Topics in Tractate Makkot, Chapter 3 – Lesson 6 – Rabbi Michael Avraham

All right,

[Rabbi Michael Abraham] We’ve finished the first topic, the definition of this course—I don’t know what to call it—topics in the third chapter of Makkot. So as you can see, we’re not reading the Talmud and explaining what the initial assumption was and what the conclusion was. Rather, we take topics that appear here in the passage and try to understand them in their own right. So the first topic we dealt with, which emerged from the dispute between Rabbi Akiva and Rabbi Yishmael, was the question of whether—and what sort of—difference there is between heavenly judgment and human judgment regarding repentance. In other words: why repentance does not help—if in fact it does not help—to exempt a person from punishment by a religious court, while with heavenly punishment it does help. And from there we got into the meaning of repentance, and how much it really does or does not help. And in the end we reached the conclusion that it is not at all absurd to think that it does help. Even though it is very common in the Torah world, the analytic world, the halakhic world, to think that it does not help. And I tried to show—first of all, there’s the Beit She’arim as a source, but for me that’s only an example. What I wanted to show is that the passages themselves raise such a possibility. A lot of times I distinguish between first-order ruling and second-order ruling. Second-order ruling means saying: I think this because in the responsa Tzintzenet HaMan it says such-and-such, so I have an authority I can rely on. I’m not interested in the responsa Tzintzenet HaMan. I mean, Tzintzenet HaMan is nice, but the question is whether such an option exists in the Talmud. If such an option exists in the Talmud, then that option exists even if no one ever wrote the responsa Tzintzenet HaMan. Sometimes maybe he’ll draw my attention to that option—that’s perfectly fine—but for me he has no value in and of himself. So here too, I didn’t learn all this in order to understand the Beit She’arim. My goal is not to understand the Beit She’arim. My goal is to show this option—that repentance helps even in the laws of the earthly religious court—while the Beit She’arim is simply a source that points to this possibility. But I tried to show it from the passages themselves.

All right, so that’s regarding the previous topic. But now I want to move on to the next topic, and that’s the next stage in the Talmud. The next stage in the Talmud actually deals with—we saw a three-way dispute among three Tannaim. I don’t think we need the details; I’m not going to start getting tangled right now in that annoying business. We’ll see—you know what, maybe I will go into it, because later on I may need the sources. But we saw a three-way dispute among three Tannaim—Rabbi Akiva, Rabbi Yishmael, and Rabbi Yitzhak—regarding flogging in various contexts. And the question is, with people liable to karet, with people liable to death, whether there is flogging for those liable to karet, whether there is flogging for those liable to death. Is the rule that in both cases there is no flogging, that in both cases there is flogging, or that there is flogging only for karet and not for death? That’s basically a three-way Tannaitic dispute. The explanation of the dispute between Rabbi Yishmael and Rabbi Akiva—in particular, Rabbi Akiva led us into the previous topic, namely the question whether the earthly religious court is affected by the fact that the person repented. Now we move to explaining each of these Tannaitic views, and the first opinion that the Talmud tries to explain is Rabbi Yishmael’s view. And the explanation of Rabbi Yishmael’s view leads us to a discussion of the essence of positive commandments, prohibitions, and so on.

So the Talmud says like this: What is Rabbi Yishmael’s reason? You know what, maybe I’ll try my hand after all—maybe this time the poor and needy will be heard, maybe He’ll have mercy, maybe He’ll take pity. The next topic is the explanation of Rabbi Akiva, which will also raise a topic—topics in the third chapter. Any response in the meantime? What did I mark, Hobi?

[Speaker B] Yes. Did you see?

[Rabbi Michael Abraham] Nice. You see? It’s too much.

[Speaker C] Okay, so here—

[Rabbi Michael Abraham] I brought the section from the Talmud: What is Rabbi Yishmael’s reason? According to Rabbi Yishmael, both those liable to death and those liable to karet are flogged. Both are flogged. According to Rabbi Akiva it’s only those liable to karet, and according to Rabbi Yitzhak neither category is flogged. What is Rabbi Yishmael’s reason? As it is written: “אם לא תשמור לעשות את כל דברי התורה הזאת”, and it is written: “והפלא ה’ את מכותיך”. “Wondrous striking”—I do not know what that is. And when it says: “והפילו השופט והכהו לפניו”, you must say that this “wonder” is flogging. “Wonder” and “casting down”—apparently they see it as the same root. Yes, exactly. So, “והפילו השופט והכהו לפניו”—

[Speaker C] You must say—

[Rabbi Michael Abraham] —that this “wonder” is flogging. And it says: “אם לא תשמור לעשות את כל”, and so on. Meaning: anything that you fail to observe and do—you get flogged for it. What is this thing that you fail to observe and do? All prohibitions. Meaning, whether prohibitions carrying death, whether prohibitions carrying karet—all prohibitions carry flogging as well.

If so, the Talmud asks, then positive commandments too? If every transgression—every time you fail to obey the Torah—gets you flogging, then positive commandments too; failing to fulfill a positive commandment is also going against the Torah’s will. So the Talmud says: it says “אם לא תשמור”. What does that mean? Like Rabbi Avin said in the name of Rabbi Ilai: wherever it says “הישמר”, “פן”, or “אל”, it means only a prohibition. “If you do not observe” means: if you do not guard yourself from committing the transgression. In other words, it’s talking about a prohibition. “הישמר”, “פן”, and “אל” are the Torah’s code words for prohibitions. Of course there is also “לא”. They don’t mention the word “לא” here at all because that’s obvious. “הישמר”, “פן”, and “אל” are also indicators—but of course the word “לא” is as well; it’s just that there are several kinds of “לא”, and maybe we’ll see that later. So “הישמר פן ואל” means only a prohibition. Therefore the word “תשמור” tells me this does not apply to positive commandments.

If so, then a prohibition with no action too? What do you mean? A prohibition with no action does not incur flogging. But a prohibition with no action should also be included under “אם לא תשמור”, right? Because “הישמר” means a prohibition. So what if it has no action? Categorically it is still defined as a prohibition. If it is defined as a prohibition, then it too falls under this heading of “אם לא תשמור”. So in that case a prohibition with no action should also get flogging.

So the Talmud says: it says “לעשות”. What does that mean? “לעשות” means that we have the phrase “תשמור לעשות”. So “תשמור” comes to exclude positive commandments and leave us in the realm of prohibitions. The word “לעשות” narrows us even further within the realm of prohibitions themselves, depending on whether you violate it by doing something or whether you violate it by not doing something. A regular prohibition is violated by doing something, right? If you’re forbidden to eat pork, how do you violate that prohibition? By eating pork. That’s an action. So unlike neglecting a positive commandment, which is generally a sin of omission—if you don’t put on tefillin, you fail to do something you were supposed to do—a prohibition is generally violated by positive action. So when it says “לעשות”, that comes to limit the prohibitions to those violated by an action. That’s why it says “לעשות”. Okay?

You can see that in the background of this passage there is some kind of taxonomy of commandments, right? There’s prohibition and positive commandment—a classification like that. There’s prohibition and positive commandment, and within prohibitions there are prohibitions that are violated through an action and prohibitions that are not violated through an action. And the verse narrows us down. This verse is basically the source from which that taxonomy comes out. In other words, this verse basically says positive commandments are not relevant because of “תשמור”, and a prohibition with no action is not relevant because of “לעשות”. In other words, we peel away all the layers of the various commandments and are left with those prohibitions that are violated through an action—that’s the core for which flogging applies. But that core includes within it both prohibitions that carry karet and prohibitions that carry death, as well as ordinary prohibitions that carry neither karet nor death, only flogging. Okay? Anything included under prohibition plus action, where it is violated through an action.

So the Talmud says: what about a prohibition linked to a positive commandment? What happens with a prohibition linked to a positive commandment? That’s a prohibition violated through an action—for example, “לא תגזול”, “do not steal.” Right? I violate the prohibition of “לא תגזול”, and that falls into all the categories we’ve just discussed. After peeling off all the outer layers, “לא תגזול” is still inside, right? First of all it’s a prohibition, not a positive commandment. Second, it’s a prohibition violated by action, right? I steal. It’s a prohibition violated by action. So ostensibly that prohibition should incur flogging, right? But we know it does not. Why doesn’t it? Because it’s a prohibition linked to a positive commandment. That means: “והשיב את הגזילה אשר גזל”—that positive commandment repairs the prohibition. If we manage to get there, that too is a topic later in the chapter: a prohibition linked to a positive commandment, whether one “nullified it or did not nullify it,” and all the later discussions in the chapter. I hope we get there because it really is an interesting topic. But for now we’re just drawing the map.

