Self-Reference – Lesson 7

Table of Contents

• The question of the Atvon DeOraita and someone who rounds his own hair
• A conceptual tangle: one transgression or two transgressions
• Essential otherness: situations where there is nothing to discuss
• The difference between the factual plane and the normative plane
• Maimonides in the laws of kilayim: lashes for responsibility, not for two sides
• Examples of responsibility: Hakhel and education
• Why kilayim is not a model for the Atvon DeOraita
• A proposal: one prohibition created “from between two people,” and the doubt in self-performance
• Asymmetry between the one being rounded and the one doing the rounding, and clarifying action versus result
• Continuing the reading of the Atvon DeOraita and the criticism of the lack of conceptual analysis

Summary

General Overview

The lecture presents the question raised by the Atvon DeOraita about cases in which the Torah prohibits both the actor from doing an act to another person and the recipient from receiving that act from another person, and it examines what the law is when a person does the act to himself: is he liable both as the actor and as the recipient. The lecture argues that the formulation of the Atvon DeOraita skips over a necessary conceptual clarification, because if these are two separate prohibitions then there is no question, and if it is one prohibition then it is hard to explain how two different people can both receive lashes for it, and in that case it is also hard to understand why self-performance creates a doubt. From there, the lecture develops a distinction between cases in which “otherness” is essential, so that there is no halakhic act at all, and cases in which the act exists factually but the prohibition depends on otherness on the normative plane. It then tries to formulate a model in which one prohibition is created “from between two people,” so that both sides are punished, and yet there is still room to ask whether in self-performance there should be double liability or only single liability.

The question of the Atvon DeOraita and someone who rounds his own hair

The Atvon DeOraita states that when the Torah prohibited doing something to another person and also prohibited receiving that act from another person, a person who does it to himself violates two prohibitions, as both actor and recipient. The Talmudic passage in Makkot teaches that one who rounds his own hair receives eighty lashes, both as the one doing the rounding and as the one whose head is rounded, and a rule is established that when the Torah made both the actor and the one acted upon liable, then even in an act directed toward oneself he is considered both actor and acted-upon and is doubly liable. The Talmudic passage in Sanhedrin adds a similar reasoning regarding someone who pours onto himself, that he is liable for two.

A conceptual tangle: one transgression or two transgressions

The lecture raises a basic difficulty in understanding the very question itself. If the one doing the rounding and the one whose head is rounded are two different transgressions, then the double liability is simple, like someone who ate pork and also ate a creeping creature. The lecture emphasizes that one action can incur several prohibitions, as in the case of someone who plows one furrow and is liable for it under eight prohibitions, so the mere fact that it is “one action” does not solve the difficulty. The lecture argues that the enumerators of the commandments indicate that there is one transgression of rounding the head, and that sharpens the question: how can both the one doing the rounding and the one whose head is rounded receive lashes for it? Even before discussing self-performance, one must clarify what that one transgression is that justifies lashes for both sides.

Essential otherness: situations where there is nothing to discuss

The lecture distinguishes between cases in which otherness is an essential condition for defining the act, so that in self-performance the halakhic situation simply does not exist at all. Lending money to oneself with interest is not a loan at all, because a loan is defined as giving to someone else, so the question is not whether one is liable once or twice; there is no act of lending here in the first place. The lecture adds examples such as seducing oneself, robbing oneself, and speaking slander about oneself, and it emphasizes that where otherness is essential, a warning or prohibition does not change reality, and imagining “an additional stranger” does not create an existing halakhic act.

The difference between the factual plane and the normative plane

The lecture formulates two kinds of “essential otherness” and distinguishes between the factual plane and the normative plane. It gives the example of throwing one’s own money into the sea, where the act certainly exists factually, but there is no prohibition of causing damage to oneself. It explains that the requirement for otherness here belongs to the plane of what is forbidden and permitted, not to the question of whether the act occurred. The lecture connects this to the discussion of the source of the prohibition of causing damage and argues that someone who bases that prohibition on “do not destroy” is getting confused, because “do not destroy” applies even to one’s own property, whereas causing damage is, by its essence, a prohibition against damaging someone else. It is “toward Heaven,” not “between man and his fellow” in the sense of damage.

Maimonides in the laws of kilayim: lashes for responsibility, not for two sides

The lecture brings Maimonides at the end of the laws of kilayim (chapter 10, halakhah 34): “One who clothes another person in kilayim: if the wearer acted intentionally, the wearer receives lashes, and the one clothing him violates ‘do not place a stumbling block before the blind’… But if the wearer did not know that the garment was kilayim and the one clothing him acted intentionally, the one clothing him receives lashes and the wearer is exempt.” The lecture concludes that the one clothing him receives lashes for the prohibition of kilayim, not for “do not place a stumbling block,” because there are no lashes for “do not place a stumbling block,” and the wording is built in contrast to that. The Kesef Mishneh asks why Maimonides distinguishes between intentional and unintentional if there is an independent prohibition on the one clothing and on the one wearing. The lecture suggests understanding Maimonides as presenting a model in which lashes are given to the one who is culpable for the fact that the transgression occurred, and not necessarily to the person who physically performed the act. Therefore, when the wearer is unintentional and the one clothing him is intentional, the one clothing him is punished; and when the wearer is intentional, responsibility returns to the wearer and the one clothing him does not receive lashes.

Examples of responsibility: Hakhel and education

The lecture uses the commandment of Hakhel to illustrate the possibility that a public commandment is fulfilled and yet individuals who chose to stay away have still “neglected a positive commandment,” according to Sefer HaChinukh, because the communal obligation creates individual responsibility for its fulfillment. The lecture explains that the claim against the individual is not that the public act did not occur, but that the individual failed to fulfill his share of the responsibility that enables the commandment to be carried out. The lecture compares this also to the commandment of education, bringing the Kehillot Yaakov in Tosafot’s approach that the child himself is rabbinically obligated, while the parents are obligated with responsibility to bring him to fulfillment, and it presents a model in which the obligation is on the child but the responsibility for actual fulfillment rests on the parents.

Why kilayim is not a model for the Atvon DeOraita

The lecture emphasizes that Maimonides’ ruling regarding kilayim does not fit the question of the Atvon DeOraita, because there there is no situation in which both sides receive lashes together; only the intentional party receives lashes, while the unintentional party does not. The lecture states that the Atvon DeOraita is dealing with a situation in which both of them receive lashes together for the same transgression, as in the one doing the rounding and the one whose head is rounded, and in the examples from Sanhedrin. Therefore it cannot be explained merely as “lashes for responsibility.” The lecture rejects the possibility of comparing the rounder-and-rounded case to a responsibility model, because then someone who rounds his own hair should have to receive lashes only once, not eighty as stated in the Talmudic passage in Makkot.

A proposal: one prohibition created “from between two people,” and the doubt in self-performance

The lecture proposes that the only way to understand one prohibition that obligates two sides is to see it as a prohibition carried out jointly, similar to forbidden sexual relations, where one prohibition brings liability to both participants. The lecture formulates this as one transgression defined as a two-person situation in which each side makes a necessary contribution to creating the forbidden state, and therefore when two different people participate, both receive lashes. Within that framework, the lecture suggests that there is room to say that in self-performance a person should receive lashes only once, because in the end there is only one transgression and one claim against the creation of the forbidden state, even though the person is “playing” two roles. On the other hand, there is also room to say that he should be doubly liable, because he is both actor and recipient.

Asymmetry between the one whose head is rounded and the one doing the rounding, and clarifying action versus result

The lecture argues that the discussion is not whether the person should receive zero or two sets of lashes, but whether he should receive one or two, because as the one whose head is rounded it is obvious that he has violated a prohibition, and the doubt is whether he is also considered the one doing the rounding when he did it to himself. The lecture notes an asymmetry between the rounded and the rounder and compares it to forbidden sexual relations, where there are situations of “passive ground” regarding the female. It emphasizes that here the main point is the state of the one whose head is rounded, even though the prohibition also includes the act of rounding. The lecture sharpens the point that this is not necessarily a pure “result prohibition,” because if the prohibition were only the result, there would be no place to give lashes to the one doing the rounding. Rather, the action is forbidden as an action that brings about a result whose prevention is the essence of the prohibition, while distinguishing between the legal definition of the prohibition and the reason for the prohibition.

