Ethics, Faith, and Halakha – Lesson 20 – Rabbi Michael Avraham

[Rabbi Michael Abraham] Okay, so we talked a bit about the relationship between morality and Jewish law, and the conclusion in the end was that the will of the Holy One, blessed be He — God’s demands of us — is divided into two systems. One system is the halakhic system, meaning Jewish law, and the other is the moral system. And both are really the will of God, so when there are conflicts between them, they basically have equal status, and you can’t determine a priori which one overrides the other. If the clash is inherent, then maybe you can. From that I also said that we don’t really learn morality from the Torah. The Torah tells us, “ועשית הישר והטוב” (“And you shall do what is right and good”), so we see in the Torah that we are required to behave morally. But what does it mean to behave morally? Meaning, which behavior is moral and which is not? In my view, that is not learned from the Torah. Rather, we understand what is right and good the way every person in the world has to understand what is right and good. We said that for that reason it’s also hard to talk about Jewish morality. There’s no such thing as Jewish morality. There is morality, and that morality obligates all human beings, Jews and non-Jews. If we reach the conclusion — whether from the Torah or not — that a certain behavior is moral behavior, then that behavior obligates everyone in the world. And if it is not moral, then that too obligates everyone in the world not to do it. By the way, that’s one of the biggest difficulties with Rabbi Kook’s view, and similar views, which see Jewish law as basically moral guidance. If you see Jewish law as the correct moral guidance — the most correct, let’s put it that way — then I would expect the whole world to be obligated in Jewish law, non-Jews too. There’s no reason to think that non-Jews don’t need to be moral. Of course they do too need to be moral. They’re exempt from Jewish law. That itself already tells you that morality and Jewish law are not the same thing, right? It seems to me that’s obvious. And on the other hand, it means that the moral aspect — the part that does not belong to Jewish law — is truly universal. There’s no difference between Jews and non-Jews in that respect. Whatever belongs to morality obligates everyone. So there is no Jewish morality; by definition morality is universal. On the other hand, it is God’s will. Alongside that there is God’s will as expressed in Jewish law, and that’s that. So what does this picture actually mean? And that’s our next step. What this picture really means is that when you look at our system of obligations, our system of obligations is built in two tiers. The first tier is the universal tier, right? Every human being in the world is obligated in moral values. And in that sense Jews are not supposed to be different from anyone else. I see this thing is already running out. Oops. You know what? Let’s switch, let’s be a little creative. No, that won’t help. The connection from there to here. רגע. What?

[Speaker B] Isn’t there some outlet around here?

[Rabbi Michael Abraham] No, there isn’t, there isn’t — this classroom is backwards. I already got tangled up with it once. I’ll just take the table over there and plug in. Is there maybe some power strip there? Do you have battery if I want to connect my computer there? Because I’ll just push the table over there. Maybe you can sit more over there. This cable is long and I can take it there, and then I hope it’ll reach the… primitive. Need a little more. Okay, from here I hope it’ll already reach. Let’s see. Okay, good, let’s see, everything okay, right? I didn’t miss anything. Fine, just about the fonts — they’re okay. For now this page isn’t relevant anyway, but okay. So basically what emerges from the picture I described is that our system of obligations is built in two tiers. The first tier is the universal, moral, value-based tier, which is identical for all human beings, Jews and non-Jews alike. And on top of that tier there is a second tier, which is our particular tier, a Jewish tier. Okay? And as I said, on the first tier we’re like non-Jews; on the second tier lies our uniqueness.

Maybe I’ll say — I’ll jump ahead a little — that when we come to define, for example, if we wanted to define who is a Jew, okay? Aristotle teaches us that a definition has to include genus and species. When you want to define a human being, you say he is a speaking animal. Right? Meaning, animal is the genus: the human is part of the genus of living creatures, animals. And within that genus there are several species. One of the species is the species of speaking animal. There are non-speaking animals too, and they divide into fish, birds, mammals, and so on, but the definition of a human being is a speaking animal. The genus and the subtype, or species, relative to other species within the genus. Okay, that’s how you define things. So if I want to define a Jew, then basically I have to define: this is a human being — that’s the genus — and then define the species as against other species. Right? For example, I’ve often seen arguments saying that when someone comes to convert, what’s required of him is commandments between man and God. Why don’t they make conversion depend on keeping commandments between man and his fellow? Yes, פעם I saw someone write… What?

[Speaker E] Because maybe that wouldn’t come out right.

[Rabbi Michael Abraham] Yes, that’s… So I once saw someone arguing: Yigal Amir is a fully valid Jew by all opinions — a criminal, but a fully valid Jew. Okay? But someone who eats pork — no, or someone who doesn’t observe family purity — no. Okay? I mean, let’s say a convert. Okay? If he’s a Jew who eats pork, then he’s a Jew who eats pork. But if we’re defining Judaism, yes, not a Jew — what is Judaism? Then your Judaism can be a flawed Judaism if you’re a murderer. But if you’re not committed to Jewish law — if you eat pork, or if you eat pork or don’t observe family purity — then that isn’t Judaism. Meaning, Judaism is supposed to be someone committed to halakhic norms. So he says, what logic is there in that? Murder is a much more serious prohibition than eating pork. So why is someone who murders a flawed Jew, or someone who murders is religious but a criminal — but someone who eats pork is not religious? Why? After all, murder is a more serious prohibition.

[Speaker E] Because it’s not only a moral prohibition, it’s also a halakhic prohibition, so maybe I would… I’m not a hundred percent sure that’s right.

[Rabbi Michael Abraham] Meaning—

[Speaker E] We said that “לא תרצח” (“You shall not murder”), which is written in the Torah, isn’t there because it’s immoral to murder, but because it really is something from Jewish law. That’s the prohibition.

[Rabbi Michael Abraham] And when you talk about a person who doesn’t murder or a person who does murder, let’s put it that way, then the perception is: okay, he obviously isn’t — sorry — he’s a religious person but he fell, okay, he sinned. But someone who eats pork isn’t religious at all. And he asks why, or the author of the article asks, after all murder is a much more serious prohibition than eating—

[Speaker F] pork, and you can also get to that even without a religious outlook.

