The Periphery of Halakha – Lesson 3
This transcript was produced automatically using artificial intelligence. There may be inaccuracies in the transcribed content and in speaker identification.
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Table of Contents
- The two-story model and the peripheral category
- A contradiction between Sanhedrin and Yevamot, and a minor’s obligation in intellectual commandments
- Obligations derived from reason that are not formal Jewish law: Noahides, Rav Nissim Gaon, and oaths
- Honoring father and mother and territorial considerations as an extra-halakhic boundary
Summary
General overview
The text presents a model of “two stories,” in which there is a universal-natural layer that exists outside Jewish law but is in practice recognized by Jewish law, and on top of it an additional halakhic-legal layer unique to Israel. It applies this model to family law and to the legal theory of Rabbi Shimon Shkop, and shows how svara creates an entire normative world that is binding even when it is not Jewish law in the formal sense. It resolves a contradiction between passages in Sanhedrin and Yevamot by distinguishing between intellectual / Noahide commandments, which obligate “from the moment one understands,” and uniquely halakhic prohibitions, which apply only from the formal measure of adulthood onward; and it extends this to the laws of oaths for a minor and to written oaths. Later it proposes “territorial considerations” as an extra-halakhic boundary that limits the scope of the commandment of honoring father and mother, not because of a conflicting halakhic value but because of an internal boundary to parental authority over the son’s life-space.
The two-story model and the peripheral category
The text presents an initial layer of establishing a home in the Noahide sense, as Maimonides describes at the beginning of the laws of marriage: a man meets a woman, brings her into his home, and they begin living together. The Torah adds on top of this a halakhic-legal layer that places betrothal before marriage, and this first layer is described as a universal layer that Jewish law “recognizes” or “absorbs” even though it lies outside it. He connects this to Rabbi Daichovsky’s proposal to institute “Noahide marriages” in Israel, essentially returning to that original layer.
The text presents a parallel example in the legal theory of Rabbi Shimon Shkop, where there is a universal legal layer on top of which the halakhic prohibition of theft rests. It defines these examples as particular manifestations of the concept of svara, which generates an entire normative world but is to some extent “outside Jewish law,” while mentioning the Tzelach and the Pnei Yehoshua.
A contradiction between Sanhedrin and Yevamot, and a minor’s obligation in intellectual commandments
The text presents the passage of “stumbling and disgrace” in tractate Sanhedrin, where an animal used for intercourse is killed, whether because of stumbling or because of disgrace, and notes that even if the animal was used with a minor, or a minor used the animal, the animal is killed. It states that the Talmud’s conclusion there is that there is “stumbling” even in the case of a minor, and from this it follows that such a transgression by a minor is also considered a transgression.
The text brings the question of later authorities, among them Rabbi Elchanan Wasserman, Pnei Yitzchak of Rabbi Yitzchak Elchanan, and Chelkat Yoav, from the passage in Yevamot 33 on “one prohibition does not take effect where another prohibition already exists,” where a minor entered the Temple and offered sacrifices, and grew two pubic hairs on that very Sabbath, thereby becoming liable all at once for the prohibition of Sabbath violation and the prohibition of zarut, non-priestly service. It infers from there that until the appearance of the two hairs the minor was not obligated in these commandments, and sets this up as a contradiction to Sanhedrin.
The text resolves this, in the name of those later authorities, by distinguishing between two types of commandments: prohibitions such as intercourse with an animal, which are prohibitions that also bind Noahides, as opposed to the prohibitions of Sabbath and zarut, which are uniquely halakhic prohibitions applying only to Israel. It states that for Noahides “the formal measures were not stated,” and connects this to the framework of “measures, interpositions, and partitions” as a law given to Moses at Sinai; therefore adulthood among Noahides is determined by the “natural state,” meaning from the moment the person understands. It adds that the Noahide commandments are grounded in reason, and Maimonides in the laws of kings writes that these are commandments “toward which the mind inclines,” so whoever understands the reasoning is obligated in them, and whoever does not understand is not obligated, without any formal measure such as two hairs or age thirteen.
The text argues that since a Jew is also obligated in the commandments that Noahides are obligated in, a Jew too is obligated in them “from the moment he understands,” and not only from age thirteen. It presents the rationale through the principle, “There is nothing for which a Noahide is liable and an Israelite exempt,” and interprets this as the essence of the two-story model, in which “inside every Jew there is a small Noahide,” and the Jew is a Noahide on top of whom an additional layer has been added. It cites an article by Rabbi Kook in Orot Yisrael that reaches a two-story model, and notes that Rabbi Fisher in Beit Yishai (in the homilies, the second volume) speaks about this.
Obligations derived from reason that are not formal Jewish law: Noahides, Rav Nissim Gaon, and oaths
The text wonders whether these obligations are halakhic obligations or “moral obligations” and “human values,” and suggests that with Noahide commandments that derive from a command, it may be that they enter Jewish law for a Jew, but it also posits a category of obligations that apply even without a command. It brings Rav Nissim Gaon in his introduction to the Talmud (printed at the beginning of tractate Berakhot), who asks how there can be “dozens of commandments” that Noahides are obligated in in the Talmud in Sanhedrin, alongside the claim that there are only seven Noahide commandments, and answers that every commandment dependent on “the heart’s understanding” has always bound a person. It states that these are extra-halakhic obligations whose source is reason, and therefore they also apply to a Jew by force of that same reasoning and not because the Noahide is obligated in them; and since the obligation from reason depends on understanding, it applies even to a minor “from the time he understands.”
The text brings an example from Maimonides in the laws of lender and borrower, that “we do not administer an oath to a minor, because he does not know the punishment for an oath,” and presents this as difficult, because a minor seemingly has no punishment for an oath. It concludes that Maimonides assumes that in principle there is an obligation and a fear of an oath even for a minor, in the sense of heavenly punishments, when the minor understands; therefore the reason not to make him swear is the uncertainty as to how much he understands. It presents the oath as a kind of “halakhic polygraph” that depends on deterrence through punishment, and ties the foundation of the matter to the idea that the prohibition against swearing falsely is an obligation derived from reason.
The text brings a dispute among later authorities over whether a written oath is binding, and cites the Avnei Nezer in Yoreh De’ah, section 306, who cites a responsum of Ri Migash that a written oath is binding. It states, following the Avnei Nezer, that such an oath is not binding under the legal category of “he shall not profane his word,” because that is a halakhic category requiring explicit verbal articulation, but it is binding by force of reason, and therefore there is no flogging, though there may be heavenly punishments. It suggests that the basis of Ri Migash underlies the understanding of Maimonides regarding the punishment for an oath in the case of a minor, and notes that Ri Migash was the teacher of Maimonides’ father.
