The Koren תנ״ך translates סעפים as “proud ones” and Hirsch translates it as “irresolute”, but
it literally means “branches” or “fissures” and it is used in תנ״ך figuratively for “branches of religion”:
So I would translate סעפים as “sectarians”. David loves תורתך, in the singular, but with the מרעים of this stich, נעשית תורה כשתי תורות. That has been a problem throughout Jewish history:
The problem is not disagreeing with others; we believe אלו ואלו דברי אלקים חיים. The problem is when we are convinced that our opinion is self-evidently, obviously correct and so anyone who disagrees is not just wrong, but evil:
The gemara in סוטה quotes the last part of this but adds a key phrase:
And when we are so consumed by זחיחות—smugness in modern Hebrew—we simply know that we are right and are unable to listen to reason.
And this is relevant to understanding the rest of the stich:
David here mentions חקיך of which he says “אשעה תמיד”, ”I will spend my time with them“; and משפטיך of which he says “סמר מפחדך בשרי, יראתי”, ”I stand in awe of them, I get goosebumps“. This difference between חוקים and משפטים fits with how we generally understand the terms. A משפט is an “understandable” law, while a חוק is a G-d given decree that has no reason we can comprehend. חוקים need to be studied; משפטים we can “feel”.
(Note that Rashi attributes the questioning of חוקים to the יצר הרע and the nations of the world. We’ll get back to that later.)
And the Malbim notes that משפטים have the verb עשה and חוקים go with שמר:
Secular legal theory has the same distinction, between malum prohibitum or malum in se. But why do we care? Why should the Torah constantly talk about חוקים and משפטים rather than מצוות? Is there a נפקא מינה?
To explore this further, we will have to tread dangerously close to contemporary politics. As always, consult your local Orthodox Rabbi for any psak halacha. The Torah, when it discusses עריות, forbidden sexual relationships, states:
Rashi cites a Sifra on that last pasuk:
There’s a subtle problem with Rashi: what does this have to do with the עריות of the previous paragraph? Kosher animals were dealt with 3 parashas ago and shatnez at the beginning of קדושים.
It’s important to note that Rashi doesn’t quote חז״ל; he restates them. The original explicitly mentions עריות:
Why would Rashi leave עריות out?
The answer lies in understanding אלעזר בן עזריה's statement לא יאמר אדם אי איפשי.
The Rambam in his introduction to פרקי אבות, deals with the question of which is better, a מְעֻלֶּה, an “elevated” person, a person of such sterling character that they do not even desire to sin; or a ֹמּוֹשֵל בְּנַפְשו, a person desires sin but overcomes that desire. He cites משלי כא:י, נֶפֶשׁ רָשָׁע, אִוְּתָה רָע and other sources, that the מְעֻלֶּה is moraly superior. Then he cites our Sifra (without Rashi’s elision; he includes עריות) that seems to contradict this.
Rambam’s חידוש is that it is clear there is no practical difference in terms of observance; both are prohibited. However, there is a difference in terms of מידות. For משפטים, we should feel revulsion for the act. It is inherently wrong, and even if ה׳ had not forbidden it, it should be anathema to us. If not, we need to work on our attitude. But for חוקים, there is no moral superiority in despising it; it is simply גזרת הכתוב.
So the Sifra counts עריות as a חוק. Why does Rashi leave it out? There actually is a disagreement in the Sifra; earlier it says:
So there is a מחלקת between Elazar ben Azaryah and the stam Sifra (which according to סנהדרין פו,א is Rabbi Yehuda), and between Rashi and Rambam, on whether עריות are a משפט or not; whether we ought to be bothered by that behavior or whether we should simply accept it as G-d’s command.
And I think this disagreement persists. 50 years ago, an article in Tradition stated:
Then, it was “obvious” that עריות are a משפט. That wasn’t so clear in 2015:
I think that the classification of whether a given מצוה is a חוק or a משפט changes, not just with the times but with the individual and their sense of inherent morality. The reason is that at its core, every משפט is a חוק. We do it because it is commanded. And every חוק is a משפט. We believe there are reasons for מצות, and the world we live in was created to be the world in which the תורה is the fundamental law. We just don’t always see those reasons.
Rav Soloveitchik, in a 1972 shiur, addressed a slightly different question: if משפטים are rational, why do they need to be divinely commanded?
What we consider משפט is dependent on the way we perceive our society.
So what we have been calling the rational מצוות are not literally rational. They depend on what we unconsciously consider “normal”, the behavior of normal people. And that depends on what we observe. As Rambam says, הֵם הָעִנְיָנִים הַמְפֻרְסָמִים אֵצֶל כָּל בְּנֵי אָדָם שֶׁהֵם רָעוֹת.
The Rambam wrote a “Treatise on Logic” in which he points out that some things are not subject to logical demonstration. They are the opinions Swift called “which by Reasoning he never acquired.” We know they are “true” because of other epistemological reasons:
As Professor Fox sees it:
That’s what Rashi means by דברים שהם גזירת המלך ש…אומות העולם עובדי אלילים משיבין עליהם. It’s not that we care what the non-Jews think, it’s that those attitudes determine what we automatically consider obvious, and that determines what we consider moral and rational.
That’s what makes TV and movies so powerful. Our brains don’t understand “fiction”. Observing something over and over in a normalizing context makes it normal and therefore ethical.
So the distinction between חוק and משפט seems to be tautological. We feel revulsion at violations of משפטים, and a משפט is defined as a מצוה that we feel revulsion about. But it is not. The problem is one of hypocrisy: there are things that we intellectually and intuitively know are משפטים, that are inherently immoral or unethical, but we don’t feel any problem with them. That’s when the Rambam says מִי שֶׁלֹּא יִתְאַוֶּה אֲלֵיהֶן יוֹתֵר חָשׁוּב מִן הַמִּתְאַוֶּה אֲלֵיהֶן וְיִכְבּשׁ אֶת יִצְרוֹ מֵהֶן, and that lack of feeling is the warning sign that we need to work on our מידות to internalize the values we proclaim.
That’s the lesson of סמר מפחדך בשרי; וממשפטיך יראתי. If we claim that a given מצוה is a משפט, we should feel an inherent revulsion at its violation. It is a matter of מוסר and חינוך.