[Rabbi Michael Abraham] Right. So what I said earlier is exactly the point. It’s not a question of the severity of the prohibition at all. It’s a question of genus and species. When you want to define a religious person, you’re not going to define a religious person as someone who gives charity, or who doesn’t murder, or who knows what, honors his parents. That’s not a definition of a religious person, even though a religious person should do all that. But that’s not the definition of a religious person, because the problem is a logical one. When you have to define something, you have to choose characteristics that are unique to the thing you’re defining, right? You can’t define a human being as a creature with a heart, even though obviously he has a heart and obviously that’s a very, very important organ for a human being, right? But it’s a logical mistake to define a human being as a heart-bearing creature, because lots of animals have hearts. That doesn’t distinguish the human species. And when you define something, what matters is not how important the feature is, but how unique the feature is. That’s not the same thing. Now, even if the prohibition of murder is much more severe than the prohibition of eating pork, it is of course not unique. The whole world thinks murder is forbidden. That doesn’t uniquely distinguish Jews, or religious Jews, right? I’m not getting into the question right now of who sins more in this area, but conceptually this is an act everyone sees as wrong. You don’t have to be religious to say it’s wrong. Therefore, if you want to define a religious person, don’t define him by the fact that he doesn’t murder. That’s a foolish definition. And to define a non-religious person, someone who murdered, as not religious — that’s not right. He’s not a human being — not that he’s not a religious person — because he harmed the first universal tier, our tier as human beings, not our tier as Jews. Of course a Jew also has to be a human being. But if you want a differentiating definition — a definition that distinguishes him from nearby species — then you have to choose characteristics unique to him. And those characteristics have to be specifically commandments between man and God, not moral commandments, because those really are commandments that distinguish only him. Nobody else keeps family purity; if he’s not a religious Jew, he won’t keep family purity. So family purity is a good measure. Or eating pork — eating pork, by the way, is less good; Muslims don’t eat pork either, but on the conceptual level, let’s say if you want to distinguish him from a secular Jew, not from another religious person, then eating pork is also a good measure, okay? So when we come to define a concept, the parameters we choose are not necessarily the most important parameters, but the most unique parameters. Okay? And if I return to the two-tier picture I described earlier, then that basically means that when I want to define a Jew, I can’t define him by characteristics of the first tier, because the first tier is universal; it applies to everyone. If I want to define a Jew, then I have to define him through the characteristics of the second tier. Okay, once again, I’m defining Judaism, not a Jew — meaning, a Jew who keeps no commandments is still a Jew if his mother is Jewish. I’m talking about a Jew in the sense of living a Jewish life, okay? Not someone who is ethnically Jewish. Clear? So I have to define him through characteristics of the second tier. That’s, for example, one implication of this two-tier picture I’m describing here.

Now I want to go into this two-tier picture in a little more detail. Here, you see Rabbi Kook in Orot Yisrael saying the following: “צורתם של ישראל צריכה להתברר, אם האנושיות הכללית של תוכן האדם עומדת היא בה בצביונה כמו שהיא אצל כל העמים, ועליה נבנית הצורה הישראלית המיוחדתה, או שמעקב והדרוש הכל הוא מיוחד” (“The form of Israel must be clarified: whether the general humanity of the content of man stands within it in its character as it does among all nations, and upon that the unique Israelite form is built; or whether from heel to head the whole thing is unique”). That’s a classic conceptual inquiry: who is a Jew? Or what is Judaism? What are the two sides? The question is whether this is a two-tier structure: the general humanity of man stands within it in its character, and on top of that the Israelite form is built. There is a first tier that is universal, in which everyone is the same, and the Jew is distinguished only by the second tier. His first tier is like the first tier of every person. It’s just that for other human beings there is only the first tier, while the Jew is characterized by the fact that an additional tier is built on top of it. That is the uniquely Israelite form, okay? Beyond the universal tier. That’s one side. The second side is that from heel to head the whole thing is unique. Meaning, this is not a two-tier structure; it’s two one-story villas standing side by side. Okay? The non-Jew is one villa and the Jew is another villa. There is nothing shared between them, no common tier with something unique built on top of it. No — these are two species within the same genus. And the way I described it here, basically the Jew is a species within the genus called human being. According to Rabbi Kook’s second side, the Jew and the human being are two species of living creatures. Okay? So there is no inclusion relation between the two groups, Jew and human being. “לבירור זה צריך להשתמש במקורות שונים תורניים, שכליים, היסטוריים, רזיים, הופעיים, שיריים ולפעמים גם פוליטיים ואקונומיים” (“To clarify this, one must use various sources — Torah sources, rational sources, historical, mystical, experiential, poetic, and sometimes even political and economic”). Okay?

In the end, after I skip a bit, I get to his conclusion. “נראה הדבר שמקודם נערך הדבר שצורת האדם תשתלם בכללותה, ובתור תוספת ויתרון ייגלה על האומה המיוחדת רוחה המפואר בהדרת קודש” (“It appears that originally the arrangement was that the form of man would be perfected in its totality, and as an addition and advantage the glorious spirit in holy splendor would then be revealed upon the special nation”). What does that mean? The original plan was that the Jew would be a second tier. Meaning, that the structure of the Jew is two-tiered. Why? Or how does this happen historically? Why was the Torah given only at Mount Sinai, or if you prefer, Judaism began with Abraham our father? What happened before then? If the Holy One, blessed be He, wants this, then it should have been done from the start. Meaning, either create a world that is entirely Jewish, or one with a Jewish part in it — but why wait? What happened until then? So we had to wait until humanity perfected its first tier. First of all, they had to understand what was required of them at the universal tier, as human beings. Once that had been clarified and sharpened, now it was possible to create the second tier. Right? Like the creation of the world and Mount Sinai. Meaning, there are the ten utterances with which the world was created, and the Ten Commandments. The Ten Commandments created Judaism; the ten utterances created the world, or humanity. Okay? So that was basically the original plan. After the human form as such had been perfected, regardless of Judaism, then there was room for another tier to appear on top of it, a second tier, the Jewish-particular tier. So Rabbi Kook says that was the original plan. But then, “ונתקלקלו העניינים ורוח האדם שקעה כל כך בכלל, עד שלא היכול יכול להיעשות בסיס לקודש” — things became corrupted, and the human spirit sank so low in general, that it could no longer become a basis for holiness. Yes, he sees the first tier as the tier of the mundane. Say morality and general values are mundane. What lies beyond that — what I called religious values — is the tier of holiness. So he says it could no longer become a basis for holiness unless it were transformed. “והוכרחה גלות מצרים לבוא בתור כור הברזל, שצרפה את צד האדם בישראל עד שנעשה לבריה חדשה. וצורתו החולית… נטשטשה לגמרי. והוחל גוי פעם אחת על ידי הגרעין האנושי לצורה שמראש ועד העקב כולה ישראלית. יעקב וישראל” (“And the Egyptian exile had to come as an iron furnace, refining the human side in Israel until it became a new creature. Its mundane form was completely blurred, and a nation was begun once by means of the human core into a form that from head to heel is entirely Israelite. Jacob and Israel”). Jacob was really supposed to be a second tier on top of the human tier. His name was changed to Israel, and the meaning of Israel is that you are basically a new creature. They erased your first tier, and now you are a new being.

To tell the truth, this is a bit strange, because he ties it to the fact that humanity ruined its way — the first tier was corrupted, damaged. So what should have been done was to purify the first tier, but that doesn’t mean Judaism is no longer built as two tiers. It is built as two tiers, and one should be obligated in both the first tier and the second tier. The fact that the non-Jews corrupted the first tier — why does that mean the whole thing now has to be built differently? It should be repaired, while preserving the two tiers. Okay? Rabbi Kook says that once the non-Jews ruined the first tier, it became necessary to build creatures that from beginning to end are something else, having nothing in common with a human being as such. I don’t see why it has to be that way. Again?

[Speaker E] Why did God create the flood?

[Rabbi Michael Abraham] And apparently it continued afterward too, because otherwise there would have been no need to create the second tier anew.

