Jews as Human Beings: B. The Two-Tier Model (Column 747)

With God’s help

Disclaimer: This post was translated from Hebrew using AI (ChatGPT 5 Thinking), so there may be inaccuracies or nuances lost. If something seems unclear, please refer to the Hebrew original or contact us for clarification.

In the previous column I discussed two conceptions of the Jewish people’s being a “chosen nation.” I sided with the cultural conception, which locates our distinctiveness in the mission we were given, and not in some essential spiritual genetics that inheres within us. That column addressed the relationship between a Jew and a gentile—that is, between persons. By contrast, this column is devoted to the relationship between Judaism and “gentileness,” namely between two normative systems (these are the missions I discussed there): our system of commandments versus the Seven Noahide Laws. The question I address here is: what is the relationship between the Jewish mission and the mission of the descendants of Noah? Before that, a brief addendum to the previous column.

Two conceptions of the relationship between a Jew and a Noahide

Rav Kook, in his book Orot Yisrael (pp. 155–156), grapples with the following question:

Israel’s form must be clarified: Does the general humanity that constitutes the content of “the human being” stand within them with the same character as in all nations, upon which the uniquely Jewish form is then built? Or is everything, from heel to head, unique? To clarify this, one must employ various sources—Torah, reason, hidden wisdom, revealed wisdom, poetry—and at times even politics and economics.

That is, is Israel an entirely new form, or is it composed of two tiers: the first tier is that of the Noahide—universal humanity—while the second tier is the one unique to us?

Ultimately Rav Kook arrives at the following conclusion:

It seems that originally the intent was that the human form would be completed in its entirety, and as an addition and advantage the splendid, holy aura of spirit would be revealed upon the particular nation. But matters were corrupted and the spirit of man sank so low in general that the profane could not serve as a foundation for the sacred unless it ruined it; therefore the Egyptian exile had to come as a furnace of iron to refine the human side within Israel, until they became a new being and their profane form was completely blurred. And thus a nation came into being all at once, through the human kernel, as a form that is, from head to heel, entirely Israelite—Jacob and Israel.

His source appears to be the sugya in Bava Kamma 38a, on the verse “He stood and measured the earth; He beheld and drove asunder the nations”—see there at length.

R. Shlomo Fisher also addresses this question in several places in his works. In Beit Yishai – Derashot, §§9 and 26, he notes that the sages of Israel differed on this question:

1. Some understood Israel’s selection from among the nations as a matter merely of primogeniture, as it is written: “My firstborn son is Israel.” A primary source is the mishnah in Avot 3:14:

He [=R. Akiva] would say: Beloved is man for he was created in the image [of God]; it is a sign of greater love that it was made known to him that he was created in the image, as it is said (Genesis 9): “For in the image of God He made man.” Beloved are Israel for they are called children to the Omnipresent; it is a sign of greater love that it was made known to them that they are called children to the Omnipresent, as it is said (Deuteronomy 14): “You are children to the Lord your God.”[1]

Thus every human being was created in the divine image, like Adam the first man. From within all humanity, the people of Israel are more beloved, for they are called “children” to the Omnipresent.

The author of the Tosafot Yom Tov on this mishnah notes that some commentators took the mishnah away from its plain sense and interpreted it about Israel, relying on the rabbinic derash[2] “You [Israel] are called ‘man’ (adam) and idolaters are not called ‘man’,” said regarding the verse in Ezekiel “You are man.” The Tosafot Yom Tov disputes them and rules that the mishnah and the verses should not be removed from their plain sense (for the verse “In the image of God He made the man” speaks of Adam), and certainly R. Akiva in the mishnah speaks about all human beings.[3]

Accordingly, this mishnah places all human beings under the divine image, and from among them Israel have a greater love—as a kind of firstborn. In Beit Yishai he also cites the verses of Psalm 117, which begin with all the nations and then move to Israel and then to the House of Aaron. There, too, one sees a gradual transition: from the descendants of Noah to Israel, and then to the priests.

2. Opposite this stands the view of the Kuzari and the kabbalists (see the previous column), who see Israel as a renewed form and a being unto itself; according to them Israel do not belong to the same genus as the other nations, in the sense of “Lo, it is a people that shall dwell alone and shall not be reckoned among the nations.” In Kuzari I:31–43 he writes that the form of the Jew differs in quality from that of the human being—just as man differs from animal, animal from plant, and plant from mineral.