The text adds the question of the Mishneh LaMelekh regarding the idea that “we swore at Mount Sinai” to fulfill the commandments, even though the obligation to keep oaths itself depends on the Sinai revelation, and brings the Avnei Nezer’s resolution based on the oaths of the patriarchs before the giving of the Torah. It states that before the giving of the Torah the force of an oath stemmed from reason, and therefore the oath at Sinai relied on the rational obligation to keep oaths, not on the halakhic obligation that was later built on top of it. It offers as a practical implication that a minor recites Grace after Meals not only because of the educational obligation, but by force of a rational obligation to say thank you, whereas the halakhic form of God’s name and kingship binds adults and reaches minors through education.
Honoring father and mother and territorial considerations as an extra-halakhic boundary
The text moves to “a different kind of periphery,” namely “territorial considerations,” and brings two responsa from Techumin: one by Rabbi Ovadia and one by Rabbi Yaakov Ariel. It describes how Rabbi Ovadia discusses whether a son is obligated to obey his parents when they tell him not to study in a small yeshiva but rather in a yeshiva high school so that he will have the basis for a livelihood, and concludes that the son is not obligated to obey them if he decides to be “like the tribe of Levi,” as described by Maimonides at the end of the laws of the Sabbatical year and Jubilee. It notes that his words imply that the son is also permitted to obey his parents and go to a yeshiva high school, and the text raises a difficulty with this, because with Sabbath there is no permission to obey parents against the commandment; rather there is an obligation not to obey.
The text suggests understanding this through a classification such as a non-obligatory fulfillment commandment or a discussion of beautifying a commandment, and notes that beautifying a commandment is not voluntary but obligatory, though it does not prevent fulfillment of the core commandment. It describes how Rabbi Yaakov Ariel similarly discusses the question whether a son may sign on for permanent military service and become an officer against his parents’ wishes that he return after three years, and frames this in terms of the halakhic status of volunteering for officership as beautifying a commandment, and whether beautifying a commandment overrides honoring parents. It adds a dispute among the medieval authorities (Rishonim) in Yevamot 6 over whether honoring parents includes obeying every instruction or only what relates to the parents’ needs, and presents how that changes the framework of the dilemma.
The text argues against this framing that the ruling of override is not always a clash between halakhic values (“an external limitation”), but sometimes an internal boundary of the scope of the commandment itself (“an internal exclusion”). It cites the Maharik as brought by the Rema in Yoreh De’ah in the laws of honoring father and mother: if a parent tells his son not to marry a certain woman “because she does not find favor in his eyes,” the son is not obligated to obey him. It emphasizes that it is hard to base this on “Every man shall fear his mother and his father, and My Sabbaths shall you keep,” because marriage is presented as an instrument for the commandment of procreation, and the commandment could still be fulfilled with another woman.
The text formulates the Maharik’s principle as a person’s right to choose the course of his life within his own “territory,” and parents cannot dictate essential decisions about his way of life even if there is no competing halakhic value here. It presents this as a normative boundary whose source is reason, not a verse or a homiletic derivation, and connects it to a similar idea in the legal theory of Rabbi Shimon Shkop about the boundaries of ownership and territory. It concludes that territorial considerations are extra-halakhic considerations that set up a “wall” marking how far Jewish law reaches, and promises to bring more examples in the next lecture.
Full Transcript
[Rabbi Michael Abraham] Okay, last time I spoke a bit about two-story models, where the initial story is really the peripheral category we were dealing with. We saw this in the laws of personal status, marriage and betrothal, and I said that there is some kind of initial story. It’s back now, I’ll try again to continue and we’ll see if it works. We saw that there is an initial story of establishing a home in the Noahide sense, which is what Maimonides describes at the beginning of the laws of marriage: a person meets a woman, brings her into his home, and they basically begin living together. On top of that, the Torah added a halakhic-legal story, namely that betrothal must precede marriage. And I said that this has implications, for example, in Rabbi Daichovsky’s proposal here in Israel to institute Noahide marriages, basically to return to that original story. And that original story is really not a halakhic story; it is a universal story that Jewish law recognizes or at least digests, even though it actually lies outside it. We saw the same thing regarding the legal theory of Rabbi Shimon Shkop: there too there is some universal legal stratum on top of which the halakhic prohibition of “do not steal” rests. Maybe I also want to add another implication, because in a certain sense both of those examples are particular examples of the concept of svara that I spoke about, where the concept of svara itself creates an entire normative world, but is actually somewhat outside Jewish law, apparently. We spoke about the Tzelach and the Pnei Yehoshua, and I want to show some expression of this idea. There is a contradiction between two passages; quite a few later authorities raise this contradiction, a contradiction between two passages. On the one hand, there is a passage in tractate Sanhedrin, the passage of stumbling and disgrace, and there the Talmud says—the context there is that if an animal was used sexually by a person, then the animal is killed. There are two opinions in the Talmud as to why this is done: either because of stumbling or because of disgrace. Disgrace means that when that animal walks around in the marketplace or in the street, people will say, “That is the animal with which so-and-so had intercourse,” and that is a disgrace for him. “Because of stumbling” means that this animal caused that person to sin, so there is here “and you shall remove the evil from your midst,” and we are supposed to kill that animal. It’s not important for our purposes; that’s just the background. In the course of that discussion, the Talmud asks what happens with an animal that was used by a minor, or that a minor female used. So the Talmud says that it too is killed. And the Talmud discusses there why it is killed—after all, there is no stumbling here, because this is not… there is no transgression; minors don’t commit transgressions, so maybe it is because of disgrace. But in the end the Talmud’s conclusion is that there is stumbling here as well. Even according to the one who says it is because of stumbling, the animal is killed. Why? Because even such a transgression by a minor is a transgression—that is what emerges from the Talmud there. In contrast, several later authorities ask—Rabbi Elchanan Wasserman, Pnei Yitzchak of Rabbi Yitzchak Elchanan, and Chelkat Yoav, there are several later authorities who ask this—that the Talmud in tractate Yevamot on page 33 discusses the rule that one prohibition does not take effect where another prohibition already exists, and the Talmud gives an example: what happens with a minor who entered the Temple and offered sacrifices, and on that very Sabbath he grew two pubic hairs, meaning he became an adult on that Sabbath. So the Talmud says that the prohibition of Sabbath violation and the prohibition of zarut come upon him at once. The moment he grew two hairs he became an adult, so then he became liable both for the prohibitions of Sabbath and for the prohibition of zarut—an outsider, a non-priest, entering the Temple and offering