[Speaker E] I mean, instead of a flood, could you think of this? I didn’t understand. God promised—

[Rabbi Michael Abraham] that there wouldn’t be — that there wouldn’t be another flood.

[Speaker E] again, right? So He wouldn’t use the same method. So when the first tier got corrupted, He—

[Rabbi Michael Abraham] just replaced the first tier according to…

[Speaker E] But—

[Rabbi Michael Abraham] The first tier is a set of demands that certainly remained in place. The tier — let’s speak now about values — the values that belong to the first tier are the same values, and they remain the same afterward. Those are the correct values. Now the Jew who is recreated here is supposed to be obligated in them as well. The fact that non-Jews fail in their role and don’t uphold those basic values doesn’t mean that for us the basic underlying foundation no longer remains the same. Why should the basic foundation change? That’s not so clear to me. But okay, never mind. In any case, that’s what Rabbi Kook says. For me, what matters is the very sharpening of these two possibilities as against one another: is it two tiers or one tier? Rabbi Kook’s source is apparently a Talmud in Bava Kamma, Bava Kamma 38a. Okay, so the Talmud in Bava Kamma 38a discusses the ox of a Jew that gored the ox of a Canaanite, okay? The Talmud says: Rabbi Abbahu said, Scripture says: “עמד וימדד ארץ, ראה ויתר גוים” (“He stood and measured the earth; He saw and released the nations”). He saw that the descendants of Noah had accepted seven commandments, and since they did not keep them, He arose and permitted their property to Israel. Okay? So basically the claim is that therefore an ox belonging to a Jew that gores an ox belonging to a non-Jew is exempt, because He permitted the property of the non-Jews, because they basically — let’s say — are no longer human beings. They did not keep the basic obligations of the first tier, which define the human being. As I said earlier, someone who doesn’t keep that is not merely not religious — he’s not a human being. Meaning, he lacks the first tier, not that his second tier has been damaged. Therefore He permitted their property to Israel. Later it also says: what did He see? He saw that the descendants of Noah had been commanded in seven commandments and did not keep them, so He arose and exiled them from their land. Okay? So basically the claim is that this is probably Rabbi Kook’s source: originally non-Jews were created in a way that they had something in common with us — the first tier. After they corrupted their path, the Holy One, blessed be He, decides to do a reset, okay? He opens it again, and now the Jew is some kind of independent tier according to this definition.

Now Rabbi Shlomo Fisher, in his book Beit Yishai — Beit Yishai Derashot; he has Beit Yishai on learning and Beit Yishai Derashot — there in two sections he brings that the sages of Israel disagreed on this matter, on Rabbi Kook’s inquiry. By the way, Rabbi Shlomo Fisher, as usual, doesn’t cite Rabbi Kook. He sort of doesn’t note that this is from him, but apparently he takes it from him. So he says this: and there are those who understand that the chosenness of Israel is in the aspect of the firstborn, as it says, “בני בכורי ישראל” (“Israel is My firstborn son”). What does firstborn mean? The firstborn receives a double portion, right? Why? One portion he receives like all the other children, and one extra portion — that’s the second tier — because he is firstborn. So basically the firstborn is just a metaphor, or illustration, for this two-tier concept: there is a child, and on top of that you are also firstborn. Okay? And for this he brings the Mishnah in Pirkei Avot as a source for this view: “הוא היה אומר חביב אדם שנברא בצלם, חיבה יתירה נודעת לו שנברא בצלם, שנאמר בצלם אלהים עשה את האדם. חביבים ישראל שנקראו בנים למקום, חיבה יתירה נודעת להם שנקראו בנים למקום, שנאמר בנים אתם לה’ אלהיכם” (“He would say: Beloved is man, for he was created in the image; an extra love was made known to him in that he was created in the image, as it is said, ‘For in the image of God He made man.’ Beloved are Israel, for they were called children of the Omnipresent; an extra love was made known to them in that they were called children of the Omnipresent, as it is said, ‘You are children to the Lord your God’”). Okay? “Beloved is man, for he was created in the image” — of course that’s not specifically the Jew. “The man who was created” means every human being, Adam, okay? And from among all humanity, Israel are especially beloved, because they are called children of the Omnipresent. That’s a kind of firstborn-ness. Yes, everyone are children, basically all human beings are children, and the people of Israel are the firstborn. They have an additional tier. So he understands this Mishnah in Avot as expressing the two-tier view.

Yes, so the Tosafot Yom Tov on that Mishnah says that the commentators took the Mishnah away from its simple meaning and interpreted it as referring to Israel. “Beloved is man, for he was created in the image” — meaning Israel. And it says “אתם קרויים אדם ואין עובדי אלילים קרויים אדם” (“You are called man, and idol worshippers are not called man”). Yes, but the Tosafot Yom Tov says no, the Mishnah in its plain sense is speaking about all human beings, not only the people of Israel. Of course, according to Rabbi Kook, one could say that this Mishnah speaks after the descendants of Noah had corrupted their way, and then basically the only ones remaining even within the category of ordinary humanity were Israel, because the others had already failed even in their universal human obligation. Okay?

Now against this position, Rabbi Shlomo Fisher argues that there is the position of the Kuzari and the kabbalists, who basically — the Kuzari, yes, with his example of the five-level structure: inanimate, vegetative, animate, speaking, and prophet. Prophet is a Jew, or one fit for prophecy — basically a Jew. Okay? So he apparently sees the difference between Jew and non-Jew as like the difference between vegetative and inanimate, or between human being and animal. Okay? Now you could say that this too is really a kind of two-tier structure, right? In a plant there is some physical dimension, there is matter, but there is also something living, organic. Okay? And likewise an animal, and likewise a human being. But it’s clear that the gap between inanimate and vegetative, or between vegetative and animate, or between animate and human, really is an essential gap. It’s hard to call that just two tiers. You can speak of two tiers there, but here it’s already an essential gap. Okay? And therefore he understands that when the Kuzari places the difference between Jew and non-Jew on that same scale, he probably understands that something genuinely different has emerged here, a new species, and not a species within the previous genus.

Now that’s a general statement about how I might even see the Jewish soul, or the Jew as such. I now want to focus on our system of obligations — our commandments, our norms. Not on the person; I’m not dealing in metaphysics, I’m dealing with norms. Okay? I want to claim that our normative system too is built as a two-tier structure. Yes, there are universal values, and on top of them there are Jewish values. So the Talmud in Sanhedrin talks about the seven Noahide commandments, and it says this: the sages taught, the descendants of Noah were commanded in seven commandments: establishing courts, blessing the Name — meaning blasphemy, idolatry, forbidden sexual relations, bloodshed, robbery, and a limb from a living animal. Then there are those who added other things, and then it brings the sources for these obligations. And as you can see, those sources have nothing to do with Judaism; it’s Adam, Noah — they were the ones commanded. Okay? There’s a bit of dispute about these matters. And Maimonides, in the Laws of Kings, summarizes it this way: Adam the first man was commanded in six matters: idolatry, blessing the Name, bloodshed, forbidden sexual relations, robbery, and courts. That’s six. Even though all these are a tradition in our hands from Moses our teacher, and reason inclines toward them, from the general sense of the Torah it appears that these were commanded. Right? Basically Adam himself was already commanded in them, even though we received this by tradition from Moses our teacher. But in fact these commands appeared in the world before Moses our teacher, and Adam and Noah were already commanded in them.

