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“The 613 Commandments and the Temple”, by Rabbi Jacob Chinitz
from http://www.masorti.org/
In connection with the discussions about Tisha B’Av on television, there was a program on the rebuilding of the Temple. A devotee of the idea of this rebuilding made the statement that there is something basic missing from the Jewish state without the Temple, because of the 613 Mitzvot in the Torah, no less than one third of them are associated with the Bet Hamikdash and cannot be fulfilled without it.
Being somewhat of a statistician with regard to Torah studies, and having dabbled in the particular area of counting the Taryag Mitzvot, the 613 Commandments, I became intrigued with the number of one third of 613, and with the larger question of how crucial is it to the life of Torah to determine the quantity of Mitzvot fulfilled by the Jew. Drawing upon some previous studies of mine, and returning to the Bar Ilan Responsa Compact Disk which covers almost the entire area of our religious literature, I decided to the find the answers to the following twelve questions:
1.Is it true that one third, or 204, of the total body of Mitzvot concern the Temple?
2.Is it true that all Mitzvot are equal, and therefore a quantitative approach to piety is entirely in order?
3.Is it true to begin with that the number 613 is authoritative with regard to the number of Mitzvot?
4. Are there categories of Mitzvot, and if so, what are they?
5.Does a Jew have to keep all the 613 to qualify as a religious Jew?
6.How many of the 613 apply only to males and not to females?
7.In the absence of the Temple, do all the other Mitzvot apply to all Jews, in all places, at all times?
8.How many of the 613 are connected with the synagogue, the Bet Mikdash Me’at – the Temple in Miniature?
9.Do any of the 613 affect faith, or are they all concerned with actions?
10.Can Mitzvot of the Torah be amended, according to Torah itself?
11.Is it permissable to give reasons for the Mitzvot?
12.Is all of the Halakhah, Jewish religious practice, included in the rubric of the 613, or are there elements of it outside this rubric?
1.Is it true that one third, or 204, of the total body of Mitzvot concern the Temple?
How would one go about calculating the number of Mitzvot that are
involved with the Bet Hamikdash? Certainly we cannot open the Chumash,
the written Torah and count the number of commandments relating to the
building, the furniture, the sacrifices of the sanctuary. Nowhere does
the Torah speak of 613 Mitzvot, as it does specify the Ten Words or
Commandments on the tablets brought down by Moses from the mountain. In
one or two places the Talmud mentions this number but it never derives
them from the text of the Torah, nor does it provide a method of such
derivation. This situation is what leads in the classic literature of
Halakhah to an entire department known as the Sifrei Minyan Hamitzvot,
dating roughly from the sixth century to the fourteenth century.
One could open the Sefer Hachinukh, which lists the Mitzvot according to the portions of the weekly Torah reading, and count those that refer to some aspect of Temple structure or activity. But I found an easier way. Maimonides, in his Code, Mishne Torah, has 85 sections called Halakhot, covering the entire area of Jewish religious law. Of these 19 relate to the Bet Hamikdash:
Bet Habechirah–The Chosen House;
Maase Hakarbanot–The Procedure of the Sacrifices;
Avodat Yom Hakipurim–the Ritual of Yom Kippur;
Pesulei Hamukdashin–The Invalid Offerings;
Temidin Umusafim–The regular and the Additional Offerings;
Isurei Mizbeach — Forbidden for the Altar;
Biat Hamikdash– Coming into the Sanctuary;
Bikkurim — The First Fruit;
Shegagot–Offerings for Unintentioned Sins;
Chagigah — The Festival Personal Offering;
Kelei Hamikdash –The Sacred Vessels;
Mechusrei Kaparah — Those Whose Atonement Is Not Complete;
Meilah– Improper use of Temple Property;
Erekhin Ucharamin — Forms of Contribution to the Temple;
Parah Adumah — the Red Heifer;
Korban Pesach — the Passover sacrifice;
Shekalom — the Shekel Offering;
Temurah — Changing the Offerings;
Bekhorot — the First Born Offerings.