Continuing the reading of the Atvon DeOraita and the criticism of the lack of conceptual analysis

The lecture concludes by saying that it is not prepared to keep reading the Atvon DeOraita without first clarifying “what exactly is the question and what exactly is the discussion,” and it argues that the absence of defined concepts is a typical problem in lomdut, where people jump straight to building proofs and resolutions. The lecture says that next time it will read the Atvon DeOraita in light of this introduction, show that some of these distinctions appear there in an unspoken way, and examine distinctions that collapse under conceptual analysis. It ends with the question about “You shall not round the corners of your heads,” and with the answer that the Talmud understands the verse as creating a prohibition on a situation in which Reuven rounds Shimon and Shimon remains rounded. It adds an example from the dispute between the Tur and Maimonides about bits of flesh that do not invalidate circumcision, through the distinction between a commandment focused on the action and a commandment focused on the result.

We’re in the middle of the topic of self-reference, and last time we began looking at the Atvan DeOraita, at the very question he raises. We read his first paragraph. The question he raises is: what happens when—maybe I’ll share it for a moment. “Let it be explained that wherever the Torah forbade a person to perform an act upon another, and also forbade receiving that act from another, then if a person does that act to himself, he violates twice: once as the actor and once as the one acted upon.” Right? In a case where the Torah forbids someone from doing something to someone else, and also forbids the other person from having that thing done to him by the first person or by anyone else—what happens when a person does it to himself? Is he liable twice, once as the actor and once as the recipient of the act? The example he brings in the first paragraph is from the Talmud in tractate Makkot. We saw that Talmudic passage: it says that one who rounds his own hairline receives eighty lashes, because of “one who rounds” and “one whose hair is rounded.” “Look there carefully.” And from this emerges the above rule: when the Torah made both the actor and the one acted upon liable, then even when the action is directed at the person himself, still he is called both actor and acted-upon, and is liable twice. And this reasoning is also clarified from the Talmud in Sanhedrin regarding one who sexually penetrates himself, who is also liable twice. Again, it’s the same issue: there’s a warning to the penetrating party and a warning to the penetrated party, and if a person plays both roles, then he is lashed twice or liable twice.

So here I want to—we already started dealing a bit with this question, trying to define what exactly the question is, what this discussion is really about. And I began with a few examples, or maybe I started with this. If we’re talking about a situation where, say, with “one who rounds” and “one whose hair is rounded”—that’s the example he starts from—suppose there’s one prohibition to round and another prohibition to be rounded. And suppose these two prohibitions are like, I don’t know, eating pork and eating creeping creatures. Now if the same person eats pork and eats creeping creatures, you understand there’s nothing to discuss—obviously he’s liable twice. A person who commits two prohibitions is liable according to the number of prohibitions he committed. That is not the Atvan DeOraita’s question. Now if the prohibition of the one who rounds and the one whose hair is rounded are two different prohibitions, then what’s the discussion? Someone who rounded his own hair is both the one who rounds and the one whose hair is rounded, so he’s liable twice. And how is that different from eating pork and eating a creeping creature? Why is there any discussion here at all?

This is one action. And it seems to me that last time too you pointed this out, I think, and I answered that in one action you can be liable for eight prohibitions. There’s the case of “plowing one furrow” and being liable for it because of eight prohibitions. Someone plows during the Sabbatical year, on a Jewish holiday, with an ox and a donkey together, does all kinds of tricks, and manages to commit eight prohibitions in one action. So that’s not the point. You can be liable for several things in one action. So in short: if we’re talking about two different prohibitions, then the one who rounds and the one whose hair is rounded violate two prohibitions, so it’s like eating pork and eating a creeping creature. Then there’s nothing to discuss. Obviously whoever did it is liable twice.

So what must be the case? Clearly—there’s no way around this—we’re really dealing with one prohibition. Look in the enumeration of the commandments and you’ll see that there isn’t one prohibition of “the one who rounds” and another prohibition of “the one whose hair is rounded”; there is one prohibition of rounding the head. So there’s one prohibition here. And if this is one prohibition, then why are both the one who rounds and the one whose hair is rounded lashed for it? Fine, in a moment I’ll get to possible explanations for why both are lashed for one prohibition.

I didn’t understand the question—why what?

Why are both the one who rounds and the one whose hair is rounded lashed, if only one prohibition was violated here? Then whoever violated it should be lashed.

Both of them violated it.

They both violated it, but they did different things. This one rounded, and that one had his hair rounded. Decide: if it’s one prohibition, then what is that prohibition? To be the one who rounds, or to be the one whose hair is rounded? Those are just two categories of one prohibition. You can violate the prohibition in two ways.

Why both?

From the perspective of the one who rounds, that’s one prohibition; from the perspective of the one whose hair is rounded, that’s a second prohibition. So two prohibitions, in short.

And if it’s two prohibitions, then what’s the discussion? Then of course he’s liable twice.

No, because just as you can violate “you shall do no labor” in 39 ways, so too you can violate the prohibition of rounding in two ways.

But what is the prohibition? The prohibition of labor on the Sabbath means that when you do labor on the Sabbath, that’s the prohibition. There are many kinds of forbidden labor—so what? But you’re always doing labor on the Sabbath. What’s the common definition shared by the one who rounds and the one whose hair is rounded?

I understand. So either way: if it’s two prohibitions, then there’s no discussion—obviously he’s liable twice. Rather, it must be one prohibition. If it’s one prohibition, then there’s no discussion that he’s liable only once. Or actually I’d put it differently: if it’s one prohibition, then from the outset it’s not even clear why, if I round someone else’s hair, both I and he should be lashed. Even before I get to a case where I round my own hair. No—the whole thing isn’t clear.

We also spoke about the fact that there are cases where there’s no room for this discussion because otherness is intrinsically required. I gave the example of someone who lends to himself with interest, or incites himself—as he himself brings here in Atvan DeOraita, from the Talmudic discussion about those of an idolatrous city who incited themselves. Or someone lends himself money with interest, robs himself. Okay, what?

Lending with interest—that really is a good case, because there’s a prohibition on the lender and a prohibition on the borrower. Robbing yourself doesn’t work, because there isn’t a prohibition against being robbed. And we want to ask whether he’s liable twice, so interest is maybe the better example. Or someone who spoke slander about himself. There’s a prohibition to speak it and a prohibition to accept it. So is he liable twice? Okay, I don’t know what it means to “accept slander” about yourself—after all, he knows the truth about himself—but never mind. Slander is forbidden even if it’s true, so fine, it’s not absurd.

In any case, the point I made there was that wherever otherness is essential to defining the issue, there is no discussion. Obviously if I lend to myself with interest, that isn’t a loan with interest at all. A loan is defined as something I give to someone else. If that someone else is me, then it uproots the very situation of a loan from its foundation. This isn’t a halakhic question of whether I’m liable once or twice; the very act we’re talking about—the act of lending—never happened. Lending is, by definition, intrinsically to someone else. Lending to myself isn’t lending.

Also slander?

What? I said that regarding slander there’s some urban legend about the Chafetz Chaim, but plainly there too it’s the same thing. Once I thought of another example: say an idolater or a Sabbath violator drinks his own wine. It’s forbidden to drink the wine of an idolater. Now suppose I am an idolater or a Sabbath violator—that too is forbidden. So am I forbidden to drink my own wine? I touched the wine, or poured from a bottle of wine, and now the question is whether I’m allowed to drink it. I assume that if I’m an idolater or a Sabbath violator then the laws of ordinary gentile wine or libation wine aren’t exactly my top concern. But let’s say I’m lax in idolatry and Sabbath, and on everything else I’m meticulous down to the smallest detail. Okay? So now the question is whether I’m allowed to drink my own wine. It seems to me that here too—I don’t remember, for some reason I think I once even saw some discussion of it, but I no longer remember. On the face of it, it seems there’s no such prohibition. Why? Because the whole idea behind the prohibition on drinking the wine is to create some kind of distancing—not to form social closeness with an idolater. If the wine itself is libation wine, then this has nothing to do with distancing; the wine itself is forbidden. Then obviously if I’m an idolater I’m forbidden to drink my own wine. That’s clear. I’m talking about a Sabbath violator, okay? In the case of a Sabbath violator, or ordinary gentile wine—not wine actually poured for idolatry, but ordinary wine of idolaters or Sabbath violators—in such a case the whole basis is to create distance. To create distance from myself? What am I supposed to distance myself from myself? There’s concern I’ll marry—because of intermarriage, right? I’m going to marry myself? What, marry my son, my daughter? It has no meaning. So again, that example is one of essential otherness. Wherever otherness is essential, there’s no room for discussion, because there it’s clear that if there is no otherness—that is, if I myself am both the actor and the acted-upon—then the prohibition simply never occurred.

Say that also about the one who rounds and the one whose hair is rounded. The whole basis of “do not round” is distancing from idolatrous practices.

