Topics in Halakhic Thought – Lecture 1

[Rabbi Michael Abraham] In this series of lectures, we’re going to deal with the philosophy of Jewish law, with meta-halakhah, and really also with the question of what stands behind halakhic principles, and also the question of what the halakhic principles themselves are — meaning, how this whole business works. The lectures will deal with various topics, as appears in the syllabus, although in the end, I hope you’ll also see that there’s a connection between the topics and that some kind of overall picture emerges here. I’ll start, basically, with what are perhaps the most fundamental questions that define what Jewish law even is. Meaning, what is this thing, or what’s the difference between it and other branches of the Torah, if there are such things, and so on. To define the concepts a bit better, the basic concept in this context is really the concept of command, and therefore I want to open our discussion with that concept. I’ll start perhaps with something Maimonides writes in the eighth root from his roots. At the beginning of the Book of Commandments, Maimonides introduces fourteen roots, which are principles for counting the commandments. Principles for counting the commandments. And there he explains how he arrived at his count of 613 commandments, the 365 prohibitions and the 248 positive commandments. He needed this mainly because he was arguing against the methods that preceded him, or the principles according to which earlier authorities worked, chiefly Halakhot Gedolot. So he lays out fourteen rules that help us understand exactly how he decided to classify the commandments and how he came out with precisely 248 and 365. The eighth root among his roots deals with what he calls negation of obligation. Let me share the screen now so you can see. One second. Okay, so Maimonides writes like this: The eighth root: that it is not proper to count negation of obligation together with warning. Meaning, verses that he calls negation of obligation cannot be considered warnings, cannot be considered prohibitions. What exactly are these things? Now he explains. Know that warning is one of the two parts of command. Meaning, in this world of commands there are two kinds, two sub-parts. This is because you command the commanded person either to do one thing or not to do it. 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.” So here there is a command to do something — a positive commandment — and here there is a command not to do something, which is a prohibition. Okay, these are two parts that fall under the concept of command. And in the Arabic language there is no term that includes both of these together, and we should remember that the Book of Commandments and also the roots were written in Arabic, unlike the Mishneh Torah, which was written in Hebrew. This was written in Arabic. So you have to remember that we’re reading a text here that is actually translated; originally it was written in Arabic. So he is writing this for Arabic readers, and he says to them: look, in the language we speak there is no common term for these two subcategories. There isn’t. “And in the Arabic language there is no name that includes these two matters together, and those who speak in the craft of logic have already mentioned this and said in their language” — logic here, by the way, has a double meaning: speech and language, “those who speak in the craft of logic,” but also logic in the sense of thought, reasoning. Okay. I think here it belongs to both fields. “And they said in their language…” Wait, I’m muting everyone here. Okay. “And those who speak in the craft of logic have already mentioned this and said in their language: however, command and warning have no term in Arabic that gathers them together, and we have had to call them both by the name of one of them, namely command.” Maimonides is basically saying that the term command, in its original meaning — we’re already so used to its borrowed usage — but originally it really describes positive commandments. Prohibitions are not correctly called commandments; they are not commands. When someone commands, he commands us to do something. A command not to do something — the proper term is not command. Maimonides says, but that’s another term, and when we want to place both the positive commandments and the prohibitions into one basket, we need to find some concept that will describe both. Maimonides says: since Arabic has no such concept, we use the term command in a borrowed sense. Although originally it describes only positive commandments, we use it metaphorically also for positive commandments and also for prohibitions. “Now it has already become clear to you that warning belongs to the matter of command.” This is an important point. On the one hand, there’s a kind of dance at two weddings here. On the one hand, he says that prohibition and positive command are not the same category. Command, the term command, really describes only positive commandments; it does not describe prohibitions. On the other hand, it is clear to Maimonides that there is something shared by these two categories. They are not identical, but there is something shared by them. Warning belongs to the matter of command. But we have a linguistic problem, because we have no name for that shared thing. So on the one hand we spoke about the two meanings of the term logic; then in the logical sense, there is something shared by positive commandments and prohibitions. Something shared. In the sense of language, of utterance, in the terminological sense, we have no term in Arabic that describes that shared thing. So therefore, says Maimonides, we use the term command, which properly belongs only to positive commandments, also to describe this shared category. If I describe this in more general language, I would say it this way: there is a certain kind of principle that includes both positive commandments and prohibitions. We don’t have a name for it, but that kind exists. Under it, under that kind, there are two species. Species, in the usual terminology, means subtypes, subgroups of the genus. Okay? Genus is the primary division, and each genus is divided into species. So this genus, which includes all the positive commandments and prohibitions, divides into two subtypes or two species: positive commandments and prohibitions. You see that I’m using the term commandments because there is no other term. Okay? But really what should have appeared here was warning and command. Warning — that’s what he said above: “it is not proper to count negation of obligation together with warning.” So in more precise language, a prohibition is a warning, not a command. He is not commanding me to do something; he is warning me not to do something. Therefore it is a warning. The term command belongs to positive commandments. But both of these are species included under some genus that includes them both. That genus has no word uniquely designating it in Arabic, so we use the word command metaphorically. “And the familiar word in Arabic, the term for warning, is the word ‘la,’ or ‘do not.’” In Arabic, that is a negative particle that warns me not to do something. The conceptual term is warning. How do you address a warning to me? You say to me: do not. Do not do such and such. Okay? “And this matter itself is found, without doubt, in every language.” This structure should really exist in every language. Meaning, that you command the commanded person to do or not to do a thing. “If so, it is clear that positive commandments and prohibitions are both complete command. There are things He commanded us to do and things He warned us not to do. And the name of what He commanded us to do is positive commandments, and the name of what we are warned against is prohibitions.” Now I remind you, all the sentences we’re reading now are in Hebrew translated from Arabic. So think of it as though we are now reading Arabic. He talks about positive commandments and prohibitions — this is really the Arabic expression for positive commandments and prohibitions; it’s the same expression. Since we have no expression that includes both of them, in both cases I use the term commandment. “And the name that includes them both in the Hebrew language” — now he tells the Arabic reader some interesting information about the Hebrew language. And he says to him: the term that includes them both in Hebrew is decree. “And so the Sages called every commandment, whether positive or negative, a decree of the King.” So he says that in Hebrew — and there is no parallel for this in Arabic — there is a term for that genus which includes the two species. That term is decree. Under it there are commandments and warnings. That is the structure in Hebrew. Decree is the genus; under it there are commandments and warnings. In Arabic too there are commandments and warnings, but there is no name parallel to the term decree. There is no common name that includes these two species together, no name for the genus. So therefore the genus is called by the name of its firstborn son, by the name of commandment. Okay? And the genus too is called commandments: positive commandments and prohibitions. In Hebrew, really, what the translator should have done here is translate this not as positive commandments and prohibitions, but as positive commandments and warnings. But he translated it literally from the Arabic, and in Arabic this is called positive commandments and prohibitions. Okay? We are already used to calling it that in our own language too. But, says Maimonides, that is really a corruption. Really we should not have done that. In fact, in the language of the Talmud a prohibition is called a warning. I don’t remember offhand, but I think that in the Talmud the phrase “negative commandments” does not appear. “And where were we warned? In ‘you shall not turn aside.’” It’s always warning. “We have heard the punishment; from where do we know the warning?” It does not say prohibition; it says warning. All right? So in Hebrew one does not use the term prohibitions. In Arabic they use it because the term commandment belongs also to the genus. So prohibitions are also included in that genus, and therefore one can call them prohibitions. In Hebrew, according to Maimonides, the term prohibitions is a mistake. Really one should say warning. Positive commandment and warning. Okay? Or commandment and warning — not positive commandment. Commandment and warning. Now Maimonides continues — in a moment I’ll return to this — “but negation of obligation is another matter, namely that you negate a predicate of a subject, and there is in it nothing whatsoever from the matter of command, as when you say: So-and-so