The Commandments and Their Enumeration – Lesson 16

Table of Contents

• Fifth Root: verses that give a reason, and whether they are counted
• A reminder of the Eighth Root: prohibition versus negation of obligation
• Language, terminology, and “the king’s decree”
• The example of “She shall not go out as the slaves go out”: a halakhic negation of a law that is not a prohibition
• The distinction between commandment/transgression and proper/improper
• Law, reason, and the examples of “a red light” and “do not stand idly by your neighbor’s blood”
• Nachmanides’ critique: reason-verses as prohibitions that teach a law
• “So that you do not bring sin upon the land” as a warning to the religious court
• Maimonides on “He shall not leave the Sanctuary and not profane,” and the connection to the Roots
• “We expound the reason of the verse”: a widow and collateral

Summary

General Overview

The text presents Maimonides’ approach in the Fifth Root, according to which verses that state the reason for a commandment are not to be counted in the enumeration of the commandments, even if their wording resembles a prohibition. It introduces this with background from the Eighth Root, on the distinction between a warning or prohibition (a negative command) and negation of obligation (the negation of a law or a description of a state, rather than a command). It presents a strong dependence between language, terminology, and halakhic understanding, especially the claim that Hebrew uses “not” both for prohibition and for negation, whereas Arabic has a linguistic distinction that prevents confusion. The text then brings Nachmanides’ critique of Maimonides, according to which many of the verses that Maimonides defines as reasons are in fact additional prohibitions that teach a new law, and it discusses the Talmudic background of “we expound the reason of the verse” versus “we do not expound the reason of the verse,” along with the distinction between interpretive engagement with the reasons for commandments and drawing halakhic conclusions from them.

The Fifth Root: Reason-verses and whether they are counted

The text opens with the example of “he shall not multiply wives for himself” as a command, and “so that his heart not turn away” as the reason, and attributes to Maimonides in the Fifth Root the determination that reason-verses are not counted in the enumeration of the commandments. Maimonides presents cases in which the reason for a commandment is phrased in language resembling a prohibition, and therefore may look like a separate commandment, such as “her former husband who sent her away may not return to take her… and you shall not bring sin upon the land,” where “and you shall not bring sin upon the land” is defined as the reason for the preceding prohibition. Maimonides gives additional examples: “Do not profane your daughter by making her a prostitute, lest the land become prostituted,” “Do not defile yourselves through them and become defiled by them” after the food prohibitions, “you may not take ransom for a murderer,” followed by “and do not defile the land,” as brought in the Sifrei: “Scripture teaches that bloodshed defiles the land,” and also “he shall not leave the Sanctuary and not profane,” where “and not profane” is understood as a consequence or a reason rather than an independent prohibition. Maimonides states that anyone who counted these prohibitions without distinguishing among them erred, and that the author of the Halakhot would be embarrassed when asked, “This prohibition—what act is it warning against?”

A reminder of the Eighth Root: prohibition versus negation of obligation

Before discussing the Fifth Root, the text introduces a reminder from Maimonides’ Eighth Root, according to which “negation of obligation” is not to be counted as a prohibition in the enumeration of the commandments. Maimonides defines a warning or prohibition as part of a command, meaning an instruction to do or not do something, and distinguishes that from negation, which is the negation of a predicate from a subject, such as “so-and-so did not eat” or “Reuven is not Shimon’s father,” where there is no “trace of command.” Maimonides adds a linguistic distinction: in Arabic the word of prohibition is “la,” whereas negation is usually “ma,” while in Hebrew “lo” serves both for negation and for prohibition. Examples are given of negation with “lo,” such as “No prophet arose again in Israel like Moses,” “God is not a man that He should lie,” and “Trouble shall not arise a second time,” and of negation with “ein,” such as “and there was no human being,” and “the dead know nothing.” Maimonides explains that prohibition and command relate to the future and do not apply to the past, whereas negation can refer to the past or to a description of a state. From here comes the need to distinguish among the different uses of “not,” so as to avoid mistaken counting in the enumeration of the commandments.

Language, terminology, and “the king’s decree”

The text attributes to Maimonides a linguistic-conceptual claim according to which language may mislead thought or enable distinctions, and brings examples such as the many words for snow among the Eskimos and the limited counting system of the Pirahã tribe, in which there is “one, two, and many.” On that basis, it explains that according to Maimonides there is no inclusive Arabic term for both categories together, and therefore they had to “call both by the name of one of them, namely command,” whereas in Hebrew the inclusive term is “decree,” and the Sages called every commandment, whether positive or negative, “the king’s decree.” The text stresses that the usual use of the expression “positive commandments and negative commandments” may blur the conceptual distinction Maimonides wants to establish between command, prohibition, and negation of obligation.

The example of “She shall not go out as the slaves go out”: a halakhic negation of a law that is not a prohibition

Maimonides attributes to the author of Halakhot Gedolot the mistaken counting of “she shall not go out as the slaves go out” as a prohibition, and defines this as negation of obligation rather than a warning. Maimonides explains that there is a law regarding a Canaanite slave, male or female, that if the master struck and damaged one of the extremities, the slave goes free. One might have thought, “all the more so with a Hebrew maidservant,” that she too would go free, and therefore the Torah says, “she shall not go out as the slaves go out,” in order to negate that law in her case. Maimonides formulates it as saying that the verse means “he is not obligated to let her go free because of the loss of a limb,” and that this is “the negation of a law regarding her, not a prohibition.” Therefore it is not to be counted among the negative commandments, because the verse does not forbid an action but establishes that the obligation does not apply.

The distinction between commandment/transgression and proper/improper

The text connects Maimonides’ method regarding reason-verses with a normative distinction according to which a commandment or transgression exists only when there is a verse commanding or forbidding, whereas a “good act” or a “bad act” can be determined even without legislation. The example of returning a lost object after the owner has despaired is presented as a good act in which one does not fulfill the commandment of returning a lost object, because “there is no obligation.” At the same time, it is argued that there is a difference between “someone is not acting properly” and “someone violated a prohibition.” From this it is explained that according to the understanding attributed to Maimonides, a reason-verse such as “and do not defile the land” does not create a new prohibition but explains why the earlier prohibition is severe, and therefore it is not counted.

Law, reason, and the examples of “a red light” and “do not stand idly by your neighbor’s blood”

The text uses legal analogies to clarify the conception of command as law rather than as a description of fact, and argues that the reason not to go through a red light is “because there is a law that forbids it,” not because it is dangerous, even though the legislator forbade it because of the danger. It brings a legislative story about the law of “do not stand idly by your neighbor’s blood,” attributed to Hanan Porat of blessed memory, according to which the debate was not about the moral value itself but about turning it into a legal offense. It is said that inserting the verse into the statute book created a gap vis-à-vis Jewish law, because “it is a prohibition without an action,” and therefore in Jewish law there is no sanction for it. The analogy is meant to establish that the reason explains why the prohibition was enacted, but only the formulation of the prohibition itself determines legal or halakhic liability; therefore the reason for a commandment is not counted as a commandment.

Nachmanides’ critique: reason-verses as prohibitions that teach a law

Nachmanides objects to Maimonides and argues that “we have not seen our rabbis in the Talmud treat prohibitions of the Torah as superfluous on the grounds that they are the reason for the prohibition that preceded them, unless they come to add or subtract something,” meaning that the reason is interpreted for the sake of learning a new law. Nachmanides brings proof from the dispute in tractate Sanhedrin 21 concerning “he shall not multiply wives for himself, so that his heart not turn away,” where the Tannaim disagree, and he concludes that the second verse is not merely explanatory but is a basis for interpretation and halakhic innovation. Nachmanides also raises a difficulty against Maimonides’ position: if “and do not bring sin upon the land that the Lord your God is giving you as an inheritance” is only a reason, one might conclude that outside the Land of Israel it would be permitted. Likewise, “do not pollute the land” and “do not defile the land in which you dwell, in which I dwell” would then relate only to the Land. His conclusion is that “all of them are independent restraints.” Nachmanides gives another example: “You shall not uncover the nakedness of your daughter-in-law; she is your son’s wife; you shall not uncover her nakedness.” According to Maimonides this might have looked like a reason, but “according to the view of the Sages in the Talmud,” it is interpreted to add obligations and details, such as after the son’s death, and to exclude a woman raped by the son, a maidservant, and a non-Jewish woman.

“And do not bring sin upon the land” as a warning to the religious court

Nachmanides interprets the words of Halakhot Gedolot to mean that “and do not bring sin upon the land” is not merely a reason but “a warning to the religious court about this matter,” and he cites that in the Sifrei it is interpreted as “to warn the religious court about this.” Nachmanides argues that in this way the author of Halakhot Gedolot is not embarrassed by the question, “This prohibition—from what act does it restrain?” because the prohibition is directed to the religious court, to compel divorce and prevent the forbidden marriage. Nachmanides presents this as an example of how a verse that appears to be a reason can be understood as the source of an additional binding norm and not only as an explanation.

