Lesson 16: Appendix — The Seven Noahide Commandments

From the book Roots Outstretched by Rabbi Michael Avraham. Translated from Hebrew using gpt-5.4 (reasoning_effort=high, batch API).

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With God’s help.

Appendix: The Seven Commandments of the Sons of Noah

Introduction

This essay is an appendix to our essay on the roots. Here we will discuss a remark made by Nahmanides at the end of his comments on the fourteenth root — and perhaps at the end of his critiques of the roots in general — concerning the enumeration of the Noahide commandments. As we shall see, the discussion touches on the meaning of mitzvot (commandments) in general, as distinct from merely good deeds, and especially on the difference between the Noahide commandments and our own commandments.

A. An Initial Examination of Nahmanides

Preliminary Note: The Seven Noahide Commandments

As is well known, the Sages teach that there are seven commandments by which the Sons of Noah are bound. Maimonides summarizes this in Mishneh Torah, Laws of Kings 9:1:

Adam, the first human being, was commanded concerning six matters: idolatry, blasphemy, bloodshed, sexual immorality, theft, and laws. Although all of these are a tradition in our hands from Moses our teacher, and reason inclines toward them, it appears from the words of the Torah that he was commanded regarding these. To Noah there was added the prohibition of a limb from a living animal, as it is said: “But flesh with its life, which is its blood, you shall not eat.” Thus there are seven commandments.

And so matters stood throughout the world until Abraham. Abraham came and was commanded, beyond these, concerning circumcision, and he instituted the morning prayer. Isaac tithed and added another prayer toward evening. Jacob added the prohibition of the sciatic nerve and instituted the evening prayer. In Egypt, Amram was commanded additional commandments, until Moses our teacher came and the Torah was completed through him.

Maimonides is describing here a historical process in the transmission of commandments in the world. Adam received six commandments, Noah received one more, and thus the seven commandments by which gentiles are bound until this day came into being. After that, further commandments were gradually added, binding only upon us.

Now, we find that the medieval authorities disagreed about the scope and definition of these commandments. For example, regarding theft and laws — that is, the establishment of a judicial system — many understand Maimonides to hold that Noahides may shape these systems as they wish. They are not bound by our Shulchan Arukh; the commandment placed upon them is only to ensure social order and moral justice. See the responsum of the Rema, no. 10, and the Hazon Ish, Bava Kamma 10:1.¹

This means that in this area there is a major difference between them and us, for among us there are many commandments dealing with civil law — such as the laws of evidence, bailees, torts, and the like. For Israel, the Torah does not suffice with the general principle that one must enact a just legal system and establish institutions to enforce it. It also enters into the content of the commandments that are to be included in that civil law.

Nahmanides, however, disagrees with Maimonides on this point. In his view, the civil legal system of the Sons of Noah — that is, monetary law — is exactly the same halakha (Jewish law) that binds Israel. In other words, Noahide law includes the entire Hoshen Mishpat section of the Shulchan Arukh and its commentaries. He writes this in his commentary to the Torah on the episode of Shechem and the sons of Jacob, Genesis 34:13:

Many ask: how could the righteous sons of Jacob do such a thing, to shed innocent blood? The Master answered in Sefer Shoftim — Maimonides, Laws of Kings 9:14 — and said that the Sons of Noah were commanded concerning laws, meaning that they must seat judges in every province to judge their six commandments. A Son of Noah who transgresses one of them is executed by the sword. If someone saw another transgress one of them and did not judge him to death, then that observer is executed by the sword. For this reason all the people of Shechem became liable to death, since Shechem committed theft, and they saw and knew and did not judge him.

These words are not correct in my eyes. For if so, our patriarch Jacob should have been the first to act and would have been justified in killing them. And if he feared them, why did he grow angry at his sons and curse their anger many years later, punishing them and dividing and scattering them? Were they not justified, having performed a commandment, trusted in God, and been saved by Him?

In my opinion, the laws counted among the seven commandments of the Sons of Noah are not only the appointment of judges in every province. Rather, He commanded them regarding the laws of theft, fraud, oppression, the wages of a hired laborer, the laws of bailees, rape and seduction, the primary categories of damages, bodily injury to another, the laws of lender and borrower, the laws of buying and selling, and the like — just as Israel was commanded concerning laws. And they are executed for them if one steals, oppresses, rapes, seduces another man’s daughter, burns his stack, injures him, and the like. Included within this commandment is also that they appoint judges in every city, like Israel. But if they do not do so, they are not executed, for this is their positive commandment. The Sages said only, in Babylonian Talmud, Sanhedrin 57a, that for them “their warning is their death penalty,” and “warning” can only refer to a negative prohibition. So too is the method of the Gemara in Sanhedrin 59b.

Thus, on Nahmanides’ view, Noahides are obligated in all the details of the laws that bind us.²

As for the prohibition of idolatry, Maimonides writes there, in Laws of Kings 9:2:

A Son of Noah who worships idols is liable, provided he worships in its normal manner. For any idol for which a Jewish court executes, a Son of Noah is executed as well. And whatever a Jewish court does not execute for, a Son of Noah is not executed for. Even though he is not executed, everything is still forbidden, and we do not permit him to erect a standing stone, plant an Asherah, or make forms and the like for adornment.

That is, regarding idolatry, their law is the same as ours.

What about sexual prohibitions? Here Maimonides writes, in Laws of Kings 9:5:

Six forbidden sexual unions are prohibited to the Sons of Noah: one’s mother, one’s father’s wife, a married woman, one’s maternal sister, a male, and an animal. As it is said: “Therefore shall a man leave his father” — this refers to his father’s wife; “and his mother” — literally; “and cleave to his wife” — and not to another man’s wife; “to his wife” — and not to a male; “and they shall be one flesh” — excluding cattle, wild beasts, and birds, for he and they are not one flesh. And it is said: “She is my sister, the daughter of my father, but not the daughter of my mother, and she became my wife.”

Thus there is a difference between Noahides and Israelites regarding sexual prohibitions. For example, among Israelites even one’s paternal sister is forbidden, whereas among Noahides there are no sexual prohibitions generated by paternal kinship at all, and so forth.

Nahmanides’ Question

As noted, at the end of his remarks on the final root, Nahmanides raises an additional point, one that apparently does not find expression in Maimonides’ roots. These are his words:

I still have a doubt and a difficulty from what they said in Babylonian Talmud, Sanhedrin 56a: “The Sons of Noah were commanded seven commandments.” Yet they counted the whole matter of sexual prohibitions as one commandment, and all laws as one commandment, and the entire matter of idolatry as one commandment. And in these they are equal to Israel, for they are liable in all that a Jewish court executes for.

Up to this point, Nahmanides is introducing the claim that in the seven Noahide commandments there is identity between Noahides and Israel. Even this claim itself is not agreed upon. For example, we saw that with respect to laws, Maimonides holds that Noahides may establish whatever legal system they deem appropriate. Nahmanides, by contrast, holds that the Noahide civil legal system is exactly the same halakhic system that binds Israel. The same applies to idolatry: Nahmanides states here that the law of idolatry for Noahides is identical to that of Israel, just as we saw in Maimonides above. Regarding sexual prohibitions, however, already at the level of the Gemara there are clear differences between Noahides and Israelites, and it is difficult to believe that Nahmanides disputes that. Indeed, later in his remarks he cites Maimonides’ language there as well. It therefore seems that Nahmanides means to point only to a partial, not complete, similarity — apart from the topic of idolatry.

Why is this preface necessary? Presumably because it strengthens the question he is about to ask. Nahmanides asks why, among Noahides, all the sexual prohibitions are counted as one commandment, and likewise idolatry and laws, whereas in our case each of these contains dozens of separate commandments. To sharpen the problem, he first points out that one cannot explain this by saying that only one sexual prohibition applies to Noahides, or that there is only one prohibition of idolatry, since their law is identical to ours. And even in the area of sexual prohibitions, where the laws are not fully identical, at least that portion of the prohibitions that applies to them as well should have been enumerated in detail just as it is for us. The preface is therefore meant to sharpen the difficulty: why is the enumeration of Noahide commandments arranged differently from ours?

This becomes particularly acute with regard to laws. According to Maimonides, it is fully understandable why Noahides have only one commandment of laws. They are not commanded in specific laws, but in the establishment of a system that will produce social order and justice. This is one single command, while its implementation is left to them. It is therefore obvious why among Noahides there is no reason to spell out the laws as many distinct commandments. Among Israelites, by contrast, the matter is itemized because the Torah commands us not only in the general imperative of justice and order, but also enters the specific content of the laws — and below we will consider the significance of this.

According to Nahmanides, however, the difficulty indeed intensifies: why is the level of detail absent among Noahides? If the scope of the commandment is the same, why is it counted with them as one commandment and in our case as many dozens of commandments?

The Explanation: The Enumeration of the Commandments and the Character of the Command

Later in his remarks, Nahmanides offers the following resolution to the difficulty he raised:

What appears correct to say is that the Sons of Noah were warned regarding their commandments in general terms, not in particulars. That is to say, concerning sexual prohibitions, for example, it was said to them in a manner such as: “None of you shall approach any close flesh,” meaning one’s mother, one’s maternal sister, another man’s wife, and so on; and for that reason all of them are counted as one commandment. But with Israel, where Scripture multiplied prohibitions and restraints, since it warned about each one by a separate prohibition, many commandments are counted.

Nahmanides explains that the Sons of Noah were warned about their commandments in a general formulation and not in detail, and therefore they are counted as one commandment. In other words, he ties the difference in the enumeration of the commandments to a difference in the form of the command: we were commanded in detail, whereas they were commanded in general terms.

Two comments should be made about this:

1. How does he know that the Sons of Noah were commanded only in general terms and not in particulars? The verse he cites, “None of you shall approach any close flesh,” was said to Israel, not to the Sons of Noah. It seems that he is only hypothesizing that the command to Noahides — which does not appear explicitly in the Torah — was phrased in a similar general style. In any case, it is clear that he does not mean a verse in the Torah addressed to Noahides, since no such verse exists. In fact, the source of the seven commandments is itself disputed; see Encyclopedia Talmudit, entry “Ben Noah.” His intention is rather the command spoken by the Holy One to Adam and Noah when He commanded them these seven commandments, regarding whose precise form we have no direct testimony.
2. It is not clear in what way this actually explains the question. If we did not understand why the commandments are counted together, we are now told that it is because of the form and wording of the command. But then the question simply shifts: why is there such a difference in the wording of the commands to Noahides and to Israel? So Nahmanides still has not answered the fundamental difficulty he himself raised.

Continuation of Nahmanides’ Remarks

Nahmanides continues by citing a midrash (rabbinic interpretive teaching) of the Sages regarding the commandments we received at Marah:

Likewise, what they said there: “Israel was commanded ten commandments at Marah — the seven that were commanded to the Sons of Noah, and three were added to them: Sabbath, honoring father and mother, and laws”³ — as it is said, “There He set for them statute and ordinance.” This means that He warned them with the warnings that were said to the Sons of Noah, as warnings in themselves.