is prohibited. So the Talmud there is looking for how there can be a situation in which two prohibitions come at once, because if they come one after the other, then the first takes effect and the second does not. But if they come at the same moment, then both take effect. How can that happen? If he grows two hairs in the middle of the Sabbath. From here you see that until he grew two hairs, as long as he was a minor, he was not obligated in those commandments. In other words, only an adult is obligated; when he was a minor he was not obligated. So the later authorities ask: this is a contradiction to the Talmud in tractate Sanhedrin in the passage of stumbling and disgrace, because there you see that even a minor has transgressions. But in the Talmud in Yevamot you see that no: as long as he is a minor he is not obligated in anything; only from the moment he grows two hairs does he become obligated. So they say—almost in the same way, there are small differences but almost the same way—they all basically resolve it in this fashion. They basically say this: in the prohibitions discussed in the passage in tractate Sanhedrin, we are dealing with intercourse with an animal. Prohibitions of that kind are prohibitions that also bind Noahides. And since they also bind Noahides, after all, with Noahides the formal measures were not stated. Measures, interpositions, and partitions are a law given to Moses at Sinai. The law of measures was not stated for Noahides. Now, the measure—the adulthood of a child, two hairs or age thirteen, or all the measures by which we say when a person becomes an adult and is obligated in commandments—that too was not stated for Noahides, because it is part of the laws of measures. That is what the Chatam Sofer and the Rosh say; I’m not going into the details right now, but this too is part of the laws of measures, and it was not stated for Noahides. So when is a Noahide obligated in what he is obligated in, in his seven commandments? At what stage, if no measures were stated about him? So the answer is: the natural state. You don’t need an artificial measure; it’s a natural state. What is the natural state? From when he understands. From when the Noahide understands, he is obligated, and there is no formal measure here like we find with Jews—two hairs or age thirteen or all kinds of formal measures like these. So for Noahides this exists from the moment he understands. So they say that maybe in the background of the matter one has to understand that the Noahide commandments—and about this I spoke—the Noahide commandments are commandments that are basically grounded in reason. In other words, if I have a rational basis, then I am obligated. Maimonides himself writes in the laws of kings that these are commandments toward which the mind inclines, meaning these are commandments of reason. So if that is the case, then the rule is that whoever understands the reasoning is obligated by them; whoever does not understand is not obligated by them. This is basically a situation where there is no measure in some formal sense that says these are obligated and those are not obligated, or from here onward he is obligated and up to here he is not obligated; rather, it follows from the nature of the matter. It is not an external measure. If the thing is fundamentally based on reason, then whoever understands it is obligated and whoever does not understand it is not obligated. And that is basically the age from which the non-Jewish minor is obligated in commandments: the moment he understands. This truly is not universal. One child may understand at age five, another at age ten, so he is obligated from the time he understands. That is basically the claim. Consequently, those later authorities say that a Jew too, with regard to those commandments in which a Noahide is obligated, will also be obligated from the moment he understands. Therefore age thirteen is not what determines things for them. And this commandment, this prohibition of intercourse with an animal, which is what the passage in Sanhedrin is dealing with, really belongs to that category of intellectual commandments, moral commandments, or whatever you want to call them. Therefore, since the indication is that a Noahide too is prohibited in this, the Jew’s prohibition in it also does not begin at age thirteen but from the moment he understands. That is basically the claim. In contrast, the commandments discussed in the passage in Yevamot—the prohibition of zarut in the Temple or the prohibition of Sabbath—those are specifically halakhic prohibitions for Jews. And that of course obligates only from the moment I am considered an adult, from the moment I have grown two hairs. Therefore the Talmud in Yevamot says that until the two hairs I really am not obligated, because it is dealing with such prohibitions, which are halakhic prohibitions. For halakhic prohibitions, the measure of adulthood applies, from which point onward one is obligated. But in the passage in Sanhedrin, where the subject is intercourse with an animal, in such a case this is basically a prohibition that Noahides too are obligated in. And Noahides too are obligated in it, and therefore this prohibition obligates anyone who understands it, whether Jew or Noahide. That is basically the answer they propose. Now, what is the idea behind this? They formulate it through the Talmud—also in tractate Sanhedrin there, not far away. The Talmud there says: “There is nothing for which a Noahide is liable and an Israelite exempt,” or “nothing that is forbidden to a Noahide and permitted to an Israelite.” There cannot be something that obligates Noahides but does not obligate Jews. The reverse can happen, yes: there are things Jews are obligated in and Noahides are not. But there cannot be a situation where Noahides are obligated in something and Israel is not. Therefore they say that everything a Noahide is obligated in, an Israelite will also be obligated in. And what happens if it is a Jew—a ten-year-old Jewish boy? If his non-Jewish counterpart at age ten would be obligated because he understands, then it cannot be that the Jew is exempt, because there is nothing for which a non-Jew is liable and a Jew exempt. That is basically their claim. It sounds a bit like some technical consideration, a formal consideration, some kind of proof that if the non-Jew is obligated then the Jew is also obligated because there is nothing a non-Jew is obligated in and a Jew is exempt from. So if a ten-year-old non-Jew is obligated, then a ten-year-old Jew also has to be obligated. And to me that sounds a bit off. What? I can’t hear. Are we back? Can you hear me now?
[Speaker D] Yitzchak, now we can hear. You were cut off for two or three minutes. Yes.
[Rabbi Michael Abraham] Okay. So what I was saying, basically, is that the later authorities resolve the passage in Sanhedrin against the passage in Yevamot by distinguishing between two kinds of commandments. I just don’t know where the… where you stopped hearing me. The commandments discussed in the passage in Yevamot are commandments of Sabbath and zarut in the Temple, and these are commandments that are unique to Jewish law, basically binding only Jews. And the commandments discussed in Sanhedrin are commandments that… intercourse with an animal. And intercourse with an animal is a commandment that Noahides too are obligated in. Therefore they say that since with Noahides minors too are obligated, because the formal measures were not stated for them, then a Jewish minor too will be obligated in those same commandments, because there is nothing forbidden to a Noahide and permitted to an Israelite. In contrast, the commandments in the passage in Yevamot are commandments that bind only Jews, halakhic commandments, and there the obligating age is the formal measure of adulthood—two hairs or age thirteen. Now, their argument sounds like a technical argument, yes—there is nothing forbidden to a Noahide and permitted to an Israelite—but behind it, it seems to me, lies a substantive argument. Can you hear me? I see you frozen, so I don’t know whether you can hear or not.
[Speaker D] Yes, yes, we can hear.
