Lesson dated 4 Cheshvan 5767

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[Rabbi Michael Abraham] Maimonides says this is foolishness; of course it’s forbidden to be foolish. Why is it foolish? Is it not a real thing? We know there are forces. You know, Maimonides didn’t know that; Maimonides thought there weren’t. And that is exactly the dispute. Maimonides consistently also omits from the Talmud / Talmudic text things from Jewish law. The evil eye in the wall between neighbors at the beginning of Bava Batra, ritual hand-washing, consistent omissions. Every time there are things of this sort in the Talmud / Talmudic text that find expression in Jewish law, Maimonides leaves them out. And each time the commentaries on Maimonides give local explanations, that he held like this passage and that passage. But when you see it, it’s obvious, it’s not… Fine. So the Vilna Gaon cries out against him, as is well known there in Yoreh De’ah, that philosophy led him astray, and so on. Yes, exactly. Fine. So reason tends toward those things, and these are basically some kind of universal commandments, and therefore they obligate all human beings. And really, in these questions one can discuss things on the level of aggadic literature. Rabbi Shlomo Fischer in Beit Yishai, in two homilies, addresses this matter; he brings references here and there. There is the well-known Kuzari with the five levels, where it seems that the speaking being is the fourth level and the Jew is the fifth level. So Rabbi Shlomo Fischer claims that this is so, and the kabbalists also tend to think that a Jew is something entirely different, not just an additional level beyond a Noahide. I’m not sure; I don’t know why the transition from level four to level five has to be a total revolution. I’m not sure about that. But fine—when it comes to aggadic literature, it’s very hard to decide things like that. Not only in aggadic literature, but conceptually as well. What counts as an additional level and what does not? After all, Noahides also have hands and feet, right? Ears, intellect, heart—Noahides also have that, right? So clearly there is something shared. The whole question is whether that shared thing is called a level or not called a level. Something shared there definitely is. So when we discuss this on the plane of thought, on the plane of the midrashim of the Sages and things like that, you can say it this way or that way—it proves nothing. You have to break it down into halakhic / of Jewish law small change. Meaning, you have to see whether one model or the other has halakhic implications, and see where we stand in terms of those halakhic implications, and then build from the halakhic implications what the real picture is behind it. For a given halakhah, is this the picture of two levels or the picture of one level? Therefore I won’t dwell on the midrashim in one direction or the other. Fine, let’s start a bit with more halakhic matters. There may be one source—the Kuzari brings it for the side of the model that says this is something entirely different. The Tosafot Yom Tov discusses this, the Mishnah in Avot that I brought here: “Beloved is the human being, for he was created in the image; an extra love was made known to him, that he was created in the image.” The Tosafot Yom Tov there writes: I am very astonished at the commentators who took this Mishnah away from its plain meaning, because the word written here is “human being,” and they interpreted it as referring to Israel. Now that is very far from the plain sense of the Mishnah, because immediately afterward it says, “Beloved are Israel.” Meaning, it seems pretty clear that the first clause speaks about all human beings, and the second clause speaks about a special belovedness of Israel. And indeed the Tosafot Yom Tov says, what do you mean—this is every human being, and that is Israel; he elaborates there that truly all human beings have some kind of image of God and are beloved in that they were created in the image, and so on. So that really may be an example, again on a level that is not fully defined, of an inclination toward the two-level model. All human beings were created in the image; there is some shared level that obligates everyone, and there is something divine in them, and level two is Jews, which is some additional uniqueness. Fine, but we are dealing with matters of Jewish law more directly. So let us return again to Rabbi Kook in another place; I think he goes according to his own method. At the beginning of the book Etz Hadar he discusses a grafted etrog, and he brings the view of the Levush, who disqualifies a grafted etrog because a transgression was committed through it. Noahides too are warned against grafting there—so writes the Levush—another example: they are warned against grafting, and therefore this is something by means of which a transgression was done, even if the one who did the grafting was a Noahide. So says the Levush. Rabbi Kook argues with him there: is that correct? What is the nature of the commandments of the Noahides, and how do they relate to the commandments of Israel? In any event, in the course of the discussion he brings… several examples in which even on the shared level—what you said before, that Noahides and Israel share something—still we find differences between the obligations of Noahides and the obligations of Israel. For example, we know that a convulsing animal is permitted to Israel and forbidden to Noahides, right? An animal that was slaughtered properly, but has not yet died—it is still convulsing. Israel are already permitted to eat it; it is not considered a limb from a living animal. But for Noahides that is considered a limb from a living animal; they are forbidden to eat it. That’s one example. Now beyond the fact that this is one example, it is also an example of stringency. Meaning, the Noahide is forbidden in this while Israel is permitted—so this is even more extreme than just a difference. Fine? Another example: for a Noahide, lineage follows the mother, while for Israel lineage follows the father. Lineage, not Jewish identity, yes? It follows the father. So he says: why? It’s similar to the convulsing animal. What? What is the meaning of lineage? For example, an Egyptian—first generation, second generation, third generation—there are differences among gentiles for various laws. The descendants of Keturah are obligated in circumcision according to Maimonides; there are various laws on this. So Rabbi Kook says there that what these differences share, at least the differences he brings—I think there are more, but those he brings there—is a very interesting point. His claim is that what they share is that Noahides follow natural reality, whereas Israel follows Jewish law. Meaning, if I slaughter an animal properly, then from the standpoint of Jewish law that animal is dead. It was properly slaughtered—what do I care that it is convulsing? The halakhic act was done to it. Therefore, Israel is forbidden to eat a living animal—rather, the prohibition is eating an unslaughtered animal; no, no, a limb from a living animal is one thing, but slaughter has taken place, there is no problem. But gentiles do not need slaughter at all, so the discussion is not about slaughter at all; the discussion is about a limb from a living animal. So as for a limb from a living animal, after it underwent valid slaughter, from Israel’s standpoint it is dead. It is not a limb from a living animal, and you may eat it. From the standpoint of Noahides, no—why not? Because in reality it is alive. It underwent the halakhic act of slaughter, and the laws concerning Israel are determined by Jewish law, by an abstract layer; they live in some more abstract sphere, not according to natural reality, and therefore Jewish law determines the laws that concern them. In contrast, with Noahides, the animal is alive, not dead, so if it is alive, it is a limb from a living animal, and it is forbidden to eat it. He says the same about lineage: if you go after the mother, that is natural reality. We know the child is the child of the mother, right? For Israel we go after the father; fatherhood is determined by legal presumption, not by reality—in a certain sense reality, but we do not know the reality. Who knew the reality in the case of a gentile? What?