His probable intent is to raise a further difficulty: why do we also find among Israel that these seven commandments are included together and not itemized? This midrash seems to imply that at Marah we received ten commandments, and at Sinai another 603. But when we look at the commandments received at Marah, they in fact contain much more than ten, for the seven Noahide commandments branch in our case into many separate commandments.

He explains it as follows:

I mean to say that He grouped them together for them until they came to Mount Sinai, where the commandments were explained in their details and fine points. At Marah He warned them to rest on the Sabbath as one positive commandment. But concerning laws, the Mekhilta says: “‘Ordinance’ — these are the laws of rape, fines, and bodily injury.” Yet all of these were counted as one, and there is no reason to include them all in one unit other than that a single name encompasses them — namely, justice.

His words here are not entirely clear. It seems that he means that at Marah these commandments were not yet itemized even for Israel. There we received them in a more general form, and only at the revelation at Sinai were they given in detail. In other words, at Sinai not only were new commandments added beyond what was given at Marah. At Sinai the commands we had already received at Marah were repeated as well, but in a more detailed formulation — unlike the way they were given to Noahides. Thus, at Marah we received the Noahide commandments, and we received them in the same more general formulation in which they had been given to Noahides. It seems that this applies also to the three additional commandments given at Marah.

It is not entirely clear from Nahmanides’ language whether he means that we were commanded only to judge justly, and nothing more — like Maimonides’ view regarding Noahides — or whether he means that we were already obligated in all the details later given at Sinai, and only the wording of the command was general, as Nahmanides himself had previously suggested regarding Noahides.

The continuation of his remarks indicates that he means the second possibility:

What seems closest to reason in this is that He, blessed and exalted, commanded us to judge justly, as it is said at the beginning of the section of judges: “They shall judge the people with righteous judgment.” And justice means doing, in every matter that arises between human beings, as He, may He be exalted, commanded us; and we do not concern ourselves with separate passages and distinctions of wording in anything that does not contain an absolute command to do thus or thus, or an absolute prohibition to refrain from a particular act. If so, all the laws that enter the count are one commandment.

He explains that, just as with Noahides, at Marah Israel too was commanded to judge justly. What does “justly” mean? It means according to all the commandments with all their details. That is, our situation then was like that of Noahides: the formulation of the command was general, but the halakhic obligations were what we know today. The whole body of legal obligations included under laws is merely a detailing of the obligation to judge justly, and therefore it is counted as one commandment. This argument seems to be based on the seventh root, which states that a detail of some commandment is not counted separately in the enumeration of the commandments.

The question is what changed after the revelation at Sinai. Did only the formulation change, or did the essence change as well? Does that whole body now contain something more than a detailing of the concept of justice? At first glance, it seems that these commandments are no longer merely details of the concept of justice, but have aims beyond achieving justice and social order. We will return to this below.

The Sefer Ha-Hinukh: Why Is There Detailed Enumeration for Israel?

As noted, Nahmanides does not explain why the commands to Noahides were stated in general language while among Israel they were itemized. One might initially have said that this was only a desire to multiply Torah and commandments for Israel.

In Sefer Ha-Hinukh, commandment 416, in the course of discussing the prohibition “You shall not covet,” he writes:

It applies everywhere and at all times, to men and to women. All the peoples of the world are also obligated in it, because it is an offshoot of the commandment of theft, which is one of the seven commandments with which all the peoples of the world were commanded.

The Hinukh explains that the prohibition of coveting also binds Noahides, but it does not appear separately in the list of seven because it is included within theft. He then continues and discusses the rest of the Noahide commandments:

Do not be mistaken, my son, because of the familiar count of the seven Noahide commandments mentioned in the Talmud, Babylonian Talmud, Sanhedrin 56b. In truth, those seven are general categories, but they contain many details. Thus, the prohibition of sexual relations is counted for them generally as one commandment, yet it contains details, such as the prohibition of one’s mother, one’s maternal sister, a married woman, one’s father’s wife, male intercourse, and bestiality, as in Sanhedrin 58b. Likewise the entire matter of idolatry is counted for them as one commandment, yet it contains many details, for in this they are equal to Israel, in that they are liable for everything for which a Jewish court executes, as in Sanhedrin 56b. So too, once they were warned in the matter of theft, they were warned as well in all its extensions. I do not mean to say that they are, like us, warned about each of these by a separate prohibition, for they were not warned in the details of separate prohibitions as Israel was,⁴ but were warned generally in those seven. It is as though Scripture had said to them, by way of example: “None of you shall approach any close flesh” — meaning mother and sister and all the rest; and likewise regarding idolatry in a general way; and so too regarding theft, as though it had said to them: Do not steal, but keep as far from it as possible, and included in that distancing is not to covet.

But with Israel the matter is not so, for the Omnipresent wished to grant them merit and therefore gave them more commandments than these. And even in those matters in which we too were commanded — and they as well — we had the merit that our command concerning them came as separate positive commandments and negative prohibitions. All this is merit and good for our souls, for whoever performs one commandment acquires one advocate for himself.

His language suggests that the itemization among Israel is because the Holy One wished to grant us merit through many commandments. This clearly relates to the teaching of Rabbi Hanania ben Akashya at the end of tractate Makkot:

Rabbi Hanania ben Akashya says: The Holy One, blessed be He, wished to grant merit to Israel; therefore He multiplied for them Torah and commandments, as it is said: “The Lord desired, for the sake of His righteousness, to magnify the Torah and make it glorious.”

However, from the context there it is clear that the intent is different. The Holy One commanded us regarding repulsive creeping things, even though a person is naturally disgusted by them. Such a command would seem unnecessary, and the conclusion there is that it was given in order to reward us for what we would have done anyway. See Rashi there and elsewhere.⁵

Extending that principle to our issue seems difficult on its face. If Noahides are indeed commanded in the same commandments as we are, then the classification and arrangement of the enumeration changes nothing. When a Noahide pays a worker on time or refrains from overreaching another person, he receives reward exactly as an Israelite does. Whether those prohibitions are included within theft or counted as independent commandments changes nothing about the reward or the significance of those acts. Reward depends on the number of acts, not on the number of formal commandments. Does someone who lays tefillin a hundred times receive less reward than someone who performs a hundred different commandments, each once?

We must conclude that the Hinukh is proceeding here consistently with his own view. We saw that he understands the difference between Israel and Noahides regarding laws to be one of content, not only of the form of the command. In his view, among Noahides the laws are only a general command to judge justly and create institutions of enforcement. If so, for him this is not merely a question of how the commandments are counted and organized, but of a substantive issue. He holds that Noahides truly have fewer commandments, and therefore less reward. When they refrain from fraud, they are not performing a commandment not to defraud — or refraining from a prohibition — but at most keeping one of their own laws, if such a law exists at all, together with the general command to observe the legal order they established. Among Israel, by contrast, the Holy One multiplies Torah and commandments in order to increase their reward, and so they fulfill both the general command and each one of the specific commands.

The Hinukh is thus offering an explanation for the number of commandments themselves, not for the technical question of how the enumeration is arranged, which is Nahmanides’ concern. The Hinukh asks why they were given fewer commandments, not why the same number of obligations is organized differently among them than among us.

His explanation rests on his assumption that there is a difference in the number of commandments, and not only in their arrangement. As we have seen, at least regarding laws — and the prohibition of theft, which is the topic treated by the Hinukh, belongs to that category — this is indeed Maimonides’ view. As is often the case, the author of the Hinukh follows Maimonides here. One might perhaps connect this to the issue discussed in the fourteenth root, namely punishments; see our essay there as well. The punishment of the Sons of Noah for all the offenses against which they are warned is death — see Maimonides, Laws of Kings chapters 9-10. Among Israel, by contrast, there are different punishments for different transgressions, and some transgressions carry no punishment at all. So in this respect too there is a difference between Noahides and Israel. Here as well, the commandments seem more like one body composed of details, and less like a collection of separate commandments, as among Israel. A Son of Noah who commits any offense has violated the same principle, and therefore his punishment is always the same.

All of this, however, is according to Maimonides and the Hinukh. According to Nahmanides, we saw that the content of the obligations of Noahides is exactly the same as that of Israel, at least regarding laws. If so, the difference between Israel and Noahides lies only in the form of the commands — at least regarding laws, the sexual prohibitions that belong with them, and idolatry: for Noahides they were given in general form, while for Israel they were given in detail. We are therefore forced back to the question: according to Nahmanides, why does the Holy One command us and Noahides in different forms? If the content is identical, what significance can the different form of the command have?

B. The Historical Development of the Relation Between Reason and Command

Introduction

We have seen that Nahmanides distinguishes between the enumeration of the commandments among Noahides, which is done in a general manner, and among Israel, where it is done in detail. This distinction evokes another difference between Noahides and Israel — namely, providence. Many writers have maintained that the providence of the Holy One over Noahides is general providence over each nation or society as a whole, whereas over Israel it is particular providence. This is parallel to our present distinction: among Noahides the commandments appear in general form, whereas among Israel they are broken down and counted as distinct particulars.

At first glance, however, this parallel appears only external, for it is difficult to see any connection between the mode of divine providence and the form of command in the realm of commandments. Below we will try to show that there is an essential connection between these two phenomena. In the course of this chapter we will examine the historical development of the relation between reason and command, and its connection to the distinction between Israel and Noahides.

The Ramhal’s View

Rabbi Moshe Hayyim Luzzatto, the Ramhal, in his book The Way of God, part 2, chapter 4, describes the development of the difference between Israel and the nations of the world as descendants of Adam. At the end of that chapter there are two paragraphs: one discusses the differences in providence over Israel and the nations, and the other the differences in the essence of their commandments. In paragraph 8 he writes:

When the world was thus divided, the Holy One, blessed be He, appointed seventy officers from among the angelic orders to be in charge of these nations, to watch over them and supervise their affairs. He Himself, blessed be His name, would supervise them only through general providence, while the prince would supervise them in particular, by the power that the Master, blessed be He, entrusted to him for this purpose. Of this it is said: “You alone have I known from all families האדמה.”

Yet this does not mean, God forbid, that His blessed knowledge of their particulars is absent. All is foreseen and revealed before Him forever. Rather, the point is that He does not supervise and bestow influence upon their particulars.

Immediately afterward, in paragraph 9, he writes:

But upon the deeds of Israel the Master, blessed be He, made to depend the repair and elevation of all creation, as we have said, and He made His governance, as it were, subservient to their actions — to shine and bestow, or, God forbid, to hide and withdraw, according to their deeds.

The deeds of the nations, however, add nothing and subtract nothing from the reality of creation or from the revelation or concealment of His blessed name. Rather, they draw benefit or loss only to themselves, whether in body or soul, and they strengthen or weaken the power of their prince.

