Jews as Human Beings: C. The Two-Story Model – Implications (Column 748)

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 first column of this series I addressed the genealogical question: Is a Jew a different kind than a Noahide, or a species within the general human kind? I argued for the second position. In the previous column we saw a similar model regarding the relationship between the halakhic system (Judaism) and the Noahide system. I now wish to set out several halakhic—and other—implications of the matter.

Obligations of Minors

My first example is a contradiction raised by several later authorities (Acharonim) between the sugya in Sanhedrin 55b (“stumbling and disgrace,” which deals with bestiality) and the sugya in Yevamot 36a (which discusses the prohibition of Shabbat and Temple service, in the sugya of “a prohibition does not take effect upon an existing prohibition”).

In the sugya in Sanhedrin there is a lengthy discussion about why an animal that copulated with a Jewish woman, or with which a Jew copulated, is put to death. In the mishnah there (54a) two reasons are given:

“One who lies with a male or with an animal, and the woman who brings an animal [for intercourse]—[their punishment is] stoning. If a person sinned, what did the animal do? Rather, because a stumbling [i.e., a transgression] came to a person through it, therefore Scripture said: it shall be stoned. Another explanation: so that the animal not pass through the marketplace and people say: This is the one on whose account So-and-so was stoned.”

According to one view, the reason is that there was a “stumbling” (a transgression); according to the other, it is due to “disgrace” (that when people see the animal they will say that this is the one with which So-and-so committed the act).

Rashi there writes:

“Stumbling (tekalah) = obstacle, sin.”

Further in the sugya, Rashi consistently links the notion of “stumbling” to a punishable transgression such as stoning; that is, in his view when “stumbling” is stated it means a halakhic offense.

And on 55b we find the following discussion:

“Rav Hamnuna asked: What is the law regarding a Jew who had intercourse with an animal unintentionally? Do we require [both] stumbling and disgrace, and here there is disgrace but no stumbling? Or perhaps disgrace suffices even without stumbling?—Rav Yosef said: Come and hear: A girl of three years and one day is betrothed through intercourse, and if a yabam has relations with her, he acquires her; and one is liable on her account for [the prohibition of] a married woman; and she renders her paramour impure so that his lower bedding becomes like his upper; if she married a priest, she may eat terumah; if one of those disqualified [from the priesthood] had relations with her, he disqualifies her from [marrying] the priesthood; and if one of all the forbidden relationships enumerated in the Torah had relations with her, they are put to death on her account, but she is exempt. ‘One of all the forbidden relations’—even an animal. But here there is disgrace and no stumbling, and yet it teaches: they are put to death on her account!—Since she is intentional, there is stumbling as well, but the Merciful One had pity on her. On her—the Merciful One had pity; on the animal—He did not have pity. Rava said: Come and hear: A boy of nine years and one day who has relations with his yevamah acquires her, and he does not give a get until he grows up; and he transmits impurity like a menstruant to render lower bedding like upper; he disqualifies but does not enable [to eat terumah]; and he disqualifies the animal from the altar, and it is stoned on his account; and if he had relations with one of all the forbidden relations enumerated in the Torah, they are put to death on his account. But here there is disgrace and no stumbling, and it teaches: it is stoned on his account!—Since he is intentional, there is stumbling as well, and the Merciful One had pity on him. On him—He had pity; on the animal—He did not.”

We see that when the act is done unintentionally, there is disgrace but no “stumbling.” But when a minor boy or girl acts deliberately (strikingly, the Gemara distinguishes regarding minors as well between deliberate and unintentional), there is “stumbling” too. The conclusion is that a minor who had relations with an animal has transgressed, and therefore there is “stumbling.” That is, minors, too, are bound by mitzvot and prohibitions (though they may be exempt from punishment and legal responsibility due to compulsion or incapacity).