[Speaker B] Who knew the reality in the case of a gentile?

[Rabbi Michael Abraham] The Torah establishes some general rule; it does not enter into every case individually. The general rule says that we follow the mother and not the father. There are additional problems here too—that there there is no such presumption at all; not only do we not follow the presumption, there is no assumption that most relations are with the husband, there is no assumption that most relations are with the husband in reality. That is the claim; I don’t know, there is room here for further analysis, but I won’t get into it here. In any case, the claim is that there too it is the same: for Israel, things are determined by a halakhic principle, not by reality. Jewish law says the father is the father because there is such a presumption. Among gentiles, the law is determined by reality: he is the child of the mother in reality, you see it, so the mother determines lineage. A third example he brings—what? In Etz

[Speaker B] Hadar, at the beginning of the book there.

[Rabbi Michael Abraham] The third example he brings: the Rosh writes that fixed legal measures were not given to Noahides; there is a well-known responsum of the Rosh on this. The Hatam Sofer concludes from this in a responsum that the maturity of a Noahide is when he reaches understanding—not age thirteen. Not age thirteen, or two pubic hairs, say, or something like that, but when he understands. So again, what is the idea? The same thing. For the gentile this is a question of factual, natural reality: if he understands, then he is already obligated, and if not, then not. For Israel there is a formal halakhic line; according to Jewish law, Jewish law determines when you are obligated. Reality does not define it; Jewish law defines it. So basically he weaves the halakhic differences—at least the ones he brings—around one foundation: that for Israel the law is determined by abstract halakhic rules, by spiritual matters, whereas among gentiles it is determined by simple natural factual reality. But in the bottom line, what comes out of this is exactly what you pointed out earlier, Haggai: if we now want to examine whether this is two levels or one level, where do we need to examine it? On the lower level, to see whether on the lower level Israel and Noahides have the same laws. If there is really a practical difference—meaning, if within every Israelite there is a Noahide plus something more, then I would expect that in those things that belong to the Noahide they would be completely identical in the Israelite, right? But if this is something entirely different, then there can also be differences. We see that there are differences, and then indeed for Rabbi Kook, consistent with his own method, this is perfectly fine; he really holds that the Israelite is… What you said before as well: that even if we say it is only one level, a level above, but still on the same ladder, it could still be that by virtue of his having gone up one rung on the ladder, he helps with some… Right, therefore I really think that this proof is not a decisive proof, as you said before: sometimes the fact that I have level two projects onto level one.

[Speaker B] So the whole issue is basically blurred?

[Rabbi Michael Abraham] No, we’ll see where it isn’t. We’ll see where it isn’t. It is true that this blurs the definition a great deal, but still it is clear that you can say that once Israel lives with its head in a spiritual sphere, then everything is determined by that spiritual sphere, including the laws in which they are obligated that are the same as the Noahides—the seven commandments—on the lower level. But how do you define when one is obligated, when the threshold of obligation is reached? That is determined by the sphere to which they belong. So there is something shared, and there is something not shared. But that does not necessarily mean that the shared side will always give us a decisive answer. Sometimes level two projects onto level one.

