Lesson 52: Nitzavim-Vayelech

From the book Mida Tova: Articles on the Principles of Halakhic Thinking by Rabbi Michael Avraham. Translated from Hebrew using gpt-5.4 (reasoning_effort=high, batch API).

---

With God’s help

Concepts

• Two kinds of rules: a priori and a posteriori.
• Which of them admits exceptions?
• A split between being obligated in a mitzvah (commandment) and being responsible for its fulfillment.
• A split between the one obligated in a commandment and the one punished for neglecting it: in the case of minors and in the case of the community.
• In communal commandments, an individual cannot fulfill the commandment, but can nullify it.
• Communal commandments can be fulfilled and nullified simultaneously.
• Commandments imposed on minors.
• The nature of scientific generalizations: the status of phenomenological theories.

Summary

In this week’s essay we address the commandment of Hakhel, the septennial public assembly. The Talmud first presents this commandment as an exception to the rule that women are exempt from time-bound positive commandments, and from there we are led to the principle that “one does not derive from generalizations.” We distinguish between two types of rules—a priori and a posteriori—and conclude that, contrary to initial intuition, an a priori rule is actually more likely to admit exceptions. Along the way, we propose an analogy between rules of halakha (Jewish law) and scientific and other generalizations, and discuss the nature of each kind of generalization and the significance of exceptions. Our conclusion is that a generalization with exceptions can still be perfectly precise; it is simply not the only law operating in the arena.

We then turn to the commandment of Hakhel itself, in which we find an obligation for women, and according to some views also for children, and perhaps even for slaves. All of these exceptions lead us to the conclusion that this is a commandment imposed on the collective, and therefore all of these groups are included in it.

We examine the unique character of communal commandments, especially two pathologies that arise within them:

1. The one commanded is not necessarily the one responsible for fulfillment, as in obligations imposed on minors.
2. The addressee of the commandment is the collective, but the one who nullifies it may be an individual. Hence an individual can nullify a communal commandment, even though he cannot fulfill it.
3. It is possible for a commandment to be fulfilled and nullified simultaneously.

Our claim is that one must distinguish between the person obligated in the commandment and the person responsible for its fulfillment. In the case of minors, the responsible party is the parents or the rabbinical court; in the case of the public, the responsible parties are the individuals included within it. At the end we present several examples and implications of this distinction, especially with respect to the commandment of public Torah reading.

The Commandment of Hakhel

A Look at the Fulfillment and Nullification of a Commandment

Introduction

In a surprising and exceptional verse, Deuteronomy 31:9 tells us:

Moses wrote down this Torah and gave it to the priests, the sons of Levi, who carried the Ark of the Covenant of the Lord, and to all the elders of Israel.

It seems that here Moses our teacher summarizes all that he has said and writes the book of the Torah as we know it today. Immediately after this brief description of the writing of the Torah scroll, the Torah in Deuteronomy 31:10–13 commands us regarding Hakhel:

Moses commanded them, saying: At the end of every seven years, at the set time of the Sabbatical year, on the festival of Sukkot, when all Israel comes to appear before the Lord your God in the place that He will choose, you shall read this Torah before all Israel in their hearing. Assemble the people—the men, the women, the little ones, and the stranger within your gates—so that they may hear, so that they may learn, and so that they may fear the Lord your God and observe to do all the words of this Torah. And their children, who do not know, shall hear and learn to fear the Lord your God all the days that you live on the land to which you are crossing the Jordan to possess.

This commandment is counted by all the enumerators of the commandments. Maimonides writes in Sefer HaMitzvot (Book of Commandments), positive commandment 16:

The sixteenth commandment is that He commanded us to assemble the entire people on the second day of Sukkot after every Sabbatical year, and to read in their ears certain passages from Mishneh Torah, as He, exalted be He, said: “Assemble the people, the men, the women, and the little ones…” This is the commandment of Hakhel. In the first chapter of Babylonian Talmud, Kiddushin 34a, after their statement that women are exempt from every positive commandment dependent on time, the Talmud asks: But Hakhel is a positive commandment dependent on time, and women are obligated in it. They explain at the end of the discussion: “One does not derive from generalizations.” The laws of this commandment—namely, how the reading is done, who reads, and what is read—have already been explained in the seventh chapter of Babylonian Talmud, Sotah 32a and 41a.

In this week’s essay we shall examine the nature of the commandment of Hakhel and, as is our way, note within it several interesting meta-halakhic aspects.

A. A Methodological Introduction: “One Does Not Derive from Generalizations”

Introduction

We open with a discussion of the principle “one does not derive from generalizations,” which underlies the Talmudic discussion of women’s obligation in Hakhel. From there we will move to the commandment of Hakhel itself.

Time-Bound Positive Commandments

The Mishnah in Babylonian Talmud, Kiddushin 29a, states the rule:

Every positive commandment dependent on time—men are obligated, and women are exempt. Every positive commandment not dependent on time—both men and women are obligated. Every negative commandment, whether dependent on time or not—both men and women are obligated, except: not to round the corners of the head, not to destroy the beard, and not to become impure through contact with the dead.