Maimonides on “He shall not leave the Sanctuary and not profane,” and the connection to the Roots

The text quotes Maimonides in Negative Commandment 165 and presents his explanation that “and not profane” is either a negation, saying “that his service should not be profane,” even though he is an onen, or else a reason for the warning not to leave the Sanctuary, “so that he not profane.” Maimonides concludes that according to both explanations, “and not profane” should not be counted as a prohibition in its own right: in one case because of the Eighth Root regarding negations, and in the other because of the Fifth Root regarding reason-verses. The text thus emphasizes Maimonides’ method, according to which the interpretive classification of the verse determines its status in the enumeration of the commandments.

“We expound the reason of the verse”: a widow and collateral

The text cites a Mishnah in tractate Bava Metzia: “A widow, whether poor or rich, one may not take collateral from her,” and presents a baraita in which Rabbi Yehuda holds this view, while Rabbi Shimon distinguishes between a rich widow and a poor widow, because “you are obligated to return it to her, and you give her a bad name among her neighbors.” The Talmud explains the disagreement as connected to the question of whether Rabbi Yehuda “does not expound the reason of the verse” while Rabbi Shimon “does expound the reason of the verse,” and the text explains that expounding the reason makes it possible to limit the law to cases in which the reason applies. The text argues that the meaning is not a prohibition against discussing the reasons for commandments, but a prohibition against drawing halakhic conclusions from them, and it parallels this to the debate over purposive interpretation in law. The text concludes with the distinction that the case of the widow involves a reason that is not written explicitly in the Torah but is an interpretive assumption of the Sages, whereas in verses like “he shall not multiply wives for himself, so that his heart not turn away,” the reason is written explicitly. Therefore, the question of how this fits with “we do not expound the reason of the verse” remains a point to be continued in the next discussion.

[Rabbi Michael Abraham] This time I want to begin with Maimonides’ fifth root, and the fifth root deals, basically, with verses that state a reason. Of course this is connected to commandments and prohibitions. Maimonides talks about verses like, say, verses connected for example to “he shall not have too many wives, so that his heart not turn away” regarding a king. So “he shall not have too many wives” is a command, and “so that his heart not turn away” is, simply speaking, a reason. Meaning: why shouldn’t he have too many wives? So that his heart not turn away. So Maimonides, in the fifth root, argues that these verses should not be counted in the enumeration of the commandments—the reason-verses. So before I get to that issue, I want to give some kind of reminder of something I did at the beginning of the first semester, because it’s necessary background for our discussion here. Hello. Not with us? Okay. So I’m starting with the eighth root as an introduction to the fifth root, which is our topic. The eighth root: that one should not count a negation of obligation together with a prohibition. Meaning, Maimonides says here that there are certain kinds of verses called “negation of obligation,” and superficially they look like prohibitions, like negative commandments, but they should not be included in the enumeration of the commandments. It’s not a prohibition.

Know that a prohibition is one of the two parts of a command, because you command the person being commanded either to do something or not to do it. When you command, you can command someone to do something; you can command someone not to do something. Yes, you can also not command him to do something. Not commanding someone to do something is not the same as commanding him not to do something. Okay? Command and negation are not commutative. Just as you may command him to eat and say to him “eat,” or command him to refrain from eating and say to him “do not eat.” “And in the Arabic language there is no term that includes both of these matters together.” Yes, this work was written in Arabic. “And the logicians already mentioned this and said as follows”—now he quotes: “As for command and prohibition, in the Arabic language they have no single name that gathers them both together, and so we are forced to call both of them by one of their names, namely ‘command.’”

We’re used to saying positive commandments and negative commandments. These are two kinds of commandments. Both are commandments, just two different kinds of commandments. Maimonides says: not true. “Commandment” refers to positive commandments; it has nothing to do with a prohibition. And since in Arabic there is no word that joins positive commandments and negative commandments—well, commandments, I’ve already joined them—but let’s call them prohibitions and commands. There is no word that joins prohibitions and commands into one whole, so they took one of the two words, “commandment,” and applied it to both types. I spoke about this in the first semester; I no longer remember who was there and who wasn’t.

Very often language can seriously mislead us. Sometimes it misleads us; sometimes it actually helps us think. There are certain languages in which—let’s use the classic example—the Eskimos supposedly have thirty words for snow. Thirty different words. Because there are thirty kinds of snow. Now when we look at that, from our perspective we won’t understand what they want from us. For us these are synonyms. It’s all just snow. What do you mean? Since we don’t live in the environment they live in, we don’t distinguish between different kinds of snow, and therefore we don’t have such words. But once we don’t have such words, we also can’t distinguish between the different kinds of snow. It works both ways. Since we don’t distinguish between kinds of snow, we don’t have different words; but if we don’t have different words and we call everything “snow,” then for us it’s all just snow, we don’t see that there are differences here.

And that means, basically, that terminology in a language can mislead thought and can help thought. If I have different words, that can help me understand a distinction between two things. There are lots of examples. Maybe one of the clearest examples is counting systems. I think I mentioned this there: in a few places around the world there are tribes or certain societies whose counting system is base three. There are only three numbers: one, two, and many. That’s it. Now, for example, there’s a tribe in Brazil called the Pirahã tribe—I once read about this in Nature, I think, or in Science, I don’t remember, it was many years ago—they know one, two, and many. Now if you put in front of them, say, five batteries and seven batteries, and ask them where there are more, they don’t know how to answer. Because that’s many and that’s many; it’s the same thing, both are many. Okay? But notice: if you put fifty batteries and three batteries in front of them, then they’ll know there are more here. So it’s not that they don’t understand the concept of “more”; they do understand “more,” but their resolution is limited because they don’t have a good enough language. Language limits their perception.

And the opposite may also be true—that their language is limited because the perception that created the language wasn’t yet sufficiently developed—but it’s not because of a lack of ability. They don’t have a problem of ability. Once they’re taught this, they understand, and just like us they can do the calculation like we do. So it’s not a problem of ability. There’s something in language that very much helps us and interferes with us. Or, Eyal?

So Maimonides writes here—notice that when we look at positive commandments and negative commandments, for us it’s obvious. What Maimonides writes here as an introduction—it’s not obvious why he needed to write it at all, right? Obviously, yes, there are two kinds of commandments: positive commandments and negative commandments. It isn’t trivial. It isn’t obvious that they really are two species of the same kind. Why do we connect those two things at all? What do they have in common? Think about it: if our language didn’t have this terminology that joins them, then if someone said to you, “Go there and bring me gum”—a command—and someone else said, “Under no circumstances are you to put your hand into the fire,” it’s not at all certain we would understand that these are two utterances of the same type. It’s not something so easy to grasp, and I think the language, or the habit by which we’ve become used to thinking about these things, really helps us here.

And in that sense, this remark of Maimonides is a very interesting remark, because he argues that someone who lives in the Arabic language has no common term for positive commandments and negative commandments, and therefore in principle he can treat these two utterances, these two kinds of linguistic acts—I’m not sure what to call them—as two things with no connection between them at all. Once people understood that there is a connection between them, they took the term “commandment,” which really fits only positive commandments, and applied it to both kinds, both to positive commandments and to negative commandments. What exists in Hebrew? It isn’t “commandment,” because he says that’s an incorrect use, a borrowed use.

“And now it will become clear to you that prohibition belongs to the category of command, and the well-known Arabic word used for prohibition is the word ‘lā.’” Yes, what for us is “lo”—that’s the prohibition. “And this same idea undoubtedly exists in every language, namely, that you command the person being commanded to do something or not to do it. If so, it is clear that positive commandments and negative commandments are both complete commands: things we were commanded to do, and things from which we were warned away. And the name of those things we were commanded to do is positive commandments, and the name of those things against which we were warned is negative commandments.”

Now notice: he uses “commandment.” Why? Remember, the text was written in Arabic. So he writes this in Arabic; he says one is called positive commandments, and the other is called negative commandments, because in Arabic they use the same term, the term “commandment.” So it’s not accurate. Therefore he says: “And the term that includes them both in the Hebrew language is decree.” Yes. “And so too the Sages called every commandment, whether positive or negative, ‘the king’s decree.’” So his claim is basically that the concept of “commandment” that we use, which refers both to positive commandments and to negative commandments, is an Arabic influence, taken from Arabic. In Hebrew the common concept is “decree,” of which there are two types: positive commandments and prohibitions. Prohibitions are the negative commandments. That’s basically the hierarchy. In Arabic, since there is no word like “decree,” they use “commandment” for both sides.

By the way, I don’t remember whether in the Talmud the phrase “negative commandments” actually appears. There is “prohibition,” there is “negative commandment,” negative commandments and positive commandments, but I don’t know if the expression “negative commandments” is there. You’d have to check that in the responsa project. It’s an interesting question. Because Maimonides claims it shouldn’t be; it’s taken from Arabic. The truth is, though, that in the Torah I think it says, “which I commanded you not to eat from,” or something like that. A command not to eat is also called a command in the Torah, so actually I’m not sure he’s right.