[Speaker C] So there is no meaning at all to the fact that this is level one on level two on level…

[Rabbi Michael Abraham] No, there is, we will see the meanings, we will see the meanings—there are. So I’m moving step by step. The Talmud in Bava Kamma 113a brings the following baraita—you have it here, I think, right? “An Israelite and an oppressive Canaanite,” that is the text in the Talmud. There on the side in the Masoret HaShas there are versions that say “a gentile.” “An Israelite and an oppressive Canaanite who came for judgment: if you can vindicate him according to the laws of Israel, vindicate him and say to him, ‘Thus is our law’; according to the laws of the Canaanites, vindicate him and say to him, ‘Thus is your law.’” What does that mean? Act strategically—choose the legal system by which you judge this pair in such a way that the Israelite always wins. And each time you have the justification. If he wins by the laws of Israel, judge him by the laws of Israel and say, “Thus is our law; what do you want? Those are our laws.” If he wins by the laws of the Noahides, by their laws, then judge him by their laws and say, “What do you want? Those are your laws.” You have a claim? I am judging according to your laws. So that is what the Talmud says. The version—what is the difference between “an oppressive Canaanite” and “a gentile”?

[Speaker B] That fits the definition of the High Court, right? It doesn’t stand the test of…

[Rabbi Michael Abraham] By the way, that is a very interesting legal question. In the legal world this is called private international law. Private international law is what happens when someone in one legal system makes a contract with someone in another legal system. Now the two legal systems relate differently to that contract, say, or there is some damage between them—one damaged the other, no matter what—some legal dispute between them. So according to which legal system do you judge? There is general international law, which is law between nations, between disputes…

[Speaker B] What? Can the Hague pass here? I can’t hear. The International Court in The Hague.

[Rabbi Michael Abraham] Ah, The Hague. Who knows, maybe, but it’s not every two people who have a dispute that go to The Hague.

[Speaker B] That might be public international law.

[Rabbi Michael Abraham] And I’m talking—that is exactly the difference. Private international law is judged by every court in every country, and there are rules for how to work with private international law. Not that they are so clear and decisive, but such rules exist.

[Speaker B] Meaning, there is a principle to go by the court of the plaintiff or the court of the defendant.

[Rabbi Michael Abraham] Fine, that is already the question of how to do it. If there is a decision between the two, yes—presumably every country says it goes by the plaintiff, and the other says by the defendant. After all, there is no international statute that defines all these things; custom developed.

[Speaker B] Like how one can move from Ashkenazic rite to Sephardic rite in prayer. I noticed that even though one can move from Ashkenazic rite to Sephardic rite one way or the other, I noticed that usually those who pray Ashkenazic rite say you can move to Ashkenazic rite, and those who pray Sephardic rite—what?

[Rabbi Michael Abraham] The truth is that one can move to either one, if you get into Jewish law and halakhic rulings.

[Speaker B] Custom is when you don’t have a position. When you do have a position, customs don’t matter.

[Rabbi Michael Abraham] Fine, but let’s leave that now. In any event, here what is the difference? What is an oppressive Canaanite? What is the difference between an oppressive Canaanite and a gentile? There are two versions here in the Talmud. So the version “an oppressive Canaanite” sounds a bit more—let’s call it—moral, right? Because basically you are saying, after all, you are sweeping the floor with this gentile; you basically want the Israelite to win, right? You are roughing him up. If he is an oppressive Canaanite, some violent fellow, then fine, you need to use every means to save the Israelite from him. But then the question arises: what do you do with an ordinary gentile? Not just some random gentile, but a gentile comes, a Jew comes, and the question is what? Does the version replace only the word “Canaanite,” or both words? As I understood it—but you know, now that you ask, I’m no longer sure, actually.

[Speaker B] No, from the way

[Speaker C] it’s written, it replaces both.

[Speaker B] No, because

[Speaker C] then it’s…

[Rabbi Michael Abraham] What is written there inside the Talmud. No, “some versions read” is my addition. In the Talmud there is no “some versions read”; in the Talmud it is an asterisk below: “gentile.” I only inserted it here so you could see it in front of your eyes.

[Speaker B] Not an asterisk? The asterisk is after “Canaanite” or after the…?

[Rabbi Michael Abraham] I don’t remember anymore; we’d have to look there.

[Speaker B] It’s also in the notes, so it can move too.

[Rabbi Michael Abraham] Of course, yes, it could just be typography there, not… Fine, in any event, according to the version “an oppressive Canaanite,” the question naturally arises: what do we do with a civilized gentile? A normal gentile, not wicked, a resident alien. What do we do with a resident alien who keeps the seven Noahide commandments? A righteous gentile, faithful and upright—what do we do with him? So indeed, when Maimonides brings this law, there are

[Speaker B] those who say that “gentile” means one who does not keep the seven Noahide commandments.

[Rabbi Michael Abraham] So indeed Maimonides says—no, so it could be that even according to the version “gentile,” the same question arises. It doesn’t matter; that already depends.

