The Torah column is supported by a generous donation from Eve Gordon-Ramek in memory of Kenneth Gordon.
Acharei Mot-Kedoshim
Leviticus 16:1-20:27
The Torah, we are taught, contains 613 commandments. How did we arrive at this number? It comes from a famous teaching in the Talmud, in which Rabbi Simlai said there are 613 mitzvot given to Moses, 365 prohibitions corresponding to the number of days in a year, and 248 positive mitzvot.
Even within rabbinic literature, though, not every rabbi accepted this count as definitive. Later authorities who did accept Rabbi Simlai’s position faced a different problem: The Torah contains more than 613 directives that could be understood as commandments. Which are to be understood as mitzvot and which are not?
This question gave rise to an important genre of Jewish literature in the medieval period — the sifrei hamitzvot, or “books of commandments.” These volumes sought to define which statements in the Torah are, in fact, mitzvot. Sometimes, there were major disagreements.
Take for example the opening of the Ten Commandments: “I am the Lord your God who brought you out of the land of Egypt.” Is this an independent commandment, or merely a prologue to what is to come? It depends whom you ask. The 12th-century sage Maimonides believed that it was, while Nachmanides, writing a generation later, argued that the statement was a foundational theological declaration rather than a discrete commandment.
A similar debate occurs at the beginning of this week’s Torah portion, Kedoshim. It opens with a famous statement to the Israelite people: “You shall be holy, for I, the Lord your God, am holy.” While several medieval rabbis viewed this statement as a commandment, others did not. Some based their arguments on grammar, observing that since the Hebrew is not clearly imperative, the verse could be read as a prophetic statement describing Israel’s future condition.
Maimonides approached the issue differently: In his book “Sefer Hamitzvot,” he argues that mitzvot must be specific, and categorical imperatives are better understood as general principles that define the goal of the commandments rather than discrete commandments themselves.
Here, again, Nachmanides disagrees. He offers a novel interpretation: The mitzvah to be holy teaches that it is not simply enough to follow the commandments; one must also be decent. The Torah, he says, permits many behaviors that, if carried out without restraint, risk becoming undignified. For example, there is no limit to the amount of alcohol one may consume, or the amount of kosher food one is allowed to eat. The commandment to be holy is a check against such behaviors.
For those who follow the letter of the law but still fail to be ethical, Nachmanides creates a special name: naval birshut haTorah — “a boor with consent of the Torah.”
This interpretive turn — from law as enumeration to law as moral formation — marks one of the most radical moves in medieval Jewish thought. Throughout Jewish legal literature, Nachmanides’ naval birshut haTorah is invoked in those situations where, though a behavior may be technically allowed, it is inconsistent with Jewish ethical values.
Rabbinic authorities have applied the concept in a range of cases: a person who loses a wager, and then asks to withdraw because gambling violates Jewish law; a person who avoids fulfilling mitzvot or giving charity out of fear of financial loss; an otherwise healthy person who takes intravenous vitamins on Yom Kippur to ease the fast. Rabbis have labeled them all boors with the consent of Torah.
Nachmanides’ insight identifies a broader truth about all legal systems: Most legal traditions prohibit more than they permit. This can lead to the assumption that anything not explicitly outlawed is acceptable. How often do we hear leaders defend something as legal even if it isn’t right?
The contemporary Orthodox Jewish philosopher Rabbi Eliezer Berkovits saw Nachmanides’ teaching as essential to creating a Jewish legal tradition that refused this possibility. Jewish law only functions, he wrote, when it gives ear to “the wisdom of the feasible, giving priority to the ethical.”
Building on this idea, Berkovits describes halacha — the dynamic, living Jewish legal tradition — as the bridge between the fixed text of the written word and the vitality of the living deed. The naval birshut hatTorah is one who never learned to cross this bridge.
This concern resonates beyond the Jewish legal tradition. The modern Italian philosopher Giorgio Agamben identifies the same challenge inherent in political life. He has written extensively about what he calls “states of exception,” moments when governments suspend legal norms in response to alleged emergencies. Examples include Abraham Lincoln suspending habeas corpus during the Civil War and Franklin Roosevelt authorizing the internment of Japanese Americans during World War II.
Agamben suggests that despotism begins when such exceptions become the norm. While these actions emerge from the legal tradition itself, their overuse undermines it. The law ceases to be concerned with what is right, limiting itself only to what is allowed.
Nachmanides identifies a similar gap in the Jewish tradition: The naval birshut haTorah has taken permanent residence in a moral grey zone. Nachmanides, though, insists that the Torah extends to the grey zone, demanding that we ask not just what is permitted, but what is right. Today, that question remains urgent. We do not have to look too far to find many who argue “it’s my right to do it” to justify behavior that falls short ethically. Nachmanides reminds us that an ethical life demands more than legal compliance. A holy life means doing what is right.