By contrast, in Yevamot 33 the Gemara discusses the rule that a prohibition does not take effect upon an existing prohibition. As is known, there are three exceptions: “inclusive,” “additive,” and “simultaneous.” One example given of two prohibitions that take effect simultaneously and therefore both apply is (33a):

“And what ‘simultaneous prohibition’ is there here? A non-priest who performed Temple service on Shabbat—such as that he grew two [pubic] hairs on Shabbat, so that non-priesthood and Shabbat came together…”

A minor who grew two hairs on Shabbat while he was engaged in Temple service, and he is not a priest. Two prohibitions—non-priestly service and Shabbat (if he is not serving, what he is doing is Shabbat desecration)—took effect upon him at one and the same moment. Several later authorities infer from here that the Gemara presumes that before he grew two hairs, while still a minor, he was not obligated in those prohibitions. In other words, a minor is exempt from all mitzvot and prohibitions and cannot be considered a transgressor. This, of course, contradicts what we saw in the sugya of “stumbling and disgrace,” which concluded that a minor, too, is a subject who can transgress.

Several answers are offered by the Acharonim to this difficulty. The Ran in several places writes that the cause of the prohibition exists with a minor even though he is not warned, and that suffices for it to count as “stumbling” (see Kovetz Shiurim II §24, and Kovetz He’arot §75 nn. 1–3, and §30 n. 8 and §33 n. 8). But a number of them resolve the problem in a similar vein. For example, Or Sameach, Issurei Bi’ah 3:2 (and Nachal Yitzchak II §89 n. 2, among others; by contrast, the author of Helkat Yoav §1 raises this possibility and rejects it) writes, inter alia:

“It seems, following what the Acharonim concluded—including the Chatam Sofer (Yoreh De’ah §317)—based on what the Rosh wrote in his responsa (klal 16 §1), that the measure of years for minority is one of the measures given by a halakhah le-Moshe mi-Sinai; but regarding the sons of Noah no measures were given to them. Therefore, with respect to their commandments, anyone who is of understanding is not called a minor, and he is an adult regarding their seven commandments; and what our master [the Rambam] wrote (Kings 10:2) that we do not punish a minor refers to one who has not reached the category of understanding. [Thus we can find a Noahide who killed a person while a minor and is liable, and if he converts he is exempt. See the chapter ‘Ben Sorer uMoreh’ 71a; consider this well.]”

According to them, all the commandments with which the sons of Noah are charged are, of course, binding also upon a Jewish minor. The reason is a statement by the Chatam Sofer that obligations for a non-Jew begin from the age of understanding, not from halakhic majority (which is a halakhic “measure,” and “measures” were not given to Noahides). To this he adds the Talmudic statement cited in previous columns, “There is nothing that is permitted to an Israelite and forbidden to a Noahide.” From these two premises he concludes that if the sons of Noah are liable for bestiality from the age at which they understand the prohibition and their duty regarding it, then Israelites cannot be “less than” Noahides. It follows that specifically with respect to Noahide commandments, the obligation for a Jew likewise begins from the age at which he understands his duty, and not from halakhic majority (two hairs).

If so, bestiality—which a Noahide is also prohibited (as we see in the Sanhedrin sugya)—is binding even upon a Jewish minor. That is what the Sanhedrin sugya means when it says a minor who had relations with an animal has transgressed. But the prohibition of non-priestly Temple service and Shabbat desecration, which apply only to Jews, become binding only from when he grows two hairs. That is what the Yevamot sugya states. In this way these later authorities reconcile the apparent contradiction between the two sugyot.

It is fairly clear that beyond the formal claim there is also a substantive one: as we have seen in previous columns, within every Israelite there is a Noahide (as it were, “two hundred includes one hundred”), and therefore anything imposed upon a Noahide is, by definition, imposed upon a Jew. Hence, if a Noahide child is obligated in something, the Israelite will be obligated from childhood as well. We may broaden this and say that, as we saw (in the Rambam and elsewhere), the obligations of Noahides are obligations grounded in reason (see below on moral obligations). Consequently, there is no need for a formal threshold age that determines liability in them; an obligation grounded in reason applies to anyone who understands the reason. There are no formal limitations here and no exemptions by age or the growth of two hairs; everything is determined by the degree of understanding. If so, for such obligations, even when we are speaking of a Jew, no formal threshold age can be set, for with obligations grounded in reason there is no difference between Jew and non-Jew; anyone who understands the reason is bound by them (see also my articles on the standing of “reasons”).