It thus seems that the Ramhal links the idea of general providence over the nations as opposed to particular providence over Israel with a claim about the essence of their commandments: among Israel, the commandments act upon reality and reveal the glory of God in the world, whereas the commandments of the Sons of Noah are intended only for their own benefit — or to prevent their own loss. It appears that the Ramhal wants thereby to explain the meaning of the difference in the modes of providence as well.

The purpose of the Sons of Noah in the world is to secure their own repair — that is, to build an orderly and morally sound human society. Their commandments are intended only for that end, and all of them are rational commandments whose subject is the repair of society. We should recall that Maimonides himself remarks at the beginning of chapter 9 of Laws of Kings — as cited above — concerning the Noahide commandments: “reason inclines toward them.”

The commandments of Israel, by contrast, are intended to reveal the light of God in the world — that is, to act upon reality, for good or for ill, even in respects that do not concern Israel themselves. One could say that their actions affect even the Holy One Himself, or at least the mode and form of His manifestation in the world. The background to this distinction, in the Ramhal’s presentation, lies in the description at the beginning of the chapter, where he explains how Israel became the root, while the Sons of Noah remained branches.

The conclusion is that among Israel, even the commandments designed to repair social structure are a foundation and not an end in themselves. Israel’s goal is the repair of the world under the sovereignty of God. Social repair is merely the basis upon which that can be done. The commandments of Israel are religious commandments, even those that on the surface appear to be rational, human, moral norms. That is, even when Israel is commanded in the same commandments as Noahides, there remains a difference in the meaning of the commandments — as will be explained further below.

This may also explain the death penalty imposed upon Noahides for all their sins. On the one hand, as we have seen, the punishments are not differentiated as they are among Israel. On the other hand, there is an additional difference: the punishment is always death. It seems that each Noahide is a “bolt” within the larger collective, and one who does not perform his part in contributing to a worthy social structure is superfluous, and therefore his punishment is death. This picture rests on the idea that the individual has no role in himself beyond his place within the role of the collective. Among Israel, even when someone sins, there is usually room to repair him and enable him to fulfill his unique, irreplaceable task properly, and therefore he is not punished by death except in extreme cases.

In light of this distinction, we may also understand the difference between divine providence over the nations and over Israel. Providence over the nations is directed only toward the collective, because only the collective has a role — to live in a proper and ordered fashion. The individual is no more than a bolt within the collective. There is therefore no point in particular providence over the individual among the nations, since he has no specific role beyond being an organ included within the whole.

Among Israel, by contrast, social repair is only the foundation upon which the individual — and the collective as well — begins to fulfill his special role. Each individual, like the collective, has a role according to his gifts and tendencies: to influence the manifestation of God in the world. Therefore there is particular providence over each individual, arising from the fact that each has a task of his own.

This, then, is the connection to which the Ramhal points between the character of the commandments of the nations and of Israel, and the different modes of providence over them. We can now continue and try to explain the relation between all this and the different ways in which the Noahide commandments and the commandments of Israel are counted.

Command and Reason

We saw above that the commandments of the Sons of Noah are apparently rational commandments, as Maimonides also writes at the beginning of chapter 9 of Laws of Kings. Rabbi Nissim Gaon, in his introduction to the Talmud, printed in most editions at the beginning of tractate Berakhot, asks why it is customary to speak of seven Noahide commandments when the Talmud in tractate Sanhedrin mentions many more obligations that bind them. His answer is:

For all commandments that depend on reason and the understanding of the heart already bind everyone from the day God created man upon the earth — him and his descendants after him for all generations. And the commandments known through received tradition…

That is, he argues that all the additional commandments are binding by reason, and whatever is binding by reason has always bound every human being, even without an explicit command.⁶ As stated, even the seven conventional Noahide commandments are rational, and apparently these seven are simply cases of a matter that reason would have produced but Scripture nevertheless took the trouble to write down explicitly. Perhaps the reason is that these are the elementary basis of moral and human conduct, and therefore the Torah wanted to establish them without leaving room for doubt, speculation, disagreement, or argument.

Precisely against this background it is somewhat surprising to find, one halakha earlier in Maimonides — at the end of chapter 8 there — the following ruling:

Anyone who accepts the seven commandments and is careful to observe them is among the pious of the nations of the world and has a share in the world to come. This is so only if he accepts them and observes them because the Holy One, blessed be He, commanded them in the Torah and informed us through Moses our teacher that the Sons of Noah had already been commanded regarding them. But if he observes them because of rational conviction, he is not a resident alien and is not among the pious of the nations of the world, but only among their wise men.⁷

From this ruling of Maimonides it would appear that a Noahide must observe his commandments not because of rational judgment, but specifically because of command and as service of God. This seems, at first glance, to contradict our suggestion above that the Noahide commandments are rational norms whose purpose is that human beings live properly.

It seems, however, that Maimonides’ words here specifically support our approach. First we must ask: why does Maimonides write this only regarding Noahides and not regarding Israel? If an Israelite performs commandments only because of rational judgment, is he then counted among the pious of Israel, or is he too merely among their wise? In the responsum of Oneg Yom Tov, no. 19 — and see also the references collected in the Frankel edition from the responsa Sho’el U-Meshiv and others — it is taken as obvious that the same is true of Israel as well, and this is indeed obvious logically.⁸

This also emerges from Maimonides’ Commentary to the Mishnah, Hullin 7:6. There Maimonides repeats a claim very similar to what he wrote at the end of chapter 8 of Laws of Kings, but this time with regard to Jews. He is discussing the Talmudic sugya in Hullin concerning commandments that were given to the Sons of Noah and repeated at Sinai, to be mentioned below:

Fix in your mind this great principle stated in this mishnah — namely, “It was prohibited from Sinai.” You must know that everything from which we abstain today, or everything we do today, we do only because of the command of God through Moses, not because God commanded it to earlier prophets. For example, we do not eat a limb from a living animal because God forbade the Sons of Noah to eat a limb from a living animal, but because Moses forbade it to us through what he was commanded at Sinai, namely that the prohibition of a limb from a living animal remain in force. Likewise, we do not circumcise because Abraham circumcised himself and the members of his household, but because God commanded us through Moses to circumcise as Abraham, peace be upon him, circumcised. Likewise regarding the sciatic nerve: we do not follow the prohibition of Jacob our father, but the command of Moses our teacher. Do you not see that they said: six hundred and thirteen commandments were said to Moses at Sinai, and all these are included among those commandments.

We see that Maimonides requires every Jew to observe commandments only because we were commanded at Sinai. True, the contrast he rejects there is not observance on the basis of reason, but observance because earlier prophets had been commanded before the giving of the Torah. Still, the underlying principle is extremely similar.

The conclusion, therefore, is that this principle applies to Jews as well. If so, why did Maimonides mention it only with respect to Noahides and the resident alien, and not with respect to Israel?

The likely explanation is that precisely with the Noahide commandments, since they are rational commandments, the possibility naturally arises that one might observe them because of rational conviction. It is difficult to imagine an Israelite observing a commandment like redeeming a firstborn donkey or laying tefillin because his reason compelled him to do so. Thus the rule Maimonides states is true of every person, Jew and gentile alike. He mentions it specifically regarding a Son of Noah only because Noahide commandments are rational.

Indeed, as we saw in Rabbi Nissim Gaon’s introduction, all commandments grounded in reason, beyond the conventional seven, bind Noahides as well. The commandments that bind only Israel are traditional, revelatory commandments — the category of statutes. Therefore the possibility of observing commandments on the basis of rational judgment arises only with respect to Noahide commandments, which constitute the whole domain of rational commandments.

The Proper Motivation for Commandment Observance

So far we have understood Maimonides’ initial assumption: that a person might observe commandments because of rational judgment. This possibility pertains only to commandments grounded in reason, namely those that bind Noahides as well. With the rest of the commandments, such a possibility does not really arise.

But now the opposite question arises: if these commandments are indeed rational and naturally demanded by reason, why must they be fulfilled specifically because of command? In this context it is fitting to cite Maimonides in chapter 6 of Eight Chapters, where he points to a contradiction between the philosophers and the sayings of the Sages. On the one hand:

The philosophers said that one who governs his soul, although he performs good and noble deeds, still desires evil actions and longs for them; he subdues his inclination, and his natural powers, desires, and character oppose what he does. He does the good while suffering in doing it and being harmed by it. But the saintly person is one whose actions follow what his desire and character themselves prompt him toward, so that he does the good while desiring and longing for it.

And the philosophers agree that the saintly person is more complete and more important than one who merely governs his soul. They add, however, that in many matters the self-governing person resembles the saintly person, though his level is necessarily lower, since he desires evil action — even though he does not do it — and the desire for evil is itself a defect in the soul.

On the other hand, Maimonides writes there:

But when we examined the words of the Sages on this matter, we found that one who desires transgressions and longs for them is more important and more complete than one who does not desire them and feels no pain in refraining from them. They even said that the greater and more complete a person is, the greater his desire for transgressions and the greater his pain in abstaining from them. They brought as proof: “Whoever is greater than his fellow, his inclination is greater than his.” Nor was this enough for them: they said that the reward of one who governs his soul is greater in proportion to the pain he experiences in mastering himself, as they said: “According to the pain is the reward.” More than that, they instructed that a person should desire transgressions, and warned against saying, “By my nature I would not desire this transgression even if the Torah had not forbidden it.” Thus they said: “Rabban Shimon ben Gamliel says: A person should not say, ‘I cannot bear to eat meat with milk; I cannot bear to wear wool and linen together; I cannot bear to have forbidden relations.’ Rather, he should say, ‘I can, but what can I do? My Father in heaven has decreed it upon me.'”

So there is an apparent contradiction: is it better to be one who rules his spirit, having an evil inclination which he overcomes, or one whose character is already perfected, so that he no longer desires evil?

Maimonides resolves the contradiction as follows:

At first glance, the plain meaning of these two teachings makes them seem to contradict one another. But that is not the case. Both are true, and there is no disagreement at all. The evils about which the philosophers said that one who does not desire them is better than one who desires them and restrains himself are matters recognized by all human beings as evil: bloodshed, theft, robbery, fraud, harming one who has not harmed you, repaying evil to one who has benefited you, dishonoring parents, and the like. These are the commandments concerning which the Sages said that, even had they not been written, they ought to have been written. Some of our later sages, afflicted with the disease of the dialecticians, called them “rational commandments.” There is no doubt that a soul that longs for any of these things is deficient, and that a noble soul will not desire any of these evils at all, nor be pained by abstaining from them. But the matters about which the Sages said that one who overcomes his inclination is more important and receives greater reward are the traditional commandments. This is true, because without the Torah they would not be evil at all. Therefore they said that a person should let his soul desire them, and that nothing should restrain him from them except the Torah.

The upshot of Maimonides’ words is that rational commandments — which we earlier identified with the commandments that bind Noahides — are best fulfilled from inner identification, and not by someone who acts only under compulsion.

At first glance this seems to contradict what we saw above, namely that Maimonides says that even such commandments must be fulfilled not because of reason, but only because of command. But there is no contradiction here. True, the fulfillment of these commandments should be because of command and not because of reason. But in addition to that, the person who internalizes them in his soul and creates inner identification with them is preferable to one who fulfills them merely because of command while remaining inwardly unaligned with them.