[Speaker E] How did you say that Adam was commanded in forbidden sexual relations, since he was alone?

[Rabbi Michael Abraham] No, but then you can ask: so how did his children marry? Yes, that’s the famous question. So apparently there were all sorts of other creatures around, meaning, I don’t know — with his daughter, let’s say Eve and Cain, that’s forbidden sexual relations, right? Forbidden sexual relations isn’t just another man’s wife; it also includes relatives. In any case, Maimonides says — we already saw the commentary to the Mishnah in Hullin and Maimonides in the Laws of Kings at the end of chapter 8, where he says that our obligation to keep the commandments is by force of the command at Sinai. Even though there were commands regarding some of the commandments before Mount Sinai. But as far as we are concerned, what obligates us — the basic norm — is the command at Mount Sinai. So that’s what he says: it appears from the general sense of the Torah that these were commanded. To Noah was added the prohibition of a limb from a living animal, as it says, “אך בשר בנפשו דמו לא תאכלו” (“But flesh with its life, which is its blood, you shall not eat”). Thus there are seven commandments. So six were Adam’s, and the seventh was commanded to Noah. And so it remained throughout the world until Abraham. Abraham came and was commanded beyond these in circumcision — that’s already eight. And he prayed the morning prayer — that’s already nine. Because Maimonides’ view is that the commandment of prayer is a Torah commandment, right? Nachmanides disagrees. But Maimonides says basically that it is of Torah origin; the details of how many prayers and the particulars are rabbinic, but the very obligation of prayer is Torah-level, so we’re already at nine, right? There is circumcision and there is prayer. Isaac set aside the tithe — that’s ten. He added another prayer — that doesn’t really add to the count of commandments. Jacob added the prohibition of the sciatic nerve — that’s eleven. He prayed the evening prayer — that’s still prayer. And in Egypt, Amram was commanded in additional commandments, until Moses our teacher came and the Torah was completed through him. There was also Marah in the middle, right? Three commandments were commanded to Israel already at Marah. But Maimonides isn’t detailing everything here. In the end, at Mount Sinai, the Torah was completed through Moses our teacher.

Now the description Maimonides gives here is interesting, because he puts all the commandments on one axis, and Sinai is only the final hammer blow, just the finishing touch. A description like that strongly suggests that he’s speaking of a two-tier model, right? Basically, the first seven commandments were built — the universal, all-human commandments — and then we continued. We did not begin again. Okay? It’s not that now we were newly commanded in everything. No, we now continued to an eighth commandment, a ninth, a tenth, all the way to 613. Okay? Meaning, it’s a process of continuous building. The first tier was built, and on top of it the second tier. True, nowadays even the first tier is observed because of the command we received at Sinai. But still, there was a first tier that existed even before Sinai. Right? So it seems to me that this expresses some kind of two-tier conception.

I’ll bring an example that we may get to later. Maimonides at the beginning of the Laws of Marriage says that before the giving of the Torah, if a man met a woman in the marketplace and they agreed to marry, he brought her into his house, and that was it — they were married. After the Torah was given, we were commanded to precede marriage with betrothal. Yes? Then there is money, document, intercourse, and all the details of tractate Kiddushin — we were commanded to precede marriage with betrothal. And the question is: why does Maimonides give this historical introduction? What do I care what happened before the giving of the Torah? I want to claim — exactly as we saw here — that Maimonides is coming to say that in the laws of marriage too there is a two-tier structure. There is the universal structure that says: there is marriage, and this marriage exists both among Noahides and among Jews. On top of that universal tier, the Torah adds another halakhic-particular tier, and that is betrothal. And that exists only אצלנו, not among Noahides. One practical implication, for example: if someone did not betroth the woman, and lives with her without betrothal, does such a situation have any halakhic status? Common-law spouses, a married woman — is Jewish law willing to grant status to that kind of social institution, or not? If you did betrothal, you did; and if not, then you’re just two strangers. So I claim that Jewish law does recognize such a thing; it has various implications that we may yet see, because the first universal tier also exists among us. Meaning, the fact that we received betrothal did not destroy the first tier; it came on top of the first tier. But the tier that existed before the giving of the Torah remained in place even after the giving of the Torah. It’s just that another tier was added at the giving of the Torah. And therefore it has implications even after the giving of the Torah, based on the fact that somewhere underneath there remains a first universal tier. We’ll see the implications — but as two separate tiers.

[Speaker D] Right, it’s two-tiered, yes.

[Rabbi Michael Abraham] Okay, so here too, the same thing: basically this description of the giving of the commandments is some kind of incremental description, built in stages, where one is built on top of the previous one. Therefore it seems we’re talking here about a two-tier model. And that basically claims, that basically means, that our obligations — and again, that was the starting point, now I’m just closing the loop — that our obligations are built out of two systems: the obligations of the first tier, which are morality, universal values like every human being in the world, and the particular obligations, which are Jewish law. If you like: moral values and religious values. Okay? Those are basically the two tiers.

The combination between these two tiers can be called a layered composition. What does that mean? The Rogatchover has a whole philosophical vocabulary, and he distinguishes between two kinds of composition of concepts, or of things. Composition… what do you mean?

[Speaker C] Layered composition and fused composition.

[Rabbi Michael Abraham] What does that mean? Layered composition is when the two components reside side by side — they’re neighbors — but each one exists in its own form, and both together somehow create a whole composed of the two. What maybe you could call a physical composition as opposed to a chemical composition, okay? In fused composition, the two components merge, or are melted together, and become a new entity. In that new entity you can no longer identify the two components that created it. Think of water: it’s a composition of oxygen and hydrogen, right? But we really have no way of seeing inside water molecules of oxygen and molecules of hydrogen — atoms of oxygen and molecules of hydrogen, more accurately. Okay? H2O, H2 is a molecule. So the claim is that once H2O has formed, something new has come into being. That’s fused composition. The hydrogen and oxygen have fused, and the two components no longer remain each one separately identifiable. In layered composition they do remain, and the structure formed from them is some kind of structure with overall meaning, but inside that structure there are two components, each of which still has some independent recognizability.

