Lesson 37: Naso

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

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With God’s help

Concepts

• Is there a halakha (Jewish law) without a practical difference?
• Several meanings of the hefza-gavra distinction.
• Prohibitions with limitations as gavra prohibitions.

Summary

In this week’s essay we deal with Naziriteship. As background, we clarify in detail the distinction between hefza and gavra prohibitions, both in their Talmudic meaning and in the literature of the medieval authorities, without addressing the later expansions of these concepts in the Brisker school. We distinguish between two different axes of hefza-gavra:

1. The axis of legal status. A hefza prohibition is one that derives from a legal status of prohibition resting on the object, whereas a gavra prohibition is a subjective prohibition with no such legal status.
2. The axis of the facts underlying the prohibition. A hefza prohibition is one caused by a problematic factual feature found in the object itself, such as spiritual harm or a dulling of the heart, whereas a gavra prohibition exists entirely on the normative plane.

We discuss how to define oaths, vows, Naziriteship, and the other Torah prohibitions along these two axes. Oaths are gavra prohibitions; some interpret them as subjective prohibitions, while others understand them as prohibitions derived from a legal status resting on the person. Vows are hefza prohibitions, meaning that a legal status of prohibition rests on the forbidden object itself, although some later authorities tried to define them differently, with problematic results. With respect to the other Torah prohibitions, the medieval authorities disagree regarding the first meaning, that of legal status. In the second meaning, it is commonly assumed that at least the food prohibitions are hefza prohibitions, because they dull the soul.

In the second chapter we examine the character of the prohibitions of Naziriteship. We present four views:

1. A subjective prohibition.
2. A hefza prohibition resting on the wine.
3. A gavra prohibition resting on the person, but only on a person upon whom the legal status of Naziriteship rests.
4. A prohibition on the person to use his mouth to drink wine.

We show the implications of these approaches for defining Naziriteship as a prohibition equally applicable to all, and for the question whether it is a gavra or hefza prohibition.

In the concluding chapter we point to a possible connection with the Kantian distinction between the world as it is in itself and the world as we perceive it. By means of this distinction, we explain a difficulty raised by several later authorities: how can one distinguish between hefza and gavra prohibitions when the addressee of halakhic norms is always the human being?

On Nazirite Vows

A Look at Hefza and Gavra in Halakha

A. The Laws of Hefza and Gavra

Introduction

In halakha there are several types of hafla’ah prohibitions, that is, self-imposed verbal prohibitions. The term follows Maimonides, who devoted to them the section titled Hafla’ah: vows, Naziriteship, oaths, and consecrations. In these prohibitions, a person creates and imposes upon himself, and sometimes upon others, new prohibitions, even though the Torah itself did not forbid these things to him.

The Mishnah at the beginning of Tractate Nedarim discusses the laws of abbreviated formulations and substitute terms in all forms of hafla’ah:

All substitute terms for vows are like vows, substitute terms for consecrations are like consecrations, substitute terms for oaths are like oaths, and substitute terms for Naziriteship are like Naziriteship. If one says to another, “I am vowed away from you, separated from you, distanced from you, so that I may eat of yours, so that I may taste of yours,” he is prohibited. If he says, “I am excommunicated from you,” Rabbi Akiva would hesitate on this point and incline to stringency.

By contrast, the Mishnah at the beginning of Tractate Nazir lists only the substitute terms for Naziriteship:

All substitute terms for Naziriteship are like Naziriteship. If one says, “I shall be,” he is a nazirite; or, “I shall be handsome,” he is a nazirite. If he says distorted forms such as “nazik,” “naziah,” or “paziah,” he is a nazirite. If he says, “I am like this one,” “I will curl my hair,” “I will tend my hair,” or “It is upon me to let my hair grow wild,” he is a nazirite. If he says, “Bird-offerings are upon me,” Rabbi Meir says: he is a nazirite; but the Sages say: he is not a nazirite.

The Babylonian Talmud there, Nedarim 2b, discusses the structural differences between the two mishnayot:

“All substitute terms for vows are like vows.” Why is it that in the case of a nazirite it does not list them all, whereas in the case of vows it does list them all? Because vow and oath are written next to one another, so it taught those two; and since it taught those two, it taught all of them. But then let it teach the substitute terms for oaths immediately after vows. Since it taught vows, in which the object becomes prohibited to him, it also taught consecrations, in which the object becomes prohibited to him, thus excluding an oath, where he prohibits himself with respect to the object.

The Talmud explains that the Mishnah in Nedarim had to discuss vows and oaths, since in Scripture they appear side by side; and once it had already brought two of the hafla’ah prohibitions, it brought the others as well. It then asks why the Mishnah does not preserve the biblical order and linkage, that is, why it does not place oaths right after vows, but inserts consecrations in between. The answer is that once the decision was made to present all the laws of hafla’ah, the order was determined by an essential connection between them: vows and consecrations have in common that they are hefza prohibitions, meaning that the object becomes prohibited to him, whereas oaths are gavra prohibitions, meaning that he prohibits himself with respect to the object.

Already here the question arises: what is the character of the prohibitions of Naziriteship? Apparently they are not hefza prohibitions, for if they were, the Tanna should have arranged them before oaths. On the other hand, the Talmud says nothing explicit about them. On the face of it, they appear to be gavra prohibitions, but of a special kind. By the same token, one may also examine the status of the other Torah prohibitions: are they hefza prohibitions or gavra prohibitions?

In what follows we will try to clarify the general meaning of these terms, hefza and gavra, and then discuss the status of the prohibitions of the nazirite on the hefza-gavra axis.

“Hefza” and “Gavra” — Primary Meanings

In the Talmudic passage above, the distinction between the prohibitions of vows, hefza, and oaths, gavra, appears only in order to explain the editorial arrangement of the Mishnah. It has no clear halakhic implications there, and nowhere else in the Talmud do these concepts appear again. Even so, many commentators, both medieval and later, attach numerous halakhic implications to this distinction. Before examining those implications, we should briefly consider the meaning of the concepts themselves.