[Rabbi Michael Abraham] Okay, so behind this argument there is really a principle, a logical principle I think, and it’s the two-tier model I talked about in the previous lecture. The claim, basically, is that inside every Jew there is a little Noahide. In other words, a Jew is a Noahide with an additional layer built on top. Okay? And therefore, basically, everything that exists for a Noahide, everything a Noahide is obligated in, a Jew is also obligated in. He is obligated in it by virtue of the Noahide within him. In other words, yes, a Jew means a gentile of a certain kind. Okay? Just as a human being is an animal—that’s how Aristotle defined it: man is a speaking animal. Okay? He belongs to that category called living beings or animals, and the special species, the speaking one, is what is called man within it. So every person is also an animal. He is an animal of a special type. In the same way, a Jew is a person of a special type, who is also obligated in the commandments of Jewish law. But clearly, as a person, he is also obligated in everything every human being is obligated in, and in addition he is also obligated in the obligations of a Jew. And therefore the claim is that what the Talmud says—that there is nothing forbidden to a Noahide and permitted to a Jew—really rests on the two-tier model I discussed in the previous lecture. Since every Jew is also a Noahide, and as a Noahide he is obligated just as every gentile is obligated. Anything that can be added in the case of a Jew is only additional obligations, meaning that he is also obligated in the halakhic matters that were stated only regarding a Jew. So whatever obligates Noahides obviously obligates him as well, and if it obligates them from age eight too, or whenever they understand, then a Jew at that age will also become obligated, because after all he is also a human being, besides being a Jew. On this matter there is an article by Rabbi Kook in Orot Yisrael, where he discusses exactly this question: is every Jew a Noahide plus something, or does the Jewish layer replace what existed before the giving of the Torah, the universal layer? His conclusion in the end is that it is a two-tier model. Rabbi Fischer also talks about this; he has it in Beit Yishai, in the derashot, in his second book. He talks about it too, and in his usual way he doesn’t mention Rabbi Kook, but it’s obviously taken from there. And this example of the obligations of minors, I think, is an expression—I don’t know whether to call it halakhic—but a normative expression of that claim. What this expression says, basically, is that in commandments that a Noahide is obligated in, a Jew will also be obligated in them—when? From the moment he understands.
Now there is room to hesitate whether these things are halakhic obligations, or obligations more like moral obligations, like human values, everything I talked about in previous lectures. Simply speaking, in those commandments that the Noahide is obligated in because he is commanded, then that probably enters Jewish law for the Jew as well—it will be a halakhic obligation. But a gentile has obligations he is bound by even without being commanded. Rabbi Nissim Gaon, in the introduction to the Talmud—it is printed at the beginning of tractate Berakhot in the standard editions—says that we know there are seven Noahide commandments, but on the other hand in the Talmud in Sanhedrin we see there are dozens of commandments that Noahides are obligated in. So he asks how this fits with the claim that Noahides are obligated only in seven commandments. By the way, the seven Noahide commandments obviously correspond to many dozens of commandments in our system, only for them—for example the prohibition of forbidden sexual relations: for us that is split into many commandments, whereas for Noahides the obligation regarding forbidden sexual relations includes within it what in our system is classified as many commandments. So I’m not talking about that. I’m talking about commandments that do not enter the category of the seven Noahide commandments at all. Why are there seven for him while for us it becomes dozens? But beyond his seven, there are additional commandments the gentile is obligated in. So Rabbi Nissim Gaon says that every commandment dependent on what the heart understands, a person has always been obligated in it. Maybe I mentioned this when I talked about reason—I don’t remember. So the claim is that things dependent on reason, a Noahide is obligated in them even without a command. Why? Because it is plain reason. Okay? Everything I said about reason in relation to Jews is of course also true for Noahides. Basically these obligations are not, in their category, halakhic obligations. They are extra-halakhic obligations; this is some other category.
So if that is the case, these obligations obviously also apply to a Jew, because it makes no sense that a Noahide should be obligated in something and a Jew exempt from it, since every Jew is also a Noahide plus something extra. Now if this is, for example, intercourse with an animal—bestiality—what a Noahide is obligated in there is not included in the seven commandments, but Rabbi Nissim Gaon still brings it as something a Noahide is obligated in. Why? Because reason demands it. If so, then this is not a halakhic obligation; it is an obligation grounded in reason. So of course an obligation whose basis is reason also binds the Jew. Why? Because it is plain reason. And therefore a situation cannot exist in which a Noahide is obligated and a Jew is exempt, because everything the Noahide is obligated in—not from his seven Noahide commandments but from reason—that same reason obligates me as a Jew too. Not because the Noahide is obligated; the fact that the Noahide is obligated is only an indication, an indication that there is an obligation here based on reason. But an obligation based on reason also binds Jews, therefore the Jew will be obligated. The practical difference is that the Jew will be obligated from the time he understands, not from age thirteen. And what does it mean that he is obligated? After all this is not an obligation—not a regular halakhic obligation. It is an obligation of reason, whatever that means, but it is not an ordinary halakhic obligation, as we discussed with regard to Pnei Yehoshua and Tzelach about blessings before food. So this obligation too is really some category peripheral to Jewish law. It obligates, and it is a norm we are supposed to act by, a norm of do and do not do, but it is not part of Jewish law. Yet it gets mixed into Jewish law in the sense that it also obligates me. Jewish law recognizes it de facto.
Let me maybe give you another example of this. Maimonides writes in the laws of—if I’m not mistaken—the laws of creditor and debtor, that one does not administer an oath to a minor, because he does not know the punishment for an oath. There are disputes there and variant readings in Maimonides; I’m not going into all the possibilities right now, but that’s what he writes. Now on the face of it these words of Maimonides are very puzzling. Because it implies that if the minor is clever, if he knows the punishment for an oath, then maybe one actually can administer an oath to him. But that’s strange, because a minor is not subject to the punishment for an oath; he is not obligated at all, he is a minor. So how can Maimonides say it is because he does not know the punishment for an oath? It’s not that he doesn’t know the punishment—there is no punishment for oath in his case. He is a minor, he is not obligated. Maimonides seems to imply that this is only a technical issue, because he doesn’t know. The whole idea of administering an oath to someone is that an oath is a kind of halakhic polygraph. Right? A person is afraid of the punishment for an oath, and therefore if he says something under oath one can believe him. It’s a kind of polygraph. A minor who does not know the punishment for an oath—there is no point in making him swear, because it won’t help you. If he doesn’t know the punishment, then it won’t deter him from lying even if he swears regarding the matter. That’s what Maimonides says. But I say: it’s much stronger than that. It’s not just that he doesn’t know the punishment for an oath; there is no point in making him swear because there is no punishment for oath upon him, not because he doesn’t know the punishment. And from Maimonides, who says he doesn’t know the punishment, it sounds like there is punishment upon him, only because he is a minor he is not fully mentally developed and so he doesn’t know. But that isn’t true. As a minor there is none at all. On the contrary, I would be more careful with a smart minor. A minor who has not yet developed enough understanding—you can still feed him stories, tell him that an oath is very severe and you have to be careful and you’ll be punished for it and so on; then maybe when he swears you can really take it seriously because he fears the punishment. But a minor who does have understanding, a clever minor—you have to be more careful with him. Because he understands there is no punishment upon him. There is no punishment! So you won’t be able to sell him those stories. Why does Maimonides say one does not administer an oath to a minor because he does not know the punishment for an oath? He should have said: one does not administer an oath to a minor because there is no punishment for oath upon him. But from Maimonides it sounds as if a minor who swears is subject to punishment. It may be that because he is a minor, he is coerced or unaware, and so perhaps he is exempt, but in principle there is punishment for oath even upon a minor. And where does that come from? A minor is not obligated in commandments.