First of all, that’s only Maimonides’ idea. And second, that’s the reason for the verse. In halakhic definition, that’s not what the prohibition is. In the case of ordinary gentile wine or the wine of a Sabbath violator, this is a rabbinic prohibition. With rabbinic prohibitions we know why they enacted them; that has nothing to do with deriving the reason of a verse. In any case, in situations where there is essential otherness, there’s no room for discussion, because there it’s obvious that if there is no otherness—meaning, if I myself am both the actor and the one acted upon—then the prohibition was never committed at all.

And we said there are two kinds of essential otherness. There’s a case where the otherness is on the factual plane. Lending to myself is not a loan at all. On the factual plane, no loan occurred. There’s the case of someone who penetrates himself. There, perhaps you could call it intercourse. But there’s room to ask whether the prohibition requires a kind of essential otherness. The prohibition doesn’t apply unless I do it to someone else.

You know what? Elsewhere, say I throw my own money into the sea. There, I still threw money into the sea, that’s obvious. But there is still an essential requirement of otherness on the normative plane, not on the factual plane. Obviously there’s nothing wrong with throwing my own money into the sea—maybe there’s wanton destruction, but not the problem of tortiously damaging. Okay? In a place where, from the standpoint of damages, it’s obvious that the whole idea of causing damage is that you’re forbidden to damage someone else, not yourself.

Rabbi, but I don’t understand. If we accept this principle of estrangement, then there is another foreign person standing alongside him.

I said already: estrangement doesn’t change reality. We discussed that last time. If it doesn’t change reality, then either decide you’re going with estrangement and carry it through the whole Torah, or not. What is this pick-and-choose?

No, I want to say that this either-or binary is wrong.

In places where otherness is essential, estrangement can’t work. Because intrinsically you need to lend to someone else. You can play imagination games a thousand times that you lent to someone else who just happens to be you. But when it’s you, there is no loan here. It doesn’t apply. Estrangement won’t change reality. And in general, if a person lends to himself, according to that he’s also doing a commandment.

What?

A person who lends to himself would also be doing a commandment according to that.

Yes, so in short it’s irrelevant. Obviously on the normative plane too it’s irrelevant, but here it’s not relevant even on the factual plane.

But someone who has intercourse with himself, incites himself—

No, inciting himself is also factual. Someone who has intercourse with himself, someone who damages himself—let’s talk about damaging himself, because someone who has intercourse with himself is usually liable twice. Someone who damages himself, okay? There you can say: I damaged something. The act of damage happened even though there is no otherness. But the essence of the prohibition against causing damage is not relevant when I do it to myself. So here the requirement of otherness—the essential nature of otherness—is on the normative plane, not the factual one. On the plane of permitted and forbidden, not on the plane of whether the act itself took place, whether the fact occurred or didn’t occur.

Although now that I said this, I remember there are later authorities who—because you know, the opening lecture to tractate Bava Kamma is always: what is the source of the prohibition to cause damage? How do we know it’s forbidden to damage another? What we see in the Torah is that someone who causes damage must pay. It doesn’t say it is forbidden to cause damage. And in fact there are views that maybe there isn’t even a prohibition against causing damage. But the plain accepted view is that there is such a prohibition, and the question is what its source is. So there are some who want to claim the source is wanton destruction. But if that were really so, then there would be a prohibition to damage even myself, because wanton destruction applies also to things that belong to me. If I destroy them I violate wanton destruction, not the problem of damages. Therefore they are clearly wrong, those who bring the source of the prohibition from wanton destruction. That’s simply confusion. It cannot be the source of the prohibition of causing damage. The essence of causing damage is a prohibition against damaging someone else. Wanton destruction is toward Heaven; it’s not interpersonal. You’re not supposed to destroy things that the Holy One, blessed be He, created for you. It has nothing to do with harming another, as we’re talking about in damages.

So in the straightforward understanding, it’s clear that there is a requirement of otherness here, but that requirement is on the normative plane, not the factual plane.

Rabbi, but regarding one prohibition—there’s a normative prohibition, and there’s a prohibition, like for example someone who has intercourse with himself, there is a prohibition, whereas someone who damages himself, there is no prohibition—who determined that? Why is there a difference between them?

The Talmud said that with someone who has intercourse with himself there are two prohibitions. The Talmud said that. Okay? He is liable twice if he penetrates himself. But regarding damage, nobody established that; it’s just logical. Obviously if you damage yourself, you’re not liable and you didn’t violate any prohibition. According to those other views it would have to follow that if I damage myself, I’m liable to pay. Pay myself? Fine, so I’ll leave the money where it is, but in principle I’m liable to pay. That’s very strange. And it’s not reasonable to understand it that way. This is an interpersonal prohibition. It’s obvious that if there’s no “other person,” then there is no such prohibition. Not that no act of damage occurred—an act of damage did occur. What didn’t occur was the prohibition of damage. Therefore I say that here the requirement of otherness is not in the factual sense, not on the factual plane, but on the normative plane.

Okay. So let’s get back to our discussion for a moment. So really—wait—what comes out is this: we’re in a tangle, as I said last time, we’re really in a conceptual tangle. How are we even to understand the Atvan DeOraita’s discussion? Something here doesn’t fit. Let’s speak about the one who rounds and the one whose hair is rounded. If these are two different prohibitions, then what’s the discussion? Obviously I’m liable twice: I rounded and I was rounded, so I’m liable twice, like someone who ate pork and ate a creeping creature. Rather, it must be one prohibition. If it’s one prohibition, then first of all we need to clarify why two people—the one who rounds and the one whose hair is rounded—are both lashed. These are two different people. Why should both be lashed for one prohibition? Even if we understand why both are lashed, then once both are lashed we’re back to saying it’s really two prohibitions. So then even if I do it to myself, I should be lashed twice. Why not? What’s the difference? Why does the fact that I do it to myself raise a question? Why does this generate a question at all?

So I can try to explain how two people—that is, we are basically looking for a case where the prohibition is defined as one prohibition, because otherwise there’s no room for discussion; and where that prohibition does not involve essential otherness, meaning that the addressee of the prohibition doesn’t need to be someone else in order for the prohibition to count as a prohibition—because otherwise obviously if I do it to myself, that isn’t a prohibition. So the otherness has to be non-essential, it has to be one prohibition, and still when two different people violate it, both are lashed; and still there must be room to discuss what happens when those two people are both me—whether he is still lashed. In short, how does such a situation even arise? How can there be such a thing?

You see here an example of what I said in the introduction last time, in the introduction to Atvan DeOraita: Atvan DeOraita does not have this discussion. He jumps straight to the question: when the Torah prohibited an actor and the one acted upon, if the actor acts on himself, does he violate both as actor and as acted-upon? And when you read it at first glance it sounds like an excellent question, and certainly you can open a discussion, look for sources and all the rest. But when we think about it on the conceptual level—and that’s why I said this discussion in Atvan DeOraita and in the associated passages really should have concluded the series from before Sukkot—not before Sukkot, before Elul—the series on conceptual analysis. Because what is really missing from this question is an analysis of the concepts involved. What exactly are we talking about? What kind of prohibition is it, where actor and acted-upon are two, but it’s one prohibition, and both are lashed, yet even so if it’s the same person there’s a possibility he won’t be lashed, or won’t be lashed twice? How exactly are we to define the situation before answering the question?

Atvan DeOraita goes straight to answering the question, bringing proofs this way and that, but I don’t understand what he’s talking about. First clarify for me what the question is and what the discussion is. And this is what I said is very lacking in Atvan DeOraita, and generally in books of this sort that deal with broad questions as Atvan DeOraita does: they don’t bother defining the concepts and the subject under discussion. And that is very problematic, because perhaps after we define the concepts, one sugya will turn out to involve essential otherness, and therefore there one does not violate; and another sugya will turn out to involve two separate prohibitions, and therefore yes, one is lashed twice. And according to the conceptual analysis we can even divide the different sugyot and see that there is really no contradiction between them. To generate a contradiction between sugyot, we have to assume that both sugyot are speaking about the same situation, and that that situation is the one we’re discussing. Meaning: one prohibition that nevertheless, if two people do it to each other, both are lashed, even though it is one prohibition. And nevertheless there is room to say this is not essential otherness, and nevertheless there is room to say that if it were the same person, either he would be lashed twice or he would be lashed once—there are two sides here. On the face of it, it’s not at all clear how such a situation could even exist. There is no such situation. So what is the question about? I can’t continue reading what he writes there until I clarify for myself what the question is talking about. You see the significance of conceptual analysis—here it comes out very sharply. Both the need for conceptual analysis and the fact that many times it simply isn’t done. There’s no getting around it; this is a typical characteristic of analytical Talmudists: they usually don’t do the conceptual analysis.

