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Published online by Cambridge University Press: 24 April 2015
A Talmudic principle, attributed to Rabbi Chanina, claims that a person who is commanded to perform an action and who obeys is greater than a person who is not so commanded but nonetheless acts in the way the commandment requires. Although the principle mentions only how people act, there is no reason to think that the principle does not apply equally to omissions—the subjects of negative commandments. Accordingly those who are commanded to refrain from acting in certain ways and comply with these commandments are greater than those who are not commanded in this way but still refrain from the actions proscribed by the commandments.
The contexts in which this principle is cited suggest that the principle was accepted by the rabbis. In two places where it occurs, the statement is cited in order to resolve a difficulty and it is not subsequently disputed in the Talmudic discourse on the matter, suggesting its acceptance. In another context, combined with a statement of Rabbi Judah that the blind are exempt from (some) commandments, the principle yields the conclusion that the blind lack the religious potential of the sighted. This conclusion, the Gemara reveals in both places, was deeply disturbing to the blind sage Rabbi Joseph. Rather than rejecting Rabbi Chanina's statement, Rabbi Joseph declared that he would feast the rabbis if any of them could show that the halacha is not in accordance with Rabbi Judah. In other words, he assumed that Rabbi Chanina's view was sound and that the only way to avoid its disturbing implication for the blind was to prove that Rabbi Judah was wrong. The Talmudic endorsement of Rabbi Chanina's statement is confirmed by subsequent halachic authorities. Moses Maimonides cites the principle approvingly in his Mishne Torah as does Joseph Karo in the Shulchan Aruch.
1. “Gadol hametzuve ve'ose yoter mayme she'ayno metzuve ve'ose.” Avoda Zara 3a, Baba Kama 38a and Kiddushin 31a.
2. Avoda Zara 3a, Baba Kama 38a.
3. Sefer Mada, Hilchot Talmud Torah 1:13.
4. Yore De'a, Hilchot Talmud Torah 246:6.
5. It would be more accurate to say that acting on principle sometimes exhibits the virtue of conquering immoral inclinations. This is because where one happens to be inclined to do that which one's duty requires then, even though one acts for the sake of duty, that does not involve conquering one's inclinations.
6. My interpretation of Rabbi Chanina's principle is radically different from another more common interpretation—one that renders the principle fundamentally non-Kantian. On the alternative understanding, the principle is taken to be an endorsement of heteronomy. That is, it advocates acting in accordance with God's law rather than one's self-legislated law.
7. Avoda Zara 3a.
8. Kedushin 31a. In this context the explanation is somewhat less emphatic than in Avoda Zara. In Kedushin Tosafot say the explanation appears to be the reason for Rabbi Chanina's statement.
9. That ignorance of the law is a defence, is evident from the Jewish legal requirement that punishment may not be inflicted unless a warning (hatra'a) was given immediately before the crime was committed. See e.g. Sanhedrin 8b. (There are some exceptions to the hatra'a requirement. For a summary of these see Elon, Menachem, The Principles of Jewish Law 473–474 (Keter Publg. 1974))Google Scholar.
10. Avoda Zara 3a; Baba Kama 38a.
11. The language of the Talmud is “keKohen Gadol.”
12. Kedushin 31a.
13. Sefer Mada. Hilchot Talmud Torah, 1:13. Yore De'a, Hilchot Talmud Torah 246:6.
14. The Hebrew expression is “lezakot.”
15. Makkot 3:16.
16. This idea is obliquely alluded to in some commentaries. E.g. Siftei Kohen on Yoreh De'a, Hilchot Talmud Torah 246:6.
17. While it is true that there are some commandments that pertain only to Jewish women, it is beyond dispute that traditional Judaism imposes more obligations on Jewish men than on Jewish women.
18. Joel Roth, a scholar within the tradition of Conservative Judaism, has argued that woman can accept obligations they would otherwise not have. Roth, Joel, On the Ordination of Women as Rabbis, in The Ordination of Women as Rabbis: Studies and Responsa 127–187 (Greenberg, Simon ed., Jewish Theological Seminary of Am. 1988)Google Scholar. It is not possible to assess his arguments here. It is noteworthy, however, that even if he is correct that a woman can choose to become obligated, it does not follow that she can choose to become commanded. Professor Roth himself highlights the distinction between being a “mehuyyav” and being a “metzuvveh” (id. at 143) but he does so in reference to a principle other than Rabbi Chanina's. If Rabbi Chanina's principle refers only to those who are “metzuveh”—those whose obligation is externally imposed—then even if a woman can choose to impose obligations upon herself, it would not follow that she is commanded. If Rabbi Chanina's principle refers also to those whose obligation is self-imposed, and if Professor Roth's arguments that a woman can impose an obligation upon herself are sound, then the moral problem I have mentioned would not arise regarding Jewish women. It would still arise regarding Jewish men (who cannot choose not to be obligated). Finally, the problem would present itself regarding both sexes for those (mainly Orthodox thinkers) who do not accept Professor Roth's argument.
19. Shmot Raba 28:6.
20. Avoda Zara 2b-3a.
21. Avoda Zara 2b, Shabbat 88a.
22. It refers to this view as a “moda'a rabba l'oraita”—a notification of duress that is sufficient to invalidate a document—in this case the Torah.
23. Megillat Esther (ch. 9) says “kimu vekiblu hayehudim” (“the Jews confirmed and received”). Commenting on this, the Gemara says that they confirmed that which they had already received (at Sinai). Shabbat 88a.
24. Lichtenstein, Aaron, The Seven Laws of Noah (Rabbi Jacob Joseph School Press 1981)Google Scholar.
25. Some may be troubled by the idea that God could be a beneficiary of the actions of those who obey his commandments. My use of the term is intended merely to designate God as the recipient of the action—the person to whom the duty is owed or to whom the action is directed. It is not intended to suggest that God is made better off by the performance of these actions.
26. Notice that we must call it the “utilitarian virtue explanation” and not the “utilitarian explanation.” This is because both (a) the person who is commanded and does, and (b) the person who is not commanded but does, produce the same good outcome because they both do the action in question. The “utilitarian virtue explanation” considers some counterfactual scenario in which the person who is not commanded does not do because he is not commanded. The suggestion is that because he lacks the relevant motivation to act for the sake of duty, he produces less good in such counterfactual situations.
27. See The Doctrine of Virtue (second part of The Metaphysic of Morals).
28. Rashi cites this teaching in his commentary on Leviticus 20:26. The teaching comes from Sifra, a midrashic work on Leviticus.
29. This is prohibited by Jewish ritual law.
30. lev 20:26.
31. Dietary laws and laws of forbidden mixtures.
32. Aristotle, Nicomachean Ethics, Book 7.
33. Maimonides, Moses, The Eight Chapters in Ethical Writings of Maimonides. ch. 6 (Weiss, Raymond L. & Butterworth, Charles eds. & trans., Dover Publications 1983)Google Scholar.
34. Id.
35. Even the cases of legal enforcement of “lifnim mishurat hadin” (supererogatory principles) seem to be extensions of the scope of legal obligation.
36. I am grateful to Steven Nadler, Elliot Dorff and the editors of The Journal of Law and Religion for helpful comments.