It seems that Maimonides understands that the punishment for an oath, or the prohibition against swearing falsely, exists even in the case of a minor, and therefore punishment will also apply to him—not punishment by a court, but heavenly punishment will apply to a minor too. Why is that? For the same reason I said earlier. The obligation to fulfill what you swore to, or not to swear falsely, is an obligation grounded in reason. And an obligation grounded in reason exists for minors as well, not only for adults, so long as they understand. If he does not understand then of course not, and therefore one has to be careful, because when a minor stands before you, you don’t know how much he understands, so don’t administer an oath to him, says Maimonides. But in principle, if I were sure that this minor understands, then punishment for an oath would apply to him and in principle one could also administer an oath to him. If punishment for oath applies to him, then the oath has a deterrent element, meaning it will give me what an oath actually gives me, and therefore with a clever minor there is room to administer an oath.
This claim—that the oath is really grounded in reason and therefore also obligates minors—is found, at least in its infrastructure, in a responsum of Ri Migash. There is a discussion among the later authorities on the question whether an oath in writing is binding, whether writing is like speech. Now in oaths and vows one needs explicit verbal formulation, bringing it forth by mouth. Right. So what happens if I wrote an oath? I swore in writing, not orally. Does that obligate me? There is disagreement among later authorities about this—Rabbi Akiva Eiger, Avnei Nezer, and others. Avnei Nezer in Yoreh De’ah, section 306, brings a responsum of Ri Migash, who writes that an oath in writing is binding. Avnei Nezer explains there that such an oath of course does not bind under the Torah category of “he shall not profane his word,” because the Torah addresses only adults. It binds in the sense of reason. Meaning: there would be no lashes for an oath in writing, because lashes come for a halakhic oath prohibition. A halakhic oath prohibition has definitions. You need verbal articulation by mouth for the oath to be valid, and so on. But if he swore in writing—if he swore in writing—then he has an obligation to fulfill it. Only that obligation is not an obligation by force of “he shall not profane his word,” the halakhic obligation, but rather an obligation grounded in reason. Therefore there will not be lashes for it, but there can be heavenly punishment for it. Anyone who acts improperly, even if he did not violate a halakhic transgression, the Holy One, blessed be He, can certainly take him to account. And therefore an oath in writing is binding.
This principle written in Ri Migash, it seems to me, is what lies behind Maimonides’ statement that a minor is subject to punishment for an oath. As is known, Ri Migash was the teacher of Maimonides’ father. And many puzzling things—or at least a few puzzling things—that appear in Maimonides can be traced to their source in the writings of Ri Migash. And I think this is another example of that. Once we understand that there is an obligation of oath beyond the halakhic obligation, namely an obligation grounded in reason, then obligations grounded in reason bind anyone who understands the reasoning. There is no need to enter the definitions of adulthood, two pubic hairs, and all the halakhic definitions. The halakhic definitions speak about halakhic obligations, but obligations that are not halakhic obligations bind anyone who understands the reasoning; obligations grounded in reason bind anyone who understands the reasoning.
For example, one practical implication is that a minor has to bless after food not only because of education. A minor has to bless after food because he is genuinely obligated in that blessing. He is obligated in it. Why? Because if the obligation is grounded in reason, then that reasoning binds everyone who understands it. Therefore a minor will be obligated to bless, not because of education, but obligated to bless just like an adult. The rabbinic definition—with God’s name and kingship, and the special text of the blessing—that definition exists only within Jewish law, and it binds only adults, and minors only because of education. But definitions that emerge from reason—I said there that there is an obligation of blessing grounded in reason—you can do it even without God’s name and kingship, simply by saying thank you very much to the Holy One, blessed be He, for the food. So that obligation exists for a minor too, not only for an adult.
You can see this in another place too, which Avnei Nezer himself brings: the Mishneh LaMelekh asks how this can be. The Talmud says that a person who swears concerning a commandment, the oath does not take effect because he is already sworn and standing from Mount Sinai; one oath cannot take effect on another oath. We were sworn at Mount Sinai to keep the commandments. So Mishneh LaMelekh asks: what is the point of swearing us at Mount Sinai to keep the commandments, when our obligation itself to keep oaths is grounded in the revelation at Mount Sinai? How can one swear us to keep commandments when the obligation to keep an oath is itself by force of those very commandments that we are receiving in this way? It’s a loop with its tail in its mouth. What is the point of swearing us? So Avnei Nezer says in that same responsum I mentioned earlier, and resolves it: after all, we find that even the patriarchs swore. Eliezer swore to Abraham, right, and Abraham and Jacob—sorry, Jacob and Laban also swore to one another. So he says there were oaths even before the giving of the Torah. Before the giving of the Torah, where did the force of oaths come from? There was no prohibition of “he shall not profane his word,” “whatever comes out of his mouth he shall do.” So what was the source of the force of oaths? The source was reason. Meaning, we see here that there is a rational basis that obligates me to keep the oaths I swore and not to swear falsely, beyond the halakhic basis of “he shall not profane his word.” The oath by which we were sworn at Mount Sinai to keep the commandments is an oath relying on the obligation by force of reason to keep oaths, not the obligation by force of Jewish law, because the obligation by force of Jewish law is itself founded on that oath we swore at Mount Sinai.