So the Talmud says no: a prohibition linked to a positive commandment also does not get flogging, but for another reason—not from this verse. It has to be similar to the prohibition of muzzling. “והפילו השופט והכהו” appears immediately after “לא תחסום שור בדישו”. Okay? So the Talmud says: the flogging mentioned in this verse, “והפילו השופט והכהו”, applies only to prohibitions similar to the prohibition of muzzling, because of the juxtaposition. Right? Because the verses are adjacent, this teaches that only prohibitions similar to the prohibition of muzzling receive flogging. Okay? So what are prohibitions similar to the prohibition of muzzling? They are prohibitions violated through an action, and they are prohibitions not linked to a positive commandment, right? And they are prohibitions to begin with, not positive commandments.

Now that you’ve come to this, says the Talmud, all of them too are simply like the prohibition of muzzling. Right? Once you tell me that what gets flogging is only what is similar to the prohibition of muzzling, then forget it—you no longer need the earlier exclusions. So you ask why positive commandments do not get flogging? Because a positive commandment is not like the prohibition of muzzling—it’s a positive commandment, and the prohibition of muzzling is a prohibition. Why doesn’t a prohibition with no action get flogging? Because it is not similar to the prohibition of muzzling; the prohibition of muzzling is a prohibition involving an action. So basically, all the categories of commandments or transgressions for which there is no flogging can all be learned from one source. You don’t need the whole process we went through until now. They all get pushed aside because they are not similar to the prohibition of muzzling. And therefore the whole earlier analysis was unnecessary.

Of course, maybe we’ll say that if there is something that is similar to the prohibition of muzzling for some reason, but still does not satisfy one of the earlier derivations, maybe it would still be excluded. Okay? That does not mean we erased the earlier stage. We only said that the earlier stage is basically unnecessary, because the prohibition of muzzling already does all the work at once.

This is a bit like the Talmud in tractate Yoma, when it talks about saving life and the Sabbath. It brings several sources for why saving life overrides the Sabbath. Right? A dispute among Tannaim. I think there are six Tannaitic opinions there, and then Shmuel, who is an Amoraic opinion. In the end, what remains is Rabbi Shimon ben Menasya, who says: desecrate one Sabbath for him so that he may keep many Sabbaths. The Talmud rejects this because it says that teaches me about definite danger to life, but not doubtful danger to life. Then it brings Shmuel’s source: “וחי בהם ולא שימות בהם”—you shall live by them, and not die by them.

Now what does that mean? In the Talmud in Shabbat, one hundred and something—I think 106—the Talmud there brings “חלל עליו שבת אחת”, even though that was set aside in the course of the discussion; what remains is Shmuel’s source. Why does the Talmud bring “חלל עליו שבת אחת”? It’s talking there about an infant, I think, about desecrating the Sabbath to save an infant. So the Talmud brings “חלל עליו שבת אחת כדי שישמור שבתות הרבה”. You can see from the Talmud that this source was not really rejected—the source of Rabbi Shimon ben Menasya. But then why does the Talmud say it was rejected? It was rejected because it doesn’t teach me about doubtful danger to life, only about definite danger to life overriding the Sabbath, whereas Shmuel’s source teaches me even about doubt.

But that’s exactly the point. This is a model for many places. They didn’t reject the first source; they only said it’s not exhaustive. In other words, it teaches me about definite danger to life, but not about doubtful danger to life. Okay, so I have another source that teaches both. True, the first source becomes unnecessary—but that doesn’t mean it’s wrong. It’s right. Regarding definite danger to life, the first source remains in force too. The second source covers all cases. So where would there be a practical difference? If we found some case the second source does not address. Then I’d say: fine, the first source was not rejected—it is still valid. It does not teach doubt, only certainty, but it is still valid; it was not rejected.

And because of that, the commentators really discuss how in the Talmud in Shabbat, when it speaks about an infant, Shmuel’s source doesn’t apply there, so they bring Rabbi Shimon ben Menasya’s source. Meaning, many things that look as though they were rejected were not really rejected. And look here too: in the end the Talmud did not explain that it had any problem with those exclusions from “לשמור” and “לעשות”, right? The Talmud did not find a flaw in those exclusions. Those exclusions remain intact. The Talmud says: okay, but once you already need the comparison to the prohibition of muzzling, then you simply don’t need them. You don’t need them because everything already comes from the comparison to the prohibition of muzzling. Fine, you don’t need them—but they are still correct. So if something comes up that cannot be learned from the prohibition of muzzling, from its similarity to the prohibition of muzzling, it may still be excluded by the earlier exclusions. They remain, they are valid, they were not rejected by the Talmud. Okay? So that’s a point worth noticing.

Now… a question that maybe I can ask. You can ask various questions from the Talmud here. But when the Talmud excludes positive commandments, it says because it says “אם לא תשמור”. Then it asks what about a prohibition with no action, and answers from “לעשות”. Right? In the early stages. And again I say: those early stages were not rejected; they are correct. They’re simply not needed for the Talmud’s final conclusion, but they are correct. Therefore if I ask a question about them, it will require an answer—that is, it ought to hold water. The Talmud did not reject it because it was wrong. Okay?

So now I ask: why not exclude the positive commandment too from “לעשות”? After all, neglecting a positive commandment is also something that is not violated by an action. Right? Exactly like a prohibition with no action. A prohibition with no action was excluded from “לעשות”, right? Because only something that involves an act gets flogging. Okay? But neglecting a positive commandment also does not involve an act. So why do we need one exclusion from “תשמור” and another from “לעשות”? The exclusion from “לעשות” should deal with positive commandments too. Neglect of a positive commandment should also not get flogging because it does not involve an action. And a prohibition with no action also has no action involved. So in both cases there is no action, and therefore no flogging. The Talmud makes a double exclusion here. It excludes positive commandments because it says “תשמור”, and it excludes a prohibition with no action because it says “לעשות”. It sounds from the Talmud as though for positive commandments the point is not the action; the point is that it is not a matter of “guarding oneself.” Okay? Why? After all, neglect of a positive commandment is also a transgression with no action.

Now, actually, factually that’s not quite precise. First of all, factually—

[Speaker C] There are positive commandments that we violate through action.

[Rabbi Michael Abraham] Not by omission. Usually positive commandments—neglecting a positive commandment means you don’t put on tefillin. That’s a transgression by passive omission, right? You didn’t put on tefillin. Okay? But there are positive commandments that you violate by positive action, not by omission. Does anyone have an example? Passover—leavened food, “תשביתו”, you have to eliminate the leavened food; that’s a positive commandment, okay? In order to fulfill that positive commandment you’d have to go buy leavened food and eliminate it, because they claim the positive commandment is active and not merely contingent. Okay? But still, how do you violate it? If you didn’t eliminate it, you transgressed—that’s a transgression of omission, not action. You failed to eliminate it; that’s how you violated that positive commandment. No, but you’d have to actually go out now and buy it. I’m saying there’s an obligation on you to buy it in order to be able to fulfill the positive commandment of elimination, but it’s not that if you didn’t buy it you nullified the positive commandment. You simply didn’t fulfill it. The violation is by omission, not by action. By the way, not buying is also an omission, not an action.

And what about “בל יראה ובל ימצא”? “בל יראה ובל ימצא” is a prohibition. I’m looking for a positive commandment that is violated by positive action. There’s the High Priest and a virgin—but that’s both a positive commandment and a prohibition. Okay, right, there are many examples. For example, there is a prohibition relating to fasting on Yom Kippur—there is a positive commandment to afflict oneself on Yom Kippur. Right? The prohibition there is not clear; in the straightforward reading it’s a positive commandment, and the Talmud already discusses where the prohibition comes from, but first of all there is a positive commandment there. How do you violate that positive commandment? By eating on Yom Kippur, right? So that positive commandment is nullified through an action.

Or the positive commandment of resting on the Sabbath. There is “שמור” and “זכור”. “שמור” is the prohibitions and “זכור” is the positive commandment. Apart from kiddush and havdalah—that’s a different discussion. I mean resting on the Sabbath, not doing labor. That too is a positive commandment, not only a prohibition. How do you violate that positive commandment? By doing labor on the Sabbath, right? That is nullifying a positive commandment. Besides the fact that there is also a prohibition here—this positive commandment of rest from all labor—and that is a violation of a positive commandment. In other words, there are positive commandments that are violated by positive action. Therefore when you want to exclude positive commandments, you cannot exclude them from “לעשות”, because there are positive commandments that are indeed violated by positive action. Therefore they must be excluded from “תשמור”, not from “לעשות”. Okay?

