Which Mitzvah Should We Drop?

What do you mean that we need to drop 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 (mitzvos lo saaseh) and 248 positive ones (mitzvos aseh), although it does not list them. Yet we know that there are thousands of places that the Torah commands us what to do. Obviously, most of these are not counted; but which ones? And, more so, if the Gemara mentions that there are 613 specific mitzvos, this implies that it is important to identify them. This last question led many early authorities to calculate exactly what the 613 mitzvos are. In fact, the Geonim and Rishonim authored a vast literature debating and categorizing what exactly comprises these 613 mitzvos.

Two Early Counts

Of the lists that date back to the days of the Geonim, one is authored by Rav Saadiah Gaon. He wrote a poem in which he listed all the mitzvos, but, of course, did not explain why he counted certain commandments as mitzvos, but not others. In pre-war Europe, a talmid chacham of note, Rav Yeruchem Fishel Perla, made it his life’s project to analyze the mitzvah list of Rav Saadiah and compare it with the other lists and opinions that we find among the Geonim and Rishonim. It is rumored that it took Rav Perla thirty years to write the work. The three-volume magnum opus is a classic, if underutilized, resource.

Baal Halachos Gedolos

The Rambam mentions that the accepted counting of the 613 mitzvos prior to his writing 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 Rav Yehudai Gaon, the work quotes Rav Yehudai Gaon many times, so he obviously could not be the author.) Subsequent to the Behag’s organizing a list, many other authors followed his approach and others made minor adjustments to 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. In addition, many liturgical poems were written based on his list.

Will the Real Mitzvah Please Stand Up?

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

What significance is there to whether something is a mitzvah?

Although many authors discuss what exactly is included in the count of the 613 mitzvos, it is important to note that few of them actually discuss reasons why it is important to know them — other than to understand the Gemara’s statement that I quoted above.

The Rambam, however, does explain why he listed the mitzvos. In his introduction to Sefer Hamitzvos, he describes how he decided to write a work that would include all of the halachos of the Torah without the sources and debate, a work that he eventually did write and called the Mishneh Torah. The Rambam describes his deliberation concerning how to structure the Mishneh Torah and his decision to organize everything according to related mitzvah topics, rather than follow the order of the Mishnah. After deciding how to organize the Mishneh Torah, the Rambam describes that he then decided to include an introduction before each section, in which he would list the mitzvos whose laws he would be discussing.

Why the Sefer Hamitzvos?

At this point, the Rambam notes a concern. Prior to his time, the commonly used work listing the 613 mitzvos was the Behag. This meant that if the Rambam explained the mitzvos involved in each section of his Mishneh Torah, and his list of mitzvos differed from that of the Behag, he needed to explain why he had departed from accepted ways. The Rambam decided that his Mishneh Torah would not be complete if he did not list the mitzvos, and that his mitzvah list would be rejected, if he did not first explain what his rules were. For this reason, the Rambam explains that he wrote the entire Sefer Hamitzvos as an introduction to his Mishneh Torah to clarify the rules that determine what counts as a mitzvah and what does not. In a way, the Rambam’s writing of the introduction, the Sefer Hamitzvos, was bolder and more innovative than his writing either the Moreh Nevuchim or even the Mishneh Torah itself, since the Sefer Hamitzvos disputed a theretofore completely accepted system.

Although other authors dispute parts of the Rambam’s system, subsequent to his writing the Sefer Hamitzvos and the Mishneh Torah, the Jewish people have, for the most part, accepted his list and his rules. For example, a later work written by one of the baalei Tosafos, the Sefer Hamitzvos HaGadol, usually called by its Hebrew abbreviation, the Smag, compiled his own list of the 613 mitzvos. Although he disputes the Rambam’s conclusions on a number of occasions, he still follows most of the Rambam’s basic definitions as to what comprises a mitzvah and what does not. His disagreements with the Rambam are, for the most part, on specific interpretations and applications, not on 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, although I am aware that many schools have made this an educational project.

This Week’s Mitzvos

At this point, I can explain what I meant about dropping a mitzvah. In this week’s parshah, Vayikra, 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 omitting?

In the course of the parshah, the Torah mentions many types of korbanos, some of animals, some of birds, and some of flour. When the olah offering is placed on the mizbei’ach, 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. One is not permitted to place small pieces on the mizbei’ach, nor may one place the entire carcass on the mizbei’ach without first cutting it into large pieces.

However, when the Torah discusses offering an olah that is a bird, usually called the olas ha’of, the halachah is different, and one may place the entire bird on the mizbei’ach at one time, just as one might barbecue an entire bird at once. What happens if the kohen chose to cut 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 cutting the bird in half, contending that doing so 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 offense, approximately equivalent to wearing shatnez or eating non-kosher!

Lo Yavdil

These two opinions stem from different interpretations of the Torah’s instruction “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 cut up the bird, he does not count this as a mitzvah, and the Sefer Hachinuch follows this approach. As a result, when he counts mitzvos taught in this week’s parshah, he counts sixteen mitzvos, eleven positive and five negative ones. If this mitzvah is counted, there would be seventeen mitzvos, eleven positive and six negative ones.

Explaining Our Question

We can now explain our opening question about dropping a mitzvah. In general, we follow the Rambam’s count of mitzvos. But in this instance, the Rambam is a minority opinion, and the later authorities contend that we should not follow his approach, but we should count lo yavdil as 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 will be removed from the list to make room for this one.

Which mitzvah is volunteering to be demoted or deleted? Since no mitzvah that the Rambam selected has volunteered to resign, we have the unenviable responsibility of deciding which one to remove.

Anyone want to assume this responsibility? I am reminded of the words of the eighteenth century English poet, Alexander Pope: “Fools rush in where angels fear to tread.”

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

Watch that Mikdash!

One lo saaseh proposed deals with the Torah’s requirement that the kohanim and the levi’im 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).

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 (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). What is even more interesting is that the source for the negative mitzvah sounds like a positive mitzvah, since they quote the following verse in Parshas Korach: “And you shall safeguard the charge of the holy area” (Bamidbar 18:5). This expression is almost verbatim that 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 position of the Rambam, 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).

There are many other possible choices of “disputed mitzvos,” ones that some rishonim and others do not, but I will leave this discussion for another article.

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. If the follow-up question is, “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 this exercise has provided an opportunity to understand more deeply what it means that we 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 at times opposite to those of other korbanos. To explain the many anomalous rules pursuant to this particular korban, 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 represents how a forlorn, suffering individual relates to Hashem because of his fate. The imperiled can use the anguish itself as a springboard for ascent and advancement, by clinging to the heights of Torah ideals even in this predicament. This korban is to teach that even when life does not go the way we would like it to, one still yearns to become closer to Hashem.