Excuse me for two minutes, I have to step out for a moment, I’ll be right back, okay? Oops, sorry, can you hear me? Yes, we can hear. Can you hear? Okay. Sorry, I’m back. So the obligation of an oath is also part of that same universal, human, moral infrastructure, or whatever you want to call it, and therefore it binds anyone who understands, regardless of age, because the age limitation is a limitation stated only about halakhic obligations. Obligations that emerge from reason bind everyone. But what does it mean that they bind everyone? They do not bind within the formal categories of Jewish law, as we saw. Beyond the question of age, one might have said this is a halakhic obligation on an eight-year-old, that there is some kind of obligation. In what way does the fact that this is not a halakhic obligation find expression? The claim we see here regarding an oath, for example, is that the halakhic requirement of explicit verbal formulation does not exist in this type of obligation. From the standpoint of Jewish law, an oath is binding only if you articulated it by mouth, only if you said that oath out loud. But if we are speaking here about an obligation not within the categories of Jewish law, then what determines it is simply logic. And logic says that even if you swore to someone in writing and not orally, reason says the same thing: you have to fulfill it on the basis of reason. So here there is a sharpening of the difference between them. Even though both sides are obligations—they both obligate me—this is a halakhic obligation and this is a non-halakhic obligation. And the sharpening, for example, is that here you do not need verbal articulation by mouth. Meaning, there is an implication regarding commitment to the formal categories of Jewish law. So this is a kind of halakhic expression of the two-tier model I spoke about in previous lectures on reason: the universal layer lying beneath the particular Jewish halakhic layer. And it gets mixed into Jewish law in the sense that you can see in halakhic texts that you are obligated, because the text—Maimonides—is a halakhic text. When Maimonides says one does not administer an oath to a minor, or one may administer an oath to a minor, he is apparently referring to Jewish law. But what I want to claim is that although this appears in a halakhic text, in fact it is a non-halakhic obligation. It got dragged into the halakhic text because this too is something one must do. So Maimonides writes it, but in its source the obligation is not one that enters the halakhic category. That is why this is called a peripheral category.
I now want to move to another kind of obligation, or another kind of periphery, and that is what I call territorial considerations. I think I mentioned this—I mentioned it when we spoke about Jewish law and morality in an earlier series. The example I want to start with is honoring father and mother, the obligations of honoring parents. There are two halakhic responsa, both published in Techumin, one by Rabbi Ovadia and one by Rabbi Yaakov Ariel, and I want to look at them from a somewhat different angle and use them to demonstrate this consideration of halakhic territory. Rabbi Ovadia discusses the question whether a son has to listen to his parents when they tell him not to go study in a high-school yeshiva or in a yeshiva at all—I mean a yeshiva ketanah, as opposed to a yeshiva that deals with secular studies. So the parents, as parents do, want the son to receive some professional training, some kind of foundation that will make it possible for him to earn a living, but the child desires Torah; he wants to study only Torah and go to a yeshiva ketanah. So Rabbi Ovadia discusses whether the child is obligated to obey his parents when they tell him such a thing. His discussion basically revolves around the question: what is the force of the obligation to go to a yeshiva ketanah where one studies only Torah? His conclusion is that the son is not obligated to obey his parents on this issue, because if he has decided to be like the tribe of Levi, as Maimonides says at the end of the laws of the Sabbatical year and Jubilee—that anyone whose heart moves him to engage only in Torah is considered like the Levites, who dedicate themselves to Torah, and so on and so on. Many cite this Maimonides in relation to exemptions from military service for yeshiva students. In any case, in Rabbi Ovadia’s discussion—and by the way, from Rabbi Ovadia’s words it seems that the son is allowed to obey the parents; it is not that he commits a transgression if he listens to them, only that he is not obligated to. Okay? That itself is an interesting question, because when Rabbi Ovadia discusses the question, he turns to discussions about the force of—because when things are halakhic obligations, the Talmud learns from “Every person shall fear his mother and his father, and keep My Sabbaths; I am the Lord your God”—all of you are obligated to honor Me. Meaning, if his father tells him to desecrate the Sabbath, should he obey him? The Talmud says: “Every person shall fear his mother and his father, and keep My Sabbaths.” Meaning, when my father tells me to desecrate the Sabbath, I do not need to obey him, because honoring parents does not override the obligation to keep the Sabbath. Why? Because even the father whom I am obligated to honor is himself obligated to honor the Omnipresent, or in other words obligated in the commandments, so he certainly cannot tell me to violate the commandments. That is basically the claim.
Now Rabbi Ovadia says: if we are talking about the commandment of Torah study and the father is basically telling me not to study Torah, then apparently this enters the category of “Every person shall fear his mother and his father, and keep My Sabbaths.” A father who tells me to commit a transgression or to neglect a positive commandment—I am not obligated to obey him. If this is only an enhancement of a commandment, studying more Torah, then that is an enhancement, not really a commandment, so there is room to discuss whether this rule—“Every person shall fear his mother and his father, and keep My Sabbaths”—applies even to enhancement of a commandment, or whether it applies only to full-fledged obligations and not to enhancements. But Rabbi Ovadia’s whole discussion revolves around this question: what is the degree of my halakhic obligation to study Torah or to study only Torah? And from that he derives the ruling whether I may refuse to obey my parents or whether I must obey them. As I said, implicit in his words is that the son may obey his parents and go to a high-school yeshiva—it is not that there is a prohibition; rather he is also permitted not to obey them.
Now that itself is puzzling. Because take Sabbath observance: if the parents tell me not to keep the Sabbath, to desecrate the Sabbath, I have no permission to obey them; I am obligated not to obey them. It is not merely permission not to obey them; it is an obligation not to obey them. So if this thing is a full obligation, then what does it mean that I am allowed to obey them and also allowed not to? Seemingly I should be forbidden to obey them. Whoever listens to his parents would be a sinner according to this approach. How can there be a situation in which I am permitted to obey them and also permitted not to? If there is no obligation to do it, then I must obey them. If there is an obligation to do it, then I am forbidden to obey them. How can there be a situation where I may obey them but also may refrain? So one might perhaps say that this is a non-obligatory commandment fulfilled only when one chooses to do it, or an enhancement of a commandment, or something of that sort—after all, in the end I have the right not to do it as well; I do not commit a transgression by not doing it. It is a kind of optional mitzvah. Therefore I may also obey my parents, but I am not obligated to obey my parents because I can also choose to fulfill the commandment. The very choice I have to fulfill the commandment also allows me to choose not to obey my parents when I fulfill that commandment. So maybe this special status stems from the character of the obligation: because this obligation is not a full obligation; it is an optional mitzvah or an enhancement of a commandment or something like that. Since I can also choose not to do it, I can also obey my parents when they tell me not to do it. But here the real novelty is that, on the other hand, I am also permitted not to obey my parents even though it is only an optional mitzvah. Seemingly the commandment to obey my parents is an obligatory commandment—I have to obey my parents—and this other commandment is an optional mitzvah, so one might have said that in such a situation I would have to obey them. Rabbi Ovadia says no: you are permitted to obey them and you are also permitted not to. Why? Because even an optional mitzvah allows me, if I want to fulfill it, not to obey my parents.