Here we see halakhic implications of the picture described in previous columns. From this picture it follows that all Noahide obligations apply also to Jews, and that this binds them already as minors (from the point at which they understand the underlying reason). See in the Or Sameach there that he further notes that a Noahide minor who murdered is liable to death, but on his approach if he converted he would not revert and be exempt (that seems to be his intent there). Here, however, there is room to disagree and say that while the minor is indeed under an obligation like a Noahide minor, the death penalty imposed on a non-Jew does not apply to a Jewish minor. Recall that with the seven commandments, Noahides are liable to death for all of them, whereas among Jews—even regarding those very commandments—one is not liable to death. It may be that this is yet another instance in which Story B (the Jewish-particularistic level) comes back and intermingles with Story A (the universal one) and modifies it for Jews: it nullifies the death penalty that is imposed for a first-story transgression. See the previous column on this.

An Oath by a Minor

Another halakhic implication of the same idea appears regarding the oath of a minor. The Rambam, To’en ve-Nitan 5:10, writes (according to our version):

“We do not administer an oath to a minor at all, and even a general ban (cherem stam) he does not accept, for he does not know the punishment of an oath.”

He says that we do not administer an oath to a minor since the punishment for a false oath does not deter him, because he does not know and understand the severe penalty imposed for a false oath. This is puzzling: a minor does not incur any legal punishment for an oath. The Rambam should have written here that he has no punishment, not that he does not know the punishment. On the contrary, a clever minor who knows everything is the most dangerous—because he knows he has no legal punishment for an oath! We are forced to say that the Rambam holds that even for a minor there is punishment for an oath (albeit he may not always understand this). The reason is that the duty to keep one’s oath is a duty grounded in reason (svara), and as such it applies to anyone who understands it, including minors (so long as they understand). True, the Rambam’s general directive is not to administer an oath to a minor at all, because you cannot be sure whether he understands the gravity of the punishment; but in principle he is subject to punishment for an oath (by the hand of Heaven). Therefore, theoretically, if it is clear that he understands, one could administer an oath to him.

How do we know that the obligation to keep oaths is a duty grounded in reason? First, by reason. But if you want a proof, here you have one. As is known, an oath is in the category of statements requiring articulation (hafla’ah); it demands spoken declaration. Yet later authorities discuss a written oath: does it bind or not? The discussion turns on whether writing is considered speech for this purpose. In Responsa Avnei Nezer, Yoreh De’ah §306, sec. 15, he cites the view of the Ri Migash, who maintains that an oath in writing binds:

“(15) But in Responsa Ri Migash §126: If he wrote in his own hand [that he accepts] an oath and gave his handwriting [to the other party], he is obligated to uphold what he swore, even if he did not utter the oath by mouth. And if he did not uphold it, his case is given over to Heaven. But we do not compel him by human hands, since he did not utter the oath by mouth. So far his words. This requires a root-level explanation.”

He then proposes a novel explanation of the Ri Migash’s words that is unrelated to whether writing is tantamount to speech:

“(16) It seems that the Mishneh la-Melekh (Kings 10:7) was perplexed regarding the oaths before the giving of the Torah—Abraham and Isaac to Avimelech, Esau to Jacob, Eliezer to Abraham. An oath is not among the seven commandments given to the sons of Noah. I am further troubled by the oath at Sinai, which is the foundation of accepting the Torah: before they accepted the Torah they were not commanded regarding an oath. And even if they had been commanded, still, all the force of an oath is because of the command ‘he shall not profane his word’—and how is this more of a warning than any other warnings in the Torah? What does an oath add to Torah prohibitions, since the oath itself is but a warning?”