did not eat yesterday, and so-and-so did not drink wine, and Reuven is not Shimon’s father, and the like. All of this is negation of obligation; there is no scent of command in it.” Maimonides says that the word “not” — and now I’m speaking in Hebrew, like the Arabic “la”; there too it is the same thing, I don’t know Arabic but that’s what Maimonides says — serves two meanings. The word “not” is used to warn you against something, and the word “not” is used to negate something. For example, if I say now: the sun is not shining outside right now. I didn’t command the sun not to shine; I described the fact that the sun is not shining. So the word “not” in that sentence is a word that negates a certain fact. “The sun is shining now” is false; I negate that fact: the sun is not shining now. The use of the term “not” also appears in command: “Do not stand idly by your neighbor’s blood.” Here I am not negating some fact; I am warning you not to do something. That is warning, not negation. Maimonides says: verses that are in the category of negation of obligation are not considered prohibitions, are not considered warnings. Although the word “not” appears there, it is “not” in another meaning. It is “not” in the sense of negating a certain fact. The “not” that signifies a prohibition is not negating. Okay? These are two different things. You have to remember in the background that the Sages tell us in the Talmud that we have a way to identify verses that are prohibitions. How? The Talmud says: “beware,” “lest,” and “do not.” Wherever one of these three concepts appears in the Torah — and also the term “not,” only that it is simpler so they don’t mention it; really it’s four concepts — “beware,” “lest,” and “do not” are all only in the warning sense. The word “not” appears in two meanings: either in the warning sense or in the negating sense, negating a fact. Therefore Maimonides says one must be careful not to get confused. When it says “beware,” “lest,” and “do not,” that is a prohibition. When it says “not,” you have to check. If it is in the sense of negation, this is called negation of obligation, then it is not a prohibition. If it is in the warning sense, then it is a prohibition. Okay? That is what Maimonides says. Now, of course, when I say “So-and-so did not drink wine” or “Reuven is not Shimon’s father,” there is no dilemma here. This is not some great novelty of Maimonides; it is obvious there is no warning meaning here, this is a negating meaning. But there are verses where this is less trivial. For example — I’ll skip all the details here, because what confuses people is that warning is always formulated in the future tense. “You shall not eat over the blood.” When I say “you will eat over the blood,” I am talking about something that will happen in the future. So when I warn “you shall not eat over the blood,” the tense in which that verse is formulated is future tense. And therefore it is easy to confuse negation of a fact with warning, because both are, as it were, written in the future tense. In grammar it is common to mark command as a fourth tense: past, present, future, and command. Okay? But when you look at it literally, command is formulated in a way that looks like future tense. Meaning, it is entirely parallel to future statements. Therefore this is confusing here. Doesn’t matter, Maimonides goes into that issue here. But look at the example he brings. Here I’m finishing Maimonides just on this point. Look at the passage I marked now. “And in this matter the proof needs no witness, beyond what we have mentioned from understanding the meanings of words, in order to distinguish between warning and negation.” Everyone understands that there are warning verses and negating verses, and they should not be mixed together. Up to here this is clear; no one, no child, would imagine mixing them up, saying that “Reuven did not eat bread” is a prohibition because it says “not.” Obviously this is negation and not warning. Therefore Maimonides says this needs no witness; it is obvious from understanding the meanings of words. As soon as you understand the grammar, you understand that there is here a kind of duality which is not even confusing. These are two different things. Maimonides continues and says: “But this escaped others of us” — which usually means Halakhot Gedolot; when he attacks someone in the roots, it’s usually Halakhot Gedolot — “until he counted ‘she shall not go out as the slaves go out,’ and did not know that this is negation, not warning.” It says about a Hebrew maidservant, “she shall not go out as the slaves go out.” What does that mean? Seemingly we would say — what is this, negation or warning, “she shall not go out as the slaves go out”? Seemingly this is a warning. After all, it does not describe a fact. “She shall not go out as the slaves go out” — it commands me something. It belongs to the world of Jewish law, of commands; it does not belong to the world of facts. Right? Therefore here we really enter a somewhat more confusing point. When Halakhot Gedolot writes “she shall not go out as the slaves go out,” it says this is a prohibition. Maimonides says Halakhot Gedolot got confused. This is negation of obligation, not warning. Why? Why is that really so? Maimonides says like this — and now you’ll understand: this is no longer the same as “the sun isn’t shining right now outside.” There Halakhot Gedolot would not get confused. It is obvious that that is negation of obligation; it is a factual matter, not a normative one, not something that commands or warns. That’s obvious. But “she shall not go out as the slaves go out” is subtler. Here, seemingly, this is a verse with halakhic content; it does not speak about facts. It does not describe that someone did not do something, nor describe some fact, nor negate some fact. It commands something; it says something related to Jewish law. “She shall not go out as the slaves go out.” About this too, Maimonides says, it is negation of obligation and not warning. What is the difference between them? Why is that so? Maimonides says this: “And the explanation of this is as I shall tell you.” “And the explanation of this is as I shall tell you,” third line from the highlighted section, “namely, because God has already judged regarding one who strikes his Canaanite slave or maidservant and by striking removes one of the extremities of the limbs, that he goes out to freedom.” Yes, if there is a Canaanite slave or maidservant, then if I remove a limb — I struck him and put out his eye, or one of the twenty-four extremities — he goes free. That’s what the Torah says, all right? Maimonides says this: “And it would have arisen in our minds that if this is so regarding a Canaanite slave, then all the more so regarding a Hebrew maidservant, that when one of her limbs is removed she should go out to freedom.” So in simple terms, what would we have said? This is written regarding a Canaanite slave and Canaanite maidservant. What about a Hebrew maidservant whom he struck and put out her eye? Maimonides says: apparently, by an a fortiori inference, if regarding Canaanites we free them, then regarding a Hebrew maidservant all the more so we should free her. Maimonides says: that’s what we would have thought, “and He negated this law in her case by saying: ‘she shall not go out as the slaves go out.’ As if to say: it is not incumbent that she go free through loss of one of her limbs. And this is negation of law in her case, not warning.” “And so too the traditional interpreters explained it and said in the Mekhilta: ‘she shall not go out as the slaves go out’ — she does not go out through loss of limbs in the way the Canaanites go out.” What is Maimonides saying? “She shall not go out as the slaves go out” does not mean a prohibition against letting her out. There is no prohibition at all. All this does is negate. There is a law of freedom through loss of limbs in a Canaanite slave and Canaanite maidservant. This verse negates that law with respect to a Hebrew maidservant. A Hebrew maidservant does not have that law of freedom through loss of limbs. That’s all. So the “not” in our case is not warning. It is not negating a fact, true, in this case it is negating a law. But still, the “not” is not coming to warn me against something; it is coming to negate the existence of the law of the Canaanite slave and Canaanite maidservant in the case of a Hebrew maidservant. In a Hebrew maidservant there is no such law. Even if you put out her eye, she does not go free because of that. Therefore, says Maimonides, Halakhot Gedolot is mistaken in counting “she shall not go out as the slaves go out” as a prohibition. Now, perhaps just — we came back to this — before I continue with the lecture. The instruction, unlike last year, is that for now people should sit with cameras on. For me too this is very important, because I want to see who I’m talking to, to see faces. So if someone has some special issue or something like that, speak to me, but as a matter of principle please open your cameras so we can see who we’re talking to. All right? Good. Again, if there’s some issue or something like that, fine, tell me, and at least as a one-time thing that’s okay, it’s not a wall. But in principle, really, just so we can have some kind of eye contact. This Zoom thing already drives me crazy as it is. Okay. All right? Is everyone with me? There are still a few people here with cameras off. If there’s some issue, I don’t know. Okay. Itamar. Okay. Anyway, one second. Okay, so let’s continue. Basically, let’s go back for a moment to the first point with which Maimonides begins. There is something shared by positive commandments and prohibitions together. What is that shared thing? What is the — I’m not talking about what distinguishes them, and Maimonides explained that — but rather about his assumption that nevertheless they also share something. And the question is: what is that shared thing? In the simple sense, what they share — I’ll formulate this in negative terms — what they share is that they are not declarative verses. They belong to a different category. Declarative verses are fact verses. There is a fact: the fact is that there is a table here, the fact is that this wall is such-and-such a color or such-and-such a height, the fact is that there is a microphone here. Okay, these are facts. There are negative facts and positive facts, it doesn’t matter, but they are all facts, neutral matters. Opposed to facts, there is another kind of sentence that does not describe. Therefore they are not declarative verses. They are called imperative verses, but according to Maimonides it would perhaps be more accurate to call them decree