And that brings me to the question I want to focus on. Afterward maybe we’ll go back to the Talmud too, but now we’re opening the topic the way I did with repentance. What do I mean? I want to understand what the relation really is between positive commandments and prohibitions. And this is a very, very non-simple question, and for some reason people don’t really ask it. But in a moment you’ll see that it really is a very, very non-simple question.

So maybe I’ll begin… what?

Maybe to say that when you say prohibition, you’re basically imposing a norm, and when you impose a positive commandment, you’re sort of the reverse—at least, there isn’t passivity here, right? He didn’t do something. What exactly is the difference? Why is the positive commandment considered lower than the prohibition?

I didn’t say it’s lower. First of all it’s different. Lower or not lower—we’ll discuss that; it’s not at all obvious. But it is different. I’m asking in what way it is different in definition, before the question of whether it is more severe or less severe. What is the difference between them? Okay? What is the difference between a positive commandment and a prohibition?

So here the positive commandment is basically something that cannot be excluded from “לעשות”—again, I’m going back to the Talmud. What does the Talmud say? There are positive commandments that are violated through action. You cannot exclude them from “לעשות”. A prohibition with no action is by definition the kind of prohibition violated by omission rather than action. But among positive commandments there are commandments that are violated by positive action. And there will also be a legal difference—people ask why, in general, we don’t obligate a person to do things, except go to the army and things like that. There are theories that the logic is the reverse. They say when you impose a prohibition, you’re restricting a person’s freedom in one respect. So I’ll get to that discussion, including its legal aspect. I once had an interesting discussion with legal scholars about this. In my opinion, in law there is no obligation that is really a positive commandment. There are no legal obligations that are positive commandments—including army service and tax payments and all the usual examples people bring. And “לא תעמוד על דם רעך”—that’s what the whole controversy with Hanan Porat was about, over the law of not standing idly by your neighbor’s blood. The opponents basically said: what do you want? You can’t obligate a person to do something to save another person. You can prohibit him from harming the other, but you can’t obligate him to save the other. I’ll get to that. But first I want to define the concepts.

Maybe I’ll start with Maimonides in the Eighth Principle. From the Principles of Maimonides, which is the introduction to Sefer HaMitzvot. The Principles—the Eighth Principle is a very interesting principle, and its introduction is very interesting. Eighth: that it is not proper to count a negation of obligation together with a warning. That’s the heading; in a moment we’ll explain what it means.

Know that a warning is one of the two parts of command. A warning means prohibitions, right? One of the two parts of command. For you command the commanded person either to do something or not to do it. Right, these are the two parts of command: a command to do and a command not to do, a prohibition. Like if you command him to eat and say to him “eat,” or command him to refrain from eating and say “do not eat.” Fine? So there are positive commandments and prohibitions—I’m already giving them names. Okay? And in the Arabic language there is no term that includes these two ideas together. Right? For us there are positive commandments and negative commandments, but both are commandments. Right? That means there is a term that includes these two types as one unit. Or in other words, these are really two species of one genus. Right? “Species” means a subcategory.

In Arabic there is no term that includes these two categories together. And they—the logicians—already mentioned this in the science of logic, and said, in these very words—he quotes: command and warning have no term in Arabic that gathers them together, and we were forced to call them both by the name of one of them, namely “command.” We call both of them commandments, even though really “commandment” means a positive commandment, not a prohibition. But there is no term that includes them both, so we call them both commandments—positive commandments and negative commandments—but really “commandment” in its original sense means only the positive commandment, not the prohibition.

Now maybe one more thing should be remembered here. There are interesting loops here—logical loops. This text was originally written in Arabic; it was translated into Hebrew. So we need to read it with the awareness that we are now reading a text in Arabic, okay? So when he speaks to the Arabic reader, he says: look, in our language there is no term that includes positive commandments and warnings. Let’s now call them not positive and negative commandments, but positive commandments and warnings. Okay? There is no term that brings them under one heading. Therefore by way of borrowing we even call negative commandments “commandments.” Meaning, that too is called a kind of commandment—but really that’s not accurate.

And now it has already become clear to you that warning is part of the notion of command. And the well-known Arabic term used for warning is the word “לא”—yes, “no,” right? And this same idea certainly exists in every language: namely, that you command the commanded person either to do something or not do it. In other words, there are two subcategories under a broader category that includes both. Fine? In Arabic there is no word for the general category, and therefore we call the two subcategories, by borrowing, positive commandments—which is not borrowed, that’s accurate—and negative commandments, which is a borrowed term. Because really you should have said “warnings.” But since you want to indicate the fact that positive commandments and negative commandments are two species of the same genus, you call the negative commandments “negative commandments” and not “warnings.” Okay?

I don’t remember right now, by the way, whether the term “negative commandments” appears in the Talmud. The way Maimonides describes it here, I don’t remember—we’d have to check sometime. But Maimonides here describes it as though this was an innovation because of the Arabic language. Not that it’s relevant for us—among us there is no such thing as “negative commandments”; there is “warning.” Okay? “Negative commandments” is some kind of borrowed expression due to the limitation of the Arabic language, which has no shared word for the two kinds.

Then he says: if so, it is clear that positive commandments and negative commandments are both complete command. There are things we were commanded to do, and things we were warned not to do. The name for those we are commanded to do is positive commandments, and the name for those against which we are warned is negative commandments.

Now he says: and the term that includes them both together in Hebrew—in Arabic there isn’t one, but in Hebrew there is a shared term for positive commandments and negative commandments—and that term is decree. Therefore the sages called every commandment, whether positive or negative, a royal decree. Okay? Maimonides claims that the term “commandment,” in the sense we use it today—positive commandments and negative commandments, all of these being called “commandments”—is really a translation from Arabic. Originally, he says, we should have used the word “decree.” There is a positive decree and a negative decree. A positive decree is what we call a positive commandment—that’s where the word “commandment” really belongs. But a negative decree—it isn’t accurate to call it a negative commandment. You aren’t being commanded to do anything; you are merely being prevented from doing something. Okay? So that is just a Hebrew expression that exists and is shared by both.

Now just as an aside—a philosophical-psychological aside. There’s a language researcher named Whorf. He was a kind of autodidact, but he wrote books and articles. And there’s also that book—I don’t know if it comes from there or from his data—never mind. Someone said: 613 commandments. 248 positive commandments and 365 prohibitions. Okay, so there indeed “commandments” serves as the inclusive term. Fine. In any case, for some reason Maimonides claims that in Hebrew it really should be “decrees,” not “commandments.”

Anyway, this Whorf basically talks about the influence of language on thought. Okay? He has many, many articles and studies on the matter. Among other things, I once read—this wasn’t even related to Whorf, but it’s similar—a paper in Nature about some tribe in Brazil, the Pirahã tribe. There are other tribes like this too, in Southeast Asia and elsewhere. They have a counting system, or system of numbers, known as a one-two-many system. Meaning: the numbers they have in their language are one, two, and many. That’s it. They don’t have three, four, five, six—all our numbers don’t exist. They have one, two, and many.

Now if you ask them, say—you put batteries in front of them, as in the experiment they described there—here are three batteries and here are four batteries, and you ask them which has more, it’s the same thing: this is many and that is many. Same thing with eight versus a hundred. It’s the same. Now, they’re not stupider than we are. Meaning, after they taught them the terminology for all the numbers, they immediately understood that four is more than three. But the fact that before they were taught the terminology, they didn’t know that. By the way, with three versus a hundred they did know which was more. Meaning they do intuitively understand the whole idea of more and less. But you can see that language is a limitation. In other words, if you don’t have terms in the language, there are distinctions you simply won’t be aware of.

Or yes, the standard example is the Eskimos and snow—that they have thirty terms for snow. Snow of this kind, snow of that kind—each has a different term. Now I see all those things and for me it’s the same thing: snow. So what’s the big deal? Right? And a large part of that is simply that I don’t have separate terms for this kind of snow and that kind of snow. For me it’s all just snow. And also in my consciousness it’s all snow, not only linguistically. It’s not that I understand there are two different things and call them both snow because I lack another word. No—I don’t even see them as two different things. It’s the same thing. Okay? Of course I can learn that they are different, and part of that learning will involve different terminology for those two types of snow. In other words, language strongly affects our thought. And of course the reverse is also true: thought affects language, and so on.

So why am I saying this? Think for a moment about an Arabic speaker who has never studied halakhic literature, Jewish Torah learning—an Arabic speaker who never studied Torah at all. Now he encounters the idea that there is a decree not to eat pork, and a decree to put on tefillin. Okay? Now in Arabic they don’t have a common term, right? There is a warning. So for him it is not a decree; rather there is a warning not to eat pork, and there is a commandment to put on tefillin. Such a person may not see these two things as two species of one genus at all. What connection is there between them? It’s like tying chairs to kites. What shared category is there between chairs and kites? Nothing at all, right? Or goodness and clouds—I don’t know. Just two different things.