“(17) Therefore the matter appears clear: Indeed, one who swears to another—reason dictates that he is obligated to fulfill it, and no specific warning is needed. That was the nature of the oaths of Abraham, Isaac, and Eliezer; and similarly one who swears to the Holy One, blessed be He. But one who swears to himself not to do a thing or to do a thing—in that, reason does not dictate, for to whom has he obligated himself? If you say, to the Holy One, blessed be He—whence do we know that God desires this obligation or prohibition? For that the Torah had to command, ‘He shall not profane his word; according to all that comes out of his mouth shall he do.’ Consequently the oath at Sinai is also understandable: they swore to the Holy One to fulfill His commandments, and that follows from reason. But the obligation that stems from reason has no punishment by human hands recorded in the Torah. Now the words of the Ri Migash are also clear: in the oaths before the giving of the Torah, the Torah did not mention either ‘bittui’ (verbal formulation) or ‘speech.’ Therefore it makes no difference whether by mouth or in writing. Thus, one who swears to his fellow in his own handwriting and gives him his handwriting is obligated to fulfill it; but we do not punish him by human hands, since there is no [explicit] negative commandment regarding it, nor do we find a humanly administered punishment for it.”

His claim is that a written oath binds by force of reason, not by force of the command “he shall not profane his word.” It binds anyone who understands this, and it bound even before the Torah was given and even if it was not uttered orally but written. The duty to uphold one’s word—especially when uttered in God’s Name—is a duty grounded in reason. If so, it is no wonder that the Rambam, a student in the Ri Migash’s line, adopted this conception as well and assumed that there is punishment for an oath even for minors. If it is a rational obligation, it binds anyone who understands the reason. A rational obligation carries no formal halakhic limitations such as age, gender, or Jewish status. Jews and non-Jews, minors and adults, women and men, are all bound by it. Since this is not an obligation that derives from the verse, there will be no legally codified punishment of lashes here. This is a rational obligation, not the regular halakhic obligation of “he shall not profane,” and no punishment of lashes was legislated for it in the Torah. [1]

The System of “Laws of Judgments”

R. Shimon Shkop, in his Sha’arei Yosher, throughout Gate V, introduces a very significant innovation regarding the legal component of the Torah (see, for example, column 428 and elsewhere on the site). At the beginning of ch. 1 there, he cites a strong difficulty raised by Mahari Bassan: According to halakhah, when there is a civil dispute and the claimant has no proof, the money remains with the defendant; that is, in cases of monetary doubt the default favors the party in possession (and is stringent for the claimant). In halakhic language (Bava Metzia 2b and parallels): “The burden of proof is upon the one who seeks to extract [money] from his fellow.” In addition, according to halakhah, in a case of doubt we use rules for deciding doubts: for a Biblical doubt we rule stringently, and for a rabbinic doubt leniently. Mahari Bassan asks: The situation described—a monetary dispute between two parties with no evidence on either side—is a case of doubt. If so, each party is in a situation of doubtful theft; and in such a situation each should follow the rules of doubt and act stringently (theft is a Biblical prohibition). Stringency here would mean that the defendant should not keep the money. Alternatively, the defendant cannot keep the money either, and so the funds should be deposited with the court until the matter is clarified. If so, why does halakhah instruct the defendant in such a case to keep the money in his possession (i.e., to be lenient)? [2]

To this question R. Shimon replies that the prohibition of theft differs from other prohibitions in the Torah. In every halakhic prohibition the basis is the Torah’s command; for example, the prohibition of eating pork derives from the fact that the Torah forbade eating pork. The Torah’s command established the prohibition. By contrast, with theft, the basis of the prohibition is the social-legal convention that establishes people’s ownership over property. Even before the Torah’s command there was ownership, and it was forbidden to trespass upon it unlawfully. The Torah, by commanding “You shall not steal,” merely gives halakhic imprimatur to this legal determination and rules that one who violates those social rules (which R. Shimon calls “the laws of judgments”) transgresses the prohibition of “You shall not steal.” Accordingly, if there is a situation in which the legal convention is that in a given case there is no monetary obligation—then holding the money in such a case is not halakhic theft either. This is precisely the case where the claimant has no proof. The legal system determines the rule “the burden of proof is upon the claimant” (even in halakhah its basis is reason; see Bava Kama 46b). Consequently, in such a case the defendant is the owner on the legal plane, and if he holds the funds in the absence of evidence he does not transgress the halakhic prohibition of theft. [3]