In other words, in Eight Chapters Maimonides is not dealing with the question why we fulfill commandments, because that certainly derives only from command. He is discussing only whether, alongside that, one should cultivate inner identification or leave the evil inclination intact.

A good illustration is found in the introduction to Aglei Tal. He mentions those who mistakenly think that there is value in not enjoying the commandment of Torah study, since one who studies with enjoyment is supposedly studying not for its own sake. He explains that this is a mistake — one proof being the blessing over the Torah that we recite each morning: “Make the words of Your Torah sweet in our mouths.” In his view, the enjoyment is part of the commandment itself. Yet he also states that if the motivation to study is the enjoyment, then the learning is indeed not for its own sake. That is, there should be enjoyment, but the motivation for the learning should not be the enjoyment; it should be the command. That is exactly our point here.

To summarize: the difference between rational commandments and traditional commandments does not lie in the motivation for fulfilling them. In both kinds, the basic motivation must be the command. The difference lies in the question of internalization and emotional identification. With rational commandments there is value in developing inner identification with the commandment, whereas with traditional commandments there is specifically value in leaving the natural feeling — and the evil inclination — intact, and overcoming it. In any event, an act counts as fulfillment of a commandment only when it is done from submission to command, and not from any other motivation.⁹

The History and Essence of the Concept of Command

We can now return and understand the process by which commandments were given in the world, as described in the above words of Maimonides. We will see that it is connected to the historical development of the concept of command itself.

At the dawn of history, the Holy One commanded the entire world in seven commandments — let us ignore for the sake of this discussion the distinction between the first six and the seventh, which was given to Noah. These commandments bind because they are grounded in moral reason and are necessary for the existence of a proper and just society. The command of these seven was formulated generally, because no special significance attached to each one individually. All of them are different expressions of one single obligation: to maintain a proper society. At this stage, the people of Israel are bound by all these commandments just as Noahides are, as part of them.¹⁰

It may be that at that stage there was no need at all to observe them because the Holy One had commanded them, contrary to the later formulation of Maimonides at the end of chapter 8 of Laws of Kings. Our obligation in them was because of reason and rational judgment, even without command.

Afterward the Holy One revealed Himself to us at Marah, where He gave us three additional commandments. Here Jewish uniqueness in commandments begins to emerge. But Nahmanides explains that these three too were given in a general formulation, like the seven earlier commandments given to Noahides. One should remember that the midrash counts laws as one of these as well. Apparently these three too were still given to us as Noahides, except that they were required as preparation for receiving the Torah. These three are then repeated at Sinai, which raises the question why it was necessary to give them at Marah and then again at Sinai. Presumably only at Sinai did they receive their present character. At Marah they still had the character of Noahide commandments.

At the revelation at Sinai we are commanded anew in the entire Torah. As noted, there is there a repetition even of the ten commandments already given previously. The purpose of the repetition is to detail them into the full count of 613. But, as we have seen, the detailing testifies not only to form but also to essence. From this point on, these commandments are to be fulfilled only because they were commanded at Sinai. Indeed, Maimonides’ language there is:

This is so only if he accepts them and observes them because the Holy One, blessed be He, commanded them in the Torah and informed us through Moses our teacher that the Sons of Noah had previously been commanded concerning them.

That is, the reason for observing them is the communication to Moses at Sinai, not the command originally given to Adam. This renewed command has significance even for Noahides, for now they too are obligated to observe the commandments because of the command at Sinai and not because of the command given to Adam. The revelation at Sinai thus introduced the dimension of observance because of command, even with respect to commandments already given earlier.

What, then, remains the difference between Israel and Noahides after the giving of the Torah? At first glance, at least with respect to the seven commandments that bind them as they bind us, there would seem to be no difference. Now all of us are bound in them because of the command at Sinai. The question therefore returns: why are they counted differently? The command given to Adam is no longer relevant.

It appears that there is another difference, namely the one described above by the Ramhal. Noahides are commanded in these commandments as an instrument for a proper society. True, that is not enough as a motivation for observing them; they too must observe them because of command. But the purpose of their commandments remains only the repair of their own society. Their commandment observance has no effect on the world beyond them — that is, on the manifestation of God in the world and the governance of His world. Among Israel, by contrast, there is such an effect, and therefore their commandments are counted in detail. And since the difference in the enumeration exists even with respect to those same seven Noahide commandments as they appear in our case, we are forced to conclude that this applies to these commandments as well. Thus even the commandments that seem, on the face of it, to be aimed merely at social repair have a religious dimension. They concern not only the repair of society but also the repair of the world and the manifestation of God in it.

This difference between Israel and Noahides was created at the revelation at Sinai. There the dimension of command as the basis of obligation and as the proper motivation for observance was renewed, in contrast to rational judgment. In addition, the spiritual dimension of these commandments was renewed there. They are no longer only an instrument of social repair, but fully religious commandments, like redeeming a firstborn donkey or laying tefillin. That is the primary meaning of the revelation at Sinai.

Noahides are now meant to observe these commandments because of the command, but the commandments still do not have the content of “mitzvah” in the full religious sense. They remain moral instruments for social repair. Of course, the repair of society is itself a religious obligation — and that is what was renewed at Sinai. But among Israel there was renewed, in addition, a further spiritual dimension even in these commandments: the repair of the world under the sovereignty of God. That is the deeper meaning of command.

This is also why Maimonides sees value in internalizing these commandments as character traits in the soul, alongside the non-negotiable obligation to observe them because of command. That obligation is generated by the similarity they now share with the rest of the commandments. Their internalization in the soul pertains only to their universal moral dimension, with respect to which it is indeed better that a person be morally refined rather than a servant of God in the sense of one who merely subdues his soul and masters his spirit.

According to this approach, perhaps a well-known and very puzzling midrash can also be explained. In Devarim Rabbah, on the portion Ekev, we find:

From when were the nations rejected before the Holy One, blessed be He? From the hour when the Holy One gave the Torah at Sinai — when He went around to all the nations to ask whether they would accept His Torah, and they would not. As it is said: “The Lord came from Sinai.” He said to the children of Esau: Will you accept My Torah? They said to Him: What is written in it? He said to them: “You shall not murder.” They said to Him: That is precisely what we rely upon, for it is part of our patrimony, as it is written: “By your sword shall you live.” Likewise He said to the children of Ishmael: Will you accept My Torah? They said: What is written in it? He said: “You shall not steal.” They said: We rely on that very trait, as it is said: “His hand shall be against everyone.” He said to the children of Ammon and Moab: Will you accept the Torah? They said: What is written in it? He said to them: “You shall not commit adultery.” They said: On that very thing we rely, for we come from a drop of illicit union, as it is written: “The two daughters of Lot became pregnant by their father.” They all said to Him: We will not accept it; give it to Your people, as it is said: “The Lord gives strength to His people.” He said to them: Whoever accepts My Torah — I bless them with peace, as it is said: “The Lord will bless His people with peace.”

The Holy One goes around to the nations and asks whether they want the Torah. Each nation asks what is written in it, and once it hears, it rejects it. The descendants of Esau do not want the prohibition of murder, the descendants of Ishmael do not want the prohibition of theft, and the descendants of Ammon and Moab do not want the prohibition of sexual immorality. This is very difficult to understand, for all these prohibitions had already bound all Noahides since the days of Adam, and they continued to bind them even after the Torah was given to Israel. What, then, is the meaning of the question and the refusal? If they do not accept the Torah, are they not still obligated in those prohibitions? Their obligation in these matters is not dependent on the giving of the Torah at Sinai.

We are forced to conclude that something new was introduced at Sinai even with respect to these commandments, and that the nations did not want that novelty. According to our approach, the explanation is that Noahides are indeed obligated in these commandments as duties whose purpose is social repair. They may not like them, but that is not left to their discretion. However, the Holy One was offering them these duties as mitzvot — that is, as obligations to be performed because of command and as acts that have influence upon the world and its repair. At that point they refused, because they did not see these duties in that light. In their view, they are merely means of social order and nothing more. They are not “religious” commandments in their eyes, but universal human duties.

Returning to Nahmanides

We can now return and understand Nahmanides’ answer. As we saw, he was troubled by the question why the Noahide commandments are counted differently from our commandments even where we are commanded in those very same obligations. His answer was that the form of the command addressed to them was different: it was stated in a general formulation, while the details accompanied it; among Israel, by contrast, each command was stated separately and explicitly. We saw above that the Hinukh suggests that this reflects a special love of the Holy One for us, and we noted that this cannot be Nahmanides’ explanation.

We can now understand that the command to Noahides is indeed a religious command, but the content of that command is the repair of society. The mitzvah is “to be a human being.” All the rest is just a detailing of that obligation. Among Israel, there is that same general obligation, but in addition there are spiritual dimensions within these commandments themselves. In that respect, each of the commandments included in laws — that is, the Hoshen Mishpat section of the Shulchan Arukh, the civil law — stands independently. The prohibition of fraud is not the same as the prohibition of theft or the withholding of a worker’s wages. True, from the standpoint of repairing society all of them are expressions of one supreme imperative; but in the spiritual respect they are distinct commandments, just like the commandments belonging to the Yoreh De’ah or Orah Hayyim sections of the Shulchan Arukh.

Noahides are not commanded in each specific sexual prohibition, but in the general prohibition of sexual immorality, because the foundation of all such prohibitions for them is the repair of the world. That is, Noahides are not commanded specifically in the prohibition of another man’s wife, or sister, or daughter, and so forth, but in properly ordered sexual life from a moral standpoint. The detailed prohibitions are merely the unpacking of that general command. The same applies to laws: there Noahides were commanded to live within a properly ordered social and legal structure, and the various laws are only the detail of that overarching command. That is why among Noahides the command concerning sexual prohibitions is one, and the command concerning laws is one, and so forth.

Among Israel, by contrast, the commandments have the significance of acting upon the world and not merely of correcting their own lives. From that standpoint they are not merely clauses within the general imperative of proper living. Every act of repairing the world and revealing the glory of God in the world is an independent commandment, and therefore we were commanded in each separately, and therefore each is counted separately.

C. Between Israel and the Sons of Noah

Introduction

In this chapter we will consider several implications of the picture presented in the previous chapters. We will examine the commandments shared by Israel and the Sons of Noah, and we will see that the above picture yields differences on several planes. At the beginning we will discuss the meaning of civil law — that is, monetary law, or the Hoshen Mishpat section — within halakha (Jewish law). After that we will move to other commandments in which Noahides are obligated, and we will see differences between the structure of their obligation and ours.

We should note in advance that the differences may appear on two levels:

1. A difference in the details of the laws. That is, even with commandments shared by Israel and Noahides, there may be differences in the detailed parameters and structure of the obligation.
2. Even when there is no difference in the formal legal structure of the obligation, there may still be a difference in the meaning of the commands.

We will discuss both of these levels below.