The Mishnah appears to establish a sweeping and precise rule, since it even lists the few exceptional cases.

Yet Maimonides rules this law in Mishneh Torah, Laws of Idolatry 12:3, as follows:

Every negative commandment in the Torah applies equally to men and women, except the prohibitions of destroying the beard, rounding the corners of the head, and a priest becoming impure through the dead. And every positive commandment that applies only at certain times and is not constant—women are exempt, except for sanctifying the day, eating matzah on Passover nights, eating the Paschal offering and slaughtering it, Hakhel, and rejoicing, in all of which women are obligated.

Suddenly several exceptions appear on the other side as well—that is, time-bound commandments from which women are not exempt. How is this to be reconciled with the rule stated by the Mishnah?

The Talmud itself raises this question in Babylonian Talmud, Kiddushin 34a:

“Every positive commandment dependent on time…” Our Rabbis taught: Which are positive commandments dependent on time? Sukkah, lulav, shofar, fringes, and phylacteries. And which are positive commandments not dependent on time? Mezuzah, a parapet, returning a lost object, and sending away the mother bird.

Is this really a general rule? What about matzah, rejoicing, and Hakhel, which are positive commandments dependent on time, yet women are obligated in them? And further, what about Torah study, procreation, and redeeming the firstborn, which are not positive commandments dependent on time, yet women are exempt from them? Rabbi Yohanan said: One does not derive from generalizations, even where an exception has been stated. For we learned: “One may establish an eruv or a partnership with anything, except water and salt.” And are there no others? What about truffles and mushrooms? Rather, one does not derive from generalizations, even where an exception has been stated.

The Talmud cites several exceptions and asks how they can fit the Mishnah’s rule. Rabbi Yohanan answers with a surprising dictum: “One does not derive from generalizations, even where an exception has been stated.” In other words, rules do not express perfectly precise truths, and even when those who formulated the rule took the trouble to list the exceptions, that does not guarantee that no further exceptions will be found.

“One Does Not Derive from Generalizations”: Two Types of Rules

This surprising statement returns us to the question of the relation between rules and particulars. What is the meaning of halakhic rules? Do they express an essential principle that unites all the particulars included within them? Or are they merely a chance bundle of particulars?

In our case: is the rule exempting women from time-bound positive commandments an essential rule? That is, is there some reason connected with the common feature of all these commandments that exempts women from them? Or does the rule merely express a technical grouping of particulars: after surveying all the commandments from which women are exempt, we found that what they all share is that they are time-dependent. We do not necessarily assume that this feature is the basis of the exemption; rather, it is simply a convenient generalization that makes memorization easier. One should remember that the Oral Torah was transmitted orally, and various devices were used to assist students in remembering it.

Put differently: did the rule precede the particulars, or did the particulars create the rule? Is the rule a priori—prior to examination of the particulars, and indeed determining them—or a posteriori, arising after observing the particulars? A technical rule summarizes observed cases; an essential rule usually precedes the particulars and in fact determines them. According to that conception, women’s exemption is not decided separately in each commandment. Rather, once a commandment is time-bound, the woman is thereby exempted from it.

The same question may be asked about the rule that in matters of ritual prohibition the halakha follows Rav, whereas in civil law it follows Shmuel (see Babylonian Talmud, Bekhorot 49b). Is this an essential rule—Shmuel was more expert in monetary law and Rav in ritual matters, and therefore the law was decided in that pattern? Or was the law not actually decided by such a rule, but only in retrospect did we discover that this is how things came out—though perhaps even there there is some reason, and not pure chance?¹

What difference follows from these two possibilities? The obvious implication would seem to be the existence of exceptions. If the rule is indeed a priori, that is, if it expresses an essential truth, we would not expect it to have exceptions. But if the rule is only the result of a retrospective observation—a posteriori—then exceptions are only to be expected.

For example, if there is nothing essential in time-dependence itself that exempts women, then there is no reason to assume that women would be exempt from precisely all time-dependent commandments, each for some separate reason. Even if by coincidence many time-dependent commandments happen to be ones from which women are exempt, there will surely be other time-dependent commandments in which women are obligated. By contrast, if the exemption from such commandments is essential, then why should there be exceptions? Those commandments too are time-dependent, and that fact itself should have exempted women from them.

At first glance, the view that rules are essential seems more plausible, since the alternative is that the rule arose by chance. For no apparent reason, and without any logic, a set of particulars possessing a common denominator was grouped together, even though that common denominator is not what causes their shared property.

To be sure, there are rules that certainly appear to be technical and a posteriori, rather than essential. For example, the rule that in disputes between Abaye and Rava, the law follows Abaye in the six cases known by the mnemonic Yaal Kegam (see Babylonian Talmud, Bava Metzia 22b, and parallels). This rule says three things:

1. In disputes between Abaye and Rava, the law always follows Rava.
2. There are six exceptions, known as Yaal Kegam.
3. There are no other exceptions.