Okay, so I want to start getting closer, maybe, to a definition of such a case. Let’s go back for a moment—not to the one who rounds and the one whose hair is rounded—let’s take a different example that comes up later in Atvan DeOraita. A very famous Maimonides at the end of the laws of forbidden mixtures. Maimonides, at the end of Hilkhot Kilayim—just a second, I’ll open it. Here, I’m sharing it: chapter 10, halakha 31. This is one halakha before the end of Hilkhot Kilayim. “One who clothes his fellow in forbidden mixtures: if the wearer acted intentionally, the wearer is lashed, and the one clothing him violates because of ‘do not place a stumbling block before the blind.’ But if the wearer did not know that the garment was forbidden mixtures, and the one clothing him acted intentionally, the one clothing him is lashed, and the wearer is exempt.” So here too we have a case of someone doing a prohibition to someone else—one who clothes another in forbidden mixtures. The wearer violates a prohibition, but in Maimonides it emerges that the one clothing him also violates a prohibition, even though on the face of it the prohibition of forbidden mixtures is a prohibition to wear forbidden mixtures. Why do I, as the one putting such clothing on someone else, also violate the prohibition of forbidden mixtures?

And who says I violate the prohibition of forbidden mixtures? Maybe the lashes are for “do not place a stumbling block before the blind”? Clearly not. First, because there are no lashes for that prohibition. There are no lashes for “do not place a stumbling block.” So if he is lashed, clearly he is considered to have violated the prohibition of forbidden mixtures, not the prohibition of “do not place a stumbling block.” You can also see this in Maimonides’ wording: “if the wearer acted intentionally, the wearer is lashed and the one clothing him violates because of ‘do not place a stumbling block before the blind’”—but is not lashed, only violates “do not place a stumbling block.” “And if the wearer did not know that the garment was forbidden mixtures and the one clothing him acted intentionally, then the one clothing him is lashed.” That’s presented in contrast to the one clothing him who only violates “do not place a stumbling block.” “Is lashed” means he is lashed for the prohibition of forbidden mixtures, not for “do not place a stumbling block.”

So this means that the prohibition of forbidden mixtures is also a candidate for this discussion of Atvan DeOraita. There is a prohibition on someone who performs an act on someone else. What happens if he clothes himself in forbidden mixtures? Will he violate as the one clothing and also as the wearer? Except that Maimonides here distinguishes based on awareness of the act. If the wearer acted intentionally, then the one clothing him is not lashed—even if the one clothing him himself acted intentionally, and certainly if he acted unintentionally—but even if the one clothing him acted intentionally, if the wearer acted intentionally then the one clothing him is not lashed. Only if the wearer was unintentional and the one clothing him intentional, then the one clothing him is lashed. That’s what Maimonides writes.

In truth, many of the Rosh and the medieval and later authorities discuss here what Maimonides’ source is. Where did he invent this law? It’s very unclear; it has no simple source in the Sages. Someone once brought some obscure midrash I saw, but plainly this ruling of Maimonides has no source; it’s not clear where he got it. By the way, the source may be at the beginning of the portion of Matot. There is a midrash of the Sages that Rashi brings there at the beginning of Matot about vows. What happens if a husband tells his wife that he annulled her vow, but really he did not annul it? Now she violates the vow, but she doesn’t know—she thinks it’s permitted. And he has in fact caused her to stumble in that prohibition. So Rashi brings a midrash of the Sages that he “enters under her punishments.” “Punishments” on the face of it means actual lashes, not merely “do not place a stumbling block.” He enters under her punishments. So that could be Maimonides’ source. If she is unintentional because she doesn’t know—he told her he annulled it—she is unintentional and he is intentional, and he feeds her a prohibition intentionally, then he is lashed.

And in fact if that is the source, then it follows that this rule of Maimonides is not a specific rule about forbidden mixtures, but a general rule in such prohibitions. If I feed another person some prohibition, or cause him to violate some prohibition—at least if I cause it directly—and he is unintentional while I am intentional, then I am lashed for the prohibition that he violated. For all the Torah’s prohibitions. Maimonides repeats this regarding the impurity of a priest, the impurity of a nazirite; with the impurity of a nazirite he brings it as a hava amina but the Talmud rejects it, saying that there it does not apply. With priestly impurity it does. So there seems to be some general principle here.

Now what is the plain meaning of this Maimonides? The Kesef Mishneh there asks: why does Maimonides distinguish between intentional and unintentional? If he thinks there is a prohibition on the one clothing and a prohibition on the wearer, then even if both acted intentionally, both should be lashed. Why distinguish between a case where the wearer acted intentionally and one where the wearer acted unintentionally? Indeed the Kesef Mishneh assumes that the case of clothing someone in forbidden mixtures is like the one who rounds and the one whose hair is rounded. There is a prohibition on the one clothing and a prohibition on the wearer. Therefore, says the Kesef Mishneh, if there is a prohibition on the one clothing and I acted intentionally, then I violated the prohibition of the one clothing, and I should be lashed. What difference does it make to me whether the wearer acted unintentionally or intentionally? That’s how he understands it.

But in Maimonides we see not so. The question is on Maimonides, but in Maimonides we see not so. In Maimonides we see that only one person is lashed—the one who acted intentionally. What happens if both acted intentionally? Only the wearer is lashed; the one clothing him is not. If both are unintentional, then of course no one is lashed. What is the meaning of this matter?

So one could say that the prohibition is really the prohibition of wearing forbidden mixtures, but there is a question of who is responsible for the fact that the prohibition was committed. And we lash not the one who committed the prohibition, but the one to blame for the fact that the prohibition was committed. And that’s not always the same person. If I clothe him and he doesn’t know he’s wearing forbidden mixtures, then yes, he committed the prohibition—he is wearing forbidden mixtures—but he did not know it at all, he is not to blame. Who is to blame that a prohibition was committed? I am. So I get lashed for his prohibition. A very great novelty, but it has logic. Because basically the lashes are given to whoever is to blame that a prohibition was committed; usually that is the person himself when he violates intentionally. But if in this case he is unintentional and someone else dressed him in it, then that other person is actually the one responsible or blameworthy for the fact that a prohibition was committed, and that person gets lashed.

But then it turns out that the prohibition of forbidden mixtures is an ordinary prohibition on the wearer; there is just a rule in the laws of punishment that the one who is lashed for a prohibition is the one responsible for it, not the one who committed it. If so, this has nothing to do with Atvan DeOraita at all. Because Atvan DeOraita is talking about a case where both are lashed, and if I do it to myself I should be lashed twice. You understand that this is not relevant. If I dress myself in forbidden mixtures, according to Maimonides I clearly would not be lashed twice. Why not? Because I am responsible for the fact that a prohibition was committed, so I would be lashed—even as the one dressing and as the wearer. I am the person responsible for there being someone here wearing forbidden mixtures, so I get lashed. There’s no difference here between dresser and wearer. There isn’t a separate prohibition on the dresser and on the wearer. Rather, the liability for lashes falls on whoever caused a prohibition to be committed, whoever is to blame that a prohibition was committed. Here obviously I am to blame. It’s not a question of who committed the prohibition; I committed the prohibition as the wearer, because there is only the prohibition of the wearer, no prohibition of the dresser. Only when I ask who is to blame that I committed the prohibition, the answer is: I am. Why? Because I dressed and I wore and I acted intentionally. So therefore obviously I would be lashed, but only once. I would be lashed once because only I am to blame, and the blameworthy one is lashed. But there is only one set of lashes; there aren’t two sets of lashes for forbidden mixtures. In that sense this is not like the one who rounds. There, there are two sets of lashes, one for the one who rounds and one for the one whose hair is rounded, and that is where Atvan DeOraita’s question arises: what happens if I round my own hair.

Therefore this Maimonides is not his example. Maybe I’ll give you some illustration of what I mean by lashes based on responsibility. There are a few examples of this. One example is the commandment of Hakhel. In the commandment of Hakhel, we see in the Sefer HaChinukh throughout that he defines this commandment as a public commandment. The addressee obligated in this commandment is the community. Therefore when the community comes to the Hakhel gathering, if most of the community is there, they read the Torah and fulfill the Hakhel ceremony. And if most of the community is not there, they don’t do it. Therefore the Chinukh, for example—and I think this really begins in the Sages, but it seems to me this is also the explanation why in principle women are obligated and minors are obligated—the Talmud at the beginning of Chagigah discusses that minors too are obligated in Hakhel. Appearance at Hakhel—there are various discussions there. Why? Some explain, “in order to give reward to those who bring them,” as the Talmud says there—not that the minors are really obligated. But in the Sha’agat Aryeh, for example, you see that he holds there is an obligation on the minor himself; therefore he says this is only if he has land and all the conditions there that apply to one obligated in this commandment. Why? Because minors and women are part of the community, and what is obligated in this commandment is the community. Therefore the regular exemptions—women are exempt from positive time-bound commandments, or minors are exempt from commandments altogether because they are not obligated—do not apply here. That’s all in personal commandments. In personal commandments I say there are certain individuals who are exempt.

