A Mathematical Perspective on Consequentialist Ethics – The Halakhic Angle (Column 254)

With God's help

In the previous two columns I described the efforts of Parfit and Kagan to find a utilitarian basis for morality and defend it against the challenges posed by dilemmas of collective action. My conclusion was that there is no way to do this, and in the final analysis, if one believes that there is a moral duty in a collective context, there is no escaping a deontological ethics of the Kantian sort and his categorical imperative. Because of the lively interest in the previous two columns, and because of my craving for ratings, I decided to take into account the vibrant community interested in mathematical perspectives on consequentialist ethics (=the empty set), and to post a third column in the series, in which I will examine the question of collective action from the halakhic angle.[1]

Women's Obligation in the Commandment of Hakhel

The Talmud in Kiddushin 36b cites a baraita regarding women's exemption from positive time-bound commandments:

כל מצות עשה שהזמן גרמא וכו'. ת"ר: איזוהי מצות עשה שהזמן גרמא? סוכה, ולולב, שופר, וציצית, ותפילין; ואיזוהי מצות עשה שלא הזמן גרמא? מזוזה, מעקה, אבידה, ושילוח הקן.

It then raises an objection from the commandment of Hakhel, in which women are obligated despite the fact that it is time-bound:

וכללא הוא? הרי מצה, שמחה, הקהל, דמצות עשה שהזמן גרמא, ונשים חייבות! ותו, והרי תלמוד תורה, פריה ורביה, ופדיון הבן, דלאו מצות עשה שהזמן גרמא הוא, ונשים פטורות! אמר רבי יוחנן: אין למדין מן הכללות ואפילו במקום שנאמר בו חוץ, דתנן: בכל מערבין ומשתתפין, חוץ מן המים ומלח; ותו ליכא? והאיכא כמהין ופטריות! אלא, אין למדין מן הכללות ואפילו במקום שנאמר בו חוץ.

I am very fond of this Talmudic passage, because it expresses the proper attitude toward rules (treat them with respect, but with suspicion). But beyond the question of rules, even if we accept that Hakhel is an exception, we still have to ask why.

The Chinukh

The Chinukh counts this commandment as no. 612. At the end of the entry, where he usually notes who is obligated in a given commandment (men, women, and the like), he does not address the question of who is obligated here. Apparently he relies on the passage with which he opens his discussion there:

שנצטוינו שיקהל עם ישראל כולו אנשים ונשים וטף במוצאי שנת השמטה בחג הסוכות ביום שני בחג ולקרוא קצת מספר משנה תורה באזניהם שהוא אלה הדברים, ועל זה נאמר [דברים ל"א, י"ב], הקהל את העם האנשים והנשים והטף וגו'. וזאת היא מצות הקהל הנזכרת בתלמוד כענין שאמרו בראשון של קדושין [ל"ד ע"א], והרי הקהל דמצות עשה שהזמן גרמא הוא ונשים חייבות, ופירשו בסוף הענין, אין למדין מן הכללות, כלומר שהאמת שהנשים חייבות בזאת המצוה.

And indeed, in this paragraph he also mentions the Talmud's objection in Kiddushin, which is also cited by Maimonides. Apparently this is where the passage dealing with the question of who is obligated is found. We see here that in this commandment everyone is obligated: men, women, and children.

However, at the end of his discussion he writes, as he does regarding all the other commandments:

ועובר על זה בין איש בין אשה ולא בא במועד הזה לשמוע דברי התורה, וכן המלך אם לא רצה לקרות בטלו עשה זה. וענשם גדול מאד, כי זאת המצוה עמוד חזק וכבוד גדול בדת.

That is, he notes that both man and woman are obligated in this commandment, but he writes this only with respect to the punishment of one who violated it, not as a statement of who is obligated in it. In positive commandments the Chinukh always writes in a fixed formula, such as: ונוהגת בכל מקום ובכל זמן בזכרים ונקבות (“it applies everywhere and at all times to males and females”). Only afterward does he write who violates it and what the punishment is. Here he mentions only who violates the commandment, not who is obligated in it. Again we see that he relied on what he had written at the beginning of his discussion. Perhaps this is why he does not mention the children here. If his remarks concern punishment, then even if minors are indeed commanded, they certainly are not subject to punishment.