The Status of Hoshen Mishpat

The halakhot included in the Hoshen Mishpat section of the Shulchan Arukh raise a very serious problem for students.¹¹ In modern terms, this is the “civil law” of halakha. The Mishnah in Babylonian Talmud, Bava Metzia 94a, in the course of discussing the laws of bailees, states:

A gratuitous bailee may stipulate to be exempt from an oath; a borrower may stipulate to be exempt from payment; and a paid bailee or renter may stipulate to be exempt from both oath and payment. Anyone who stipulates against what is written in the Torah — his stipulation is void. Any stipulation in which the act precedes the condition is void. Any stipulation that can be fulfilled in the end, and was made with him from the beginning, is valid.

The Gemara there cites a tannaitic dispute from which it is clear that this is not a rule limited to the laws of bailees but applies to all monetary law:

Why? This is a stipulation against what is written in the Torah, and anyone who stipulates against what is written in the Torah — his stipulation is void. Who is the author of this? Rabbi Judah, who said: In monetary matters, his stipulation stands. For it was taught: If a man says to a woman, “Behold, you are betrothed to me on condition that I owe you no obligations of food, clothing, or marital relations,” she is betrothed, and his stipulation is void; this is the view of Rabbi Meir. Rabbi Judah says: In monetary matters, his stipulation stands.

The tanna’im thus dispute whether a stipulation against the Torah in monetary matters is effective. In practice we rule like Rabbi Judah that the stipulation stands.

From this it emerges that the monetary laws are not absolutely binding, but function only as default rules. If no different stipulation was made, what binds is what is written in the Hoshen Mishpat section of the Shulchan Arukh. But whenever we make some condition, it is the condition and not the halakhic ruling that determines the law. As is well known, this extends also to the legitimacy of broader legislation. Thus the Sages can change monetary law by the principle that what a court declares ownerless is ownerless. This power was extended also to the seven leading townsmen, and to any duly empowered authority, which may legislate and regulate as it wishes in monetary matters. Such legislation is like an implied stipulation, since anyone signing a contract in the State of Israel today does so on the understanding that the contract will be interpreted by the civil courts according to general law, and not by a rabbinical court according to halakha. It should be emphasized that even a rabbinical court ought to rule this way, because this itself is a halakhic rule: everything follows the accepted custom of the country. Already in the Gemara itself we find that the act of acquisition is determined by local custom, so that merchant custom becomes the binding act of acquisition — see Babylonian Talmud, Bava Metzia 74a, regarding the custom-based commercial act known as situmta.

This picture raises the question: what is the meaning of halakhic rulings in the Hoshen Mishpat section? On the face of it, what determines the law is the agreement of the parties, custom, or Knesset legislation. More than that: once there is legislation by the Knesset, halakha no longer even has the status of a default arrangement. It has lost almost all of its practical significance. Monetary law is determined not by the Hoshen Mishpat section of the Shulchan Arukh, but by external considerations. What, then, is its significance? What status do the laws ruled in the Shulchan Arukh have when in practice we are not meant to act in accordance with them?

The question can be put differently: why do we recite the blessings over Torah study when studying sugyot and halakhot from Hoshen Mishpat? Conversely, why do we not recite those blessings over the study of the laws of the State of Israel? In most cases, what presently determines our behavior halakhically is state law, not what is written in the Hoshen Mishpat section of the Shulchan Arukh.

To dispel any doubt, it should be stressed that according to the overwhelming majority of decisors there is no prohibition at all against stipulating contrary to what is written in the Torah, establishing a different custom, or changing monetary law. This is an absolute right of the individual and of society, and there is no halakhic problem in it. There is no halakhic ideal of acting, from the outset, as written in the Hoshen Mishpat section of the Shulchan Arukh. At most it is a default arrangement, and today, as noted, even that is not always necessary. The difficulty is therefore sharpened even further.

In light of what we said above, the matter may be understood as follows. The laws ruled in the Shulchan Arukh are the will of God; this is Torah. When a paid bailee fails to guard properly and the object is stolen, the will of God is that he pay the depositor. True, every person has the right to waive his property and give it as a gift to whomever he wishes. Therefore there is no problem in not implementing the will of the Torah in these domains, or in stipulating against it. The same applies to communal or state legislation. Put differently: when by general law or by stipulation we exempt the paid bailee from paying for theft, he is really liable, and we — or the depositor — are giving him the money as a gift. The fact that he is liable is the will of God, and that is what the Torah determines, as ruled in Hoshen Mishpat. The fact that the depositor decided to give the money away as a gift has nothing to do with Torah, and certainly not with the will of God. It is simply a person’s right over his own property.

Therefore the study of the laws of Hoshen Mishpat is an integral part of Torah. Over that study we recite the blessings over Torah study, exactly as over the study of any other part of halakha. But as for state law or other dispositive legal arrangements, there is no place at all for such a blessing, since those laws merely determine what we are giving away as gifts, despite its really being ours, and what we are not. That has nothing to do with what ought to be done or with what God wants us to do, and therefore it is not part of Torah.¹²

Discussion

From everything described so far, it would seem difficult to understand the laws as being only about social repair. If the Torah’s laws of bailees describe the best possible social order, why does the Torah let us stipulate against them? Why does it not force this optimal social order upon us?

Of course, this is not absolutely conclusive. One could still say that the laws — that is, the halakhot included in Hoshen Mishpat — are indeed intended only for social repair. The fact that the Torah does not compel us to follow them may stem from our right, as individuals and as a society, to give gifts from our property. Justice may require that a tortfeasor pay the injured party, or that a bailee pay the depositor, but if the owner wishes to give a gift, that is his right. This is plausible primarily with respect to stipulations made by parties to a contract. But with respect to the right to legislate permanent laws against these halakhot, the claim is more difficult to sustain, for it is hard to see why the Torah would permit society to enact unjust laws and impose them on the individual.

Moreover, we find in several contexts halakhot that do not seem to aim at optimal social justice at all, and some commentators have noted this.¹³ For example, regarding intellectual property, there is no dispute that justice requires giving the creator ownership over his creation. Yet from a halakhic standpoint decisors have struggled to find any direct halakhic basis for this, and the consensus of most of them is that there is no real source, and that the matter must be grounded in enactments or indirect halakhic mechanisms such as the law of the kingdom, and the like.¹⁴

Why is this so? If justice indeed requires giving a creator rights in his creation, how can halakha, in its core law, fail to do so? The formal answer is that this is an intangible thing, and therefore ownership does not apply to it. But why not? If justice truly requires it, halakha should have recognized ownership even in such a case. Here there seems to be a formal consideration that ignores considerations of justice.

Another example is the laws of returning lost property. Maimonides rules in Laws of Theft and Lost Property 11:7:

If most of the city are gentiles, but one found an object in a place in the city where most of those present are Israelites, he must announce it. But if he found it in a major thoroughfare or large public square, or in synagogues or study halls where gentiles are constantly present, or in any place frequented by crowds, the lost object is his — even if an Israelite comes and provides identifying marks — for the owner despaired of it when it fell, since he says to himself, “A gentile found it.” Even though it is his, one who wishes to walk the good and upright path and goes beyond the letter of the law returns the lost object to the Israelite once he gives identifying marks.

Thus, despair determines the ownership of the lost object, and if the owner has despaired, there is no halakhic duty to return it, since it is no longer his. Yet the Torah itself — through the Sages, and Maimonides following them — recognizes that justice does require returning the lost object, even after despair. If so, why does the Torah not make that very requirement the binding law?[^^15]

So once again, monetary halakha seems not to operate simply according to social justice.

Now we find that the Maharal, in Be’er Ha-Golah, second well, also grapples with this point:

In chapter 2 of Bava Metzia, 21b, they said that there is no need to return a lost object after the owner’s despair. This seems very far-fetched to people: that someone should take what is not his, having neither labored nor exerted himself, and desire another person’s money. This does not accord with conventional civil law, for conventional civil law requires the return of a lost object even after the owner has despaired of it.

The reason is that conventional civil law requires whatever is fitting for the repair of the world, even if strict intellect does not require that thing, but only that such is the repair of the world. Therefore conventional civil law is sometimes stringent in a matter, even though according to intellect and straight judgment it would not have been necessary. And sometimes conventional civil law is overly lenient when that thing is not needed for the repair of the world, even though according to intellect it would not be proper — but according to conventional law it is.

Therefore, according to conventional civil law, one must return the lost object even after the owner’s despair, and that is a stringency. And conversely, if one found silver vessels or gold vessels and announced them once or twice and no one came to claim the lost object after a year or two, he may keep them for himself and use them, because once he has announced them several times and waited a year or two or more, there is no longer any social benefit in waiting; no one will come.

But this is not the Torah’s way. If one found silver or gold vessels and announced them many times, they remain forbidden to him forever. They must simply lie there until Elijah comes; he may never touch them. Thus they were very stringent.

All this is because the words of the Sages are according to the Torah. Everything in Torah is measured by intellect, and whatever is fitting according to intellect is fitting to do. As the Torah says: “Observe and do them, for this is your wisdom…” It is not a conventional civil code that leaves things to common reasoning and thought. The Torah is wholly intellectual, and it does not turn toward social convention.

The Maharal explains that social justice does not always coincide with halakha, because halakha follows “intellect,” not necessarily justice in the sense of optimal social repair. What does he mean by “intellect”? Apparently the greatest social benefit would indeed be achieved by requiring restoration to the owner in every case. But strict legal intellect says that once the owner has despaired, ownership has left him. This is a juridical fact, or a juridical rationale, that precedes considerations of justice and social repair. Are Noahides supposed to follow that? Presumably not. Their task is social repair, not acting according to “intellect” in the Maharal’s sense.

Similar ideas are found in Rabbi Nissim of Gerona’s Derashot Ha-Ran, discourse 11, where he writes:

But in my view the plain meaning of the verse is this. It is known that the human species needs a judge to judge between its individuals, for otherwise each would swallow his fellow alive and the world would be destroyed. Every nation needs this civil order; the philosopher even said that a band of robbers agreed among themselves on justice. Israel needs this no less than the other nations. But besides this, Israel needs them for another reason as well: to establish the laws of the Torah on their foundation, and to punish those liable to lashes or judicial death who transgress the laws of the Torah, even when that transgression causes no loss at all to civil order. There is no doubt that in each of these two domains two sorts of cases will arise: one in which a person should be punished according to true justice, and another in which it would not be proper to punish him according to true and just judgment, yet he must be punished for the sake of civil order and the needs of the time. God assigned each of these two domains to a different institution. He commanded that judges be appointed to judge true and just judgment, as it says: “They shall judge the people with righteous judgment” — meaning that these judges were appointed for that purpose, and their authority extends only to that. Since civil order cannot be completed by this alone, God completed its repair through the commandment of the king.