Can you see me?

Yes, yes.

My screen disappeared.

We can see you, we can see you.

Yes. So in personal commandments, certain individuals are exempt: women are exempt from positive time-bound commandments, minors are exempt from commandments altogether because they are not obligated. But in a commandment imposed on the community, the one obligated is the community. So everyone who belongs to the community is obligated in that commandment—women, minors, everyone included in the community. The one exempt is whoever is not part of the community. But we’re not discussing the private individuals in the same terms as we discuss personal commandments. And this could be expanded on; it doesn’t matter, I wrote about it too.

Now the Chinukh says something very interesting at the end of that commandment: someone who stayed home and did not come to the Hakhel ceremony has nullified a positive commandment. The question is: why? The commandment is imposed on the community. Who fulfills this commandment? The community, not me. I and everyone else together as a community fulfill it. Now I stayed home. But most of the community came to Hakhel and fulfilled the commandment; they did the Hakhel ceremony. So the commandment was fulfilled. The one obligated in it carried it out—the community. So how can it be that a commandment that the obligated party fulfilled, I nevertheless violate by nullifying a positive commandment? After all, the commandment was fulfilled by whoever needed to fulfill it. How do I violate by nullifying a positive commandment? I stayed home, but the community was there and fulfilled it, and by majority that counts as the whole.

I think the claim there is as follows. I violate—well, not a prohibition, sorry, not a negative commandment—the commandment, because in public commandments, the one obligated in the commandment is not the one responsible for its fulfillment. “A pot shared by partners is neither hot nor cold.” If you appoint two or several people to be responsible for a task, that is the surest way to ensure the task won’t get done. If you want a task done, appoint one person to be responsible. If there are many responsible parties, it won’t happen. There are many responsible for the Hakhel ceremony. If every individual could stay home, what would happen? Everyone would stay home and rely on everyone else being there. But everyone would make the same calculation. Yes, this is exactly the categorical imperative. So everyone stays home, and the commandment of Hakhel is not fulfilled. But each of us individually did not nullify a positive commandment, because I am not obligated in the positive commandment; the community is obligated. Who is the community? The community is the collection of people who make it up. If we do not impose responsibility on the individual person, then there is no way the community will fulfill this commandment.

What happens in such a case? Then the Torah defines it this way—or at least this is what I want to claim, at least according to the Chinukh—that the Torah commands the community in this commandment. But every person who does not contribute his share to the fulfillment of the public commandment nullifies a positive commandment. He nullifies a positive commandment not because the commandment was not fulfilled—he is not the one who needs to fulfill it; the community needs to fulfill it. He nullifies a positive commandment because he did not do what was his responsibility to do in order that the commandment be fulfilled. And the nullification of the positive commandment is imposed on whoever was responsible and did not do what he was responsible for. He nullifies a positive commandment not because the commandment was not fulfilled. He is not the one who needs to fulfill it. The community needs to fulfill it. He nullifies a positive commandment because he did not do what it was his responsibility to do so that the commandment would be fulfilled. And the nullification of the positive commandment falls on whoever was responsible and did not carry out what was his responsibility.

It’s not that the commandment wasn’t fulfilled?

I’m saying specifically here, not generally. Specifically in public commandments, the nullification of the positive commandment is defined independently of the fulfillment of the positive commandment. It can happen that the positive commandment is both fulfilled and nullified at the same time. Most of the community was in Jerusalem and fulfilled the positive commandment, and those who did not come there nullified that very same positive commandment. And the commandment was fulfilled—how can it be that I violate by nullifying that commandment? I’m not the one commanded; the community is commanded, and the community fulfilled it. So what is the meaning of this? I want to claim: the community fulfilled it, but in order for the community to fulfill it, the Torah places responsibility on each and every member of the community. And therefore if one of us did not bear that responsibility and did not do what he was supposed to do, then he nullified that positive commandment.

By the way, there might be a practical difference—no proof, but there might be a practical difference. What happens if I know there is already a majority in Jerusalem? Now I go before the Hakhel gathering and return home. And everyone promised me they’re staying; they told me, go home, everything is fine, the majority of the people will remain here. It might be that in such a case I really would not nullify a positive commandment, because I ensured the commandment would be fulfilled; I fulfilled my obligation, my responsibility. Maybe. I don’t know. But that’s the claim.

Why am I bringing this example? Because I want to show that in this case it’s not a punishment of “nullifying the positive commandment.” But nullifying the positive commandment is not non-fulfillment of the positive commandment. Nullifying the positive commandment is a question of your degree of blame, not of what actually happened. And the same here: when you dress the other person in forbidden mixtures, it’s not that you violated the prohibition of forbidden mixtures. He violated the prohibition of forbidden mixtures. Why are you lashed? Because you are the one to blame for the fact that the prohibition of forbidden mixtures was violated. And the one who is lashed is the one to blame, not the one who committed the prohibition. The one responsible for the fact that a prohibition was committed. In that sense it is similar to public commandments.

By the way, in my opinion the same is true of the commandment of education. One of the last columns I wrote, if I’m not mistaken, was on the commandment of education. The Kehillot Yaakov says according to Tosafot: Tosafot says that the commandment of education is a rabbinic commandment imposed on the minor himself to keep commandments. Rashi says it is an obligation on the adults to educate him. But Tosafot says it is an obligation on the minor himself. Now the Kehillot Yaakov says: obviously Tosafot does not disagree that there is also an obligation on the parents to educate their child; rather, there are two laws here. There is an obligation on the parents to educate their child, and there is also a rabbinic obligation on the child himself to fulfill the commandment. A practical difference is that he can discharge the obligation of someone else who is rabbinically obligated to recite Grace after Meals, for example someone who did not eat to satiation. A minor who is rabbinically obligated to recite Grace after Meals can discharge an adult who did not eat to satiation, according to Tosafot. According to Rashi, no, because according to Rashi the minor isn’t obligated at all, not even rabbinically. The parents are obligated to educate him; it’s not that he is obligated.

In any case, the Kehillot Yaakov claims that according to Tosafot there are these two laws: the parents must educate him, and he himself has a rabbinic obligation. Where did these two laws come from, he himself asks? There is one commandment of education—rabbinically one commandment of education, yes, but one. Where do we find two different laws of education? My claim is the same as what I said in the Chinukh regarding public commandments. Here too, the Sages imposed on the minor a rabbinic obligation to keep commandments. Why did the Torah exempt him, the minor? Because he is not responsible for his actions, right? He is not yet mature, not yet grown; you cannot impose responsibility on him. So the Sages say: you, the parents, be responsible for ensuring that he fulfills what he needs to fulfill. The responsibility is on you. The obligation is on him, that he fulfill the commandment, and that will be his rabbinic commandment. But the responsibility that he fulfill that commandment is on you. So if he does not fulfill that commandment, then you essentially violated the rabbinic commandment, you nullified the rabbinic commandment of education. Because you are responsible for the fact that he should have fulfilled it, or to blame for the fact that he didn’t. Once again the same idea: we direct our claims not at the one who committed the prohibition, but at the one who caused the prohibition to be committed, at the one to blame for the fact that the prohibition was committed.

This could explain Maimonides’ view of why the one clothing is lashed if the wearer was unintentional. Because if the wearer was unintentional, then the wearer is not to blame, even though the wearer committed the prohibition. But the one to blame that a prohibition was committed here is the one clothing him, not the wearer. Therefore the one clothing him is lashed for the prohibition of forbidden mixtures, even though he didn’t commit it. The one who committed it is the wearer. But why, if both acted intentionally, does the one clothing him violate only because of “do not place a stumbling block before the blind”? Because if both acted intentionally, then the wearer is responsible for the fact that he wore forbidden mixtures, and then he himself gets lashed. And once he is responsible, there is no point in placing responsibility on the one clothing him. The one who committed the prohibition, first and foremost, is the one who must ensure that he himself doesn’t commit prohibitions. If he doesn’t ensure that, then what difference does it make whether the other person dressed him or didn’t dress him?

And in your definition, if responsibility—whoever is responsible—did he commit the prohibition or not?