One implication that R. Shimon Shkop draws is about theft from a non-Jew. As is known, in the Talmud and the halakhic decisors opinions are divided on whether the prohibition of “You shall not steal” applies to theft from a non-Jew (see Encyclopedia Talmudit, entry “Gezel ha-Goy”). R. Shimon argues in several places in that Gate (see at the end of ch. 1, in ch. 5, and elsewhere) that while from a strictly halakhic perspective there are views that there is no Biblical prohibition of stealing from a non-Jew, from the perspective of the “laws of judgments” there certainly is such a prohibition. For non-Jews, too, there are defined ownership rights; violating them constitutes a legal wrong, even if according to some opinions the Scriptural command “You shall not steal” does not apply there. According to those decisors, the Torah does not impose upon those norms the added halakhic layer of “You shall not steal,” yet the legal wrong remains.

This is a clear example of the two-story model presented above. There is, however, an additional assumption here that we will discuss in the next section.

Does Halakhah Recognize a Legal (Non-Halakhic) Wrong?

The explanation R. Shimon offers at the beginning of the Gate (vol. 2, p. 1) for this principle is as follows:

“Just as the types of acquisitions and the laws of ownership in property are legal matters even without the warning of ‘You shall not steal’—as we explained above, that it is utterly impossible to say that our attribution of an object to Reuven is due to Shimon’s being warned by the Torah not to steal it from him. Rather, the matter is the reverse: the prohibition of theft comes after the legal determination of the matter in the laws delimiting ownership…”

At first glance this is a hermeneutic consideration: the Torah commands us regarding “You shall not steal.” But theft is a violation of property ownership; thus the prohibition presupposes the existence of legal categories that determine property rights, the violation of which constitutes theft. From this consideration it follows only that the legal-proprietary layer defines the ownerships to which “You shall not steal” applies. It does not follow that there is an independent legal wrong of theft where there is ownership but no “You shall not steal,” such as the case we described regarding theft from a non-Jew. On the contrary, it would seem there is no wrong beyond the halakhic wrong; the halakhic wrong simply relies upon prior legal definitions.

But in another passage (there, ch. 4 s.v. “And it seems to me”), R. Shimon raises a question about his innovation:

“Even though at first glance it is puzzling: What compulsion and obligation is there upon a person to do a thing without the Torah’s command and warning? But upon deeper reflection one can understand this matter. For the obligation and compulsion of serving God and fulfilling His will is also an obligation and compulsion by the judgment of reason and recognition; similarly, a monetary obligation and lien is a legal obligation, assumed by the ways of acquisition…”

R. Shimon asks how we are bound to norms that are not anchored in the Written and Oral Torah (i.e., extra-halakhic norms). He answers that even halakhic obligations are based on our decision to obligate ourselves to them; thus we need not be surprised that obligations whose basis is our reason and our decision bind us as well.

We must note that both the question and the answer implicitly assume that the legal layer is not merely meta-normative definitions; rather, there is truly a prohibition of theft that belongs to the legal layer. It is clear that in R. Shimon’s view there is a duty not to steal that does not derive from the halakhic prohibition of theft but from the “laws of judgments.” [4] He asks how we are bound to obey it, and explains that obligations that derive from reason bind us as well. If there were only a meta-halakhic definition and nothing more, there would be no room for the question or for the answer.

We can now extend R. Shimon’s foundation to all prohibitions that belong to the universal substrate. For all of them, the obligation derives from human reason and recognition, yet they bind us like the Torah’s laws. This is another expression of the two-story model: once again we see that there are universal obligations that precede the Torah and yet bind us—not by its power but by virtue of our being human.

Motivation in Performing a Universal Commandment

Up to this point we have seen that halakhah recognizes universal obligations as binding upon the Jew; in the foregoing sections we saw this is true even for obligations not explicitly stated in halakhah.