[Speaker B] I think that in Maimonides, one of the definitions when they say “gentile” means that he did not accept the seven upon himself. And if he… I don’t know, there is a dichotomy and there is…

[Rabbi Michael Abraham] I don’t think that—I don’t know if there is anything to that… Yes, maybe; I’m not familiar with it. In any case, in Maimonides we can see how he understood it. In Maimonides we can see how he understood it. He writes as follows—it also appears with you there, Laws of Kings, chapter 10, law 12; I’m skipping two lines: “If there is an Israelite and an idolater, if the Israelite has an advantage under their laws, we judge him by their laws and say to him, ‘Thus is your law’; and if the Israelite has an advantage under our laws, we judge him by Torah law and say to him, ‘Thus is our law.’” Up to here it is “idolater.” What does “idolater” mean? Again, the perennial question is what exactly that term means. Does it really mean idol worshipers, or any gentile? Maimonides says: “And it appears to me that one does not do this with a resident alien; rather, he is always judged according to their laws.” So Maimonides says: a resident alien—leave aside for the moment what exactly is going on with the Talmud—a resident alien, a righteous gentile, is always judged by their laws. What the Talmud says applies only to a gentile or to an oppressive Canaanite; but a resident alien, a righteous gentile, is always judged by their laws. And Rabbi Shlomo Fischer asks—again, in Beit Yishai; he also addresses this in his halakhic book—Rabbi Shlomo Fischer asks: what is the logic of this? Why specifically by their laws? Yes? So he says, whichever way you look at it, the logic ought to be that we choose some system that is shared by both sides, right? That’s what logic would dictate. Only there is no such thing; these are two different systems. So what can you do? You have to choose one of them; there is no choice, you have to resolve this dispute. But if you are already coming to a Jewish court, what does logic say—that you go to the rabbinical court and they judge according to Ottoman law? What kind of logic is that? If you are already going there, let them judge according to the law they ordinarily use and know how to judge. What is the logic in that? So what does he say there? Exactly—that is his claim. The claim is that they judge him by their laws because that really is the shared law.

[Speaker B] But if you say that out of the last two hundred years this law is better?

[Rabbi Michael Abraham] That’s what I’m saying.

[Speaker B] No, but our law is better. No, because it includes theirs.

[Rabbi Michael Abraham] The opposite. So what about a Noahide? A Noahide does not belong to level two; Israel belongs to level one. Ah, you want the common denominator of both. What belongs to both. What belongs to both is exactly the meaning of the two-level model: what belongs to both is Noahide law. Right—an Israelite has more than that, but what belongs to both is this Noahide level. And if I am really looking for some common system by which to judge between them, that will be Noahide law.

[Speaker B] Then it does not mean the laws of, I don’t know,

[Rabbi Michael Abraham] England; in a moment we’ll see what it means.

[Speaker B] It doesn’t mean Ottoman; it means the laws

[Speaker C] of the Noahides, that part

[Rabbi Michael Abraham] of Ottoman law, in other words, or American law, or whatever you want. We’ll soon see; in a moment this becomes a dispute between Maimonides and Nachmanides.

[Speaker B] Why not with an idolater too? What? Why not with an idolater?

[Rabbi Michael Abraham] Because to an idolater we owe nothing. The idolater should just be given the runaround, that’s all. We are talking only about gentiles who are human beings. A resident alien—you have to understand—is not a privilege. A resident alien is a gentile who fulfills his elementary duty, who observes the seven Noahide commandments. Meaning, he behaves like a human being.

[Speaker B] And the fact that there is a difference—does that not change our attitude toward him, or does it? No, it does change it. The attitude toward him as…

[Rabbi Michael Abraham] That is the claim—that it does change it.

[Speaker B] When the shared law is absent here…

[Rabbi Michael Abraham] No, the other one does not even deserve that we judge him by the shared law—that’s the point. Nothing; we owe him nothing. It’s like someone who “does not act as your fellow,” only in the case of a gentile it means someone who does not act like a human being at all. “Your fellow” in the sense of the first level, not in the sense of level two. He does not act as “your fellow” in the sense of level one. All right? So this basically means that Noahide law is actually a law that belongs both to Israel and to the Noahides, and this points—I think in quite a strong way—to this whole idea of the two levels: that Noahide law is in fact also our law, only that we have additions. For the Noahide, that extra layer does not apply, so we put the common denominator in place. Now what really is Noahide law, as you asked? The truth is, this is a well-known dispute between Maimonides and Nachmanides. Maimonides says that Noahides were commanded regarding laws. So Maimonides writes—again, I photographed it for you at the end of chapter 9 of Laws of Kings—“And how are they commanded concerning laws? They are obligated to appoint judges and magistrates in every district and district to judge these six commandments and to warn the people.” What do they do? What is the commandment of laws? To appoint judges whose role is what? To ensure observance of the other six commandments, right? Meaning, this commandment merely completes or ensures that the Noahides keep the other six commandments. It is not an independent legal system. “Laws” means appointing judges whose role is what? To ensure the other six commandments. That is what Maimonides says. And there he explains the people of Shechem.