Anyway, so this is the general map of commands that Maimonides sketches here. The terminology is less important. Let’s keep going.

“But negation of obligation is something else, and it is when you negate a predicate of a subject, and it has nothing at all to do with command. As when you say: so-and-so did not eat last night, and so-and-so did not drink wine, and Reuven is not Shimon’s father, and things like that. All this is negation of obligation; there is not even a scent of command in it. And the word by which they usually negate in Arabic is ‘mā.’” Another interesting point: here Arabic is actually more sophisticated than Hebrew. When you prohibit someone from doing something, it’s “lā.” And when you negate something—a factual negation, “Reuven is not Shimon’s father”—the word is “mā,” not “lā.” Two different words. אצלנו, for us, it’s the same word. In that sense Hebrew is deficient, more deficient than Arabic, because it has two different meanings: command or prohibition, and negation; in both cases it’s “lo.”

Now we should remember in the background that the Talmud says—and this is the context in which I dealt with this at the beginning of the first semester—that the commandments we count in the enumeration of the commandments are norms that have verses in the Torah commanding them. If there is a verse commanding it, it is counted among the commandments; if not, then not. How does the Torah command negative commandments, decrees not to do? The Talmud says: “take heed,” “lest,” and “do not”—every expression of “take heed,” “lest,” and “do not” is a prohibition. What about “lo”? “You shall not eat over the blood of My sacrifice with leaven.” “Lo” is also a prohibition. So why only “take heed,” “lest,” and “do not”? What about “lo”? Apparently one of two things: either the Sages didn’t write “lo” because it’s obvious, and they only came to say that even “take heed,” “lest,” and “do not” count, while “lo” is obvious. Or you could say no—because of the deficiency of Hebrew compared to Arabic. The word “lo” is not always a prohibition. “Take heed,” “lest,” and “do not” are always prohibitions. But “lo” is sometimes a prohibition and sometimes a negation of obligation. And therefore you can’t say that “lo” is always a prohibition.

Now he says: yes, in Arabic it is usually the word “mā,” and one may also negate with “lā” or with “laysa,” I don’t know exactly. “But in Hebrew most negation is by the very word ‘lo’ with which they also prohibit, and they also negate with ‘ein,’ and with attached pronouns such as ‘eino,’ ‘einam,’ ‘einkhem,’ and the like. But negation in Hebrew with the word ‘lo’ [appears] in verses such as: ‘No prophet arose again in Israel like Moses’; ‘God is not a man, that He should lie’; ‘trouble shall not arise twice’; ‘and no man stood’; ‘and he did not rise and did not move from it’; and many such cases. And negation with ‘ein,’ as in: ‘and there was no man’; ‘and the dead know nothing’; and many others.”

“So now the difference between prohibition and negation has become clear to you. Prohibition belongs to the category of command, and it exists only in the mode of command equally.” Meaning: just as command is always future-oriented, so too prohibition. “And it is impossible in language for there to be command in the past, and so too prohibition.” Right—grammatically too, command points to the future. “Don’t do something”—do it in the future. Why? Because when I command you, I always address what you are going to do in the future. I don’t command you concerning the past. That’s why it’s very confusing when you look at a sentence and it isn’t always clear whether it’s an imperative or a future tense sentence. For example, I say to someone, “You will go bring me something.” That’s clumsy Hebrew; I should say, “Go bring me something.” What’s the difference between “you will go” and “go”? “Go” is an instruction, a command. “You will go” is a future description. In the future you will go do such-and-such. Why do people swap them? Because both speak about the future. Even “go” is really about the future. I say to you “go,” meaning in a moment, later on. You will go and do such-and-such. So when I command you to go, I say “go,” but it is always directed to the future. That’s why people mix up imperative and future.

In any event, for our purposes: what really is shared by positive commandments and negative commandments? We know that Aristotle already taught us that when we define something, we need to say to what genus it belongs and what species within that genus. Say we speak about the human being: the human is a speaking animal. The genus is living creatures, and he has a certain species within living creatures—the speaking living creatures, as distinct from non-speaking living creatures. So whenever you want to define something, you need to give its genus—what broader category includes it together with other things—and then specify it as against the other things within that genus. That is called species. To give the genus and the species. There are several species within every genus.

When I want to know what the genus is that joins prohibitions and commands, positive commandments and negative commandments—what Maimonides calls “decree”—what is that genus? Or in contrast, from what is it distinguished? What does not belong to that genus? Positive commandments and negative commandments both belong to that genus. What doesn’t belong? Descriptive statements. Verses that describe facts. “This lectern is brown.” That is not a decree, neither a prohibition nor a positive commandment; it is simply a factual description, right? So what distinguishes positive and negative commandments such that they are not neutral descriptions? A positive or negative commandment is basically an instruction to a person that is meant to cause him to act. A factual description is a neutral description. What you do with it—you yourself decide what to do with it—but it is a neutral description. Even to say that murder is a bad thing—that is a fact. It is a description. It isn’t meant to tell you “do not murder.” If you infer that you don’t want to do something bad, then you’ll decide not to murder. But the fact in itself doesn’t say that. A fact is a description, and a description is always neutral. That is called a descriptive statement.

Opposed to descriptive statements are command statements, or decrees. Command statements are statements that, when I say them to you, I am trying to move you to action or move you away from action. In other words, they are not neutral statements; they try to move you or stop you. These non-neutral statements are divided into two kinds: positive commandments and negative commandments. Maimonides says the word “lo” is a confusing word. Why? Because sometimes it belongs to the world of descriptive statements, and sometimes it belongs to the world of command statements. When I say, “It is not true that so-and-so is Shimon’s father,” that is a descriptive statement; it describes a fact. It describes the negative fact that Reuven is not Shimon’s father. But if I say to you “You shall not murder,” that is a command or prohibition against murder, a warning about murder. In both I used the word “lo.” So the word “lo” is confusing. And this root is devoted to that issue.

This root, basically, says that after Maimonides lays out the world of command statements—positive commandments and negative commandments—over against descriptive statements, which are factual statements, he says: notice, there is a certain kind of verse that one can get confused about and think belongs here, but really belongs there. And that is the type of verse called negation of obligation. Now when I look at “No prophet arose again in Israel like Moses,” or “God is not a man that He should lie,” nobody would think to count that among the commandments. That doesn’t look like a negative-command warning, right? Maimonides means these only as examples to clarify how “lo” functions as a description, a descriptive statement. But the verses he calls negation of obligation are not those. They are these, look:

“And since this is so, it is not appropriate under any circumstances to count negative commands that are merely negations among the negative commandments. And this is a demonstrative matter that requires no proof beyond what we have said in understanding the meaning of the word, to distinguish between prohibition and negation.” Right—there is no reason to count negation of obligation among the commandments. It is not a prohibition. It is a description, a descriptive statement.

Now what is he talking about? Usually the roots are disputes with the author of Halakhot Gedolot, who counts commandments—the earliest and most authoritative before Maimonides. So he says this: “And this escaped some of our predecessors”—that is Halakhot Gedolot—“to the point that he counted, pay attention, ‘she shall not go out as the slaves go out.’ And he did not know that this is a negation and not a prohibition. And I will explain this as follows.”

“She shall not go out as the slaves go out”—this is negation of obligation, and the author of Halakhot Gedolot counted it as a prohibition. Now notice, this is already less trivial than the earlier examples. When I say “God is not a man, that He should lie,” nobody would think of counting that as a prohibition, right? It’s obvious that it describes something. It describes a trait of the Holy One, blessed be He, that He is not a human being and does not lie. Okay? But there are verses that Maimonides calls negation of obligation where one really can get confused. Why? Because when it says “she shall not go out as the slaves go out,” that is a verse which, if I had to classify it, I would classify on the halakhic side of the Torah. “She shall not go out as the slaves go out” is a halakhic statement. So apparently it’s not a descriptive statement of facts in the Torah, it’s a command statement. Okay? And therefore, apparently, Halakhot Gedolot is right that it should be counted as a negative commandment.

So Maimonides says: no, that’s not correct. “And I will explain this as follows. God has already ruled concerning one who strikes his Canaanite slave or maidservant and thereby deprives him or her of one of the tips of the limbs, that he goes free.” Okay? There is a law that if a master strikes his Canaanite slave or maidservant and injures one of the twenty-four limb tips, they go free. “And it might have entered our minds that if this is the law for a Canaanite slave, then all the more so for a Hebrew maidservant—that if one of her limb tips is damaged, she should go free.” That’s what I would have thought. Maimonides says: “And Scripture excluded this law from her by saying, ‘she shall not go out as the slaves go out.’”