verses. Okay? Because that is the shared term for both, that they are not descriptive verses but verses that demand something of me, either to do or not to do — positive commandments or prohibitions. Therefore they do not belong to the branch of descriptive verses, or in philosophy they are called descriptive statements, but rather they are prescriptive statements. These are statements that tell me, direct me, to do something. They are not descriptive statements. Okay? Therefore in that sense, when I now say “the sun is shining outside,” that is a descriptive sentence. In this case a false descriptive sentence. But a descriptive sentence. Okay? When I say now “the sun is not shining outside,” that too is a descriptive sentence. In this case a true descriptive sentence. Okay? By contrast, when I say “murder is forbidden,” then it depends. If I mean to describe what appears in the law book, then that is a descriptive statement. But then I have not formulated it correctly. The statement “murder is forbidden” does not describe what is in the law book. The statement “murder is forbidden” says that murder is forbidden, forbids me to murder. There is a prohibition against murder, yes? If I am describing something in the law book, I say: in the law book of the State of Israel there exists a prohibition against murder. That is a descriptive sentence. That is a descriptive statement. But the sentence “murder is forbidden” describes nothing. It says that murder is forbidden. Okay, I command you not to murder, fine, let me put it that way. This is not a descriptive sentence. The same thing when I tell you to rest on the Sabbath. That is not a descriptive sentence; it is a commanding sentence. Okay? By contrast, if I say that in the law book of the State of Israel it is forbidden to work on the Sabbath without a special permit, that is a descriptive sentence. It tells me what is in the law book of the State of Israel; it commands nothing. Okay? One implication, for example, is that if I say: look, you’re forbidden to work on the Sabbath because in the law book of the State of Israel it says there is a law forbidding work on the Sabbath — that argument is an invalid argument. It is invalid because the claim that in the law book of the State of Israel there exists a prohibition against working on the Sabbath is a descriptive claim. That’s a fact. I cannot derive from it the norm that I am forbidden to work on the Sabbath. In order to derive the norm I have to add another premise: that the law of the State of Israel binds me. Now it is a valid argument. It says: there is a law in the State of Israel forbidding work on the Sabbath; the law of the State of Israel binds me; conclusion: I am forbidden to work on the Sabbath. That is a good argument. But I have to add the middle term. Right? When I say the law of the State of Israel — there is a law book of the State of Israel forbidding work on the Sabbath — that still does not mean that I am forbidden to work on the Sabbath. For example, if I am not a resident of the State of Israel, or simply if I do not feel bound by the law, then no, from my perspective I have no prohibition against working on the Sabbath. I need another principle in order to lead me from the description to the norm. This is usually called the naturalistic fallacy in philosophy, although that is not an exact expression. This is David Hume’s ought and is, the relation between ought — what should be — and is — what exists. So you cannot derive the ought from the is. You cannot derive from some fact a norm — that one must do or must not do. In order to move from facts to norms, you need some additional mediating assumption, that what is written in the law book binds me, for example. By contrast, if I say to you: do not murder — okay? Assuming, of course, that I am an entity with authority — then the statement itself basically means that there is upon you a prohibition against murder. That is the meaning of the statement. I do not need another principle. That is the meaning of the statement. Therefore, for example — I’ll give you an example that I’ll come back to later — when people ask me, “Why obey the law?” that is a question that takes up a great deal of space in legal philosophy, or meta-legal thought: why obey the law? Various explanations are offered. It’s not enough to say “because that’s what the law says,” right? To say that’s what the law says is descriptive — that in the law book it says such and such. How do you derive from that that I am forbidden or obligated to do this? Here explanations are needed. Every citizen must obey the law, there is a social contract, gratitude, all kinds of things, fear, it doesn’t matter, each person and his explanations. But when people tell me there is a commandment that the Holy One, blessed be He, commanded you to keep the Sabbath, or a prohibition against eating non-kosher food — okay? Then for many people, if you ask them, “Yes, but why do that?” they won’t understand what you want. Because there is a commandment — what do you mean? Because the Holy One, blessed be He, commanded. What’s the difference? The difference is that they assume that God’s command comes from a factor that has authority with respect to them. And if He is a factor with authority with respect to them, then the moment He tells you “do not murder,” that means there is upon you a command not to murder. So there is no need for any further principle in order to reach the conclusion that I am forbidden to murder. Once I have been commanded — and again, not everyone can command me — assuming that the command really came from a factor with authority, then nothing more is required in order to say that I must do this. Since when He says to me “do not murder,” it is not a descriptive statement. It is a prescriptive statement. It says: you may not murder. I forbid you to murder. Okay? By contrast, regarding the law, one can discuss this. Maybe there are people who think that the legislator too has some kind of mandatory authority and that what he says binds us automatically even without explanations. But here I know many people who do not think that way. I don’t either. So here some justification is required. The fact that he commanded — fine, he commanded — but who says that because he commanded, that binds me? So there are explanations, all kinds of explanations. Therefore very often the search for why to keep commandments turns up empty, because you are looking for some additional principle that will explain it, but there is no such principle. Nor is such a principle required. Once the Holy One, blessed be He, commanded, that is what binds. I return to Maimonides in — we’ll come back to this distinction because it is an important distinction. But I return for a moment to Maimonides in the eighth root. What I actually want to argue is that there are two grammatical categories that reflect two logical categories — again, the two meanings of the term logic, language and reasoning, yes — expression and the ideas I express. Descriptive verses describe facts, with neutral matters. From those facts one cannot derive any prohibition and any commandment. This is the naturalistic fallacy, or the relation between is and ought. And there is another category of verses in language, on the linguistic plane; there is another category of verses that are verses which decree upon me — I’m using Maimonides’ terminology — or command, if you want, in the borrowed Arabic terminology. Okay? They command me to do or not to do. They are not descriptive verses. This is a different kind of verse. This kind is called decrees, says Maimonides. This is a different category from the category of descriptive verses. The decrees themselves are a genus as against the descriptions, the facts being described, and that genus divides into two species. One species is commandments and the second species is warnings. Now I’m speaking in Hebrew terms already. Commandments and warnings, or positive commandments and negative warnings. But both of these species belong to the genus of prescriptive verses, the non-descriptive verses, not the describing verses, but the demanding verses. Okay? They demand something from you, either command or forbid, but they try to move you to action or deter you from action. A descriptive verse tells me nothing. It does not move me to action and it does not deter me from action. It is a descriptive verse. I now have to consider whether I want to do something with that fact I was told about or not. It is a neutral sentence. It is not a loaded sentence. A prescriptive sentence is a loaded sentence, either with a positive charge or a negative charge. And that is the difference between prescriptive verses — meaning decrees that are commandments — and decrees that are warnings. Now, I did all this hair-splitting in order to sharpen the point that the world of commands is an independent world. It is a world that exists entirely separately from the world of facts. These are two independent categories, and in principle there is no connection between them. No connection. A fact, any fact whatever, says nothing in itself. I’ll give you an example. There are people who say that, for example, proposals for changing Jewish law — we’ll get to that later, but I’m already foreshadowing — proposals for changing Jewish law that are based on descriptive claims. Okay, for example, they tell me women are disqualified from testimony. It says in the Talmud, tractate Shevuot, women are disqualified from testimony. So there are… there are those who want to argue, fine, but today women are already more educated, they go out to work, they hold senior positions, and so on, and therefore today they should be validated for testimony. That claim is an invalid claim, an invalid argument. Why? Because the fact that women once were not educated and today are educated — those are two facts. That is true. But how do you derive from those facts the norm? A halakhic ruling is a norm. It sounds prescriptive: that women are not disqualified from testimony, women are fit for testimony. Women can testify. Rabbi, it’s because they assume it’s due to lack of competence. Okay. Meaning, in order to move from the facts to the norm, another premise has to be added. As I said before. And in this case you’re right. The premise is that women’s disqualification stemmed from their being uneducated. But you have to add that. And note the character of that premise, its logical character: it is a premise that mediates between the plane of facts and the plane of norms. Right? Basically it says that one who is not — one second — one who is not educated — wait, sorry, one second — one who is not educated is disqualified from testimony. Right?