The simple literal meaning of the distinction is that in vows, a person prohibits the object to himself; that is, a legal status of prohibition rests on the object itself, and from that it follows that the person may not derive benefit from it. In this sense, a vow resembles pork or a creeping creature, which are themselves objects of prohibition, and therefore a person may not eat them. By contrast, in an oath no legal status of prohibition rests on the object. It is not an object of prohibition. Rather, there is a prohibition on the person to perform some act that he has forbidden to himself.

Usually this distinction carries over into the content of the prohibition. A vow is a prohibition of an object upon a person, as when someone forbids a particular loaf of bread to himself. An oath, by contrast, is a prohibition of an action, for example, not to go to a certain place. Yet there are cases in which a person swears something regarding an object. Some medieval authorities hold that such an oath is really only a vow, even though it was stated in the language of an oath. Others hold that an oath can indeed apply to an object, and in that case there is still no legal status of prohibition on the object itself; rather, the person is prohibited from benefiting from the object. The action forbidden to him concerns an object, but what is forbidden is the action, not the object.

Halakhic Implications: Tosafot

As noted, the discussion itself contains no clear halakhic implications of defining a prohibition as hefza or gavra. However, the medieval authorities do point to several such implications. A natural place to look for them is wherever halakha distinguishes between the laws of vows and the laws of oaths. Maimonides writes in Mishneh Torah, Laws of Vows 3:1:

There are four matters in which vows differ from an oath of utterance. In an oath of utterance, one oath does not take effect upon another oath, whereas with vows a vow can take effect upon a vow. One who extends an oath by analogy is exempt, whereas in vows he is liable. An oath of utterance takes effect only regarding optional matters, whereas vows take effect on matters of mitzvah (commandment) just as on optional matters. An oath of utterance takes effect on something tangible and on something intangible, whereas vows take effect only on something tangible.

We should note, however, that not every such difference must derive from the hefza-gavra distinction, since there may be other parameters that distinguish vows from oaths. We will see examples of this below.

Tosafot, in its comment beginning “Nedarim” on Nedarim 2b, asks:

If you ask: what practical difference is there whether he prohibited the object upon himself or prohibited himself with respect to the object? One may answer: the difference is that if he said, “Konam, I will not eat this loaf,” he has said nothing; and regarding an oath it is the reverse.

That is, Tosafot ties the difference between hefza and gavra to a semantic matter: if someone says, by the formula of a vow, “Konam, I will not eat this loaf,” he has said nothing, because a vow must prohibit an object to the person, not the person with respect to the object. Of course, this practical difference is indeed practical, but it does not say very much. It is a difference that follows directly from the definition, without committing us to any concrete content. By the same token, one could have offered the practical difference of someone who betroths a woman on the condition that a vow is a law in the person, in which case she would not be betrothed. This is a well-known yeshiva joke: when people say, “The practical difference is for the betrothal of a woman,” they mean to suggest that there is really no practical difference at all.

A Practical Difference for the Betrothal of a Woman

We find a source for this in one of the medieval authorities, namely the Ran on Sanhedrin 15a. The Babylonian Talmud there discusses the rule that an ox sentenced to death is judged by a court of twenty-three judges, like a human capital case. In the course of the discussion the following question is raised:

They asked: by how many judges was the Sinai ox judged? Do we derive a temporary ruling from the law for later generations, or not? Come and hear, for Rami bar Yehezkel taught: “Whether beast or man, it shall not live” (Exodus 19). Just as a man is judged by twenty-three, so too a beast is judged by twenty-three.

The Talmud is discussing the animals that stood at the foot of Mount Sinai. Concerning them it is written that any beast that went up the mountain was liable to death. The question is whether those animals too had to be judged by a court of twenty-three, like any ox sentenced to death, or whether one may not derive a temporary law from the law for later generations. The conclusion is that they indeed required a court of twenty-three.

The Ran, in his novellæ there, asks:

If you ask: why do they seek a practical difference from this? What happened, happened. One may answer: “Study it and receive reward.” Alternatively, there is a practical difference for one who says, “I am hereby a nazirite if the death sentence of the Sinai ox required twenty-three judges.” If it did, he is a nazirite; if not, he is not.

The Ran first says that there is in fact no practical difference, and this is simply a clarification undertaken as Torah study for its own sake, without halakhic implications. A second possibility is that there is a practical difference in the case of someone who undertakes Naziriteship, or betroths a woman, on condition that the Sinai ox was judged by twenty-three.

The Meiri resolves this similarly: the practical difference would be for someone who vowed to clothe the poor in a number corresponding to the judges who would have judged the Sinai ox.

Of course, on this logic every fact about the world becomes Torah study, because even the question how many residents live at a certain address could become a halakhic question. After all, someone might betroth a woman on condition that there are thirty-one residents in that building, and we would need to know whether she is betrothed.

It seems, however, that the Ran means that because this is a Torah matter, namely a clarification of what happened at Mount Sinai, it counts as Torah study even if it has no present practical application. Only after we reach that conclusion can we add that there is also some halakhic consequence for betrothal and the like. Another item of information might yield the same consequence, but we still would not define it as Torah study.

Even so, the matter remains difficult, because in Yoma 5b the Talmud raises a similar difficulty regarding the order in which Moses dressed the priests, and asks why it matters at all, since what happened, happened. According to the Ran, one could have answered there too that the practical difference is for betrothal or for a Nazirite vow. That is, the Talmud does not regard such consequences as genuine halakhic implications, and the reason is obvious.¹

Still, one might say that a question about what Moses our teacher did is indeed a purely historical problem, with no halakhic relevance. But here we are dealing with a wholly legal question: how the Sinai ox ought to have been judged. That is a halakhic question, and perhaps for that reason one is more willing to accept the practical difference suggested by the Ran.

