is forbidden to trade in Sabbatical-year produce, forbidden to waste Sabbatical-year produce, and so on. Medicinal applications and all kinds of things like that. So apparently, on the face of it, what would have been expected was to say that when you eat Sabbatical-year produce you’ve performed a commandment, and when you traded with it you did something that is not eating, so you’ve neglected a positive commandment. But no—it turns out not to be so. It turns out that the Sages see this as a prohibition derived from a positive commandment. If you ate Sabbatical-year produce, nothing happened—you didn’t perform a commandment. But if you didn’t eat it and instead made some other use of it, then you committed a transgression—and it’s not a transgression of a prohibition; it’s a transgression of neglecting a positive commandment. “A prohibition derived from a positive commandment is a positive commandment,” as the Talmud says. We rule that a prohibition derived from a positive commandment is a positive commandment. Meaning, if I violated this prohibition, yes, this ban, then I have neglected a positive commandment, not violated a prohibition. So that means that if I eat Sabbatical-year produce, then I didn’t perform a commandment, but if I traded with it, then I neglected a positive commandment. And that’s called a prohibition derived from a positive commandment.

[Speaker C] Are women exempt from eating the produce? What?

[Rabbi Michael Abraham] If it were time-dependent? Interesting question. My guess is that the halakhic decisors would say no, because it’s a prohibition, but I don’t know. It needs checking—interesting question, I hadn’t thought of it. So basically this is the third category. Right—a non-obligatory fulfillment commandment is a commandment such that if I fulfill it, I have performed a commandment; if I neglect it, I have not neglected a positive commandment. These commandments are the opposite: if I neglect them, then I have neglected a positive commandment, but if I fulfill them, I have no fulfillment. Fine. Now what is this… how do you read that into the verse? It says, “And the Sabbath produce of the land shall be for you to eat,” ostensibly that’s a positive commandment. A description.