This can be clarified further if we take one side of the matter. In the chapter “Hayu Bodkin,” Sanhedrin 40b, it was taught: “Do you recognize him?… Did you warn him? Did he accept the warning? Did he thereby expose himself to death? Did he commit the act within the interval of speaking?” There is no doubt that all this is appropriate from the standpoint of true justice. For why should a man be put to death if he did not know that he was entering into an act carrying the death penalty and nevertheless transgressed? Therefore he must accept the warning, together with all the other requirements in that baraita. This is true justice itself, entrusted to the judges. But if an offender were punished only in this way, civil order would be utterly destroyed, for murderers would multiply and would not fear punishment. Therefore, for the settlement of the world, the Blessed One commanded the appointment of a king, as it is written in that passage: “When you come into the land… you shall surely set over yourself a king” — which, as our Sages received, is a commandment to appoint a king over ourselves — and the king may judge without prior warning, according to what he sees is necessary for public order.

It follows that the institution of kingship is the same in Israel and among the other nations, all of whom need civil order. But the appointment of judges is more specific and more necessary in Israel, as the verse continues and says: “They shall judge the people with righteous judgment” — meaning that the appointment of the judges and the scope of their authority is that they judge the people with judgments that are truly and inherently just.

The role of the king, then, is to supplement Torah law so that it becomes socially just and conducive to public order. In other words, the Torah’s own legal system is not itself optimal for that purpose, because that is not its only purpose.

He sharpens this point even more later on:

I will explain this further and say that just as our Torah is distinguished from the legal systems of the nations of the world by commandments and statutes whose purpose is not civil repair at all, but whose consequence is the descent of divine influence upon our nation and His cleaving to us — whether the matter is visible to us, as with sacrifices and all that is done in the Temple, or not visible, as with the other statutes whose reasons have not been revealed — in any case there is no doubt that divine influence cleaves to us and operates through those acts, though they may be far from human reason. And there is nothing surprising in this, for just as we are ignorant of many of the causes of natural phenomena and yet their existence is certain, all the more so may we be ignorant of the causes of the descent of divine influence and its cleaving to us. This is what distinguishes our holy Torah from the laws of the nations, which deal only with the ordering of their collective life.

Therefore I hold — and it is fitting to believe — that just as those statutes that have no role at all in civil order are a direct cause of the descent of divine influence upon us, so too the משפטים of the Torah have a large role in this, and are as though shared between two purposes: the descent of the divine matter upon our nation, and the repair of our collective order. It is possible that they incline more toward the more exalted purpose than toward the repair of our society, because that repair is completed by the king whom we appoint. But the purpose of the judges and the Sanhedrin was to judge the people with a judgment that is true and just in itself, through which the divine matter would cleave to us, whether or not the public order of the masses would thereby be fully perfected.

For this reason it is possible that in some of the laws and judgments of those nations one will find what is closer to the repair of civil order than in some of the laws of the Torah. We lack nothing thereby, for whatever is lacking in that repair is completed by the king. But we have a great advantage over them, for because the judgments of Torah are just in themselves — as the verse says, “They shall judge the people with righteous judgment” — divine influence cleaves to us through them.

Here he states explicitly exactly what we argued above: not only do we have additional commandments beyond those of Noahides whose purpose is spiritual and religious; even the judicial sphere — the laws — in which Noahides are also obligated, has spiritual and religious aims for Israel and not merely social repair.

From this he draws a bold conclusion:

It is therefore possible that in some cases the laws of the nations are more just than the laws of the Torah in terms of civil order. They produce social repair more optimally, because that is their only purpose. Halakha has additional purposes, and these function as constraints that interfere with achieving maximal justice. Sometimes the king, or the court, must intervene and rectify the distortion.

This is precisely the point we made above: for that reason there is room not only for private stipulations, but also for permanent legislation that will correct the distortions produced by halakha and bring it closer to justice and social repair. After that correction, the law has two layers:

1. The core law, whose purpose is the descent of divine influence, and not only social repair.
2. The external corrections, whose purpose is social repair.

In the world of Noahides there is no place for this, because for them only the second layer exists.¹⁵

Rav Kook on the Halakhic Differences Between Noahides and Israel

At the beginning of his book Etz Hadar, Rav Kook deals precisely with this issue, in the context of the view of the Levush, who disqualifies a grafted citron because a transgression was committed through it — namely, the prohibition of grafting species, which the Levush claims applies to Noahides as well. Rav Kook argues against him that this is not necessary, because there are general differences between the obligation in commandments for Noahides and for Israel, even with respect to commandments that bind both.

The first example Rav Kook gives is the matter of formal measures. It is accepted that such measures were given to us as a tradition to Moses from Sinai, and therefore were not given to Noahides — see Maimonides, Laws of Kings 9:10. That is, Noahide commandments are not delimited by halakhic measurements. In the responsa of the Hatam Sofer, Yoreh De’ah, nos. 317 and 184, he discusses legal maturity for Noahides and concludes — following a responsum of the Rosh — that maturity, like any other halakhic measure, does not apply to them. A Noahide becomes obligated from the point at which he reaches understanding.

Rav Kook formulates there a general principle: the details of Noahide law are determined by nature and not by halakha. For example, a limb from a living animal is forbidden to a Noahide even in the case of an animal convulsing in the throes of death, because in reality it is still alive. Among Israel, by contrast, the prohibition of a limb from a living animal depends on the halakhic act of slaughter and not on the empirical fact of life, and therefore it is permitted in such a case. Thus among Israel, legal distinctions derive from a halakhic layer, or from acts that have halakhic significance, whereas for a Noahide they derive from states of reality.

The same applies, according to Rav Kook, to Noahide lineage. As is well known, lineage among them follows the mother and not the father. Rav Kook explains that this too stems from the fact that maternity is natural — everyone sees that she conceived and gave birth — whereas paternity is based on legal presumption, namely the presumption that most relations are with the husband.¹⁶

The same difference regarding legal maturity is explained by Rav Kook in the same way: with a Noahide one follows the factual state — does he understand or not? — whereas among Israel one follows the formal halakhic measure. See there at length as well concerning the obligation to settle the world, and more.

Rav Kook’s principle, that among Noahides we follow natural reality whereas among Israel we follow the halakhic state, also follows from the differences we saw above. Noahides are commanded to live within a corrected natural reality. As we saw, for that reason providence over them is general, and their commandments are not itemized in detail. Their laws are determined by the judgment of their sages. Their commandments have no spiritual effect beyond social repair, and therefore everything is determined on the human, earthly, physical plane. Among Israel, by contrast, the purpose of life is the repair of the world and not merely life in an orderly social reality. For this, natural human judgment is not enough; one needs guidance “from above” as to how the spiritual dimensions of reality are repaired. Therefore among Israel the details of the laws are determined by halakha and not by empirical reality.

The Difference in the Meaning of the Obligations

The difference in the meaning of the obligations between Noahides and Israel may be seen through an example. Rabbi Shimon Shkop, in his Sha’arei Yosher, gate 5, cites a question of Rabbi Yosef ibn Basan, also brought in Kuntres Ha-Sefekot. He asks: why do we rule leniently in a doubtful monetary case in favor of the defendant, the one in possession? Why should we not be stringent out of doubt concerning the prohibition of theft, since a Torah-level doubt is normally treated stringently? In other words, why is the defendant not required to return the money even in a doubtful case, despite the rule that the burden of proof rests on the claimant, out of concern that he may be violating the prohibition of theft?

Rabbi Shimon, in answering this question, establishes his famous principle that the laws of the prohibition “You shall not steal” are determined by the civil legal rules of Hoshen Mishpat. Every judicial ruling according to the laws of evidence, presumptions of possession, and the like, as set out in Hoshen Mishpat, grants the prevailing party the right to hold the money lawfully and removes from him any concern for violating “You shall not steal.” The underlying conception is that the laws of property and ownership are defined on a juridical plane prior to halakha. Upon those determinations, halakha then imposes the prohibition of “You shall not steal,” so that one who violates those property rights also transgresses a halakhic prohibition. Halakha gives religious force to the juridical determination.

At first glance, one could challenge Rabbi Shimon from the law of theft from a gentile. There are views according to which theft from a gentile is not prohibited by Torah law, but only by rabbinic law for the sake of peaceful relations. This seems difficult, for it is obvious that gentiles have property rights by Torah law, since they were commanded concerning laws. Thus the juridical definition of ownership certainly exists among them as well. But we saw that according to Rabbi Shimon, injury to juridical ownership is itself what defines the prohibition of “You shall not steal.” If so, theft from a gentile should also have been a Torah prohibition.

The explanation is that the prohibition of “You shall not steal” is indeed determined by the civil legal rules of Hoshen Mishpat, but it is not identical with them. Rabbi Shimon did not mean to say that the prohibition “You shall not steal” has no distinct prohibitory layer at all — a layer analogous to ritual prohibitions — but only that the juridical determination fixes its scope. The prohibition is derived from the juridical determination, but is not identical with it.

Put differently: Noahides do have acquisitions and ownership. But the prohibition of “You shall not steal,” as applied to a Jew who steals from them, is not superimposed upon those rights. In the case of theft by a Jew from another Jew, where there is a Torah prohibition of “You shall not steal,” the application of that prohibition follows the juridical determination. But in the case of a Jew taking from a gentile, according to these views, the Torah-level prohibitory layer does not exist at all.¹⁷

We thus see that even in a domain shared by Jews and gentiles — property and ownership — there is a difference in meaning between the Jewish and gentile cases. Jewish ownership has a spiritual dimension: monetary rights reflect a metaphysical relationship between the person and his property.¹⁸ That spiritual dimension is what grounds the halakhic prohibition of “You shall not steal.” Among gentiles this dimension does not exist, because for them only the juridical layer exists, whose purpose is the repair of the world, and therefore there are no spiritual ramifications. For that reason, among them there is no halakhic prohibition in the religious sense, but only a juridical prohibition for the sake of repairing the world. One may say that among them the laws are a legal arrangement and not a religious one. In that framework there is indeed an obligation not to steal from anyone as part of those legal arrangements — that is, as part of the obligation to establish laws, one of the seven Noahide commandments — but there is no “prohibition” here in the fuller religious sense.

There is no doubt that the duty not to violate the monetary ownership of a gentile, as part of preserving a proper society, applies to Jews as well. What is absent vis-à-vis the gentile is the Torah-level prohibition of “You shall not steal” as a religious prohibition, and not merely as a matter of social arrangements.¹⁹

“There Is Nothing Forbidden to a Son of Noah and Permitted to Israel”

The Gemara in Babylonian Talmud, Hullin 33a — see also Sanhedrin 59a — states that we do not find anything forbidden to a gentile and permitted to an Israelite, for Israel is always stricter than the gentile. At first glance this is difficult. How can we permit to an Israelite the theft of a gentile, if that is forbidden to gentiles themselves? It is also difficult why the convulsing animal would be permitted to Israelites, and why a Jewish minor would be exempt from what a gentile is liable for, since Israel has a formal age of majority from which onward one becomes obligated in commandments, as we saw above.