But, as noted, this debate concerns the Jew, not necessarily Judaism. That was the subject of the previous column. Our concern here is to examine a similar question about the relationship between the two normative systems, and to do so mainly from halakhic aspects. I begin with the system of the Noahide commandments.

The Noahide commandments: primary sources

The principal source for the laws of the descendants of Noah is in Sanhedrin 56a–60a. The gemara in Sanhedrin 56a states:

Our Rabbis taught: Seven commandments were commanded to the descendants of Noah: [to establish] laws, and [the prohibition of] blasphemy, idolatry, sexual immorality, bloodshed, theft, and [eating] a limb from a living animal.

And some add several more:

R. Ḥanania b. (Gamliel) +Textual tradition: Gamliel+ says: also [the prohibition of] blood from a living animal. R. Ḥidka says: also castration. R. Shimon says: also sorcery. R. Yose says: everything stated in the passage of sorcery—a Noahide is warned about it: +Deuteronomy 18+ “There shall not be found among you one who passes his son or daughter through fire, a diviner, a soothsayer, an enchanter, a sorcerer, a charmer, one who consults a ghost or a familiar spirit, or one who inquires of the dead … and because of these abominations the Lord your God drives them out from before you.” And He did not punish unless He first warned. R. Elazar says: also diverse kinds (kilayim). Noahides are permitted to wear diverse kinds and to sow diverse kinds; they are prohibited only from cross-breeding animals and grafting trees.

Afterwards the Torah sources for these obligations are discussed at length:

From where [do we know these]?—R. Yoḥanan said: For Scripture says, +Genesis 2+ “And the Lord God commanded the man, saying: ‘Of every tree of the garden you may surely eat.’” “And He commanded (vayetzav)”—these are laws, as it says, +Genesis 18+ “For I have known him that he may command his children …”; “the Lord”—this is blasphemy, as it says, +Leviticus 24+ “He who blasphemes the Name of the Lord shall surely be put to death”; “God”—this is idolatry, as it says, +Exodus 20+ “You shall have no other gods”; “the man”—this is bloodshed, as it says, +Genesis 9+ “He who sheds man’s blood …”; “saying”—this is sexual immorality, as it says, +Jeremiah 3+ “Saying: If a man divorces his wife and she goes from him and becomes another man’s …”; “of every tree of the garden”—and not theft; “you may surely eat”—and not [a limb] from a living animal. When R. Yitzḥak came he taught the reverse: “And He commanded”—this is idolatry; “God”—these are laws.

And there are those who dispute two of these commandments:

Rather Rava said: This tanna is the tanna of the school of Menashe, who removes [the letters] dalet-kaf and inserts samekh-kaf. For the school of Menashe taught: Seven commandments were commanded to the descendants of Noah: idolatry, sexual immorality, bloodshed, theft, [a limb] from a living animal, castration, and diverse kinds. R. Yehuda says: Adam the first man was commanded only concerning idolatry, as it is said, “And the Lord God commanded the man.” R. Yehuda b. Beteira says: also concerning blasphemy; and some say: also concerning laws. In accordance with whom is that which R. Yehuda said in the name of Rav: “I am God—do not curse Me; I am God—do not exchange Me; I am God—let My fear be upon you”? In accordance with “some say.”

A summary appears in Maimonides, who writes at the beginning of Hilkhot Melakhim 9:

Six things were Adam the first man commanded: concerning idolatry, concerning blasphemy, concerning bloodshed, concerning sexual immorality, concerning theft, and concerning laws. Even though all of them are received by us from Moses our teacher, and reason inclines to them, from the words of the Torah it appears that he was commanded concerning these. He added for Noah [the prohibition of] a limb from a living animal, as it is said: “Only flesh with its life, its blood, you shall not eat.” Thus there are seven commandments. And so it was throughout the world until Abraham. Abraham came and was commanded additional commandments: circumcision; he instituted the morning prayer. Isaac tithed and added the afternoon prayer. Jacob added the sciatic nerve and prayed the evening prayer. In Egypt Amram was commanded additional commandments, until Moses our teacher came and the Torah was completed through him.