[Speaker D] No, if—

[Rabbi Michael Abraham] If it’s a description, then it’s also not a prohibition derived from a positive commandment, so then it’s just a description. But there is a command here. You just have to add a word. “And the Sabbath produce of the land shall be for you only to eat.” And not for waste, not for commerce, and not for other things. You have to add the word “only.” Whenever reading the… that’s how the Sages interpreted the verse; never mind now why they interpreted it that way or what their criteria were—I don’t know that either. But that’s how they interpret these verses that are a prohibition derived… For instance, it says, “You may lend with interest to a foreigner,” right? There is a prohibition against lending with interest, but “you may lend with interest to a foreigner,” so Maimonides writes that this is a positive commandment to charge a foreigner interest, to lend to him with interest. But the accepted view is not like that. Rather, “you may lend with interest to a foreigner” is a prohibition derived from a positive commandment. What does that mean? If you lend to a Jew with interest, then besides the prohibition of usury and increase that you violated, you have also neglected the positive commandment of “you may lend with interest to a foreigner.” If you’re already… if you’re already charging interest, charge interest to a foreigner—or only to a foreigner shall you lend with interest, and not to a Jew. Okay? If you’re already making use of the produce, then make use of it in a way of eating. Don’t use it for commerce or waste. But you are not obligated to eat the produce, and there’s no commandment even if you do eat it. By the way, there are claims that according to Nachmanides there is a commandment as well, and then it’s really a positive obligation to eat Sabbatical-year produce. I’m not sure people are right about that, because people think that the moment it’s counted as a commandment, then there’s a commandment here. But that’s not correct. A prohibition derived from a positive commandment is a positive commandment, and it enters the count of the commandments as a positive commandment, even though it has only a neglect side and no fulfillment side. So the fact that people talk about it as a commandment does not necessarily mean there’s actually a commandment here. Therefore Maimonides, for example, counts betrothal as a positive commandment. And therefore many later authorities argue that there is a dispute between him and the Rosh, because the Rosh says that it only permits procreation. There is no commandment of betrothal, but on the way to procreation you need to do it through betrothal. And Maimonides, who counts it as a positive commandment, therefore disagrees with the Rosh. Not true. It’s true that he counts it as a positive commandment, but that doesn’t mean that we are commanded regarding betrothal. We’ll see later that for Maimonides there are other categories of positive commandments that appear in the count of the commandments. So therefore there’s a whole list here. Another example: there is a commandment to inspect the signs of pure and impure animals. So what now? Is there really some value in my having to check that pure animals are pure? Did I fulfill a positive commandment if I check? No. Only if I ate an animal and didn’t check its signs, and it turned out that it was impure, right? Then besides the prohibition I violated, I also neglected the positive commandment of checking its signs. But it’s not that there is a positive commandment to check signs. If you don’t want to, don’t check—nobody cares. Only if you ate and it turned out that had you checked you would have avoided it, then besides the prohibition you also have the neglect of the positive commandment of checking the signs of purity. So we talked about “you may lend with interest to a foreigner” and so on. Okay. So this basically means that we have a third type of commandment, called a prohibition derived from a positive commandment. And notice: even though it’s only a prohibition, the fulfillment is not a fulfillment—only the neglect is a transgression—but the transgression is a transgression of neglecting a positive commandment, not a transgression of a prohibition. That’s why a great many people get tangled up with the question in what sense a prohibition derived from a positive commandment is a positive commandment. After all, it’s a prohibition, meaning it designates a certain act as forbidden, and if you don’t do it you have no commandment. That’s exactly the definition of a prohibition, no? So in what sense is a prohibition derived from a positive commandment called a positive commandment? The answer is that when you violate this prohibition, you haven’t really violated a prohibition; rather, you have only neglected a positive commandment. The kind of transgression is different. It’s not a prohibition-transgression, but a transgression of neglecting a positive commandment. Even though there is only transgression here and no fulfillment of a commandment, the transgression is of the type of neglecting a positive commandment and not of a prohibition. The transgression is not in not fulfilling the positive commandment, because there is no fulfilling the positive commandment. The transgression is in not doing an act—if you did the act, you would not be fulfilling the positive commandment, but if you didn’t do that act, then you neglected a positive commandment. Okay? And we’ll get to that distinction later, because the formulation I just gave is a bit tricky. Fine. There’s one last category left in our combinatorial calculation: commandments that cannot be fulfilled and cannot be neglected. Right? So what is there there, then? you’ll ask. Well, it turns out there are such things, at least in Maimonides. Positive commandment 95 is that we were commanded to adjudicate annulment of vows. Annulment of vows is by a husband for his wife, a father for his daughter. Meaning, the Torah instructed us to adjudicate these laws. Now notice Maimonides’ clarification: “And it is not the case that one is obligated to annul in every instance.” You are not obligated to annul your wife’s vows. “And this itself—understand from me