According to what we have said, none of this is difficult. In truth, the juridical prohibition that applies to the gentile exists for Israel as well. What does not apply vis-à-vis gentiles is only the religious prohibitory layer, just as even gentiles themselves do not have it. Moreover, regarding age of responsibility too, a Jewish minor is obligated in everything that a Son of Noah is obligated in once he reaches understanding. What is added from the moment of halakhic adulthood is only the specifically halakhic obligation. As we shall see below, several later authorities state this explicitly on the basis of a contradiction between two Talmudic sugyot.

The Moral Difficulty

Many find it morally troubling that halakha appears to discriminate against the gentile, and does not impose a religious prohibition on a Jew who steals from him. The same applies to other monetary commandments not stated with respect to gentiles, such as overreaching in commerce, the return of lost property, and so on.

In light of our analysis, we can understand that the prohibition on robbing and murdering the gentile is juridical in character, but it certainly exists. Our prohibition vis-à-vis the gentile is exactly like his prohibition vis-à-vis his fellow gentiles and vis-à-vis us. In that sense there is complete symmetry, since on the human and moral plane there is full equality. The apparent asymmetry arises only because halakha is stricter with respect to Israel than with respect to the moral-human plane; it is not because it is more lenient toward the gentile. With respect to Israel there is an additional “religious” layer to the prohibition — a second story built on top of the moral story of repairing the world. And on that additional level, just as the gentile himself is not bound, so too the Israelite is not bound vis-à-vis him.

The conclusion is that there is full symmetry here, if we assume that the picture of Jew and gentile is built as a two-story model. This leads us to the next chapter, in which we will define that model more precisely.

D. Israel and the Sons of Noah: A Two-Story Model

Introduction

In this chapter we will try to organize what we have said so far within a two-story model.²⁰ According to this proposal, the image of the Jew as the Torah sees him is a structure of two stories: one universal and rational — the Noahide story — and the second particularistic — the Jewish-Torah story. In fact, in the previous chapters we already assumed this model implicitly and drew several consequences from it. We now present it more systematically, and expand on some additional implications.

Two Conceptions of the Noahide Legal System

Rav Kook, in his book Orot Yisrael, asks the following question:

The form of Israel must be clarified: does the general humanity of the content of man remain within it with the same profile that it has among all peoples, and upon it the specifically Israelite form is built? Or is everything from heel to head unique? To clarify this one must make use of diverse sources — Torah, rational, historical, mystical, esoteric, experiential, poetic, and at times even political and economic.

The question is whether Israel is an entirely new form — that is, whether the two stories merge into a new entity, a Jew — or whether the form of Israel is composed of two distinct layers, one built upon the other: the first is the Noahide story, the universal human one, and the second is the story unique to us. In the background one must remember that Israel too are part of the descendants of Noah, indeed of Shem.

In the end Rav Kook reaches the following conclusion:

It appears that at first the matter was arranged so that the human form would be perfected in its entirety, and then, as an addition and surplus, the spirit of the chosen nation would be revealed in its glorious holiness. But matters became corrupted, and the human spirit sank so deeply in general that the profane could no longer serve as a basis for the holy unless it were transformed. Therefore the Egyptian exile had to come as an iron furnace that refined the human side within Israel until it became a new creature, and its profane form was entirely blurred. Thus a nation began, by means of the human seed, whose form from head to heel was wholly Israelite — Jacob and Israel.

Rav Kook’s source is apparently the sugya in Babylonian Talmud, Bava Kamma 38a, from the verse “He stood and measured the earth; He saw and released the nations.” Our own claim here favors the other position, namely the layered model. On this model, every Jew also contains a Noahide, and on top of that there is an additional particular Jewish layer. This too emerges from Maimonides at the beginning of chapter 9 of Laws of Kings, where he describes the historical development of the giving of commandments to the world. He begins with the commandments given to Noahides, and afterward and on top of them describes the additions gradually given to Israel. Apparently his intention is to describe a two-story model in which the general human story remains relevant even after the giving of the Torah. The giving of the Torah created an additional layer on top of it.²¹

Rabbi Shlomo Fisher in His Homiletical Writings

Rabbi Shlomo Fisher addresses this question in several places in his works. In Beit Yishai — Derashot, nos. 9 and 26, he notes that the sages of Israel disagreed on this issue.

1. Some understood the election of Israel from among the nations as akin to primogeniture alone, as in the verse, “Israel is My firstborn son.” A primary source for this is the Mishnah in Avot 3:14:

He used to say: Beloved is the human being, for he was created in the image; it was a greater love made known to him that he was created in the image, as it is said: “For in the image of God He made man.” Beloved are Israel, for they are called children of the Omnipresent; it was a greater love made known to them that they are called children of the Omnipresent, as it is said: “You are children to the Lord your God.”²²

Thus every human being was created in the divine image, like Adam. From within the general human race, Israel is more beloved because they are called children of the Omnipresent.

Tosefot Yom Tov, on this mishnah, reports that some commentators removed it from its plain sense and interpreted it as referring only to Israel, relying on the rabbinic interpretation: “You are called ‘adam,’ but idolaters are not called ‘adam,'” said regarding a verse in Ezekiel. Tosefot Yom Tov disagrees and insists that one should not wrench the mishnah from its plain meaning or the verses from their plain sense — for the verse “For in the image of God He made man” plainly speaks of Adam — and certainly Rabbi Akiva in the mishnah is speaking of all humanity.²³²⁴

This mishnah therefore includes all humanity under the image of God, and within that humanity there is an added love for Israel, in the manner of a firstborn son.

In Beit Yishai he also cites the verses in Psalms that begin with all the nations, then pass to Israel, and then to the house of Aaron. There too one sees a gradual progression from Noahides to Israel and then to the priests.

2. Opposed to this stance stand the Kuzari and the kabbalists, who see Israel as a renewed form and a creature unto itself. In their view Israel does not belong at all to the same category as the rest of the nations: “Behold, it is a people that shall dwell alone, and shall not be reckoned among the nations.” The Kuzari, in part 1, sections 31-43, writes that the form of the Jew differs in quality from the form of the human being, just as the human differs from the animal, the animal from the plant, and the plant from the inanimate.

A Fundamental Implication

The two-story model can be tested halakhically in the following way: if this model is correct, then the laws that bind both Noahides and Jews should, in principle, be the same, because such laws address the Noahide layer that exists within every Israelite. By contrast, if Israel is a wholly new form, with no Noahide component in its ordinary sense, then there is no reason to exclude halakhic differences even in those laws that bind both.

Now, from Rav Kook’s words in Etz Hadar, cited above, it would seem at first glance that he sees before him a model of replacement rather than of layering. Noahide law changes when it appears in Israel. Among them matters are determined by reality, whereas among us they are determined by halakha. This indeed fits his conclusion in the passage quoted above from Orot Yisrael.

But this is only one very particular aspect. True, it implies that there are differences even in the first story and not only an addition of the second. Yet that does not prove the sweeping conclusion that the Jew is an entirely new entity. We shall now see several examples that support the two-story model.

The principle Rav Kook states — that among Noahides we follow natural reality, while among Israel we follow the halakhic state — can also follow from the distinctions we saw earlier. We argued above that the seven Noahide commandments are the universal basis that serves as the infrastructure of human life. The Jewish-Torah story is an additional layer atop the universal human one. But beyond that, we also saw that even the basic commandments receive an additional meaning among Israel. They are not intended only for social repair. It is therefore not surprising that halakhic differences appear between Israel and Noahides even in the “first story.”

Let us now see several examples that reinforce the two-story model.

The Sugya of a Jew and a Gentile Who Come to Court

We saw that gentiles have their own legal system — one of the seven Noahide commandments is to establish a system of laws — and Israel has its own legal system. When a Jew and a gentile come to court against one another, this is a classic problem of private international law: by which legal system should the case be judged?[^^26] The Gemara in Babylonian Talmud, Bava Kamma 113a, addresses this question and cites the following baraita:

As it was taught: If a Jew and a Canaanite extortioner come to judgment, if you can acquit the Jew under Jewish law — acquit him and say, “So is our law.” Under Canaanite law — acquit him and say, “So is your law.”

In the Mesorat Ha-Shas on that passage a different reading is given: instead of “a Canaanite extortioner” one should read simply “a gentile.” What is the difference between the two versions? In the reading before us, the license to maneuver and choose the legal system strategically would appear to apply only with respect to an extortionate gentile, not to every gentile. What, then, when an ordinary gentile comes to litigate against a Jew? On this Maimonides rules, in Laws of Kings 10:12:

If two idolaters come before you to be judged according to Jewish law, and both want to be judged by Torah law, they are judged. If one wants this and the other does not, we do not compel him to be judged except according to their laws. If one is an Israelite and the other an idolater, then if the Israelite has an advantage under their laws, we judge him according to their laws and say to him, “So are your laws.” If the Israelite has an advantage under our law, we judge him according to Torah law and say to him, “So is our law.” It seems to me that this is not done with a resident alien; rather, he is always judged according to his own laws.

Maimonides thus says that the right to choose strategically between legal systems applies with respect to an idolater. But in a case between a Jew and a gentile who has accepted the seven Noahide commandments — that is, a resident alien; see there, end of chapter 8 — one always judges according to the gentile’s law.

The question that arises is: why? Presumably the case should be judged within the legal framework common to both parties. If there is no such common framework, then seemingly there is no way to adjudicate the case within halakha at all. And even if we decide to judge the matter according to one of the two systems involved, why should the Noahide legal system be preferred over the regular halakhic system? Why should the matter not be judged according to the ordinary halakhic system, by which the rabbinical court judges all other cases and from which it in fact derives its authority? That system would also seem to be more complete and more correct.

Rabbi Shlomo Fisher addresses this question in his halakhic work Beit Yishai, no. 107. He explains there that the Noahide legal system is a universal one, because its subject is human justice and fairness. Such a system also exists vis-à-vis Israel, for they too are commanded to act according to justice and fairness. Therefore a case between a Jew and a gentile is conducted within the gentile legal system, because that system provides the shared basis of both. This is precisely the same picture as the two-story model we have presented, according to which Israel is an additional layer beyond the universal Noahide layer and not a replacement for it. As we saw above, the Maharal and the Derashot Ha-Ran explain that our own legal system is actually less complete than that of the gentiles, at least by the standards of social repair.

Let us bring one example to sharpen the point.²⁵ Rabbi Meir Dan Plotzki, in his Hemdat Yisrael, essay “Ner Mitzvah,” p. 100, discusses whether Noahide law includes the rule that a person’s self-incrimination is not accepted. In the course of his discussion he writes:

We have written… to prove that Maimonides too agrees with the view of the Hinukh — that a Son of Noah is executed on the basis of his own confession — from what he wrote in the laws of Sanhedrin, namely that Joshua’s execution of Achan on the basis of his own confession was by the law of the king. We clarified there that the king… has no more power to judge than the law of the Sons of Noah, and whoever is not liable under Noahide law, the king too cannot punish…

He proves that in the משפט of the Sons of Noah one is executed on the basis of one’s own confession from Maimonides’ ruling that in the king’s law one may be executed on the basis of confession — his proof being Achan, who was executed on the basis of confession; see Maimonides, Laws of Sanhedrin 18:6. In the course of the discussion he explicitly equates the law of the king with the law of the Sons of Noah, and argues that whatever exists in the king’s law must exist in Noahide law. How are we to understand this link? Clearly he sees the law of the Sons of Noah and the law of the king as a common platform whose function is to supplement halakha and close the gaps within it for the sake of repairing the world. The legal system of the Sons of Noah is identical with the legal system of the king. This is the universal system — the first story — shared by all human beings, and its subject is social repair.