[Speaker B] He says, “And a Noahide…”

[Rabbi Michael Abraham] “A Noahide who violated one of these seven commandments shall be executed by the sword. And because of this all the people of Shechem were liable to death, for Shechem robbed, and they saw and knew and did not judge him. And a Noahide is executed on the testimony of one witness and by one judge, without prior warning, and on the basis of relatives—but not on a woman’s testimony, and a woman shall not judge for them.” So Maimonides says: why were the people of Shechem liable to execution? After all, only Shechem himself was guilty. So why all the people of Hamor, yes, why were all the townspeople there killed? He says because they did not appoint judges to judge him. And if they had appointed judges—every Noahide transgression is a Noahide transgression, and every Noahide transgression incurs death by the sword. Now the question is what Jacob wanted from them—that is already another discussion, fine? But that is what Maimonides says. Nachmanides, on Parashat Vayishlach there on these verses, disagrees with Maimonides and says that “laws” means a legal system; gentiles are obligated in the entirety of civil law. Our civil law—what is called our Hoshen Mishpat—for gentiles this is included in the commandment of laws. Meaning, all the laws given to us belong to Noahides as well, just as idolatry and all the other things do. “Laws” too, what we received, extends to them. That is what Nachmanides says. So what does Maimonides actually say? What does Maimonides think they do not have? According to what laws are Noahides supposed to judge? Each region according to itself, but under what law? Now the Hazon Ish writes in Bava Kamma, siman 10 I think, that indeed it is clear that Maimonides also says Noahides need to legislate laws for themselves—it is not a lawless world. They are simply not obligated in our civil code. And if it is Ottoman law or French law, that is up to them—that is what the Hazon Ish says. The Hatam Sofer learns not that way. Although practically it is very similar, the conceptual analysis is somewhat different. He claims it is connected to robbery. Robbery is one of the commandments they are obligated in; even here in Shechem, after all, it says that this was robbery. The later authorities make a big production out of this—that a married woman is under the category of robbery. So they infer from this Maimonides that taking a married woman also contains an element of robbery. In any event, the Hatam Sofer says: one of the commandments is robbery. And what is robbery? I may not take your property. But how do I know what is your property and what is not? You need a legal system to determine who owns what and to whom each piece of property belongs. So within the commandment of robbery there is actually an entire legal system included. What legal system? It would seem from Maimonides that not our system—that seems most likely—although perhaps one could even take it all the way to Nachmanides and say, okay, robbery just as it is for us means exactly the same thing. What? Why not, actually? Yes, that is a possibility, though most of our commentators do not learn that way. They understand that Noahides have to legislate for themselves some system of laws that will be reasonable and fair. So what does that mean now, as you asked earlier, when an Israelite and a Noahide come before us for judgment? We judge them—if it is a resident alien, we judge him by their laws. What are “their laws”? Ottoman law? According to Maimonides, yes. According to Nachmanides, the whole discussion has no meaning, because “their laws” and “our laws” are the same thing: everyone is obligated in civil law. This Talmudic passage is a strong difficulty against Nachmanides, unless he does not accept this idea of Maimonides regarding the resident alien; after all, this is only from the Jerusalem Talmud, right? So the Jerusalem Talmud as understood by Maimonides goes according to Maimonides’ own approach, of course. Nachmanides will not say it is contradictory—but in any event, according to Maimonides, they really are judged by Ottoman law, yes. One sits in rabbinical court and judges according to—I don’t know, it depends where the gentile he is litigating with is from—according to his law, that is how they judge him. Fine, so what does this actually mean? It means as follows. Still, a certain problem arises here—we continue with Maimonides. A certain problem does arise here. We established the two-level model earlier on the basis of a view that says there are commandments toward which reason inclines, and that is a level everyone understands as the proper way to conduct human life; this is the elementary thing, and therefore everyone is obligated in it—both Noahides and Israel. And on top of that there is the special level of Israel, which is not simple reason but what we were commanded—this is level two. Now according to Maimonides, it does not come out like that. On the one hand, yes, it comes out that there are two levels, but on the other hand, notice what emerges here. The Noahides, who are commanded to live moral and decent lives and everything else, have different legal systems. Why is there a civil code that is not that? Are we not also commanded to live ordered and organized lives? After all, we said this is a universal substrate; everyone is obligated in it, all human beings. We too—our level one is first of all to be human beings. So how can it be that the legal system of the Noahides is different from our legal system according to Maimonides? It should have been exactly the same. In that sense, specifically Maimonides fits this two-level model better in terms of the underlying reasoning. Meaning, if you are not just doing accounting but also thinking what it means, conceptually this seems problematic. The truth is, it is not so problematic, and look at the formulation in Derashot HaRan. There is a very strong statement there. The Ran writes as follows, in discourse 11, his famous discourse. Most people think this is the regular Ran of Gerona, though that is not entirely certain, but that is generally accepted. His discourse 11 essentially deals with the relationship between the law of the king and ordinary halakhic law. As is well known, there are different models among the medieval authorities (Rishonim) for the relationship between these two systems. The Ran definitely follows the dual-system model. He says as follows: just as the statutes that have no role at all in social order—that is, in civic order—are themselves a proximate cause for the application of divine abundance, so too the laws of the Torah have a major role, and it is possible that they are directed more toward the matter that is more exalted in rank than toward correcting our social collective life. Meaning, the purpose of Torah law is the application of divine abundance upon us, not necessarily the correction of our collective social life. For that correction—that social correction—the king whom we appoint over us will complete. Social correction is the king’s job; it is not the job of Jewish law. But the judges and the Sanhedrin, their purpose was to judge the people with true justice that is righteous in itself, from which the divine matter would adhere to us. The purpose of civil law—not purity and impurity—the purpose of civil law is that divine abundance should rest upon us; it is a spiritual purpose. It is not a purpose of arranging social life. Arranging social life is the role of the king. And therefore he says that our law is different from the law of the Noahides. And now he says this—look, even more than that. Yes: the purpose of the judges was to judge the people with true justice that is righteous in itself, from which the divine matter would be attached to us, whether or not this completely perfects the arrangement of their masses. I don’t care whether in the end this leads to more just and organized social life or not. Our goal is a different goal: the application of divine abundance, the service of God, spiritual aims. And because of this—notice this strong statement—“And because of this it is possible that in some of the laws and legal systems of the nations there will be things that are closer to correcting civic order than what is found in some of the laws of the Torah.” Meaning, if we take the Ottoman legal system, it is entirely possible that in certain respects it is more decent and moral than civil law. Why? Because its whole purpose is decency and morality and nothing else, assuming it is indeed a civilized nation. With us there are other goals; they create constraints, and sometimes there is tension. So we have to do things that create various corrections, I don’t know what. So sometimes that creates tension, and we won’t fully realize justice. Therefore we sometimes find in the laws of the nations things that are more just and more moral than in civil law. And he continues: “And we are not deficient in this.” But this is not our deficiency—why? Because whatever is lacking in the aforementioned correction is completed by the king. Thus the appointment of judges was only to judge the laws of the Torah, which are righteous in themselves—that is, not righteous for society but righteous in themselves—and the appointment of the king was to complete the correction of civic order and whatever was needed for the exigency of the hour. And when there is no king in Israel, the judge includes both powers, the power of the judge and the power of the king. Yes, when there was no king, the Sanhedrin also had the role of the king. And many times the Sages speak of the court repairing the roads, right? Moed Katan. What does it mean that the court repairs the roads? What are they, a construction company? Why should the court do that? Because in that period, in the Second Temple era, there was no king. So the powers of civil administration, of ongoing governance, were also handed over to the court. Basically, the king is supposed to manage material life, social life. But when there is no king, then the court takes on both roles. That is what the author of Derashot HaRan says. So this is a very strong claim. He is effectively saying that other legal systems can sometimes be more just than civil law. Why? Because civil law has constraints; it has to lead to various spiritual matters. But that is not a deficiency, because where it would create overly severe distortions, we have the king—he will handle the matter. He can judge not by the framework of civil law but by a different legal framework whose whole purpose is to achieve order, like the rule that a court may administer lashes and punishments not according to the formal law. Incidentally, the whole law of a court administering lashes and punishments not according to the formal law also belongs to the court when it repairs the roads. This is really what the king should have done. When there is no king, then the court performs both roles. Essentially, it ought to be the law of the king to strike and punish not according to the formal law.