Israel and the descendants of Noah: “adjacent” combination or “blended” combination[4]

On the genealogical plane it is clear that the people of Israel are also part of the descendants of Noah (they are the offspring of Shem). It is therefore natural to see the Jew as a species within the genus of humanity. What happens on the normative plane? What is the appropriate relationship between the systems of commandments of Jew and Noahide? All halakhic authorities agree that all the Noahide commandments bind Israel as well; only that Israel have many additional commandments.[5] This suggests that, metaphorically speaking, on the normative plane every Jew also harbors a Noahide within (i.e., that is the relationship between these two systems of commandments). Let me sharpen this.

Some have distinguished between two kinds of compositions, and two kinds of compound concepts, in halakhah: a “blended composition” (harkavah mizgit) and an “adjacent composition” (harkavah shekhenit).[6] Concepts composed in a blended manner fuse their two components into a new single entity, whereas concepts composed in an adjacent manner leave the two components in their own form as neighbors to one another. For example, we may ask whether a High Priest is an ordinary priest with an addition, or whether he is an entity of a different kind. The practical ramification is whether the laws of an ordinary priest apply to a High Priest (did a High Priest who had relations with a divorcee transgress two prohibitions—of the High Priest and of an ordinary priest? Can something exist that binds an ordinary priest but not a High Priest?). Another example: the gemara states that in every “habitual ox” (mu‘ad) the “innocent ox” (tam) still exists (“the innocent aspect remains in its place”—see Bava Kamma 18a and parallels); that is an adjacent composition.

In this terminology, the descriptions we saw regarding the Noahide laws imply that Israel constitutes an “adjacent composition” of a Noahide together with the Jewish stratum above it, and not a “blended composition.” True, this composition stands between two components one of which sits atop the other and not beside it, yet we can still speak of blended vs. adjacent composition between tiers. For our purposes, this is adjacent in the sense that the two-tier structure preserves each tier rather than melting them into a single alternative structure.

I wish to argue here for the “adjacent” stance: that we are dealing with a two-tier model—a first tier of Noahide, upon which there is a particularistic, Israelite tier that does not erase the first tier but is added above it. To this end we must return to Maimonides’ words cited above.

Two innovations in Maimonides: the two-tier model

In the passage in Maimonides cited above there are two main additions that touch on our topic:

1. He rules that reason inclines to these commandments—that is, the descendants of Noah were commanded only the rational commandments.[7]
2. He presents the Seven Noahide Laws as an integral part of the development of Israel’s full system of commandments. First the world was commanded these seven, and afterward more commandments were added, until Moses brought the system to completion.

I wish to argue that these two innovations are interconnected. From Maimonides’ words it emerges that the system of commandments reflects a structure of two tiers: the first tier is the universal foundation containing the Seven Noahide Laws, and the second tier is the particularistic Jewish tier containing the rest of the Torah system.[8]

Hence also Maimonides’ view regarding the nature of the Noahide commandments: they are commandments to which reason inclines, for they constitute the substratum that characterizes the divine image within the human being as such. These are commandments that every rational person is obligated in, and they are the primary substrate upon which the unique Jewish-Torah system is built. It is therefore plausible that every rational person will also grasp his obligation in them.

If so, it seems that Maimonides holds that Israel is an adjacent composition. The immediate implication is that every Noahide obligation applies to Jews as well. There cannot be something that binds the descendants of Noah but not the Jews. And indeed the gemara in Sanhedrin states exactly this.

A commandment stated for the descendants of Noah and repeated at Sinai

The sugya in Sanhedrin 59a discusses commandments that were given to the descendants of Noah. In the midst of the discussion of “a limb from a living animal,” it asks why the Torah needed to repeat at Sinai commandments already given to the Noahides:

Why is it written for the descendants of Noah, and why is it repeated at Sinai?—As R. Yose b. Ḥanina said. For R. Yose b. Ḥanina said: Every commandment that was stated for the descendants of Noah and repeated at Sinai—was said to both [Israel and Noahides]. [If it was stated] to the descendants of Noah and not repeated at Sinai—it was said to Israel and not to the descendants of Noah. And we have only the sciatic nerve, and that according to R. Yehuda.