The verse “she shall not go out as the slaves go out” comes to say that the law of going free through damage to limb tips does not apply to a Hebrew maidservant, only to a Canaanite maidservant or slave. Not to a Hebrew maidservant. “As if to say: it is not obligatory that she go free through the loss of one of her limbs. And this is a negation of a law concerning her, not a prohibition.” What does that mean? This is a halakhic verse. It is not a verse describing facts in the Torah. “In the beginning God created the heavens and the earth”—that’s a descriptive statement, telling me that the Holy One created heaven and earth. Most of the Torah is descriptive statements, but in the Torah there are command statements, and these are the verses that deal with Jewish law, the forbidden and the permitted and the obligatory. Okay? Maimonides says: but even the verses that deal with Jewish law, not every time “lo” appears there is it a prohibition. Sometimes it is negation of obligation. Here, for example, this verse, “she shall not go out as the slaves go out.” This is a verse speaking about Jewish law; it isn’t describing some historical fact. It teaches me a law about limb-tip injuries in the case of a Hebrew maidservant. That is the Jewish law. And still, it is not a negative commandment. Why not? Because it is not saying “you are forbidden to let her go out through limb-tip injuries” or that someone who did so violated a prohibition. It simply establishes the fact that the law of freedom through limb-tip injury does not apply to a Hebrew maidservant. It was said concerning a Hebrew maidservant in order to negate an existing law in the case of a Canaanite slave, saying that it does not apply to a Hebrew maidservant.

So here we have negation of obligation even though we are talking about a halakhic verse, not an ordinary descriptive verse. But still, the “lo” here is not a prohibitive “do not”; it is a negating “not,” and therefore one cannot count it among the negative commandments. If I were to count it among the negative commandments, then what that would mean is that if someone released the Hebrew maidservant when he injured one of her limb tips, he violated a prohibition—he violated the negative commandment “she shall not go out as the slaves go out.” But that is not what the Torah is saying. The Torah is saying that here she does not go free; you are not obligated to release her. If you want to release her, release her; you are not obligated to release her. The law that one is required to release exists only for a Canaanite maidservant, not for a Hebrew maidservant. That is what he calls negation of obligation.

So what have we learned from this? What we have learned is that when we search or discuss a certain verse—whether to include it in the enumeration of the commandments or not—we first need to make sure it belongs to the halakhic part of the Torah and not to the descriptive part of the Torah, the factual, descriptive part of the Torah. Within the halakhic part of the Torah, there are at least three kinds of verses. One kind is positive commandments, which are counted among the positive commandments. Another kind is prohibition, which is counted among the negative commandments. A third kind is negation of obligation: a verse that says that such-and-such law does not apply here. A verse that speaks about laws, not about facts, but still there is nothing to count in the enumeration of the commandments. It is not a prohibition; it does not forbid me from anything. So that is the background I wanted to bring here, and now let’s move on to the fifth root.

The fifth root: that one should not count the reason for a commandment as a separate commandment. When the Torah gives a reason for a commandment, the reason-verse is not counted. “Sometimes in the reasons of commandments there appears something resembling a prohibition.” There are reasons for commandments in the Torah, and they are worded similarly to how a prohibition is worded. “And one may think that they should be counted separately.” And that could lead people to think that they should actually count it as a separate commandment. “As for example, what is written in the portion Ki Teitzei: ‘her former husband who sent her away may not return to take her, and not bring sin upon the land.’” “The words ‘and not bring sin upon the land’ are the reason for the preceding prohibition, as if saying: if you do this, you will increase corruption in the land.”

Okay? So there is a verse saying: “her former husband who sent her away may not return to take her.” Meaning: he divorced her, another man married her, and the second one also divorced her. Now the question is whether the first husband is allowed to marry her again. No, he may not. “Her former husband who sent her away may not return to take her… and not bring sin upon the land.” What is “and not bring sin upon the land”? “And not bring sin upon the land” is an explanation or reason why she may not return to her first husband. Now notice: the wording “and not bring sin upon the land” is phrased very much like a negative commandment, right? “And not bring sin upon the land.” What is the difference between this and “her former husband may not return to take her”? On the contrary—if anything, I would say “and not bring sin upon the land” sounds like the command, while “may not” is just a description: I am describing that he cannot. No. “May not” here means he is forbidden, yes. And “and not bring sin upon the land” is the reason for the prohibition of “may not.”

So even though the word “not” appears here—you see, like negation of obligation—but it is not negation of obligation, and it is not counted because it is a reason for the previous commandment. It is not coming to negate anything; it is not negation of obligation, so it doesn’t belong to the eighth root. But it is still a “not.” It appears in the halakhic context, and nevertheless is not counted as a prohibition or negative commandment in the enumeration of the commandments, because it is only a reason for the commandment.

“And similarly: ‘Do not profane your daughter by making her a prostitute, and the land will not become promiscuous.’” The words “and the land will not become promiscuous” are a reason, as if to say that the reason for this prohibition is so that the land not become promiscuous. “And likewise at the end of the portion Shemini: ‘Do not defile yourselves through them and become impure through them,’” after mentioning the prohibition of the species whose consumption is forbidden. He gives the reason for this and says “do not defile yourselves” by eating them, as if telling you that the basis of what he warned against is impurity of the soul.

And explicitly they said in the Sifrei regarding the verse that comes after the warning “You shall take no ransom for the life of a murderer”: “And do not defile the land”—the Sifrei says about this: “The verse tells us that bloodshed defiles the land.” So “and do not defile the land” is not another prohibition; rather, the shedding of blood defiles the land. Okay. “And it has already been clarified that this negative commandment is the reason for the previous negative commandment, not that it is something else.” Likewise: “and he shall not leave the Sanctuary and not profane…” Ah, if he did leave, he profaned it. Yes, a priest who leaves in the middle of the service profanes the service. So there it says: “he shall not leave the Sanctuary and not profane.” So we learn from this that if he did leave—if he nevertheless leaves in the middle of the service—then the service has been profaned, it is invalid. Is there a prohibition against leaving in the middle of the service? Yes. From where? From the words “he shall not leave.” So what is the “and not profane”? The “and not profane” is basically a reason, but in this case it is also a reason from which I can derive a law—that if he left, the service was profaned. But the prohibition is not “not profane”; the prohibition here is leaving. The profanation is a result of the fact that you left; it is not the prohibition. The prohibition is not that you profaned. If someone left and did not profane, he still violated the prohibition, because the prohibition is to leave.

“And some of our predecessors also erred in this root, and counted all these ‘negative commandments’ without reflection. And indeed, one who counted them would be embarrassed if asked and told: from what thing does this negative commandment warn?” If someone asks you—how does that verse go? “You shall take no ransom for the life of a murderer… and not defile the land”—so the author of Halakhot Gedolot counted “and not defile the land” as a negative commandment. And then Maimonides says: he would be embarrassed if asked: tell me, what does this prohibition warn against? What exactly does this verse forbid us? “You shall take no ransom for the life of a murderer”—that prohibition we understand: one may not take ransom instead of executing him. But what is “and not profane the land”? That is a consequence of violating the previous prohibition; it is not an independent prohibition. So how did Halakhot Gedolot count it in his enumeration of commandments? It doesn’t forbid us anything; it only describes consequences. “And he would have no answer at all, and thereby the invalidity of his counting is made clear. And that is what we intended to explain in this root.”

Now in principle one could understand Maimonides here in two ways. First of all, Maimonides has two innovations here. The first innovation is that these verses—this is an exegetical innovation—although they look similar to prohibitions, they are not prohibitions; they are reasons. That is first of all an exegetical determination. In principle one could disagree with that determination. Someone could say: no, “You shall take no ransom for the life of a murderer, and not defile the land”—those are two prohibitions. It is forbidden to take ransom for the life of a murderer, and it is forbidden to defile the land. So Maimonides says no: from the context it is clear that the second is a reason for the first and not an additional prohibition. We’ll see later that this is really not clear; it’s not at all unequivocal.

Then Maimonides has a normative innovation. What does that mean? That after I learn, exegetically, that this verse is a reason-verse and not a command-verse, I have another innovation: such verses are not counted in the enumeration of the commandments. Because what is included in the enumeration of the commandments are only command-verses, and if this verse exegetically is not a command-verse, then halakhically it is not counted in the enumeration of the commandments. That is Maimonides’ second innovation. It is very similar to negation of obligation in that respect as well. There too Maimonides says first of all, exegetically, this is not a verse that comes to forbid something, and second, if it does not come to forbid something, then it cannot or need not be included in the enumeration of the commandments; it is not a negative commandment.

But Maimonides’ normative innovation—that reason-verses are not counted—can itself be understood in two ways. The simple way is that one does not count reason-verses because they command nothing, as he says: Halakhot Gedolot would be embarrassed if asked, what does this verse warn about, what were we commanded in this verse? There is nothing at all we were commanded. So since this verse is not a command-verse, there is no reason to see in it a commandment and no reason to include it in the enumeration of the commandments. That is one interpretation.