[Speaker B] In what is lacking in Israel, right?

[Rabbi Michael Abraham] In what is lacking. No, no—the king. The example I bring, where you see this nicely, is the Hemdat Yisrael, what we read at the beginning. He discusses there what happens in Noahide law: is there the rule that a person cannot incriminate himself? So he brings proof—he says yes, that there is no—sorry, like the Sefer HaHinukh explicitly writes… Why? The position of Maimonides. So he says that Maimonides agrees with the Sefer HaHinukh that in Noahide law a person can incriminate himself—what lawyers call “confession is the queen of evidence.” So he says this: “And behold, we have written to prove conclusively that Maimonides…” Sorry, what? The queen of what? Yes, yes. “We have written explicitly that Maimonides also holds like the Sefer HaHinukh, that a Noahide is executed on the basis of his own confession.” And now, what is the proof? From what he wrote in the aforementioned Laws of Sanhedrin, that Joshua’s execution of Achan on the basis of his own confession was under the law of the king. After all, Achan confessed himself—how did they execute him? There were not two witnesses. How do you execute someone without two witnesses? So Maimonides says: that was under the law of the king. Meaning, under the king’s law—as I told you before—in the king’s law, a person can incriminate himself.

[Speaker B] So it wasn’t only the confession. What do you mean, it wasn’t only the confession? After all, they brought them to the tent, took out the objects…

[Rabbi Michael Abraham] No, that is not important; none of that is proof. In a formal court, all those things are not evidence of anything. A formal court does not judge that way; all those mystical things are not evidence in court procedure. Now he says this: this is the king. And we explained there that the king has no greater power to judge than the laws of the Noahides, and one who is not liable according to Noahide law the king also cannot punish. Notice the proof—an astounding proof. What is he saying? The king can punish a person based on his own confession. And the Noahides… there is no more in the king than there is in Noahide law. Therefore it is clear that Noahides too punish on the basis of one’s own confession. Why? Because the law of the king is the law of the Noahides; it is the same thing. These two legal systems have the same purpose: to institutionalize social life, to ensure that life is orderly. Jewish law does not do that—not necessarily, at least.