[Speaker D] Rabbi, but wasn’t there — one second, I’ll wait.

[Rabbi Michael Abraham] One who is not educated is disqualified from testimony. Not educated is a fact; disqualified from testimony is a norm. So that premise is a premise that links the plane of facts to the plane of norms. Without it I cannot obtain the normative conclusion. But when someone tells me murder is forbidden, you do not need to add anything. The moment someone tells me murder is forbidden, that means there is a prohibition against murder. The normative conclusion is written here. There is nowhere further for me to go. Okay? Therefore this is a completely different category. Okay, Itamar, yes.

[Speaker D] But back then — I’m talking about periods long, long ago — weren’t there also men who were uneducated? I mean, the assumption that women were uneducated and therefore can’t testify — like, why is that…

[Rabbi Michael Abraham] You’re pulling me into a discussion about women’s fitness for testimony. That’s not our topic.

[Speaker D] I think the discussion kind of got there on its own. The claim was that they were uneducated and therefore couldn’t testify, and in that period were all the men educated? That sounds like a very far-fetched claim.

[Rabbi Michael Abraham] I used it—it’s not a far-fetched claim—but I’m not going into that here, because I used that argument to explain the logic. I’m not getting into the question now of whether women are fit to serve as witnesses or not. The logic says that you can’t derive a norm from facts. Now, whether the facts are correct or incorrect, whether the norm is correct or incorrect—that’s not important to me right now. That’s a different discussion. What matters to me here is the logic. I used this only as an example. I used it as an example to show the gap that exists between factual claims and normative claims. Okay? When we get to changes in Jewish law, I’ll address your claim too. We’ll get later to changes in Jewish law, and then I’ll deal with your claim. All right? Okay. Now let’s move on. So basically, what I want to extract from Maimonides is that there is some different category of claims that are not descriptive claims; they are normative claims, and they divide into two types: positive commandments and prohibitions. Halakha—what’s called halakha—is the part of the Torah made up of the verses that belong to that category. In the Torah there are, after all, two categories of verses. There are descriptive verses: Abraham went there, Isaac went here, Pharaoh this, he said this to him, he said that to him, stories and tales and events that happened there, and so on. But all those verses are descriptive verses. There are verses of another kind in halakha, which are commanding verses. Okay? Commanding or legislating. Right? Both commanding and warning. That’s what’s called—the other verses in the Torah—that’s what’s called halakha. Let’s try for a moment to think about Rashi’s very first comment on the Torah. Rashi’s first comment on the Torah asks, Rabbi Yitzhak said: why didn’t Scripture begin with “This month shall be for you the beginning of months”? Right? The famous first Rashi. What’s the meaning of that? Why indeed should it have begun with “This month shall be for you the beginning of months”?

[Speaker C] If the purpose of the Torah is to command us as human beings—

[Rabbi Michael Abraham] —obligations, then it should start with a command. Right. Rabbi Yitzhak’s assumption, apparently, is that the main point of the Torah, or the purpose of the Torah, is the commands, the commandments, halakha—let’s call it that for now—halakha, positive commandments and warnings. Okay? All of that together is what’s called halakha. Rabbi Yitzhak asks: until we get to the first command, we basically have a whole book and a quarter, something like that, until the middle of Parashat Shemot—Parashat Bo, sorry. Why? Why is that written? And his assumption is that Torah comes from the root meaning instruction; it’s the same root. Instruction means decree, yes, command. Command and warning. Therefore, there needs to be an explanation for why verses that belong to the descriptive category appear in the Torah. Why doesn’t the Torah contain only prescriptive verses? Why weren’t we simply given, at Sinai, why wasn’t what we received at Sinai just Maimonides’ Mishneh Torah or the Shulchan Arukh? Why were we given a Torah that also contains descriptive components and not only prescriptive ones? Okay, that is basically the question. Now, there is also an assumption here beyond the distinction between the two kinds. There is also an assumption—let’s call it evaluative or hierarchical. What is primary and what is secondary? What should have been obvious, and what needs an explanation for why it appears at all? That is another topic we’ll have to deal with, but for now I’m using Rabbi Yitzhak only to show the distinction. Meaning, he distinguishes that there are two types of verses in the Torah. There are commanding or warning verses—that is halakha—and there are descriptive verses, which are the other branch of the Torah. That is not the halakhic branch. Now I want to show this perhaps from other angles. What is actually the meaning of this concept, command? You know what—one second before I continue, I’ve barely given any introduction to the series as a whole, so just two sentences. I simply want to go out for a three-minute break. In our Zoom training sessions that they gave us from time to time over the break, all the lecturers explained to us that people can’t hold out for more than a quarter of an hour, ten minutes, twenty minutes if they have nerves of steel on Zoom—especially when they’re on Zoom all day and not just in one lecture, or at least for a significant part of the day. Now I think that’s overly pessimistic, also in light of experience; all in all, I’ve been working with Zoom for quite a few months already. But what I think is nice—but who says it’s true? So since I’m more optimistic, and I think you can do these things without bringing down chariots of fire from heaven and entertaining you with all kinds of gimmicks to wake you up, I basically teach in a frontal way. What I will do, though, is in the middle—I’ll try in the middle of the class—to take a three-minute break. Go wash your face, take a cup of coffee or whatever, something like that just to refresh yourselves and come back, instead of trying all sorts of useless amusements, means—what they call didactic, pedagogical means—but those are really just ways to stay awake. They don’t help the didactics and the… So therefore we’ll take a three-minute break. Just before we go out, I only want to ask you: I want feedback. Meaning, if someone agrees with those people who gave me those training sessions and thinks that what I’m doing here is too long and too hard to follow, tell me. I want to see how many such people there are, and maybe we’ll nevertheless need to reach some other conclusion—although once again, I’m saying, we still do have a framework and we need to learn too, so there’ll be a limit to that. But I do want to hear how realistic my assessment is. And of course on any other topic as well, I ask you—or invite you—to contact me by email, WhatsApp, or the chats here, although I usually don’t look at chats during the lecture because it interferes with attention and the continuous flow of it. So you’re welcome to contact me about anything—those who belong to my group, of course, since I’m defined as their instructor, and those who don’t as well, you’re certainly welcome. And one last note that they asked us in general to tell people: note that the study sessions need to be done on the Beit Midrash Zoom site. Anyone who has a study-session unit needs to go in there, to the Zoom site; there’s an instructor managing it, each time slot has a different instructor, but you need to go in there because our impression is that some people aren’t aware of it, or don’t know how to enter, or I don’t know exactly what—but in any case attendance there is pretty sparse. So people need to know, and entry to that Zoom site, at least for now, is on the institute website. On the side there’s a news section, a little news window. So you’ll see there a link; click the link, and you’ll be on the Beit Midrash Zoom. Okay, that’s just for the general good. As for our classes here, I’m asking for feedback from you, or give me responses and comments and suggestions, criticism, whatever, requests—you’re welcome on any subject, even not about the class. Anyone who wants, of course, always with great pleasure. So in short, we’re going out for three minutes. Go get up, wash your face, refresh yourselves a bit, take some kind of drink or something, and we’ll come back. All right? Okay.