Now someone who has no shared word like positive commandments and negative commandments—or positive decree and negative decree—may also in his thinking never connect positive commandments and negative commandments. It simply won’t appear to him as things that belong to the same genus. We are so accustomed to the idea that there are positive commandments and negative commandments that today it is self-evident to us that they are simply two species of the same genus. Obviously—there are positive commandments, there are negative commandments, but it’s the same sort of thing, just two shades of it. That is not self-evident at all. It is not at all self-evident that they have anything in common.

Now if we try to define what that shared element is, language helps illuminate it a bit—but then thought has to come and decode what is folded into that linguistic distinction. There’s a difference in language, and now there is a conceptual question: why really do positive commandments and negative commandments share a common element? And Maimonides says this is self-evident to everyone. So I’m asking: why? What is the shared thing? Doing or not doing? We’re back to our question. One tells you: don’t do. The other tells you: yes, do. What connection is there? One wants to prevent you from something, the other tells you that you must do something. Why is that of one kind, one genus?

No, no—doing or not doing. What do you mean by hearing? Maybe obeying, not “hearing”—complying, yes? Okay, so I’ll put it this way. In philosophy, in philosophy of language—wait, I’ll get there in a moment. You’re already talking about neglect of the positive commandment versus the prohibition. I’m not yet talking about neglect of the positive commandment; I’m talking about positive commandments. Yes, positive commandments. You’re only saying that if you didn’t do it, then there’s also a transgression—neglect of a positive commandment—and that does resemble a prohibition. Yes, when you are obligated to do something, then if you fail to do it there is neglect, and neglect is already a transgression, so I can see why it resembles a prohibition. But there is also, for example, a contingent commandment. A contingent commandment has no neglect. What is the connection between a contingent commandment and a prohibition?

A contingent commandment—if you didn’t do it, nothing happened; you committed no transgression. There is an obligatory commandment and a contingent commandment. Right? What, nothing happened if you didn’t do it? Not that nothing happened—but if you did it, then you have a commandment, and if not, then nothing happened. Rav Moshe Feinstein claims that the commandment of settling the Land of Israel is contingent. If you live in the Land of Israel, then you have a commandment. If not, then nothing happened. So is there inherent in the commandment of settling the Land of Israel some “do not not live there”? No—that’s exactly what he says, no. A contingent commandment doesn’t have that. That’s exactly the point. That exists only in an obligatory commandment. In a contingent commandment, if you didn’t live in the Land of Israel, nothing happened; everything is fine. It’s just that if you did live there, you get reward because you fulfilled a commandment. That’s all. A sort of bonus commandment. Yes, exactly.

Okay, there are other examples too. That may be the only commandment that is entirely like that, but there are commandments with a threshold beyond which it becomes contingent. For example, Torah study. Reciting Shema morning and evening is obligatory; everything you do beyond that is contingent. If you did it, good; if you didn’t do it, nothing happened. Or charity beyond one-third of a shekel a year. One-third of a shekel a year is obligatory. Beyond that, if you gave then you have a commandment; if you didn’t give, nothing happened—there’s no transgression here. Okay?

So let’s look for a moment דווקא at contingent commandments, because it’s easier to talk about them. What connection is there between them and prohibitions? There’s no connection at all. So the point, I think, really is this—and people talk about this in philosophy of language—that there are descriptive statements and prescriptive statements. What does that mean? Descriptive means they describe—description, right? There are statements that describe a fact: this wall is white, the time is such-and-such. Statements that describe facts—these are neutral statements. Okay? There are prescriptive statements—what does that mean? “Do not murder.” A command, right? What does it mean? Can you say that the statement “do not murder” is true or false? No, because it is not asserting anything.

A descriptive statement describes a fact. If the fact is correct, then the statement is true. If the fact is not correct, then the statement is false. Right? But “do not murder” does not describe any fact; it commands you. Okay? You cannot say that the sentence “do not murder” is true or false. True or false is always a matter of comparing the sentence to some state of affairs in the world that the sentence describes. If there’s a match, it’s true; if there isn’t, it’s false. But what do you compare “do not murder” to in order to determine whether it is true or false? There is no fact in the world that this sentence describes. Okay? Therefore this is not called a proposition in Aristotelian language. Right? It is not something that can be judged in terms of truth or falsehood. It claims nothing; it commands you.

If I ask you, “what time is it?” that is also a sentence, right? Can one say that this sentence is true or false? Can it be judged in terms of truth or falsehood? No. Why not? Because it asserts nothing. It is a sentence; it says something, but it is not a sentence that describes a fact, it is not descriptive. It is not declarative. Fine? It is a question or a command. A question or a command is not a sentence that describes something, and therefore you can’t say it’s true or false.

Now, in grammar—those who studied grammar, not like me—learned that there are four tenses, right? Past, present, future, and imperative. Why is imperative a tense? Right? “I went” is past, “I am going” is present, “I will go” is future. “Go!” is imperative, right? Why is that a fourth tense? What does that have to do with time? So it’s not entirely clear—I won’t get into all the nuances there—but what is behind this? It seems to me that what lies behind it is that the imperative usually parallels the future. That’s why people often make mistakes and say, “you are commanded: you will go.” That’s not correct Hebrew. In Hebrew it should be “go”—that is the imperative. But I want you to go. Right? “I command you: you will go.” Why? Because “go” is basically about the future. There are verbs in which it is really like the future. I don’t remember now—not important; there are many examples. And I think Maimonides brings this later in this very Principle. Meaning, command is very similar to future, and that’s why it gets defined as a tense. But in fact it is not future; it is a different sort of tense. More than that—not only is it not future, it is not really a sentence related to time at all. All the tenses—past, present, and future—are tenses of facts. A fact that occurred in the past is past, a fact existing in the present is present, a fact that will occur in the future is future. Imperative sentences are not facts, so it makes no sense to talk about them as past, present, or future. Usually you command someone to do something in the future; you don’t command someone in the past—except the king in The Little Prince, right? He commands the stars to do what they would have done anyway.

What? Just an aside. In Arabic, the future is also present. Ah yes? Okay. Nice, interesting. The present is really just a blink of an eye with no independent existence. Interesting.

Anyway, the claim is that what characterizes positive commandments and prohibitions—coming back to our topic—is that they belong to this sphere of commands, unlike the sphere of descriptions. Both positive commandments and prohibitions are not sentences describing a fact, right? They do not belong to the sphere of declarative, fact-describing claims. Rather they belong to another sphere, the normative sphere, which imposes on you, expects of you, actions or non-actions. But in any case it is something non-neutral—it is trying to move you either to do or not do. It is telling you something. A descriptive sentence tells you nothing in that sense.

For example, if I say to you: according to Israeli law, it is forbidden to murder—that is a completely descriptive statement. It is not at all the same kind of thing as “do not murder.” It is a sentence describing the fact that under Israeli law murder is forbidden. It describes a fact. I can determine whether that is true or not true: I’ll look in the law book and see whether the sentence is true or false. That is a descriptive claim, a declarative claim. Okay? By contrast, when I say “do not murder,” I am not pointing you to some place where it is written not to murder. No—“do not murder” is a command addressed to you. It is not describing any fact. Therefore there is nothing against which to measure it in order to determine if it is true or false. I am commanding you not to murder, that’s all. You can either comply with the command or not. But what I am doing here is an act of command, not declaration. Okay? And this is true both of positive commandments and of prohibitions. In both kinds of commandment, the sentences are prescriptive rather than descriptive. That is the category that contains both these species. Okay? These are sentences belonging to the normative sphere—what ought and ought not to be done—not to the factual sphere, which is neutral and contains no ought and ought not. Those are just facts. Even if someone is murdering right now—if I describe someone murdering right now—there is nothing of ought or ought-not there. The fact is that he is murdering. It is wrong to murder, but the fact that he is murdering is a fact. A fact is not worthy or unworthy. It is a fact. That is the fact: he is simply murdering. Okay?

So this is a very important point. One has to distinguish between those two kinds of sentence. As an aside, I had some debate about this yesterday with a philosopher friend, and afterward I sent him a WhatsApp. He was talking about pragmatism, so I told him that pragmatism is, in my view, a fallacy—the opposite fallacy of Hume’s naturalistic fallacy. Hume basically says that you cannot derive an ought from an is. The ought is what should be done, and the is is what happens in fact. You cannot derive a norm from a fact. You can’t say: because murder causes pain to the family, therefore murder is forbidden. That argument is invalid. You need to add that causing pain to the family is forbidden. Right? Meaning, the fact that it causes pain to the family is a fact. How do you derive from that the conclusion that murder is forbidden? “Forbidden” is a norm. The fact that it causes pain to the family is a neutral fact. You cannot derive a norm, which is not neutral, from a fact. A fact is neutral.