At the head of each Halakhot section Maimonides lists the Mitzvot involved in that section, and gives the number before the list. By adding up all these numbers I got the total of 157, which is not quite one third of 613 but closer to one fourth.
2.Is it true that all Mitzvot are equal, and therefore a quantitative approach to piety is entirely in order?
Let us overlook the numerical discrepancy between what I heard on Israeli television and the result of my own count. What is more important is whether we can estimate the significance of Mitzvot in the Torah by counting them. Now let us admit that in all legal systems, the separate items of law are quantified. In secular law books, separate laws
may even be assigned numbers. Thus, in criminal law, the court does not rely on a qualitative indictment of a suspected criminal, but specifies each count upon which he is indicted.
However, this does not prevent a legal system from assigning differing degrees of severity to different items of law. Thus, murder is murder, and yet there are first and second degrees of murder, and although the victim is dead, the crime may be called manslaughter, or criminal negligence, not murder. We must respect the effort to ascertain the parameters of the separate Mitzvot in the Torah, and counting them helps to delineate these parameters.
But one has a right to be impatient with a type of Orthodox argument which insists that any discrimination between Mitzvot on the basis of importance or basicness, is somehow sacrilegious or against the traditional Halakhah. Often the passage quoted to support such denigration of the “qualitative” approach is “Be stringent in the observance of the light Mitzvah as with the severe one, for you do not know the reward for the Mitzvot.” (Avot II,1)
Far from proving the absolute equality of the Mitzvot with one another, this passage proves exactly the opposite. For if he calls one light and one severe, it means that not all Mitzvot are equal. For example, Maimonides interprets a light Mitzvah as possibly referring to studying Hebrew, which is certainly not one of the 613, and may not even be a Torah law at all. Yet the Mishnah in Avot is telling us that such light Mitzvot may be very rewarding in their results.
Furthermore, the Rabbis in the Talmud do not hesitate to elevate some Mitzvot to higher value, even to being equivelant to all the Mitzvot taken together.
“The Mitzvah of Tzitzit balances all the Mitzvot in the Torah (Nedarim 25a).”
“The Mitzvah of Tzedakah balances all the Mitzvot in the Torah (Baba Batra 9a).”
“Great is Milah, for it balances all the Mitzvot (Nedarim 32a).”
“He who denies idolatry is called a Jew (Megillah 13a).”
“In the case of all the transgressions in the Torah, if they say to one: transgress and you will not be killed, he must transgress, except in the cases of idolatry, adultery and murder (Sanhedrin 74a).”
In the last example, it is not a matter of balancing against all the Mitzvot, but obviously if martyrdom is demanded for three Mitzvot but not for 610, these three must be more important than the other 610.
3. Is it true to begin with that the number 613 is authoritative with regard to the number of Mitzvot?
What about the number 613? Is it unanimous that there are exactly
613 Mitzvot in the Torah? It is true that Talmud relates: “613 Mitzvot
were said to Moses, 365 negatives corresponding to the days of the sun
(the year) and 248 positives corresponding to the organs of man
(Makkot 23b).” Most authorities accept these numbers as normative and the
counters of the Mitzvot construct their lists on this basis. However,
Nachmanides for one, denies the normative nature of these numbers.
“Before I begin to speak with my heart on this subject, I will
relate what doubts I have, even though I know that all accept it
as self-evident. With respect to the passage in Makkot…according
to this the Halakhot Gedolot counted them, one by one, in order to
match this number, and after him the matter spread until it became
accepted by all the scholars and was publicized to the masses, that
this is the number…but doubts have arisen in my heart whether
this passage is accepted by all or some disagree with it. I also
doubt whether this is a Halakhah LeMoshe Misinai — a law given to
Moses at Sinai, that is, whether Moses was told: ‘This number of
Mitzvot I give you to command Israel,’ or whether this is only an
Asmakhtah (a leaning upon scripture, which is not authoritative.”