[Speaker E] Another question in the meantime. Yes, yes. Why, if it’s authority with regard to what you said—so God commanded—why, if I assume that’s an authority, does that then give me a reason to obey? Because you could also ask about that: who says I need to listen to anyone?

[Rabbi Michael Abraham] You can ask. You can refuse to recognize the authority of the Holy One, blessed be He. But if you do recognize His authority—after all, if you don’t recognize someone’s authority, then the fact that he commands you isn’t a command; it’s maybe…

[Speaker E] Why, why, why does authority itself—I define him as an authority figure—but why does that necessarily obligate me to act?

[Rabbi Michael Abraham] Because that is what authority means. Authority means that when someone tells you something, you have to do it; otherwise you think he has no authority. Fine—if that’s your outlook, I understand. But assuming that you do see him as an authority figure, then there’s no room for a further question. When he tells you it is forbidden, that is what forbidden means.

[Speaker E] Meaning from the very fact that he is an authority figure, that already obligates me.

[Rabbi Michael Abraham] That’s the concept of authority. It doesn’t need anything added. That is the meaning of seeing him as an authoritative figure. Got it. I’ll sharpen that in another moment. Okay. I also have to keep my head straight with this Zoom. Don’t ask. Thursday already—I already sent out notices about a class I’m giving tonight. Maybe there is something to these people who gave us the training sessions. Okay, we’re back. So the claim, basically, is that command is a very fundamental concept that stands opposite to, or in contrast with, description. In the terminology—they call them command verses and indicative verses. Indicative verses simply describe facts. Command verses, or legislative verses in Maimonides’ language, are verses that impose all kinds of things on us. Now I want to make this point, the meaning of this point, a bit clearer. Suppose, for example, that we want to cross the street at a traffic light, but there is no law forbidding crossing on red, okay? But there is a red light and a green light for the public good, but there is no law forbidding crossing on red and obligating crossing on green, okay? Do I need to stop on red and cross only on green? If I were to explain that the obligation to cross only on green, or not to cross on red, is based on the fact that it is dangerous, then there is still such an obligation. What do I care whether there was such a law enacted by the Knesset or not? Right?

[Speaker F] Unless that’s assuming that it’s forbidden to endanger yourself.

[Rabbi Michael Abraham] Yes, yes—but I’m saying, assuming for now that I accept that assumption. So if the explanation for why it’s forbidden to cross on red is that it’s dangerous, dangerous can be true even if the Knesset never enacted that law. So in what sense—what happens when the Knesset enacts the law? What changed? The danger didn’t necessarily change. Let’s say everyone—yes, you could say it’s also not dangerous because if people don’t obey it then it’s no safer to cross on green than on red, because there isn’t that agreement that you only cross on green and stand on red. But let’s say people do tend to obey it, all right? At least the way they obey it today when there is a law. So what changed when the Knesset enacted the law?

[Speaker F] In such an ideal world it really has no significance, no? Huh? In such a perfect world the law really has no significance.

[Rabbi Michael Abraham] It definitely has significance. That’s exactly what I wanted to sharpen here. Because before the Knesset enacted the law, we were supposed not to cross because it’s dangerous. But if I did cross, could anyone come with complaints against me? So I’m a fool, I’m endangering my life—what can you do? But no one can come with complaints against me; I didn’t do something forbidden, I did something stupid at most. After the law was enacted, now it’s no longer voluntary or up to my discretion—again, assuming the law is binding, of course—but now people can come with complaints against me, because it is forbidden to cross on red, not merely unwise to cross on red, not merely irrational or stupid to cross on red, but forbidden. You understand that this is a different concept, right? Now therefore, when people say, why should we obey the law?—if the explanation is because if we don’t obey the law we could die and it’s very dangerous, okay?—that is not the explanation, that cannot be the explanation for the obligation to obey the law. I’m talking at the moment about traffic laws, okay? That cannot be the explanation, because that explanation leaves the matter to my own judgment. It is true, of course, that crossing on red is dangerous and stupid, okay? But that cannot be an explanation for why it is a law, why it forbids me from doing something.

[Speaker F] If there’s a law, then you can also punish.

