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Notes from Limmud Fest 2009

Eden Law: the Role of Rational Morality in the Halachah

Rabbi Prof. Daniel Sinclair

Genesis 2:15 בראשית ב טו-ב טו
The LORD God took the man, and put him into the garden of Eden to cultivate it and to keep it. וַיִּקַּח ה׳ אֱלֹהִים אֶת־הָאָדָם וַיַּנִּחֵהוּ בְגַן־עֵדֶן לְעָבְדָהּ וּלְשָׁמְרָהּ׃

This is before Eve arrives on the scene. As the commentators point out, this verse shows there is no reward, even in paradise, without some work and investment. Even in the Garden of Eden, the Jewish way is work.

The rabbis say it's not just work but also obedience to the Law—serving G-d and keeping the commandments. Law is not just because, as some would see it, society is pathological; it's redemptive: It makes us finer people, better people. Law means the awareness of the existence of a Lawgiver, and the drive to carry out those laws.

The rabbis hit on a much more intuitive verse for [whatsit] in the garden: Gen. 2:16:

Genesis 2:16 בראשית ב טז-ב טז
And the LORD God commanded the man, saying, Of every tree of the garden thou mayest freely eat: וַיְצַו ה׳ אֱלֹהִים עַל־הָאָדָם לֵאמֹר מִכֹּל עֵץ־הַגָּן אָכֹל תֹּאכֵל׃

The rabbis take this verse, and deduce that [lacuna, probably "temptation" (thanks FL!)] is all there right from the beginning, even before the Fall. Unlike in Christianity, sin did not come in with the Fall; it was there from the very beginning.

Sanhedrin 56a סנהדרין נו א
Our Rabbis taught: Seven Commandments were given to the Noahides: civil law, blasphemy, idolatry, sexual transgressions, murder, theft and the prohibition on tearing a limb from a living creature... From where do we derive these laws? R. Yohanan said: From the verse: And the LORD God commanded the man, saying, Of every tree of the garden thou mayest freely eat. Each part of this verse alludes to a distinct commandment given to Adam and his descendants: "And... commanded": these are the civil laws, as it is said, "One who cureses the name of the Lord shall surely be put to death" (Leviticus 24:16); "G-d": this alludes to murder, as it is said, "Whoever sheds the blood of a man..." (Genesis 9:6); "saying": this alludes to sexual sins, for similarly it is said, "Saying if a man sends away his wife and she goes from him and becomes another man's" (Jeremiah 3:1); "of every tree in the garden": but not fruit stolen from other trees, and the phrase "you may surely eat" teaches that you may not tear a limb from a living animal in order to eat it. תנו רבנן שבע מצות נצטוו בני נח דינין וברכת השם עבודה זרה גילוי עריות ושפיכות דמים וגזל ואבר מן אומר אף על הדם מן החי׃ ... מנהני מילי אמר רבי יוחנן דאמר קרא (בראשית ב) ויצו ה׳ אלהים על האדם לאמר מכל עץ הגן אכול תאכל׃ ויצו אלו הדינין וכן הוא אומר (בראשית יח) כי ידעתיו למען אשר יצוה את בניו וגו׳׃ ה׳ זו ברכת השם וכן הוא אומר (ויקרא כד) ונוקב שם ה׳ מות יומת׃ אלהים זו עבודה זרה וכן הוא אומר (שמות כ) לא יהיה לך אלהים אחרים׃ על האדם זו שפיכות דמים וכן הוא אומר (בראשית ט) שופך דם האדם וגו׳׃ לאמר זו גילוי עריות וכן הוא אומר (ירמיהו ג) לאמר הן ישלח איש את אשתו והלכה מאתו והיתה לאיש אחר׃ מכל עץ הגן ולא גזל אכל תאכל ולא אבר מן החי׃

1. Therefore I will tell him of my plans, to wipe out Sodom and Gomorrah. Abraham is G-d's confidante because he will try and better people.

Why are these laws then called the Noahide laws if they were given in the Garden of Eden? The only commandment that was not given to Adam was not tearing a limb from a living creature, because Adam was not permitted to eat meat. It's not until Noah is cooped up in the Ark that he has to eat meat to survive.

(So how should Adam deal with this commandment? Answer: if he found a piece of meat lying around, say the mediaeval commentators.)

These laws applied to everyone, according to the rabbinic tradition, right through until the Giving of the Torah.

Maimonides, Law of Kings:

Any non-Jew who accepts the seven Noahide laws upon himself, and is scrupulous in observing them, is a pious member of the nations, and has a share in the Hereafter.1,2 However, this is only the case if his acceptance and observance are based upon the fact that G-d commanded these laws in the Torah, and made known to us through Moses our Teacher that the Noahides were previously commanded with regard to them.3 However, if he performs them because of the determination of reason, this person is not a resident alient, and he is not a pious member of the nations, but one of their wise men.4

1. You do not need to be Jewish to be saved. Of course, had Judaism had the same power and empire that Islam and Christianity did, it might not have turned out that way...