Fine, that’s an interesting claim. There is something similar in the Raavad at the beginning of Sifra. Raavad says that even a non-obligatory positive commandment overrides a prohibition, even though one can simply refrain from doing it. So how can it be that in order to do such a positive commandment I may violate a prohibition, commit a transgression? After all, I can simply not fulfill the commandment, and there is no problem—it’s only an optional mitzvah. Raavad argues that even such a positive commandment justifies overriding the prohibition. One could discuss this at length, but really the same idea may also be present here. Let us say that this is an optional mitzvah: one is also allowed to go to a high-school yeshiva, it is not that there is a prohibition—I’m speaking according to Rabbi Ovadia; I certainly do not think so—but I’m saying according to Rabbi Ovadia, one is allowed to go to a high-school yeshiva, it is not forbidden. But there is an optional mitzvah to go to a yeshiva where one studies only Torah. Such an optional mitzvah you are allowed to fulfill even if it goes against your parents’ instructions. But clearly you are not obligated, and if you want to obey your parents and not fulfill that optional mitzvah, then that is also permitted. And that is the claim.
As an aside, I mentioned earlier either an optional mitzvah or an enhancement of a commandment. I think one has to be careful—enhancement of a commandment, it seems to me, people do not understand correctly. Enhancement of a commandment is not something voluntary, where if I want I do it and if I don’t want I don’t do it. It seems to me that enhancement of a commandment is a full obligation. “This is my God and I will beautify Him”—beautify yourself before Him in commandments. I am obligated to beautify the commandments. It is just that the beautification does not invalidate the commandment itself. For example, if I take a citron that is not beautiful, then I have fulfilled the commandment of citron or the four species, because the beautification does not invalidate the commandment. But that does not mean beautification is voluntary, a matter of choice—whoever wants does it, whoever doesn’t want doesn’t do it. Whoever did not fulfill the beautification canceled the commandment of beautification, not the commandment of citron. Do you understand me?
[Speaker B] We’re back. Yes?
[Speaker D] It disconnected again.
[Speaker B] Yes, yes, I know. Can you hear me now? Yes? Hello, can you hear me? Can you hear me now? Can you hear me now? Can you hear me?
[Speaker C] It’s hard, hard, garbled.
[Rabbi Michael Abraham] Can you hear now? Yes, Yitzhak. We can hear. Okay. Fine, let’s try once more, the line here really is problematic. We’ll try.
[Speaker C] Okay, we can see and hear.
[Rabbi Michael Abraham] Okay. So what I just noted in parentheses is that enhancement of a commandment is usually taken as something voluntary, but I don’t think that’s right. Enhancement of a commandment is a full obligation; it just does not invalidate the commandment itself. So someone who took a citron that is not beautiful did indeed fulfill the obligation of the citron commandment or the four species, but he neglected the commandment of beautification. Therefore the fact that it does not invalidate the commandment of citron does not mean it is voluntary. So in the context of Torah study there is room to discuss this too. If we speak of it as enhancement of a commandment and not as an optional mitzvah, then I am not sure we are really speaking about something discretionary. Seemingly it is obligatory. Although from later authorities it does sound as though enhancement of a commandment really is some sort of voluntary matter, discretionary.
In any event, the claim—if I return to Rabbi Ovadia—is that one can perhaps understand why there is permission to obey the parents but also permission to go against what they say, because perhaps this is an optional mitzvah or something of that kind. A similar responsum appears with Rabbi Ariel. Rabbi Ariel also appears in Techumin, discussing the question: what happens if a young man wants to sign on for permanent army service, wants to become an officer. And the parents say: we want you back home after three years. Is he obligated to obey them, or is he permitted to go into the officer corps, which will of course require him to serve longer, more than three years? Rabbi Ariel too, when he clarifies this issue, enters into questions of “Every person shall fear his mother and his father, and keep My Sabbaths.” Meaning, for him too, the inquiry once again boils down to the question: what is the status of volunteering for officer training—is it a commandment, an enhancement of a commandment? And his conclusion is that it is an enhancement of a commandment, and he discusses there whether enhancement of a commandment also overrides the commandment of honoring parents or not. But the discussion again revolves around this framework: does “Every person shall fear his mother and his father, and keep My Sabbaths” also apply to this case? Here it’s enhancement of a commandment, optional mitzvah, obligatory mitzvah, prohibition, positive commandment—the ordinary halakhic discussions.
The truth is there is another discussion that comes up in this context, and it really is somewhat connected. It depends on a dispute among the medieval authorities in Yevamot 6. Tosafot there and Rashba and others discuss the definition of the commandment of honoring parents. Does honoring parents mean obeying everything they tell me, or only in a case where this serves some need of the parents that I am supposed to fulfill, to help them—only then does the obligation apply to me? But if they tell me to do things just because they want me to do them, it is not clear that this is included in the commandment of honoring parents at all. Parents cannot simply give me orders to do this and not do that. If it is something intended for their benefit, they need me, then for example in volunteering for officer training, if they want me to go quickly to university for the sake of my career and therefore they tell me not to volunteer for officer training, then according to some of the medieval authorities there is no commandment of honoring parents here at all. Because they cannot tell me what to do; they can ask me for help for their sake. Okay? So this is a dispute among the medieval authorities in Yevamot. But some of the medieval authorities say no. By contrast, if they want me at home because they need help, then that is included in honoring parents. Because here they are not doing it for me; they are doing it for themselves. Doing for them—that I am indeed obligated in.
So now the question arises that opposite this obligation stands this value of serving as an officer in the army. If this is not included at all in the commandment of honoring parents, then there is no dilemma. The dilemma arises either according to the medieval authorities who say it is included in honoring parents, or in a situation where it is for their benefit, in which case according to all the medieval authorities it is included in the commandment of honoring parents, and still another value stands opposite it, and the question is whether honoring parents overrides that value or not. So that is basically Rabbi Ariel’s discussion.
What these two responsa have in common—both Rabbi Ariel’s and Rabbi Ovadia’s—is that they both place this in the halakhic category and discuss the force of the act itself—studying in a yeshiva ketanah or serving in the army as an officer—and from that they try to derive whether this overrides honoring parents or does not override honoring parents. I want to make a different claim in both these cases. And here I’m presenting the consideration I call a territorial consideration. Again, I’ve spoken about this on previous occasions in earlier series. I want to claim that usually when we speak about one halakhic principle being displaced by another halakhic principle, that is the result of some collision between two principles. I have an obligation to honor parents, and opposite that I have an obligation to keep the Sabbath. Now when my parents tell me not to keep the Sabbath, I have a collision between these two principles, and the question is which of them overrides the other. I call that an external limitation—external, meaning from outside, okay? A limitation from outside that says: here you do not have to obey your parents because there is some other value that overrides it.