The Obligation of the Children

Regarding the obligation of children in Hakhel, the Talmud in Chagigah 3a-b says as follows:

תנו רבנן: מעשה ברבי יוחנן בן ברוקה ורבי אלעזר (בן) חסמא שהלכו להקביל פני רבי יהושע בפקיעין, אמר להם: מה חידוש היה בבית המדרש היום? אמרו לו: תלמידיך אנו, ומימיך אנו שותין. אמר להם: אף על פי כן, אי אפשר לבית המדרש בלא חידוש, שבת של מי היתה? – שבת של רבי אלעזר בן עזריה היתה. – ובמה היתה הגדה היום? אמרו לו: בפרשת הקהל. – ומה דרש בה? +דברים ל"א+ הקהל את העם האנשים והנשים והטף אם אנשים באים ללמוד, נשים באות לשמוע, טף למה באין? כדי ליתן שכר למביאיהן. – אמר להם: מרגלית טובה היתה בידכם ובקשתם לאבדה ממני! – ועוד דרש: +דברים כ"ו+ את ה' האמרת היום וה' האמירך היום אמר להם הקדוש ברוך הוא לישראל: אתם עשיתוני חטיבה אחת בעולם, ואני אעשה אתכם חטיבה אחת בעולם – אתם עשיתוני חטיבה אחת בעולם דכתיב +דברים ו'+ שמע ישראל ה' אלהינו ה' אחד, ואני אעשה אתכם חטיבה אחת בעולם שנאמר: +דברי הימים א' י"ז+ ומי כעמך ישראל גוי אחד בארץ.

At first glance, this is not speaking about a commandment imposed on the minor himself, since he is not yet of age for commandments (as the Talmud there explicitly says regarding appearance and the חגיגה offering). The Talmud says here that the children are brought in order to give reward to those who bring them. Apparently those who bring them are the ones obligated to bring the children, not the children themselves. This is what the Minchat Chinukh writes in sec. 4, s.v. ‘ve-taf’.[2]

There, later on, the Minchat Chinukh concludes from this that although a deaf person is exempt from commandments, a deaf child is nevertheless obligated in Hakhel, since the obligation is on his father, not on himself.[3] His assumption is that the minor is not obligated to hear, only to come. Only the father is the one who hears. And perhaps women too have no obligation to hear (for they are exempt from Torah study), but only to come.

By contrast, the Turei Even on Chagigah seems to understand otherwise. He investigates there whether the commandment is imposed on the father or on the religious court, and does not decide the matter:

כדי ליתן שכר למביאיהם. לא נתבאר לי הבאת הטף על מי מוטל החיוב אי על האב דוקא או אף על הב"ד. וכ"ת אי דוקא על האב הא יליף לעיל לפטור פטורי ראי' מהקהל בגז"ש ראי' ראיה ולקמן אמר נמי דמש"ה כתיב זכור להוציא את הנשים גבי ראי' דלא נילף מהקהל וא"כ איפכא נמי שפטורי ראי' פטורי' מהקהל בהאי גז"ש. והא בפ"ק דפסחים (דף ח א) א"ר אמי מי שאין לו קרקע פטור מן הראי' ונ"ל מולא יחמוד איש את ארצך. ובודאי על קרקע של ארץ ישראל קפיד קרא וא"כ ה"ה דפטור מהקהל, והשת' אי הקהל דטף חל על האב דוקא מאין לו קרקע לטף בא"י אם אביו קיים, ובע"כ מיירי במת אביו וירש ממנו קרקע דהא קרא דהקהל סתמא כתיב דמשמע אפי' בזמן שיובל נוהג. ועוד שנת השמיט' אמור בפ' הקהל ואיכא למ"ד בפ"ד דגיטין (דף ל"ו) דאין שמיטה נוהגת אלא בזמן שהיובל נוהג ובודאי אין להחמיר בטף יותר מגדול דפטור כשאין לו קרקע. וכיון דלמ"ל לחייב טף בהקהל אלא במת אביו וירשו ש"מ דחיוב על הב"ד. דאין זה ראי' דלעולם מיירי באביו קיים ואפ"ה משכחת לה דיש לו קרקע בא"י במתה אמו והיא היתה בת יורשת וירשה הוא ולא אביו למ"ד ירושת הבעל דרבנן. א"נ בנולד מן האנוסה וד"ה. א"נ בנתגרשה. ותדע דהא כתיב בהקהל וגרך ומניין לגר קרקע בא"י אי בקנה הא למ"ד קנין פירות לאו כקנין הגוף דמי לאו ארצך קרוי כדאמ' בספ"ד דגיטין (דף מ"ח). ואי בנשא בת ישראל יורשת וירשה למ"ד ירושת הבעל דרבנן מאי איכא למימר^(לב) אלא ע"כ מיירי בגר שנתגייר אביו ואמו מישראל וירשה:

In the course of his remarks here he brings proof from the fact that a minor does not own land, and therefore clearly cannot be obligated in Hakhel (because only landowners are obligated in this commandment). The only possibility, in his view, is that the minor inherited land from his father, and that is how he owns land. But in such a case it follows that his father has died (for otherwise how did he inherit from him?), and if the obligation is only on the father to bring his son, then how is the son now obligated in Hakhel?! The father is dead, and the son himself is not obligated. From this he proves that the obligation to bring the child rests on the religious court. He then rejects this, suggesting that perhaps it is speaking of a case where his mother died, according to the view that a husband's inheritance is only rabbinic.

But in light of the above remarks of the Minchat Chinukh, this proof simply does not exist. It is clear that the minor need not satisfy the same requirements as the adult does (just as he may be deaf).[4] Even if there is a requirement that a person own land in order to be obligated in Hakhel, there is no reason to apply that requirement to the child as well. After all, no obligation in the commandment rests on him personally.

It seems from here that the Turei Even understands the obligation to rest on the minor himself, not on the father. What the Talmud in Chagigah says—that this is to give reward to those who bring them—is apparently only the reason why an obligation was imposed on a minor (in order to give reward to those who bring him), but now there is also an obligation on him himself. Put differently: if the child does not come, the complaints will be directed at the father or at the religious court, since they are the ones who are supposed to ensure the minor's coming. But the obligation to come rests on the minor himself. This is not a commandment on the father but on the minor himself. This is in contrast to the view of the Minchat Chinukh, which we saw understands the basic obligation to rest on the father/religious court, not on the minor.

At this point one may still wonder why the Turei Even speaks about an obligation on the father or on the religious court. If the obligated party is indeed the minor himself, then what do the parents or the court have to do with the matter? We will explain this below.

Slaves

We have dealt with minors and women. But what about slaves? Maimonides, Laws of Chagigah, at the beginning of chapter 3, writes as follows:

א. מצות עשה להקהיל כל ישראל אנשים ונשים וטף בכל מוצאי שמיטה בעלותם לרגל ולקרות באזניהם מן התורה פרשיות שהן מזרזות אותן במצות ומחזקות ידיהם בדת האמת, שנאמר מקץ שבע שנים במועד שנת השמטה בחג הסכות בבוא כל ישראל לראות וגו' הקהל את העם האנשים והנשים והטף וגרך אשר בשעריך וגו'.

ב. כל הפטור מן הראייה פטור ממצות הקהל חוץ מן הנשים והטף והערל, אבל הטמא פטור ממצות הקהל שנאמר בבוא כל ישראל וזה אינו ראוי לביאה, והדבר ברור שהטומטום והאנדרוגינוס חייבין שהרי הנשים חייבות.

There is an analogy between those exempt from the pilgrimage appearance obligation and those exempt from Hakhel (we saw this as well in the Turei Even's proof above), in one direction. But there are people exempt from appearance who are not exempt from Hakhel (women, children, and the uncircumcised). The commandment of Hakhel is more inclusive. This implies that slaves are exempt from Hakhel.