We may note that in Hagigah 6b the Talmud discusses the burnt offering that Israel offered in the wilderness, asking whether it required flaying and cutting up or not. The Talmud asks what practical difference this makes, and offers a very similar answer to that of the Ran:

For it was taught: Rabbi Yose the Galilean says, “The burnt offering that Israel offered in the wilderness did not require flaying and cutting up, because flaying and cutting up applied only from the time of the Tent of Meeting onward”… What practical difference does this make? Mar Zutra said: for the division of the cantillation. Rav Aha son of Rava said: for one who says, “It is upon me to bring a burnt offering like the burnt offering that Israel offered in the wilderness.”

The decision about what was done with the burnt offering brought by Israel in the wilderness affects someone who vows to bring a burnt offering in the same manner.

Back to Tosafot

The practical difference suggested by Tosafot is, of course, somewhat different in character from all of these. Here it certainly cannot be challenged by saying that every bit of information could yield the same kind of consequence. Even so, it remains a banal difference that follows directly from the definition itself, though admittedly it resembles the case in Hagigah somewhat. Are there also substantive consequences of this distinction? Other medieval authorities do present several such consequences. Tosafot’s ignoring them is puzzling. Later authorities indeed ask why Tosafot does not mention the other practical differences between vows and oaths. See, for example, Rabbi Shmuel Rozovsky, Hiddushei Rabbi Shmuel at the beginning of Nedarim. According to our approach, Tosafot probably understands that those other consequences do not stem from the hefza-gavra definition, but from other differences.

And in fact one must reflect on the distinction between hefza and gavra, for all Torah prohibitions are prohibitions of objects with respect to people. Is there in halakha any prohibition whose addressee is an object? Clearly, in every case the addressee is the human being. So why is there a difference between prohibiting an object to a person and prohibiting the person with respect to the object? This is precisely where the other consequences noted by the medieval authorities become important, because through them we may better grasp the nature of this distinction.

Halakhic Implications: The Other Medieval Authorities

Here we will briefly mention several halakhic implications noted by medieval and later authorities. Our aim is only to sharpen the distinction, so we will not dwell on each one at length.

1. The Ran, and Tosafot here as well, note a practical difference when someone makes a vow in the language of an oath, or the reverse. At first glance this is the same point made by Tosafot, but perhaps the intention here is different: for example, someone who swears not to eat a loaf of bread, or vows not to go to a certain place. In such a case, the fact that vow and oath are different mechanisms has consequences, and therefore a vow framed as an oath will not take effect. The case mentioned by Tosafot above, where someone says, “Konam, I will not eat this loaf,” is different: in terms of the content of the prohibition, it suits a vow, since there is here an object, the loaf, that is being prohibited to him, and only the formulation is problematic. In the examples just given, however, the content itself does not fit a vow.
2. Vows take effect so as to negate a mitzvah, whereas oaths do not. See the Mishnah at Nedarim 16a. Thus, if a person vows not to derive benefit from a sukkah, then even though there is a mitzvah to sit in the sukkah, if he does sit in it he transgresses the prohibition of “he shall not profane his word.” The medieval authorities disagree whether this difference is related to the hefza-gavra question. See the Ran and Ritva there.
3. The medieval authorities also disagree regarding a vow whose purpose is to support a mitzvah rather than negate it, that is, vows of encouragement. See Kehillot Yaakov, Nedarim, section 18. There too some connect the matter to the hefza-gavra distinction.
4. In vows, one does not say, “From the negative you infer the positive,” whereas in oaths one does. See the Ran on Nedarim 16a, s.v. “Our Mishnah.”
5. With respect to hatfasah (analogical transfer of a prohibition), that is, transferring a prohibition from an already prohibited object to a permitted object, which is possible only in vows and not in oaths. See Ritva on Nedarim 14a and at the beginning of chapter 2, and parallels.

The main and most illuminating consequences are numbers 2 and 3. Several medieval authorities explain that the difference lies in the hefza-gavra issue. Vows are the imposition of a prohibition on the object, and therefore the obligation resting on the person to sit in the sukkah does not contradict the imposition of a prohibition on the sukkah. After that, an interesting clash arises between the obligation to fulfill the mitzvah of sukkah and the prohibition resting on sitting in that sukkah. By contrast, if a person swears not to sit in the sukkah, the prohibition cannot take effect on the person, because he is already under oath, as it were, from Sinai to sit in the sukkah, and one oath does not take effect upon another oath.

This explanation applies both to vows and oaths that seek to prevent the performance of a mitzvah and to those that seek to spur a person to perform one. Halakhic obligations are imposed on the person, and therefore they prevent the imposition of additional contradictory or even parallel obligations on him. But obligations imposed on the person do not prevent the imposition of prohibitions on objects, even if, in the end, contradictions arise between those obligations and prohibitions.

An Interim Conclusion Regarding the Other Torah Prohibitions

In the previous paragraph we assumed that the ordinary halakhic duties rest on the person, that is, they are not duties in the object. Therefore they prevent additional duties from being imposed on the person, but they do not prevent duties, even contradictory ones, from being imposed on the object.

Beyond that assumption, there is another hidden assumption here. As we saw, a vow is a legal status imposed on the object. By contrast, an oath is a duty of the person. Does that mean that an oath imposes no legal status at all, that it is merely a norm that obligates the person without creating any juridical status? Or is an oath too a kind of legal status, except that unlike a vow, here the status rests on the person rather than on the object?

The explanation given above for why vows and oaths do or do not take effect with respect to a mitzvah assumes that mitzvot impose legal status on the person, and that an oath also imposes legal status upon him. Hence one existing legal status prevents the imposition of another. If an oath were only a subjective norm, it would presumably not prevent the imposition of another norm on the person. Perhaps an opposite norm would be different, along the lines of the principle that an act performed in violation is legally ineffective, as we discussed in last week’s essay. But that certainly would not explain why even a matching or parallel norm could not be imposed.

Thus this explanation assumes three things:

1. Ordinary halakhic duties are duties resting on the person.
2. Duties resting on the person are legal statuses imposed upon him, not merely subjective duties.
3. The existence of halakhic duties prevents the imposition of additional norms, whether parallel or contradictory.