[Speaker B] Still, the language of the king’s subject… what?

[Rabbi Michael Abraham] That is still the language… fine, you can analyze it more. This is not a halakhic book, so it is hard to know exactly what he means, but it is quite clear: the king has laws by which he judges not according to formal law. Otherwise, what is the issue? Enactments the court can also make. What is the law of the king? If an enactment is needed, the court can do it. What’s the problem? Is the king’s role to make an enactment? No—he judges specific cases. If there is a gap in the law, that is an enactment; let the court do it. So it is pretty clear that this is what he means. So what is actually written here? That this is basically the role of the king. So what does that mean? If we return to the two-level model, the truth is that even civil law belongs to level two. That is what is written here, basically. But—but—that does not mean there is no level one. There is a level one. And not only is there a level one, it belongs to us as well. That is the law of the king. Meaning, it is not civil law as we thought before, as Nachmanides perhaps thinks, but something even prior to that. All of Jewish law, all four sections of the Tur, belong to level two, including civil law. But there is a level one—so it is still a two-level model. The law of the king is level one. Therefore, if a gentile and a Jew—just a second—if a gentile and a Jew come before us for judgment, by which system do we judge them? By the Noahide system. Why? Because after all, even with us the king can judge by it; it is a system that belongs to us too. It is the same system. That is the minimum, the common denominator that belongs to both of them.

[Speaker C] But that is part of the seven Noahide commandments; it’s not only the laws of the king. For example, “you shall not bless,” meaning one may not curse God. That has nothing to do with the laws…

[Rabbi Michael Abraham] We are speaking there about monetary law.

[Speaker C] What do you mean? Monetary law means that the Noahides should establish laws for themselves. Okay, that is equivalent to the laws of the king. Right. But what do you do with the…

[Rabbi Michael Abraham] Cursing God does not belong to the king’s law for Noahides. We are obligated in that not under the king’s law; the court punishes for that. But it belongs to Jewish law.

[Speaker C] It belongs to the Noahides, but the court…

[Rabbi Michael Abraham] It

[Speaker C] is not the king; it is not a royal enactment.

[Rabbi Michael Abraham] No—when I compare our king to Noahide law, I am talking only about monetary law. And what about the rest? The rest is unrelated; it belongs to the court in our system, not to the king at all. After all, cursing God appears in the Shulchan Arukh; it is forbidden to do it, it is part of Jewish law. When I speak about “laws,” I mean only monetary law, what is called civil law. Maybe I’ll finish with an example that will illustrate this more. Quite a few later authorities (Acharonim) ask about a contradiction between Talmudic passages. Rabbi Shimon Shkop is a well-known example, and of course he too is connected to the issue, but we won’t get to that now. Several later authorities ask about a contradiction between two Talmudic passages. The Talmud in Sanhedrin 58, in the topic of “stumbling block and disgrace.” The topic there implies that… “stumbling block and disgrace” means that if an animal was used sexually by a Jew, then the animal must be killed. There is a dispute in the Talmud whether this is because of stumbling block or because of disgrace. “Disgrace” means that people will say, “That is the animal with which so-and-so had relations,” when it is walking around in the street, so they kill it; or “stumbling block” means because a transgression was committed through it. Rashi explains—the Talmud says there that even if a minor had relations with the animal, they kill it. Now what about according to the side of “disgrace”? Fine, so as not to shame the minor. But according to the side of “stumbling block”? After all, what the minor did is not a transgression. So why kill it? No transgression was committed through it. Rashi says: yes, it is a transgression—an obstacle of sin; it is a transgression. Meaning, even a minor’s transgression is a transgression. That is on one side. On the other hand, the Talmud in Yevamot 33 discusses the prohibition of “simultaneous prohibition,” “inclusive prohibition.” The Talmud says there: what about a minor who entered the Temple and then grew two pubic hairs while he was in the Temple on the Sabbath, so that two prohibitions took effect on him at once at the moment he grew the hairs. That is the case the Talmud discusses. So what do we see? That the minor only starts committing transgressions from the moment he grows two pubic hairs, and not while still a minor—when he becomes an adult, in short—not while a minor. So let’s decide: does a minor commit transgressions or not? Several later authorities—the Nahalat Yitzhak and the Or Sameach and the Helkat Yoav, though perhaps for him it is only an initial suggestion and in the end he rejects it; the Kovetz He’arot goes in a somewhat different direction—but at least three later authorities go in the same direction. And what they say is this: they bring the Hatam Sofer I mentioned before, who says that for Noahides, obligation in commandments begins from the time they understand; there is no fixed age of majority, but from the time they understand. And they bring the Talmudic principle—which we also did not manage to address here—that “there is no matter that is forbidden to a Noahide and permitted to an Israelite.” There is no such thing as something forbidden to a Noahide and permitted to an Israelite, which strongly points to the two-level model. And then they say: after all, if a Noahide committed bestiality when he was seven years old…

[Speaker B] After all, there is such a case, what you heard—in Hatam Sofer.