every time you hear me counting one of the laws: there is not necessarily a command concerning one of the actions; rather, the commandment is that we are commanded to rule in this law regarding this matter.” Annulment of vows is a procedure; it’s not a commandment. It’s a procedure. If you want to annul your wife’s or daughter’s vows, this and this is how you do it. If you do it, it will be annulled. Okay? If you didn’t do it, you have not neglected a positive commandment. If you did do it, you have not fulfilled a positive commandment. Nothing. You can neither fulfill nor neglect. This is a halakhic definition. All these are definitional commandments. And this is the… definition: if you do it this way, the vow is annulled. If you don’t do it, the vow is not annulled. Okay? Same thing, commandment 96—that was 95. Commandment 96, literally the next one after it. Commandment 96: that we were commanded that anyone who touches an animal carcass becomes impure. “And this commandment includes the impurity of animal carcasses and all its laws. And I will now mention an introduction, which you should remember in all that we mention of the kinds of impurity. Namely: the fact that we count each and every kind of impurity as a positive commandment does not mean that we are obligated to become impure with that impurity.” Right, there is no obligation to become impure. “Nor are we warned against becoming impure by it, such that it would be a prohibition.” Not that either. We are not instructed yes to become impure, nor instructed not to become impure. “Rather, the fact that the Torah says that whoever touches this type becomes impure, or that this thing imparts impurity in such-and-such a manner to one who touches it—that is a positive commandment.” Meaning, that this law we were commanded in is a positive commandment. “And that is our saying that one who touches this in such-and-such a manner becomes impure, and one who is in such-and-such a condition does not become impure. And becoming impure itself—becoming impure itself—is optional. If he wishes, he becomes impure, and if he wishes, he does not become impure.” So again, here too there is basically a definition. Whoever touches a corpse is impure. Just a definition. You’re allowed to become impure, you’re allowed not to become impure; there’s no obligation and no prohibition here. It’s a definition. Okay? This is a definitional commandment. Now, you have to pay close attention: this definition has halakhic implications. For example, someone impure cannot enter the Temple. Okay? But the entering of impure people into the Temple is counted as a commandment in its own right. For that there is another commandment in the count of the commandments. Therefore the definition of who is impure and who is not impure is unrelated to all the other commandments; it stands on its own as a definitional commandment. All the halakhic implications of this definition have commandments of their own, counted separately in the count of the commandments. To eat terumah, not to touch terumah, not to enter the Temple, that a priest who is impure may not serve. There are many implications to being impure. But all those implications are counted separately in the count of the commandments. So why include this commandment? Because it is a halakhic definition. This halakhic definition enters the count of the commandments, and that’s what he says. And the wording of the Sifra is: regarding “you shall not touch their carcasses”—one might think, if a person touched a carcass, he should receive forty lashes? “You shall not touch” sounds like a prohibition. So if you touch a carcass, should you get forty lashes? Scripture therefore says: “and by these you shall become impure.” One might think that if a person sees a carcass he should go and deliberately become impure through it? So what is this—a positive commandment to become impure through it? Right, a positive commandment to become crazy, as they say? Scripture therefore says: “and their carcasses you shall not touch.” How so? You must say: it is optional. It is optional. If you want to become impure, fine; if you don’t want to become impure, fine. So what the Sifra is saying here is that there is a commandment that is completely optional. It can neither be fulfilled nor neglected. That is the fourth level, the fourth category. Okay? “And the commandment is what was said to us regarding this law: that one who touches this becomes impure and will be impure and will incur whatever impure people incur—to leave the camp of the Divine Presence, and not to eat sacred things and not to touch them, and the like. And this is the command, namely, his being impure by this type when he touched it, or when he was in such-and-such a circumstance. And remember this point in every kind of impurity.” All commandments of impurity are like this. So Maimonides says there’s a whole series of commandments here; only here does the explanation appear, but he’s speaking about all the commandments of impurity. Meaning, there is a whole series of commandments here, and annulment of vows as well, and others, that are definitional commandments. Now why is this a commandment? A commandment is something we are commanded about. If we are commanded that when we are impure we must not enter the Temple, then that is a commandment. But that commandment is counted separately. There is a commandment about that in the count of the commandments. In what sense is this definition itself a commandment? The explanation I think should be given here is this. What is Maimonides’ Book of Commandments? The Book of Commandments is basically a law book. Okay? Now in a law book, even of a state, there are sometimes laws that are definitions. For example: “A minor, for purposes of this law, is anyone who has not reached the age of sixteen.” Just a clause in the law book. That is law. Even though it’s only defining what a minor is and what a minor is not. There are other clauses in the law book that say what the status of a minor is, what he is obligated in, what is forbidden, and so on. But you need definitions. When you define the terms, that also appears in the law book. There are defining clauses; there are definitional laws.