(Introduction of Ramban to Sefer Hamitzvot of Rambam Shoresh Rishon)
Nachmanides goes on to argue from the fact that often Rabbis in
the Talmud disagree on whether a law is a positive or negative Mitzvah,
and they do not seem to be concerned about how this affects the final
tally of 613. Evidently the number was not a crucial consideration in
the legal arguments. And, in fact, Nachmanides finds himself constrained
to differ with the precise listing of Mitzvot according to Maimonides,
and sometimes he adds, sometimes he subtracts, and he is not concerned
to end up with the figure of 613.
4. Are there categories of Mitzvot, and if so, what are they?
Moreover, Mitzvot are not just Mitzvot. They are categorized, characterized, in many different ways. Here are some of the ways:
Bein Adam LaMakom — Between Man and God.
Bein Adam Lachavero — Between man and his fellow.
Mitzvot Hateluyot Baaretz — Dependant upon the land (of Israel).
Mitzvot Ase Shehazman Geramah — Dependant upon time.
Mitzvot Ase, Mitzvot Lo Taase — Positive, Negative (Do’s and Don’ts)
Shevah Mitzvot Shel Bnei Noach — Seven Mitzvot that apply to the sons of Noah. [All of mankind]
Sikhliyout, Shemimiyot — Emanating from Reason, Emanating from Heaven.
Temidiyot — Constant, not only continual but continuous (Loving and Fearing God)
Hachalot Al Hatzibur — Obligatory upon the People, not the individual.
Horoat Shaah — Issued for temporary duration.
Ledorot — Issue for permanent duration.
Lifnei Sinai — Issued before Sinai (reproduction, circumcision, the slipped sinew)
Mitzvah Habaa Ba-avera — A Mitzvah performed through a transgression.
Haosek Bemitzvah Patur Min Hamitzvah — Preoccupation with one
Mitzvah frees one from the obligation of another Mitzvah.
Mitzvot Lav Lehonot Nitnu — Mitzvot were not given for personal pleasure.
Lav Sheen Bo Maase — A negative Mitzvah that does not involve action.
Lav Hanitek Laase — A negative Mitzvah that can be remedied by the performance of a positive Mitzvah.
Ase Docha Lo Taase — A positive Mitzvah takes precedence over a Negative.
Mitzvot Chova — Standing obligations.
Mitzvot Reshut — Applying only if other conditions are present.
(Shechita, kosher slaughtering of animals, only if one wishes to eat meat.)
We introduce these categories and characterizations to illustrate
the concept that Mitzvot cannot be taken simplistically as absolutely
independent parallel lines of obligation, running forever on their own
tracks without ever meeting each other, but rather that Mitzvot are
bound to run into each other and clashing because of considerations of
time, place, persons involved. So that instead of the image of parallel
lines, we need the image of a ladder, as in a ladder of priorities, a
scale of values. Inevitably, one of the 613 is going to demand the lapse
of another of the 613. Some simple examples: the study of Torah will
yield to the demands of prayer. Prayer will yield to the demands of
saving a life. Saving a life will yield to the demands of Kiddush Hashem
— Sanctification of the Name, or martyrdom. Specifically, the one who
threatens to murder someone else, must himself be killed, if that is the
only way to save the intended victim. On the other hand, one may not
save himself by sacrificing someone else who is innocent.
5. Does a Jew have to keep all the 613 to qualify as a religious Jew?
One of the crucial issues in today’s conflict between Dati and Chiloni, religious and secular, in Israel, is what chance is there for a middle position which does not reject all and does not accept all. Can a Jew legitimately choose, or in practice actually observe, some of the Mitzvot but not all of the Mitzvot? Is such an attitude inconsistent, or as some call it improperly, hypocritical? Or does the Torah itself recognize such a possibility?
Rabbi Jacob Chinitz writes:
Does a Jew have to keep all the 613 to qualify as a religious Jew? Can a Jew legitimately choose, or in practice actually observe, some of the Mitzvot but not all of the Mitzvot? Is such an attitude inconsistent, or as some call it improperly, hypocritical? Or does the Torah itself recognize such a possibility?