Each of these assumptions may be challenged, and indeed the medieval authorities disagree about them.

What Does a Gavra Prohibition Mean?

We have seen that the claim that oaths are gavra prohibitions can be interpreted in two ways:

1. There is no legal status of prohibition at all; rather, this is simply a duty imposed on the person that is not derived from any legal status.
2. There is indeed a legal status of prohibition, but it rests on the person rather than on any object.

In the previous section we encountered an opinion that sees oaths as a legal status resting on the person, but according to most views, an oath is nothing more than the absence of such status, that is, a subjective prohibition.

Even the rule that an oath does not take effect regarding a mitzvah can be explained according to this latter view. An oath imposes a prohibition on the person, and if there is already a halakhic status imposing the opposite obligation on him, then the duty created by the oath cannot take effect, as explained above. A legal status resting on an object, by contrast, is not blocked by a duty resting on the person, because the object itself is not obligated in mitzvot. We will see such an argument explicitly in Tosafot below.

At first glance one might wish to bring proof from the Ran on Nedarim 18a, who explains that although a vow can take effect upon an oath, an oath cannot take effect upon a vow. The explanation is that in a vow, besides the hefza prohibition, there is also a gavra prohibition of “he shall not profane his word.” And since an oath is a legal status on the person, it cannot take effect upon a vow, because in a vow too there is already legal status on the person.

On the face of it, however, one might have argued that an oath should indeed take effect upon a vow, because a vow is a hefza prohibition, meaning that the legal status of prohibition exists only on the object, whereas the oath adds a legal status of prohibition on the person. To explain the Ran we would have to assume one of two things:

1. A vow also involves a legal status of prohibition on the person, in addition to the status on the object. Therefore an oath, which is a status on the person, adds nothing and does not take effect.
2. A vow does not involve legal status on the person, but an oath is not legal status either; it is only a subjective prohibition, and therefore it adds nothing to the vow and does not take effect.

The first possibility is very difficult. In a vow, it is obvious that there is a legal status of prohibition on the object, and it is obvious that the person is forbidden to violate the status resting on that object. Why must we add that there is also a legal status of prohibition on the person? The straightforward view is that the status rests on the object, and the prohibition on the person follows from it. Clearly, the legal status of prohibition on the object does not itself impose a prohibition whose addressee is the object. Only human beings are bound by prohibitions. Therefore, the status in the object is what imposes a prohibition on the person, and there is no need to posit an additional status on the person himself.

It should be noted that the Ran himself, in his commentary on the Rif in Shevuot 8a of the Rif’s pagination, discusses whether one can create hatfasah of an oath from one person to another, and makes the matter depend on whether an oath involves legal status on the person or whether it is a subjective prohibition without legal status.

The conclusion, therefore, is that according to the Ran here there is no legal status of prohibition on the person in a vow, and thus he clearly holds that in oaths there is no legal status of prohibition at all. Hence the oath adds nothing to the vow. As stated, this is how most commentators understood the expression gavra prohibition. It is not parallel to hefza prohibition, as though there were legal status in both cases, but in one case on the object and in the other on the person. Rather, it means the absence of legal status. There is only a subjective duty on the person, not accompanied by and not derived from any juridical status. Below we will see that in Naziriteship the situation may be different.

The Avnei Nezer and Rabbi Shimon Shkop

Some later authorities defined the terms hefza and gavra differently from what we have described so far. As we saw, a vow can take effect so as to negate a mitzvah, whereas an oath cannot. We explained this by saying that a vow imposes legal status on the object, while the Torah’s other obligation rests on the person; therefore there is no impediment to the vow taking effect on the object. For example, if someone prohibits the sukkah to himself by a konam formula, the prohibition takes effect on the sukkah, even though the person remains obligated to sit in it.

The Minhat Hinukh, on commandment 30, asks why the positive commandment of sitting in the sukkah should not override the negative prohibition of the vow. The Minhat Hinukh answers that in a vow there is both a negative and a positive commandment. The Rashba says the same in Nedarim 16a. But this explanation is difficult, as the Rashba himself already noted, because in a vow these prohibitions can be annulled by petition, and in Yevamot it is explained that a positive commandment overrides even a negative and positive commandment when they are of the sort that can be annulled by petition.

The Nimukei Yosef on Nedarim, in his comments on the laws of the Ramban, 5a of the Rif’s pagination, answers that vows are hefza prohibitions, and one does not feed a person something that is prohibited to him, for the Torah did not say to fulfill a mitzvah through items from which benefit is forbidden. Therefore one cannot say here that a positive commandment overrides a negative commandment.

Rabbi Shimon Shkop, in his novellæ to Nedarim, challenges the Nimukei Yosef: why should a positive commandment not override a negative prohibition in the object? In what way is an offense involving the object different from an offense involving the person for this purpose? Clearly, the object itself is not obligated in mitzvot; only the person is. So in every case the problem is that the person commits a transgression. If a positive commandment overrides the problematic nature of a transgression by a person, why should an object-offense be any different?

Rabbi Shimon Shkop resolves the Nimukei Yosef by saying that the terms hefza and gavra must be interpreted differently. The difference is not in the legal status of the prohibition but in its purpose. A hefza prohibition is a prohibition whose basis is the prevention of damage to the object. The goal of the prohibition is the object, not the person. For example, misuse of sacred property is damage to a sacred object, and therefore it is a hefza prohibition. By contrast, desecrating Shabbat is a gavra prohibition, because its goal concerns the person. So too the prohibition of carcass meat, which at first glance seems to be a hefza prohibition, is actually a gavra prohibition. Its purpose is to prevent spiritual harm, the dulling of the heart, to the person who eats it. In any case, in both types the prohibition is on the person, not on the object. The difference is only what the prohibition aims to protect.