[Speaker C] There’s that legal slogan that every law is just a command, and then they challenge it—so what do you do with laws that are descriptive?

[Rabbi Michael Abraham] That’s like details within the command—for example, what does the command apply to? Yes, I don’t think that’s such a big difficulty. But the fact is that there are such clauses in a law book, and those clauses, Maimonides says, for us—what is called the Book of Commandments—is basically the law book. “Commandments” is the halakhic term for laws. And if a law book can contain a definitional clause, then the Book of Commandments can also contain a definitional clause. Because it has halakhic implications. Meaning, from a halakhic standpoint it is important to know when you are impure and when you are not impure. And since the Torah—Jewish law—defines when yes and when no, that definition is called a commandment. Why specifically is it a positive commandment? Good question. “That we should adjudicate,” Maimonides says—maybe if we ask a halakhic authority, “Am I impure or not?” then he adjudicates the matter and says to me, “You are impure” or “you are not impure.” The commandment to adjudicate in this matter—perhaps that’s why Maimonides calls it a positive commandment. He could have put it under prohibitions too. Why?

[Speaker C] Because it could be a commandment. What? Could it be a commandment, like that you need to make a blessing? No, why?

[Rabbi Michael Abraham] Of course not. Eating is not a commandment.

[Speaker C] I mean, with the sukkah it’s a little similar, sort of.

[Rabbi Michael Abraham] No, eating is the condition that obligates me in the commandment of Grace after Meals. It’s not a commandment in itself. But here it’s a halakhic definition. The fact that I ate is not a halakhic definition—I ate. Obviously that’s a condition that obligates me; I can make excuses. Obviously. But this definition here—the thing that obligates me is not an action, not a physical state, but a halakhic state. Jewish law defines the situation. Once Jewish law has to define the situation—whether I eat or don’t eat is a fact; Jewish law doesn’t need to define when you are eating. But here, even the circumstances that obligate me in commandments are a halakhic definition. And that itself becomes a commandment for Maimonides, or is considered a commandment by Maimonides. Okay? So these are definitional positive commandments. Basically that means we have four categories of commandments. We have four categories of commandments. An obligatory positive commandment is a positive commandment that can be fulfilled and can be neglected. A non-obligatory fulfillment commandment is a commandment that can be fulfilled and cannot be neglected. A prohibition derived from a positive commandment, or a positive-command prohibition, is a positive commandment that can be neglected but cannot be fulfilled. And definitional commandments are commandments that can neither be fulfilled nor neglected. Let’s look for a moment at a few commandments to sharpen this further. What about eating in the sukkah on the other days of the festival? It’s not obligatory, but there is fulfillment in it.

[Speaker E] So what does that mean?

[Rabbi Michael Abraham] That it’s a commandment? Is it a positive-command prohibition?

[Speaker E] A prohibition derived from a positive commandment?

[Rabbi Michael Abraham] Is it a prohibition derived from a positive commandment? No, it’s a commandment—

[Speaker E] Conditional.

[Rabbi Michael Abraham] What do you say? There are arguments both ways. I agree with you, Achi’ezer, right? I agree with Achi’ezer. You’re right. There is a positive commandment: if you eat in the sukkah on the other days of the festival, you have fulfilled a commandment. True, unlike the first night—on the first night you are obligated to eat an olive-sized amount of bread, right? On the other days, if you don’t want to eat, don’t eat. But if you ate, you fulfilled a commandment: “In sukkot you shall dwell seven days.” There is no difference between the first night and the other days in this respect, that when you eat in the sukkah you fulfill a commandment. The only difference is that on the first night you must eat, and on the other days, if you eat, eat in the sukkah. Some people want to define this as a positive-command prohibition, as you said, Ariel. They want to define it as a positive-command prohibition. We’ll see later some implication of this issue, and then the claim is that basically you also don’t fulfill a commandment; it’s just forbidden for you to eat outside the sukkah. To my mind that’s absurd; I think that’s a mistake. It’s simply a lack of… once you don’t hold this map in front of your eyes, then you move too easily between the categories. When you see these four categories in front of you, it’s quite clear that eating in the sukkah on the other days is a conditional obligatory commandment. It can be neglected.

[Speaker C] No, “it can be neglected” is—

[Rabbi Michael Abraham] Obviously—even Ariel agrees that it can be neglected. My claim is that it can be fulfilled. He says it’s a positive-command prohibition, so of course it can be neglected. The question is whether it can be fulfilled: when I eat in the sukkah on the other days of the festival, did I fulfill a commandment? After all, we make a blessing! Throughout the festival we bless “to dwell in the sukkah.” You don’t make a blessing over a positive-command prohibition. You don’t bless over refraining from a prohibition; you bless over fulfilling a commandment. So obviously this is a commandment—a conditional obligatory positive commandment. Let’s take another example: divorce. Right? The important commandment of divorcing one’s wife with a get. What do you say about this commandment? I hope everyone has fulfilled it in the best possible way. How would you define this commandment?

[Speaker E] No neglect, there is fulfillment, no neglect.

[Rabbi Michael Abraham] If I didn’t divorce my wife, did I neglect a positive commandment?

[Speaker E] No, because the commandment is to divorce with a get, so there’s no neglect. Okay. Is there fulfillment?