A Commandment Given to the Sons of Noah and Repeated at Sinai

In Babylonian Talmud, Sanhedrin 59a, the Gemara discusses the commandments given to the Sons of Noah, and in the course of the discussion of the prohibition of a limb from a living animal it asks why the Torah needed to repeat at Sinai commandments that had already been given to Noahides:

Why was it necessary to write it for the Sons of Noah, and why was it necessary to repeat it at Sinai? As Rabbi Yose son of Rabbi Hanina said: Any commandment that was said to the Sons of Noah and repeated at Sinai was said to both these and those. If it was said to the Sons of Noah and not repeated at Sinai, it was said to Israel and not to the Sons of Noah. And we have only the prohibition of the sciatic nerve, and that only according to Rabbi Judah.

The Master said: Any commandment that was said to the Sons of Noah and repeated at Sinai was said to both these and those. On the contrary: since it was repeated at Sinai, perhaps it was said to Israel and not to the Sons of Noah. From the fact that idolatry was repeated at Sinai, and we nevertheless find that a gentile is punished for it — conclude that it was said to both these and those. If it was said to the Sons of Noah and not repeated at Sinai, it was said to Israel and not to the Sons of Noah. On the contrary: since it was not repeated at Sinai, perhaps it was said to the Sons of Noah and not to Israel. There is no case in which something is permitted to Israel and forbidden to a gentile.

The Gemara establishes the rule that a commandment given to Noahides and repeated at Sinai is addressed to all human beings, whereas a commandment given only to Noahides and not repeated at Sinai is addressed only to Israel. As the Gemara itself asks, the second half of this rule is very difficult. Why should commandments not repeated at Sinai be directed only to Israel? Quite the opposite: one would have thought they would remain directed only to Noahides.

It is quite evident that the Gemara sees Israel as an additional story beyond Noahides. The universal commandments given to Noahides were certainly also said to Israel, and some commandments were said only to Israel. There are no commandments said only to Noahides, because every Jew contains a Noahide dimension. Therefore everything that exists for Noahides must also exist for Israel. The reverse, of course, is not necessarily true, because Israel also possesses a second, particularistic story.

As we already noted, the Gemara also formulates the rule that there is nothing forbidden to a Son of Noah and permitted to Israel. In other words, all Noahide laws are relevant to Israel as well: included within the greater sum is the lesser.²⁶ Rashi indeed writes there: “When they went out from the category of the Sons of Noah, it was to become sanctified, not to become more lenient.” In other words, Israel are Noahides with an added layer, and not an altogether new creature.

We also mentioned above the first two discourses in Parashat Derakhim, which discuss the status of the Patriarchs. A dispute is cited there among commentators whether the Patriarchs left the category of the Sons of Noah and became Israel, or whether they merely imposed upon themselves the stringencies of Israel, thus taking on only the second story while in actuality remaining Noahides. According to our approach, that question pertains only to the second story, since the first story remains in force even for a full Israelite, and even after the giving of the Torah — apart from certain changes in detail.²⁷

The Obligations of Minors

Several later authorities raise a contradiction between the sugya in Sanhedrin 55a — the discussion of “stumbling and disgrace,” which deals with intercourse with animals — and the sugya in Yevamot 36a, which deals with Sabbath and Temple obligations in the context of the rule that one prohibition does not take effect upon another. In the sugya in Sanhedrin it emerges that even when a minor performs a transgression, the act is still defined as a transgression. By contrast, the sugya in Yevamot implies that a minor becomes obligated in commandments only upon maturity, and before that his acts are not considered transgressions.

Several answers are offered in the later literature. Some resolve the difficulty in the following style — see Or Sameah, Forbidden Relations 3:2; Nahal Yitzhak, vol. 2, no. 89, sec. 2; and also Kovetz He’arot to Yevamot, old edition, no. 4, though there the formulation is somewhat different. By their account, every commandment that binds Noahides obviously binds a Jewish minor as well. The reason is the ruling of the Hatam Sofer cited above, according to which the obligations of a gentile begin not at formal halakhic adulthood but at the age of understanding. Add to this the Talmudic principle cited above — that there is nothing permitted to Israel and forbidden to a Son of Noah, that is, everything forbidden to a Son of Noah is forbidden to Israel too — and the conclusion is immediate: if Noahides are liable for intercourse with an animal from the moment they understand the prohibition and their obligation with respect to it, then Israel cannot be less than Noahides.

This implies that with respect to all Noahide commandments there is an obligation upon Israel from the age at which the child understands his duty, and not only from the age of formal adulthood — exactly as with Noahides. Only the specifically halakhic obligations that belong to the particularistic second story begin at halakhic maturity.

Beyond the formal proof, it is quite clear that there is also a substantive point here: within every Israelite there is, as it were, a Noahide. Therefore every Jewish child is bound as well by the obligations of a gentile child. It cannot be that a Son of Noah would be obligated in something while an Israelite would not, for within every Israelite there is already a Son of Noah — included within the greater sum is the lesser.

We may broaden this and say regarding all Noahide commandments that, as we have seen, Noahide obligations are obligations of reason. Therefore there is no need for a formal threshold age fixing the obligation. In obligations grounded in reason, even when we refer to a Jew, it is impossible to set a formal threshold age, for anyone who understands the reasoning that underlies the obligation is already bound by it.²⁸

This discussion casts the distinction we saw above in the Hatam Sofer between Israel and Noahides regarding age of maturity in a different light. We now see that there is no asymmetry here, but only a reflection of the two-story model.

The Juridical Layer of Law

We saw above Rabbi Shimon Shkop’s innovation that at the basis of the laws of property and acquisitions there is a meta-halakhic layer that binds even prior to explicit halakhic command. He calls it “the laws of justice.” The explanation he gives at the beginning of that gate for this principle is as follows:

Just as the category of acquisitions and the laws of ownership of property are juridical matters even without the warning of “You shall not steal,” as we explained above — for it is impossible under any circumstances to say that the reason we attribute an object to Reuven is because Shimon is warned by the Torah not to steal it from him. Rather, the matter is the reverse: the prohibition of theft comes only after the issue has been determined by the legal rules defining the boundaries of ownership…

At first glance this seems to be an interpretive claim: the Torah commands us not to steal. But theft is injury to ownership. Therefore this prohibition presupposes the existence of juridical categories that determine what ownership is, and injury to which counts as theft. Thus the existence of the prohibition of “You shall not steal” presupposes a foundational layer that defines the contours of ownership.

However, from that consideration alone it follows only that the juridical property layer defines the ownership upon which the prohibition of “You shall not steal” applies. It does not follow that there is already a juridical prohibition against taking an object from its owner prior to the command of “You shall not steal.” On the contrary, one might infer from this that there is no prohibition beyond the halakhic one; the halakhic prohibition merely requires prior juridical definitions.

But in another passage, later there, Rabbi Shimon raises a question on his own innovation:

Although at first glance this seems astonishing — what necessity or obligation can there be for a person to do something without the Torah’s command and warning? — when we examine the matter carefully it can be understood. For the obligation and necessity of serving God and fulfilling His will, may He be blessed, is itself also a matter of obligation and necessity according to the judgment of reason and recognition. So too monetary obligation and subjection are juridical obligations, incurred according to the modes of acquisition…

Rabbi Shimon asks how we can be bound by norms that are not anchored in the Written and Oral Torah — that is, by extra-halakhic norms. He answers that even halakhic obligations are based on our recognition that we are bound by them. Therefore it should not surprise us that other obligations, grounded in reason and recognition, bind us as well.

We should note that both the question and the answer presuppose that the juridical layer is not merely a set of meta-normative definitions, but that there is an actual prohibition of theft belonging to the juridical layer. Clearly, according to Rabbi Shimon there is a duty not to steal that does not arise from the halakhic prohibition of theft but from the prior laws of justice.²⁹ It is about that that he asks how we can be bound to obey them, and explains that obligations deriving from reason are also binding. Were this only a meta-halakhic definition and nothing more, there would be no room either for his question or for his answer. This also lets us understand his claim cited above: according to all views there is a juridical prohibition against robbing a gentile, even when there is no halakhic command of “You shall not steal” regarding him.

We can now extend Rabbi Shimon’s principle to all prohibitions belonging to the universal infrastructure. In all of them, the obligation arises also from reason and human recognition, and yet it binds us no less than the laws of the Torah.

Defining Jewish Identity

Many ask why we tend to identify Judaism with the particularistic commandments — kashrut, Sabbath, family purity — and not with the universal commandments, some of which are much more important and severe, such as the prohibition of murder.

The answer is very simple. There is no relation between these sociological definitions and the relative gravity of various prohibitions. Aristotle already noted that when we wish to define a concept or position, we must describe it by means of the broader class that contains it, and then identify it by the specific feature that distinguishes it within that class. For example, the human being is a speaking animal. The general class containing the human is the animal, and the distinctive feature within that class is speech.

Exactly the same applies here. The definition of Jewish identity must be composed first of the general class — the human being, or the Son of Noah — which belongs to the first, universal story. Only afterward can we add the particular features that distinguish the Jew from the rest of humanity. It is therefore obvious that when someone wants to examine the Jewishness of a person or a society, he must examine the specifically Jewish features. There is no point in testing someone’s Jewishness through features shared by Judaism and the rest of humanity — that is, Noahide commandments or universal values — just as there is no point in checking whether Reuven is a human being by asking whether he has legs or whether he breathes. These features do not distinguish him, because they are shared with other creatures as well. Sociological uniqueness is identified through differentiating features, that is, through the second, particularistic story.

Of course, this does not mean that the distinctive features are necessarily more important. They simply define the concept “Jew” more sharply.³⁰ For that reason, one who has murdered is still regarded as a Jew, even though his universal human story is gravely damaged. But one who desecrates the Sabbath or eats non-kosher food, although these are lighter prohibitions than murder, is not perceived as Jewish. This is a simple and correct logical distinction, and it has nothing to do with the comparative severity of the transgressions in question.

In our essay on the portion of Noah, written in 2007, we broadened the discussion with respect to the Jewish definition of “religiosity,” and especially its relation to currently accepted notions of religiosity, which are based mainly on piety and morality. In our present terms, morality belongs to the first story, and therefore it cannot serve as a measure of the Jewishness of a person or society. Again, this does not necessarily mean that it is less important. It means only that it is less essential and less distinctive to Judaism.³¹

Footnotes