The master said: Every commandment that was stated for the descendants of Noah and repeated at Sinai was said to both. On the contrary—since it was repeated at Sinai, it was said to Israel and not to the descendants of Noah!—Since idolatry was stated at Sinai and we find that a gentile is punished for it—learn from here that it was said to both. [If it was stated] to the descendants of Noah and not repeated at Sinai—it was said to Israel and not to the descendants of Noah. On the contrary—since it was not repeated at Sinai, it was said to the descendants of Noah and not to Israel!—There is nothing that is permitted to Israel and forbidden to a gentile.

The gemara establishes a rule: a commandment given to the descendants of Noah and repeated at Sinai is directed to all humankind; a commandment given only to the descendants of Noah was said only to Israel. As the gemara itself notes, this latter clause is quite difficult: why should commandments not repeated at Sinai be addressed only to Israel? To the contrary, it seems more reasonable that they would be directed only to the descendants of Noah. It is apparent that the gemara sees Israel as an additional tier beyond the Noahide tier: the universal commandments given to the descendants of Noah were certainly said also to Israel, and some of them were said only to Israel. There cannot be a commandment said only to the descendants of Noah.

The gemara even sets a rule: there is nothing that is forbidden to a Noahide and permitted to Israel. That is, all the Noahide laws are relevant to Israel as well—“whoever has two hundred has one hundred” (i.e., the greater set includes the lesser).[9] And indeed Rashi writes there: “For when they departed from the category of the descendants of Noah, it was to be sanctified that they departed, not to be lenient upon them.” That is, Israel are the descendants of Noah with an additional tier; a brand-new being was not created.

In this context note the first two derashot in Parashat Derakhim (by R. Yehuda Rosanes, author of Mishneh La-Melekh), which discuss the status of the Patriarchs (and of Israel in general before the giving of the Torah and before the conversion they underwent at the Exodus). There he cites a dispute among the commentators whether the Patriarchs exited the category of the descendants of Noah and became Israel, or whether they merely took upon themselves the stringencies of Israel (they accepted only the second tier), while in practice remaining Noahides. According to our presentation here, that question pertains only to the second tier, for the first tier remains fully in place even for a full-fledged Israelite (apart from several changes in particulars we shall see below).[10]

Rav Kook in ‘Etz Ha-Hadar

At the beginning of his book ‘Etz Ha-Hadar, Rav Kook cites the opinion of the Levush that an etrog grafted onto another species is disqualified because a transgression was committed with it (the transgression of grafting, which, according to the Levush, also binds the descendants of Noah). Rav Kook argues against him that this is not necessary because of general differences in the obligation in commandments between the descendants of Noah and Israel.[11]

Rav Kook establishes a general principle: the details of the Noahide laws are determined by nature, not by halakhah. For example, the gemara in Ḥullin 33a rules that “a limb from a living animal” is forbidden to a Noahide even in the case of a twitching carcass (mefarsekes), for in reality it is alive; whereas for Israel the prohibition of “a limb from a living animal” depends on the halakhic act of slaughter, not on the reality of life. Therefore, with a twitching carcass, since it has been slaughtered—even though it is still alive—it is permitted for a Jew to eat a limb from it.[12] The claim is that for Israel the halakhic distinctions are located in the halakhic sphere and are set by halakhic acts (such as slaughter), whereas for a Noahide they are derived from states of reality (here: the reality of life/death).

This can also be seen in the rules of lineage for a Noahide, for he follows his mother and not his father, whereas a Jew’s lineage is determined by the father. Rav Kook explains this similarly: maternity is a matter of nature, whereas paternity rests upon a halakhic presumption.

Another example he brings is from the topic of shiurim (quantitative halakhic thresholds). As is known, the gemara says that the shiurim were given to us as a halakhah le-Moshe mi-Sinai (see Sukkah 5b and parallels). Rav Kook explains that, for this reason, they were not given to the descendants of Noah (see Maimonides, Melakhim 9:10). The Ḥatam Sofer, Responsa §§317 and 184 (Yoreh De‘ah), discusses the majority age of a Noahide and concludes (following Responsa of the Rosh) that majority is like any other shiur; therefore, the descendants of Noah have no fixed shiurim for majority such as two pubic hairs or the age of thirteen. He concludes that their obligation in commandments begins from the stage at which they attain understanding. Thus, even in matters that a Noahide is commanded like a Jew, there is still a difference between him and a Jew: for a Noahide there are no shiurim.