[Rabbi Michael Abraham] No. So Nachshon suggests that this is a definition. What does that mean? If you want to divorce your wife, this is how you do it, right? That’s a definition. If you did it properly, then she is divorced. And if not, then she isn’t divorced. It’s not that if you didn’t do it this way then you neglected a positive commandment; rather, if you didn’t do it this way she simply isn’t divorced. If you gave her a get not according to the law, or one that is invalid, or you didn’t give her a get at all and just threw her out of the house, then she isn’t divorced. Right? So basically it seems this is a definitional commandment. Okay. By the way, some people want to claim the same thing about ritual slaughter—that there too, if you slaughtered according to the law then it’s kosher and you can eat it, and if not, then it’s not kosher and you can’t eat it, but there is no commandment or prohibition in the slaughter itself. Regarding slaughter, the argument—that is, usually people prove that this is not correct from the fact that we make a blessing: “Who sanctified us with His commandments and commanded us regarding slaughter.” And if we make a blessing, that means there’s a commandment in it. Therefore slaughter is probably a conditional obligatory positive commandment. What about divorce? In divorce, the Sefer HaChinukh—we’ll perhaps look at it; I’ll show it to you inside. I’m very fond of this Sefer HaChinukh. “It is a commandment for one who wishes to divorce his wife to divorce her with a document.” And you can already see the definition, right? That if you want to divorce your wife, then you must divorce her with a document. So it’s clear that this is not a regular obligation, but perhaps it is a conditional obligation. If you already want to divorce your wife, then there is a commandment. But then it comes out that someone who divorced his wife with a document fulfilled an extra commandment beyond someone who didn’t divorce his wife at all. Right? Meaning, in the end he gained a commandment. It’s not that the one who did not divorce his wife neglected a positive commandment, because it’s a conditional obligation. But still there’s something a bit disturbing here, because this basically means there is some kind of value—so go divorce your wife in order to gain another commandment, maybe in a time of anger they’ll punish you for not doing it. Meaning, you didn’t divorce your wife, so put yourself under obligation in order to divorce your wife. An indecent matter. But in the end that’s the dispute between Beit Shammai and Beit Hillel—he can divorce her just like that. “An indecent matter” in his eyes; according to Beit Hillel they derive this, end of tractate Gittin. “We were commanded that when we wish to divorce our wives, we should divorce them in writing, and this writing is what the verse calls a bill of severance.” Fine? Now look at the ending of the Sefer HaChinukh. “And one who transgresses this and divorces his wife without writing her a get according to the commandment of the Torah, and in the manner explained by our Sages of blessed memory, has neglected this positive commandment, and his punishment is very great, because in law she remains a married woman while he treats her as divorced, and the punishment for a married woman is known, for it is among the gravest transgressions in the Torah.” So he says that one who violates this and divorces his wife without writing her a get according to the Torah has neglected a positive commandment. He has neglected a positive commandment. That’s odd, isn’t it? Yeshiva students jump when they see something like this. What do you mean? Someone who divorced his wife and didn’t write her a get according to the Torah simply didn’t divorce her, that’s all. What is this “neglect of a positive commandment”? She isn’t divorced. He could stand on one leg—so did he neglect a positive commandment because he didn’t divorce his wife according to law? If he stood on one leg, then she isn’t divorced. In order for her to be divorced, he has to give her a valid get according to the halakhic rules. But the Sefer HaChinukh says no: someone who divorced his wife unlawfully neglected this positive commandment. How can there be neglect? Again, you see that this is a conditional obligatory positive commandment. A conditional obligatory positive commandment means that if you wanted to divorce your wife and didn’t do it according to the rules, then you neglected a positive commandment. Nobody would say such a thing. Go into a yeshiva and ask people, they’ll tell you: if you didn’t divorce her according to law then she isn’t divorced, that’s all. It’s simply the definition of divorce—it’s not a commandment, right? Ostensibly this belongs to Maimonides’ category of definitional commandments. But no—the Sefer HaChinukh says otherwise; it’s a conditional obligatory positive commandment. And what’s the idea here? He says, well, this requires a lengthy discussion. A very lengthy one. I’ll do it briefly. Usually we are accustomed to thinking that Jewish law constitutes its concepts. Meaning that Jewish law—the halakhic definition—creates the concept. In analytic philosophy they distinguish between constitutive and regulative systems of rules. Constitutive systems of rules are systems where the legislation created the field. And regulative systems are where the legislation regulates the field; it exists prior to the legislation. For example, the rules of chess—what are they? Constitutive, right? The system of rules defines the game of chess. Someone who plays not according to the rules of chess—did he commit a transgression? No, he’s simply not playing chess; he’s playing a different game. Okay? It defines the game of chess; it constitutes the game. Okay, by the way, a very interesting philosophical question—I once heard a lecture about this from two nice fellows—about soccer: a foul in soccer or basketball. A foul in soccer or basketball—if a system of rules constitutes the game, then when you commit a foul in soccer or basketball it simply means you didn’t play soccer, because you didn’t play by the rules. So it’s apparently some other game, not this one. But then it’s not a transgression in the sense that you deserve a sanction. If you understand this as a transgression—which is how people understand it in soccer and basketball, that you deserve a sanction for doing it—that means that this system of rules is probably also regulative, not only constitutive. Fine, that’s another discussion. Traffic laws, for example, are a regulative system of rules, right? There are rules for how to drive, but it’s not that they define the concept of driving on the road. Driving on the road—I drive on the road, and if I drove not according to the rules I deserve punishment. It’s not that if I drove not according to the rules, then I didn’t drive. What’s the issue? So I didn’t drive but flew, whatever, right—as they say, someone driving at 150 isn’t driving at high speed but flying at low altitude. Right? Meaning, they just redefine your activity as something else, not this thing. Once you understand that the offense is an offense, then you are basically saying that even if I committed the offense I am still playing the game, just playing it wrongly, so I deserve punishment, right? That is a regulative system of rules, not a constitutive one. That’s what is written here in the Sefer HaChinukh. The Sefer HaChinukh says that the rules of divorce are regulative, not constitutive. You can actually divorce your wife even if you don’t do it with a get—you divorced her. You divorced her wrongly; therefore you neglected a positive commandment. If you gave her the get, then you divorced her properly. That’s the point. What does it mean to call it divorcing her improperly? What? She—