Orthodoxy answers this question in the negative. And before we label this decision as fanatic, again we appeal to secular systems of law by analogy. Can an American citizen, or an Israeli citizen, legally proclaim that he intends to observe some laws of his government, but not all laws of his government? He may choose to practice civil disobedience, but legally he does not have a leg to stand on. Conservative Judaism would also say that a Jew who wishes to obey the Torah cannot choose among the commandments in theory. Reform Jews might say that all commandments not related to ethics are completely optional, but one could ask if the rules of the local congregation are obligatory upon the members of that congregation.
Any legal system demands theoretical loyalty to the entire system. Practically, it depends on the degree of enforcement in each system. Practically, in Judaism, in Israel or in America, since religion does not have enforcement powers, except in Israel in those areas that the government has turned over to the Orthodox authorities, any Jew can choose any number of Mitzvot to observe or not to observe.
But it is proper to point out that even in theory, Talmudic Judaism does provide for differing degrees of observance, in turn engendering different degrees of tolerance and acceptance within the religious community. We have the passage cited above in which it is stated that any Jew who denies idolatry is called a Jew. Other possible justifications for partial observance are the following passages:
“All who protect themselves from sexual violation are called holy. (Midrash Vayikra Rabba 24)
“He who lends to the poor it is as if he lends to the Holy One, Blessed be He.” (Midrash Yalkut Shimoni, Proverbs 959)
“He who helps Israel it is as if he helps the One who commanded the world to be created.” (Shimoni Shoftim, Judges 55)
“He who is modest is destined to bring the Divine Presence upon man in the world.” (Midrash Sifri, Yitro)
“He who hears a portion from the son of his son it is as if he hears it from Mount Sinai.” (Kiddushin I, 7)
“He who possesses these three traits [mercy, modesty, and performing acts of kindness] we can be certain he is of the seed of Abraham. (Kallah, Higger 33)
“He who has never eaten pork in his life, let him come and take his reward.” (Midrash Kohelet Rabba, I)
“He who furthers himself from theft, his prayer is pure.” (Midrash Exodus Rabba, 22)
In all these cases we have a right to assume that the subject does not necessarily fulfill all the Mitzvot, but if he does fulfill the one in question, he is greatly praised. In any event, we have an explicit statement in the Mishnah, which usually does not indulge in Agadah, lore, but in Halakhah, law, that one Mitzvah is enough:
“He who performs one Mitzvah, good is done to him, his days are lengthened, and he inherits the land.” (Kiddushin 39b)
6.How many of the 613 apply only to males and not to females?
Much is made these days about Mitzvot and women. Feminism has
penetrated even the Orthodox world, and certainly in Conservatism and
Reform women are claiming the right to perform all Mitzvot, not just
those assigned to them by official Halakhah. Without issuing final
decisions in this area, it should be beneficial for the discussion if
we examined exactly what does Halakhah say about Mitzvot and women.
One of the categories of Mitzvot listed above is that of Positive
Mitzvot dependent on or determined by time. The discussion of Mitzvot
and women usually focuses on this category, and those who wish to defend
the traditional freeing of women from the performance of these
commandments, rationalize that since women are busy with the affairs of
the home and the children, it is for their convenience that they are
exempt from the “time-bound” Mitzvot.
But the truth is that only ten Mitzvot are involved with this
consideration of time, and the rationalization is not really valid,
because it is precisely the Mitzvot that are limited to specific times
that are not time consuming. How much time is consumed by hearing the
Shofar once a year, or counting the Sefirah, or wearing tzitzit? The
real issue for women who demand equal participation in Mitzvot involves
major categories of Mitzvot that concern questions of status,
achievement, and a sense of equal value.
For example, the study of Torah, which is considered greater than
all other Mitzvot, is limited to men in the tradition. Only those
Mitzvot that are the special area of specialization of women are to be
studied by them. But the intellectual immersion in Torah study is not for
women. Why? Because it is written: “And you shall teach them to your
sons.” (Deuteronomy 6,7)
In addition, the number of Mitzvot that do not apply to women in
the areas of courts, witnesses, community positions – the Kohen function
or priesthood – army service and war – dwarfs the relatively minor number
of exemptions based on the question of time determination. The only
legitimate area of exemption, from the viewpoint of egalitarianism, are
those Mitzvot that are associated with male biology and body structure.