We can now understand the Nimukei Yosef. When the prohibition concerns the object, a positive commandment resting on the person does not override it. A positive commandment imposed on me does not license harm to a sacred object, or to some other aspect of the world. By contrast, in gavra prohibitions there is no damage to anything other than the person himself, and there his positive commandment overrides the problematic nature of such harm.

A similar claim appears in the Avnei Nezer, Orah Hayyim 37:4:

In truth, regarding the matter of gavra prohibition and hefza prohibition, one could say whatever one likes about any prohibition, for at first glance the distinction is not understood, since every prohibition concerns both the object and the person.

I have long heard that great scholars struggled with this matter, and I saw in the Ritva on Shevuot that all Torah prohibitions are gavra prohibitions. At first glance it is astonishing to say of carcasses and creeping creatures that they are not hefza prohibitions.

The explanation that seems to me is this: a gavra prohibition is said of an act that damages human excellence, such as creeping creatures, as it says, “Do not make your souls abominable,” and “You shall be holy men,” and “Flesh torn in the field…” Given the stature of Israel, carcasses and creeping creatures are simply not fit for them. That is a gavra prohibition. But when one benefits from sacred property, or when a non-priest eats terumah, the opposite is true: he draws near to something above his level. How can a non-priest approach terumah, or an ordinary person approach things consecrated to Heaven? That is a hefza prohibition, because it damages the object. Therefore a konam, since it models itself on a sacrifice and since me’ilah applies to konamot as well, is called a hefza prohibition. But in an oath no sanctity attaches to the object at all. He merely profanes his speech and his oath and thereby damages his own soul. Therefore it is a gavra prohibition. And thus the Ritva’s words are well explained. Certainly, on this basis, the prohibition of Yom Kippur too is a gavra prohibition.

The Avnei Nezer explains that according to this definition, the prohibitions of carcass meat and creeping creatures are not hefza prohibitions, because the question is not whether there is a prohibited object here, or whether a legal status of prohibition rests on the object, but what the prohibition is trying to protect: the object or the person.

Still, it is somewhat difficult to fit this explanation into the language of the Nimukei Yosef, because he writes that “one does not feed a person something that is prohibited to him,” which explicitly implies that the problem lies with the person. It therefore seems that he meant something else. He refers to hefza prohibitions in the standard sense, and his claim is that hefza prohibitions damage the soul. Therefore, even when there is a positive commandment, we do not tell a person to eat and damage his soul in order to fulfill a mitzvah. Only when the prohibition is a subjective norm resting on the person himself does the mitzvah override the prohibition.

And indeed this is what we find in Tosafot, in the comment beginning “That is not so,” on Shevuot 25a:

In chapter 2 of Nedarim, 16a, it asks: why is a vow different, for it is written, “When a man vows a vow to the Lord”; with regard to an oath too it is written, “or swears an oath to the Lord”? And it answers: this is where he says, “Sitting in the sukkah is upon me,” and that is where he says, “I will not sit in the sukkah.” This implies that in vows, since he forbids the sukkah to himself, it is fitting that the vow should take effect, because he prohibits the sukkah to himself like a sacrifice, and the sukkah is not commanded to perform a mitzvah. But in an oath, where he prohibits himself with respect to the sukkah, the oath does not take effect, because he is already obligated to perform the mitzvah.

This is completely contrary to the words of Rabbi Shimon Shkop and the Avnei Nezer. It is explicit here in the standard understanding that a hefza prohibition means a legal status of prohibition resting on the object.

There is also a difficulty for Rabbi Shimon Shkop from those medieval authorities who hold that one can create a hefza prohibition, that is, a vow, in the language of an oath. See Tosafot, comment beginning “This,” on Nedarim 16b, and the Tosafot on Shevuot just cited. On the face of it, according to his approach, both a vow and an oath are prohibitions whose whole effect falls on the person rather than the object, for what is forbidden is the profanation of his speech.

These later interpretations are difficult in light of a number of Talmudic discussions and medieval authorities, and it seems that at least for most of the medieval views they cannot be maintained.

Are the Torah Prohibitions Hefza or Gavra?

As we have seen, the Talmud distinguishes between vows, which are a law in the object, and oaths, which are a law in the person. The question that arises is where the novelty lies. Are all Torah laws ordinarily hefza laws, with the novelty being that the laws of oaths are gavra laws? Or are all Torah laws ordinarily gavra laws, with the novelty being that the laws of vows are hefza laws? The implication concerns the rest of Torah law, apart from vows and oaths: are they hefza laws or gavra laws? The author of Kehillot Yaakov, Nedarim section 15, discusses this question and finds that it is a matter of dispute among the medieval authorities.

He explains that if all Torah prohibitions were hefza prohibitions, then the claim of the Nimukei Yosef could not stand, because it would follow that in all prohibitions the rule that a positive commandment overrides a negative one would fail. By contrast, the Rashba, who does not accept the Nimukei Yosef‘s answer, apparently understood that Torah prohibitions in general are hefza prohibitions, and therefore even with regard to hefza prohibitions the rule that a positive commandment overrides a negative one still applies.

Indeed, the Rashba writes explicitly in Responsum 615 that all Torah prohibitions are hefza prohibitions. This is cited by Rabbi Akiva Eiger in his glosses to Yoreh De’ah 215.

The Ritva, on Shevuot 20b and Kiddushin 54, likewise writes that Torah prohibitions are gavra prohibitions, and he explains by this the rule that hatfasah in vows works only with respect to “a vowed thing,” that is, something prohibited by force of a vow, and not with respect to “a prohibited thing,” that is, something prohibited for some other reason. Hatfasah is the transfer of a legal status of prohibition from one object to another. Something whose prohibition does not arise through a vow, such as pork, has no legal status of prohibition resting on it, and therefore one cannot transfer any such status from it to another object in order to create a vow prohibition. By contrast, in a vowed object the prohibition is a legal status attached to the object, and therefore it can be transferred to another object.

Other Concepts of Hefza and Gavra

In a number of contexts we find references by medieval and later authorities to hefza and gavra prohibitions, and it seems that all of them are ignoring our Talmudic passage.