2. Moses Mendelssohn used this in his correspondence with the Baptist priest Johann Lavater, who wrote a public letter in the Berlin Allgemeine Blatt "Mendelssohn, you are a hypocrite: you are living comfortably with Christians; but you retain your Jewish practice. You have to come clean and convert!" Mendelssohn replied with a public letter saying "I am seeking a society based on rational enlightment. I want everyone to teach [...] dignity. [...] And Judaism is the only religion that allows people of the Enlightment to get on with each other, because you don't need to be Jewish to be saved."

3. This isn't going to fly with Christians, Moslems and atheists, though! So Maimonides goes on:

4. This phrase is not found in the printed editions; from 1480 in Rome, which says "nor is he one of their wise men". But the manuscript version, which the Yemenites preserved, said "but is one of their wise men". Many commentators, from Spinoza to Rav Kook, the Maharam (R. Moshe al-Ashkar, of Egypt) and Soloveitchik, go for the manuscript reading.

The fundamentalists, particularly in the modern age, have gone for the printed reading. The Chazon Ish said "We don't accept manuscripts; don't look at them!"

From a Maimonidean instinct, who is better, the pious man or the wise man? For Maimonides, wise is better than wise. [Um, drat; transcription error here. :-S] (So, Rav Kook.) The wise but not pious people don't get a place in the World to Come. But consider the Rambam's views on the World to Come: You come back to live, and then you die again, because the only life worth living is an intellectual one.

So the Noachide laws can now be regarded as rational rather than theological, and so are not stated explicitly in the Book of Genesis. But they were implicit.

Was Cain told that he may not kill? No! But as British law, deriving from Roman law, says, nulla pena sine lege: no punishment without a law. The law is the Noachide law.

Bear in mind that of the seven laws, only two have to deal with G-d; the others are all about social action.

3. What is the role of the Noachide Laws today vis-a-vis the [...] There are Noachides today, e.g. Lubbock, Texas; which receives its instructions from rabbis in the the 7 expanded in the Talmud to about 30 laws. Aimé Pallière, president of the French Republic [!?!?], was a Noachide. Eli Benamozegh of Rome [actually Leghorn] wrote a famous essay to him

Consider the issues of foeticide, nakedness, cannibalism and extra-legal sanctions. Does a fully-committed halachic Jew have to feel bound by the Noachide code to the extent of deviating from rational halacha?

Foeticide

Exodus 21:22-21:23 שמות כא כב-כא כג
And if men brawl and a pregnant woman is pushed and suffers a miscarriage, but there is no tragedy, then the man who pushed her will surely be punished by having to pay compensation to the woman's husband... but if a tragedy occurs, then you shall give a life for a life. וְכִי־יִנָּצוּ אֲנָשִׁים וְנָגְפוּ אִשָּׁה הָרָה וְיָצְאוּ יְלָדֶיהָ וְלֹא יִהְיֶה אָסוֹן עָנוֹשׁ יֵעָנֵשׁ כַּאֲשֶׁר יָשִׁית עָלָיו בַּעַל הָאִשָּׁה וְנָתַן בִּפְלִלִים׃ וְאִם־אָסוֹן יִהְיֶה וְנָתַתָּה נֶפֶשׁ תַּחַת נָפֶשׁ׃

Under classical Jewish law, this is tort law, not a crime: you don't pay compensation. The "tragedy" is if the mother dies. Homicide only applies from the instant of birth; the foetus it not legally regarded as a נֶפֶשׁ. This word אָסוֹן āson, translated here "tragedy", normally means "death"; Jacob says he's not going to send Benjamin down to Egypt "for his brother is dead, and he is left alone: if אָסוֹן befall him in the way you take, you shall bring down my gray hairs with sorrow to the grave."

The Greeks rendered it "form", i.e. a formed foetus. It wasn't until 1869 that a papal decree abolished the mistranslation to change to considering a foetus as a person from conception.

The confusion probably arose from conflation of the Hebrew אָסוֹן āson with Greek ἀ-σῶμα (a-sōma) "without a body". The Greeks were highly sensitive about killing a formed foetus (Aristotelian). In English law if a pregnant women was sentenced to death, there used to be a quickening jury, who if they found movement in her womb, would send her to Australia rather than the gallows.