In my calculations the total number of Mitzvot which apply to males and
not to females is 199.
7. In the absence of the Temple, do all the other Mitzvot apply to all Jews, in all places, at all times?
To Maimonides, more important than the question of the applicabililty of Mitzvot to women (he was quite content with the lack of egalitarianism; in fact, he insisted on it) is the question of how burdensome are the Mitzvot to Jews in general, to the male population.
In terms of religious discussion today, the term 613 commandments, or in their traditional form, Taryag Mitzvot, comes up frequently. The Dati [religious] Jew is proud of the burden; the secular Jew is overwhelmed by it. In an amazing passage in his Sefer Hamitzvot, Bood of Commandments, Rambam speaks as if he is a participant in one of these discussions.
The passage comes at the conclusion of the first section of the book in which the list of the Mitzvot Ase, the Positive Commandments, is given. After stating that the total of such obligations is 248, Maimonides seems concerned about the onerous nature of this burden. He does not have a similar passage after the list of the Negative Commandments, because passive non-action is not apparently a problem for him. Since for Maimonides the Mitzvot are not ends in themselves but a preparation for the proper contemplation of God, the less action the human being is involved with, the better the opportunity for such contemplation. But the Positive Commandments take time, energy and they might distract the Jew from the end goal of the Mitzvot, the love and fear of God.
This is the passage which reassures the Jew about the yoke of the Mitzvot:
“When you look at these 248 Positive Commandments, you will find the operational obligations to total (only) sixty, with the proviso that we are dealing with a person of average type: he lives in a house, in a community, and he eats food common to humans, that is bread and meat, engages in commerce with others, is married and has children. And these are the sixty Mitzvot according to the count we have enumerated…”
So we have dropped from the legendary 613 to a mere 60. Further analysis will show that of these 60, some are once in a lifetime, some once a year, some once a week, and less than ten are daily.
8. How many of the 613 are connected with the synagogue, the Bet Mikdash Me’at – the Temple in Miniature (Synagogue)?
If we ask how many of the 613 Mitzvot are involved with or are
practiced in the synagogue, which is the most conspicuous outward symbol
of Jewish religion, the answer is quite surprising. Even many of the
Mitzvot fulfilled in the synagogue and its services, can be fulfilled at
home as well. Prayer with a minyan, that is public prayer is associated
with the synagogue, but prayer can be conducted by the individual
privately, at home, on the road, anywhere, any place that is decent.
Even prayer with a minyan, a quorum of ten individuals, need not be held
in the official synagogue, or Bet Knesset. Etrog and Lulav, Kiddush,
Shofar, can all be practiced at home. Tallit and Tefillin, Birkat
Kohanim, the blessing delivered by the priests to the people, Torah
Mitzvot included in the 613, can be fulfilled outside of the synagogue.
According to some Halakhic authorities, the building of a synagogue
is included in the Mitzvah of “Veasu Li Mikdash” – They shall make Me a
sanctuary, which in the book of Exodus is associated with the Tabernacle,
the Mishkan in the desert. It is safe to say that of the 613 Mitzvot,
this is the only one actually requiring the synagogue for fulfillment.
9. Do any of the 613 affect faith, or are they all concerned with actions?
It is a cliche among Jews that while other religions are based on
faith, Judaism is based on action. This is not exactly true. Of the 613
Mitzvot there are many that concern the mind, thought, belief, emotion.
Here is a partial list of Commandments that are not physical actions but
are fulfilled through acts of the mind and the heart. The classic
medieval Jewish philosopher, Bachya Ibn Pekuda discusses these in his
book Chovot Halevovot – Duties of the Heart.
Belief in God, in His Unity, Loving God, Fearing God, Walking in His ways, Being attached to Him.