Good question. I don’t know. The straightforward logic says that the one responsible is lashed; he did not commit the prohibition. That’s what the straightforward logic says. The one who committed the prohibition is the one who did what the Torah forbade—to wear forbidden mixtures. As for punishment, it certainly makes sense to ask who is to blame, who deserves punishment, and it is very plausible that this is said about the punishment, not about the prohibition itself. For example, a practical difference: what if I am an Israelite who renders a priest impure? I do not have the prohibition of priestly impurity upon me, right? So you can’t say that I committed the prohibition, because I’m not commanded regarding that prohibition.

Right, right.

But I deserve punishment, because I caused the priest, who is commanded, to commit the prohibition. And one can play dialectics and say that the prohibition transfers to me and for this purpose I too am considered a priest. I’m basically considered him. Meaning, if I’m to blame, then basically I am considered him, because it was my intent that was responsible for the prohibition being committed. So for this purpose I’m like a priest, and I commit the prohibition too, not only get punished. But I think the straightforward understanding is that this is said about punishment, not about the prohibition itself.

And also regarding education: the parents, if they did not educate their children, they didn’t commit the prohibition, they only receive lashes—

Okay, fine. Right, they are only responsible—not lashes, because it’s a rabbinic prohibition—but they are the ones against whom we have claims; they are the ones who nullified that rabbinic commandment. They may be punished by Heaven, perhaps, and maybe even rabbinic disciplinary lashes. There are such lashes for rabbinic prohibitions.

And they’ll get rabbinic disciplinary lashes. But education—is that a prohibition? Education is a positive commandment!

What? The parents’ education, a positive commandment? The question is whether in rabbinic law there is a difference between a positive and a negative commandment. It’s not clear. Some want to claim that in every rabbinic law there is “do not deviate,” which is a prohibition, but that’s a Torah-level prohibition—not a prohibition of failing to keep what the Sages said, but violating the verse “do not deviate.” But on the rabbinic plane itself, it’s not entirely clear whether there is a difference between positive and negative commandments in rabbinic law.

But Rabbi, you once explained that “do not deviate” is basically accepting the authority of the Sages, not something specific.

Correct, I don’t agree with those who explained “do not deviate” that way. Okay. There are those who explained it that way; I don’t agree with them. Okay.

In any case, all these explanations are explanations of Maimonides in Hilkhot Kilayim—how two people can be lashed for one prohibition. Now it’s very simple: the one lashed is the one responsible, but not both together. Each of the two, if he is responsible, is lashed. But that is exactly why this cannot be the explanation in Atvan DeOraita. Atvan DeOraita is talking about a case where both together are lashed for the same prohibition. So here it is not plausible that these are lashes for responsibility. These are lashes for the prohibition itself. And if these are lashes for the prohibition itself, then all the questions I raised before return. If this is one prohibition, then how can two be lashed? If it’s two prohibitions, then what is Atvan DeOraita’s novelty? Obviously two are lashed. And if I do it to myself, I’m lashed twice—once as the one who rounds and once as the one whose hair is rounded.

No, on the face of it this works very well with your claim, because the prohibition of the one whose hair is rounded and the one who rounds and so on is to be rounded—to walk in the street with that kind of sidelocks. And then the one who commits the prohibition is the one whose hair is rounded, and the one who is merely responsible, the one to blame, is the one who rounds.

No, that cannot be, because the Talmud in tractate Makkot says that if I round my own hair I get eighty lashes. So the one who rounds gets lashed because of responsibility, and the one whose hair is rounded gets lashed because—

No, but if the one whose hair is rounded acted intentionally—

Ah, right, right. If the one whose hair is rounded acted intentionally, then he is responsible. Right. Because if you compare it to Maimonides’ forbidden mixtures, if I dress myself in forbidden mixtures according to Maimonides, obviously I would be lashed only once. I am to blame for the fact that a prohibition was committed, so I am lashed. And there is no place for being lashed twice, because there aren’t two prohibitions. It’s one prohibition; the only question is who is responsible for it. Therefore all these explanations are excellent explanations for Maimonides, but they cannot explain the situation of Atvan DeOraita.

So what is Atvan DeOraita talking about? Basically we need to look for a case where we’re dealing with one prohibition, and with two sides performing it—say, two people perform it—and both are lashed, and yet if I do it to myself there is room to deliberate. Because if I do it to myself—

You could say—I don’t remember who said this last time, I think maybe Eliav—you could perhaps suggest that the prohibition of rounding is defined like the sexual prohibitions. In the sexual prohibitions, for example, suppose there is the prohibition of another man’s wife. If someone lies with another man’s wife, how many prohibitions have been violated? One. Another man’s wife—there aren’t two prohibitions, right? So why are both put to death? Both are executed for one prohibition. Because there are prohibitions whose execution is inherently joint—that’s how you do the prohibition. There are two people who together perform one act, and both are liable for punishment for that act. That is how it is defined from the outset. Okay? Like male intercourse.

What do you mean?

Male intercourse, male—the whole set of sexual prohibitions.

No, male intercourse isn’t the same, it’s only the penetrating party.

I don’t understand.

No, why only the penetrating party? That’s the Atvan DeOraita’s example, and then he brings that if someone rounds his own hair he is liable twice.

Well, if he is liable twice, then that means both the passive partner and the active partner, otherwise how is he liable twice? So in all the sexual prohibitions both sides are liable for punishment—lashes or death, whatever it is. But it’s one prohibition, not two. Meaning, there are prohibitions that are carried out jointly. It’s like “two who did it,” only the reverse. And “two who did it” is exempt: when two people together transfer an object from a private domain to a public domain, both are exempt. Why? Because ordinarily carrying out that act is done by one person. When you do it with two, they are exempt—either because it’s like an unusual manner or because each did only half the labor; there are discussions of why they’re exempt. But in a case of “this one cannot and that one cannot,” where the object is heavy and needs two people to move it from a private to a public domain, then in such a case both are indeed punished. Meaning, where the normal way to do the prohibition is with two people, there can be a case of one prohibition for which two people are punished.

Then indeed the question arises: what happens with the one who rounds and the one whose hair is rounded? Suppose “the one who rounds and the one whose hair is rounded” is a prohibition of that sort. When I round someone else’s hair, then it is like the sexual prohibitions—both sides are lashed, because there is a prohibition that I round him, not a prohibition merely not to be rounded. Usually we understand the prohibition as a prohibition not to be rounded—that’s the simple understanding. If I round him, then I caused him to stumble, or whatever—but the basic prohibition is “do not round the corners of your heads,” meaning I may not be rounded. But no—the Talmud says there is a prohibition that I round you, and the claim is that this is a prohibition created between two people, like the sexual prohibitions, and therefore both the one who rounds and the one whose hair is rounded are lashed.

And now there is room to discuss what happens when I round my own hair. So this is one prohibition, but if two different people performed it, two people would violate it and both would be lashed. Now you have room to discuss: if I do it to myself, it’s no longer as trivial as we saw before. If these were just two ordinary prohibitions, then obviously one person gets lashed twice. You did two prohibitions—why shouldn’t you get lashed twice? What difference does it make that you also did another prohibition? You get lashed for every prohibition you committed. But here we are lashing two people for one action. So if they are two different people, then both did the relevant part of this action, and so both are lashed. But if one person does this act to himself, maybe there is room to discuss that he would be lashed only once, not twice.

No, he’d be lashed twice—but Rabbi, that’s not “do not round,” that’s not like another man’s wife. Another man’s wife is one prohibition defined across two people, so both are liable because the prohibition is—

Who says “do not round” isn’t like that?

No, but it’s not like that, because with another man’s wife the prohibition is the prohibition of the act. They did the act together there. But with “do not round” it’s a result-based commandment.

Who says? First of all, who says? That’s the prohibition. What do you mean? Who says the prohibition isn’t on the act of rounding? It could be both.

And second, even if it is a prohibition on the result, there is still a prohibition on bringing about that result. The proof is that the one who rounds is also lashed. Not the person who bears the result of being rounded, but the person who brought about the result. So even if the prohibition is result-based, still the Talmud says that both the one who rounds and the one whose hair is rounded are lashed. You can’t get around that fact; the Talmud says it.

So what—another man’s wife is similar to “do not round”?

I’m saying: as a proposal for Atvan DeOraita. One could have said in Atvan DeOraita: no, these are simply two prohibitions—there is a prohibition on the one who rounds, and a prohibition on the one whose hair is rounded—and therefore both are lashed, and if I do it to myself I’m lashed twice. No problem. But that can’t be right.

But then in Atvan DeOraita there’d be no room to hesitate. Obviously I’d be lashed twice.