[Rabbi Michael Abraham] Exactly. That’s the implication. But the implication is that you can also punish—why? Because what I did was not only stupid, it was also forbidden. And that is not the same thing. Saying that it’s stupid belongs to the factual plane, because I could end up dying. Saying that it’s forbidden belongs to the plane of norms. Therefore these are totally different statements; there is no connection between them. You cannot derive the claim that it is forbidden—the normative claim—from the factual claim that it is dangerous or stupid. Okay? Those are two completely different statements. This is a very important point. Therefore, for example, when people ask me why observe the Sabbath? People say: why observe the Sabbath? Because it greatly strengthens the family, and reminds us of the act of creation, and it has many very, very important values. Maybe yes and maybe no—I don’t know. But that is not the reason why one must observe the Sabbath. The reason one must observe the Sabbath is because the Holy One, blessed be He, commanded it. You can ask why He commanded it, what His motivation was, what He wanted to achieve—that’s a great question—but as far as I’m concerned, it obligates because there is a command. The reason of the verse, the reason why He commanded it—that is the reason of the verse. In Jewish law we do not generally interpret law based on the reason of the verse—the dispute of Rabbi Shimon and Rabbi Yehuda—we do not derive law from the reason of the verse. And why not? At bottom, we do not derive law from the reason of the verse because we perform the command not because of its reason. Even if—even if in principle it had no reason, we would still be supposed to do it. Someone who does it only because of the reason is not fulfilling the command. Not fulfilling the command. He is simply a reasonable person, a rational person. He is not fulfilling the command. Let’s look at Maimonides, who says this pretty clearly. Again, I’m sharing with you the Responsa Project, Maimonides, Laws of Kings, at the end of chapter 8. One second—here. I’m sharing the screen with you. Look at the last law. “Anyone who accepts the seven commandments and is careful to observe them is among the pious of the nations of the world and has a share in the world to come.” We’re speaking here about a resident alien. A resident alien is a gentile who has accepted upon himself to observe the seven Noahide commandments. Okay? So if he accepts the seven Noahide commandments and is careful to observe them, he is among the pious of the nations of the world and has a share in the world to come. “Provided that he accepts and performs them because the Holy One, blessed be He, commanded them in the Torah, and informed us through Moses our teacher that the descendants of Noah had previously been commanded regarding them. But if he does them because his reason compels him to, he is not a resident alien, and is not among the pious of the nations of the world, nor among their wise men”—there is another version here, “but among their wise men.” The more authoritative version is “but,” not “nor.” Look in the Frankel edition of Maimonides; he brings the different versions, and they too conclude that it should be “but,” not “nor.” What does this mean? Maimonides says this: if there is a gentile who keeps the seven Noahide commandments because of rational conviction, because it is logical, because it is moral, because it is good to behave that way—he is not a resident alien, and he is not among the pious of the nations of the world, but among their wise men. What does that mean? He is doing correct things. He does not murder, he does not steal, he maintains the laws, and so on. So he behaves properly; he is among the wise of the nations of the world. Meaning he behaves in a proper and correct way. But he is not among the pious of the nations of the world. What does that mean—not wearing a shtreimel? “Not among the pious of the nations of the world” means that his acts have no religious value. They have moral value, they have rational value, but they do not have what we may call halakhic or religious value. Okay? Why? Because those acts have religious or halakhic value only when—notice his second line—when “he accepts and performs them because the Holy One, blessed be He, commanded them in the Torah, and informed us through Moses our teacher that the descendants of Noah had previously been commanded regarding them.” For this act to count as a commandment, for him to be among the pious of the nations of the world and not only among their wise men, for it to be an act with religious significance and not merely an act with moral, rational, human significance, it has to be done because the Holy One, blessed be He, commanded us through Moses at Sinai. If you don’t do it for that reason, even though you keep all the Noahide commandments, you observe everything, strict and lenient alike, but you don’t do it because the Holy One, blessed be He, commanded Moses at Sinai—instead you do it because it makes sense, because rational conviction compels you—then it is not a commandment. It is a good act, but it is not a commandment. You are behaving properly, like a worthy person, but you are not fulfilling a commandment here. That is the claim. Now, there are discussions here about where Maimonides gets this from, what exactly his source is, and so on—we won’t get into that here. He does not have a simple source. In my opinion the source is reason itself. Rabbi? Yes.

[Speaker G] Rabbi, this is also true for Jews, right? That if we rule that commandments require intention, then the minimal intention, if I remember correctly, is the intention that this is a command of the Holy One, blessed be He, so if you don’t do it then there’s no religious value, so to speak, in what you’re doing.

[Rabbi Michael Abraham] No, no. The question of whether commandments require intention or do not require intention is already a dispute in the Talmud, and afterward among the halakhic decisors. And among the halakhic decisors down to our day there is a major dispute as to whether, in practice, commandments require intention or do not require intention. Maimonides’ words here are true according to everyone, even according to the view that commandments do not require intention. Because someone who says that commandments do not require intention still says that, on the fundamental level, if you ask me why I put on tefillin—it’s because the Holy One, blessed be He, commanded it; why do I do it? But if you ask whether, when I went to put them on in practice, I had the intention to fulfill my obligation—that is the intention meant in the discussion whether commandments require intention, the intention to fulfill one’s obligation. No. According to the view that commandments do not require intention, such a commandment is still a commandment. Why? Because I am doing it—it is obvious that my basic motivation is because the Holy One, blessed be He, commanded it. I simply did not have the actual intention at the time of performance, and therefore according to the view that commandments require intention, it is not a commandment. But according to the view that commandments do not require intention, that too is fine. But if a person does not believe in the Holy One, blessed be He, at all, or in the command at Sinai—that is, you believe in God in some philosophical sense as Creator of the world, but you do not accept that He commanded us commandments—then your commandments are not commandments. When Chabad people put tefillin on all kinds of people on the street, if they happen to land on someone who doesn’t believe in the revelation at Sinai or in commandments, then he did not perform a commandment even if he put on the tefillin. In that case he didn’t even do a worthy act; it’s just a meaningless act, because tefillin is a commandment, so it’s not a moral act. If it’s a commandment, then you performed a commandment; and if you didn’t perform a commandment, then you did nothing. So whether that putting on of tefillin means anything depends on whom. But if you take such atheists, or people who believe in God but not in commands, not in halakha, then they simply did not perform a commandment; they just wrapped their heads with black straps, that’s all. There is a very interesting correspondence between Rabbi Yitzhak Hutner and the Lubavitcher Rebbe on this matter. Maybe you can try to look for it online—I no longer remember; I looked for it once and afterward couldn’t find it. But I once saw it, I read it, a really interesting correspondence. Rabbi Yitzhak Hutner sends him what I wrote—what I said here. And the Lubavitcher Rebbe argues with him whether that’s true or not, but my own view is simply that Rabbi Yitzhak Hutner is right. I think that fundamentally the Lubavitcher Rebbe argued that there is some point inside every Jew such that basically, at root, he does it because the Holy One, blessed be He, commanded it. Even though he is ostensibly an atheist and doesn’t believe, or doesn’t believe in God or doesn’t believe in commandments, still basically, deep down, he does believe. Fine, we’ll talk about that more later; I don’t accept those claims. But the principle written in Maimonides is that only observance stemming from responding to a command counts as a commandment. If you do the same act but not in response to a command, rather because of rational conviction, as Maimonides says, then it is not a commandment. A good act, but not a commandment. For example, you know, there was a Zionist thinker called Ahad Ha’am, right? Cultural Zionism. And he advocated that one should keep halakha, yes? “More than the Jewish people kept the Sabbath, the Sabbath kept the Jewish people”—that’s his statement, not a midrash of the sages. And he argued that one should observe halakha as part of the national identity of the people. It will preserve us, our culture, our cohesion, and the like. Suppose for the sake of argument that Ahad Ha’am kept the Sabbath down to the last detail, with every small clause in the Mishnah Berurah. The man never once observed the Sabbath. Never once observed the Sabbath. In my view, the man was an apostate to the whole Torah as a Sabbath violator. He didn’t violate it, of course—he simply didn’t observe it. Okay? An interesting question whether, in order to be an apostate, you have to be one who violates, or whether it is enough simply not to be one who observes. Fine, maybe we’ll also talk about that later. In any case—why not? Because to observe it because of rational conviction, which is what Maimonides writes here—what he is really saying is that to observe it because of rational conviction is not a commandment. Maybe it has some national value—you can debate that, I’m not sure, maybe yes maybe no. But a commandment it is not. In other words, what I want to claim is that what Maimonides says about the resident alien is also true for Jews, not only for a resident alien. Why does he place this law specifically in Laws of Kings, where he is dealing with the resident alien? Because in the case of the resident alien, the commandments under discussion—what Maimonides calls the seven Noahide commandments—Maimonides says these are things toward which reason inclines. Yes, the seven Noahide commandments are logical, moral commandments and the like. In halakha there are also many other kinds of commandments. So with what kinds of commandments is it even possible that a person would observe them because of rational conviction and not because of the command at Sinai? Nobody is going to put on tefillin because of rational conviction, or redeem a firstborn donkey because of rational conviction, right? A person can refrain from murder, or observe moral commandments, because of rational conviction. So in my view, that is why Maimonides placed it in the laws of the resident alien. But really it is also true for Jews. It is true for everything. But for the resident alien, his commandments are such that it is entirely possible that he will observe them because of rational conviction. Therefore Maimonides notes this point there: if you do it because of rational conviction and not because of the command, then it is not a commandment. But this is also true for Jews. And if you look there in the index volume of the Frankel Maimonides, look in the index volume on this law, you’ll see that the Oneg Yom Tov and Sho’el U’Meshiv discuss this, and most later authorities assume that this is true for Jews as well and not only for gentiles.