And indeed this is how the Lechem Mishneh understands it, there on halakhah 2, and he raises the following question:

כל הפטור מראיה פטור ממצות הקהל חוץ מן הנשים והטף והערל וכו'. וא"ת ואמאי לא אמר גם כן חוץ מעבדים דהא אמרינן בפ"ק דחגיגה (דף ד') גבי ראיה למה לי קרא מכדי כל מצוה שהאשה חייבת בה עבד חייב בה וכו' דגמרינן לה לה מאשה וכו'. וי"ל דשאני הכא דאמר קרא בבוא כל ישראל לראות ומשמע פטור עבדים כדכתב רבינו ז"ל לעיל. ומ"מ ראיה זו אולי מצאה רבינו ז"ל במקום אחר דבגמרא דידן לא משמע הכי מדקאמר אלא עבדים מנ"ל ומדמהדר לאשכוחי מקרא דאת פני האדון ולא הזכיר מקרא זה כלל וכבר כתבתי זה למעלה. ומ"ש רבינו ז"ל שכל הפטור מראיה פטור מן הקהל. נפקא ליה ממה שאמר שם בפ"ק דחגיגה דילפינן ראיה ראיה מהקהל:[5]

Obligations Imposed on Minors[6]

How can obligations be imposed on a minor? Here we find a dispute between Rashi and Tosafot (see Kehillot Yaakov, Sukkah, sec. 2) in various passages (in Berakhot 48a and 20a, and in the parallel passage in Megillah). The discussion concerns whether a minor who is obligated in commandments by virtue of education (which is a rabbinic law) can discharge the obligation of an adult, at least one whose obligation in that commandment is itself only rabbinic.

As noted, Rashi and Tosafot disagree about this. According to Tosafot, the obligation is on the minor himself, and therefore he is like one who is obligated in the commandment on a rabbinic level, and can discharge an adult when the adult too is obligated only on a rabbinic level (for example, grace after meals for one who did not eat to satiety). By contrast, according to Rashi, the obligation is on the father to educate his son, but not on the minor, since it is impossible to impose halakhic obligations on minors. They are not yet subject to commandments.

Thus, in Tosafot we find the possibility that halakhic obligations can in fact be imposed on minors. Admittedly, there the issue is the rabbinic obligation of education, but it is still a principled source for the idea that demands can indeed be made of minors. And yet it is still clear that the father is the one who is supposed to ensure that the minor fulfills his obligations, and when the father is not present the obligation passes to the religious court, just as in the commandment of Hakhel.[7]

Explaining Women's Obligation in Hakhel and the Other Difficulties

This is the place to return to the question with which we opened. Why does the commandment of Hakhel depart from the rule, such that women are obligated in it even though it is time-bound? The answer is that the commandment of Hakhel is imposed on the collective as a whole. It is not a commandment imposed on each member of the collective separately, and therefore the entire collective is obligated to fulfill it. This commandment is imposed on the collective, not directly on the individuals who make it up.

Now we can understand all the difficulties we raised. Women, as individuals, should indeed have been exempt from this commandment because it is time-bound, but this commandment does not address private individuals. It addresses the collective, and therefore everyone who belongs to it becomes obligated to fulfill it. Here there is no room to exempt women, since the collective is obligated in this commandment as a whole. For this reason minors too can be obligated in the commandment, since they too belong to the collective. True, as individuals one cannot direct halakhic obligations at them, but when the commandment obligates the collective, everyone who belongs to it is thereby obligated. This is probably the reasoning of the Turei Even cited above.

We saw that the author of the Chinukh does not write who is obligated in the commandment, because in its very definition it appears that it obligates the collective as a whole, and therefore all the individuals who belong to it. There is no point in writing, as he usually does, that it applies to males and females. Neither the males nor the females are obligated in it. The collective is obligated in it, and therefore everyone included within it.

This is also the explanation of the remarks of the Lechem Mishneh and Maimonides: women are included because they are part of the collective, but slaves are not included in the collective, and therefore they are not obligated in the commandment of Hakhel. This is the verse he cites: בבוא כל ישראל; whoever is included in the Jewish people is obligated in the commandment, and whoever is not included is not. The analogy between slave and woman applies with respect to obligations imposed on the woman as an individual, and there the analogy to a slave is perfect. But with respect to obligations of the collective, the woman as an individual is indeed not obligated in them, and therefore there is no room for analogy to the slave. The woman is obligated in them as a member of the collective, and the slave is not such a member, so long as he has not converted.

It seems that for this reason those exempt from the pilgrimage appearance obligation are obligated in Hakhel, except for the deaf, the mute, and the mentally incompetent. The problem with these three is that they are not included in the assembly (some because of lack of communication and some because of lack of understanding, and I will not elaborate), and therefore they cannot become obligated במסגרת it.