It goes without saying that the Jew cannot be a faithful Jew by
faith alone. But many make the mistake, because of the polemics with
other faiths, of thinking that faith is not necessary in Torah religion,
only practice. Often the expressions “Faith” and “Practicing Mitzvot” are
not treated as identical, but as separates, even opposites. Faith itself
is a Mitzvah. Theology in Judaism is not Agadah, optional or voluntary,
but Halakhah, legal obligation. Thus Maimonides places his Sefer
Hamadah, Book of Knowledge, and one part of that Book, Hilkhot Yesodei
Hatorah, The Laws of the Foundations of the Torah, at the beginning of
his code, as Book I, not as an introduction or justification of the rest
of the code, which includes what many call Mitzvot Maasiyot, the
Practical Mitzvot.
In other words, the non-practical Mitzvot are also part of the
Halakhah, part of the 613 Mitzvot.
10. Can Mitzvot of the Torah be amended, according to Torah itself?
Can Mitzvot be changed, amended, remedied, cancelled, or improved?
Here, as in the case of faith and action, or the proper value to be
placed on the numerical aspect of the 613, there are misunderstandings,
based on a lack of knowledge or on a deliberate distortion of the truth
for polemical reasons. Those on the [Dati, Orthodox] religious side of
the fence insist that the Divinity of the Torah, and its Mitzvot, make
it sacreligious to speak of change with regard to Mitzvot. Those on the
secular side, in order to prove that it is impossible for a modern person
to be religious, also rely on the fiction of unchangeability to justify
their secular position.
Of course there are statements in the Torah itself, and in the
Talmud, and in Maimonides’ formulatlion of the articles of faith, which
lend support to these assumptions of the unamendability of Halakhah or
Mitzvot. “You shall not add to and you shall not subtract from that which
I command you.” (Deuteronomy 4,2)
Gezerat Hakatuv – The Decree of the Written (Word) is used in the
Talmud to decide legal questions, that is to say, once it is established
that a law or a meaning is forced by the text of the written Torah, that
is the end of the argument
Or, Halakhaha LeMoshe MiSinai (A Law of Moses From Sinai) settles
the argument when there is no explicit text, but there is a specific
tradition handed down orally from Moses through the chain of rabbinic
ordination, Semikha. “I believe with a perfect faith that this Torah will
not be changed, and there shall not be another Torah (given) from the
Creator, Blessed be His Name.” (Article 9 of the Thirteen Principles of
Maimonides)
However, these statements and slogans have to be understood and
evaluated in the context of other passages in Torah, Talmud and
Tradition which indicate a surprising array of techniques for amending
Mitzvot. We start with what some have called the Amendment Clause in
the Torah:
“If a case is too baffling for you to decide…you shall promptly
repair to the place that the Lord your God will have chosen, and
appear before the…magistrate in charge at the time…When they
have announced to you the verdict…you shall carry it out…
observing scrupulously all their instructions…You shall act in
accordance with the instruction given you and the ruling handed
down…You must not deviate from the verdict…
(Deuteronomy 17, 8-11)
On the surface this sounds like a perfect description of the
Bagatz, the Bet Din Gadol Letzedek, the Israeli Supreme Court. But the
Talmud regards this passage as giving the Court, or the Sanhedrin, not
only powers of interpretation of the law, which is the traditional
function of the judiciary, but also grants legislative powers to the
Sanhedrin. The masters of Halakhah interpret existing Torah law, but
they also enact Takanot, Remedial Laws, and Gezeret, Preventive Laws.
“All laws passed by the Rabbis are attributed by them to the
Negative Commandment of ‘You shall not deviate from the verdict.'”
(Berakhot 19b)
The question that remains is whether the Sanhedrin can legislate,
either in the remedial sense or the preventive sense, not only within
the limits of Torah law, but even beyond it. In other words, can the
Rabbis amend the Mitzvot?
Here we refrain from quoting Conservative or Reform authorities,
because the obvious answer [by many Orthodox Jews] would be: “We are
not interested in those who have crossed the boundaries of legitimate
Halakhic method.” Therefore we quote “Orthodox” authorities, the
Tosefot, recognized commentators on the Talmud, and a respected Orthodox
authority of our generation, Rabbi Eliezer Berkovits.