No, you didn’t derive it—you said murder is forbidden; you just assumed that. Right, exactly. I assume it; I don’t derive it. I assume that something causing suffering to a family is forbidden. If I assume both that and that murder causes suffering to a family, then the conclusion is that murder is forbidden. “Forbidden” is normative—how is it not normative? Again, where did you derive it from? The fact that murder causes pain to the family is a fact, right? The fact that murder is forbidden is a norm. You cannot derive a norm from a fact. To be able to derive it, you must add another premise besides the factual premise. And what will that second premise be? It will always be a premise that bridges from the factual plane to the normative plane. For example: causing suffering is a forbidden act. Right? Exactly. That is a premise, not an argument. The conclusion has to be contained in the premises. There must be a bridge between facts and norms. If all your premises are factual, the conclusion can never be normative. That is Hume’s is-ought fallacy, sometimes called the naturalistic fallacy.

So Hume talks about the impossibility of deriving ought from is. What about deriving is from ought? Can you derive facts from what ought to be? Just as you can’t derive ought from facts, the pragmatists say you can in the other direction. The pragmatists say: I believe in God because it gives me a better life, because society is more moral, because the family is healthier—whatever, each person and his reasons. Okay? That’s the pragmatist approach. Never mind, there are different kinds of pragmatists. In America, pragmatism is considered a philosophical outlook. I have no idea how they reached such nonsense. Is Shalom Tzadik here? Yes, exactly—Shalom Tzadik is an expression of Jewish pragmatism, which is complete nonsense, obviously.

Why is it nonsense? Because just as you cannot derive norms from facts, you cannot derive facts from norms. The fact that this way of life is healthier—even if true—does not mean that God exists. It does not mean I am obligated in His commandments. You can say: I do this not because I am obligated in His commandments, but because it gives me a better life. Fine—you can’t derive from that that you are obligated to do it. You can explain why you do it, no problem, explain whatever you like. But you cannot derive from that the obligation to do it. That is the normative claim. So pragmatism is the opposite naturalistic fallacy: the naturalistic fallacy derives ought from is; pragmatism derives is from ought. Okay? That’s… all right. I’ve drifted, as usual.

Anyway, what positive commandments and prohibitions have in common is that they belong to the normative sphere and not to the descriptive-factual sphere. Okay?

Now Maimonides says, however, that negation of obligation is another matter. That is when you negate a predicate of a subject, and there is nothing of command in it at all, as when you say: so-and-so did not eat last night, so-and-so did not drink wine, Reuven is not Shimon’s father, and the like. Right? Meaning, you negate some fact with respect to some subject. That negation does not command you anything. If I say to you “do not murder,” the “do not” is not describing—it is not not-commanding, right? If I say to you “do not murder,” I’m commanding you something. Commanding or decreeing something upon you, in Maimonides’ more precise language. Okay? That means it belongs to the normative sphere.

But when I say to you, “so-and-so did not eat anything last night,” the “not” there is not commanding. Right? It is describing something. It negates some fact of some subject, or some attribute of a subject, or something like that. “Predicate of subject,” as he says. So he says: that is all negation of obligation; there is not a whiff of command in it. The word “לא” appears there. But the word “לא” is one of the words that indicate prohibitions. “הישמר פן ואל”, as in our Talmudic passage, right? “הישמר פן ואל”—and I added “לא”. Okay? Those are the words that indicate command. Maimonides says: not always. The word “לא” can appear in the context of command, and it can appear in the context of negation of obligation. And perhaps that’s also why it doesn’t appear in the list of the Sages—because the word “לא” is not unambiguous; it depends on its context.

Now he says: so there is no scent of command in it. And the word used in Arabic most often for negation is the word “ma,” and they also negate with “la” and “laysa”—I don’t know what that is. Okay. But the Hebrews mostly negate with the very word “לא”, the same word with which they warn. Meaning, in Hebrew the word “לא” serves both for warning and for negation of obligation. And they also negate with “אין”, not only with “לא” but also with “אין”. And whatever attaches to it with pronouns—“he is not,” “they are not,” and so on.

However, negation in Hebrew using “לא”, as in “ולא קם נביא עוד בישראל כמשה”, “לא איש אל ויכזב”, “לא תקום פעמיים צרה”, and many such examples—also negation with “אין”—all these, he says, are not negative commandments. Fine—for that you don’t need the Eighth Principle, right? I mean, that’s obvious. What would I even think—that this “לא” is a commandment? What is it commanding? What would the command be in “לא איש אל ויכזב”? Are you commanding the Holy One not to lie? What command exactly are we supposed to perform here?

But then he says later: and since this is so—I’m moving ahead here—since this is so, it is not proper to count those occurrences of “לא” that are negation as negative commandments in any way. By “occurrences of “לא”” he means the word itself, not commandments. Occurrences of “לא” in Scripture that function as negation rather than warning should not be included in the count of commandments, right? And this is evident and needs no proof beyond what we have said from understanding the meaning of the words. Anyone who understands grammar understands this; I don’t need to bring proof, says Maimonides. It’s obvious.

Now he says: and this escaped others—“others” here always means the author of Halakhot Gedolot—so much so that he counted “לא תצא כצאת העבדים” and did not realize that this is negation, not warning. Now pay attention—that is already a non-trivial sentence. “לא תצא כצאת העבדים” is not like “לא איש אל ויכזב”. Even the author of Halakhot Gedolot did not count “לא איש אל ויכזב” among the commandments—there’s nothing to count there. There it is obvious that it’s negation of obligation. But “לא תצא כצאת העבדים”—the author of Halakhot Gedolot apparently understood that the “לא” appearing here is a halakhic “לא”. “לא תצא כצאת העבדים” is halakhic Torah. Okay? Maimonides says no: this is negation of obligation, and therefore it does not enter into the count of negative commandments. It is negation of obligation.

And now he explains: and the explanation is as follows. God already ruled concerning one who strikes his Canaanite slave or maidservant and by the blow removes one of the extremities of the limbs, that the slave goes free. And we might have thought that if this is so for a Canaanite slave, then all the more so for a Hebrew maidservant—that if he removed one of the extremities of her limbs, she would go free. Therefore Scripture denied her this law by saying “לא תצא כצאת העבדים”, meaning: it is not the law that she goes free by loss of a limb. And this is a negation of law from her, not a warning.

Now what is he claiming here? He is basically saying that unlike the statement “לא איש אל ויכזב”, which does not belong at all to the halakhic sphere of the Torah, “לא תצא כצאת העבדים” does belong to the halakhic sphere of the Torah. It determines a law, right? “לא תצא כצאת העבדים” is not a descriptive sentence. And still, Maimonides says, it is negation of obligation. Why is it negation of obligation? Because the word “לא”—after all, the Sages told us in our passage that “הישמר פן ואל” are key words indicating a prohibition. So in order to know whether something is a prohibition or not, check how the word “לא” functions there. That’s the key, right?

Now let’s see how the word “לא” functions here. Does the word “לא” warn me here about something? “לא תצא כצאת העבדים”. Maimonides says: of course not. True, the sentence belongs to the halakhic sphere; it tells you the law that release through bodily injury does not apply to a Hebrew maidservant, only to a Canaanite slave. Okay. But the “לא” that appears here is not a “לא” warning you about something. How does one violate this prohibition? Can one violate it at all? There is no way to violate it. If one of the extremities of the limbs of a Hebrew maidservant was removed, she simply does not go free. That’s all. What, if you let her go then you transgressed a prohibition? No—if you let her go, then you made a mistake. She did not go free. She does not go free. Okay? The point is just that the law of release through injury that applies to a Canaanite slave does not apply to a Hebrew maidservant. That’s all.

So what is this “לא” doing here? It is not addressing me; it is not warning me, like “do not murder.” Right? It is not warning me against something. Rather it comes to negate a law from the subject under discussion. That law—release through injury—does not apply to a Hebrew maidservant. So the “לא” here is not imperative. It describes that that law was not said regarding a Hebrew maidservant. That’s all. Therefore you cannot count it among the commandments, because the “לא” is not functioning as a warning. Right? There is a use of the word “לא” here, fine—but it is not warning. Okay?

So we are beginning to understand that we have positive commandments and negative commandments. They belong to the same genus because all of them belong to the normative world, not to the descriptive world. They are imperative verses, not declarative verses. But within that category there are two subcategories. That genus of imperative verses has two species, and species is a subcategory of a genus. So those species are positive commandments and negative commandments—or warnings and positive commandments. Okay? What is the difference between warning and positive commandment? That is really our question now.

