Which Mitzvah Should we Drop?

What do you mean by “dropping” a mitzvah? Drop it from what? And what does this question have to do with this week’s parshah?

To understand the question properly, we need to study some background material. The Gemara (Makkos 23b) teaches that Hashem commanded 613 mitzvos, 365 negative mitzvos (lo saaseh) and 248 positive (mitzvos aseh) ones, although it does not list them. Yet we know that the Torah commands us what to do thousands of times. Obviously, most of these commands are not counted, but which ones? Furthermore, by mentioning that there are 613 specific mitzvos, the Gemara implies the importance of identifying them. This last factor led many early authorities to pinpoint the exact identity of these 613 mitzvos. In fact, the Geonim and Rishonim authored a vast literature debating and categorizing what exactly comprises these 613 mitzvos.

Two Early Counts

Rav Saadiah Gaon authored one of the earliest lists. He wrote an alphabetic poem that mentions all the mitzvos, without any explanation why he counted the commandments he did and did not count others. Rav Yeruchem Fishel Perla, a talmid chacham of note who lived in Warsaw during the time of the First World War, analyzed Rav Saadiah’s mitzvah list and compared it with the other opinions found among the Geonim and Rishonim. This three-volume magnum opus remains a classic, if underutilized, resource.

Baal Halachos Gedolos

The Rambam mentions that the accepted counting of the 613 mitzvos prior to his own Sefer Hamitzvos was that of the Halachos Gedolos, a halachic work authored by Rav Shimon Kaira in the era of the Geonim, which is usually referred to as Behag, short for Baal Halachos Gedolos. (Although the Behag is often cited as the work of the early gaon, Rav Yehudai Gaon, since the Halachos Gedolos quotes Rav Yehudai Gaon many times, he obviously cannot be the author.) Subsequent to the Behag’s list, many other authors followed his list, while others made minor amendments to his list. In addition, many liturgical poems were written based on his list. However, it appears that until the Rambam penned his Sefer Hamitzvos no one disputed the basic approach that Behag used to determine what counts as a mitzvah.

Will the Real Mitzvah Please Stand Up?

The Rambam disagreed sharply with the Behag’s list, and devoted much of his work, the Sefer Hamitzvos, to clarifying what the 613 mitzvos really are. The Rambam even mentions that the many piyutim based on the Behag’s list are in error; however, he does not fault the authors involved, noting that they were poets and not rabbis (Introduction to Sefer Hamitzvos).

What difference does it make whether something is a mitzvah or not?

Although many authors discuss what to include in the count of the 613 mitzvos, it is noteworthy that few of them discuss why it is important to know what are the 613 mitzvos — other than to understand the Gemara’s statement quoted above.

On the other hand, the Rambam does explain why he listed the mitzvos. In his introduction to Sefer Hamitzvos, he describes how he has decided to write a work that includes all of the halachos of the Torah, but without any sources and debate. The work he indeed eventually wrote and called it the Mishneh Torah. The Rambam describes how he decided to structure the Mishneh Torah according to related mitzvah topics, rather than follow the order of the Mishnah. The Rambam then mentions that he decided to precede each section of the Mishneh Torah with an introduction in which he would list the mitzvos included in that section.

Why the Sefer Hamitzvos?

At this point, the Rambam notes a concern. Prior to this time, the standard work listing the 613 mitzvos was the Behag, a list with which the Rambam disagreed. This meant that if the Rambam listed the mitzvos before each section of his Mishneh Torah according to this own list, he would be disputing an accepted approach to Judaism. Thus, he was in quandary. On the one hand, his Mishneh Torah would be incomplete without listing the mitzvos involved in each of its sections; while on the other hand, people might reject this list unless he explained its rules and why he disputed what was heretofore accepted. For this reason, the Rambam explains, he wrote the entire Sefer Hamitzvos as an introduction to his Mishneh Torah in order to explain the rules that determine what counts as a mitzvah and what does not. In a way, writing the the Sefer Hamitzvos was bolder and more innovative than writing either the Moreh Nevuchim or even the Mishneh Torah itself, since the Sefer Hamitzvos disputed a theretofore completely accepted system.