The first rule is an ordinary one, and one may debate it exactly as one debates the rule concerning Rav and Shmuel. The second lists six cases that seem to have no common denominator whatsoever. Therefore it is more reasonable to see it as technical and not essential—that is, there is nothing common to those six cases; this is merely a summary of six separate rulings. The Talmud and the medieval commentators treat the third rule as binding, and there it does not seem possible to say, “one does not derive from generalizations.” Cases in which it appears that the law follows Abaye require explanation, and the halakhic literature is full of such explanations. As we shall see below, specifically this approach is what one would expect if the rule is indeed technical.

The very fact that the Talmud’s question assumes that the rule exempting women from time-bound positive commandments has no exceptions shows that it sees the rule as essential. But once Rabbi Yohanan responds by invoking “one does not derive from generalizations,” the question arises whether the conception of rules changes here. Is he saying that rules are not essential but merely technical and accidental? Or can the rules still be seen as essential even according to the Talmud’s conclusion?

The Rule of Women’s Exemption from Time-Bound Positive Commandments

As is well known, Abudarham offers an explanation for the principle that women are exempt from positive commandments dependent on time. He explains that women must be occupied with caring for the home and children, and therefore halakha does not wish to bind them to fixed times and create constraints that would interfere with their work.

It is clear that he assumes this rule is a priori—that is, essential and not accidental. According to him, despite the fact that the rule has several exceptions, and despite Rabbi Yohanan’s dictum, the rule still expresses an essential truth and not a technical summary.

As noted above, this approach to rules generally seems very plausible, since we are not inclined to accept mere accidental correlations. If all time-bound commandments share a common feature—women’s exemption—even if there are some exceptions, our intuitive tendency is to say that there must be some essential feature at work. Women’s exemption stems from the time-dependence. If so, the rule is a priori.

But this raises a question: if the rule is indeed essential, why are there exceptions? Seemingly, the exceptions show that time-dependence is not an essential reason for women’s exemption, for in those commandments the same condition exists, and yet there is no exemption.

An Analogy to Generalizations in Other Fields

This can be understood by reflecting on generalizations in other fields. For example, the Talmud states in Babylonian Talmud, Shevuot 18b: “Whoever recites Havdalah over wine at the conclusion of Sabbaths will have male children.” Does this mean that anyone who has no male children is thereby shown not to have recited Havdalah at the end of Shabbat? Was the Hazon Ish, who had no descendants at all, necessarily careless about Havdalah? Obviously not. It is entirely possible that Havdalah over a cup of wine does indeed contribute to the birth of sons, but that there are additional relevant causes that affect the outcome. Does that mean the rule is false? Not necessarily. It only means that other factors also influence the result in question.

Another example, this time from a different field: there is a psychological law linking frustration to aggression. A frustrated person will tend toward violent behavior. If we see a frustrated person who does not act violently, should we infer that the rule is false? Certainly not. We should conclude that frustration can indeed lead to aggression, but that there are additional parameters influencing violent behavior, and these may offset frustration. Good education and a high moral standard, for example, may prevent one person from acting violently at a level of frustration that would lead another person to do so.

Thus the law linking frustration and aggression can be entirely correct. But in reality there are additional factors that promote or prevent violence, and final behavior is the weighted result of all of them.²

We should not be mistaken. This phenomenon is not true only in the human sciences, nor is it merely a result of the complexity of the human soul. The same phenomenon appears in the exact sciences as well. For example, Newton’s first law states that in the absence of force, any body with mass continues in uniform motion in a straight line. Yet no one has ever seen such a body. There is no body on which no force whatsoever acts. So this is a theoretical statement only. Does that mean it is false? Certainly not. It is perfectly true. It simply concerns a purely theoretical state, whereas in all real situations forces are always present, and therefore we will not observe such motion.

From another angle: does the fact that the law of gravity acts on a given body suffice to infer that it will fall to the ground with gravitational acceleration? Of course not. Other forces may be acting on it and may alter the picture. Does that refute the law of gravity? Certainly not. The law of gravity is perfectly true, but it is not the only law operating in the arena. What actually occurs is the result of the combined influence of all the laws at work there.

A Note on the Nature of the Laws of Nature

We can ask the same question we raised about halakhic rules with respect to the laws of nature as well.³ One may view the law of gravity as an essential rule: attraction between bodies results from the fact that they have mass. But one may also view it as an accidental, technical rule: all bodies with mass are attracted to the earth, and to one another, but the reason for this is not necessarily their mass as such.

Philosophers of science disagree about the nature of the laws of nature. Some claim that since these are generalizations, we should not infer from them that they express causes. The laws of nature are only correlations between “causes” and “effects,” but there is no actual relation of causation between them. Common sense, by contrast, says that there surely is such a relation, and that the common feature—mass—is itself the cause producing the result—attraction.

