The Giving of the Torah and the Normative Counting

Table of Contents

• [0:21] Shavuot as the creation of an additional dimension
• [2:09] The naturalistic fallacy between fact and norm
• [5:35] The materialistic world and the absence of prohibitions
• [7:37] The red-light example – fact versus prohibition
• [10:20] Maimonides on command and warning in the commandments
• [12:54] Arabic–Hebrew translation: decree and commandment
• [26:04] Descriptive versus prescriptive statements in ethics
• [29:28] Education – the question of warning and punishment in the Talmud
• [31:01] The need for a warning in order to turn an act into a prohibition
• [33:46] Civil law and the absence of a prohibition against theft
• [35:34] Maimonides: the intention of a commandment must stem from a command
• [42:46] The command at Sinai as the normative source of the commandments
• [43:47] Law versus Jewish law – norm and motivation

Summary

General Overview

The speaker presents Shavuot and the giving of the Torah as the creation of a new normative dimension in reality, beyond the world of facts that was created through the ten utterances, and explains that the gap between facts and norms is expressed in what is called the naturalistic fallacy. He develops the distinction between descriptive statements and binding statements through examples from law, and shows in Maimonides how positive commandments and prohibitions belong to the category of command/decree, as opposed to the negation of obligation, which is a description that neither commands nor prohibits. He brings Sefer HaChinukh and Maimonides to establish that prohibition and commandment exist only by virtue of the command at Sinai, and that fulfilling commandments “because reason compels it” is not a commandment, and from this he also draws an implication regarding a person who does not believe in the command. Finally, he presents, in Nefesh HaChayim and in the words of Rashi, an understanding that the study of Jewish law is cleaving to the will of the Holy One, blessed be He, while the study of aggadic literature is cleaving to His speech, and that at the foundation of the Torah stands the halakhic dimension that was created at Mount Sinai.

The Giving of the Torah as the Creation of the Normative Sphere

The speaker argues that the primary meaning of the giving of the Torah is the creation of a “normative world” of forbidden and permitted, obligated and exempt, and not merely a festive event of revelation. He draws a parallel between the ten utterances as the creation of the physical world and the Ten Commandments as the creation of the world of norms, and explains that the naturalistic fallacy points to an unbridgeable gap between facts and norms without a “bridging principle.” He illustrates this through the distinction between “dangerous” as a fact and “forbidden” as the product of legislation, and claims that at Mount Sinai not only were commands given, but the very concept of command was created, so that the world received an additional layer that does not belong to physics alone.

Maimonides: Command, Warning, and the Negation of Obligation

The speaker cites Maimonides in the introduction to Sefer HaMitzvot, in the eighth root, according to which one should not count the “negation of obligation” among the commandments, because it is neither a warning nor a command. He explains that Maimonides distinguishes between a warning as a command not to do something and a negation, which is a factual or halakhic description that neither commands nor prohibits, even if it uses the language of “do not.” He notes Maimonides’ claim that in Arabic there is no single term that groups together command and warning, and therefore both are called “command,” whereas in Hebrew the general term is “decree,” and in the language of the Sages, “the king’s decree.” He explains that Maimonides criticizes the Behag for counting “she shall not go out as the slaves go out” as a prohibition, even though in Maimonides’ view this is the negation of the application of an obligation to a particular case and not a prohibition. He sums up that the common denominator of positive commandments and prohibitions is that both belong to the normative sphere, as opposed to statements of fact.

Warning, Punishment, and Law: Sefer HaChinukh and Chaim Cohen

The speaker cites Sefer HaChinukh, commandment 69, which explains why the Sages ask, “We have heard the punishment; from where do we know the warning?” and says that without a warning, the punishment would be perceived as a price tag that a person can choose to pay, “something like a commercial transaction,” rather than as a violation of God’s will. He emphasizes that God “withheld us for our own good” and informed us of the punishment in order to clarify that this is a transgression of His commandment, and he cites the principle, “He does not punish unless He first warned.” He adds an example from Chaim Cohen’s book The Law, according to which Israeli law formulates punishments for theft without writing “it is forbidden to steal,” and presents this as an illustration of a situation of punishment without explicit language of prohibition.

Maimonides: Commandments Are Fulfilled Only by Virtue of the Command at Sinai

The speaker quotes Maimonides in Laws of Kings, at the end of chapter 8, according to which one who observes the seven Noahide commandments because the Holy One, blessed be He, commanded them in the Torah “is among the pious of the nations of the world,” but if he does them “because reason compels it,” he is “among their wise men” and not among their pious. He explains that a religious act is defined as a commandment only as a response to a command, and brings the example of Ahad Ha’am, who seeks Sabbath observance for national-cultural reasons, which the speaker sees as an observance that is not a commandment in the religious sense. He adds Maimonides’ Commentary on the Mishnah in Chullin, which states that everything we refrain from or do today is done only because of God’s command through Moses, “it was said at Sinai,” and therefore even circumcision and the sciatic nerve are not observed because of the commands that were said to the Patriarchs, but because they were commanded at Sinai. The principle that “six hundred and thirteen commandments were said to Moses at Sinai” expresses this.

Belief in the Command, Commandments, and Transgressions: Questions and Answers in the Lecture

The speaker is asked how it is possible to command consciousness and thoughts, and he replies that the problem is commanding belief in facts, and that if a person does not believe in the command at Mount Sinai, then he has no ability to fulfill commandments in the religious sense. He argues that one who does not believe in the command “cannot perform commandments and cannot commit transgressions”; the halakhic system is “transparent” to him, and he compares counting such a person for a prayer quorum to “putting a flowerpot in the synagogue.” He confirms that this is a kind of “captured infant” status, both regarding transgressions and regarding commandments, and adds “the Merciful One exempts one who acts under compulsion” as the principle that explains why there is no room for punishment where there is no knowledge of and commitment to the command. He rejects the argument that biblical punishments prove otherwise, and claims that the wood-gatherer and the blasphemer were punished because they believed, since they were present at the event itself, and from then onward the matter depends on belief in the command.