Accordingly, for a Noahide we follow the natural state (does he possess understanding or not), whereas for Israel we follow the formal halakhic shiur. At first glance, such a difference seems to contradict the two-tier model, for it shows that the first tier for Israel is also not identical to that of the descendants of Noah. But this is not necessary. Once the second tier is added, it may sometimes return and interact with the first tier. I described a similar logic in my essay on the sacrificial principle “we require a year stated in Scripture as indispensable” (see also column 556 and the column after the next). There too I showed that there is a primary layer from before the giving of the Torah that remains in place even after Sinai. Yet there are laws in which Sinai changed the prior state (in all places where the Torah itself says so, or via the term “ḥukah,” or where it repeats the law again).

Indeed, Rav Kook’s principle—that for Noahides we proceed by natural reality and for Israel by the halakhic state—can even be derived from the “adjacent” relationship I described above. We saw that the Seven Noahide Laws are the universal foundation that undergirds human life. The Jewish-Torah tier is an additional tier atop the universal human tier. R. Moshe Ḥayyim Luzzatto in Derekh Hashem, II:4 §9, writes:

The Holy One, blessed be He, made the rectification of the entire creation and its elevation dependent upon the deeds of Israel, as we have mentioned, and in a manner of speaking He made His governance dependent upon their actions—to shine and bestow, or to hide and conceal, God forbid, in accordance with their deeds.

But the deeds of the nations do not add or detract in the reality of creation and in His blessed revelation or concealment; rather they draw for themselves benefit or loss, whether bodily or spiritual, and they add to the strength of their flesh or weaken it.

Thus Noahides are commanded to live within a rectified natural reality—no more (in the previous paragraph Luzzatto also infers from this the character of their commandments: that they are general and not detailed).[13] Hence, the laws pertaining to them will be set according to reality and not by abstract criteria. By contrast, Israel are designated also to influence reality as a whole, material and spiritual. Therefore, Israel are commanded additional commandments, and the character of their commandments differs. Yet they still possess Tier A of the descendants of Noah—the universal tier—although at times even it is slightly influenced by the existence of Tier B.

R. Nissim Gaon’s position

This may also be learned from R. Nissim Gaon in his introduction to the Talmud (printed in our editions at the beginning of Berakhot). He asks how we find dozens of commandments that bind the descendants of Noah even though the gemara states there are only seven. He further asks: how can they be punished without an explicit command (for “we do not punish without first warning”)? He answers:

For all the commandments that are dependent upon reason and the understanding of the heart—everyone has already been obligated in them from the day that God created man upon the earth, he and his offspring after him for all generations. And the commandments that are known via the oral tradition …

He draws a distinction between commandments of reason, which bind every person—Jews and descendants of Noah—and commandments known by oral transmission, which bind only those specifically commanded.[14] Hence, beyond the Seven Noahide Laws, they are also obligated in all other reason-based commandments. Admittedly, his words imply that not all Noahide commandments are from reason; some are from tradition, and therefore an explicit command was needed for some. This is open to discussion.

The sugya of a Jew and a gentile who come to litigate[15]

The gemara in Bava Kamma 113a brings the following baraita:

As it was taught: A Jew and a Canaanite robber who come to judgment—if you can justify him [the Jew] according to the laws of Israel, justify him and say to him: “Thus is our law.” [If you can justify him] by the laws of the Canaanites, justify him and say to him: “Thus is your law.”

In the Masoret Ha-Shas there, a different version is brought: instead of “a Canaanite robber,” one should read “a gentile.” What difference is there between the two versions? Seemingly, in our version the license to mislead the gentile and to choose tendentiously the legal system by which we adjudicate applies only to a gentile robber and not to every gentile. And what if a “plain” gentile comes to litigate against a Jew? On this Maimonides rules (Melakhim 10:12):

If two gentiles come before you to be judged by the laws of Israel, and both wish to be judged by Torah law—judge them. If one wishes and the other does not, we do not compel him to be judged other than by their laws. If it is a Jew and a gentile—if there is an advantage for the Jew in their laws, we judge him by their laws and tell him: “Thus are your laws”; and if there is an advantage for the Jew in our laws, we judge him by Torah law and tell him: “Thus are our laws.” It appears to me that this is not done for a resident alien (ger toshav); rather we always judge him by their [Noahide] laws.