Yet we find in the Rambam a requirement that seems to run counter to all this. At the end of Hilkhot Melakhim ch. 8 he writes:

“Anyone who accepts the seven commandments and is careful to observe them is of the pious among the nations of the world and has a share in the world to come—provided that he accepts and performs them because the Holy One, blessed be He, commanded them in the Torah and informed us through Moses our master that the sons of Noah had previously been commanded regarding them. But if he does them because of rational conviction, he is not a resident alien and not of the pious among the nations of the world, but [some versions: rather] of their wise men.”

In the preceding halakhah the Rambam rules that if a non-Jew accepts upon himself the seven Noahide laws he is called a “resident alien” (ger toshav). In this halakhah he qualifies this and says that if he observes those commandments because of his own rational conviction and not because the Holy One commanded them in the Torah given to Moses at Sinai, then he is neither a resident alien nor among the pious of the nations, but among their wise.

At first glance, these words of the Rambam undermine our main claim. If the universal layer binds every Jew—since within every Jew there is a “human being,” as it were—then one might expect that the duty to observe universal commandments would not be a halakhic duty and not part of the Torah, but a duty grounded in rational insight (as the Rambam himself writes earlier in that chapter).

But that is a mistake. The Rambam indeed says that the Noahide commandments are those “to which reason inclines,” yet he does not say that this is the sole basis for their observance. Here he adds and explains that the motivation for observance and the intention that accompanies it must be the motivation of serving God, not merely a universal desire to be a good person. Thus, while a Noahide lies within every Jew and the Jewish edifice is indeed built of two stories—universal and particularist—both stories are part of avodat Hashem (serving God), and the binding character of both is by virtue of the service of God. This motivation must undergird even the first story.

True, the Rambam’s words were stated regarding a resident alien, but most of his commentators understood that his intent applies to the Jew as well (see the Sefer ha-Mafte’ach in the Frankel edition ad loc.). A Jew, too, must perform the commandments because we were commanded regarding them at Sinai—even the rational commandments. [5] This, too, is an implication of the two-story model, for whatever is said about a Noahide applies to a Jew unless we can demonstrate that in this case Story B comes back and modifies Story A. Therefore, the statement about motivation in observance applies to Jews as well.

We see this also in the Commentary to the Mishnah, Hullin 7:6, where the Rambam reiterates a similar claim—this time regarding Jews (he discusses the sugya in Hullin cited above about commandments given to Noahides and repeated at Sinai):

“And fix in your mind this great principle brought in this mishnah, namely their statement ‘It was forbidden from Sinai’: you must know that everything from which we refrain or that we perform today, we do so only because of the command of God through Moses—not because God commanded it to earlier prophets. For example, we do not eat a limb torn from a living animal not because God forbade it to the sons of Noah, but because Moses forbade it to us by what he was commanded at Sinai, that [this] remain forbidden. Likewise, we do not circumcise because Abraham circumcised himself and his household, but because God commanded us through Moses to circumcise, as Abraham circumcised. And similarly with the sciatic nerve: we do not follow Jacob our father’s practice, but the command of Moses our master. Behold their statement: ‘Six hundred and thirteen commandments were told to Moses at Sinai’—and all these are among the commandments.”

We see that the Rambam requires every Jew to observe commandments only because we were commanded at Sinai. Although the contrast he rejects there is observing because they were given to the Patriarchs before Sinai—and not because of rational insight—the principle is similar. [6]

A Note on “Jewish Morality”

The two-story model also has implications outside halakhah, namely in the realm of morality. I have addressed this more than once, so here I will be brief. In column 541 and elsewhere I emphasized the complete disconnect between morality and halakhah. My claim is that moral obligations form a system parallel to halakhah, with no overlap. I have also argued repeatedly that there is no such thing as “Jewish morality.” Morality is universal and belongs equally to Jew and non-Jew. Of course there can be debates within morality—among Jews and among non-Jews—but once I conclude that there is a moral obligation to do X or not to do Y, that obligation applies to all humankind. There are no different moral obligations for Jews. The non-halakhic part of the Torah, to the extent that it has meaning at all (I will not repeat here my view that clear conclusions cannot be derived from the Torah about significant questions outside halakhah), is universal.