To be sure, even in science there are laws or theories that are not essential but merely accidental. In philosophical and scientific jargon they are called phenomenological. A phenomenological theory identifies a common denominator in a set of situations in which a certain result appears. It does not address the cause or explanation of the phenomenon. It is a technical rule, not an essential one. But scientists generally understand that a situation in which a field has only a phenomenological theory is a temporary one. As long as we do not yet understand the phenomenon under investigation, we look for common denominators among the situations in which it appears. The next stage is to search for an explanation—that is, for an essential theory rather than a phenomenological one—and this is generally achieved by examining those common denominators. At that stage, the phenomenological theory becomes an essential theory. According to the accepted view, then, science contains no genuinely accidental generalizations. At most, there are situations in which knowledge is still lacking or incomplete. Ultimately, every generalization has an essential reason, and behind every valid phenomenological theory stands an essential one.

Back to Halakhic Rules

All these examples can be seen as generalizations with exceptions, that is, as imprecise generalizations. But that is not correct. These are generalizations that may be perfectly precise, without exception, except that they are not the only laws operating in the arena.

In exactly the same way one may approach halakhic generalizations. Precisely because rules express an essential phenomenon, we should expect exceptions. If a rule were merely technical, why formulate it as a rule at all if it has exceptions? That would simply be a poor choice. But if there is an essential connection, then the rule is perfectly true, and it is therefore appropriate to formulate it as a rule. The fact that it has exceptions does not show that it is imprecise; it shows only that it is not the only rule in play.

For example, women’s obligation in Hakhel does not contradict the rule that women are exempt from time-bound positive commandments. It only shows that there are additional rules operating in this area. Of course, once we understand those additional rules, we can formulate the rule more precisely and say that women are exempt from such commandments where no other relevant rule applies. That definition would then be without exception.

The conclusion is that specifically an essential conception of rules makes room for exceptions. Technical rules are supposed to be precise; otherwise they have very little value. But essential rules remain true even when we see many exceptions, because they point to a principle that is true in itself. It is worthwhile to formulate them despite the exceptional cases. Does anyone think Newton’s laws are pointless because they always appear alongside additional factors and therefore never describe reality exactly as it appears? Certainly not. Their value lies precisely in the fact that they express an essential principle, not merely a technical generalization summarizing observed particulars.

As we noted above, the rule that the law follows Abaye in Yaal Kegam is treated as a rule without exceptions. There the Talmud and the medieval commentators do not suffice with statements like “one does not derive from generalizations.” We now understand this thoroughly: contrary to what we said at the beginning, precisely because this rule is not essential but technical, we should not expect exceptions to appear in it.

Conclusion

The conclusion emerging from the discussion so far is that not only do rules have essential explanations behind them. Every exception to a rule should also have an essential explanation. If there is no explanation for why women are obligated in Hakhel, then it is unclear why the time-dependence of the commandment did not exempt them from it, since time-dependence is an essential ground of exemption for women, and not merely a technical or external criterion discovered after the fact.

If, by contrast, the rules were merely technical, then there would be no reason to assume that every exception has some reason why it fails to fit the rule. It simply happened that way, and no more.

In the next chapter we shall try to propose the explanation—or the unique feature—that underlies women’s obligation in Hakhel, even though it is a time-bound commandment.

B. The Unique Character of the Commandment of Hakhel

Introduction

As noted, the Talmud states that women are obligated in Hakhel even though it is time-bound. It should be added that Maimonides rules, following the Torah itself, that children too are obligated in this commandment. On this point he does not even pause to ask how minors can be obligated in commandments, following the Talmud, which comments only about women. Perhaps he relies on the answer given regarding women for children as well: one does not derive from generalizations. Just as women are obligated, so too children are obligated in this commandment. If so, this mitzvah is exceptional both with respect to the rule that women are exempt from time-bound positive commandments and with respect to the rule that minors are exempt from commandments.

That itself already gives us a first hint about the direction in which we should seek the answer. This is a commandment in which every Jew is obligated, regardless of his or her individual traits and characteristics.

The Words of the Chinukh

The Sefer HaChinukh also counts this commandment, as commandment 612. At the end of his discussion, where he normally notes who is obligated in the commandment—men, women, and so on—he does not address the question of who is obligated. Apparently he relies on what he writes at the opening of the discussion:

We were commanded that all the people of Israel—men, women, and little ones—assemble after the Sabbatical year on the festival of Sukkot, on the second day of the festival, and that some of the book of Mishneh Torah, namely “These are the words,” be read in their hearing. Concerning this it is said: “Assemble the people, the men, the women, and the little ones…” This is the commandment of Hakhel mentioned in the Talmud, as they said in the first chapter of Kiddushin: “But Hakhel is a positive commandment dependent on time, and women are obligated in it”; and at the end of the discussion they explained: “One does not derive from generalizations”—meaning that in truth women are obligated in this commandment.

He indeed notes here the Talmud’s question in Kiddushin, which was also cited by Maimonides. Apparently this is where he addresses the question of who is obligated in the commandment.

At the end of his remarks, however, he writes—similarly to his formulation in other commandments:

One who transgresses this, whether man or woman, and does not come at this appointed time to hear the words of the Torah, and likewise the king if he did not wish to read, has neglected this positive commandment. Their punishment is very great, for this commandment is a mighty pillar and a great honor in the religion.