Although some authors subsequently disputed parts of the Rambam’s system, in general, the Jewish people have more-or-less accepted his list of mitzvos and his rules determining what counts as a mitzvah. For example, a later work, the Sefer Hamitzvos HaGadol, usually called by its Hebrew acronym, the Smag, compiled his own list of the 613 mitzvos. Although he disputes with the Rambam’s conclusions on a number of occasions, he still accepts most of the Rambam’s basic definitions as to what comprises a mitzvah and what does not. His disagreements with the Rambam generally involve specific interpretations and applications, not the basic rules.

The Sefer Hachinuch

The most familiar list of the 613 mitzvos is that of the Sefer Hachinuch. Actually, this author did not develop his own count of 613 mitzvos, as he mentions himself several times in his work. Rather, he followed the Rambam. However, whereas the previous mitzvah counters, Rav Saadiah, the Behag, the Rambam and the Smag, all listed the mitzvos in a logical pattern, the Sefer Hachinuch rearranged the Rambam’s list, numbering each mitzvah according to its appearance in the Torah. He further introduced each parshah with its list of mitzvos. The Sefer Hachinuch’s reorganized list is the most commonly used today to count the 613 mitzvos. By the way, although it is important to know and understand the 613 mitzvos, there is no halachic significance in knowing the chronological number associated with a particular mitzvah. For this reason, there is no reason to memorize the mitzvos according to the number assigned them by the Sefer Hachinuch.

This Week’s Mitzvos

Now I can finally explain what I meant about “dropping” a mitzvah. In this week’s parshah, the Sefer Hachinuch counts sixteen mitzvos, eleven positive and five negative ones. The problem is that, according to most authorities, both he and the Rambam should have counted one more negative mitzvah.

Which mitzvah are they accused of omiting?

The Torah mentions many types of korbanos in the course of the parshah, some of animals, some of birds, and some of flour. When the olah offering is placed on the mizbei’ach, the altar, the Torah requires that it first be cut up into large pieces, similar in size to the large pieces of meat that a butcher may receive. It is forbidden to cut the meat into smaller pieces in order to place them on the mizbei’ach, nor may one place the entire carcass on the mizbei’ach without first cutting it up.

However, when the Torah discusses offering a bird as an olah, usually called the olas ha’of, the halachah is different and one may place the entire bird on the mizbei’ach at once, just as people commonly barbecue an entire bird. But what happens if the kohen chose to separate the bird in half before placing it on the mizbei’ach? According to the Rambam, one may separate the bird into parts if one chooses (Hilchos Maasei Hakorbanos 6:22). However, most authorities prohibit this, contending that severing the bird violates one of the 365 negative commandments of the Torah (Behag; Yerei’im). Thus, in their opinion, one who severs the bird commits a punishable offence similar to wearing shatnez or eating non-kosher!

Lo Yavdil

The above dispute stems from two differing approaches how to interpret two words in this week’s parshah: “lo yavdil,” (Vayikra 1:17). Does the Torah mean, he (the kohen processing the olas ha’of) is not required to separate it, or does the Torah mean, he shall not separate it.

Since the Rambam interprets the words according to the first explanation, and therefore rules that one may separate the bird, he does not count this as a mitzvah, and the Sefer Hachinuch follows this approach. As a result, the Sefer Hachinuch does not count this mitzvah among those of this week’s parshah.Hee counts sixteen mitzvos, eleven positive and five negative ones, whereas if this mitzvah was counted, there should be seventeen mitzvos, eleven positive and six negative ones.