A second interpretation: one could include it in the enumeration of the commandments—that is, one could derive commands from this verse—but we won’t include it in the enumeration of the commandments because it adds nothing new. When he says Halakhot Gedolot would be embarrassed if asked what this commands, he need not mean that Halakhot Gedolot would have no answer to what this verse commands. It commands not to profane the land. How does one profane the land? By murdering or by taking ransom for the life of a murderer. Therefore it is forbidden to profane the land—what’s the problem? The problem is that there is nothing in this that differs from the prohibition on taking ransom for the life of a murderer. The prohibition of taking ransom for the life of a murderer and the prohibition of profaning the land are the same prohibition. How does one profane the land? By taking ransom for the life of a murderer. So according to this interpretation of Maimonides, the claim is not that the verse warns me about nothing; it simply warns me again against taking ransom for the life of a murderer, so there is no point in counting it separately, because it is already counted. We already have the prohibition on taking ransom for the life of a murderer.

I remind you of what I read above, where Maimonides says this does not warn, that it “contains nothing to be counted separately.” Here you see it: “Sometimes there appears in the reasons for commandments something resembling a prohibition, and one may think they are among what should be counted separately.” What does “separately” mean? That it should be counted independently. And what is actually correct? Not to count it independently. Why? Because it is already included in something that is counted. So if I am precise about this word “separately,” then Maimonides’ intention is not that these verses command nothing; they do command, only that this command is already counted, so there is no reason to count it separately. The Torah repeats the same command twice.

Let’s try to understand the idea behind this for a moment. Suppose the Torah says: “You shall take no ransom for the life of a murderer, and not profane the land.” So let’s accept Maimonides’ exegetical innovation that this is a reason: when I take ransom for the life of a murderer, that act profanes the land. Now the Torah tells me: you are forbidden to take ransom for the life of a murderer. Why really not? Because that profanes the land, right? That’s what the Torah says. But if so, then it is not really true that I am forbidden to take ransom for the life of a murderer; rather, I am forbidden to profane the land. How does one profane the land? By taking ransom for the life of a murderer. But if there were another way to profane the land, that too should be forbidden. After all, taking ransom for the life of a murderer is not a problem in itself; the whole problem is that it profanes the land. So basically, if you think about it like that, the prohibition the Torah is prohibiting is profaning the land, not taking ransom for the life of a murderer. Taking ransom for the life of a murderer is just the way one violates the prohibition. But what is essentially forbidden? Profaning the land is forbidden.

According to this logic, then the verse “and not profane the land” really is a prohibition. It is a prohibition, just there is no point in counting it because it is already counted in “You shall take no ransom for the life of a murderer.” That’s all. But it is a prohibition. Maybe more than that: according to this interpretation, perhaps one might even have reason to do the opposite—to count only “and not profane the land,” and not to count “You shall take no ransom for the life of a murderer.” There is a prohibition against profaning the land. What does that mean? For example, not to take ransom for the life of a murderer, because that profanes the land. So the prohibition is profaning the land, not taking ransom for the life of a murderer.

The practical difference would be: if there were something else that profanes the land, that too would be forbidden. By contrast, if I count only “You shall take no ransom for the life of a murderer,” then if there is something else that profanes the land, is it forbidden? No. The Torah prohibited taking ransom for the life of a murderer, that’s all. And therefore if there is something else that profanes the land, I would not prohibit it. Okay? So the logic says that not only according to this interpretation—at most you could say that “do not profane the land” is not counted because it is already counted, not because it is not a commandment. It is a commandment, but it is already counted. But according to that, you then have to understand why not count only it and specifically drop the prohibition of taking ransom for the life of a murderer, because that is already included in “do not profane the land.” In other words, what Maimonides says here is not trivial—that we do not count reason-verses. It could be that if I saw a reason-verse, I would definitely count it. “Do not profane the land”—it is forbidden to profane the land. That is the commandment. And maybe there is not even any reason to count “You shall take no ransom for the life of a murderer,” because that is only the way one profanes the land. I am already forbidden to profane the land, so there is no need to count that separately.

So why really not? Up till now I have basically described all the reasons why one should count reason-verses. Think, for example, about a rabbinic decree: one may not read by candlelight lest one tilt the lamp. On the Sabbath it is forbidden to read by candlelight, because if the candle weakens a little or flickers or something, I may come to adjust it. And when I adjust it, I may come to kindling or extinguishing. Therefore they forbade reading by candlelight on the Sabbath. Now here too one can discuss what is actually forbidden. Is reading by candlelight forbidden, or is entering situations in which I may come to extinguish or kindle forbidden? Reading by candlelight is only the situation in which there is a concern. And if there are other situations where the same concern exists, then seemingly I should not enter those either. So that means the prohibition is not reading by candlelight; the prohibition is getting into a situation where you might extinguish or kindle on the Sabbath. And reading by candlelight is one of those situations.

Very often both the Torah and the Sages use an example in order to clarify a principle. The Torah says: “If one man’s ox gores his fellow’s ox…” then yes, he has to pay. Only when an ox gores? What if my dog bites someone—do I have to pay? The Torah says “If one man’s ox gores his fellow’s ox.” It doesn’t say anything about a dog. Obviously the Torah speaks of an ox goring as an example, but the principle is a general principle: whenever your property harms someone else, you must pay. The ox’s goring is an example. So too here: I would say “You shall take no ransom for the life of a murderer” is an example. The real idea is that it is forbidden to profane the land. If there is another way to profane the land, that too is forbidden. So that means “do not profane the land” is the prohibition, not taking ransom for the life of a murderer. But Maimonides says the opposite. Taking ransom for the life of a murderer is the prohibition, and “do not profane the land” is a reason, and that one is not counted. And the practical difference is that if there is something else that profanes the land, it is not forbidden.

So I’ll bring you back again to what I discussed—that’s why I brought the eighth root at the beginning of last semester. I think I gave there the example: why do we not cross at a red light? Those who don’t cross at a red light—why don’t we do it? One person will say: because it’s dangerous; you could get run over, you could run someone over. But no, that’s not correct. We don’t cross at a red light because there is a law that forbids crossing at a red light. Why does the law itself forbid crossing at a red light? Because it’s dangerous. But now that there is a law, I don’t cross at a red light because there is a law. If they prosecute me for crossing at a red light, they won’t prosecute me because I endangered myself—as opposed to what police officers always say when scolding someone who does this. “Don’t you know it’s dangerous?” They’re mistaken. They should scold him: “Don’t you know it’s forbidden by law?” That’s what they should say. “Whether it’s dangerous or not dangerous—leave me my own calculations about whether I want to do something dangerous. You, as a police officer, can enforce only what the law forbids. That’s all. Don’t educate me and don’t explain to me what is right and what is not right.”

What does that mean, basically? Let me ask it a little differently. Why do we need a law forbidding crossing at a red light? It’s dangerous, and if it’s dangerous then it’s forbidden because it’s dangerous. What does the law add? Why does the legislator need to establish that one may not cross at a red light? Because the legislator is what turns it into a prohibition. Before that, crossing at a red light was irrational, if you want immoral, but after it is legislated, now it is forbidden. It has become an offense on the legal level. Okay? That is basically the meaning. In other words, when we speak about a legal system, the command that tells me “do not cross at a red light” is not only meant to convey to me the fact that crossing at a red light is dangerous. Thank you very much, I already know that on my own. A command statement is not a descriptive statement. They are two types of statements, as we said earlier. The statement that says it is forbidden to cross at a red light is not a statement that reveals to me that crossing at a red light is dangerous. I knew that beforehand. It is a statement that establishes a prohibition against crossing at a red light. And now they can prosecute me if I crossed at a red light, because the fact that I did something immoral or something that endangers me is not grounds to prosecute me. It’s my right; I can do what I want. Why do you care if I’m an idiot who likes taking risks? You can prosecute me only if I violated the law, broke the law. But for that, the law has to be enacted. It is not enough that it is rational not to cross at a red light; it has to be written in the law book that one may not cross at a red light.

That means the concept of law—and this is the important point, connected to the introduction I gave from the eighth root—the concept of law is not a statement that informs me of a fact. When they tell me “Do not murder,” they do not mean to say: look, murder is bad and causes suffering to the victim’s family. No, that is not the meaning of the verse “You shall not murder.” The meaning of “You shall not murder” is that you already know it causes suffering and that it is unfit to do, and now I establish this as law: it is forbidden to murder. Now if someone murders, he will be brought to trial because he violated the law. Before that, if someone murdered, nobody would be able to bring him to trial. One could only say that he is an immoral person, a person who does not behave rationally. Fine. But you cannot prosecute him. It doesn’t belong to the legal sphere. For something to belong to the legal sphere, it requires legislation. It isn’t enough that it be rational.