“Even though the rabbis do not have the power to abrogate biblical law…where there are good and sufficient grounds to do so, everyone would agree that they do have the power to abrogate… Torah law.” (Tosefot, Nazir 43b)
“The word ‘uprooting’ in connection with biblical commandments might be surprising for one unfamiliar with Halakhah. However, the subject is actually discussed in the Talmud. One of the teachers of the Talmud, the Amora Rab Hisda, is indeed of the opinion that the sages have the authority to uproot even a biblical law.”
(_Not in Heaven_, Eliezer Berkovits, page 57)
11. Is it permissable to give reasons for the Mitzvot?
Is it proper to look for reasons for the Mitzvot, or should we be
content with the fact that they are the Will of God? The Torah itself
speaks in two ways about this. In many cases the Mitzvah that is
commanded is followed by the statement, Ani Adonoi, I am the Lord,
meaning: Don’t ask questions, do it, because I said so. In other cases,
words of rationalization are used, such as: Ki, because; Lemaan, so
that; Baavur, for the sake of; Biglal, because of: Yaan, because.
In other words, the whole idea of Taamei Hamitzvot, providing
reasons for the Commandments, which we associate with later Jewish
philosophy is already found in the Torah itself. In fact, paradoxically,
when we look at a secular Constitution, that of the United States, we
find no reasons given for the Mitzvot, or the laws, of that
distinguished “rational, democratic, human” document. There may have
been reasons for the adoption of those laws in the Constitution, but
those reasons are not stated in the Constitution itself.
What it gets down to is that both in Divine and in Secular legal
systems, there is an arbitrary element, namely, the citizen must respect
the law, whether he knows the reason for the law or not. But in a
democratic system, through the process of legislation by elected
officials or adjudication by appointed judges, reason operates in the
formulation of the law and in its application. In a religious system,
which we do not claim is totally democratic, once the Torah-Constitution
is accepted as authoritative, including the legal system of Halakhah
provided by that Torah, reason operates in seeking to explain the
existing Mitzvot, and, as we have seen above, reason operates in the
application, alteration, amendment of the Torah and Mitzvot themselves.
12. Is all of the Halakhah, Jewish religious practice, included in the rubric of the 613, or are there elements of it outside this rubric?
Is all of Jewish religious law contained in the 613 Mitzvot and what flows from them? Not quite.
For one thing, the entire field of rabbinic legislation, as
distinguished from interpretation, is by definition outside the purview
of the 613. This legislation, what is called the area of obligation or
prohibition known as MideRabbanan, or “from the Rabbis,” may be in the
spirit of the 613 Torah Mitzvot, but they are not technically part of
them. The Mitzvot are, by definition, DeOraita, “from the Torah.”
Thus according to some authorities, Keriat Shema, the daily reading of the Shema paragraphs, is not a Torah obligation but a De’rabbanan obligation. All authorites agree that in prayer, only prayer per se is Torah law, but the three services, the entire liturgy of the synagogue, even the Amidah, the central prayer, is rabbinic, not Torah law. In the Seder ritual, for example, only the eating of Matzo, Moror, answering the child’s questions, reciting the Birkat Hamazon after the meal – these things are Torah obligations. But the wine of the Kiddush, the four cups of wine, the Karpas appetizer, leaning on the side, the Seder songs at the end of the Hagadah, the Hagadah itself as a book – these are of rabbinic origin.
In addition we have the tremendous area of Minhag, Custom, some of which has found its way into official Halakha, and some has remained custom. The Halakhah itself looks favorably on Minhag as creating obligation, but certainly the customs are not part of the rubric of the 613 Mitzvot.
What is most surprising of all is that even elements of Torah law, which in theory should fit into one of the 613 Mitzvot, cannot be so fitted. As pointed out in our discussion of the number 613 itself, the Talmud does not deal with Halakhah as Maimonides does. It does not try to fit all of the Halakhah into the categories of specific Mitzvot, and hence parts of the Halakhah remain outside the sphere of this system.