Explaining our Question

Now I can explain what I meant in the title to this article. Although we generally follow the Rambam’s count of mitzvos, in this instance the Rambam is a minority opinion. Based on substantive proofs, the later authorities contend that we should not follow his approach, but consider this a lo saaseh (Malbim; Sfas Emes, Zevachim 64a; To’afos Re’im; Hirsch; Rav Yeruchem Fishel Perla’s commentary of Rav Saadiah, Lo Saaseh 194). That means that we have a total of 614 mitzvos, the Rambam’s 613 plus this mitzvah, or, even more specifically, we will have 366 negative mitzvos, rather than the 365 that the Gemara mentions. Obviously, we have counted something as a mitzvah that we should not have! We need to determine which negative mitzvah counted by the Rambam must be removed from the list in order to make room for this one.

Since none of the mitzvos that the Rambam selected have volunteered to resign, we are left with the unenviable responsibility of deciding which one to remove.

Assuming this awesome responsibility brings to my mind the epigram originally written by the Eighteenth Century English poet, Alexander Pope: Fools rush in where angels fear to tread.

Of course, I am not advocating the rewrite of any part of Sefer Hachinuch. I am merely suggesting that there is much to gain by exploring some candidates for de-mitzvah-ication. This certainly provides an opportunity to examine and appreciate what is involved in “counting mitzvos.”

Watch that Mikdash!

One possible candidate could be the lo saaseh requiring the kohanim and the levi’im to guard the Mishkan/Beis Hamikdash by posting watchmen in various places. Just as Buckingham Palace has a military detail guarding the monarch’s residence, so too, the “palace” that we erect in Hashem’s honor must have an honor guard (Rambam, Hilchos Beis Habechirah 8:1). The Mishkan and the Beis Hamikdash certainly deserve as much pomp and honor as a mortal king receives!

This requirement would appear to be a positive mitzvah: Safewatching the holy place. Yet, in observing this requirement, the Rambam and the Sefer Hachinuch (Mitzvah 391) count both a positive mitzvah, to maintain the watch (Sefer Hamitzvos aseh 22; Sefer Hachinuch, Mitzvah 388), and a negative one, not to abandon the guard (Rambam, Hilchos Beis Habechirah 8:3; Sefer Hamitzvos, lo saaseh 67; Sefer Hachinuch, Mitzvah 391). Even more interesting is that their source for the negative mitzvah in Parshas Korach sounds like a positive mitzvah: And you shall safeguard the charge of the holy area (Bamidbar 18:5). Furthermore, this verse is an almost verbatim repeat of the previous verse, which is quoted as the source for the positive mitzvah, And they shall safeguard the charge of the holy area (Bamidbar 18:4). Indeed, this is presumably the reason why other Rishonim count this only as a positive command and not as a negative one (Smag).

To explain the Rambam’s position, the Sefer Hachinuch and the Mahari Korkos note the Gemara that states that the word hishameir, Guard, always introduces lo saaseh mitzvos, and both the Sefer Hachinuch and the Rambam quote a Medrash Halachah that explains that the repeated verse is to teach that this mitzvah is both a positive mitzvah and a negative one. Many later authorities debate whether to accept this conclusion of the Rambam, and offer other interpretations of this Medrash (Birkei Yosef, Orach Chayim 30:1).

A Tamei Entering the Mikdash

We will now explore a different approach to resolving our original question. The Torah prohibits a tamei person from entering the Beis Hamikdash area. This mitzvah is of course very dear to us in a discussion taking place in the season when our thoughts are drawn to our desire to bring the korban Pesach soon.

People usually become tamei by contacting tumah from a tamei source, such as a corpse or animal carcass. Such people are prohibited min haTorah only from entering the courtyard (chatzeir) of the Mishkan, or its corresponding area of the Beis Hamikdash, the Azarah, but not the rest of the Mishkan or the Beis Hamikdash (Pesachim 67a). The Rambam counts this prohibition as lo saaseh 77, deriving it from the verse: They shall not contaminate their encampments (Bamidbar 5:3).

There is another, more severe, category of tumah called tumah yotzei migufo, tumah that originates in the body, which includes such types of tumah as zav. These types of tumah are listed in Parshas Tazria, which we will read shortly after Pesach. People afflicted with these types of tumah may not enter the entire area called machaneh leviyah, which includes the entire Har Habayis, called in English, “The Temple Mount.”