For example, the author of Netivot HaMishpat, section 234, claims that all Torah prohibitions are hefza prohibitions, whereas rabbinic prohibitions are gavra prohibitions. The implication is that if one violates a rabbinic prohibition inadvertently, he does not need repentance. The reason is that in rabbinic prohibitions the entire issue is rebellion against the Holy One, blessed be He, and if the act was inadvertent, no rebellion took place. By contrast, in Torah prohibitions there is also a reason in the object itself on account of which the thing is forbidden, and therefore even if one violated it inadvertently, he still transgressed a prohibition.

How can this be reconciled with those medieval authorities who say that Torah prohibitions are gavra prohibitions? And in general, it is commonly assumed that the prohibitions of forbidden foods are hefza prohibitions, and that for this reason they dull the soul of the one who eats them. How can that fit with the claim that Torah prohibitions are gavra prohibitions?

From this it seems clear that several different concepts of hefza and gavra are at work here, and it is important to distinguish between them. In the case discussed by the Netivot, the question whether a prohibition is hefza or gavra is not about the existence of a legal status of prohibition, but about whether there is something in reality that serves as the basis of the prohibition. For example, in pork there is something that dulls the soul, and therefore the Torah forbids eating it. That does not mean that a legal status of prohibition rests on the pig; it means only that there is something factually real in it that causes spiritual harm. The hefza-gavra distinction of the Netivot is a factual distinction. Our distinction is a legal one: where is the juridical entity called “prohibition” located?

B. The Character of the Prohibitions of the Nazir

Introduction

As we noted at the beginning of the previous chapter, vows and oaths are distinguished from one another on the axis of gavra and hefza, and this is reflected in the arrangement of the Mishnah at the beginning of Nedarim. The prohibitions of Naziriteship appear there after both vows and oaths, leaving the question of their character, whether gavra or hefza, open. At first glance they seem to be gavra prohibitions.

On the other hand, in Nedarim 18a the Talmud assumes that the stringency found in an oath as compared to Naziriteship is the same sort of stringency that oaths have over vows. This suggests that Naziriteship is a kind of vow, and thus that it involves legal status of prohibition, which would mean that Naziriteship is a hefza prohibition. The question then is what that legal status rests upon, what the relevant hefza is, and why in the opening Mishnah of Nedarim Naziriteship is not brought alongside vows, before oaths.

The question of the character of the prohibitions of Naziriteship was discussed chiefly by the Maharit, in part 1, responsa 53-54, and by the Avnei Milu’im, in his responsa printed at the end of the book, section 22. We will address it here briefly. In practice, four different conceptions emerge.²

The View of the Rosh and the Maharit

The Rosh, in his commentary to the discussion on 18a, explains the prohibitions of Naziriteship as follows:

A nazirite, although wine is forbidden to him, does not have the wine itself forbidden upon him. Rather, Naziriteship depends on his person, for he says, “Behold, I am a nazirite,” and consequently he becomes forbidden with respect to wine, haircutting, and impurity.

At first glance, the Rosh is explaining Naziriteship as a gavra prohibition, not a hefza prohibition. The forbidden objects for the nazirite are wine and its derivatives, and no legal status of prohibition rests on them. However, from his phrase “Naziriteship depends on his person,” it would seem that a legal status does rest on the nazirite himself. In other words, this is a gavra prohibition that does involve legal status, and the status rests on the person rather than on the prohibited objects. From that legal status on the person follow his prohibitions to drink wine, to cut his hair, and to contract impurity. In the case of a nazirite, unlike an ordinary vow, the forbidden acts are not acts performed on the prohibited object. Rather, they are acts performed by the person, who is the “object,” so to speak, upon whom the legal status rests.

Exactly this is found in Maharit, responsum 53, s.v. “And so it seems to me”:

A vow is a law in the object and has no connection to the person who vowed. An oath is a prohibition on the person, but his body itself is not seized by it. In Naziriteship, he himself is seized by the vow, and his body becomes sanctified, analogous to a priest; consequently, he becomes prohibited.

The View of Mahari Bassan

At first glance, Mahari Bassan, as cited by the Maharit and the Avnei Milu’im, also agrees with these views. He writes that Naziriteship is a hefza prohibition, except that the forbidden object is the limbs of the person, that is, of the nazirite. However, his language suggests that the legal status makes those limbs themselves into an object of prohibition, rather than that this is merely a legal status from which norms concerning wine are derived. According to Mahari Bassan, the person prohibits his own mouth to himself for the drinking of wine, and similarly with other acts. The hefza of prohibition is thus the mouth. This is a different conception from that of the Maharit.

The View of Mahari ben Lev

The view of Mahari ben Lev is that Naziriteship is a hefza prohibition resting on the wine itself. He brings proof from the Rif, who equated hatfasah in Naziriteship with hatfasah in vows rather than in oaths. That would mean that a legal status of prohibition rests on the wine with respect to the nazirite.

The Maharit does cite this view and disagrees with it. In his opinion, there is no hatfasah in Naziriteship in the form of saying about dried figs, “These are like wine.” See there carefully.

The View of Tosafot

Tosafot, in the comment beginning “A stringency,” on Shevuot 25a, asks:

There is a stringency in vows, for vows take effect regarding a matter of mitzvah just as with optional matters. In chapter 2 of Nedarim, 16a, we derive this from the verse “to the Lord.” And at the beginning of Tractate Nazir, 5a, we expound from “he shall abstain from wine and strong drink” that wine used for a mitzvah is prohibited just like ordinary wine. This is puzzling: why do I need two verses? Are not vows and Naziriteship compared to one another at the beginning of Tractate Nedarim, 3a?