So in this context, for example, one can ask whether an ordinary priest and a High Priest — sorry, whether a High Priest — is an ordinary priest who is also “great,” or whether a High Priest is a different kind of priest. A question. For example, if a High Priest marries a divorced woman, how many prohibitions has he violated? Has he violated the prohibition of a High Priest marrying a divorced woman and also that of an ordinary priest marrying a divorced woman? Or not? Perhaps the prohibition on a High Priest marrying a divorced woman exists only because he is a regular priest — like every regular priest, he too is forbidden to marry a divorced woman. A widow is forbidden only to a High Priest, but a divorced woman is forbidden even to an ordinary priest. What does that mean? That her being forbidden to a High Priest too is just because he is a priest; it’s not a special prohibition of “High Priest and divorced woman,” it’s because he is a priest. A widow is a prohibition on a High Priest. Okay? So when you marry a divorced woman, you have not violated two prohibitions, only one, if it’s a two-tier structure. But if this is a structure where the new tier replaces the old one — where a High Priest is something different from an ordinary priest — then you violated the prohibition of a High Priest marrying a divorced woman, not that of an ordinary priest marrying a divorced woman. The question is whether such a prohibition exists at all. Okay? Or there is the Talmud in Bava Kamma: the Talmud says that a non-habitual ox pays half damages from its body, while a habitual ox pays full damages from the best of the owner’s property, meaning cash, not from its body, okay? What happens if the ox was non-habitual, and after the third goring it became habitual — now it has to pay full damages. The question is whether the first half is paid from its body, because that is the side of non-habituality still in it, and then an additional half is added, which it pays from the best of the owner’s property — that is the side of habituality in it. About that the Talmud says: the side of non-habituality remains in place. Even once you become habitual, the tier of non-habituality is still there; only the tier of habituality is added on top of it. So when you have to pay full damages, in fact only half you pay as a non-habitual ox, and another half that was added as a habitual ox. So the half of the non-habitual ox you pay from its body, not from the owner’s property. That’s the practical implication. By contrast, if you understand that a habitual ox is a new obligation — not a second tier on top of the non-habitual ox but a new obligation — then it pays everything from the owner’s property. It doesn’t pay half from its body, because it is no longer non-habitual; it has finished with that. Okay?

So what we’re basically saying in this terminology is that Israel is some kind of layered composition of something extra together with a Noahide. Meaning, on top of the Noahide there is something more, but they do not merge and create a new entity. Rather, there is the first tier, like every Noahide, and on top of it a second tier. It’s like the two ingredients in layered composition, okay?

Now Maimonides really — the Maimonides we read above — says: “Even though all these are a tradition from Moses our teacher, and reason inclines toward them.” What does “reason inclines toward them” mean? These are rational commandments, right? Maimonides understands that the commandments commanded to the descendants of Noah are rational commandments, and that Israel was commanded in commandments that are, let’s call them, cultic — I don’t know — not moral, not rational, not intellectual, but aimed at achieving religious values, in my language. Yes, the descendants of Noah basically aim only to achieve moral values, while Israel has also the aim of achieving religious values. Therefore what Maimonides says here — he says two things, but they’re connected. On the one hand he says that the commandments of the descendants of Noah are things reason inclines toward, and then he says that Israel is a second tier on top of the tier of the Noahide. These two innovations are two sides of the same coin. Since these are things reason inclines toward, it cannot be that Israel would not be obligated in them. What are you going to say — that Israel is a new creature and is not obligated in the obligations of the Noahide, only in what it was commanded separately? No, because things that reason inclines toward obligate every rational being. If Israel is rational like every other person, then of course these obligations apply to it too, and besides them it also has the religious obligations. Therefore the fact that reason inclines toward them is connected to the two-tier model. These two innovations of Maimonides are two sides of the same coin.

Here’s an illustration of the implication. The Talmud in Sanhedrin 59a: “למה לי למכתב לבני נח ולמה לי למשני בסיני” — this is speaking about a limb from a living animal, yes? “Why did Scripture need to write it for the descendants of Noah, and why did it need to repeat it at Sinai?” If it was already said to the descendants of Noah, why command it again at Sinai? The Talmud says: as Rabbi Yosei son of Rabbi Hanina said: every commandment that was stated to the descendants of Noah and repeated at Sinai was stated for both these and those. If it was stated to the descendants of Noah and not repeated at Sinai, it was said to Israel and not to the descendants of Noah. “And we have only the sciatic nerve according to Rabbi Yehudah.” What does that mean? So the Talmud says like this: if there is a commandment stated to the descendants of Noah, then the Talmud asks, why repeat it at Sinai? What’s the idea? So the Talmud says: it’s repeated at Sinai in order to say that not only the descendants of Noah were commanded in it, but Israel was also commanded in it. Okay? But what about a commandment that was stated only to the descendants of Noah and not repeated at Sinai? That’s it — you might think that’s only for non-Jews, right? The Talmud says no, that is only for Jews. Why is it only for Jews? Because apparently when that commandment was given to the descendants of Noah, it was already aimed at achieving religious goals. And after Sinai there was a split: the role of achieving the religious goals was given to the people of Israel. The descendants of Noah remained with the universal, moral role — to create an orderly and moral society, that’s all. Therefore, if it was stated there and not repeated at Sinai, that means there are not two aspects here. It was probably only a religious matter, and therefore it was said only to Israel. And the only example we have of this is the sciatic nerve, and even that is only according to Rabbi Yehudah, not according to the Rabbis. That is the dispute of Rabbi Yehudah and the Rabbis that we saw in the Mishnah in Hullin.

So the Talmud continues: the Master said, every commandment stated to the descendants of Noah and repeated at Sinai was stated for both these and those. On the contrary, asks the Talmud: since it was repeated at Sinai, let us say it was said to Israel and not to the descendants of Noah. Okay? After all, it was said before Sinai and then repeated at Sinai. So the Talmud understands that the repetition at Sinai comes to say that from now on it applies only to Jews. Because if it obligates everyone, it would not have been necessary to repeat it at Sinai. It would have been enough with the command before Sinai, and it would be obvious that we are obligated in everything a Noahide is obligated in, right? If it was repeated after Sinai, then they are saying it is only Israel. Okay? The Talmud answers: since idolatry was taught at Sinai and yet we find that a non-Jew is punished for it, this implies it was said for both these and those. The Talmud continues: a commandment stated to the descendants of Noah and not repeated at Sinai was said to Israel and not to the descendants of Noah. On the contrary, since it was not repeated at Sinai, let us say it was said to the descendants of Noah and not to Israel. So the Talmud says: “ליכא מידעם דלישראל שרי ולנוכרי אסור” — “There is nothing permitted to a Jew and forbidden to a non-Jew.” That’s the key statement for our purposes. What does that mean? There cannot be something forbidden to a Noahide but permitted to a Jew. Why? Right? This is exactly the two-tier model. Because if Israel is something else entirely, then there is no necessity, right? The non-Jew is obligated in this and the Jew in that — what connection is there between them? If you tell me there is no such thing, that it cannot be that a Noahide would be more restricted than a Jew, that there is no situation where something obligates only the descendants of Noah and not Israel — then again, that’s a very clear expression of this two-tier structure.

And Rabbi Kook in Etz Hadar writes that he disqualifies a grafted citron. Why? Because a transgression was committed through it. Yes, it’s a forbidden mixture. A grafted citron is a forbidden mixture. So he disqualifies a grafted citron because a transgression was committed through it. And the Levush explains that grafting is also something the descendants of Noah are commanded in. And since the descendants of Noah are also commanded in grafting, then wait — therefore even a grafted citron grown by a non-Jew had a transgression committed through it. It doesn’t matter that a non-Jew grew it, because grafting is forbidden even to the descendants of Noah.

