The Torah and its Mitzvot

These are the words that Moshe spoke to all of Israel on the east bank of the Jordan, in the wilderness, in the Aravah, opposite Suf, between Paran and Tofel, Lavan, Chatzerot and De Zahav. (Sefer Devarim 1:1)

1. Sefer Devarim and its content

This passage introduces Sefer Devarim. The sefer is composed of three basic elements. The first element consists of rebukes over the past failings of the nation coupled to warnings to not return to these behaviors. The second element is composed of a review of many of the commandments described earlier in the Torah. In some instances the review of a particular commandment includes additional detail not previously revealed. Sometimes the review does not provide additional detail and merely restates the mitzvah. The third element consists of the communication of mitzvot that were not previously revealed to the nation.

Nachmanides notes that the second element – composed of a review of previously communicated commandments – does not include those commandments that are assigned exclusively to the kohanim. This omission can be understood in the context of the overall objective of the sefer. Moshe’s rebukes and warnings are intended to prepare the people for entering and settling the Land of Israel. The success of their conquest of the land and their achievement of lasting settlement will directly depend upon their observance of the Torah. As the Torah explained earlier and as Moshe will reiterate in Sefer Devarim, providence will determine the fate of the nation. In turn, providence will be guided by Bnai Yisrael’s obedience or abandonment of the Torah. Observance of the mitzvot will secure the nation’s wellbeing in the land and neglect of the mitzvot will lead to suffering and exile. In this context Moshe reviews the commandments. This review is intended to compliment the rebukes and warnings. Moshe combines an explanation of the urgency of obedience to the Torah with a review of its commandments.

Nachmanides explains that the kohanim did not require a review of their commandments. They were fully committed to their observance. Although they too received his address, Moshe did not feel he needed to focus of the kohanim. They could be expected to be scrupulous in the observance of the commandments given specifically to them without a further review.

Nachmanides raises another issue. Why were some mitzvot not previously revealed? Why did Moshe wait until the final moments of his life to communicate to the nation mitzvot he had received thirty-eight years earlier at Sinai? Nachmanides replies that the commandments that were only now revealed had little or no application in the wilderness. Some would only apply in the Land of Israel. Now that the nation was poised to enter the land, the appropriate time had arrived for the communication of these commandments. Other commandments first communicated at this point apply outside of the Land of Israel but are observed very infrequently.[1]

Why did Moshe delay revealing those commandments that occur infrequently? Moshe could have communicated these commandments earlier with an explanation of the circumstances in and conditions under which each is observed. Moshe was apparently awaiting a practical context in which to teach these commandments. During the thirty-eight years in the wilderness the circumstances in which these commandments apply did not arise. Now, Moshe knew that his end was rapidly approaching. The ideal setting for the teaching of these commandments would not arise. He could wait not longer. Now, he revealed these commandments.

2. Moshe’s review of previously communicated commandments

As Nachmanides observes, some commandments are repeated in Sefer Devarim without any additional detail. Moshe reviews the commandment as it has already been taught to the people. He may select words and employ phrasing in his review that was not used in the first iteration. However, in substance, nothing new is added to the commandment. Nachmanides explains that this review was required in order to impress upon the nation the importance of the observance of the commandments. Through repletion Moshe communicated urgency and import.

However, it seems that according to Nachmanides, there is a practical outcome from the repetition of a commandment. Understanding this outcome requires a brief introduction. The Torah commandments can be divided into two broad categories – positive commandments and negative commandments. In general, the positive commandments instruct us to perform an activity, profess a conviction, or engage in a behavior. We are commended to eat matzah on Pesach. We are required to accept that Hashem is a unity. We must give various forms of charity. These are all positive commandments. Negative commandments are prohibitions. The negative commandments also relate to convictions, actions, and behaviors.

In general, the courts are not empowered to enforce through punishments the observance of positive commandments. However, the active violation of a negative commandment, generally, is punished by the courts. The most common consequence for such a violation is lashes. A lengthy discussion is required to explain the means of administering lashes. This discussion is not necessary for this introduction.

3. Repeated admonitions and their judicial impact

Maimonides explains that a person receives only a single set of lashes for the violation of a single commandment. Regardless ofthe number of times the commandment is reviewed and the number of admonitions in the Torah regarding the commandment’s observation, the violation of a single commandment will evoke a single set of lashes. Maimonides explains that repeated admonitions are intended to stress the importance of the commandment’s observance and encourage scrupulous attention to its requirements. However, these repeated admonitions do not have to produce a practical judicial outcome. [2]

Nachmanides seems to dispute this conclusion. Apparently, he maintains that for those mitzvot punished by lashes, the number of sets of lashes administered by the court varies. For the violation of some of these commandments a single set of lashes is administered. For others, multiple sets are administered. The number of sets is determined by the number of times the Torah admonishes us to not violate the commandment. One set of lashes is administered for each admonition.[3]

Maimonides’ position is more easily understood. Lashes are administered for violation of the commandment. Regardless of the number of times the Torah admonishes us to observe a commandment, a single violation should result in administration of a single set of lashes. Nachmandies’ position is more difficult to grasp. Why does the number of sets of lashes correspond to the number of admonitions in the Torah?

4. The Torah, its mitzvot and lashes

It seems that Maimonides and Nachmanides disagree over the factor that engenders the lashes punishment. Maimonides maintains that lashes are administered for violation of a commandment. Therefore, regardless of the number of admonitions in the Torah to refrain from a behavior, a single commandment’s violation produces a single set of lashes as its punishment. Nachmanides argues that lashes are not administered for violation of the commandment but for violation of the “word” of the Torah. For each disobedience to the Torah’s word lashes are administered. When the Torah repeats its instruction to refrain from an action, it has one of two purposes. Either the intention is to reveal some new aspect of the mitzvah or the Torah is delivering an additional admonition regarding a previously stated commandment. If the Torah is expressing an additional admonition and we perform the prohibited action, we have ignored each of these separate admonitions. The sets of lashes will correspond with the number of admonitions – the number of violations of the words of the Torah.[4]

 

1. Rabbaynu Moshe ben Nachman (Ramban / Nachmanides), Commentary on Sefer Devarim, Introduction.

2. Rabbaynu Moshe ben Maimon (Rambam / Maimonides) Sefer HaMitzvot,Principle 9.

3. Rabbaynu Moshe ben Nachman (Ramban / Nachmanides), Critique on Maimonides’ Sefer HaMitzvot,Principle 9.

4. Perhaps there is a deeper message in this dispute. What is the relationship between the Torah and its commandments? It seems that according to Maimonides the 613 commandments derived from the Torah. This means that through interpreting the Written Torah by means of the Oral Tradition the mitzvot are identified and described. The Torah teaches us the mitzvot and we are required to be obedient to them. Because we are required to be obedient and loyal to the mitzvot that are derived from the Torah, lashes are only administered in proportion to the number of mitzvot violated. The number of times that the mitzvah is repeated in the Torah is not relevant.
Nachmanides seems to reject this characterization of the relationship between the Torah and its mitzvot. The Oral Tradition reveals the meaning of the Written Torah. We are obligated to be obedient to the Torah – the Written Law as interpreted by the Oral Tradition. This obedience to the Torah is expressed through obeying its commandments. These commandments do not emerge as an entity derived from the Torah; they are the “action points” of the Torah that we must undertake. Lashes are not administered for violation of an abstraction derived from the Torah. Lashes are administered for violating the word of the Torah itself. It follows that the number of sets of lashes must conform to the number of admonitions ignored.