Tosafot answers:

Both are needed. In Naziriteship he forbids all wine to himself, and therefore it can take effect on mitzvah wine just as on ordinary wine. But in vows, where he forbids to himself only the specific mitzvah object, such as sukkah, shofar, lulav, or tefillin, one might have said that it does not take effect. And if only vows had been written, I would have said: that is because he prohibits the mitzvah objects to himself. But in a nazirite, where he prohibits himself with respect to the wine, it would not take effect, for even in vows themselves, when he prohibits himself with respect to the sukkah, it does not take effect.

That is, had there been a verse only about vows, we would not have known the law for Naziriteship, because Naziriteship is a gavra prohibition, and gavra prohibitions do not take effect upon other prohibitions. From the plain sense of Tosafot’s language, it appears that he means that in Naziriteship there is no legal status at all, not even on the person. The phrase “he prohibits himself with respect to the wine” is precisely the expression used by the Talmud at the beginning of Nedarim for gavra prohibitions.

The Meaning of the Disagreement

The Avnei Milu’im explains that according to Mahari ben Lev and Mahari Bassan, the prohibition of Naziriteship is a prohibition equally applicable to all. That is, all people are potentially included in this prohibition, if they undertake Naziriteship. By contrast, according to the Maharit, Naziriteship is a prohibition not equally applicable to all. Speech turns the person into a nazirite, but the prohibitions themselves take effect by force of the Torah’s command, and they are relevant only to Nazirites, that is, to those upon whose persons the legal status of Naziriteship rests. This is similar to the prohibitions of impurity, which apply only to priests and therefore are not equally applicable to all.

According to Mahari Bassan, speech creates a legal status of prohibition on the wine, and drinking it is therefore a violation, a profanation, of his word. But according to the Maharit, speech creates a status of Naziriteship on the person, and the prohibitions then apply to him by force of the Torah’s command. Therefore the Avnei Milu’im asks, in responsum 15, why a nazirite transgresses “he shall not profane” when he drinks wine. After all, drinking wine violates a prohibition imposed by the Torah, not one created by his speech. His speech created a legal status on him that made him a nazirite, and now the Torah’s prohibitions on drinking wine apply to him, much as the prohibition against impurity applies only to priests and therefore is not universally applicable.

The Avnei Milu’im explains that according to the Maharit, when the nazirite violates the prohibitions that the Torah imposed on him, his Naziriteship lapses, and by causing that lapse he profanes his word.

Clarifying the View of the Rosh

We saw that according to the Rosh, Naziriteship is a legal status resting on the person, from which prohibitions imposed upon him are derived, such as drinking wine. The common understanding of the Rosh is that these derivative prohibitions are gavra prohibitions. The legal status on the person is not itself a legal status of prohibition, but a legal status of Naziriteship from which prohibitions are derived. No legal status of prohibition rests on the wine itself. If so, this is a gavra prohibition resting on Nazirites, and Nazirites are persons upon whom the legal status of Naziriteship rests.

Why, then, does the Rosh view these prohibitions as gavra prohibitions? At first glance, it is because he holds that all Torah prohibitions are gavra prohibitions.

Yet elsewhere the Rosh refers to eating prohibitions as hefza prohibitions. In Atvan DeOraita, section 10, it is reported that the Rosh held that it is preferable to slaughter for a sick person on Shabbat rather than feed him carcass meat, even though violation of Shabbat is punishable by stoning while carcass meat violates only an ordinary negative commandment. The reason given is that Shabbat is a gavra prohibition, whereas carcass meat is a hefza prohibition.

But this is not conclusive, because the concept of hefza in the discussion of a sick person on Shabbat does not concern whether or not a legal status of prohibition rests on the object. The question there is what spiritual damage is caused by violating the prohibition. The Rosh argues that it is preferable to violate a gavra prohibition, because when the act is done permissibly, it is not a transgression, and the spiritual effects associated with a gavra prohibition are absent. By contrast, in a hefza prohibition there may be no transgression, because the act is done to save the sick person’s life, yet since it has an objective dimension, the soul of the person who partakes of it is still harmed. In that context, then, the hefza-gavra distinction is like that of the Netivot discussed above, and is not necessarily related to our question of legal status of prohibition on the object.

Prohibitions with Limitations

We have seen that the Rosh assumes that the prohibitions of the nazirite are gavra prohibitions, and we asked why he decided this. We suggested one explanation, namely that in his view all Torah prohibitions are gavra prohibitions, but we saw that this is not simple. It may be possible, however, to explain his position differently.

As we saw, according to the Rosh the prohibitions imposed on the nazirite are not equally applicable to all, because they apply only to Nazirites. That is, there is a limitation here: the prohibition does not apply to all people. The common halakhic intuition is that prohibitions with such limitations are gavra prohibitions rather than hefza prohibitions.

For example, in Atvan DeOraita, section 10, there is a discussion of prohibitions that depend on time. We mentioned above the prohibition of labor on Shabbat, which is commonly viewed as a gavra prohibition. Here too the reason these prohibitions are seen as gavra prohibitions is that they are limited along the axis of time.

The logic behind this is that if a prohibition truly had an objective dimension, meaning that some reality in the object itself generated the prohibition, then it ought to apply to everyone at all times. A prohibition that changes from moment to moment is presumably subjective, not a reality that oscillates back and forth for no evident reason. The object does not change merely with the passage of time, and therefore a time-dependent prohibition clearly appears to be subjective rather than a law in the object.

Perhaps the same applies to a prohibition imposed only on priests or only on Nazirites. A prohibition that had an objective dimension should apply to every person. Therefore, if there is a prohibition that does not apply to all human beings, it is probably a subjective prohibition.

To be sure, the law of vows itself seems to contradict this picture, because a person can prohibit a particular object to himself and yet a legal status of prohibition rests on the object. Later authorities have already noted, however, that perhaps one should distinguish between a general konam and a private konam. A person can prohibit his own object by konam to the whole world, or only to himself. An object belonging to others, of course, he can prohibit only to himself. According to our approach, only in a general konam would there be a legal status of prohibition in the object, because only there is the prohibition universal. And indeed, in a private konam there would be no such legal status.³

One may still ask whether the claim of Atvan DeOraita concerns the hefza-gavra concepts with which we are dealing here, namely on what, if anything, the legal status of prohibition rests, or rather the hefza-gavra concepts of the Netivot, namely whether there is some objective dimension that causes the prohibition. Perhaps it concerns both, but this is not the place to elaborate.