We understood what distinguishes both of those from declarative verses. That much we understood. Now I’m moving inward into the world of command. Inside the world of command there are two subcategories: positive commandments and negative commandments, or warnings and positive commandments. In Arabic there isn’t even a word that groups them together at all, which is why I said that someone who only speaks Arabic may truly not see them as two species of the same thing. They may just look like two completely different things. But we know that they are two things, two species of the same thing—different species, but belonging to the same genus. In what do they differ?

Now on the face of it, it seems obvious how they differ, right? A warning comes to tell you not to do something, to prevent you from doing it, while a positive commandment pushes you to do it, right? It requires you to do it. So let’s challenge that simple view. And here I need Maimonides’ Sixth Principle. After dealing with the Eighth Principle, now I want to talk about the Sixth Principle.

Wait—before that… What is the reason a question is considered part of the category of command? Because maybe a question is basically a kind of command? No, a question does not belong to command. It just does not belong to declaration. No, a question does not belong to command. I have some indication to think that. For example, yesterday I wanted to say… you are commanded to answer. Someone asked, in some verse-like formulation, that in the future age of AI the question will be asked whether an AI-generated image of women is halakhically forbidden or permitted. And everyone is sure that this is a good thing to analyze. But what did I say? I presented it descriptively. Right? I described that. I didn’t ask you. Why? Because it didn’t command an answer. Meaning, if it had said… There’s just something about a question: it expects an answer, and there is some element of command in it. I can expect, but you are not obligated to answer me. Still, there is some expectation of action on your part, and it is not merely a neutral fact.

Yes, I think one could perhaps try—I don’t know, one would have to think—whether there is a category that is not command in any way, and yet is not declaration either. Something else. I don’t know. One would have to think about it. Maybe. But I don’t think it is essential. It probably always has to involve some shade of command. Fine, it doesn’t concern us here.

Now look at Maimonides’ Sixth Principle. The Sixth Principle: a commandment that contains both a positive commandment and a prohibition should have its positive side counted among the positive commandments and its prohibition side counted among the negative commandments. Right? What does that mean? Maybe I should first introduce something. In the Ninth Principle, Maimonides writes… in the Ninth Principle… that it is not proper to count the prohibitions and positive commandments themselves, but rather the things prohibited and the things commanded. What does that mean? Suppose the Torah commands twelve times to keep the Sabbath. Maimonides says: in counting the commandments, we do not count the commands themselves. If we counted the commands, there would be twelve positive commandments to keep the Sabbath. We count the content commanded, not the commands themselves. Or with prohibitions—suppose there is a prohibition repeated several times, “לא תבשל גדי בחלב אמו”. Fine? That prohibition appears three times. I do not count three prohibitions of meat and milk. There, of course, there is a derashah about benefit and eating and so on, but in principle—I don’t count the commands, I count the commanded content. Okay?

And so… as an aside about that introduction: Rabbi Yerucham Fishel Perla, in his work on Rav Saadia Gaon’s Sefer HaMitzvot—Rabbi Yerucham Perla wrote these three thick volumes on Rav Saadia Gaon’s Sefer HaMitzvot. Rav Saadia Gaon’s Sefer HaMitzvot itself is basically two pages or something, with two words on each commandment. And Rabbi Yerucham Perla made enormous analyses out of every little section—an absolutely wonderful work, by the way. The man was a real genius, with beautifully orderly thinking; really a model work, that book. People joke in yeshivot that it’s Rabbi Yerucham Perla’s Sefer HaMitzvot with Rav Saadia Gaon’s notes. He piggybacked on Rav Saadia Gaon but really wrote his own book.

Anyway, Rabbi Yerucham Perla asks about Maimonides that Maimonides contradicts himself, because in the second part of the Ninth Principle Maimonides says that one does not count a general prohibition. Say, “לא תאכלו על הדם”. “לא תאכלו על הדם” contains several prohibitions within it. For example, it is a warning for the stubborn and rebellious son. It is a warning to the court not to eat on the day it issued a death sentence. Or all sorts of things—there’s a whole collection there. That a person should not eat before prayer, Maimonides also brings there. It sounds from him somehow like it’s really a Torah prohibition to eat before prayer, not just a protective restriction of the sort mentioned in the Talmud in Pesachim, like not sitting אצל the barber close to the afternoon prayer or something like that—but really a Torah prohibition according to Maimonides. That’s how it sounds. Strange, but that’s how it sounds.

Never mind, there are various warnings there. He says one does not count a general prohibition except as one. And Maimonides brings it as the warning for the stubborn and rebellious son. Fine? There is a rule in the Talmud not to count that except once. Now Rabbi Yerucham Perla argues that Maimonides contradicts himself. Why? Because in the first part of the Principle—the part we just saw—Maimonides says: look, if you have the same content repeated by command several times, we count it once, right? Because what matters is the content and not the number of commands. Okay?

Now what happens with a general prohibition? There we have several different contents under one command. Now if what matters is content and not command, then I would expect that in a general prohibition we should count several prohibitions. Why should I care that there is only one command? I do not count the commands, I count the contents. Right? So if there are several different contents, why should I care that there is one command? I count the contents. So at the beginning of the Principle Maimonides says we go by contents rather than commands; in the second part of the same Principle Maimonides says no, we go by the commands and not by the contents. That requires investigation.

What do you say? How does that fit Maimonides’ rule? Obviously it’s something else. Here the number of commands is larger than the number of contents, and here it is smaller. So what? Still—if you go by contents, then go by contents. If you go by commands, then go by commands. How can you go by both?

What do you say? A contradiction? Strange question. What Maimonides means is that for a commandment to be counted, it needs, first, a unique content, and second, a command. Right? In the first part of the Principle he is talking about cases where the same content is repeated in twelve commands. He himself gave that example: twelve times that the Torah commands keeping the Sabbath. Okay? The same content is repeated twelve times in commands. How many commandments do I count? One. Why? Because I only have one content-plus-command combination. In that case there are many commands but not many contents; contents are lacking. Right? So I count one commandment.

With a general prohibition I also count once. Why? Because again I only have one content-plus-command combination. The other contents have content but no command of their own. And in order for a commandment to be counted, it must have both independent or distinct content and a unique command attached to it. That’s all. Maimonides simply requires both conditions.

And this is just a model for many analytic investigations in learning. In analytic investigations we often say: does damaging property obligate me because I was negligent in guarding it, or because the very fact that I own it obligates me to pay? I am responsible for what it did. Okay? A standard Acharonic conceptual investigation. But maybe both? Maybe what obligates me is both the fact that I own it and the fact that I was negligent in guarding it. That’s actually quite plausible. Because I am the owner, I was supposed to guard it, and if I was negligent, then I pay. Or am liable—not punished, but that’s the conceptual structure. We always try to get one strong, all-inclusive definition that covers everything, and where both factors are relevant, we are fattening the definition enormously. Fine—but it’s still an option.

By the way, in this specific case I once wrote an article about it, and I even have proof that the Pnei Yehoshua, for example, held the combined thesis. And some analysts are mistaken who make it into a dispute between him and the Chazon Ish—never mind, all kinds of things like that. It’s a mistake, simply because people don’t take into account the possibility that the dichotomy does not cover all the options. Either side A or side B—sometimes it’s both, sometimes maybe even neither. That can also happen. And somehow in analytic learning we always decide it has to be either this wing or that wing. It almost never really works that way.

By the way, that’s one of the problems with all the little pieces of Rav Chaim. Rav Chaim gives a wonderful division, really. To begin a passage with Rav Chaim is a must. To end a passage with Rav Chaim is a big mistake. Meaning, he presents two sides and shows the practical differences between them beautifully, but once you go back into the passage you always see that it doesn’t fit. There is always something of this and something of that in the position of that medieval authority or that Amora. It doesn’t divide as cleanly and analytically as he presents it in his formulations. Okay? That’s just something to know. One has to mature beyond this simplistic analytic way of thinking. It is very important, but it is not the end of the road. One should start with it, because you have to understand both sides very well each on its own. But then, when you go back to the passage, understand that there are also possibilities in which they combine, and it’s not simply either this or that—either object or person, either sign or cause, and so on.

Okay, back to our topic. So that is what Maimonides establishes in the Ninth Principle. In the Ninth Principle Maimonides says that we need both command and content in order to count a commandment in the enumeration—whether positive or negative. Okay? If there are two commands with the same content, then that is one commandment, right?