[Speaker C] still remains

[Rabbi Michael Abraham] married according to

[Speaker C] Jewish law, so what does it mean to call it divorce? I don’t understand. Isn’t

[Rabbi Michael Abraham] that creating a difficulty?

[Speaker C] It’s like—it doesn’t make sense that there should be some value in entering precisely the situation where you won’t divorce her?

[Rabbi Michael Abraham] First of all, it could be. What do you mean, “some value”? There may be some value in terms of gaining a commandment, but there is no value for other reasons, because there is value in keeping the home together. So fine, I lose this commandment—that’s not terrible. There’s also the commandment of returning stolen property; there is no value in stealing in order to become obligated in the commandment of returning stolen property. So it’s not such a devastating difficulty. But I thought you were bringing us back to what Ariel said earlier. It may indeed be that what he said is what is called for here. What he says is that this is a positive commandment that can be neglected if you divorce the woman unlawfully, but cannot be fulfilled—you don’t fulfill a commandment here—and then of course this problem doesn’t arise either. Right? Because I don’t need to put myself in that situation in order not to neglect; there is no value in not neglecting. What is the idea behind this? The idea is that the concept of divorce is basically a regulative concept; the laws of divorce are regulative and not constitutive. The concept of divorce exists even without the Torah; the Torah says how to do it correctly. Like the concept of betrothal, by the way—it exists even without the Torah; the Torah just says how to do it correctly. Therefore if you didn’t do it correctly, that is a transgression—not that you didn’t perform divorce. You performed divorce, you just didn’t do it correctly. If you throw the woman out of the house, then you divorced her; she is divorced. You just didn’t do it correctly, because you did not permit her to the market, because she is not permitted to the market without your giving her a get, and therefore this is neglect of a positive commandment.

[Speaker C] What’s the difference between neglecting a positive commandment and invalidating the divorce?

[Rabbi Michael Abraham] This comes up—it has many halakhic implications. I wrote articles about it; I can send them if you want. It has many halakhic implications. I claim that if a man throws the woman out of the house, she reverts to being betrothed. Like what? Like—

[Speaker D] like a convert?