C. The Relation to the Phenomenon-Noumenon Distinction⁴

Introduction

We have been discussing the relation between hefza and gavra prohibitions. We saw several types of prohibition in halakha, and divided them along two axes:

1. The axis of legal status:
2. A subjective prohibition not accompanied by any legal status.
3. A prohibition accompanied by legal status resting on the person, in two different versions.
4. A prohibition accompanied by legal status resting on the object.
5. The axis of objective dimension:
6. Prohibitions that have no factual root.
7. Prohibitions that do have a factual root.

Already at the outset we asked how one can distinguish between a situation in which the person is forbidden with respect to the object and one in which the object is forbidden to the person. In both cases, the addressee of the prohibition is the person, so what difference is there between these two formulations? Are there really halakhic prohibitions addressed to objects?

Rabbi Shimon Shkop and the Avnei Nezer proposed an original solution, distinguishing prohibitions by their purpose rather than by their structure. But we saw that, according to most medieval approaches, that cannot be sustained. The basic distinction therefore still requires explanation.

The Kantian Distinction Between Phenomenon and Noumenon

Kant distinguishes between things as they are in themselves, the world of noumena, and things as they are reflected to our human consciousness, the world of phenomena.

He argues that every statement we make and every understanding we have concerns only the world of phenomena, because the world of noumena is inaccessible to us. We cannot observe or establish any contact with the world as it is in itself, but only with the world as it appears to us. From our perspective, that is “the world.”

According to this approach, the distinction between a law in the object and a law in the person seems problematic. How can one speak of laws in the object? Seemingly these are statements about the world as it is in itself, rather than about the way we perceive it. By contrast, laws in the person are laws that concern the subject, that is, the phenomenal realm.

The Noumenon Within the Phenomenon

One could reject this difficulty by saying that even speaking about a property of the world as it is in itself is still speech that takes place within our own conceptual world. That is, when we deal with the world itself, we deal with essence as apprehended, not with essence itself. Within our consciousness there is a dichotomy that places an observer opposite an observed world. Both the observer and the observed world are products of our consciousness and its instruments, but both aspects appear within the phenomenon as it exists in us.

But in our case there is no need for all of that. The laws of vows and their character are not the result of our empirical observation of reality. They are laws introduced by the Torah, which revealed to us that when a person makes a vow, a legal status of prohibition is created on the object as it is in itself. To deny this, one would have to go a step beyond Kant and claim that there is no world in itself at all, no noumenon, but only a world of appearances. Yet such skepticism is highly speculative, because just as we have no ability to establish contact with the world as it is in itself and describe it, so too we cannot claim that it does not exist. On causal grounds we infer that if there are phenomena that appear in our consciousness, it is reasonable to assume that there is something that produces them, something in the world itself that is the root of what we observe.

It is true that the effect of the legal status that characterizes the objective world takes the form of a prohibition imposed on us ourselves, that is, something belonging to the phenomenal realm. But this result turns out to differ from a pure phenomenon, namely a subjective prohibition unaccompanied by any legal status. For example, the former can take effect on an object of mitzvah, whereas the latter cannot. This very distinction constitutes evidence for the existence of a world as it is in itself. The fact that there are here two distinct phenomenal forms of prohibition indicates that one of them draws nourishment from the normative world as it is in itself, namely the totality of operative legal statuses of prohibition.

This leads us to the broader question: what is a legal status at all? Throughout our discussion we have assumed that a legal status is a kind of reality, a normative ontology, a genuine entity, and therefore that its very existence has normative consequences. One can indeed understand legal status in this way, but this is not the place to elaborate.⁵

Insights

1. There are two main explanations for the distinction between hefza and gavra prohibitions:
   – The standard explanation: hefza prohibitions are those that derive from a legal status of prohibition resting on the object, while gavra prohibitions are subjective prohibitions.
   – The explanation of Rabbi Shimon Shkop and the Avnei Nezer: hefza prohibitions are those whose purpose is to protect the sanctity of the object, while gavra prohibitions are rooted in protecting the person from spiritual failure.
2. There is another distinction that concerns whether transgressing the prohibition has an effect on reality or not.
3. In this latter sense, some later authorities tend to think that prohibitions with limitations are gavra prohibitions, meaning that they have no effect on objective reality. The limitations may be temporal, or they may concern which persons are subject to the prohibition.
4. There are halakhic questions that have no practical difference. One can always create an artificial practical difference, such as someone who betroths a woman, or undertakes Naziriteship, on condition that the answer to the question is X. There are also practical differences that are not substantive, yet are not entirely artificial either.
5. The prohibitions of vows are hefza prohibitions, and the prohibitions of oaths are gavra prohibitions. There is a dispute among the medieval authorities concerning the nature of the other Torah prohibitions. The main substantive implication, if there is one at all, concerns whether vows and oaths can take effect upon mitzvot and prohibitions, and upon one another.
6. With regard to the nazirite there are four approaches:
   – It is one type of vow, that is, a law in the object, with legal status of prohibition on the wine and grapes themselves.
   – It is a subjective prohibition, like an oath.
   – It is a prohibition that involves legal status of prohibition on an object, but the object here is the person.
   – It is a prohibition on the person’s limbs with respect to certain actions.
7. The third possibility raises a further conception of gavra prohibitions in general: perhaps they are not subjective prohibitions at all, but objective prohibitions, meaning that they too derive from some legal status of prohibition, except that the status rests on the person.
8. The distinction between hefza and gavra prohibitions in the standard sense is, at first glance, problematic, because the addressee of Torah prohibitions is always the human being. We presented this distinction in terms of Kant’s distinction between the world as it is in itself, the noumenon, and the world as it appears in our consciousness, the phenomenon.

Footnotes