Now we return to the Sixth Principle. The Sixth Principle basically comes to qualify the Ninth Principle, even though the order does not suggest that. What does it say? A commandment that contains both a positive commandment and a prohibition ought to have its positive side counted among the positive commandments and its prohibition side among the prohibitions. Take the Sabbath, for example. There is a positive commandment to keep the Sabbath and a prohibition against doing labor on the Sabbath. Right? So that is a positive commandment and a prohibition. These are a positive commandment and a prohibition with the same content. They both require me not to do labor on the Sabbath. Here it’s phrased positively, there negatively—don’t do labor. The wording doesn’t matter. Practically speaking, it requires you not to do labor.

Now Rabbi Yerucham Perla again asks about Maimonides—this time about the Sixth Principle, not the Ninth. In the introduction to his own Sefer HaMitzvot he goes through all of Maimonides’ Principles and discusses them at length: whether Rav Saadia Gaon agrees, whether other medieval authorities agree or don’t agree. Really a wonderful book; I strongly recommend it to anyone who doesn’t know it.

So in his comments on the Sixth Principle he asks Maimonides: this contradicts your Ninth Principle. You told me that if there is the same content, even if the command is repeated twice, we count one commandment. Well then, here too there is one content: it is forbidden to do labor on the Sabbath. Once it is said as a positive commandment—keep the Sabbath. Once it is said as a prohibition—do not do labor on the Sabbath. But in terms of content it is the same content, and there are only two commands. Why do you count it as two?

Different consequences. What consequences? Punishment. Punishment is a consequence. It is a consequence of the distinction. But I’m asking why there is a distinction. That’s not an explanation. When I ask what the difference is between a positive commandment and a prohibition—why when the duplication is of this sort you count two commandments, whereas with two positive commandments or two prohibitions you say in the Ninth Principle that one commandment is counted—what is the difference? Practically it is the same content with two commands. So count it once.

It seems to me simply because there it appears in two different places and both are called commandment. I didn’t understand. There you said that positive and negative commandments… I’m thinking how to challenge what you just said.

That’s exactly the point. What is Maimonides really saying here? He has two innovations. First, notice: he says, “a commandment that contains both a positive commandment and a prohibition should have its positive side counted among the positive commandments and its prohibition side among the negative commandments.” Why doesn’t he simply say: it should be counted as two commandments? There is a positive formulation and a negative formulation. Right? Meaning, he has two innovations. First, he says: the Ninth Principle does not apply when the duplication is between a prohibition and a positive commandment. Between two prohibitions or two positive commandments, that’s the Ninth Principle. But if the duplication is between a prohibition and a positive commandment, the Ninth Principle does not apply.

And I’d say even more than that: even if you tell me they are counted as two commandments, I still might have thought to count them as two prohibitions. Say, with keeping the Sabbath. We are told to keep the Sabbath, and we are told: do not do labor on the Sabbath. But when you ask yourself what sort of commandment this is, it’s a prohibition, right? Because how is it violated? By doing labor. Okay? So maybe you tell me duplication of this sort is counted as two commandments. But perhaps they should be counted as two prohibitions? Why does it matter how the Torah formulates it? Really they are just two prohibitions.

So Maimonides says no—there is a second innovation. Aside from the fact that they are counted as two commandments and not one, the positive side is counted among the positive commandments and the prohibition side is counted among the negative commandments. That too is an innovation. I would not know that unless Maimonides had added it. I might have said: fine, maybe both are counted because the Torah hinted that there are two commandments by formulating one positively and one negatively. But practically, if you ask yourself what it is—it’s just two prohibitions, so count two prohibitions. Maimonides says: no. Count the prohibition among the prohibitions and the positive commandment among the positive commandments. These are two different innovations, although of course they are related.

Because Maimonides apparently understands that positive commandment and prohibition are not really an overlap. It’s not really an overlap. Therefore it really is both a prohibition and a positive commandment—they do not have the same content. And therefore they are counted as two commandments. It’s not two separate innovations. The reason they are counted as two commandments is because duplication between a prohibition and a positive commandment is not really duplication, contrary to what we would think. We’d say: what do you mean? These two commandments command the same thing—not to do labor. What difference does it make? He says: no. “Not doing labor” may sound the same, but one verse says one thing and the other says another.

No, no, you’re talking about Nachmanides and the concept of rest—Torah-level rest on the Sabbath. I’m not talking about that. I’m talking about the obligation not to do labor on the Sabbath, the thirty-nine categories of labor. There is a positive obligation and a negative obligation. That other thing too—the notion of rest in Nachmanides—is not counted either; even Nachmanides does not count it. And Maimonides also agrees there is such a concept of rest; you can see it in the chapters there in the laws of Sabbath, on muktzeh.

Now I want to step one pace backward. There is a more basic problem here. The very existence of situations like this, where there is a commandment that contains both a positive commandment and a prohibition, itself requires explanation. How can such a thing exist? We now have to ask ourselves: the accepted definition of a prohibition—the difference between prohibition and positive commandment—is what I’ll call a practical definition. What do I mean? A prohibition is something you violate by positive action and observe by passive non-action. Right? Take the prohibition of eating pork. How do you violate it? By the act of eating pork. How do you keep it—how do you fulfill that prohibition? By not eating pork. So it is violated by positive action and fulfilled by passive non-action. That seems to be the definition of a prohibition, right?

The definition of a positive commandment is the reverse. You violate it by passive non-action and fulfill it by positive action. Right? The commandment to put on tefillin—the act of putting on tefillin fulfills the positive commandment. Not putting on tefillin, the omission, is neglect of the commandment—that is the transgression. Okay? So the accepted distinction between positive commandment and prohibition—if you ask people what the difference is, usually you’ll get that answer: a positive commandment is fulfilled by positive action and neglected by omission, while a prohibition is observed by omission and violated by action.

Fine. That is basically the difference. But if that were so—or rather, if that were really so, because it isn’t—then situations like the ones Maimonides describes here could not exist at all. What does it mean that a matter has both a positive commandment and a prohibition? Let’s see what the content is. If the content says “don’t do something,” then we have two prohibitions. If the content says “do something,” then we have two positive commandments. How can there be a case where the same thing has both a positive commandment and a prohibition? How is that possible? If the definition is a practical one, and there is overlap in content between a positive commandment and a prohibition, then what is the practical content? Does it require me to do or not do? Make up your mind. If yes, then it’s two positive commandments. If not, then it’s two prohibitions. How can there be both a positive commandment and a prohibition with the same practical content?

By the way, a prohibition with no action raises the same question. A prohibition with no action means violating a prohibition, but not by action—rather by omission—which is usually characteristic of positive commandments. This should remind you that in our passage they excluded positive commandments from flogging, and then they excluded a prohibition with no action from flogging. And I’m reminding you that in our passage the exclusions were different. Positive commandments were excluded from “לשמור” and a prohibition with no action was excluded from “לעשות”. Why? Because of what I’m saying now—what I said there, and now we are fleshing it out in greater detail. Namely: it is not correct to define a positive commandment as something that requires action. There are positive commandments that require omission, like the commandment to rest on the Sabbath. That requires omission. And yet it is still defined as a positive commandment.

Now the question is: why? Is what I’m saying clear? So the question is why. Why does it matter? There was a scholar here named Aharon Shemesh, from the Talmud department here. He died young, in his sixties—relatively young. He once wrote an article in Tarbiz on this subject. He asked himself: why really, what is the difference between positive commandments and prohibitions? And like academic researchers often do, he did a kind of archaeological dig through Talmudic passages. He says that the earlier passages define the distinction between positive commandments and prohibitions in practical terms, just as I said before—whether the transgression is by action or omission. But the later passages, according to his definition, see the distinction between positive and negative commandment as a linguistic distinction, not a practical one: what wording the Torah uses.

If the Torah says in the language of “תשבות”, which is active language, then it is a positive commandment, even though what it requires of me is not to do labor, which practically is passive. Since the Torah uses active language, it is a positive commandment. In other words, what determines it is the language, not the practical plane. Okay? That is his claim. Therefore, for example, “לא תעמוד על דם רעך”—what is that? That’s a prohibition, right? Because the language is negative. Okay, but what is required of you? Action is required. If this commandment requires action, it should have been a positive commandment. You see someone drowning in the river, you have to act to save him, right? But “do not stand idly by”—that is the transgression. Meaning, the transgression here is by omission. Well then, a transgression by omission belongs to positive commandments, not prohibitions. So why is “לא תעמוד על דם רעך” a prohibition? Because the Torah’s wording is the wording of a prohibition. The Torah does not say “save your fellow.” If the Torah had said “save your fellow,” it would be a positive commandment. When the Torah says “לא תעמוד על דם רעך”, it is a prohibition. Okay? That is his claim.