We have now found the essential feature of the commandment of Hakhel that causes it to be exceptional. This is a public commandment, and therefore women are obligated in it even though it is time-bound. And indeed Behag counts the commandment of Hakhel among the commandments imposed on the collective (=the sections), as the last one (65):

אלו פרשיות חוקים ומשפטים המסורים לצבור:…(סה) פרשת הקהל. אילו ששים וחמש פרשיות…

The addressee of the commandment is the collective, not the individuals included within it.

In fact, the matter is already explicit in the verses: הקהל את כל העם… The inclusion of the men, women, and children comes immediately afterward, because that is a consequence of directing the commandment to the collective as a whole. Perhaps for this reason Maimonides and the Chinukh found it appropriate to mention the law obligating women in Hakhel in the basic description of the commandment, since that law expresses the essential nature of this commandment.

A Parallel Example: The Commandment to Build the Temple

Something similar is explained by later authorities with respect to the commandment to build the Temple. Maimonides and the Chinukh write that women are obligated in it, and later authorities find this difficult, because it is forbidden to build the Temple at night. That is, it is a positive time-bound commandment, and yet women are obligated in it (although it does not appear in the lists of exceptions brought in the baraita from the Talmud above, and this is not the place for that discussion). It may be that here too the explanation is that the commandment to build the Temple is imposed on the collective as a whole, and therefore the individuals included within it are thereby obligated. Hence there is no room here to exempt women because of the time dependence, exactly as I explained regarding Hakhel.

Two Halakhic Anomalies

The great novelty is that the Chinukh, at the end of his remarks, still sees fit to note that one who violates this commandment has thereby nullified this positive commandment, and that his deed is grave. In other words, there is an additional novelty here: although the obligated party in the commandment is the collective, if some individual does not fulfill the commandment he nullifies it. How can it be that, although that individual is not the obligated agent (since the collective is the one obligated), he is nevertheless considered the responsible party for fulfillment of the commandment, and is therefore also punished for its non-fulfillment?

Let me sharpen the point further. If all Israel go up to Jerusalem for the Hakhel ceremony, then the commandment has certainly been fulfilled. Now suppose Yosef ben Shimon did not go up with them to Jerusalem. Has he nullified the commandment? Seemingly not, since he is not the party obligated in the commandment; the collective is, and the collective did indeed fulfill it. But just as the parents or the religious court are responsible for fulfillment of commandments by minors, so the individuals included within the collective are responsible for fulfillment of the commandment of the collective. This means that although a private individual cannot fulfill the commandment (at most he can be included in its collective fulfillment),[8] he certainly can nullify it.

This is a pathological situation in which a commandment can be fulfilled (by the public) and at the same time nullified (by a particular individual). And from another angle we see here yet another anomaly: the party obligated in the commandment is not the party responsible, who is punished for its non-fulfillment. This is also what we saw above in the discussion of the law of education. There too we saw that there is a difference between the one obligated in the commandment and the one who is supposed to ensure its fulfillment. The one obligated in the commandment is the minor himself, but responsibility is not imposed on him, since he still lacks sufficient responsibility. Therefore the Torah or the sages place the responsibility on the father or on the religious court. Although the minor is the one obligated in the commandment, the one who will be punished if the minor does not fulfill his obligation is the father or the religious court, not the minor himself.

We can now understand why the author of the Chinukh does not mention minors among those who nullify the commandment if they do not come to Jerusalem for Hakhel. The reason is that even if the Turei Even is right that they are obligated in the commandment, responsibility for its fulfillment certainly does not rest on them, but on the parents or the religious court. Therefore they cannot be counted among those punished for nullifying the commandment. And in fact the Turei Even himself, although he sees minors as personally obligated in the commandment of Hakhel, places the responsibility to bring them on the father or on the religious court.