Correct. If Atvan DeOraita hesitates, it seems he understands the prohibition of the one who rounds and the one whose hair is rounded differently. And I’m asking not what the prohibition of the one who rounds and the one whose hair is rounded is in itself, but how Atvan DeOraita understands it. What is his subtext, so to speak? What underlies the discussion he raises? How could he have understood the prohibition of the one who rounds and the one whose hair is rounded if he raises a discussion of this kind? So I’m offering this suggestion: maybe he understood it as a prohibition that emerges between two people. Only now we still have to understand: then why shouldn’t he be lashed—why should he be lashed only once? What is the side that he should be lashed only once?

Rabbi, but then from the examples he compares it to, it looks different. He compares it to the idolatrous city and to making an idol for oneself. There it’s clear this is not a prohibition violated by two people.

Why? When you make an idol for yourself, how are two relevant? You are the one making the idol and the one to whom the idol belongs. Two prohibitions. To make an idol, not to worship idolatry. It’s not the prohibition of idolatry; it’s the prohibition that there be an idol, or to produce an idol. To produce an idol for idolatry, that is—to produce the idol, not to worship it. I produced the idol, and you own the idol. In that respect it’s like if I write you a Torah scroll. You fulfill the commandment of “write this song for yourselves.” Why? Because you have the Torah scroll, even though I wrote it. So the same thing here. You have an idol, you violated a prohibition. I produced an idol, I also violated a prohibition. There’s room to say as well that in producing the idol it’s the same thing: when I produce an idol for you, both of us violate the prohibition, because I produce an idol that is now with you.

But then the question is: what is Atvan DeOraita’s basis for saying he would only be lashed once? As I said, his basis would be because the result is to be rounded. That is how he understood the prohibition of “do not round.”

But then you’re basically saying that his dilemma concerns the definition of the prohibition of the one who rounds and the one whose hair is rounded: whether the prohibition is defined as something that exists between two people, or whether the prohibition is defined only on the one whose hair is rounded. Right?

More or less, but that can’t be. Why? Because if the prohibition were defined only on the one whose hair is rounded, then why, if I round someone else and both of us act intentionally, am I lashed? No, it’s not the same thing. What I want to claim is that the prohibition of “do not round” is inherently defined on two people, like the prohibition of another man’s wife. The prohibition of another man’s wife inherently has to be on two people, fine? So too “do not round.”

Okay, but despite that, if someone rounds his own hair, he is liable twice—

No, liable once. Liable twice is the straightforward side. I’m asking what the side is that he should be liable once. Atvan DeOraita hesitates whether he is liable twice or once. I’m asking what the side is that he is liable once. There is some kind of—

So what—one could have said, I thought what you wanted to say was that he hesitates between those two sides themselves. The question is whether this is—or whether the prohibition is only on the one whose hair is rounded, and therefore if I do it to myself I’d be lashed once. But if so, why is the one who rounds lashed? No, and then he brings the Talmud, which says that the one who rounds is also lashed, and you see it’s two prohibitions, so he is lashed twice—or it’s a prohibition between two people, so he is lashed twice. I’m asking at the stage of the question. Then he resolves the question from the Talmud in Makkot. At the stage of the question, I’m asking how he understood the one who rounds and the one whose hair is rounded. So perhaps he had a hesitation in the very definition of the prohibition itself: is it a prohibition that arises between two people, or is it only a prohibition on the one whose hair is rounded? The Talmud resolved for him that it’s a prohibition between two people.

But that also can’t be, because if it were so, there would be no reason to make a whole section about it in Atvan DeOraita. The section asks a broad question across all of Jewish law: wherever in Jewish law there is a prohibition on my doing an act to you, what happens if I do the act to myself? According to how we are presenting it now, that would be a question specific to the one who rounds and the one whose hair is rounded—how that particular prohibition is defined. But he presents here a different question, a sweeping general one, about all the laws that prohibit me from doing something to someone else, and therefore he brings proofs from Sanhedrin, from the idolatrous city, from one who has intercourse with himself, to the one who rounds and the one whose hair is rounded. What is the connection? Perhaps the one who rounds and the one whose hair is rounded is a prohibition that arises between two people, but someone who has intercourse with himself is a prohibition only on the passive partner—I’m just saying. What is the proof from one to the other? If your uncertainty were an uncertainty in the definition of the one who rounds and the one whose hair is rounded, rather than a general logical uncertainty, then there’d be no room to compare one prohibition to another or one commandment to another. Each thing would stand on its own; there’d be no questions and no proofs and no answers.

If Atvan DeOraita devotes a whole section to this and brings proofs from one place to another, that implies he understands that the prohibition is defined in all these places in the same way, and still there is room to hesitate what happens if I do it to myself: am I liable twice or once? Right? That’s what comes out. And now I return again: the only definition that seems possible here is that he apparently understood all these prohibitions like sexual prohibitions, because otherwise why on earth would both sides be lashed for one prohibition? The assumption is that it is one prohibition and not two; that was the simple assumption. So how can it be that two are lashed? There’s no choice but to understand it like sexual prohibitions. If it’s like sexual prohibitions, then it’s obvious to me why, when two different people participate, both are lashed. Now the question is: okay, and when I do it to myself? Now the question is why I would be lashed twice, or die once—it doesn’t matter—be liable twice. That’s obvious; that’s the straightforward side, because I am playing both roles.

So maybe with “do not round” too, it’s both a prohibition of result and a prohibition of action?

That too is possible. Maybe with “do not round” it’s both a prohibition of action and a prohibition of result, so both. If I did only the action without the result, would I be lashed? No. So why do you need both? Yes. But one person did the action and the other has the result, so neither of them should be lashed. No, no—the one who rounds is lashed because he performed an action that brings about the result, and the one whose hair is rounded is lashed because he has the result. It’s one prohibition, right, for which both are lashed. So you’re coming back to my definition: it’s one prohibition that arises between the two of them. I don’t care right now exactly how you divide it between them. Exactly, exactly. It’s like the penetrating party and the penetrated party. Right, exactly. I don’t care. But still this is a prohibition that arises between them, one prohibition that arises between them.

That’s exactly what I’m saying. But even so, when he rounds his own hair there is room to say that he is lashed once, because yes, the action is on him—no, the result is on him. I’m saying: if you violate the prohibition both as the one who rounds and as the one whose hair is rounded, for the same prohibition, then when you play both roles, why shouldn’t you be lashed twice?

So there is probably some kind of definition like this: whoever contributes to the existence of this two-person situation that is created is lashed—whoever makes an essential contribution. Therefore if I rounded and you were rounded, each of us obviously has a unique contribution; without either one of us it wouldn’t happen. If one person doesn’t do what he has to do, it won’t happen, right? So each of us made a necessary contribution to the problematic result, and therefore both of us are lashed. But note: I am not speaking in Maimonides’ sense that both of us are responsible. Rather, here I am saying that the prohibition itself rests on us, not just the punishment. In Maimonides it’s only the punishment. Here I mean that the prohibition itself rests on both of us, because both are lashed together. In Maimonides, two are never lashed together; rather, the intentional one is lashed and the unintentional one is not. Here I am talking about a case where if both are intentional, both are lashed. Why? Because this is a prohibition that arises between them, because each of them contributed to the problematic situation. Like with the lying and the being lain with, yes? Or like the one who rounds and the one whose hair is rounded, or one who incites and one who is incited, and so on. Once each of them has made a significant contribution to the result, it’s like “this one cannot and that one cannot” in “two who did it.” It is one prohibition; one prohibition was committed here. But if each of them has some unique contribution without which it could not happen, then each one is liable to lashes.

Now according to this definition, you can understand that there is definitely room to say that if I am one person who does it to himself, I’m lashed once. Why? Because I am not lashed for having rounded and for having been rounded. I am lashed for having had a significant part in the result that there is here a rounded person. Well then, as someone who rounded himself, I had a significant part in there being here a rounded person, and therefore I’m lashed. But there is no reason to lash me twice. I had a significant part in the result, and therefore I’m lashed. I’m not lashed twice because I do not have two prohibitions. Okay—that is the side for why I’d be lashed once. Do you understand what I’m saying? This is not Maimonides. Again, note: it is not Maimonides, because if it’s two people, both are lashed together. In Maimonides there is no situation where both are lashed together. This is like the active and passive sides in the sexual prohibitions; it is like the sexual prohibitions, which are a prohibition that arises between two people. This has to be the situation Atvan DeOraita is talking about. And therefore there is a side here that if a person does it to himself, he’ll be lashed, but only once.