This, too, is a result of the two-story model. Morality is the essence of Story A and therefore belongs to all humankind. Even a Jew who bears an additional Story B still has beneath it Story A, and insofar as the “Noahide” within him is concerned he is bound by morality; hence, necessarily, it is the same morality as that of the non-Jew. Talk of a distinctive “Jewish morality” errs either in placing morality in Story B rather than Story A, or in rejecting the two-story model and viewing the Jew as an alternative edifice rather than a second story built upon the universal one. A Jew should say to himself what the Roman playwright Publius Terentius Afer said: “I am human, and nothing human is alien to me.”

The Complete Picture

I must sharpen the meaning of these points and present the composite picture that emerges. Our structure consists of two stories: a universal one, and upon it the Jewish one. But the structure is also divided “horizontally” into two parts: morality and halakhah. Morality is by its nature universal and therefore belongs to Story A, for Noahides and Jews alike. Yet note that within Story A there are two parts: morality and halakhah. There are the seven Noahide commandments, which are the halakhah of Noahides and must be performed with the motivation of duty to a command; and there is morality, which is not halakhah and thus the motivation there ought to be duty to morality (which itself draws its force from God’s will). What confuses matters is that there is overlap between the seven commandments and morality, as the Rambam says, “for they are commandments to which reason inclines.” Still, despite the substantive overlap, there remains a categorical difference. The prohibition of murder for Noahides is a halakhic prohibition, though it also has a moral face; if you like, there is also a moral prohibition there, just as with Jews. The seven commandments are not morality; their content overlaps to a large degree with morality, yet they are defined as the commandments of Noahides—in other words, for them this is their halakhah.

The overall structure is of two stories: Story A, the universal one, within which are the seven commandments as a legal system alongside morality (whose content overlaps greatly with them); and upon it Story B, the particularistic Jewish story, which consists only of halakhah. One must consider whether a Jew’s obligations regarding the seven commandments of Story A are also halakhic obligations, or whether they are only moral duties (and the Noahide legal system is irrelevant for him because Story B has replaced it). In my view the second possibility is the more plausible (hence, he is not liable to death like a Noahide who violates one of his commandments).

An Implication: Defining “Jewishness”

Ordinarily, the socially accepted definition of a person’s Jewish identity is based on halakhah, and in particular on the ritual commandments between a person and God. The rational commandments between a person and his fellow carry less weight in this regard. Someone who stole, or even murdered, is still perceived by the public—religious or secular—as a religious Jew, despite the great severity of murder in halakhah; whereas one who desecrates the Sabbath or eats non-kosher is regarded as secular—that is, as a Jew who does not keep mitzvot. Why, in fact, is this the common approach?

Needless to say, in recent years there has been heavy criticism of this approach, since it leads to at least partial legitimization of immoral acts (even if you murdered, you are still a “kosher” Jew). Consider, for example, the question whether Haredi-ism is a kind of Judaism. At first glance, it is a sect not very close to Judaism; yet in the public eye it is deemed a kind of Judaism (albeit sinful). Why? Because their sins are concentrated on the moral and human plane, not on the ritual parts of the Torah and halakhah, to which they appear to adhere obsessively. It is hard to ignore the intuitive sense that there is truth in this classification. The implicit assumption is that the definition of Jewishness should be based on the ritual parts of the Torah, not on the moral ones. Hence, severity as such cannot be the key parameter in defining Jewishness. Thus, for example, murder—the gravest offense—does not constitute Jewish identity, whereas kashrut does. What, then, is the parameter underlying this classification? [7]

This can be understood based on a distinction already noted by Aristotle. When we wish to define a concept or a position, we must describe it by the higher genus that contains it and then distinguish it by a species-defining feature within that genus. For example: “Human” is a “rational animal.” The general genus in which the human is included is the animal; the specific distinguishing feature (the species) is rationality. In the very same way, the definition of Jewish identity should be composed of the general genus (= Noahide, or human) and then the particular features that distinguish it from other humans (or Noahides). If so, it is clear that when one wishes to assess the Jewishness of a given person or community, one must examine the presence of the features that are unique to Judaism. There is no point in assessing someone’s Jewishness through features shared by Judaism and the rest of humanity (universal values), just as there is no point in assessing whether Reuven is human by asking if he has legs or whether he breathes.