It thus appears that both man and woman are obligated in this commandment, but he writes this only with reference to the punishment of one who violated the commandment, not as a formal statement of who is obligated in it. In positive commandments the Chinukh usually writes in a fixed style, such as: “It applies in every place and at every time to males and females.” Only afterward does he state who violates it and what the punishment is. Here he notes only who violates the commandment, not who is obligated in it.

It should also be noted that children are not mentioned here at all. He mentions the man and the woman, but not the children.

The Obligation of Children

Regarding the obligation of children in Hakhel, the Talmud in Babylonian Talmud, Hagigah 3a–b states:

Our Rabbis taught: It once happened that Rabbi Yohanan ben Beroka and Rabbi Elazar ben Chasma went to greet Rabbi Yehoshua in Peki’in. He said to them: What new teaching was there in the study hall today? They said to him: We are your disciples, and from your waters we drink. He said to them: Even so, the study hall cannot be without some novelty. Whose Sabbath was it? They said: It was the Sabbath of Rabbi Elazar ben Azariah. He said: And on what subject was today’s discourse? They said: On the section of Hakhel. He said: And what did he expound on it? They said: “Assemble the people, the men, the women, and the little ones”—if the men come to learn and the women come to hear, why do the little ones come? In order to give reward to those who bring them. He said to them: You had a precious pearl in your hands and sought to keep it from me! He further expounded: “You have affirmed the Lord today, and the Lord has affirmed you today.” The Holy One, blessed be He, said to Israel: You have made Me a unique entity in the world, and I shall make you a unique entity in the world. You have made Me a unique entity in the world, as it is written: “Hear, O Israel, the Lord our God, the Lord is one.” And I shall make you a unique entity in the world, as it is said: “And who is like Your people Israel, one nation on earth?”

At first glance, the child is not himself the addressee of the commandment, since he is not yet of the age of legal obligation. Indeed, the Talmud there says so explicitly with regard to the pilgrimage appearance and festival offering. The passage here says that children are brought in order to reward those who bring them. Apparently it is the bringers who are obligated to bring the children, not the children themselves. So writes Minchat Chinukh, subsection 4, under “and the little ones.” This, of course, resolves the difficulty we raised above regarding the omission in the Chinukh.

Further on, Minchat Chinukh infers from this that although a deaf person is exempt from commandments, a deaf child is nevertheless included in Hakhel, since the obligation rests on the father and not on the child himself.⁴ His assumption is that the child is not obligated to hear, only to come. Only the father is the hearer. Perhaps the same is true of women: since they are exempt from Torah study, perhaps they too are required only to come, not to hear.

But Turei Even, on Hagigah there, investigated whether the commandment rests on the father or on the rabbinical court, and did not decide:

“In order to give reward to those who bring them.” It has not been clarified to me upon whom the obligation to bring the little ones rests: specifically on the father, or also on the rabbinical court. If you say it rests specifically on the father—above we derive those exempt from pilgrimage appearance from Hakhel by a verbal analogy of “appearance” and “appearance”; and later it also says that the word “remember” is written regarding pilgrimage appearance in order to exclude women from appearance, lest we derive from Hakhel. If so, conversely, those exempt from pilgrimage appearance should be exempt from Hakhel through that same verbal analogy. Yet in Babylonian Talmud, Pesahim 8a, Rabbi Ami says that one who has no land is exempt from pilgrimage appearance, and it seems to me that this is learned from the verse “No man shall covet your land.” Certainly the verse is concerned with land in the Land of Israel, and then he would likewise be exempt from Hakhel. Now, if the Hakhel of the little ones rests specifically on the father, from where could a little one have land in the Land of Israel while his father is alive? Necessarily the case is one in which his father died and he inherited land from him. For the verse of Hakhel is stated without qualification, implying even when the Jubilee is observed. Further, the Sabbatical year is mentioned in the passage of Hakhel, and there is an opinion in the fourth chapter of Gittin 36 that the Sabbatical year applies only when the Jubilee applies. Surely one should not be stricter with a little one than with an adult, who is exempt when he has no land. Since there is no way to obligate a little one in Hakhel except when his father died and he inherited from him, it follows that the obligation rests on the rabbinical court. This is not a proof, for one can still say that the father is alive, and yet there can be a case where the child has land in the Land of Israel—for example, if his mother died and she was an heiress, and he inherited her rather than his father, according to the opinion that a husband’s inheritance is only rabbinic. Or where he was born from a raped woman, according to all opinions. Or where she was divorced. And you should know that this is so, for the verse in Hakhel also says “your stranger”; and how can a convert have land in the Land of Israel? If he acquired it, then according to the opinion that usufruct is not like ownership of the body, it is not called “your land,” as stated at the end of the fourth chapter of Gittin 48. And if he married a Jewish heiress and inherited from her, according to the opinion that a husband’s inheritance is rabbinic, what can be said? Rather, it must be speaking of a convert whose father converted and whose mother was Jewish, and he inherited from her.

Clearly, in light of Minchat Chinukh‘s remarks cited above, this proof does not exist at all. Obviously the child need not meet all the same requirements as an adult—just as he may be deaf.⁵ If there is some requirement that a person own land in order to be obligated in Hakhel, why should that requirement apply to the child as well? After all, he himself is not obligated in the commandment at all.