[Speaker H] Rabbi, according to this, then also…

[Rabbi Michael Abraham] Again?

[Speaker H] According to what you said earlier, commandments performed not for their own sake also are not directed to the true intention, so they too are not a commandment.

[Rabbi Michael Abraham] What do you mean by commandments performed not for their own sake?

[Speaker H] If I now perform something in order to receive reward and not for the sake of the commandment—

[Rabbi Michael Abraham] No, no, that is completely a commandment.

[Rabbi Michael Abraham] I’m speaking only about commandments that are not done because of the command. Not what I want to achieve, but rather: I do it—for example, one who gives charity on condition that his son will live. So the Talmud says that this is full-fledged charity; he receives the commandment. Why? Because he performs the commandment of charity because the Holy One, blessed be He, commanded it, only he performs what the Holy One, blessed be He, commanded in the hope of receiving reward. But it is clear that from his standpoint he is doing something that the Holy One, blessed be He, commanded; he is not doing something because rational conviction compels him.

[Speaker I] It’s like Maimonides on eating pork.

[Rabbi Michael Abraham] There? “I desire it and I desire it”? Yes—don’t say “I do not desire it.” Right, I’ll get to that connection later. What I said just now is like Maimonides—not the Maimonides in Laws of Kings, what I said about charity. So I still hope to comment on that later. Fine, let’s continue. So basically what Maimonides is telling us here is that command—first we defined the concept of command. Now I’m talking about its meaning beyond the definition of what a command is. Its meaning is such that without it, the concept of commandment does not exist. The concept of commandment exists only where there is a commandment, and not only that, but when I do the act out of commitment to the command of the commandment—only then is it a commandment. Without that, the act is not a commandment. That is a more far-reaching claim. I’ll give you another example. Maimonides, in his Commentary on the Mishnah in tractate Hullin, says something very similar. There are quite a few people who mixed up these two texts of Maimonides, or saw them as saying the same thing, but that is not correct. Here, I’ll share with you the file where it appears. Look at this—I’ll enlarge it a little. “And note carefully this great principle brought in this Mishnah, namely their statement, ‘It was prohibited at Sinai.’ And you should know that everything from which we refrain or which we do today, we do only because of God’s command through Moses, not because God commanded this to the prophets who preceded him. For example, we do not eat a limb from a living animal not because God prohibited it to the descendants of Noah, but because Moses prohibited a limb from a living animal to us through what he was commanded at Sinai, namely that it remain prohibited. Likewise, we do not circumcise because Abraham circumcised himself and the members of his household, but because God commanded us through Moses to circumcise, just as Abraham, peace be upon him, circumcised. And likewise the sciatic nerve—we refrain from it only because of the command of Moses our teacher. Do you not see their statement that six hundred and thirteen commandments were said to Moses at Sinai, and all these are included among the commandments?” What is “six hundred and thirteen were said to Moses at Sinai”? But the sciatic nerve was already said to the sons of Jacob. Maimonides says: you see from here—not so. It was said to the sons of Jacob, but it was prohibited only in the statement at Sinai that it is prohibited. Only there did it become prohibited. Maimonides says that what the sages answer Rabbi Yehuda is that the prohibitions we observe are by virtue of the command at Sinai. Even these prohibitions that began earlier and followed earlier events—we today regard them as commandment only because of the command we were given at Sinai, and not because of Jacob and his sons and what “therefore the children of Israel do not eat the sciatic nerve to this very day.” The expression “therefore the children of Israel do not eat the sciatic nerve to this very day,” by the way, is itself phrased as an anachronism. Right? What does “to this very day” mean? Yes—the famous title of whose book? Rabbi Amnon Bazak’s, right? “To This Day” or “To This Very Day,” which is apparently a sentence written from a later perspective. They say to the reader: look, therefore we do not eat the sciatic nerve to this day. When is “this day”? In this case, “this day” is probably Sinai. So they are basically telling us: we do not eat the sciatic nerve—already the sons of Jacob decided not to eat the sciatic nerve. But what does “to this very day” mean? This verse was said by the Holy One, blessed be He, at Sinai, and He tells us: we do not eat it to this very day—and from today it becomes a commandment. Until today it was a custom; the children of Israel had the custom not to eat the sciatic nerve because of what happened to Jacob. Today, following the repetition at Sinai, it became a commandment. So Maimonides here apparently claims something very similar to what he wrote in Laws of Kings. Maimonides says: this is a commandment because we were commanded about it at Sinai, not because of all sorts of explanations one way or another, or earlier events one way or another. But what I want to claim is that this is still not the same thing as what Maimonides writes in Laws of Kings. In Laws of Kings, Maimonides is talking about the person who observes the law, and he asks: what is your basic motivation for observing the law? What should the motivation be? The motivation should be the command at Sinai. If I observe the law from some other motivation, what I do is not a commandment. The motivation defines the act as a commandment. In the Commentary on the Mishnah, what I just read in Hullin, Maimonides is not talking about that. Maimonides is speaking about the theory of halakha. Why, in principle, are we supposed to observe commandments? Not what motivation moves me to observe commandments, but why are we in principle required to observe commandments? What is the theoretical determination? What is the basis or theoretical rationale for our obligation to observe commandments? Maimonides says: not ancestral custom, and not anything else. The command at Sinai. Commitment to the command at Sinai. I’ll give you an example to sharpen the point. Suppose a person goes to serve in the army, but he does it because he thinks, I don’t know, that he’ll be in the General Staff Reconnaissance Unit and then he’ll get some aura of prestige from his service there. He’s not doing it because the law obligates enlistment, okay? So he’s not doing it because of the command. He’s doing it because it will open up a career for him, give him honor, status, whatever, something like that. Does anyone care why the person is doing it? Does the legislator ask himself why the citizen obeys his commands? Whether he does it because I commanded it or whether he does it because he feels like it, because it seems rational to him, because rational conviction compels him, or whatever? No, nobody cares. In the legal context this is an irrelevant question. As long as you obey the law and do not violate it, you are a good citizen. No one has complaints against you. It makes no difference whatsoever why you do it. Your motivations do not interest anyone. They play no role in legal discourse. What should your motivations be? Let them be whatever they are—so long as you obey the law and do not violate it, good for you. But still, even in the legal context, one can ask the other question. One can ask the theoretical question. On the theoretical level, what do I, as a legal theorist, see as the basis for a person’s obligation to obey the law? A question in philosophy of law. You could say it is legislation. You could say it is belonging to a society, a social contract. You could say—everyone with his own explanations. But that is a question that is relevant also regarding law. The question of the individual person’s motivation for why he obeys the law or does not violate the law is a question that does not interest anyone in the legal context. It is a psychological question, a personal question; everyone will decide for himself. The jurist, the judge, and the policeman are not interested in that at all. Not interested. As long as you obey the law and do not violate it, you are perfectly fine from our perspective. But in halakha it is not so. In halakha, if you observe halakha and do not violate it, that is not enough. The question still remains: what is your motivation, why are you doing it? Not the theoretical question of why I think halakha should be observed, but I am asking: what moves you? If you do it not because of the command, you have not fulfilled a commandment. This is unique to halakha. In the legal context it is not relevant. What Maimonides writes in Laws of Kings is a law that can be written only in a book of halakha, not in a law book. In the legal world, no one cares about the person’s motivation. But what he writes in the Commentary on the Mishnah in Hullin, where he explains to us on the fundamental level what obligates us theoretically to observe commandments—our meta-halakhic theory, our meta-legal theory—that is a question one can also ask in the legal context. For example, a judge can ask himself: by what authority do I require the criminal standing before me to bear the consequences? What obligated him at all to do this? That is an important question. By the way, there are rulings that deal with this question; it has legal implications. There are rulings, for example, that deal with the question of the social contract. One of the theses proposed as the basis for our obligation to obey the law is the social contract. An implied signing of some social contract, according to which everyone who belongs to this society is supposed to obey the rules practiced in it, the law. And that is what… that is the theory underlying society’s demand that I obey the law. This has nothing to do with the question whether I obey the law because of the social contract. I assume most people have never even heard of the social contract. Certainly that is not the motivation for which they obey the law. But that is not important. It interests no one. It interests the judge, because from the judge’s point of view sometimes that will have implications. The question, for example, is who is bound by this. Who will be bound by this? Will it be someone who really belongs to that group that signed the social contract or not? Under what circumstances does it obligate him? There are rulings that deal with this. There are rulings that draw conclusions from the fact that our theory is based on the social contract. That has legal implications. Therefore, the question that comes up in the Commentary on the Mishnah in Hullin is a question that can also be asked in the legal context, because it is a question in the theory of halakha. In other words, command plays two roles. One role is a theoretical role: what exactly is the basis for demanding that a person observe halakha? Why do I punish him? Because there was a command and he has to obey the command. That is one role of command. Another aspect of command is: what is supposed to accompany me when I come to perform a commandment? Not why they demand this of me on the theoretical level, or why the judge would judge me, but how—what do I have to intend in order for my act to be a commandment? I have to do it as a command of the Holy One, blessed be He, at Sinai. Otherwise it is not a commandment. That is another role of the concept of command, and it is relevant only to halakha, not to the legal world. So those are the two roles that command plays here. In the next class I’ll sharpen this further; I hope it will come out clearer. Anyone who wants to ask or comment—now I’m finished.