One Mitzvah or Two?

Although everyone agrees that the Torah created two different levels of prohibition, the question is whether we count them as two separate mitzvos within the count of 365 negative mitzvos, or as one. The Rambam counts them as two separate lo saaseh mitzvos, numbers 77 and 78, deriving the second prohibition from the verse, He shall not enter the middle of the camp (Devarim 23:11), whereas others count these as one mitzvah (Smag, Lo saaseh 304). Thus, by following the Smag’s decision to count these two laws as one mitzvah, we would now have only 364 mitzvos lo saaseh and be able to add our parshah’s extra mitzvah, not to sever the olas-ha’of, in order to bring our numbers back up to 365.

Kosher Choices

Having discussed several mitzvos germane to the Beis Hamikdash where we might be able to “delete” a mitzvah, let us see if there are any other candidates. In the world of kashrus we can nominate not one, but two candidates:

The Rambam counts a total of five different negative commandments connected with eating insects and other small creatures (Lo saaseh numbers 175- 179) that fall under five different categories. These mitzvos are not mutually exclusive; quite the contrary, a particular creature may be included under several, or perhaps even all, of these prohibitions. The five prohibitions are:

1. Not to eat small flying creatures.

2. Not to eat small crawling creatures.

3. Not to eat creatures that appear to generate from rotting material (Hilchos Maachalos Asuros 2:13).

4. Not to eat creatures that develop within fruits and seeds (Hilchos Maachalos Asuros 2:14).

5. Not to eat any small creatures. The fifth category includes any of the others, as I will explain (Hilchos Maachalos Asuros 2:12).

One who consumes a creature that has several of these features violates a separate lo saaseh for each category that includes it. Thus, eating a small swimming creature will violate only one of these prohibitions (the fifth one); consuming a creature that both flies and crawls will involve three prohibitions (1, 2 and 5); if it also appears to develop from rotting material, one will violate four prohibitions (1, 2, 3, and 5), and if it develops within fruit or seeds, one will violate all five.

Where is the dispute?

Although the Rambam counts all five of these prohibitions as different mitzvos, each with its own rules, many of the other Rishonim do not count the third and fourth mitzvos that the Rambam counts as separate mitzvos (Smag; Ramban, Notes to Sefer Hamitzvos, Shoresh 9:9). Thus, according to the latter approach, someone who ate a small creature that flies, crawls and appears to develop from rotting material, will violate three prohibitions, not four. Consequently, they could count our original candidate, not to sever the olah-bird, without exceeding the limit of 365 negatives mitzvos. In fact, by excluding two mitzvos and adding only one, we would end up one mitzvah short and need to find one more to add to the list. We will leave that question for a different time.

Conclusion

Should one count the mitzvah of lo yavdil in this week’s parshah as one of the 613 mitzvos? According to most authorities, one should. Regarding the follow-up question, “But then we have 366 lo saaseh mitzvos, and the Gemara says that there are only 365,” I would answer that although it is not our place to determine definitely which the 613 mitzvos are, we should study the topic thoroughly to see which mitzvos are disputed. We have now seen some possible choices and deepened our understanding of what it means to count something as a “mitzvah.”

Why the Bird?

Rav Samson Raphael Hirsch (Vayikra 1:17) notes that the many laws involved in the processing of an olas ha’of are considerably different from those of other korbanos. To explain this korban’s many anomalous rules, he notes that Tanach often uses a bird as a metaphor for an imperiled, defenseless person in flight from his pursuer, and that an olas ha’of is symbolic of how a forlorn, suffering individual relates to Hashem because of his fate. The imperiled person can use the anguish itself as a springboard for ascent and advancement by clinging to the heights of Torah ideals even in his predicament. This korban teaches that even when the going gets tough, one must never let go the yearning to draw closer to Hashem.

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