And within his discussion Rabbi Kook explains that the laws applying to non-Jews are determined according to nature, whereas the laws applying to Jews are determined according to law. Then he says, for example, the Talmud in Hullin says that a limb from a living animal is forbidden to a Noahide even if the animal is twitching in its death throes. There is still a prohibition of limb from a living animal. You may not take a limb from a living animal. What if the animal is already on the verge of death but is still twitching? For a Noahide it is still called a limb from a living animal. But for Israel — let’s say once the animal was slaughtered properly, even if it is still twitching, it is no longer considered a limb from a living animal, and you may eat it. What’s the difference? So he says that for Israel what determines it is the halakhic act of slaughter. If a halakhic act of slaughter was performed, then from our halakhic standpoint the animal is dead. So what if it’s twitching? That’s only biology. We’re interested in spiritual matters, not biology. So from our point of view, once it underwent the act of slaughter, it is basically dead, and therefore its limb is not a limb from a living animal. Among non-Jews, the fact that you performed an act of slaughter has no halakhic significance; you have to kill it biologically. Meaning, for them the laws are determined by nature, not by halakhic norms. And what does that mean in relation to the two-tier model? Wait, I’m getting there — that’s why I’m bringing it.

Another thing: we also see that Noahide lineage follows the mother, while Israelite lineage follows the father. Not for determining whether he is Jewish or non-Jewish — there it’s the mother — but to determine whether he is a priest, a Levite, a regular Israelite, and so on, that goes by the father. Why? So he says because fatherhood is determined by presumption — the majority of sexual relations are with the husband. You don’t really know who the father is. You have a presumption that the majority of relations are with the husband. The mother is a biological fact; the mother who gave birth to you is your mother. So non-Jews go by the biological fact, and that’s why what determines lineage for them is the mother. But Jews go by halakhic determination, and halakhically what determines your lineage is your father. Since your father is your father by halakhic determination and not because of biology as such — it’s of course also biological fatherhood, but the determination that he is your father is halakhic, because biology is not fully clear to us. We cannot know who the father is. We certainly can know who the mother is; we see from whom he was born. Therefore fatherhood determines status among Jews and motherhood among non-Jews, and that too is an expression of the fact that there it follows nature and here it follows Jewish law.

He brings another example from legal measures. Measures, barriers, and partitions are a law to Moses from Sinai, and our legal measures are fixed by a law to Moses from Sinai. Therefore among non-Jews there are no such measures. Even in areas where this is relevant to them, there is no concept of a legal measure. For example, if you ate a limb from a living animal, do you need to eat an olive’s bulk? No, they don’t have an olive’s-bulk measure. Even the tiniest amount perhaps — in other words, there is no olive’s-bulk measure. Another example is the age of majority. The Hatam Sofer brings in the name of the Rosh that among Israel, age thirteen or two pubic hairs is what determines majority, but for a Noahide he is considered an adult from the moment he understands. Understands — age six, seven, I don’t know, whenever he reaches understanding — then he is an adult. There is no formal measure of adulthood for the descendants of Noah, neither age thirteen nor two hairs. Why not? Because the measure of adulthood is a halakhic determination, a law to Moses from Sinai. Two hairs, age thirteen — whatever it is — but it’s a formal halakhic determination by a law to Moses from Sinai, even though your understanding might in fact arrive earlier, or maybe only later, depending on each person’s pace of development. But that’s irrelevant; those are the facts. Facts do not determine things for us; for us what determines things is halakhic norms. For non-Jews, what determines things is the facts. If he understands, then he’s an adult; if he doesn’t understand, he’s a minor. There are no formal determinations stating when he is considered an adult. Okay, so all these things point to the fact that for a Noahide things follow reality, while for Israel they follow the halakhic measure.

Now what do these things really mean? That in these points there are cases — take, for example, the case of the twitching animal. In the case of the twitching animal, it turns out there is something forbidden to a Noahide but permitted to a Jew. A limb from a twitching animal, if it was properly slaughtered — if not properly slaughtered, then it is forbidden to a Jew as well — but if it was properly slaughtered, then for a Jew it is permitted; it is no longer a limb from a living animal. Right? But for a Noahide it is forbidden, because it is a limb from a living animal. How does that fit with the Talmud in Sanhedrin, which says there is nothing forbidden to a Noahide and permitted to a Jew? There cannot be something forbidden to a Noahide and permitted to a Jew. And here we see that there is: the twitching animal. Or if you prefer, the prohibitions forbidden to a Noahide apply already from age seven — from the age of understanding. A seven-year-old Jew still has everything permitted to him. So there are things that are in fact more stringent for a Noahide than for a Jew — that’s what you asked before. How does that fit with the two-tier model?

It seems to me that what this really means is that once the second tier was added, it can also affect the first tier. It may be that once the second tier was added, something changed in the person, and now that it changed, there can be effects even on the first tier. Okay? Fundamentally the first tier still exists in you too, but it’s not that there is total separation between the two tiers. In the end you are a two-tier structure, and being such a structure can also have an effect. Here, you have already received Jewish law. Once you received Jewish law, what now determines things for you is the halakhic standard. So the prohibitions of the Noahide are forbidden to you too, but the determination of when it is forbidden or by what standard we determine whether it is forbidden or not can depend on your unique nature. For you it will be determined according to Jewish law; for the Noahide, according to facts. Okay? So the second tier can affect the first tier, while still, fundamentally, there cannot be something forbidden to a Noahide and permitted to a Jew.

And as you can see, the Ramchal too writes in Derekh Hashem: “אולם במעשיהם של ישראל תלה האדון ברוך הוא תיקון כל הבריאה ועילויה” (“However, the Master, blessed be He, tied the repair and elevation of all creation to the deeds of Israel”). The repair and elevation of all creation, as we mentioned, and He made His governance, so to speak, dependent on their actions — to illuminate and influence, or to hide and withdraw, God forbid, according to their deeds. Meaning, our deeds determine to what extent the Holy One, blessed be He, will illuminate and influence, or conceal Himself. Or in other words, we are responsible for the repair and elevation of creation — in my language, religious values. Okay? By contrast, “אך מעשה האומות לא יוסיפו ולא יגרעו במציאות הבריאה ובגילויו יתברך שמו או בהסתרו, אבל ימשיכו לעצמם תועלת או הפסד” (“But the deeds of the nations do not add or detract from the reality of creation or from the revelation of His blessed Name or His concealment, but only draw benefit or loss upon themselves”), whether in body or soul, and they strengthen or weaken their own physical nature. In other words, they repair themselves or society — and that is the role of the descendants of Noah. Meaning, the first tier is the tier responsible for social repair, while the second tier is religious repair.