My problem with that is that it’s fine for academics, but it doesn’t really answer the question. Because now I ask: why does the Torah define this with active language and that with passive language? If it intends to tell me to perform an act of rescue, say, then why doesn’t it write “save your fellow”? Why does it write “לא תעמוד על דם רעך”—why phrase it in this passive kind of language, forbidding you to stand by? Write “save your fellow,” a positive commandment. Why does it write it that way? Meaning, yes, it’s true that the Torah writes it that way. But what lies behind that? Language can be an indicator that this is a positive commandment, but it cannot be the definition of positive commandment itself. The fact that the Torah used active language signals to us that this is a positive commandment. And now I ask: what does it mean that this is a positive commandment? Why does the Torah define this as a positive commandment? What is the difference between that and a prohibition?

The linguistic criterion is a diagnostic criterion. In other words, I can use it to identify whether this is a positive commandment or a prohibition. But when I ask in essence why this thing is a positive commandment or why that thing is a prohibition, I need an answer.

Now very often there is a tendency to answer this through the consequences, like what you mentioned before with punishment. The Torah wanted punishment to be imposed here, so it formulated it as a prohibition; and there it didn’t want punishment by the earthly religious court, so it made it a positive commandment. That too solves nothing. Why did the Torah not want punishment there and yes want punishment here? This is not a question of severity. Even among prohibitions there are many levels of severity. There are prohibitions with no punishment at all, prohibitions with flogging, death, karet, death at the hand of Heaven—various kinds of prohibitions, right? It is not a question of severity. The difference between a prohibition and a positive commandment is a difference in category, in type. And I’m saying: if the Torah did not want punishment, it could have made it a prohibition with no action, or a prohibition linked to a positive commandment, or for some other reason there would be no flogging there. If it did not want flogging, why did it formulate it as a positive commandment? If it formulated it as a positive commandment, that means on the categorical level it sees this as a positive commandment. It is something different from a prohibition.

The formulation expresses something that really exists in halakhic reality itself; it is not merely wording. The consequences are an indication that there is a difference, but they are not the difference. You tell me there are differences between positive commandments and prohibitions. For a prohibition, one must spend all one’s wealth in order not to transgress it, right? For a positive commandment, only up to a fifth. Okay. A prohibition cannot be set aside because of human dignity; a positive commandment can. Great is human dignity, which overrides a Torah prohibition by passive non-action. Okay? It overrides a positive commandment but not a prohibition. For a prohibition one is punished by court; for a positive commandment one is not. All these are consequences. But why really are those differences there? Why really are positive commandments not punishable, and why don’t you have to spend all your money for them? Because there is something different about a positive commandment from a prohibition, right? Something that gives rise to all those consequences. I’m asking what that thing is. Don’t give me the consequences. The consequences are an outgrowth of that difference. I’m asking what the difference is.

Once, with my study partner, we were learning Rabbi Yosei HaGelili, who says that lesser sanctities are the property of the owner. Lesser sanctities are the owner’s property, unlike higher sanctities, which are God’s property. I said to him: what does it mean “property of the owner”? In what sense is it the owner’s property? He has to sacrifice it; he can’t do anything he wants with it. So in what sense is it his property? He always has an answer for everything, and he said: because you can betroth a woman with it. But you haven’t said anything. Obviously, after you define it as the owner’s property, one consequence is that I can betroth a woman with it. I’m asking what the meaning is of its being the owner’s property. Why is it the owner’s property? What distinguishes higher sanctities from lesser sanctities? You need to explain to me why it is the owner’s property, and from that maybe I can derive all the consequences. The consequences can hint to you what the difference might be, and then perhaps you’ll also understand why the consequences are as they are. But the consequences are not an answer to the question of what the difference is. Okay?

What is the essence of the legal definition? What is it to take something, to steal something? The Americans even said that because the definition is legal, for example, you can’t project it into some sweeping general rule. Any judge working in that area has enormous difficulty authorizing it. They basically gave up trying to say what it is. I’m actually now writing a column on my site—not about that specifically, but about this philosophical problem: that in a positivist scientific world people always use definitions through symptoms rather than defining the thing itself, because they don’t know how to define the thing itself. You always grasp it through symptoms, and that leads to many mistakes. But that’s the next column.

Anyway, the problem I’m looking to solve is: what really is the essential difference between a positive commandment and a prohibition? That is the question. Tell me what the difference is. All you want is that I not do labor on the Sabbath. So what difference does it make whether you tell me to rest on the Sabbath or tell me not to do labor on the Sabbath? You told me the same thing in different words.

Let me put it differently. If I said: I do not want you not to do labor on the Sabbath—is that a prohibition or a positive commandment? I do not want you not to do labor on the Sabbath—or on a weekday. Is that a prohibition or a positive commandment? There’s a “not” there, right? By the linguistic criterion it’s a prohibition. But a double negation—“I do not want you not to do labor”—means I want you to do labor. So you can see there are two formulations that are logically equivalent, and yet you tell me this is a positive commandment and that is a prohibition. But they are logically equivalent. How can one be a prohibition and the other a positive commandment? What do you mean? You are saying the same thing.

There is also significance to the form of expression, not just… But what significance? That’s what I’m asking. What significance? Okay—even if logically it means doing something, there is significance to the language. That’s what I’m looking for. But understand: if there is significance to that, then there is no logical equivalence. It is a mistake to say they are logically equivalent. In the end we will come back and see that there is no logical equivalence here either, once we understand the difference. You can’t separate the two. If it is logically equivalent, then it says the same thing. If it does not say the same thing, then it is not logically equivalent. That is exactly the point. And this is something the linguistic criterion does not answer. In other words, so what if there is a linguistic difference? If you say the same thing in different formulations, you still said the same thing. Why should language matter?

So maybe I’ll already jump to the end, because this lecture is ending too quickly, and I’ll just close the circle so you can see where I’m heading. We’ll build it next time more gradually. What I want to argue is this: there is an essential difference between a prohibition and a positive commandment. A positive commandment describes a positive state, a state in which the Torah wants you to be. A prohibition describes a negative state, a state in which the Torah does not want you to be. Okay? But the state I’m talking about can be passive or active. Doing an action or not doing an action—that is not what matters. The question is whether we are defining a positive state—then it is a positive commandment—or defining a negative state—then it is a prohibition. And it really makes no difference whether that state is a state of action or non-action. That is my claim.

Let me formulate it this way. Say I speak about “לא תעמוד על דם רעך”. That is a good example, because there there is no parallel positive commandment. With the Sabbath it gets confusing because there is both a positive commandment and a prohibition about the same thing. But “לא תעמוד על דם רעך” is a better example, because it is basically a prohibition whose content is the content of a positive commandment. Save the other person—and there is no parallel positive commandment here, only a prohibition. Okay? So here the question already arises: what do you want? Why formulate it like that? Say it like a normal person.

What I want to claim is this: the Torah wants to tell me that the state in which you do not save is a negative state. It is not saying that the state in which you do save is a positive state. And saying those two things is not the same. If the Torah had formulated it as a positive commandment, it would have been saying: look, if you don’t save, I have no problem with that; it’s not a negative thing. But if you do save, that’s excellent—that’s a positive thing. And that is not the same statement.

Let me give you one of the consequences. Suppose I did not save him because I was under duress. Say there was some coercive circumstance and I couldn’t save my friend; I was unable to save him. Okay? If this were a positive commandment, then duress is not as though one acted, right? I did not fulfill the commandment. True, I was under duress, so I’m not blameworthy—but I did not fulfill the commandment. If this were a positive obligation—say I was prevented from putting on tefillin under duress—I did not fulfill the commandment, even though I was under duress. At noon the duress ceased. I would now have to go and put on tefillin, because I had not fulfilled the commandment. True, I was under duress, but duress is not as though one acted. It does not count as though I did it; it only means I’m not guilty for not doing it.

But if “לא תעמוד על דם רעך” is a prohibition, and I stood there and did not save him, then I was in the wrong. It’s not that I merely failed to be righteous; I was wicked, because I was in a negative state that the Torah told me not to be in. It is a negative state. On this understanding, when I go to save, I am not performing a positive act; I am simply escaping from being in a negative state. If the Torah had said to me “save” as a positive commandment, then it would basically be saying: look, the fact that you’re standing here doing nothing is not a negative state—it’s just that you’re not in the positive state, and I expect you to be in the positive state of saving. Okay?

That, basically, is the difference between a prohibition and a positive commandment. That is my claim—not the issue of positive action versus passive non-action. That is the difference. And from that we can derive all the consequences. I’ll give you examples of that, and also how the consequences emerge from this, but that really is already for next time. I just wanted the circle to close somehow by the end of the lecture.

More power to you. Good. See you.