Torah Study and Cleaving: Nefesh HaChayim, Aggadah, and Jewish Law

The speaker moves on to the implication for Torah study and quotes from Nefesh HaChayim, Gate 4, against the Hasidic view that study and commandments are a means to cleaving to God, and argues in the name of Rabbi Chaim of Volozhin that study and the commandments are themselves that cleaving. He explains that cleaving is not an experience but an ontic-metaphysical state, and that engaging in Jewish law is cleaving “to Him in Torah, to Him in the Holy One, blessed be He,” because “He, may He be blessed, and His will are one,” and every law and halakhah is His will in the category of “forbidden and permitted, obligated and entitled.” He adds that Nefesh HaChayim distinguishes between the study of Jewish law as cleaving to His will and the study of aggadic literature as cleaving to His speech, because “everything came forth from His mouth, may He be blessed, to Moses at Sinai,” but without formulating an identity of “He and His speech are one,” and thus a distinct level of cleaving is created.

The First Rashi: The Torah as Commandments and “This Month Shall Be for You”

The speaker concludes with the first Rashi on the Torah, in the name of Rabbi Yitzchak, according to whom “the Torah should only have begun from ‘This month shall be for you,’ which is the first commandment that Israel was commanded,” and presents the question as establishing that the essence of the Torah is the commandments and Jewish law. He describes Rashi’s answer, “He told His people the power of His works,” as explaining why Genesis was placed first, for the sake of the claim of right to the Land of Israel, but emphasizes that the sharpened conceptual point is that the parts of the Torah that are not commandments are “second-tier Torah” compared to Torah as the description of the desires and command of the Holy One, blessed be He. He ties this back to the central claim that the revelation at Sinai creates the concept of command and the normative sphere, and that the encounter with that sphere is the heart of the giving of the Torah and the meaning of Shavuot.