[Rabbi Michael Abraham] No, I already can’t quite get to that, as I said; there’s no time for it now. A Noahide who is seven years old and has intercourse with an animal—that’s a transgression, right? Because let’s say he already understands at that age, okay? After all, there is nothing forbidden to a Noahide that is permitted to a Jew. So it comes out that a Jewish child of seven is also liable for those same transgressions that apply to a Noahide, such as bestiality. There too, for a Jew, the determining age is only the age of understanding, not the age of majority. That’s what some later authorities (Acharonim) say. The Chelkat Yoav ultimately rejects this, but several later authorities remain with that conclusion.

In practice, when you think about it more, there’s something a bit deeper here. The claim is precisely that this simply belongs to level one. It’s not a technical issue, as if everything a Noahide is obligated in a Jew is also obligated in. Fine, you could say this one is obligated from age thirteen and that one from age six. But the deeper point is that inside every Jew there sits a Noahide. So he will be liable by virtue of the Noahide within him. In other words, it’s obvious that he can’t be less than a Noahide; after all, he too is a minor who understands. So as a Noahide, he will certainly be liable for this by virtue of the Noahide within him. Therefore, all the transgressions that apply to a Noahide—a Jew, even if he is a minor, if he does them, that is a transgression, and he will be punished for it. Not by a religious court, but by the laws of Heaven—he will be punished for it.

Maimonides writes regarding an oath: you do not administer an oath to a minor, because he does not know the punishment for an oath. Therefore, you do not administer an oath to him. What does it mean, “he does not know the punishment for an oath”? There is no punishment for an oath upon him? “He does not know the punishment for an oath”—on the contrary, if he’s a child prodigy, watch out for him, because he knows he isn’t punished for such things. So what does it mean, “he does not know the punishment for an oath”? The answer is that there is punishment for an oath upon him, because an oath is grounded in reason. And since it is grounded in reason, every minor will also be punished for it. Everything that emerges from reason, as we said at the beginning citing Rav Nissim Gaon, everyone is obligated in. The law of majority was never said about that at all. The law of majority was said about commandments that the Torah commands us in; then the Torah says: I am speaking to thirteen-year-olds. But things that emerge from reason—who is obligated in them? Whoever understands the reasoning. So if a six-year-old Noahide understands this, why shouldn’t a six-year-old Jew understand it too?

So here is perhaps the strongest example of the idea that inside every Jew there sits a little Noahide—these two levels. And therefore everything a Noahide is obligated in, a Jew will be obligated in from the age at which he understands, and not from the age of maturity, not from the age of legal majority. From the moment he understands, he will be obligated in it, and he will be punished for it by the laws of Heaven, he will be punished for it—not just that he is obligated because it’s some abstract matter. Okay, I’ll stop here, because it’s impossible to continue any more. The gaon’s question?

[Speaker B] One more question beyond that: the question is whether a Jew is one level or two levels. Nice question. The question is whether it’s an inherited house, and how that connects?

[Rabbi Michael Abraham] Ah, I didn’t get back to that—I forgot. So this is simple logic. This already belongs to morality; it’s simple logic. After all, when you want to define someone—Aristotle already said this—how do you define? You take the genus and specify the species, right? When you want to define a human being—what is a human being? It’s a living creature that has the trait of speech, right? You take the more general category, and within it you specify what makes this one distinct. That’s always how you define someone, right?

So when you want to define a Jew, how will you define him? A religious Jew—how will you define him? Will you define him by saying he isn’t a murderer? Every person must not murder; that belongs to level one. If you want to define a Jew, you can’t define him through level one; you have to define him through level two, because only that is what distinguishes him. What sense does it make to define a Jew through level one? Level one obligates everyone. So when you want to define—I said this was sociological—of course murder is more severe. But when you want to define who belongs to this group, obviously you take the unique characteristics. So wait—according to that logic, I have to take something that is lesser, only in level two, only as something that is less obvious. Yes, of course, with things that are. But there is still a question here between things that are obvious and things that are not. No, just a point—I’m not afraid of this answer, and I’m not afraid to make the claim that this thing that was—no, he starts with Yigal Amir, after all, at the beginning. He starts with Yigal Amir, after all—if he were like everyone else.

[Speaker B] No, just a point: this claim, fine—there are people here who don’t share this claim. Why is the attitude toward the Sabbath and kashrut and family purity considered the direction, since even in prohibitions that are not shared, that’s not really the claim—

[Rabbi Michael Abraham] Because even in the prohibitions that are not shared, there too there are things that Noahides observe even if they are not obligated in them. So what is the point of defining it that way? After all, we’re talking about a sociological question, right? What is the point of defining a Jew by the fact that he is a moral person? You know what—maybe a Noahide is not obligated to be moral, fine, he is obligated to keep a few things. Every person is like that. It is not correct to define a person that way; it is not correct to look at the definition that way.

[Speaker C] This concludes the lecture of Rabbi Michael Abraham on Thursday, the eve of

[Rabbi Michael Abraham] the fifth of Cheshvan 5767, on the topic of the commandments of the Noahides: a look at the relationship between the Torah and universal values.