Therefore, for example, there are many very rational things that never entered the legal sphere, and therefore they remained irrational not to do, but not forbidden. A case in point is the famous law of the late Hanan Porat, “do not stand idly by your neighbor’s blood.” There was a long struggle in the Knesset whether to put into the law books the law of “do not stand idly by your neighbor’s blood,” what in some other legal systems—not all— is called the Good Samaritan law. In Christian culture it is called the Good Samaritan law. What does the law say? That if you see someone in danger, you have to do what you can to save him. Fine? In traffic accidents, by the way, such a law already existed earlier. If you see something, I think you have to help. But now it’s in every situation. Okay? What, before that I didn’t know that one ought to save someone in danger? The law doesn’t come to tell me that one ought to save someone; I knew that before. The law comes to say that from now on, whoever doesn’t do that is an offender—a legal offender, not a moral one. That is the novelty of the law.

And by the way, that was exactly the whole dispute. The lawmakers who opposed that law—and in the end it passed—but the lawmakers who opposed it were not opposing the value the law reflects. Obviously you should help someone in danger. They opposed putting it into the law books. It should remain a moral norm; it should not be imposed on the legal level. If I see someone drowning in a river and I didn’t save him, I’m not okay, I’m not worthy, but what do you want from me? I didn’t do anything to him. I simply walked on. What, is it forbidden to walk on? I didn’t cause him any damage. Therefore on the legal level, that was the claim—a legal claim, not a moral one. On the legal level it is incorrect to impose a prohibition here. Give a medal to the one who did save him. Someone who did save him can go to the president and receive the award for being a moral citizen. Fine. But you can’t punish the one who didn’t; he is guilty of nothing, he didn’t do anything. What do you want from him?

In other words, there was an assumption here that although this thing ought to be done, it does not belong in the law books. By the way, even Hanan Porat, who badly wanted to put it into the law books, it wasn’t because he thought it belonged in the law books. He just really wanted to put a verse in there. That’s all: “do not stand idly by your neighbor’s blood.” And by the way, that’s why everyone opposed it too—because they didn’t want a verse in the law books. The whole argument wasn’t really about the law. And all the great celebration with which all the religious people rejoiced there after the law passed was simply hilariously amusing. As if there had been some terrible problem that people weren’t helping each other when passing by, and now at last we had solved the problem and people would start helping each other. There was no such problem, and the law wasn’t meant to solve that problem. The law was an excuse to insert a verse into the law books because that gives satisfaction to the religious. Fine? And the secular people got annoyed by that and opposed it. That’s what the argument was about—not only that. Besides that, on the substantive level the arguments were—I remember Yossi Beilin spoke about this and others—the arguments were that this doesn’t belong in the law books.

By the way, as an aside, you understand that once this law entered the law books, a difference was created between the law and Jewish law. These people wanted to insert Jewish law into the law books, and what they did was the opposite. Before this legislation, Jewish law and the law books were very similar. After they legislated the law “do not stand idly by your neighbor’s blood,” a difference was created between the law and Jewish law. Why? Because Jewish law imposes no sanction on someone who did not save his fellow, because this is a prohibition with no action. That was exactly the situation before the law was legislated. It was wrong not to save, but there was no sanction, because it was not a legal prohibition. Exactly like in Jewish law. So the civil law completely matched Jewish law. And Hanan Porat, out of his desire to get verses into the law books, created a gap—or erased the similarity—between the law and Jewish law. Now the legislator is not following Jewish law after you inserted this Jewish law into the law books. Why? Because once it enters the law books, you also have to impose a penalty on anyone who didn’t do it, and in Jewish law there is no penalty. This teaches you that all kinds of ideological agendas often do not exactly line up with the essence of the matter.

In any case, for our purposes, what I want to conclude from all this is that Maimonides speaks about reason-verses, and he says they are not counted in the enumeration of the commandments for exactly the reason he explained: because they prohibit nothing. When it says “You shall take no ransom for the life of a murderer and not profane the land,” the prohibition is not about profaning the land. There is no prohibition on profaning the land. The prohibition is taking ransom for the life of a murderer, because that is what the law prohibited. And what about “not profane the land”? Here I remind you of Maimonides’ exegetical innovation: that “not profane the land”—the “not” here is not a prohibitive “not”; rather, it is a reason. So if it is a reason, there is no reason to count it. The fact that it is improper to profane the land is true, but the big question is whether the Torah forbids profaning the land. If the word “not” in “not profane the land” does not come to forbid, then it is not a negative commandment. Okay? That is basically what Maimonides says.

And the normative innovation is tied at the navel to the exegetical innovation. Once you understand that this verse does not come to prohibit but to give a reason, then automatically we also do not count it in the enumeration of the commandments. Since as long as it was not forbidden, but you only told me that it is improper to do so, that does not yet make it a negative commandment. I could also know by myself that it is improper to do so. A negative commandment exists only when the Torah forbids it. But “not profane the land” is not a “not” that forbids. Therefore the Torah does not forbid profaning the land. If there were something else that profanes the land, what can I infer from here? That someone who did it is not okay. But you cannot say that he violated a prohibition, violated a negative commandment. He is not okay, because we see that the Torah does not want the land to be profaned. But there is no prohibition. Therefore you cannot say that he violated a prohibition. There is a difference between saying someone is not okay and saying he violated a negative commandment.

By the way, the same difference exists also between saying someone is okay and saying he fulfilled a commandment. If someone does an act beyond the letter of the law—for example, returning a lost object after the owner has given up hope. A lost object without identifying marks, a lost object where I don’t know who the owner is—one may not return it beyond the letter of the law, because then I would be robbing the real owner. I’m talking about a lost object where I do know who the owner is, only I found it after he had despaired and I took it. According to Jewish law I may keep it. Yet it says that the spirit of the Sages is pleased with one who nevertheless returns the lost object, even though it was after despair. Okay? Did someone who returned that lost object fulfill a commandment? The commandment of returning lost property? No. Because there is no obligation. Once the Torah does not command, there is no commandment. Did he do a good deed? Obviously yes. He did a good deed. In other words, there is a difference between saying you did a good deed and saying you fulfilled a commandment—just as there is a difference between saying you did something bad and saying you committed a transgression. What is the difference? Commandment or transgression requires a verse commanding it or forbidding it. A good deed or a bad deed depends on analysis of the situation—whether it is good or bad. It has nothing to do with commandments; you don’t need commands for that.

And so what Maimonides means here when he says we do not count the reason for a commandment as a commandment is that it commands nothing. It only tells me what is right and what is not right, but it does not tell me what I am commanded. Therefore it is not a commandment. And all Maimonides’ formulations that sound as if the issue is duplication—for example, look: “The fifth root: that it is not appropriate to count the reason for a commandment as a commandment in itself.” Again you see, like the word “separately” that appears in the text. What does “a commandment in itself” mean? That the reason is not an independent commandment. Why not? Seemingly one could say because it is included in the commandment itself: “You shall take no ransom for the life of a murderer and not profane the land.” Profaning the land is just repeating the prohibition of taking ransom for the life of a murderer; therefore one does not count it. It is simply a problem of duplication. But as we saw earlier, that’s not correct—that’s not what Maimonides means. One does not count it because it forbids nothing; it only tells me why it is improper to do so, and “improper” is not the same as “forbidden,” just as “proper” is not the same as “commanded.”

Okay, so first of all that’s with regard to what Maimonides himself says there. Nachmanides objects to Maimonides and says as follows: “And I say regarding this principle what the Sages say: at first glance it sounds like it supports him, but when you look into it properly, it is not so.” Nachmanides says about Maimonides—using a saying of the Sages from Ketubot—that his words sound logical at first glance, but when you look into them more deeply, it isn’t so, he is not right. What they call in Haredi yeshivot—very often they say a person is “leicht.” “Leicht” means light, from “light” in English, or “leicht” in Yiddish, same thing. What does “leicht” mean? He says sharp little quips. What does that mean? What he says sounds brilliant and very logical, but when you think about it again you realize it’s not true. Those are the good quips, at least. The bad quips are those that don’t even sound right at first glance. But the good ones are those that at first glance sound right, then afterward you think about them and understand that it’s superficial, it was light—it sounded brilliant, but when you look at it again you see that it’s not true.

What does he mean? He says later on: “For we have not seen our rabbis in the Talmud treat extra negative verses in the Torah as being unnecessary because they are reasons for the previous prohibition, unless they come to add or subtract”—that is, unless one derives a novel law from that reason. What does that mean? He says: our rabbis in the Talmud, when they saw reason-verses in the Torah, did not interpret them the way Maimonides interpreted them. Maimonides interpreted the reason-verses as verses that come to explain the previous prohibitory verse. “Do not take ransom… and do not profane the land”—so “do not profane the land” is a reason for the prohibition on taking ransom for the life of a murderer. Nachmanides says: in the Talmud they do not treat such verses that way. In the Talmud they understand that every such verse comes to add or remove some law you would not know without it. It is not a verse that comes to give a reason for the previous verse—as in the matter they disputed in tractate Sanhedrin 21, a sugya we will still see later, concerning “he shall not have too many wives, and his heart not turn away.” “He shall not have too many wives” for the king, yes, “he shall not have too many wives, and his heart not turn away.” The second negative statement, “and his heart not turn away,” is certainly the reason for the preceding prohibition on too many wives, right? According to Maimonides that should be a reason-verse. “And nevertheless the Sages of Israel disputed about it.” The tannaim dispute what the second prohibition comes to tell us. So you see they both agree it is not just there to explain the prohibition of “he shall not have too many wives.” Not: “he shall not have too many wives because his heart will turn away.” No, not as Maimonides says.