[Rabbi Michael Abraham] Okay, I’m muting everyone, but I’m leaving you control over your microphones. We don’t have that many listeners today, so I think we can manage like this too. Okay. So today I thought I’d talk a bit about the meaning of Shavuot, and not through a passage from Ein Ayah, and I wanted to talk about some aspect—maybe a halakhic or meta-halakhic aspect—of Shavuot. We’re used to statements about the meaning of the giving of the Torah, the revelation of the Holy One, blessed be He, some sort of encounter with Him, His emergence into the world, all kinds of festive, ceremonial, spiritual expressions, and I don’t know what else, emotional ones. But I think that first and foremost the meaning of this event is some kind of creation of an additional dimension in reality. Various preachers have already pointed to the relationship between the ten utterances with which the world was created and the Ten Commandments that were given at Mount Sinai. The ten utterances are the creation of the physical world, and the Ten Commandments are the creation of the normative world, yes—the world of what is forbidden and permitted, obligatory and exempt, and so on. The gap between these two worlds, or these two categories, is described in philosophy by what is often called the naturalistic fallacy, which basically tells us that there is some kind of gap, some unbridgeable gap, between the world of facts and the world of norms. So on the level of pure logic, we know that you can’t derive a normative conclusion from a factual premise. Right? If this wall is white, I can’t infer from that that this wall is beautiful. In order for the argument to be valid, you need another premise saying, for example, that what is white is beautiful. That premise is, by its nature, not purely factual. Right? When I say that everything white is beautiful, that’s not a factual statement. It’s a statement that connects for me the fact of being white to the judgment of being beautiful. So in order to move from the plane of facts to the plane of judgments, aesthetic or ethical norms, you need some additional premise, a bridge principle that takes me from facts to norms. The same is true on the ethical plane. The naturalistic fallacy was really born around discussions in ethics, where the basic question it tries to deal with is how we manage to ground a moral norm. In other words, why is it forbidden to murder or steal? So you can say because murder, I don’t know, causes suffering to the family or the friends—the murder of a person, say I kill him without causing him pain—still causes grief or suffering to the family, the friends, and so on. Never mind that this is obviously quite a marginal reason, but just for the sake of discussion. Even if I accept the fact that murder causes suffering to the family and the friends—that’s just a fact, pretty obvious—still, that doesn’t say that murder is forbidden. Of course you need to add another principle that says that what causes suffering is forbidden to do. Exactly like “white is beautiful,” some principle that moves me from the plane of fact to the normative plane. From the plane of “it causes suffering” to the plane of “it is forbidden to do it.” “Causes suffering” is a fact; “forbidden to do it” is a norm. In other words, there’s some sort of gap, such that if we can’t somehow get out of the world of facts, we won’t be able to generate norms. That is, norms cannot be based on facts alone. And that basically means that there are two spheres of statements: statements of norm and statements of fact, and there is no connection between them. That is, you can’t move from one to the other. It’s like an iron wall separates them, and the connection between them has to be made somehow by various bridge principles. And both of these worlds had to be created. The physical world, the world of facts, was created through the ten utterances in the act of creation, and the normative world—yes, what one should, must not, and is obligated to do—that was created through the Ten Commandments, basically, or through the revelation of the Holy One, blessed be He, at Mount Sinai. So in fact what was created here was some other kind of creation, something different from facts. Until that came into being, what existed in the world was facts. There were no norms in the world: obligations, prohibitions, permissions. That whole conceptual world did not exist. And maybe I’ll give an example to illustrate this, or a point that will illustrate it a little more. If, for example, we hold a materialist worldview—say that the world contains only matter, a world of physics alone. Matter—I mean really only physics, not just matter; light too, say, for the sake of discussion, even though it has no mass. In a world of that kind, it seems to me that norms cannot exist. You can’t speak in such a world about forbidden, permitted, obligated. What does “obligated” even mean? Can someone talk to a stone and tell it that it is obligated to do something, or forbidden to do something? It’s irrelevant. In other words, in a world where there is only matter, only physics, then there is no forbidden and permitted. There are facts, there is true and false, that’s all. But forbidden and permitted is a world that is, by its essence, a different world; it does not belong to the material world. Therefore, in non-human contexts, in contexts of inanimate things, we also can’t speak of forbidden and permitted. I can’t say to a tree, “You are forbidden to do something” or “You are obligated to do something,” because from the tree’s point of view there are facts. It grows this way and not that way, that’s all. What is true is true, what is not true is not true. Forbidden and permitted are norms that we impose on facts. In a given factual state like this, one must do such-and-such, or one must not do such-and-such. That is something imposed on the world of facts, on the physical world, but it itself is not of the same type. It is something else. And that something else was created at the revelation at Mount Sinai, at the giving of the Torah. When the Holy One, blessed be He, is revealed and commands, then not only did He give us commandments, but the very concept of command was created there. Now to understand this a bit better, maybe I’ll give one more example before I continue. Suppose we’re talking about the law. So the law—say, it is forbidden to drive through a red light—even if no law had been enacted forbidding driving through a red light, it would still be dangerous to go through a red light. Let’s say everyone does stop at red and go at green, but there’s no law. So going through a red light would be dangerous, but it would not be forbidden. What’s the difference? What is the difference between dangerous and forbidden? Dangerous is a fact. That is, if you go through, there’s a good chance you’ll be hurt, or a greater chance you’ll be hurt. Now of course, normatively speaking, that’s a fact. What does that mean for me? If I want to take a risk, I’ll take one; if I don’t want to take a risk, I won’t. We still haven’t reached the concept of forbidden and permitted. In order to turn going through a red light into something forbidden, there has to be something else besides its being dangerous, besides the fact. The additional thing has to be command or legislation. In the context of law, there has to be legislation—the Knesset or someone authorized by it determines that it is forbidden to drive through a red light. That determination is what creates the prohibition, not the danger. Dangerous existed even before the legislation. By virtue of its being dangerous, no one can come to me with complaints. It’s dangerous and I take risks—so what? It’s my right; I decide whether I take risks or not. People can only come to me with claims after the matter has moved to the normative plane. It has become the formulation of some law that forbids it, obligates it, permits it, and then we can start talking in terms of forbidden, permitted, suing someone, demanding of someone to do this thing or that thing. In our context, the legislation was essentially the appearance of the Holy One, blessed be He, at Mount Sinai. That was the legislative