It seems from this that Turei Even understands the obligation to rest on the child himself, not on the father. What the Talmud says in Hagigah is merely the reason why an obligation was imposed on a child—namely, in order to reward those who bring him—but now the obligation also rests on him. In other words: if the child does not come, complaints will be directed at the father or the rabbinical court, because they are the ones meant to ensure that the child comes. But the obligation to come rests on the child himself. This is not a commandment on the father, but on the child. By contrast, as we saw, Minchat Chinukh understands the basic obligation to rest on the father or the rabbinical court, not on the child.

Even so, it is not entirely clear why Turei Even speaks of an obligation on the father or on the rabbinical court. If the obligated party is really the child himself, what do the parents or the court have to do with this? We shall explain this below.

Slaves

We have discussed children and women. But what about slaves? Maimonides writes at the beginning of chapter 3 of Mishneh Torah, Laws of Festival Offering:

1. It is a positive commandment to assemble all Israel—men, women, and children—at the conclusion of every Sabbatical year, when they ascend for pilgrimage, and to read in their hearing passages from the Torah that urge them on in the commandments and strengthen their commitment to the true religion, as it is said: “At the end of seven years, at the set time of the Sabbatical year, on the festival of Sukkot, when all Israel comes to appear… Assemble the people, the men, the women, and the little ones, and your stranger who is within your gates…”

2. Anyone exempt from pilgrimage appearance is exempt from the commandment of Hakhel, except for women, children, and the uncircumcised. But one who is impure is exempt from the commandment of Hakhel, as it says “when all Israel comes,” and this person is not fit to come. And it is clear that a person of indeterminate sex and an androgynous person are obligated, since women are obligated.

There is an analogy between exemptions from pilgrimage appearance and exemptions from Hakhel, in one direction. But there are those exempt from pilgrimage appearance who are not exempt from Hakhel—women, children, and the uncircumcised. Hakhel is more inclusive. This implies that slaves are exempt from Hakhel.

And this is indeed how Lechem Mishneh understands Maimonides there, and he asks:

“Anyone exempt from pilgrimage appearance is exempt from Hakhel, except for women, children, and the uncircumcised.” But if so, why did he not also say “except slaves”? For in the first chapter of Hagigah 4, regarding pilgrimage appearance, it says: Why do I need a verse? After all, every commandment in which a woman is obligated a slave is also obligated, for we derive it from woman. One can answer that here it is different, because the verse says: “when all Israel comes to appear,” which implies that slaves are exempt, as our master wrote above. Still, perhaps our master found this proof elsewhere, for in our Talmud it does not seem so, since it says: “And from where do we know slaves?” and it seeks another verse from “before the Master, the Lord,” without mentioning this verse at all, as I already wrote above. And our master wrote that anyone exempt from pilgrimage appearance is exempt from Hakhel; he derived this from what is said there in the first chapter of Hagigah, that we learn “appearance” from “appearance” from Hakhel.

One should note that he prefers the analogy between slaves and women over the analogy between Hakhel and pilgrimage appearance. At first glance, one might have learned that slaves are exempt because of the comparison to pilgrimage appearance, which would seem stronger than the comparison to women.

In the end, Lechem Mishneh explains that this is a limiting derivation from the verse “when all Israel comes,” just as in chapter 2, law 1, regarding pilgrimage appearance.

Obligations Imposed on Minors

The question how obligations can be imposed on a minor requires separate discussion.⁶ On this matter we find a dispute between Rashi and Tosafot, as discussed in Kehillot Ya’akov, tractate Sukkah, sec. 2, in various Talmudic passages in Babylonian Talmud, Berakhot 48a and 20a, and the parallel in Megillah. The question is whether a minor, who is obligated in commandments by virtue of rabbinic education, can discharge the obligation of an adult—at least one whose obligation in that commandment is also only rabbinic.

As noted, Rashi and Tosafot disagree. According to Tosafot, the obligation rests on the child himself, and therefore, as one who is rabbinically obligated, he can discharge an adult in cases where the adult too is only rabbinically obligated—for example, grace after meals for someone who did not eat to satiety. According to Rashi, by contrast, the obligation rests on the father to educate his son, not on the minor, since it is impossible to impose halakhic obligations on minors. They are not yet subject to the commandments.

Thus, in Tosafot we do find the possibility that halakhic obligations can be imposed on minors. True, there the matter concerns the rabbinic duty of training a child, but it still serves as a principled source for the possibility that demands may be made of minors. Even so, it is clear that the father is the one who must ensure that the child fulfills his obligations, and when the father is absent that duty passes to the rabbinical court, just as in the commandment of Hakhel.⁷

Distinguishing Between the One Obligated in the Commandment and the One Punished for It

In both cases there is a distinction between the one obligated in the commandment and the one who must ensure its fulfillment. The one obligated in the commandment is the child himself, but responsibility does not rest on him because he does not yet possess sufficient responsibility. Therefore the Torah, or the Sages, place responsibility on the father or on the rabbinical court. Even though the child is the one obligated in the commandment, the one who will be punished if the child does not fulfill it is the father or the rabbinical court, not the child. Below we will encounter this phenomenon in additional contexts as well.