Ohelot 7:8
If a woman in childbirth is in hard travail, one cuts up the foetus and brings it forth limb by limb, because her life comes before the life of her foetus. But if the greater part of the foetus has already emerged, one may not set aside one person נֶפֶשׁ for the sake of another. האשה שהיא מקשה לילד, מחתכין את הולד במעיה ומוציאין אותו אברים אברים, מפני שחייה קודמין לחייו׃ יצא רובו, אין נוגעין בו, שאין דוחין נפש מפני נפש׃

This is based on Rachel dying giving birth to Benjamin. The Rabbis prioritised the life of the mother over foetal life.

But R. Bacharach wrote, in Responsa חַוֹּת יָאִיר (named after his grandmother Chava, a granddaughter of the Maharal of Prague) no. 31:

A married woman had an affair and became pregnant. She is now contrite about her sin and weeps incessantly. She has confessed to her husband, and is prepared to accept any penance that may be imposed upon her. However, she has asked for permission to swallow an abortifacient in order to destroy the cursed seed in her womb1... It would be entirely permissible to do under strictly Torah law but we must take into account the moral dimension common to Jews and non-Jews alike3 which prohibits abortion in order to deter people from all types of promiscuity2... and the Tosafot have ruled that even for Israelites, foeticide is not permitted.

1. Because it would be a mamzer.

2. An argument from silence is less compelling than [one for which textual evidence is available].

3. R. Bacharach adds this.

This is what the Tosafot said, on Sanhedrin 59a:

There is nothing allowed to an Israelite yet prohibited to a Noachide.

And (ibid., s.v. leka meydam):

And as far as foeticide is concerned, although there is no criminal penalty in Jewish law for killing a foetus, it is, nevertheless, not permitted.

We may therefore fill in gaps in our halacha by looking at the Noachide law.

Sanhedrin 57b ב נז סנהדרין
In the name of R. Yishmael it was said: A Noachide is liable to the death penalty even for the killing of a foetus. What is the reason? It is written, "Whoever sheds man's blood, by the hand of man1 (שׁוֹפֵךְ דָם הָאָדָם בָּאָדָם) shall his blood be shed" (Genesis 9.6) [said to Noah when he came out of the Ark]. What type of man exists inside another man? The answer is a foetus inside its mother's womb.2 משום רבי ישמעאל אמרו אף על העוברין׃ מאי טעמיה דרבי ישמעאל דכתיב (בראשית ט) שופך דם האדם באדם דמו ישפך איזהו אדם שהוא באדם הוי אומר זה עובר שבמעי אמו׃

1. Also translatable as "who kills a person inside a person."

2. So an embryo in a freezer does not count as a human in Jewish law. It has come out of the woman, true, but it cannot be brought to term without being reimplemented. (Thus R. Shlomo Zalman Auerbach.) So it could be used for research.

So the Noachide laws outlaw foeticide! And if this is so, the previous quotation makes this outlawed for Israelites too, unless for the justifiable reason of saving the full life of the mother. So rabbinic law uses the rational Noachide law to fill in the gap in halacha. Respect for life transcends the black-letter interpretation.

Rabbinic law today presents a number of options regarding a foetus suffering from genetic disorders, where the continuation of the pregnancy is not good for the mother. In these cases, most poskim will be lenient. And it all goes back to this.

Mechilta deRabbi Yishmael, Masekhta Denizikin 4 (R. Ishmael who went to Rome was appalled by their foeticide, and said "non-Jews should never do this"):

"And if a man plot against his neighbour in order to murder him then from off My altar you shall take him to put him to death" (Ex. 21:14). From the word "neighbour" (רעהו) it may be deduced that this provision does not apply to a non-Jewish victim.1 Issi b. Akavyah objected to this conclusion. Prior to the giving of the Torah, all humankind was bound by the absolute Noachide prohibition on bloodshed.2 It is inconceivable that after the giving of the Torah, the situation for Israelites would become more permissive. If anything, it should be more stringent!

1. In Biblical society. Does this mean you can kill non-Jews?

2. Without which, society disintegrated (Hobbes, in the Leviathan).

From this we learn that [lacuna]; but Issi b. Akavyah does not provide a verse or quote a halachic source; he goes back to the Noachide Laws.

Cannibalism

R. Moses Samuel Glasner (d.1924) was a highly Orthodox rabbi who wrote on the laws of forbidden [lacuna], who was chief rabbi in Klausenburg in Transylvania. His work was called Dor Revii, because he was the fourth generation from the Hatam Sofer from Bratislava. He was the founder of Hungarian Orthodoxy, the most extreme form of Orthodoxy.

Actually, he only went to the yeshiva in Pressburg for one year. All his learning he got from his father. When his father died, he became rabbi of Klausenburg. When [his work] was published, the Romanians said they were amazed a Hungarian rabbi could write such an intelligent book!