Maimonides says that the directive to choose tendentiously the legal system was stated with respect to an idolatrous gentile. But in a case between a Jew and a gentile who has accepted the Seven Noahide Laws (a ger toshav—see there at the end of ch. 8), we judge him by his laws.

Thus, gentiles have their own legal system (indeed, one of their seven commandments is to establish courts—see below), and Israel have their own legal system. When there is a case between a Jew and a gentile, this is the classic problem of “private international law”: in which legal system should we adjudicate this case? Maimonides rules that at least regarding a ger toshav we adjudicate specifically according to the Noahide system.

Why? Seemingly, we should hear such a case within a legal framework common to both parties. If no such framework exists, then there is no way to adjudicate this case within halakhah. And even if we decide to adjudicate according to one of the two systems involved, why should the Noahide law be preferred to the halakhic system? Why not adjudicate by the regular halakhic system, by which the rabbinic court adjudicates in all other cases (and from which, in fact, it draws its authority)?

R. Shlomo Fisher addresses this question in his halakhic work Beit Yishai, §107. He explains that the legal system of the descendants of Noah is a universal system whose matter is the laws of human justice and equity (yosher). Such a system exists vis-à-vis Israel as well, for we too are commanded to act according to justice and equity; therefore the case between a Jew and a gentile is heard within the gentiles’ system, because it constitutes the common basis for both systems. It is a system relevant to both gentile and Jew. This precisely reflects the adjacent-composition picture, according to which Israel is an additional tier beyond the universal Noahide tier, and not a replacement for it.

A dispute between Maimonides and Nahmanides regarding the commandment of “laws”

We cited above that one of the commandments that bind the descendants of Noah is “laws.” Maimonides writes at the end of Hilkhot Melakhim 9:

And how are they commanded concerning laws? They are obligated to establish judges and courts in every province to adjudicate these six commandments and to warn the people [regarding them]. A Noahide who transgresses one of these seven commandments is executed by the sword. Because of this all the inhabitants of Shechem were liable to death—for Shechem stole and they saw and knew and did not judge him. A Noahide is executed on the testimony of one witness and one judge, without prior warning, and on the testimony of relatives; but not on the testimony of a woman, and a woman does not judge for them.

Maimonides’ words imply that the commandment of “laws” upon the descendants of Noah is to establish judges everywhere to adjudicate the people concerning the other six commandments. According to which laws are those courts to adjudicate? This is not explicit in Maimonides.

Nahmanides, in his commentary to Parashat Vayishlaḥ (regarding the incident of Shechem), writes that the commandment of “laws” also includes a command to legislate civil law (dinei mamonot) akin to that commanded to Israel. Those courts will function exactly like a Jewish court regarding civil law—there will be laws of overreaching (ona’ah), theft, and so forth.

What, then, is Maimonides’ view (see the Leḥem Mishneh there, who writes that the plain sense of the sugya is like Nahmanides)? Several commentators explain that Maimonides means that the laws that bind the descendants of Noah need not be the Torah’s civil code; rather, they must legislate for themselves a body of civil law to regulate their society as seems right to them, according to justice and equity (see Responsa of the Rema §10, and Ḥazon Ish, Bava Kamma 10:1).[16]

Apparently, according to Nahmanides there truly is a shared foundation between Israel’s legal system and that of the descendants of Noah, whereas according to Maimonides these are two different legal systems. On the other hand, precisely according to Maimonides it emerges that the Noahide civil system is one of justice and equity (i.e., universal values), while the Jewish-Torah system is a particularistic system atop it.

This conclusion accords partially with what we saw above in Maimonides: on the one hand, we saw that he views the Noahide legal system as a system of principles of justice and equity, and this fits what we have seen here. On the other hand, the halakhic system appears different and is not shared by us and the descendants of Noah—and in this respect Maimonides seems to contradict what we saw earlier. Beyond this, we must ask ourselves another question: are Israel not also commanded in laws of justice and equity? Why should these not bind them?