This is not to say that the distinctive features are more important; they simply characterize the concept “Jew” more sharply. [8] For this reason, one who murdered is still viewed as a Jew who sinned, whereas one who desecrated Shabbat or ate non-kosher, even though these are lighter than murder, is not perceived as a Jew [in the religious sense]. This is a simple and correct logical distinction that does not concern the severity of the offenses, and rightly so.

This raises the question: What is the relationship between a Jew and a non-Jew or Noahide? The Jew has been presented here as a species within the genus “human.” That means we are dealing with a two-story model: the first story is the universal one that characterizes all human beings, and upon it an additional story that characterizes only Jews. We have seen that even in the system of commandments this finds expression: seven of the 613 commandments bind both Noahides and us, and the rest bind only us. The latter are what I previously called Story B. In this terminology, we can say that the definition of Jewishness is based on the values of Story B—not because they are more severe or important, but because they are more distinctive and characterize the Jew/Judaism more sharply.

It is no accident that my late father would always tell his students to be human beings first, and only afterward good Jews.

[1] It seems that here, too, non-Jews are not liable to death, since this is not one of their seven commandments but a rational obligation. Consequently, the question does not arise whether to execute a Jew for a written oath by analogy to the law for a non-Jew within him.

[2] To formulate this difficulty properly would require much more careful analysis. First, there is no other resolution, for even if the defendant gives the money, now the leniency is toward the claimant, and he will transgress “You shall not steal.” Moreover, if the defendant knows the truth is with him, why should he act stringently under the rules of doubt and hand over the money? For simplicity, let us set the case as one in which the claimant asserts certainly (“bari”) that money is owed him, and the defendant replies with uncertainty (“shema”—he does not know or does not recall). In such a case, halakhah still rules that the funds remain with the defendant (“bari and shema do not extract from one in possession”; see Bava Batra 153a and parallels). Here the defendant does not know the truth and is therefore himself in doubt and should be stringent, whereas the claimant is not in doubt and therefore has no impediment to receiving the money.

[3] Throughout Gate V he adduces implications of this innovative determination, and there are further implications he does not mention. See on this Avi Sagi, “The Religious Commandment and the Legal System—A Chapter in the Halakhic Thought of Rabbi Shimon Shkop,” Da’at 35 (1995), pp. 99–114. I have more than once discussed R. Shimon Shkop’s view and its implications.

[4] An implication of this point appears in my article, “The Problem of the Relationship Between the Individual and the Collective and the ‘Defensive Wall’ Dilemma.”

[5] See on this Michael Abraham, “On Causing a Secular Person to Sin,” Tzohar 25.

[6] There is indeed a difference between what he writes in Hilkhot Melakhim and what he writes here; I addressed it in column 631 and elsewhere.

[7] This question was raised in Asher Cohen’s article in Akdamot 10. The article suffers from several methodological and substantive problems.

[8] One might say that the universal features are more basic, while the particularist ones are “higher.” In other words: One who violates a universal norm (for example, one who murders) has done something more severe (for he violated something basic), but one who fulfills it (i.e., one who does not murder) has fulfilled something lower and more elementary. Something similar (see column 416) is said by the Ramban in his commentary to Parashat Yitro regarding the relationship between positive commandments (connected to love of God) and negative commandments (connected to fear of Him). There, too, the difficulty he addresses is similar: on the one hand, a positive commandment overrides a negative; on the other, we must spend all our money not to transgress a negative commandment, whereas with a positive commandment we are obligated to spend only up to a third—or a fifth—of our resources. See also Shdei Chemed, entry “Aseh docheh lo ta’aseh,” who discusses the Ramban’s words.