event. When we received the Torah, that was basically the legislative act that gave a basis to everything done before. The patriarchs, who perhaps fulfilled, according to the midrash, the whole Torah—but that’s a midrash, but never mind—whatever the patriarchs fulfilled, they fulfilled as one who is not commanded and yet acts. They did it because they decided to do it. No one could come to them with claims about why they did it or didn’t do it, because there was no command. Until now reality had been physics. Permitted, forbidden—there are facts. From here on, reality receives another level, a normative level: forbidden, permitted, and the like. Let’s see this in an interesting source in Maimonides. In the introduction to Sefer HaMitzvot, Maimonides sets out several principles, fourteen principles, and those principles define what is counted in the enumeration of the commandments and what is not counted. How does Maimonides decide what counts as a commandment and what does not? He lays down various rules there. And the eighth principle is—the rule is, I’m reading now—the eighth principle: it is not proper to count the negation of obligation together with a prohibition. Things that are a negation of obligation—I’ll soon explain what that is—cannot be counted among the commandments. In the enumeration of the commandments, verses that contain a prohibition are included. Verses that contain a negation of obligation are not. What is a negation of obligation? That’s the heading. Now Maimonides begins to elaborate. Know that a prohibition is one of the two parts of command. A prohibition is one of the two types that fall under the category called command. This is because you command the commanded person either to do one thing or not to do it. You can command someone to do something, or command someone not to do something, to refrain from something. Just as you command him to eat and say to him, “Eat,” so too you command him to refrain from eating and say to him, “Do not eat.” And in the Arabic language—you have to remember that this work was written in Arabic; this is a translation from Arabic into Hebrew—and in the Arabic language there is no term that includes these two matters together. Positive commandments and prohibitions, the forbidden and the obligatory—these are two categories that have no common name in Arabic. That’s what Maimonides claims. I don’t know Arabic, but that’s what he says: there is no common Arabic term for this category of commandment and prohibition. They are two different things. This is a command to do, and this is a command not to do. And the scholars have already mentioned this in the discipline of logic and said as follows. The discipline of logic is not only logic; it is also language. And “higayon” in Hebrew too has two meanings. To articulate with the mouth is to speak. “Higayon” is not only logic in the sense of thought, but also in the sense of speech, language. The scholars of the discipline of logic are people who engage in logic, language, linguistics, and the like. And they said as follows—and now he quotes some book by someone dealing with the discipline of logic—“As for command and prohibition, they have no term in Arabic that gathers them together.” There is no term that joins them into a common category. “And we had to call them both by the name of one of them, namely, command.” We’re used to the fact that “command” is the inclusive term for positive commandments and prohibitions; both are commandments. But Maimonides says: what do you mean? A commandment is a positive commandment. In ordinary language, a commandment is a positive commandment. There is no such thing as a “negative commandment.” It seems to me that in the language of the Sages there is no such thing as “negative commandments.” There are prohibitions. There aren’t “negative commandments.” A commandment is a positive commandment. Do something. “Negative commandments” seems to me to be a later expression. I’d have to check that. I just thought of it now, but I think there are no “negative commandments” in rabbinic literature. In any case, since there is no common word for the two, you take one of the categories—command—and turn it into the inclusive name for both categories together, both positive commandments and prohibitions. The concept of command or commandment is really the name of the overall category. “It has thus become clear to you that prohibition belongs to the category of command.” That is, after all, the fact is that the term command is used to describe both things, so they must have something in common. Positive commandments and prohibitions are indeed two different species, but they belong to the same genus. They are two subspecies, or two kinds, within the same category. They belong to the same category, which is divided into two subcategories. Otherwise why call prohibitions also commandments or commands? Apparently they too have something in common with positive commandments. That is what he means when he says that it has become clear to you that prohibition—prohibition means a negative commandment—belongs to the category of command. But in principle it should really have been command and prohibition. That is: prohibition is a negative commandment, you are warned not to do something, and command is to do something. But we want a common name for these two categories because we feel that they share something, so we call both of them command. We have no choice; we have no word for it, so we take one of them and define it as the inclusive word for both categories. “And the well-known word in Arabic assigned to prohibition is the word ‘la,’” basically “no” or “do not.” And that is how one warns in Arabic: when they tell you a prohibition they say “do not,” don’t do something, just like “lo” in Hebrew. “And this matter itself is found without doubt in every language,” meaning that you command the commanded person either to do something or not to do something. “Thus it is clear that positive commandments and prohibitions are both complete commands.” That is, both belong to some category for which we have no word, so we call it command. There are things He commanded us to do, and things He warned us against doing. Those called by the name of command to do them are positive commandments, and those called by the name of warning against them are prohibitions. But again, we use the term commandment for both, even though originally commandment means only a positive commandment, because we don’t have a word for the larger category. Notice: all this is translated from Arabic, okay? So in the translation from Arabic, what would really have been here is the word corresponding to positive commandments. Now he moves to Hebrew: “And the term that includes them both in the Hebrew language is decree. And so the Sages called every commandment, whether positive or negative, a royal decree.” So Maimonides is claiming that the term “mitzvah” as we use it in Hebrew actually comes from Arabic. The term “mitzvah” in its original sense is a positive commandment. A prohibition called a “negative commandment” is really a borrowed expression; it really ought to have been “warning.” But since Arabic had no common term, they used the word “commandment” for both, and that passed over into Hebrew. But in the original Hebrew of the Sages, in talmudic Hebrew, there actually is a common term for command and prohibition, and the common term is “royal decree,” “decree.” Both are decrees: they decree upon us to do, or they decree upon us not to do. So that is the genus, and under that genus there are two species: one is positive commandments and the other is prohibition. Okay? Now he says: “However, the negation of obligation is another matter, namely when you negate a predicate of a subject, and it has nothing at all to do with command.” Actually he should have written here that it has nothing at all to do with decree, but it’s translated from Arabic. The transition from Arabic to Hebrew is very tricky here, because in Hebrew there is a more precise word; it really should have been “decree,” but he wrote it in Arabic. I assume that in Arabic he used the Arabic term that in an extended sense serves for both