More on the Split Between Duty and Responsibility

We saw that with duties imposed on minors, responsibility rests on the parents or on the religious court. Why? Because one cannot impose responsibility on the minor himself. If so, a similar problem exists with duties imposed on the collective: קדירא דבי שותפי לא חמימא ולא קרירא (“a partners' pot is neither hot nor cold”). If we do not impose responsibility on the individuals, the collective will certainly not fulfill its duty. If each individual allows himself not to take part in fulfilling the collective duty, then the public too will fail to fulfill it (for the public is nothing but the collection of individuals). This responsibility receives halakhic expression in the fact that the individual can nullify this positive commandment. That is the whip that ensures that he will fulfill his responsibility. You can already see here the effect of collective duties that was discussed in the previous columns.

The author of the Kehillot Yaakov there brings the view of Tosafot on Berakhot 48a that the obligation of education rests on the minor himself, and adds that in Nazir 29 Reish Lakish and Rabbi Yohanan disagree as to whether there is an obligation of education on the mother or only on the father. Seemingly it is proven from there that there is an obligation on the parents and not only on the minor himself, contrary to Tosafot. And indeed, this is why Rashi held that the obligation rests only on the parents and not on the minor. According to Tosafot, the author of the Kehillot Yaakov explains, there are two distinct laws in education: an obligation of the father to educate his son, and an obligation on the son to keep the commandments.

This is a technical-analytic formulation, but on its face it seems difficult: where did these two laws come from? Were there two separate enactments regarding education? It seems that what he means is what we wrote above: there is indeed an obligation on the minor, but it is impossible to demand from him the responsibility to fulfill that obligation, since he is a minor. That responsibility is imposed on the parents. We can now understand why there are not two enactments here, but only one. On our approach, these are two sides of the same coin: the obligation is on the minor, but there is no choice except to place the responsibility on the father.[9]

An Example from the Commandment of Torah Reading

Above we identified two novelties in the commandment of Hakhel and similar cases: 1. It is a commandment whose addressee is the collective rather than the individuals. 2. Even when the addressee is the collective, responsibility for fulfillment rests on each individual. In this section we will demonstrate these two novelties with respect to Torah reading.

There are several proofs that the commandment of Torah reading is a reenactment of the giving of the Torah. Therefore it is a commandment imposed on the collective, since it was the collective that received the Torah. But there are two kinds of public commandments that require ten. The Mishnah in Megillah 23b does not count megillah reading among the things that require ten, but it does count Torah reading. Nachmanides, in the Milhamot there, explains that Megillah is a commandment imposed on the individual, only it must be done within a group of ten. By contrast, Torah reading is a commandment imposed on the ten themselves. The halakhic implication is that Megillah may be read together with nine others who have already read it, whereas Torah reading may not.

Usually the following practical difference is cited between these two possibilities: if the commandment is public, then the individual may leave the reading in the middle, leaving the collective to fulfill its duty. In that situation the collective, which is the addressee of the commandment, will fulfill the duty imposed on it, whereas he as an individual is not obligated, and therefore there should be no impediment to his leaving and not reading at all. In the case of Megillah, at least according to Nachmanides, this is of course impossible.

But in light of the picture we have drawn thus far, the reader certainly understands that this is not necessary. It may be said that even in Torah reading, which is a duty imposed on the collective, a person is forbidden to leave the synagogue. As we saw regarding the commandment of Hakhel, the commandment is indeed imposed on the collective, but responsibility for the collective's fulfillment of its duty is imposed on the individual. If every individual leaves and we do not impose responsibility on them, the public commandment will not be fulfilled. Because of this, each individual must remain and participate in Torah reading. Put differently: the individual who remains for the reading is not fulfilling a commandment, but if he leaves he nullifies the commandment, exactly as we saw above regarding Hakhel.

And indeed this can be seen in the Mishnah Berurah. In sec. 135 he discusses bringing a Torah scroll to someone who does not have one (in prison), and there he explains that the obligation of reading does not apply to the individual when there are not ten there. That is, Torah reading is an obligation on the collective and not on the individual. On the other hand, in the laws of Torah reading, he asks in the Bi'ur Halakhah about the Behag, who explains that if there are ten in the synagogue he may turn his face away. The Bi'ur Halakhah asks: where did that person fulfill his commandment? That is, he assumes that there is an obligation on every individual even in Torah reading. Seemingly there is a contradiction between the two sources.