Now one could say, for example, that when you eat from a twitching animal, that’s not good — there’s a problem there, I don’t know what exactly, maybe you are eating a limb from a living animal; perhaps that expresses cruelty, I don’t know exactly. Therefore you may not eat a limb from a living animal. You need to slaughter and only afterward eat. The descendants of Noah do not need to slaughter, but they do need to kill the animal, and then eat. This exists among Israel too, because there is nothing forbidden to a Noahide and permitted to a Jew. Among Israel too this exists. But among Israel, once you slaughtered it, it is considered killed. So the problem of eating something not killed no longer exists. Ah, biologically it is still twitching? True. But it underwent an act of slaughter, and in the Jewish halakhic conceptual system it is considered dead. So what if you see it twitching? That’s only biology. Basically it is considered dead. Therefore even that value, which obligates us just as it obligates non-Jews, can undergo a change, so that for us the twitching animal will be permitted. Okay?

Look, for example, at Rav Nissim Gaon: all the commandments that depend on reason and inner understanding — understanding of the heart — everyone has already been obligated in them from the day God created man upon the earth, him and his descendants after him for all generations, and so on. And the commandments known by tradition apply only to one who received the command. What is he trying to say? There are seven Noahide commandments. But from the Talmud in Sanhedrin, and in all sorts of places, you see there are many other commandments too. There are disputes about it, but there are many opinions that there are something like thirty commandments, not seven. So Rav Nissim Gaon asks: then why do we always say there are seven Noahide commandments? He answers: because all the commandments that emerge from reason and from understanding of the heart — everyone is obligated in them even without a command. The seven Noahide commandments are the ones that were commanded. Not the ones they are obligated in. The ones they were commanded in are seven Noahide commandments. The ones they are actually obligated in are many more. Because there are additional things that reason says we are obligated in, so there too, even without a command, we are obligated — and non-Jews likewise. We see that among non-Jews the commandments are basically commandments grounded in reason, just as “reason inclines toward them,” as Maimonides writes. And among us there are halakhic commandments, matters connected to the world — to religious values, to the spiritual world, not to the physical-human world within which we operate.

Now here Maimonides in the Laws of Kings writes as follows: if two non-Jews come before you to be judged by the laws of Israel, and both want to be judged by Torah law, then judge them. If one wants and the other does not want, you do not compel him to be judged except by their own laws, because that is their law. Of course Maimonides’ assumption is that the law of non-Jews and the law of Jews are not the same law. Nachmanides, for example, doesn’t accept that. After all, non-Jews have the commandment of courts, which is one of the seven Noahide commandments. Right? What is the commandment of courts? Maimonides understands it to mean that they must establish for themselves a legal system. It doesn’t matter which one. The main thing is that there be justice, order, a properly functioning society. You have to establish a legal system for yourselves. Nachmanides argues no: all of Hoshen Mishpat, our entire civil legal system, obligates non-Jews under the heading of courts. That is what the commandment of courts means. And that’s a huge number of commandments under that heading. But Maimonides’ position is no, they establish for themselves some legal system according to their own understanding, and that’s it, that’s fine. They don’t need our Hoshen Mishpat.

Now what happens when two non-Jews come before a Jewish court to litigate? According to which legal system do you judge them? If both want Torah law, then judge them by Torah law. That’s what they want. But if one of them doesn’t want, then you judge them by their own laws. Fine. That’s two non-Jews. What if a Jew and a non-Jew come? If the Jew has an advantage under their laws, we judge him by their laws and say to him, “Such is your law.” And if the Jew has an advantage under our laws, we judge him by Torah law and say to him, “Such is our law.” In short, they take the non-Jew to the cleaners from every possible direction, and then we still wonder why there is antisemitism. Meaning, if the non-Jewish law leads to the Jew winning, then you judge by non-Jewish law. If Jewish law leads to the non-Jew winning, then you judge by Jewish law. In short, they make sure the Jew wins in every possible case. Unless both systems say the non-Jew is right, and then…

[Speaker G] If the Jew wins, then they judge…

[Rabbi Michael Abraham] They always judge according to whichever system makes the Jew win. That’s the principle.

Now in the Talmud itself, where this is brought — Bava Kamma 113 and Bava Kamma 38 — there it says that this is only because the non-Jews no longer keep the seven Noahide commandments, and therefore their property was permitted. Meaning, this isn’t really the basic legal relationship toward non-Jews. It’s only because they became corrupted. So for example today, let’s say non-Jews are generally decent enough, more or less — some more, some less — but it’s not as though there is some dramatic difference between them and Jews. In such a situation this whole law is no longer correct. Therefore Maimonides says, for example, “ויראה לי” (“and it appears to me”), as you see at the end of the law, that we do not do this to a resident alien, but rather we always judge him by his own laws. So with a resident alien, you don’t take him to the cleaners from every angle. But the question still remains: then what do you do? Why always judge him by his laws — a resident alien and a Jew? So you don’t abuse the resident alien. Fine. But then what do you do? You need to establish a uniform standard, regardless of who wins. What is the standard? I would have said: why not Jewish law? One of the litigants is a Jew, right? So why do you prefer the law of the non-Jew? “We always judge him by their laws” — theirs. Why?

[Speaker E] But—

[Rabbi Michael Abraham] The Jew isn’t obligated in that law. What difference does it make?

[Speaker E] Who said he isn’t?

[Rabbi Michael Abraham] What do you mean? This is their law and this is our law. These two come before you — this is what is called private international law. In law school you have international law — conflicts between states — and private international law, meaning disputes between private individuals where one is a citizen of Italy and one is a citizen of Austria, with different legal systems. Now how do you judge them? You have a dispute between two people, each subject to a different legal system. What do you do in that situation? Okay? That’s the question of private international law. So Maimonides says here that if it is between a Jew and a non-Jew, you judge him according to their laws. Why? Very simple answer — someone here explains it. Because Rabbi Shlomo Fisher explains. Rabbi Shlomo Fisher explains that the system of the non-Jews is a system that is also relevant to us; we too are obligated in it. It is the system of justice and integrity, the first tier. For us an additional second tier was added, but the first tier is common to both of us. So if you want the common denominator between the two litigants, then of course you should judge him according to their laws. Someone who is not a resident alien, just an ordinary non-Jew — then they just abuse him. There is no rational, sensible explanation behind that policy. But where there is a resident alien, you truly judge according to what should be judged. So why determine that what should be judged is specifically their law? Not just as a device to harm him, okay? The answer is that their law is in fact relevant both to the Jew and to the non-Jew, because the first tier is also the Jew’s first tier, not only the non-Jew’s.

Now we discussed the Derashot HaRan — I think in the previous lecture, or maybe the one before, I don’t remember — and there he speaks about the king’s justice, if you remember. He says that the legal systems of non-Jews have an advantage over ours in the moral sphere. A non-Jewish legal system is more moral than Jewish law. And we saw this in the Maharal too. The Maharal and Derashot HaRan. Why? Because they are obligated only in moral values. We are obligated both in moral values and in religious values, and naturally one comes at the expense of the other. We talked about that mathematical statement that a non-kosher restaurant is always tastier than a kosher restaurant, right? Because if there is food that tastes better in the kosher restaurant, then the non-kosher one will serve it too. But if the non-kosher food is tastier, the kosher restaurant cannot serve it. Someone committed to more values will usually realize each of them less perfectly. Sometimes one comes at the expense of the other. A washing machine that is both dryer and washer usually dries less well and washes less well than a machine that does only one thing. As the Talmud says, nothing defeated me except a person of one craft. Someone who has several trades is probably not a true professional in each one. Okay? So in our context too, Derashot HaRan says: when you are obligated both in the moral system and in the religious system, naturally you will be less good in each of those fields than someone obligated only in that one field. Okay? Therefore a non-Jewish legal system is more moral — or at least no less moral — than the Jewish legal system. And that statement is exactly what we talked about today. Because it basically means they have only the first tier, while we also have the second tier, and sometimes the second tier will interfere with the perfect realization of the first tier because we also have the second tier. That is exactly the meaning of the two-tier model.