meanings, and therefore he wrote “command.” In my opinion the translator should have written “decree” here and not “command.” That would have been the more precise translation. In any case, he says that in contrast to positive commandments and prohibitions, there are verses that appear to us at first glance like prohibitions, but in truth they don’t belong at all to this category of decree or command in the borrowed sense. They don’t belong to this common genus of positive commandments and prohibitions. For example, when you say “So-and-so did not eat last night,” “So-and-so did not drink wine,” or “Reuven is not Shimon’s father,” and things like that—those are all negations of obligation, with no scent of command in them at all. Okay? Even though the same word “not” is used here, just as “not” is used in a warning, in a prohibition—“do not eat” or “do not do such-and-such.” But the word “not” serves two meanings. In one place it is a command—really, a prohibition, a decree of the warning type not to do something. And in another place it is a factual matter: Reuven is not Shimon’s father, or so-and-so did not eat bread yesterday. So “not” is really a word of factual negation; it is not a prohibition, even though the same word is used. But of course that’s simple; that’s not the main issue. He then says—I’m skipping a bit—“It has thus become clear to you the difference between prohibition and negation, namely that prohibition belongs to the category of command and can only occur in the verbal form of command.” Meaning that just as the verbal form of command is always future-oriented—command in Hebrew uses a future-like form: do such-and-such, or you shall do such-and-such—that command is very similar to the future tense. That is why when studying grammar, people say that there are four tenses, not three: past, present, future, and imperative. The imperative too is called a tense. Why? Because the inflection of verbs in the imperative looks like a tense form. It always speaks as if to the future. “And it is impossible in language for command to be in the past.” Command also addresses the future. It tells you: do such-and-such. In other words, it addresses your future, not your past. “And so too prohibition. And command cannot be inserted into narration, because narration requires subject and predicate, whereas command is a complete utterance.” I say to someone, “Eat.” That is a complete sentence when I tell him “Eat.” It is a sentence commanding him to eat. There does not need to be a subject and a predicate and so on. A factual, descriptive sentence needs a subject, a predicate, and the like. “Reuven ate dinner yesterday.” Okay, that’s a sentence. You can’t just say “Ate.” “Ate” is not a sentence. But in the imperative, when you say to a person a sentence like “Eat,” that is a complete sentence. There is no need to add anything. It is a sentence commanding someone to eat. Therefore he says: command is a complete utterance. Narration requires subject and predicate and so on. You need a sentence for that. “And prohibition also cannot be inserted into narration, whereas negation can, because negation can enter narration and negate in the past, in the future, and in the present.” Meaning, of course, the present. Now he says this: “Since this is so, it is not proper in any way to count negative statements that are mere negation among the prohibitions.” And this matter is demonstrative and requires no witness beyond what we have mentioned concerning the understanding of the meanings of words, so that one may distinguish between prohibition and negation. So when we have negation of the narrative type, it is obvious that there is no reason to include it in the count of commandments as a prohibition. Right? It is simply the negation of something; it is not a prohibition. It’s not like command with the word “not.” And no proof needs to be brought for that, it is obvious, says Maimonides. Anyone who understands this grammatical issue understands that it is obvious. He says: “And this escaped our predecessors.” But the author of Halakhot Gedolot, one of the early enumerators of the commandments, against whom Maimonides basically wrote this book, says—Maimonides says—this escaped him; he got confused about it. “To the point that he counted ‘She shall not go out as the slaves go out,’ and did not realize that this is negation, not prohibition.” Meaning, there is a verse “She shall not go out as the slaves go out.” Never mind—it refers to a maidservant to whom certain things happened; “she shall not go out as the slaves go out.” That is, she does not go free. If there is some slave whose limb was damaged, he goes free. If his master damaged a limb, he goes free; that is a sort of penalty. But a maidservant, under certain circumstances, even though that happened to her, “she shall not go out as the slaves go out.” She does not go out in that way. Okay? Now this, says Maimonides, is no longer narrative like “Reuven is not Shimon’s father.” Here it is indeed on the normative plane. Okay? But he says here: this norm—that a slave whose limb was damaged goes free—does not apply to a maidservant. It is not a prohibition. It is a negation of obligation. That is, there is an obligation to free a slave whose limb was damaged; one is obligated to free him. In the case of a maidservant, that obligation does not exist. It is not commanding you to do anything, and it is not forbidding you from anything; it is simply negating the application of an obligation to this case. That is called negation of obligation. Maimonides says: negation of obligation is already a bit more confusing. Even the author of Halakhot Gedolot would never have dreamed of including a verse like “Reuven is not Shimon’s father” as a prohibition, because that just describes a fact—what does that have to do with prohibitions? Here it is trickier, because the verse is indeed speaking on the level of Jewish law. But it neither commands nor forbids. It merely negates the existence of a certain commandment in a certain situation. So this is not negation in the sense of a prohibition, and it is not command either, because there is no command here. Therefore, says Maimonides, this too is not included in the enumeration of the commandments. It is not a prohibition. Okay? And the author of Halakhot Gedolot did include it. Fine, that’s enough for our purposes. So what is Maimonides really saying here? Let’s go back for a moment to the opening passage. In the opening passage, Maimonides spoke about there being two subcategories. Under what is called in Arabic “command” and in Hebrew “decree,” there are two subcategories. There are positive commandments and there is prohibition—negative commandments, yes, prohibition. But the two share something. What is that shared thing? Here they tell me don’t do something, there they tell me do something. So what do these two share that stands in contrast to something else? Opposed to what? So Maimonides says: they stand opposed to statements of fact. Or in other words: positive commandments and prohibitions—what do they have in common? That both belong to the world of norms. This is forbidden, obligatory, or permitted, as distinct from the descriptive, factual world. In the factual world I describe facts, whether negatively or positively, doesn’t matter, I describe facts. Those are neutral sentences. They are not sentences meant to tell me to do something or not do something. Even the sentence “Going through a red light is dangerous” is a neutral sentence, because it doesn’t tell me what to do. Maybe I’ll decide not to go through, but I’m not obligated in anything. It is a factual consideration and now I have to decide what to do with it. Therefore it is not a sentence that obligates me. At most I can decide not to go through a red light because I don’t want to take a risk, but there is nothing here that I am obligated in. A positive commandment comes to obligate me to do something. A prohibition comes to forbid me to do something, to warn me against doing something. That is what they share: both belong to the normative sphere and not to the factual sphere. In contrast to narration, which belongs to the factual sphere, a