We’ll see the sugya later, and then we’ll see it in more detail. But Nachmanides says that generally, when there are reason-verses, the reason-verses do not merely explain the previous verse. And the proof is that in most prohibitions in the Torah the reason is not stated in the Torah, right? In most prohibitions in the Torah the reason is not stated. In those places where it is stated—why, says Nachmanides, did the Torah add the reason there? Apparently in order to teach us some halakhic novelty, to add or subtract a halakhic detail to the commandment that I would not know without it. If so, the second verse is not a reason-verse; it is a verse that comes to teach a law. Therefore, by this, he basically defends Halakhot Gedolot and says that one can count it in the enumeration of the commandments because it comes to teach a law.

So he does not reject Maimonides’ second innovation—that one does not count a reason-verse. On that he also agrees. He disputes Maimonides’ first innovation, the exegetical innovation that says these verses are reason-verses and not command-verses. That is not correct, he says. These verses are command-verses.

And he continues: “Furthermore, according to his words, we ought to say also in this case: What is the reason that her former husband may not return to take her? Because [otherwise] ‘you would bring sin upon the land that the Lord your God gives you as an inheritance.’ If so, then this is forbidden only in the Land of Israel and not outside the land. As they said in Sanhedrin, as we saw earlier: What is the reason for ‘he shall not multiply’? Because ‘his heart may turn away.’ What is the reason for ‘he shall not take’? Because ‘he shall not profane’—if he did not cohabit, he is not lashed. And similarly: ‘You shall not corrupt the land’ and ‘you shall not defile the land in which you dwell, in which I dwell among you.’ If so, we would then permit all this outside the Land, because the reason stated in their prohibition applies only in the Land. Rather, all of them are independent prohibitions.”

In other words, according to the logic, says Nachmanides, of Maimonides: “You shall take no ransom for the life of a murderer, and do not bring sin upon the land” should have applied only in the Land of Israel and not outside it, if indeed that were merely a reason for the previous law. But if I understand it as something that comes to add or subtract a halakhic detail, then it is not coming to provide a reason, and the previous prohibition applies both in the Land and outside it, while here there is some additional halakhic novelty. That is what Nachmanides argues against Maimonides.

So what if we do not derive law from the reason of the verse? He basically says to Maimonides: if the reason for the king’s prohibition—“he shall not have too many wives” because “his heart may turn away”—if that is so, then if there are wives who do not turn his heart away, righteous wives, then perhaps he could have many wives, right? That is what should follow according to Maimonides. But that is not correct. We have a rule that we do not derive law from the reason of the verse. We do not derive law from the reasons of verses or the reasons of commandments. Nachmanides apparently means to say that if the reason is written explicitly in the Torah, then one does derive law from it—that we will see in a bit.

“From these we learn that every place where there is a negative verse in the Torah added onto the commandment, and it is not an explicit reason for what preceded it, we take it as an independent negative commandment, like ‘it shall not be torn and it shall not be moved,’ and many verses like this.” For example: “You shall not uncover the nakedness of your daughter-in-law; she is your son’s wife; you shall not uncover her nakedness.” “According to the Rav’s approach”—meaning Maimonides—“this would only be a reason for what preceded it, because it is a great evil, seeing that she is your son’s wife, one who is obligated in your honor and toward whom you are bound in affection, and it is not fitting that you uncover her nakedness. But according to the Sages in the Talmud, this is expounded, and the second clause comes to make one liable for her even after the death of his son. And ‘she is your son’s wife’ means: I said this only when your son has legal marriage with her, excluding a raped woman, a maidservant, and a non-Jewish woman,” and so on. They derive legal details from these verses; they are not merely there to give a reason for the previous prohibition.

Then he says, “And this is the explanation of the words of Halakhot Gedolot: indeed one may ask the author of Halakhot Gedolot, as the Rav says: from what matter does this prohibition restrain?” That’s what Maimonides asked Halakhot Gedolot. You count “You shall take no ransom for the life of a murderer… and not defile the land”—what exactly does “and not defile the land” warn against? What is it excluding? Okay? “But he will not be disgraced in answering this question, nor will he be embarrassed by it. For they have already expounded in the Sifrei: ‘and not bring sin upon the land’—to warn the court about this.” So, says Nachmanides, “and not bring sin upon the land” is a warning to the court to ensure that the person does not bring sin upon the land. “Her former husband may not return to take her” is a prohibition upon him; you may not return to take her. And “and not bring sin upon the land” is an obligation on the court to make sure this does not happen. Then it is not coming to give a reason for the previous prohibition; it is coming to add a new commandment. That is Nachmanides’ claim.

Look at Maimonides in negative commandment 165. The verse says: “And from the entrance of the Tent of Meeting you shall not go out, lest you die,” regarding the priests who are serving. And regarding the High Priest it says: “And he shall not leave the Sanctuary and not profane the Sanctuary of his God, for the crown of the anointing oil of his God is upon him; I am the Lord.” On this Maimonides says as follows: “It has become clear to you that the words ‘and not profane’ are interpreted as negation, not prohibition: to say that his service shall not become profane, even though he is an onen.” Meaning, he heard that he has a dead relative, and so he is in the status of onen. On the day one hears, before burial, one is an onen. And a priest who serves while in that state—well, a priest who is impure cannot serve. A priest who is an onen, one might have thought, would invalidate the service. No: he does not invalidate the service, and he is forbidden to leave the service. Okay? “And the plain meaning of the verse is that the words ‘and not profane’ are the reason for the preceding prohibition, that he should not leave the Sanctuary so that he not profane. And according to both these explanations, this negative commandment should not be counted separately, as will be clear to one who understands the previous roots in this treatise.”

What is Maimonides saying? “And he shall not leave the Sanctuary and not profane” can be interpreted in two ways. One way: this is a negation. A negation saying that if he leaves, he profanes. Okay? But to say that if he leaves, he profanes—that commands nothing. It simply tells me a fact: if he leaves, he profanes. The prohibition is to leave; the profanation is the result of the leaving. Right? So that cannot be counted in the enumeration of the commandments. A second interpretation belongs to the eighth root of negations. A second interpretation belongs to the fifth root that we are dealing with here: “he shall not leave the Sanctuary and not profane”—why should he not leave? Because leaving profanes. That is a reason for the prohibition on leaving. And that, according to the fifth root, is not counted. Therefore Maimonides says: whether you interpret it one way or the other, one should not count “and not profane,” either because of the eighth root or because of the fifth root.

Now let’s look for a moment—I want to begin discussing the issue of deriving law from the reason of the verse, because that is the sugya underlying this root. In the Talmud in tractate Bava Metzia, the Mishnah says as follows: “A widow, whether poor or rich, one may not take a pledge from her, as it is said: ‘you shall not take a widow’s garment as a pledge.’” I lent money to a widow and I want to take collateral from her. So it says: “you shall not take a widow’s garment as a pledge.” Fine? You do not take a pledge from a widow. What about a rich widow? A poor widow, okay, we have pity on her. But what about a rich widow? So the Mishnah says: whether rich or poor. It says “you shall not take a widow’s garment as a pledge”—any widow. One may not take collateral from a widow to whom I lent money.

The Gemara says: “The rabbis taught: a widow, whether poor or rich, one may not take a pledge from her; these are the words of Rabbi Yehuda. Rabbi Shimon says: from a rich widow one may take a pledge; from a poor widow one may not, because you are required to return it to her, and you thereby give her a bad name among her neighbors.” This is very amusing. Why would Rabbi Shimon say that from a rich widow you may take a pledge but from a poor widow you may not? You’d think: because the rich widow has plenty of money, so take a pledge from her, no big deal, right? Rabbi Shimon doesn’t say that. In the case of a poor widow, since say you took her pillow, she has no pillow to sleep on at home; she doesn’t have two pillows, she’s poor. So what happens? You have to return the pillow so she can sleep on it at night, and then take it back the next morning. But then it turns out that you’re visiting her at night, and people will start gossiping about what the two of you are doing there, a man and a woman at night. Therefore one does not take a pledge from a poor widow. A rich widow, there’s no problem taking a pledge. Why? Not because she has another pillow and therefore it doesn’t bother her, but because you won’t need to come return the pillow and people won’t suspect you’re doing things with her, since she has other pillows.