[Rabbi Michael Abraham] Like on the way in. On the way in, yes, maybe like a convert. Like on the way in, where we do the betrothal and then the woman becomes betrothed, and then canopy or marriage, and then she becomes married. There are those twelve months in between betrothal and marriage—once it was twelve months. Between the betrothal and the marriage. That’s the way in, right? On the way back out… this is: I throw her out of the house, she basically becomes betrothed, and then I give her the get and then she is fully released. And all the laws of a betrothed woman, as distinct from a married woman, apply to her on the way out as well. For example, from the moment he set his mind to divorce her, he no longer has rights to her produce—the Talmud in tractate Gittin 17. Why? Because with a betrothed woman, you do not consume the produce. Or he may not become impure for her—the Rashash writes, the Rashbam brings it there in Bava Batra—that from the moment he set his mind to divorce her, if he is a priest he does not become impure for her. Why? What happened? Nothing happened yet; he still hasn’t divorced her, hasn’t given her a get, nothing. She is his wife in every respect. But he decided to divorce her. That’s enough. Once you’ve decided to divorce her, there are all sorts of implications—you have to gather them—they fit together somewhat, but there are all sorts of implications showing that this is essentially a return to the state of betrothal.

[Speaker C] How does that work regarding betrothal?

[Rabbi Michael Abraham] Does betrothal exist before the Torah? Not betrothal—marriage. Maimonides at the beginning of the Laws of Marriage—Maimonides writes: before the giving of the Torah, a man would meet a woman in the marketplace and bring her into his house. Once the Torah was given, Jewish law was given that one must first precede with betrothal and then bring her into his house. Why does Maimonides describe this history to me? Because he is coming to say that even today what existed before has not been nullified; rather another layer was added, but what existed before still exists. Meaning, if you bring the woman into your house, she is basically your wife. She is just your wife unlawfully, because you didn’t do it with betrothal. But she is your wife, just as she was before the giving of the Torah. The concepts of betrothal and divorce are regulative concepts, not constitutive ones. An interesting example of this: there is a verse in the portion of tzitzit. I really should have finished a moment ago. In the portion of tzitzit it says, “and it shall be for you as tzitzit.” Think about that for a moment: what does “and it shall be for you as tzitzit” mean? What I described here—with the strings and the blue thread and everything—that is what shall be for you as tzitzit. Usually I understand tzitzit as a concept that the Torah constitutes, not regulates. So why do you need to say that this shall be for you as tzitzit? Obviously—this is the definition of tzitzit. What else would be tzitzit? You see that no—there is something called tzitzit. The Torah wants this to be our tzitzit and not something else. So it says: do it this way and that way, and that will be your tzitzit, not something else. What does that mean? That the concept of tzitzit is regulative and not constitutive. Ibn Ezra, for example, says that tzitzit means a forelock of hair, which is a symbol. We could have chosen all sorts of symbols—a symbol that I’m Jewish or something like that. The Torah says: I want tzitzit to be your symbol. But the concept of a symbol exists before the Torah defined the concept of tzitzit; it is a preexisting concept. The Torah wants me to do it specifically this way and not otherwise. So this expression in the Torah, it seems to me, is an expression that says we have here a regulative concept and not a constitutive one. We are used to thinking that Jewish law constitutes its concepts, but that is not always true. Many times Jewish law regulates concepts that existed earlier, and that has many implications. Fine. So for our purposes, what this means is that it is definitely possible that what you said earlier, Ariel—that divorce is a prohibition derived from a positive commandment—could be correct. Maybe it is even a positive commandment, meaning a genuinely positive commandment, conditional of course—a conditional obligatory positive commandment or a prohibition derived from a positive commandment. You can understand it either way. But it is not a procedure—that is the important point. It is not a definitional commandment of the fourth type, despite the simple tendency of people, when you ask them, to say that it is a commandment of the fourth type, a definitional commandment. If you didn’t divorce her according to law, then she isn’t divorced—but you didn’t commit any transgression; there is no… But he says: you neglected the positive commandment. If you didn’t write the get according to the commandment of the Torah, then you neglected the positive commandment. Your punishment is great.

[Speaker C] And in impurity? In impurity, that’s something the Torah defined; it didn’t exist before the Torah.

[Rabbi Michael Abraham] In impurity it’s constitutive, exactly. Good.