neutral sentence. In analytic ethics, in the analytic theory of ethics, they distinguish between descriptive and prescriptive statements. Descriptive statements are describing statements—statements of fact. This table is white. There is a window here. It is dark outside now. These are statements describing facts. Prescriptive statements are statements that direct me toward action or inaction. They try to push me or stop me from acting, and therefore they are not neutral statements, they are charged statements. When you hear such a sentence, you are supposed to respond either by acting or by stopping and not doing anything. It is a sentence that imposes something on you, exerts some force on you—either restraining, that is prohibition, or pushing, that is command. By contrast, a neutral sentence, a factual sentence, is neutral; it doesn’t push you this way or that way. If you want, decide and do; if you don’t want, don’t do. But these are different types of statements. The naturalistic fallacy says that you cannot derive a prescriptive statement from a descriptive statement, because a descriptive statement describes facts, and you cannot derive from it prescriptive statements, norms, to do something or not to do something. You can’t derive that from facts; it is completely disconnected from there. Therefore, Maimonides says, positive commandments and prohibitions all belong to the normative sphere, which is divided into two subcategories. Positive commandments are what to do; prohibitions are what not to do. But both address me in terms of do or do not do; they do not describe facts and leave me indifferent, but are meant to cause me to do something or not do something. These are not neutral statements, they are charged. And this is really the linguistic expression of that distinction with which I opened the lecture, between the factual sphere that was created through the ten utterances—there facts were created, physics, what happens in the world. You can describe what happens in the world, you describe facts. Those are descriptive statements. Prescriptive statements—statements that say forbidden, permitted, obligatory, statements belonging to the world of norms—were born at the revelation at Mount Sinai. At Mount Sinai the normative sphere was created. Until then there was the factual sphere. From then on the normative sphere was created. Therefore the ten utterances that created the world, physics, nature, facts, parallel the Ten Commandments that created the normative sphere. And now the world is a complete world: it not only exists, but also has some purpose or goal. Now we need to know what to do with the world, or what not to do with it. We’ve moved up a level. That is, until then it was simply: live in the world, do what you want, you can be like a stone, like a dog, like a cow, or whatever you want. Things are neutral. From Mount Sinai onward, every act of yours—or not every act, but many of your acts—already has color. They are no longer neutral. You do something that is a commandment, or you transgress a prohibition, or you refrain from a prohibition; permitted, forbidden—in other words, a new sphere has been born here. That is really what was born at the giving of the Torah, at the revelation at Mount Sinai. Now I want to show a few more implications of this. Sefer HaChinukh, commandment 69, discusses the question of why the Sages in the Talmud always ask, always look for, a prohibition. Suppose it says somewhere, “One who strikes his father or mother shall surely be put to death.” That’s what is written in the Torah. So we have a punishment: someone who strikes his father and mother is liable to punishment, liable to death; it is considered a very severe transgression. The Talmud says: yes, we have heard the punishment, but from where do we know the prohibition? It’s still not enough that the Torah states the punishment; I want to see where it says that it is forbidden to strike one’s father and mother. What do you mean, where does it say it’s forbidden? If the Torah punishes it, apparently it’s forbidden. Why does it need to say that it’s forbidden? That’s what Sefer HaChinukh asks. And he says this: because it is not enough for us to mention the punishment in a commandment without a prohibition. The fact that there is a punishment is still not enough; there has to be a verse that tells me there is a prohibition, that this is forbidden. And this is why our Sages, of blessed memory, always say: “We have heard the punishment; from where do we know the prohibition?” Punishment isn’t enough; tell me where there is a verse that warns, that forbids it. And the matter is this: because if there did not come to us in the matter a divine prevention—if there is no prohibition, only punishment—but only the statement that one who does such-and-such will be punished thus-and-so, and it is not written that it is forbidden, only that one who does it is punished, it would imply that anyone who wants may choose to accept the punishment and not care about the pain of transgressing the commandment, and by this he would not be acting against the desire of God, blessed be He, and His command. And the matter of the commandment would then become like a kind of buying and selling; that is, whoever wants to do such-and-such may pay such-and-such and do it, or may take it upon himself to suffer thus-and-so and do it. What is he saying? He is saying that if there is no prohibition—suppose it says “One who strikes his father or mother shall surely be put to death,” but it does not say that it is forbidden to strike one’s father or mother—I would think that there is really no problem in striking one’s father or mother, only that there is a price, a price tag. You do it, know that you’ll die. If you want to do it and die, health to you. It isn’t something forbidden. This matter remains, basically, on the factual plane. They are supposedly revealing to you some law of nature. They’re telling you: if you strike your father or mother, then the rule is that you must die. Is the act itself negative? Maybe not, I don’t know. Do whatever you want, decide. Are you willing to die? Then do it. Not willing to die? Then don’t do it. But there’s no prohibition and no permission here. Sefer HaChinukh says that this is why you need a verse that warns. You need a verse that warns in order to tell you that this case is not merely like a kind of buying and selling, where there is a price tag on the act you do, but that the act itself is forbidden. The punishment is because you performed a forbidden act. The punishment is not just some physical counterreaction, a physical or chemical reaction. It’s not that if you did something, there is a reaction. No—because it is forbidden, therefore there is a punishment. And for that you need a verse that warns; it is not enough that the punishment is written, you need a verse to say that it is also forbidden. And that is what he writes here at the end: “And the intention of the commandments is not this, but rather that God, for our good, restrained us from certain things, and informed us in some of them of the punishment that will come to us immediately, beyond the transgression of His will, which is harsher than all.” When we refrain from striking our father and mother, it is not only because there is a punishment for it, that one who strikes his father or mother shall surely be put to death, but the more severe thing is that we have violated the command of the Holy One, blessed be He. That is already at the halakhic level; morally speaking one should not strike one’s father and mother regardless of the Torah’s command. I’m speaking in the halakhic sense: how does it become forbidden and become something the Torah has forbidden? The fact that a punishment is imposed for it still does not mean that it is forbidden. The fact is that if you do it, you will be punished. For it to be forbidden, there has to be a verse or legislation that says the thing is forbidden. And now if we do it, then the problem is that we have violated His will or His command. The punishment is only a consequence. The reason one must not do it is because otherwise we violate the command, not because we should