It is customary to explain his view along the lines of the above Nachmanides: the obligation of Torah reading rests on each individual, except that it must be done with ten. But perhaps the explanation is different: when there is a public that is reading, responsibility rests on each individual, and therefore he may not leave (just as he may not remain at home in the case of Hakhel). But when there is no public, then truly no obligation rests on the individual to read.

The commandment of Hakhel is like the commandment of Torah reading, except that it is not with ten but with all Israel. It is a reenactment of the giving of the Torah, and therefore the duty is public, but the responsibility for it rests on each individual within the public.

Commandments and Collectives

If we return to the line of argument in these columns, it seems to me that the meaning of this halakhic distinction is the following: within the framework of collective actions there is a duty even on the individual to act as part of the public. True, we are dealing with situations in which his personal contribution is not noticeable, but if every individual shirks his duty (because his effect is not noticeable), the collective result will not come about either. Conversely, when the public commits a transgression (causes harm or suffering), the individual there too is not exempt from responsibility merely because his marginal contribution is negligible. He is part of the collective, and as such he bears responsibility for its actions (unless he himself did what was incumbent on him, with or without effect).[10]

All of these are in fact proofs of the validity of the categorical imperative in Jewish law. In my article on this subject I argued on the basis of reason that this principle has halakhic force, and I showed several of its implications, but here we see it more clearly. This is a complementary halakhic perspective on our conclusion from the previous two columns: the moral duty cannot be based on consequentialist considerations (except perhaps for rule consequentialism, which, as I showed in the previous column, is despite its name actually a deontological approach). Here we see a similar phenomenon in Jewish law as well. The act of the individual has no significance, and yet there is still a consideration of the categorical imperative that says he must act in a way fit to become universal law. This is evidence that within Jewish law the categorical imperative has force.

[1] The source of these remarks is a Middah Tovah article from 5767, for the portion Nitzavim-Vayelekh (see there from chapter 2 onward).

[2] This of course solves the problem we raised above regarding the omission in the Chinukh, although as we saw there is no need for that solution.

[3] See on this in a footnote in our article on the portion Vayelekh, 5765.

[4] The Minchat Chinukh himself, later in his remarks, cites this Turei Even and is puzzled by it.

[5] It should be noted against him that he prefers the analogy of slaves to women over the analogy between Hakhel and appearance. Seemingly, one might have derived that slaves are exempt because of the analogy to appearance, which is preferable to the analogy to women. In the end, the Lechem Mishneh explains that this is an exclusion derived from the verse בבוא כל ישראל (as in ch. 2, halakhah 1 regarding appearance).

[6] See on this, from another angle, in the Middah Tovah article on the portion of Noah, 5767.

[7] And seemingly from here there is another refutation of the Turei Even's proof, for it may be that the obligation is on the father, and only when he dies does it pass to the religious court. True, there is no basic obligation on the father, since as long as he is alive the son has no land (on the Turei Even's initial assumption).

[8] Therefore a private individual who goes off on a Don Quixote war to conquer the Land of Israel most likely does not fulfill a commandment. This is a commandment imposed on the collective, and therefore the individual cannot fulfill it. At most he can nullify it (if he does not participate in the war the collective conducts).

[9] These matters are connected to several earlier articles in that year's Middah Tovah series. In the article on the portion of Genesis, views were brought according to which no obligation is imposed on the father to circumcise his son, but only an obligation to see to it that his son be circumcised. This is responsibility without obligation and without the possibility of fulfilling the commandment. The commandment of circumcision is imposed on the son, but the responsibility for carrying it out is imposed on the father. In the article on the portion of Vayeshev we discussed the distinction between discharging an obligation and fulfilling a commandment (see also the article on the portion of Beshalach from another angle). The claim there was that a minor is capable of fulfilling a commandment, but cannot discharge an obligation, since no obligation rests on him (see Hiddushei R. Chaim on Maimonides, Laws of the Passover Offering ch. 5, on a minor who came of age between the two Passovers).

[10] This subject is also connected to the question of the ontological status of the public. Is it nothing more than a collection of individuals, or does it have an independent status? We have addressed this question in various columns in the past (209, 76, 67, 43, 34, and others), and also in my Middah Tovah articles from that year, on the portions Ki Tisa and Beha'alotekha. See also my article in Tzohar 14, and note 15 in the book Shtei Agalot VeKadur Pore'ach.