The position of the author of Derashot Ha-Ran

The matters are not contradictory; indeed Israel, too, must act according to justice and equity. To understand this, we must note another aspect of halakhah. I have cited more than once (see, for example, columns 37, 164, and many more) that the Ran, in his derashot, Derush 11, writes that there are two parallel legal systems within halakhah: the “law of the king,” responsible for justice, equity, and the repair of society; and the “law of halakhah,” responsible for the resting of the divine light upon Israel—precisely paralleling Luzzatto’s words above. In his language:

Just as the statutes (ḥukkim) that have no role whatsoever in repairing the civic order, and are an immediate cause for the resting of divine effluence, so too the laws of the Torah do have a great role … and it is possible that they were directed more toward the matter that is loftier in value than toward repairing our polity. For that repair the king whom we appoint over us will complete; but the judges and the Sanhedrin had as their end to judge the people with a law that is truly, intrinsically just, from which the divine matter will be drawn upon us—whether our civic order is completed through it or not. And therefore it is possible that among the laws and statutes of the nations there will be found, with respect to repairing the civic order, some things closer than are found in some of the laws of the Torah. And we lack nothing thereby, for whatever is lacking in that repair the king would complete … Thus the appointment of judges was to judge the laws of the Torah alone, which are intrinsically just … and the appointment of the king was to complete the repair of the civic order and whatever was needed for the exigency of the moment … And when there is no king in Israel, the judge will include both powers:[17] the power of the judge and the power of the king …

Thus the halakhic-legal system does not always match universal justice, but those deviations are practically corrected by the “law of the king.” When following Torah law leads to distortion, an encounter has arisen between the spiritual order to which halakhah directs us and the moral-social order that is subject to universal laws. The task of the king is to correct the distortion. By which criteria does the king operate? Which legal system guides him? It appears that it is the system of human justice and equity—that is, the Noahide law.

I will bring just one example to sharpen the point.[18] R. Meir Dan Platski, in his book Ḥemdath Yisrael, Kuntres “Ner Mitzvah,” p. 100, discusses whether in the Noahide system there exists the rule that a person is not believed on the basis of his own confession. In the course of his discussion he writes:

And we … wrote to prove that Maimonides, too, holds like the Sefer Ha-Ḥinukh [that a Noahide is executed on the basis of his own confession], and that is from what he wrote in the aforementioned laws of Sanhedrin—that the execution of Achan on his confession was by the law of the king. And we established there that the king … has no greater power to judge than the laws of the descendants of Noah, and whoever is not liable in the Noahide laws the king cannot punish …

He adduces proof that, in the Noahide system, a person can be executed on his own confession, from the fact that Maimonides writes that under the law of the king a person can be executed on his own confession (his proof text is Achan, who was executed on his confession—see Maimonides, Sanhedrin 18:6). In the course of his words he explicitly equates the “law of the king” with the Noahide laws, and argues that everything present in the king’s law must exist in the Noahide laws.

And yet—two tiers

We now return to explain the apparent contradiction we cited in Maimonides. On the one hand, Maimonides says that the laws of the descendants of Noah differ from those of Israel even in the civil components—apparently even the universal tier is not shared by Noahides and Israel; this would seem to fit a “blended” view whereby Israel is a being unto itself. Yet we saw at the end of ch. 8 of Hilkhot Melakhim that Maimonides does not conceive it this way. Now we can understand: the universal system indeed exists vis-à-vis Israel, but it is classified under the “law of the king.” Pure halakhah is not obligated to arrange civic-political life; therefore, within it there may be deviations from justice and equity. But in practice we must not deviate from them, and for that the king and his law are responsible. If so, the rules of justice and equity indeed bind Israel as well, for we too are meant to conduct proper civic and moral life. True, we have additional goals (the resting of the divine matter), and therefore at times our law deviates from the instrumental law of the descendants of Noah, whose entire matter is the repair of civic life. Again, this is the influence of Tier B returning to modify Tier A. Still, as long as no such modification was made, everything present in the universal Tier A binds Jews as well.