I want to claim there are halakhic principles of displacement of a different kind—an internal displacement, not an external one. From within, not from without. What do I mean? There is a limitation on the obligation to obey parents that is a limitation not arising from an opposing value. Rather, there is a certain boundary up to which the parents’ wingspan reaches—up to there the parents can demand things of me, beyond that they cannot. It is limited not because from outside there is a principle that overrides it, but because it is limited from within. That is, the obligation of honoring parents itself reaches only that far and no farther. It is not that something else overrides it, but rather the obligation does not extend beyond a certain boundary. Let me try to illustrate this.
There is a ruling that appears in Maharik, and was also ruled in Yoreh De’ah, the laws of honoring father and mother, in the Rema. He brings this Maharik, who says that if a person’s father tells him not to marry a certain woman because she does not find favor in his eyes, then the son does not have to obey the father. There is no obligation to obey one’s parents—not specifically the father; there is no obligation to obey one’s parents—if they want to tell me: do not marry the woman you want to marry. And again, in Maharik itself there are two formulations brought there as justification. One formulation turns to the question of what commandment there is in marrying a woman, and then once again, “Every person shall fear his mother and his father, and keep My Sabbaths”—there is a commandment incumbent upon me; the parents cannot tell me not to fulfill a commandment. But here that is really difficult. First, because marrying a woman is not itself a commandment according to most views; according to most views, marrying is a preparatory means for a commandment. The commandment is to be fruitful and multiply, but the means is to marry. In Maimonides there are those who say otherwise; I think even in Maimonides that is not certain. But the Rosh and most medieval authorities maintain that betrothal is not a commandment, and marriage is not a commandment. It is a preparatory means for a commandment. So if that is the case, then it is even harder to invoke “Every person shall fear his mother and his father, and keep My Sabbaths” in this context.
But beyond that: I can marry another woman whom my parents do approve of and fulfill procreation with her, or even the commandment of betrothal, if you like, if there is such a commandment. So what’s the problem? The fact that I want this particular woman—why does that enter the category of “Every person shall fear his mother and his father, and keep My Sabbaths”? I can fulfill this commandment with another woman who is acceptable to my parents. So what is the issue? Both can be fulfilled. So why do I not have to obey my parents if they tell me not to marry a certain woman whom I want to marry?
Therefore it seems to me—and you can also see this when you read Maharik’s wording carefully, you can, if I recall correctly, find it in his language as well—that he does not mean to exempt me from the obligation to obey my parents because of “Every person shall fear his mother and his father, and keep My Sabbaths.” His claim is that I have the right not to obey my parents. I choose a woman, I choose
[Speaker B] to live
[Rabbi Michael Abraham] in a certain way, and my parents cannot dictate my way of life to me, because that is not in their territory; it belongs to my territory. This is the territory in which I make decisions, and someone else cannot dictate to me regarding things that belong to my territory.
Now notice, this is similar to the reasoning of the medieval authorities I mentioned earlier, those medieval authorities who say that the commandment of honoring parents applies only in matters that serve the parents’ benefit, not in matters where they are trying to dictate things to me. But I claim it is not the same thing, because here I want to say what I am saying even according to the medieval authorities who disagree, who say that the commandment of honoring parents also applies in things where the parents are trying to dictate to me things not intended for their benefit but for my benefit, and there is still honoring parents even there. And still I say that all that is only where what is involved is not something significant to the way I choose to live. The parents tell me, I don’t know, to exercise, okay? Run a kilometer every day because it’s very important to exercise. According to the medieval authorities who say there is an obligation to honor parents even in a situation where it is for my good and not theirs, or where they are just giving me instructions out of their own considerations, not because they need me—there too, according to some medieval authorities, there is an obligation to honor parents. So in principle I ought to go and run every day because my parents told me to. Still, I claim that in regard to running, because it is not a matter of principle, I’ll run fifteen minutes a day—that’s not the point. But if the parents come and dictate to me a way of life, meaning things that are very significant in the way I choose to live my life, here I claim that even according to that view of the medieval authorities there will be no obligation to honor them or obey them, because I have the right to choose my way of life. Parents cannot dictate to me how to live. And that is what I call territorial considerations.
Territorial considerations mean that the obligation to honor parents stops at the boundaries of the parents’ territory, or at the boundary of my territory. It cannot enter my territory—not because there is some great value in what I am doing. Even if there is not even enhancement of a commandment in serving as an officer, or in going to a yeshiva ketanah, or in all sorts of things I choose to do. It is not enhancement of a commandment, not a commandment, not an optional mitzvah, nothing at all—just that I want it. This is how I want to live. If this is a principle that is very important to me, essential to the way I want to live, I have the right to do it and not obey my parents—not because of “Every person shall fear his mother and his father, and keep My Sabbaths,” but because of the principle of Maharik. The principle that says there is a limit to the obligation to honor parents. Where is the source of this principle? There is no verse saying this. After all, it does not come from “Every person shall fear his mother and his father, and keep My Sabbaths”; there there is an interpretive derivation. Where does Maharik’s principle come from? From reason. What is that reasoning? That reasoning says there is some division between people, and a person cannot enter another person’s territory and dictate things to him, do things to him there. There is a territory in which I alone make the decisions. For myself, only I can make decisions. Someone else cannot dictate things to me, cannot violate my rights, cannot enter my territory. Not because there is a verse that says so, but because that territory is mine. This somewhat recalls the jurisprudence of Rabbi Shimon Shkop, that the prohibition of theft exists even without “you shall not steal.” I cannot take another person’s money—why? Because it is his; it does not belong to my territory, I cannot infringe.
All right, I’ll stop here because I see this is causing lots of problems and it’s already ten o’clock. I’ll just finish the point I was discussing. The claim is that there are situations in which I limit a halakhic value not by means of another halakhic value, but by means of a boundary not set by Jewish law. A boundary whose basis is reason, some factual boundary—there is some wall here. There is some extra-halakhic boundary that stops the force of the halakhic norm. Again, this is a periphery to Jewish law that is involved in the halakhic consideration. It is a consideration that emerges from reason, a consideration the sages created; it has no source at all, it just seems right to us. And it limits the halakhic obligation—for example in this context, the obligation to honor parents. I’ll bring more examples of this in the next lecture. This is what I call territorial considerations, and they are very clearly extra-halakhic or peripheral considerations that limit Jewish law. This is really a periphery in the literal sense. It limits Jewish law; it sets a boundary to how far Jewish law reaches. But it is a normative boundary whose source is not in Jewish law, but rather some external consideration that stops Jewish law. Not another halakhic value limiting this halakhic value, but rather this halakhic value stops at some boundary set by extra-halakhic considerations, at the boundary of territory. So we’ll come back to that next time. I hope the line will be in better shape; I’m sorry for all the chaos today. Fine, as long as there is still some connection.