fear the punishment or beware of the punishment. And this is what they, of blessed memory, said everywhere: “One does not punish unless one first warned.” Meaning, He did not merely inform us of the punishment that comes upon us for transgressing the commandment unless He first informed us that His will is that we not do the thing for which the punishment comes. By the way, in this connection, I once read in a book by Haim Cohn called The Law—it’s a fairly thick book on legal theory—and in the chapter where he deals with punishment, I think, if I remember correctly, he talks about the fact that in Israeli law it does not say that it is forbidden to steal. What it says is that the punishment for theft is such-and-such. That’s all. It doesn’t say that stealing is forbidden, which is exactly parallel to Sefer HaChinukh’s case, where there is punishment but no prohibition. And Haim Cohn there says what Sefer HaChinukh says here: that indeed this is true. In other words, the law does not forbid stealing. Some explain this based on a liberal conception, that the law cannot forbid the citizen to do things or not do things. Who are you? I am a free, sovereign citizen; I can do what I want. What the law can do is give instructions to those who work for it. The police and the judges work for the law—that is, for the legislator. So they can receive directives from the law. So the law tells them: if someone did such-and-such, punish him. But they cannot tell me that I am forbidden to steal. In my opinion that’s an absurd interpretation, because if they can’t tell me that stealing is forbidden because you’re liberal, then it’s permitted to you—but to put me in prison, that doesn’t contradict liberalism? Like that. But for our purposes, it’s a nice example of an interpretation of law that says there is punishment here, but it does not forbid the act. That is exactly what the Sages thought, and therefore they said that a prohibition is required and that it is not enough merely for the Torah to state a punishment, because one has to understand that the act in itself is forbidden, and not just that a punishment is attached to it. Beyond that, there are two places in Maimonides that say something similar about positive commandments as well. So far we’ve spoken about punishments: that punishment is imposed because the thing is forbidden, not that the thing is forbidden because there is punishment attached to it, and because the thing is forbidden, therefore punishment is imposed on whoever did it. The same is true of positive commandments. Look at Maimonides at the end of chapter 8 of the Laws of Kings: “Anyone who accepts the seven commandments and is careful to observe them is one of the pious among the nations of the world and has a share in the World to Come, provided that he accepts them 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 already been commanded concerning them. But if he does them out of rational conviction, he is not a resident alien and is not one of the pious among the nations of the world, but one of their wise men.” What does that mean? He says this: suppose a person performs a commandment—he’s speaking about a resident alien, but this applies to every Jew too, quite a few have already discussed this—a person performs a commandment. Now he does it because he likes doing it. Ahad Ha’am, the one with the saying that “more than the Jews kept the Sabbath, the Sabbath kept the Jews,” and so he basically tells us that we should observe the Sabbath because it is our national character, it preserves our tradition, it connects us to the tradition of the generations, and so on. Right? So he is really telling us to keep the Sabbath not because the Holy One, blessed be He, commanded it—I don’t know whether he believed in the Holy One, blessed be He—but because it is part of our national culture, the national ethos, and one has to somehow identify with previous generations, or I don’t know exactly what, some sort of cultural Judaism. Yes, Ahad Ha’am was one of the leaders of cultural Zionism. So he is basically saying that one should keep the commandments as an expression of identification with the people, with the national ethos, with our culture, and so on, but not because the Holy One, blessed be He, commanded. Maimonides says: if Ahad Ha’am kept every detail of the Sabbath, every last fine point, with every tiny nuance, he kept nothing of the Sabbath. He did not perform the commandment. He did nothing. The whole thing he did is worth nothing religiously. I don’t know morally—we’d have to discuss with regard to each commandment whether it has moral aspects—but it has no religious value whatsoever. Religious value belongs to the performance of a commandment only if it is done in response to a command. One who does it “out of rational conviction,” that’s the expression Maimonides uses here—because that is what seems right to him, seems moral to him, seems good to him, seems whatever—that is not a commandment. It may be a good act. He is not one of the pious among the nations of the world but one of their wise men. Meaning, he does a good act, he is a wise person, he does the right things. But there is no religious value in it; he is not among the pious among the nations of the world. Religious value exists only for acts done by virtue of responding to a command. Commitment to the command creates the commandment-status in the act. That is why “mitzvah” comes from the root “tzivui,” command. I do a commandment because I respond to a command. If someone puts on tefillin because the Chabad guys stopped him on the way and he has no patience for them, or wants to get rid of them, so he puts on tefillin and goes—he did not fulfill the commandment of tefillin. Even though he performed the whole required ritual, he did not fulfill the commandment of tefillin. Because one fulfills the commandment of tefillin only if one does it because the Holy One, blessed be He, commanded it. If you do not do it because of the command of the Holy One, blessed be He, at Sinai, by the way—yes—he says, “provided that he accepts them because the Holy One, blessed be He, commanded them in the Torah and informed us through Moses our teacher.” What does that mean? Suppose I do something because the Holy One, blessed be He, commanded it, but not because He informed us through Moses our teacher—that also isn’t good enough, says Maimonides. Only if you do it because of the command at Mount Sinai, at the giving of the Torah, through Moses our teacher. You have to understand that this is the source that obligates you. Every act that you do must be done because of that. If you do not do it because of that, it is not a commandment. Maybe it is a good act, depending on what you did. But it is not a commandment. You honored your parents because you think it is proper to honor one’s parents, but you do not do it because of the command in the Ten Commandments—then you did a wonderful act and you are a moral person, but there is no commandment here. A commandment exists only when you do the act as a response to a command. And that is exactly the implication of what we saw earlier. Therefore Sefer HaChinukh says that every prohibition must also have attached to it a warning stating that this thing is forbidden, because without that the punishment would not even be deserved, because what am I being punished for? For violating the command, the prohibition. Without that, maybe I did something not good, but I did not violate a command, and therefore without that there is no punishment. And on the positive side, that is what we saw in Maimonides. But not because I did a commandment in the religious sense of the act—there is no such thing unless it was done as a response to command, out of commitment to command. Maimonides writes something similar in his Commentary on the Mishnah, in tractate Hullin. Maimonides writes there as follows: “Pay attention to this great principle brought in this Mishnah, namely their statement ‘it was said from Sinai.’” There is some discussion there about a limb from a living animal; it’s not important right now. “And this is that you must 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 the earlier