[Speaker F] More power to the Rabbi. A comment, if I may. In my opinion every person has some conception of the social contract, even if not in a refined form. Because every person understands the principle of, say, a group of children going to make a Lag BaOmer bonfire, and one person refuses to obey, so they tell him: if you don’t want to be part of us, then go away. If you stay here even though you have a choice, then you’re obligated.

[Rabbi Michael Abraham] I’ll answer you with what I answered before—it really doesn’t matter. For me it’s just an example. For me it’s just an example. Meaning, even if you’re right, it isn’t important. Because still, from the legislator’s point of view, the legislator isn’t interested in your motivation. Even if that really is your motivation and you’re right, it doesn’t matter. Do you understand what I’m saying? So there’s no point discussing it.

[Speaker F] It seems to me that the legislator relies on the fact that at least the way human beings experience the law stems from that, from the fact that it is justified because of that, because every person can leave—

[Rabbi Michael Abraham] And if he didn’t leave, then he commits himself. That interests no judge in the world. He doesn’t ask himself on what basis the person who did the commandment or the transgression did it. He asks himself why the law authorizes me to punish him. Or why the law sees itself as obligating that person. He doesn’t ask questions about that person’s motivations. I’m not talking now about criminal intent; that’s a different matter.

[Speaker C] If you want examples of people who deny the social contract, there are plenty. I’ve spoken with many such people. It’s not… it’s common, though not universal.

[Rabbi Michael Abraham] Also—

[Speaker F] In legal thought—

[Rabbi Michael Abraham] In legal thought itself there are also differing views; you don’t even have to get to ordinary citizens. Not everyone agrees with the social contract—it’s a fiction, after all. So why should we accept it? I never signed such a contract. The moment you—

[Speaker F] Stay, you accept it.

[Rabbi Michael Abraham] Maybe yes and maybe no. It depends whether you really accept it or not. There are people who didn’t accept it. But I told you—that isn’t important to me. Even if you’re right that everyone accepts it, that does not interest the jurist.

[Speaker F] The jurist maybe not, but… it interests the psychologist.

[Rabbi Michael Abraham] No, I—

[Speaker F] I’m only saying that the reason people obey…

[Rabbi Michael Abraham] But it also interests the judge. I—

[Speaker F] Think that the power of the jurist comes from people’s agreement, which stems from that…

[Rabbi Michael Abraham] You’re going back again to theory. You’re going back again to theory. I agreed. Also in the legal context, in the theory of halakha, obviously one can say that command or legislation is the basis for people’s obligation. Right—that statement exists in the legal context too. But not the motivation that moves the individual person to do what he does. That is not of interest on the legal plane. Anyone else? Rabbi, but in the end…

[Speaker K] Okay Rabbi, I have a class at eight, I’m signing off. Have a good night, see you.

[Rabbi Michael Abraham] Make coffee first. Yes.

[Speaker J] Rabbi, just regarding what the Rabbi said about Ahad Ha’am. Could it be that according to Rabbi Kook it would still count as his having observed halakha?

[Rabbi Michael Abraham] Quite likely, actually. I completely disagree, but yes—Rabbi Kook would very likely say something like that.

[Speaker J] Because there’s a place where he says that the spirit of the nation is so deeply bound up with the spirit of God—

[Rabbi Michael Abraham] He says things like that in many places. I’m not an expert on Rabbi Kook, but you don’t need to be an expert to know that that’s probably how he understood it. But I categorically disagree.

[Speaker H] Maybe we’ll talk about that later.

[Rabbi Michael Abraham] Rabbi, but say—

[Speaker H] Many times a rational commandment is brought up, as if you do it—after all Maimonides in Guide for the Perplexed ultimately explains commandments throughout part 3 by way of reason. So there too, the commandments—say he explains that if, for example, I bring a sacrifice—

[Rabbi Michael Abraham] Is that the motivation for which you do it?

[Speaker H] But again, if I explain the commandment and I do it because the sacrifice—say I bring a sacrifice because I understand that there is this matter of removing idolatry from Israel, say in Guide for the Perplexed—then I did not fulfill a commandment. So according to this I didn’t fulfill a commandment?

[Rabbi Michael Abraham] Of course. Of course. You can bring another sacrifice—you brought unconsecrated animals into the Temple courtyard. Okay. After all, one has to distinguish between the question whether a commandment has a reason and the question what motivation leads me to perform the commandment. But again, in the next class I’ll sharpen that.

[Speaker F] Rabbi, we’re just clarifying: we’re talking here about commands and obligations, right? Not prohibitions. Because with prohibitions, civil law also gives a lot of significance to the intention of the person acting.

[Rabbi Michael Abraham] No, I’m talking about… you’re talking about criminal intent; I’m not talking about criminal intent. Criminal intent deals only with the question of whether you were engaging in it or not. That’s a completely different plane of discussion. I’m arguing—fine, we’ll talk about that more later. In my view, it’s relevant to prohibitions as well.

[Speaker F] God willing. Rabbi, thank you very much.

[Rabbi Michael Abraham] Okay, all the best, good night, goodbye.

[Speaker G] Thank you very much.