Explaining Women’s Obligation in Hakhel and the Other Difficulties

This is the place to return to the question with which we began. Why is Hakhel an exception to the rule, such that women are obligated in it even though it is time-bound? The answer is that Hakhel is a commandment imposed on the entire collective. It is not a commandment imposed separately on each individual within the public; rather, the entire public is obligated to fulfill it. This commandment is laid upon the collective, not directly upon the individuals who make it up.

We can now understand all the difficulties we raised. Women, considered as individuals, should indeed have been exempt from this commandment. But this commandment is not addressed to individuals. It is addressed to the collective, and therefore everyone who belongs to that collective becomes included in its fulfillment. Here there is no room to exempt women, because the collective as a whole is obligated in the commandment. For this same reason children too can be obligated in it, since they also belong to the collective. True, as individuals halakhic obligations cannot be directed to them, but when the commandment obligates the collective, everyone who belongs to it is automatically included. For this very reason, the author of Turei Even holds that children too are obligated in this commandment. They are obligated because they belong to the collective, not as private individuals.

We saw that the Chinukh does not write who is obligated in this commandment, because in its very definition it appears that it obligates the whole collective, 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. Everyone included in the collective must participate in the commandment.

This also explains the position of Lechem Mishneh and Maimonides: women are included because they are part of the collective, but slaves are not included in that collective, and therefore they are not obligated in Hakhel. That is the meaning of the verse he cites: “when all Israel comes.” Whoever is included within the totality of Israel is obligated in the commandment; whoever is not, is not. The comparison between slave and woman applies with respect to obligations imposed on the woman as an individual, and there the similarity to the slave is complete. But with respect to obligations of the collective, the woman as an individual is indeed not the addressee; she is obligated only as a member of the collective. The slave is not such a member, so long as he has not converted.

It seems that for this reason those exempt from pilgrimage appearance may nevertheless be obligated in Hakhel, except for a deaf-mute, a mute, and a person of unsound mind. 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, though this is not the place to elaborate.

We have therefore found the essential feature of Hakhel that makes it an exception. It is a communal commandment, and therefore women are obligated in it even though it is time-bound. Indeed, Bahag counts Hakhel among the commandments imposed on the public, in the section of public commandments, as the last one, number 65:

These are the sections, statutes, and ordinances entrusted to the public: … (65) the section of Hakhel. These are the sixty-five sections…

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

In fact, this is already explicit in the verses: “Assemble the entire people…” The inclusion of the men, women, and children comes immediately afterward, because it follows from the fact that the commandment is addressed to the collective as a whole. Perhaps for this reason Maimonides and the Chinukh saw fit to mention the ruling that women are obligated in Hakhel already in the basic description of the commandment, because that ruling expresses the commandment’s essential nature.

A Parallel Example: The Commandment to Build the Temple

A similar explanation is given by later authorities concerning the commandment to build the Temple. Maimonides and the Chinukh write that women are obligated in it, even though the Temple may not be built at night. That means it too is a time-bound positive commandment, and nevertheless women are obligated in it. 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 in it become obligated automatically. There is therefore no room to exempt women because of time-dependence, just as in the case of Hakhel.

Two Halakhic Pathologies

The great novelty is that at the end of his discussion the Chinukh nevertheless sees fit to note that one who violates this commandment has neglected a positive commandment, and that the matter is very grave. There is thus an additional novelty here: although the entity obligated in the commandment is the collective, if a particular person does not fulfill it, he nullifies it. Even though he is not the entity upon whom the commandment is imposed, he is certainly one of those responsible for its fulfillment, and therefore he is punished for its non-fulfillment.

Let us sharpen the point. If all Israel ascends to Jerusalem for the Hakhel ceremony, then the commandment has certainly been fulfilled. Yet Joseph son of Shimon did not ascend with them to Jerusalem. Did he nullify the commandment? At first glance, no, because he is not the entity obligated in the commandment; the public is, and the public did fulfill it. But just as the parents or the rabbinical court are responsible for the fulfillment of commandments by minors, so the individuals included within the collective are responsible for the 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 fulfillment⁸—he can certainly nullify it.

This is a pathological situation in which a commandment can be fulfilled by the public and nullified by a particular individual at the very same time. From another angle, we see here yet another pathology: the entity obligated in the commandment is not the entity responsible for it and punished for its neglect.

We can now understand why the Chinukh does not mention children among those who nullify the commandment if they do not come to Jerusalem for Hakhel. The reason is that even if Turei Even is correct that they are obligated in the commandment, responsibility for fulfillment certainly does not rest on them but on the parents or the rabbinical court. Therefore they cannot be counted among those punished for nullifying the commandment. Indeed, Turei Even himself, although he views children as personally obligated in Hakhel, places responsibility for bringing them on the father or on the rabbinical court.