prophets concerning it—to Noah or to Abraham. No: everything must be because of the command to Moses.” What does “the command to Moses” mean? Mount Sinai. You have to perform commandments only because of Mount Sinai. What was said to Abraham our father—for example, that he should circumcise himself—I do not need to perform circumcision because the Holy One, blessed be He, told Abraham our father to do it. I need to perform circumcision because the Holy One, blessed be He, commanded at Sinai to perform circumcision. If it had not been repeated at Sinai, it would have remained with Abraham our father; I would not have had to do it. The commandment becomes a commandment only because of the legislative act, which is the giving of the Torah at Sinai—that is the meaning. As an example, says Maimonides—and I go back to reading—“We do not refrain from eating a limb from a living animal because God prohibited a limb from a living animal to the descendants of Noah, but because Moses prohibited us a limb from a living animal in what he was commanded at Sinai, namely that a limb from a living animal remain forbidden.” A limb from a living animal had already been forbidden before. At Sinai it was forbidden again—or its prohibition was continued—and we observe that because of Sinai, not because of the seven Noahide commandments. “And likewise we do not circumcise because Abraham circumcised himself and his household, but because God commanded us through Moses to be circumcised, just as Abraham, peace be upon him, was circumcised. And likewise the sciatic nerve, and all these things.” What is he really saying? Maybe let’s just look at the end: “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 does “six hundred and thirteen commandments were said to Moses at Sinai” mean? It means that only things by virtue of having been said at Sinai are what we observe. If we observed circumcision because of the command to Abraham our father, then there would only be 612 commandments at Sinai; one of them would have been said earlier to Abraham our father. Why do they say that all 613 were said to Moses at Sinai? Because even commandments regarding which we had a prior command, what we do is because of the command at Sinai. And this is somewhat parallel to what he said in the earlier passage we read, where he also says that we need to perform the commandments because of the command. The act in itself is not a commandment; it becomes a commandment only from the moment it was commanded. It’s the same line running all the way through. By the way, there is a difference between these two passages in Maimonides, and someone who reads them carefully and sensitively can see that there is a difference between them. Because the first passage, in the Laws of Kings—the passage I read at the beginning—or let’s start with the passage I just read, the one highlighted before you. That passage really deals with the question of halakhic theory. What is actually the principle that obligates us in the commandments? If we are judged, by what authority will claims be brought against us? By what authority will we be punished? The claim is by virtue of the command at Sinai, okay? In the first passage here in the Laws of Kings, something similar is written, but I think it is different. Here Maimonides is discussing the question of what motivation a person who performs a commandment should have. Not by virtue of what claims can be brought against him, but what should accompany you while doing the commandment. What should accompany me is that right now I am doing something I was commanded to do at Sinai. What’s the difference? I’ll give you an example. Suppose someone pays taxes; he is obeying the law. The law says you have to pay taxes. Does the law obligate me to pay taxes in the sense that when I pay taxes I have to think that I’m doing it because the legislator determined it? The legislator’s grandmother interests me. You do what needs to be done; I don’t care what your intentions are, okay? Therefore the halakhah highlighted before us is relevant only to Jewish law, not to civil law. The law doesn’t care why you do something; the main thing is that you do what needs to be done and do not do what you must not do, okay? That’s all. But the second passage that appears here, this passage, is one that is true in law as well. In law too there is a question what the binding foundation is in legal theory. What is the binding foundation by virtue of which we bring claims against an offender? By what authority do we punish him? That is what Hans Kelsen, the Austrian legal positivist, calls the basic norm, the Grundnorm. The basic norm is the norm from which the law draws its force. What is that norm? Knesset legislation or the revelation at Mount Sinai? But that does not mean that someone observing the law has to think all the time, for the sake of unification, I observe the law because of the basic norm. The legislator does not care why you observe the law, as long as you observe it. This is not a religious system. The legislator does not care about your intentions. What the legislator cares about is what you did. But in legal theory the basic norm has great significance. By what right does a judge or police officer have justification to stop an offender or punish an offender? Because the legislator determined that this act is an offense. From the standpoint of legal theory this is true in law as well, not only in Jewish law. But from the standpoint of what it demands of the person—must a person, when performing a commandment, think: I’m doing this because the legislator determined it? Absolutely not. In Jewish law, yes. In Jewish law your motivation for performing the commandment must be the legislation. If you do it simply because it seems logical to you, or moral to you, that is not a commandment. That is unique only to the halakhic system. It does not exist in law. Therefore the second highlighted passage here is true also in a legal system. The first passage, the one I highlighted earlier—this one—exists only in Jewish law: the person’s motivation. But for our purposes, what does this all mean if I summarize what we have seen so far? I began by saying that at the revelation at Mount Sinai the normative sphere was created. Until then there was the factual sphere—physics—the world existed, but there was not yet forbidden and permitted and obligation. That was created or formed at Mount Sinai. The concept of commandment, or really decree—commandment is actually a borrowed term—the concept of decree, which includes under it positive commandments and prohibitions, negative commandments, this whole normative sphere was created at Mount Sinai. But not only was it created there and from then on it exists; it is supposed to accompany us all the time. When we perform a commandment, we need to perform it because we were commanded at Sinai. That is supposed to be part of our motivation in performing the commandment; otherwise it is not a commandment. If someone performs the act not because he was commanded at Sinai, it is not a commandment. So this is not only halakhic theory. It is not only that because of the revelation at Mount Sinai we need to do these things; it is something that should accompany us in thought when we actually perform the commandment. We need to do it because the Holy One, blessed be He, commanded at Sinai. That is part of it; without that it is not a commandment. So the revelation at Mount Sinai has enormous significance, not only in the sense that it created the normative sphere, added another level to the world—the normative level on top of the physical, factual level—but it is also supposed to accompany us all the way through. That was the fundamental legislative act; there the very concept of law was created. All the laws were given there—or not all the laws, but the foundation was given there. And that is also supposed to be the motivation that accompanies us when we carry out the laws, when we refrain from prohibitions and perform the commandments, mainly in performing the commandments. So that is really the meaning of the revelation at Mount Sinai. I want to get to one more aspect, and that is—until now we’ve spoken…