So what is his hesitation? Is it whether that is the definition? No. It’s clear to him that that is the definition. His hesitation is whether one is lashed twice or once. And how do I know that? Because in fact he compares it to all the other cases where there is liability on two people. And from his perspective, if here it comes out that one is liable twice and there it comes out that one is liable once, that is a question. If his hesitation were about the very definition of the one who rounds and the one whose hair is rounded, then in that case it comes out that two are lashed, while elsewhere it comes out that one is lashed once because the structure there is different. So what’s the problem? What’s difficult? If he decides to compare all these cases, then he understands there is one principle that runs through all of them. Meaning his doubt is not a doubt in the definition of the one who rounds and the one whose hair is rounded, but a general doubt in Jewish law: what happens when there is a prohibition that arises between two people? If I do it to myself, am I liable twice or once? In other words, is this like two prohibitions—even though really it is one prohibition? If so, then if I do it to myself I’d be lashed twice because I did the equivalent of two prohibitions. Or perhaps not—perhaps I’d be lashed once. Why? Because at the end of the day I am to blame for creating a problematic result, so I’m lashed. And there is absolutely no reason in the world to be lashed twice for one prohibition. That is apparently his uncertainty.

Now what I want to do—maybe one more remark. One could get the impression that his dilemma is this: if I round my own hair, am I lashed twice or not lashed at all? Because I am not really the one whose hair is rounded by someone else, and I am not really the one who rounds someone else, so I am lacking both as the one who rounds and as the one whose hair is rounded. It’s pretty clear that’s not what he means. His discussion is whether he is lashed once or twice, not whether he is lashed zero or twice. Why? Because basically it’s quite clear that as the one whose hair is rounded, certainly you are lashed. Because in the end, in the end, it’s obvious that the one whose hair is rounded is the core of the prohibition, the essence of the prohibition. The one who rounds contributed to the matter, but in the end the prohibition was done upon me. When I am rounded, it becomes clear that a prohibition was committed here. Therefore if I rounded myself, as the one whose hair is rounded I am certainly lashed. That is not the question. The question is whether I count as the one who rounds when I did it to myself. Or whether “the one who rounds” is always someone else who performs the action on me. But there is no question whether I count as the one whose hair is rounded.

And here we enter a bit into Eliav’s earlier distinction between action and result. There is here—I don’t know if this is a result-prohibition—but it is clear that the essence of the prohibition is the result. At the end of the day, that I am rounded. So obviously I violated a prohibition, obviously something problematic happened here. Therefore as the one whose hair is rounded I am certainly lashed, even if I rounded myself. The question is whether I count as the one who rounds. The question is only about my status as the one who rounds. So you see that there is still an asymmetry here between the one whose hair is rounded and the one who rounds. Because if it were completely symmetrical, then Atvan DeOraita’s doubt should have been whether I am lashed twice or not lashed at all. Because I was not rounded by someone else and did not round someone else, so I am neither. No—my being the one whose hair is rounded is obvious. The whole question is whether I am the one who rounds. Which means that even on his own terms there is still a difference between the one whose hair is rounded and the one who rounds; it is not symmetrical. This is a prohibition that arises between the two, but it is not symmetrical.

By the way, if I compare this to sexual prohibitions, it’s somewhat similar there to male and female. Because the woman, in some situations, is merely passive ground and then she is exempt. That means that the act of intercourse is performed by the male who penetrates. He is the principal actor there—that is parallel precisely to the one whose hair is rounded. Now of course there has to be someone penetrated; otherwise it is not an act of intercourse. But the prohibited act in its essence is the act of intercourse itself. And in that sense the penetrating party parallels the one whose hair is rounded precisely. Yes, the one whose hair is rounded, who is passive, is actually the central case. With intercourse, the active one is central. And with the one whose hair is rounded, the passive one is central. Why? Because there what bothers me is the result, not the action. And again, not because the definition of the prohibition is result-based. Because if the prohibition were a prohibition of result, then what did the one who rounds do? The one who rounds does not have the result of being rounded. He only performed an act of rounding. The one who is rounded here is the person whose hair is rounded, not the one who rounds. So I’m not defining the prohibition here as a result-prohibition. But the essence that the prohibition comes to prevent is of course the result. Except that for that purpose, the prohibition also forbids me from doing an act that brings about that result. And therefore the one who rounds is also lashed. Okay? These are the sides of the issue.

Yes, can we sharpen for a second the distinction between when the prohibition is the result and when the result is the essence of the prohibition?

If the prohibition is a prohibition on the result, then there is no reason to lash the one who rounds. The result occurs on the one whose hair is rounded, exists on the one whose hair is rounded, and he too is lashed for it. Fine—but he is the one who brings about the result?

Aha, then the prohibition is bringing about the result, not the fact that the result occurred. That is an action-prohibition. The action is defined as an action that brings about such a result. And that is an action-prohibition; otherwise there would be no room to lash the one who rounds. But on the other hand, it is obvious that the action is defined by the result it creates. What the Torah really wants is that the result not exist—that there not be here someone who is rounded. That does not tell me the legal definition of the prohibition. We spoke about the difference between the definition of a prohibition and its reason. For example, regarding “be fruitful and multiply,” I brought that example: the Torah wants me to have a son and a daughter, but the commandment is a commandment on the action, not on the result, because that is what is in my hands. I cannot bring about the result; the result may happen or may not happen. The action is in my hands. But obviously the Torah wants the result, and that is the reason of the verse. Okay? Here too I want to say the same thing.

So that was basically the introduction, or the conceptual analysis, that I did to the question of Atvan DeOraita. I see that my time is up already. And what I want to do now—or next time, really—is read Atvan DeOraita inside and examine it in light of this introduction. And I want to show that some of the distinctions I made here do appear in him, even if he doesn’t say them in the way I said them, because he doesn’t do conceptual analysis. But some of the distinctions do appear there as well. And I want to show that some of his differentiations fall out through the distinctions I made here in the introduction. But that will be next time.

Rabbi, even though the verse says “do not round the corner of your head,” the Torah speaks to the person himself, that he should not round the hair of his head. “Do not round” is an action.

Yes, but as though an action on yourself—that you do the rounding?

No. “Do not round the corner of your head.” The Talmud derives it. “Do not round the corner of your head” means the act of rounding on someone else is also forbidden. Do not round the corner of a Jew’s head. “Your head” means Jews’ heads; don’t round the corner of a Jew’s head. So it says—the Talmud derives it from the expression “do not round.”

Yes, so how does it derive that the one whose hair is rounded is also liable, really? If someone comes and rounds his hair, then how does it derive that the one whose hair is rounded is also liable?

It says—the Talmud derives that this is probably, according to how Atvan DeOraita understands it, a prohibition that arises between the two of them. Don’t create a situation where one person rounds and the other remains rounded.

No, I’m asking how the Talmud derives it.

That’s how it understood the verse. What do you mean, that’s how it understood the verse? Don’t create a situation where Reuven rounds Shimon and Shimon remains rounded. And that action that arises between them is the prohibition—it is the prohibition of rounding.

Okay, I got it, fine.

And Rabbi, if we return to your distinction between the prohibition and the essence of the prohibition regarding circumcision, then is the commandment on the father to circumcise his son?

That’s a dispute between the Tur and Maimonides. There? Apparently—or at least there are opinions that it’s a dispute between the Tur and Maimonides. The question is whether there is a commandment to be circumcised or the commandment is to circumcise. Because there is the Beit HaLevi and there is Rabbi Chaim of Brisk, who explain in two different ways the dispute between the Tur and Maimonides about non-essential shreds of flesh in circumcision, in Sabbath 133. There Maimonides says that you do not return to those shreds even on a weekday. If you cut only the shreds that invalidate the circumcision and stopped, you no longer go back to the shreds that do not invalidate it, even though beautifying the commandment means cutting those as well. And the Tur says no, certainly you go back; it’s only on the Sabbath that we don’t desecrate the Sabbath for beautifying the commandment. What’s the dispute? According to one explanation, the assumption is that there is no beautification of a commandment after the commandment is already over. Maimonides holds that the commandment is to circumcise; once you circumcised, the commandment is over, and there is nothing to beautify. The Tur holds that the commandment is to be circumcised. So as long as you are circumcised, the commandment continues all the time; therefore there is certainly room to beautify even after the act of circumcision has finished.

Okay.

I didn’t understand. If the commandment is to be circumcised, and the addition of those shreds is only beautifying the commandment, after I’m already circumcised can I still keep circumcising myself?

Of course. After all, you are circumcised, and every moment that you are circumcised you are fulfilling the commandment. Now beautify the commandment—be circumcised in a more complete way. If the act of circumcision is the commandment, then once you’ve finished the act, the commandment is over, there is nothing to beautify. But if the commandment is the result of being circumcised, then that commandment is fulfilled as long as the result exists, so there is room to beautify even afterward, because it is not disconnected from the commandment.

Okay. Okay, I have to run this time, so forgive me. Thank you very much. Good luck. Goodbye. Thanks.