So the explanation is not a moral explanation; it’s what we might call a halakhic explanation, or concern about gossip, or appearance, things like that. It’s somewhat similar to a Mishnah in tractate Bikkurim that says that the Sages enacted that when bringing first-fruits, since one has to read the declaration of first-fruits—that’s the passage we expound in the Passover Haggadah, “An Aramean sought to destroy my father,” etc., the whole declaration—the Mishnah says the Sages enacted that the priest would recite it for you and you would repeat after him. Why? What would you think? So as not to embarrass someone who doesn’t know how to read, right? Someone who doesn’t know, doesn’t know how to read. So therefore, one could say, they recited it for everyone—both those who know and those who don’t—so no one would be ashamed. No, not because of that. “Because they refrained from bringing [first-fruits].” The poor people who were ashamed because they didn’t know how to read, before they enacted that the priest would recite it for them, knew they were going to have to stand there and be embarrassed because they couldn’t say the passage. So they simply didn’t come; they didn’t bring first-fruits.

Again, seemingly we are talking about a moral issue, but in fact this law hangs on a halakhic consideration: we are concerned that he won’t fulfill the commandment of first-fruits, not that we are concerned he’ll be embarrassed. That’s very strange—why not say it simply? We don’t want him to be embarrassed. What’s the problem? The point is, it’s not because there is indifference to morality, but because in fact he won’t be embarrassed, since he simply won’t come. And if he won’t come, he won’t be embarrassed—so what is the concern that he’ll be embarrassed? He won’t be embarrassed. The concern is that he won’t fulfill the commandment of first-fruits because of embarrassment. Not because the Sages were indifferent to the poor man’s embarrassment, but because they estimated that there would be no embarrassment because he wouldn’t come.

The same thing here. I don’t think the Sages are indifferent to the distress caused to the poor widow. But the point is that the poor widow won’t suffer that distress, because at night I have to return the pledge to her. In any event I have to return the pledge, so that distress won’t occur. The whole problem is only that I “give her a bad name among her neighbors,” that the neighbors will start talking about her, saying she meets with men at night. Okay? Fine. In any case, that’s what the Mishnah says; that’s what the Gemara says. So there is a dispute here between Rabbi Yehuda and Rabbi Shimon. And the Mishnah, which says “a widow, whether poor or rich, one may not take a pledge from her,” follows Rabbi Yehuda. Rabbi Shimon disagrees and is not cited in the Mishnah.

The Gemara asks: so are we to say that Rabbi Yehuda does not derive law from the reason of the verse, while Rabbi Shimon does derive law from the reason of the verse? But haven’t we heard the opposite from them? Now before the question of where we heard the opposite—what do we have here? The dispute between Rabbi Shimon and Rabbi Yehuda is, straightforwardly, over whether one derives law from the reason of the verse. What does that mean? The verse says: “You shall not take a widow’s garment as a pledge,” one may not take collateral from a widow. Rabbi Shimon comes and derives the reason. He says: why in fact may one not take collateral from a widow? You may take collateral from everyone else, but not from a widow. Why not? Apparently because she is poor. Then you’ll come to her at night and her neighbors will gossip about her, and so on. Therefore Rabbi Shimon says: okay, if that’s the case, then this law applies only to a poor widow, not to a rich widow. That is, he derives law from the reason of the verse. He says: what is written in the verse is “you shall not take a widow’s garment as a pledge.” That is what is written. But I ask myself: what is the reason for what is written? That reason applies only to a poor widow, not to a rich widow. So apparently the law applies only to a poor widow.

Rabbi Yehuda says: whether poor or rich. Why? Because he does not derive law from the reason of the verse. What is written is widow, so widow. I don’t care about the reasons; I don’t enter into the question of reasons. Whether one derives law from the reason of the verse or not. Reasons are not supposed to take part in halakhic interpretation. And we can already see how this touches the dispute between Maimonides and Nachmanides that we saw in this root, but we’ll get to that later.

Now I want to sharpen a bit more what this means. What about all the biblical commentators who give reasons for commandments, or Maimonides in the third part of the Guide for the Perplexed, who give reasons for commandments? We rule in practice like Rabbi Yehuda, that one does not derive law from the reason of the verse. So why do all these commentators explain the commandments and give them reasons? Rabbi Yehuda himself would give them signs, not reasons. Why do commentators give reasons for commandments if we do not derive law from the reason of the verse?

The answer is that you can engage in the reasons for commandments on the exegetical level. That just cannot play a role in determining Jewish law. You can say: “you shall not take a widow’s garment as a pledge” because she is poor and miserable and has no money, therefore “you shall not take a widow’s garment as a pledge.” But don’t draw from that the halakhic conclusion that therefore this law was said only concerning a poor widow and not a rich widow. That is the point. In other words, when Rabbi Yehuda says we do not derive law from the reason of the verse, he does not mean don’t deal with the reasons for commandments. That’s what I would have said in his place, but he does not say that. Rather, he says: deal with the reasons for commandments as commentators on the Torah. But not as legal decisors. A legal decisor is not supposed to draw halakhic conclusions from reflection on the reason for the commandment.

In legal language, there is a similar dispute in the legal world, and they call it purposive interpretation. You have a certain law, and you interpret it according to its purpose. You want to know what the legislator wanted to achieve, and from that to say: if so, then the law means specifically this and not that. The accepted approach in legal interpretation is that we do not use purposive interpretation. We interpret the law according to what is written in it, not according to purposive interpretation. More than that—even if you bring me proof from the legislative history, from the words in parliament, that the legislators intended to achieve such-and-such a purpose, that too is not interesting. What interests the judge is the wording of the law before him. He has to interpret that.

Now that is an extreme formulation, and there are debates about it—whether one should take into account the parliamentary record, the minutes of committee discussions, and so on. Sometimes they do bring these things in legal rulings. But the basic approach is like this. And that is basically parallel to what we saw here, that one does not derive law from the reason of the verse. It means I do not go after the reasons; I do not do purposive interpretation. I interpret what is written out of what is written. That is Rabbi Yehuda. Therefore Rabbi Yehuda says: it says “you shall not take a widow’s garment as a pledge,” so that’s what it says. Any widow—poor widow, rich widow. That does not mean he disagrees with Rabbi Shimon on the exegetical level about what the Torah wanted, why it prohibited taking a widow’s garment as a pledge. It could be that the Torah indeed wanted to have pity on poor widows. But that doesn’t matter; halakhically I draw no conclusion from it. And Rabbi Shimon argues that if that is the interpretation, then one should also draw a halakhic conclusion. If you conclude that the Torah forbade taking a widow’s garment as a pledge because a widow is vulnerable, then clearly that applies only to a poor widow, not a rich widow.

In other words, they do not disagree about whether one may engage in interpretation, and I’ll say more than that: they may not even disagree about what the correct interpretation is. It could be that they both agree on the interpretation. Their dispute is what to do with that interpretation. Rabbi Yehuda says: nothing. Spend your time on it when it is neither day nor night; it has no halakhic significance. You cannot draw halakhic conclusions from it. Rabbi Shimon says: if that is the interpretation, then why not draw halakhic conclusions? After all, if all the Torah prohibited was taking a widow’s garment as a pledge because the widow is vulnerable, then obviously it is only a poor widow, not a rich widow. If you agree that is the interpretation, Rabbi Yehuda, then why not? Why don’t you agree that this law applies only to a poor widow and not to a rich widow? That is the dispute over whether one derives law from the reason of the verse.

I’ll add one more remark, and with this I’ll stop. Notice that when it says “you shall not take a widow’s garment as a pledge,” the Torah does not write the reason. It just says “you shall not take a widow’s garment as a pledge.” There is no reason-verse here. The reason is an exegetical hypothesis of the Sages. Rabbi Shimon—and maybe Rabbi Yehuda doesn’t dispute him on that point—thinks that this is the correct interpretation. The Sages ask themselves: what could be the reason for this prohibition in the Torah? And they come to some conclusion, some interpretation of their own. And on that there is a dispute whether one does or does not derive law from the reason of the verse.

But in the cases we were discussing in our root, it’s not like that. What is written? “He shall not have too many wives, and his heart not turn away.” And when it says “he shall not have too many wives,” regarding the king, “and his heart not turn away” is not our exegetical conclusion—it is written in the Torah, and that is the reason for the prohibition. You could say: if I don’t derive law from the reason of the verse because I worry maybe I got the interpretation wrong, here that doesn’t apply. The Torah itself says that this is the interpretation. So one might say that here one should derive law from the reason of the verse. Therefore the dispute whether one does or does not derive law from the reason of the verse does not necessarily connect directly to the discussions of Maimonides and Nachmanides in our root. The dispute over whether one derives law from the reason of the verse concerns commandments for which the Torah did not write the reason. In our case, the whole discussion is about what we do when the Torah itself explicitly writes the reason. Then the question is whether one derives law from the reason of the verse or not, and we will see how that connects to our root. Okay, I’ll stop here, and we’ll continue from here next time.