In this issue there is a fundamental difference between Maimonides and Nachmanides. Here are the words of the former in his Sefer Hamitzvot, Shoresh Sheni, the second of his principles on how to count Mitzvot towards the total of 613;
“If we were to count every item that is derived from the Torah according to one of the thirteen methods of derivation, the number of the Mitzvot would run into the many thousands. Do not think that I exclude these from the count because I do not consider them to be true, that is not the reason. But the reason is that all the branches we deduce from the roots given to Moses at Sinai, the Taryag (613) Mitzvot, even if the derivations were by Moses himself, are not counted.”
In other words, Maimonides groups all the laws under the rubric of the 613 and refuses to see the possibility of any law outside that rubric. However, Nachmanides in his additions to Maimonides Sefer Hamitzvot disagrees vehemently with this approach. Here is a portion of his comment on the above passage:
“The reason he gives that we do not count what is derived as a branch from the roots given to Moses in the 613, why should these not be counted? They are not branches but roots themselves, and since they are Torah laws, they should be counted. just as he counts what the Talmud interprets from the text even though the text is not explicit about it.”
In other words, it is not possible to fit all derived laws into the rubric of the 613, even though they are Torah laws and not Rabbinic laws.
To sum up: While the idea of the 613 Mitzvot has played a central role in the development of the Halakhah, and is useful as a technique for binding the Oral Law to the Written Law, it is not to be taken too literally in solving current Halakhic problems. Neither the quantity of Mitzvot involved in a specific issue, nor the arbitrary choice of one particular Mitzvah for special empasis, is a reliable method of deciding the course of action or the centrality of a belief. Not only is the context of the text relevant to such decision, but the context of history and the current situation is also relevant. In particular, the statement that since one third of the 613 Mitzvot depend on the Temple, therefore the Temple has to be rebuilt, even though the Mosque of Omar is standing there, is both erroneous and out of balance in view of Jewish history and the future destiny of Torah and Israel. Even within the Halakhah there is room to doubt the certainty of the song: Sheyiboneh Beit Hamikdash, Let The Temple Be Built!
For the Mitzvah of building the Bet Hamikdash is not isolated from the ladder of priority elaborated above, the matter of timing, and whether certain prerequisites have been fulfilled. Specifically, this is how Maimonides states the obligation in Hilkhot Melakhim Umilcha- moteihem — The Laws of Kings and Their Wars, the last set of Halakhot in the Mishne Torah. (1,1-3)
“Israel was commanded three Mitzvot to be carried out when they entered the land: to appoint a king…to cut off the seed of Amalek …and to build the Chosen House.
The appointment of the king comes before the war with Amalek, and the cutting off of the seed of Amalek comes before the building of the House.
The king is appointed only by the Court of Seventy Elders and by a prophet.”
Now, if one were seriously to deal with the question of rebuilding the Temple on the basis of Halakhah, he would have to do more than count the number of Mitzvot involved in the Temple. He would have to appoint a court of Seventy, which may require the reinstitution of the Semikhah, the official ordination of judges which lapsed shortly after the destruction of the second Temple. That court would have to appoint a king, if prophecy were renewed, having lapsed shortly after the destruction of the first Temple. That king would have to complete, or continue, the war against Amalek, if he could be identified. Only then could the Temple be built.
But the greatest impediment to this entire process is that Maimonides does not list the conquest of the land and living in it as one of the 613 Mitzvot. Rabbi Tzi Yehudah Kook rationalized this apparent lack of Zionism in Rambam as being exactly the reverse. Since all the Mitzvot are impossible of fulfillment without Eretz Yisrael, some because they are tied to the land in the sense of agriculture, and all of them because they were meant to be practiced in the land, and their practice in the diaspora is only for the sake of “practice,” so that when Jews return to the land they would not be out of practice – therefore the Mitzvah of living in the land cannot be counted as one Mitzvah, since it is the basis for all the others. Some authorities, for the same reason, do not count belief in God as a Mitzvah because it is the basis for all the others. However, most commentators on Maimonides’ failure to list living in the land as a Mitzvah, give the reason that before Messiah comes, this Mitzvah does not apply.
Hence, we must conclude that if we have to wait for Messiah in order to go back to Eretz Yisrael, we also have to wait for the Sanhedrin, the King, the war with Amalek, and the building of the Bet Hamikdash.
Merrimack Valley Havurah 