More on the Split Between Obligation and Responsibility

We have seen that in obligations imposed on minors, responsibility rests on the parents or on the rabbinical court. In obligations imposed on the public there is a similar problem: “A pot owned by partners is neither hot nor cold.” If responsibility is not imposed on the individuals, the collective will certainly not fulfill its obligation.

Now Kehillot Ya’akov there cites Tosafot on Berakhot 48a, according to whom the duty of education rests on the child himself, and adds that in Babylonian Talmud, Nazir 29, Reish Lakish and Rabbi Yohanan dispute whether the duty of education rests on the mother as well or only on the father. At first glance, this proves that there is an obligation on the parents and not only on the child himself. Indeed, for this reason Rashi maintained that the obligation rests only on the parents and not on the child. Regarding Tosafot, the Kehillot Ya’akov says that there are two laws here: the father’s obligation to educate his son, and the son’s obligation to perform the commandments.

This is a technical conceptual formulation, but at first glance it seems difficult: where did these two laws come from? Were there two separate enactments regarding education? Presumably his intention is what we wrote above: there is indeed an obligation on the child, but one cannot demand of him the responsibility to fulfill that obligation, because he is a child. That responsibility rests on the parents. And this is, of course, one enactment, not two.

These matters relate to several principles we have discussed in the past. In our essay on Bereshit, 5767, we saw opinions according to which the father is not obligated to circumcise his son, but is obligated to ensure that his son be circumcised. This is responsibility without the obligation itself and without the possibility of personally fulfilling the commandment. The commandment of circumcision rests on the son, but responsibility for carrying it out rests on the father. In our essay on Vayeshev, 5767, we discussed the distinction between discharging an obligation and performing a commandment, and see also our essay on Beshalach, 5767, from another angle. The claim there was that a minor is capable of performing a commandment, but cannot discharge an obligation, because no obligation rests on him. See also Rabbi Hayyim Soloveitchik’s novellae on Maimonides, Laws of the Paschal Offering, regarding a minor who came of age between the two Passovers. This distinction too resembles the one proposed here. The minor bears no responsibility, but he can perform commandments.

An Example from the Commandment of Public Torah Reading

Above we noted two novelties in Hakhel and similar commandments:

1. This is a commandment whose addressee is the public and not the individual.
2. Even when the addressee is the public, responsibility for fulfillment rests on every individual.

In this section we will illustrate both novelties with respect to public Torah reading.

There are several indications that the commandment of public Torah reading is a reenactment of the giving of the Torah. Therefore it is a commandment imposed on the public, since it was the public that received the Torah. But there are two kinds of communal commandments that require a quorum of ten. The Mishnah in Babylonian Talmud, Megillah 23b, does not list the reading of the Megillah among the things that require ten, but it does list public Torah reading. Nahmanides, in Milhamot, explains there that the Megillah is a commandment imposed on the individual, though it must be done in the presence of ten. Public Torah reading, by contrast, is a commandment imposed on the group of ten itself. The halakhic consequence is that one may read the Megillah in the presence of nine others who have already fulfilled their obligation, but public Torah reading may not be done that way.

Usually the following practical difference is cited: if the commandment is communal, then an individual may leave the reading in the middle and leave the public to fulfill its obligation. In that case the public—the addressee of the commandment—will fulfill the obligation resting on it, while he, as an individual, is not himself obligated. Therefore there would be no problem if he left and did not hear the reading at all. With Megillah, at least according to Nahmanides, this is of course impossible.

But in light of the picture we have drawn thus far, it seems that even with public Torah reading this would be forbidden. True, the commandment is imposed on the public, but each individual is responsible for ensuring that the public fulfills its obligation. Therefore he must remain and participate in the Torah reading, even though the commandment itself rests on the public. Put differently: the individual who remains for the reading does not thereby fulfill a commandment, but if he leaves he nullifies the commandment. That is exactly what we saw above with regard to Hakhel.

And indeed this may be seen in the Mishnah Berurah. In section 135 it discusses bringing a Torah scroll to someone who does not have access to one, such as a prisoner, and there it explains that the obligation of reading does not rest on the individual when there is no quorum of ten. On the other hand, in the laws of Torah reading, in Bi’ur Halakhah it challenges Bahag, who explains that if there are ten in the synagogue one may turn his face away. Bi’ur Halakhah objects: where, then, did that person fulfill his own obligation? That is, it assumes that each individual too has an obligation in Torah reading. At first glance there is a contradiction between the two sources. In one place it assumes there is an obligation on each individual, and in another place it assumes that the obligation rests on the public.

It is customary to explain his view as Nahmanides does: the obligation of Torah reading rests on each individual, but it must be done in a quorum of ten. But perhaps the explanation is different: when there is a public reading, responsibility rests on each individual; when there is no public, then the individual truly has no obligation to read.

Hakhel is like public 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 obligation is communal, while responsibility for it rests on each individual.

Commandments and Collectives

This topic leads us to the question of the ontological status of the public. Is it nothing more than an aggregate of individuals, or does it possess an independent status? We dealt with this in our essays on Ki-Tissa and Beha’alotekha, 5767. See also M. Avraham’s article in Tzohar 14, and note 15 in his book Two Carts and a Balloon.

Footnotes