R. Glasner poses the question of someone with a medical condition in which someone has to eat either pork or long pork. Which, in Jewish law, should you eat? The Torah explicitly says, twice, you shouldn't eat pig. It doesn't say you shouldn't eat people. (Note: though humans don't have cloven hooves, they're also not animals, in Jewish law.)

You can eat honey even though they come from non-kosher animals. You can't drink lioness milk, though. But because [lacuna] human milk. [Drat; I wish I remembered what that argument was; it sounds interesting!] Nachmanides says that human flesh is not under a direct prohibition. It's a matter of legal didactics. Maimonides says "you should eat the ox and the lamb"; Nachmanides says if you were forbidden to eat humans, you wouldn't be able to consume human milk. But because you can, therefore you can consume humans!

R. Glasner says (Introduction to Dor Revi'i on Tractate Hullin, sec. 2):

According to Maimonides, the eating of human flesh is only prohibited on the basis of a positive Biblical commandment. It is not the subject of a direct Torah prohibition. In R. Solomon b. Aderet's view, there is absolutely no Bibcal bar to the consumption of human meat whatsoever. Now, say we are faced with a dangerously ill person whose life will be lost unless he eats either legally forbidden foods or human flesh. How would it occur to anyone that we, the Chosen People, would choose the human flesh solely in order to avoid a Torah prohibition, whilst knowing full well that eating such flesh is absolutely forbidden under universal human nomos2 law, and that whoever does so is considered as if he was beyond the pale of the human race!...

Nakedness

The preceding quotation continues:

According to the Torah, it is forbidden for a man to wear woman's garments. There is no Biblical prohibition on appearing naked in a public place. There is, nevertheless a nomos and a fixed law amongst all possessed of reason that this is a wrongful act. Indeed, immediately after their sin, both Adam and Eve felt greatly degraded by the fact that they were naked and walking about like the beasts of the field, and proceeded to make for themselves belts of fig leaves in order to cover up their naked flesh. Now, consider the following case. Someone awakes from his sleep in naked condition and discovers that the house he is sleeping in is on fire. He realises that the only way of saving his life is to run out into the street, and the only covering available to him is a woman's garment. What course of action should he take under Jewish law? Should he run out naked in order to avoid breaking a Biblical prohibition, or should he put on the garment? In my view, the answer is clear. Parading naked in public is a worse offence than breaking the Biblical prohibition on... mixed kinds or donning female apparel since it is an offence accepted as such by all rational people, and anyone who commits it is no longer in the category of those who are created in the image of G-d.

He's coming out of left-field here.

2. Nomos (the Hebrew word נומוס, not the Greek one it derives from) means a law based on human reason.

R. Glasner was under attack for most of his years by the growing influx of the Satmarer Rebbe Yoel Teitelbaum, who set up camp very close and made his [lacuna]. He also believed in [lacuna?] secular education, and was an ardent Zionist.

10,000 people came to the station to say goodbye when he left to go on aliyah in 1923. He was very close with Rav Kook. He defended his poisition every time, and was such a gaon that no one could unseat him.

His son, though, was forced to almost recant what his father had said.

R. Glasner refers to שַׁעֲטְנֵז here. This is dealt with in Berachos 19a/b. What if someone is walking along the street, and someone says "You're wearing שַׁעֲטְנֵז!"? Do you have to strip off in the street? One interpretation of the Talmud says yes. It quotes Proverbs: "there is no wisdom... in the face of a Divine commandment."

Maimonides, and all the following poskim, following the Talmud says if the שַׁעֲטְנֵז is only forbidden at the rabbinical level you can wait until you get home because of human dignity.

If you don't wear a jacket with your arm in both sleeves, the way it's normally worn, this changes it from a Biblical prohibition to a rabbinical; also if it's not a traditional warp and woof weave but a triangular one.

R. Glasner says the same thing applies here. If you have to run out into the street because of fire, you can put on a שַׁעֲטְנֵז garment, overriding a Biblical prohibition. This is unique in Jewish law!

Jewish learning notes index

Date: 2009-11-03 05:44 pm (UTC)
From: (Anonymous)
Re: The rabbis take this verse, and deduce that [...] is all there right from the beginning, even before the Fall. Unlike in Christianity, sin did not come in with the Fall; it was there from the very beginning.

1. […] think this is “temptation”.

2. The Yetza Hara was present in the world before the Sin of Adam Ha Rishon, but it was external to man as represented by the snake in the story. It had to be present, as if Adam hadn't had any temptation to eat from the tree, there could have been no potential reward for abstaining. It's fundamental to the purpose of creation. However, after the Sin it became internal, part of Man, so that nowadays a man has a Yetza Tov and a Yetza Hara.
FL

Date: 2009-11-04 07:31 am (UTC)
From: [identity profile] lethargic-man.livejournal.com
Thanks, that clarifies things.

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