One of the many issues dealt with in our parsha is the mitzvah of Maakeh, putting up a railing on the rooftop.

When you build a new house, you should put up a railing on the roof; you should not “put blood” (spill blood would be the English equivalent) in your home, when one would fall from it.

In our constant quest to understand mitzvot and their meaning, it would seem that we don’t need to invest much energy in this mitzvah. The logic is compelling, the plan is simple and it is very hard to find anything surprising about this. However, maybe that is just the problem, it is too simple.

Value of Life –

What seems simple to us is apparently critical for the Torah to stress. The basis of this mitzvah is simply the preservation of life. This rationale forms the basis of many different mitzvoth. In fact the Rambam teaches us a very important lesson in the very classification of the halachot in his Mishne Torah. In the book entitled “Damages” he lists the following sub sections:

Monetary Damage
Stealing
Robbery and Lost Items
Physical Damages
Murder and Preservation of Life
The final section is surprising. While we might be able to understand the classification of murder in the damages section, the preservation of life seems out of place. The Rambam includes in this category intentional murder, unintentional murder (the system of cities of refuge), Eglah Arufah (mentioned in the end of parshat Shoftim – in the event that an unidentified corpse is found), our mitzvah of the railing and assisting one who has overloaded his animal and it needs to be unloaded and reloaded.

In the Rambam’s view the concern the Torah has for preservation of life is very far reaching, extending even to animal rights!

The Positive and the Negative –

The requirement to put up the railing is phrased in both the positive, “make the railing”, and in the negative, “you should not spill blood in your home”. There are many mitzvot in the Torah that share this duality, for example concerning shabbat we are commanded to rest (positive) and not to do work (negative); or when it comes to bringing a korban that we have committed to, we are told to bring it on time (positive) and not to be late (negative). In almost all cases the two instructions are seen as two distinct mitzvot, each one to be counted as one of the 613 (see the Rambam in his introduction to Sefer Hamitzvot rule 6). The Rambam, the Chinuch and others all list two mitzvot in our case.

Methodologically we always have to ask the question of how to view these two sides of the coin. Are they just that, two sides of the same coin, and while each describes the issue from the opposite perspective, they are describing the same identical set of rules; or is each one distinct, with significant overlap, but there are unique elements in each?

In our case we can simplify the question by asking “Is there really a distinct mitzvah to make a railing?” Maybe there is a general prohibition against leaving anything around that may be dangerous. If I have an unprotected rooftop that poses a threat, I need to fence it in. The railing is simply a technical solution to a fundamental problem. On the other hand, maybe there is a special obligation to construct the railing beyond the general safety code mandated by the Torah.

This seems to be the crux of the discussion on two separate but related issues – the bracha and the craftsmen.

The rule of thumb is that we make brachot upon the fulfillment of positive mitzvot but we do not do so for avoiding negative mitzvot.

When it comes to the bracha in this case, we are told to make a bracha on putting up the railing on the rooftop. However we do not make a bracha on other safety measures that we take that may be no less important. It would seem that avoiding personal harm is included in the negative commandment, but that does not require a bracha, so one would not make a bracha upon putting on a seatbelt in a car. All you have done is avoid risk, or severely reduce it, but you have not actually fulfilled a positive instruction. This is as opposed to the construction of the railing that is clearly listed as a positive mitzvah and requires a bracha.

The second issue is one that I ran into personally when we moved into our present home. There was a balcony that did not have a sufficient railing when we bought the house, so we promptly contracted workers to rectify the situation. I was then puzzled as to whether or not I could make the bracha on the mitzvah. God has provided me with many talents but construction is not one of them. Had I built the railing myself, the chances are that I would be charged as accomplice to murder! So I hired people that actually know how to do this type of thing. In this particular case the workers were not Jewish. Can I make a bracha on their actions?

It turns out that this is a debate amongst the poskim. The Minchat Chinuch (amongst others) feels that one could not make a bracha in such a case. The official positive mitzvah is to be treated like any other mitzva and must be performed by an individual who is obligated. If a non-Jewish worker was to put it up I would not have fulfilled the positive mitzva of making a railing. Having said that it is clear that I would not transgress the negative mitzvah as there is no longer a danger zone in my home.

According to this understanding there is a clear gap between the two aspects.

On the other hand the Machane Efraim (amongst others) felt that one could make a bracha. The logic being that the two mitzvot are identical and if I have removed the danger, by definition I have fulfilled the positive mitzvah. To put it simply – the thrust of the mitzvah is the negative side and the positive is simply instructing us how to solve the problem.

The interaction of these two aspects comes into play in many other scenarios. There are many locations that are exempt from the positive mitzva which was phrased in very specific terms – “when you build a new house”. Chazal understood the term ”house” to be identical with the use of the word in other places, such as hilchot mezuza. The definition includes a certain minimum area of the house and that its main function is for dwelling. A very small structure, or one used only as a storage area, would be exempt. In addition a bet knesset, as it is not used to dwell in, would also be exempt. This is all very clear when it comes to the positive mitzvah. However many of the poskim point out the obvious – that if it is an accessible area and it poses a threat one would be obligated to fence it in due to the negative mitzvah! The technicalities may provide a rationale for not putting up the railing but they will not save lives!! So it is clear that the negative side is more inclusive than the positive one is. (For more detail see the Chazon Ish at the end of Choshen Mishpat section 18).

So Who Needs It? –

This last piece of information raises a serious question: If the negative mitzvah requires me to remove any dangerous spots in my home and surroundings regardless of any technicalities, why do we need an additional positive mitzvah? Once again, this is particularly bothersome given the more limited scope of the positive mitzvah.

I think that the combination is very telling. Had we only had the negative it would simply avoiding a problem, and if we never ran into the problem we would have nothing to solve. The religious aspect of the mitzvah would be absent. Where exactly did we serve God and follow his instructions? We require the active positive mitzvah to make us into conscious, active religious people. We need to stand up and say a bracha, driving home the notion of being commanded to do God’s will.

We have other examples of such a set up. We are prohibited from doing certain things or going to certain places if we are impure, simply a problem to be avoided. However when we go to the mikve we not only solve the problem but we make a bracha on it as well. The purification process is transformed from a problem solver to a religious act. I believe the Rambam creates a similar requirement when it comes to kashrut. It would seem obvious that this is a simple negative mitzvah – don’t eat non-kosher food. However in his list of mitzvot, the Rambam adds the requirement to learn and know the signs for kosher and non-kosher animals, fish and birds. It is not enough to avoid the non-kosher; we need to actively live kosher. In a similar vein we make a bracha upon the slaughtering of an animal, which at first glance is peculiar. One would have thought it enough to prohibit non-slaughtered meat, but once again we find the necessity of a positive mitzva to be actively religious.

We have to be active participants on all levels in our service of God. It is only then that we can even see great value in our passiveness.

Shabbat shalom