We learn, then, that even if Israel’s legal system is not identical to that of the descendants of Noah, this is so only regarding pure halakhah. In practice, justice and equity bind Israel as well. Thus Israel indeed constitutes a second tier, but they are also obligated to the first, universal tier—the Noahide law.

Up to this point we have mainly seen various indications for the two-tier model that describes the Jew as an “adjacent composition.” In the next column we shall see halakhic ramifications of this model.

[1] See Tosafot Yom Tov and Midrash Shmuel for explanations of why the verse “My firstborn son, Israel” was not cited even though it precedes the others.

[2] See Yalkut Shimoni, Parashat Ki-Tissa §386, s.v. “It was taught, R. Yehuda,” and Ezekiel §373, s.v. “To them I gave My flock.”

[3] Both the Tosafot Yom Tov there and Beit Yishai, which reconciles the commentators rejected by the Tosafot Yom Tov, explain—similarly to Rav Kook—that the descendants of Noah lost their status as “children” as a result of their sins.

[4] See my book Shtei Agalot Ve-Kadur Poreaḥ, note 10.

[5] This is not a matter of 606 commandments, for the seven Noahide laws include many more commandments that are elaborated in our halakhah. See a bit more on this below.

[6] These terms are drawn from the thought of the Rogachover. See at length in MeFa’ane’aḥ Tzephunot by R. M. M. Kasher.

[7] Although he states this regarding the first six commandments, it seems he means all of them. See also R. Nissim Gaon below.

[8] It is unlikely that Maimonides is describing only the original plan, as Rav Kook presents it. It is reasonable that he also viewed this as the actual state of affairs.

[9] R. Shlomo Fisher in §107 argues at length that there is a dispute whether this rule is a sign (siman) or a cause (sibbah), since there are exceptions (such as a limb from a living animal).

[10] There his primary discussion is precisely of those particulars, for the differences between the views concern laws in which a Noahide is more stringent than a Jew. Regarding such laws, the question arises whether the Patriarchs exited the category of the descendants of Noah also leniently or only stringently. At first glance, the fact that the Noahide sometimes has stringencies compared to Israel would indicate that he is essentially a different being. If every Jew also contained a Noahide component, we would expect that everything present in the Noahide would also be present in the Jew.

Admittedly, there are stringencies for the Noahide that do not necessarily indicate an essential change. For example, a Noahide is forbidden to study Torah; in that respect he is, ostensibly, more stringent than a Jew. But it is clear that one cannot adduce from here that Israel is an entirely different entity, for this is not a particular halakhic difference but one that itself derives from the Noahide’s not belonging to Tier B.

[11] There are several such differences even regarding commandments that Noahides share (much has been written about forbidden relationships, idolatry, etc.; and even regarding correct beliefs there are opinions that Noahides are not prohibited from “association” [shittuf]). See also Nahmanides at the end of his strictures to root 14 for a principled difference regarding the counting of commandments. Here, however, Rav Kook refers only to those differences that express the criterion of relating to natural reality.

[12] See a lengthy discussion of this gemara in Beit Yishai §107, s.v. “And behold, in Ḥullin 33a,” and on.

[13] And this accords with Nahmanides’ words cited above in his strictures to root 14—see there carefully.

[14] It seems from his words that, for reason-based commandments, the rule “we do not punish unless we first warn” has no force. That is, not only is there an obligation without an explicit command, but a penalty (perhaps only Heaven-imposed, though his words do not suggest that) awaits one who fails to fulfill his duty.

[15] See on this R. Meir Berkowitz’s article in Techumin 14.

[16] In Responsa Ḥatam Sofer VI §14 he writes that although the command of “laws” contains only the duty to establish and appoint courts, there is also a duty to legislate civil law, which branches from the prohibition of theft. See also R. Shimon Shkop below.

[17] He refers to the halakhah that a court “strikes and punishes beyond the strict law” (see Shulḥan Arukh Ḥoshen Mishpat §2 and elsewhere).

[18] This example is cited in M. Avraham, “Is Halakhah ‘Jewish Law’?” Akdamot 15. See there an important implication of our discussion here regarding the possibility of integrating essential elements of Jewish law into state law.