Now let’s see some implications of this. For example, let’s talk about the obligations of minors. So the Talmud in Sanhedrin says there is a law that if an animal had sexual relations with a person, then the animal is killed. Right? If it had relations with a Jewish woman, or was used by a Jewish man, then the animal is killed. Fine? Okay, if a person sinned, what did the animal do wrong? Why do you kill the animal? Rather, because a stumbling block came to a person through it, therefore Scripture says it shall be stoned. Because a stumbling block came to a person through it — it caused some sort of failure — it bears some contributory responsibility, I don’t know what else to call it, in creating that failure, and therefore it is killed. A bit like “you shall remove the evil from your midst.” Another explanation: so that the animal should not pass through the market and people say, this is the one because of whom so-and-so was stoned. Right? The animal walks through the market and people remember: this is the animal so-and-so had relations with. Okay? So therefore we kill it so that it won’t pass through the market and remind us of unpleasant things. So these are the two reasons — what they call stumbling block and disgrace. One view says the animal is killed because of the stumbling block, in that it caused a person to fail through it. The second says it is because of disgrace — people say so-and-so was stoned because of it. Okay? Rashi explains what “stumbling block” means: a stumbling block of sin. Yes, it basically caused a person to sin. That is called a stumbling block, okay?

Now look at the continuation of the passage. Rav Hamnuna asked: if an Israelite had relations with the animal unintentionally, what is the law? Do we require both stumbling block and disgrace, and here there is disgrace but no stumbling block? He did it unintentionally, so there is no stumbling block; stumbling block is only a deliberate sin. Fine? So here it was unintentional, so there is no stumbling block. There is disgrace, because the animal can still walk in the street and people say this is the one so-and-so used. So that is the practical difference between whether it is because of stumbling block or because of disgrace. Rav Yosef said: come and hear — a girl of three years and one day can be betrothed through intercourse, and if a levir had intercourse with her, he has acquired her, and one is liable on her account for adultery, and she renders her paramour impure like upper and lower lying, and if she married a priest she may eat terumah; if one of those disqualified from priesthood had intercourse with her, he disqualifies her from the priesthood; if one of all the forbidden relations in the Torah had intercourse with her, they are executed because of her, while she is exempt. One of all the forbidden relations — even an animal. So even if an animal had relations with a girl of three years and one day, the animal is stoned. The Talmud asks: and here there is disgrace but no stumbling block — and yet it teaches they are executed because of her. After all, there is no stumbling block because she did not commit a sin; she is a minor, like someone acting unintentionally, right? The Talmud answers: since she acted deliberately, there is also a stumbling block, and it is only that the Merciful One had pity on her. On her He had pity, but on the animal He did not have pity. What does that mean? Even with a minor, if she did it deliberately, that counts as a stumbling block. And it is not like an adult who does it unintentionally. Rather, since her mind is not fully developed, the Torah spared her and therefore does not punish her — but it spared her; the animal is still killed.

[Speaker G] The animal’s mind isn’t fully developed either.

[Rabbi Michael Abraham] Right, but killing the animal is not a punishment for a sin the animal committed. It’s the removal of something that caused a person to sin. So it doesn’t matter what the animal’s state of mind was. As for the person, you ask whether he committed a sin. Right? If he did not commit a sin, then the animal did not cause a person to sin. But as for the animal, I don’t care whether the animal is criminally responsible; it’s not being killed because it is a criminal. So it doesn’t matter that it lacks understanding. What difference does that make? It isn’t being punished because it committed a sin. It is being removed because of “you shall remove the evil from your midst,” as though it caused some sort of wrongdoing. It’s probably an educational act of some kind. Something that caused a sin is being denounced so strongly educationally that I even destroy whatever caused the sin. Okay, so what is written here? That when an animal had relations with a minor girl, that counts as a stumbling block. Then the Talmud also says the same thing about a boy of nine years and one day. In the case of a boy it’s not age three but age nine — same thing, there too there is a stumbling block. So what do we see? That a minor boy or girl who commits a transgression deliberately counts as committing a transgression. Right? Therefore they kill the animal not only because of disgrace but also because of stumbling block, because it caused a stumbling block through it, even though they are minors. “There’s no sin here” — no, says the Talmud, minors acting deliberately is more of a sin than an adult acting unintentionally. An adult acting unintentionally is not a sin, not a stumbling block. And minors acting deliberately are a stumbling block — the Torah just had pity on them. That’s one side.

On the other hand, tractate Yevamot talks about the rule that one prohibition does not take effect on top of another, and it says this: there are examples of two prohibitions under the rule “a prohibition does not take effect on top of another.” There are three rules — actually three exceptions. In general, one prohibition does not take effect on top of another. Meaning, if something is already forbidden, an additional prohibition will not take effect on that same thing. One prohibition does not take effect on top of another. But there are three exceptions. One exception is a more inclusive prohibition. What does that mean? That the second prohibition includes additional things beyond the first prohibition. For example, if the first prohibition is only a prohibition of eating, and the second is both a prohibition of eating and a prohibition of deriving benefit, then the second includes more. Right? Therefore it can take effect. The second exception is an adding prohibition, where extra things become forbidden by virtue of the second prohibition. And the third exception is if they come simultaneously, not one after the other. One prohibition does not take effect on top of another when they come sequentially. But if they come at once, both take effect. The Talmud asks: how can that happen simultaneously? And here, what simultaneous prohibition is there? The Talmud answers: a non-priest who served in the Temple on the Sabbath, for example, where he grew two hairs on the Sabbath, so that his status as a non-priest and the Sabbath obligation came together. Right? A non-priest, meaning someone who is not a priest. He served in the Temple on the Sabbath, okay? So basically he committed two transgressions. One is a non-priest serving — only a priest may serve. The second is desecrating the Sabbath — say he slaughtered an animal. So he desecrated the Sabbath and also served as a non-priest. Now in principle the prohibition of being a non-priest was there before the Sabbath prohibition, because he was a non-priest already on Friday. The Sabbath prohibition takes effect from the moment the Sabbath enters. So in principle the Sabbath prohibition should not take effect, only the non-priest prohibition, because one prohibition does not take effect on another. But the Talmud says here it counts as simultaneous. Why? Because when he grew two hairs on the Sabbath, the prohibition of non-priestly service and the prohibition of the Sabbath both took effect on him at that very same moment — the moment he grew the two hairs. Clear? So the Talmud says those two prohibitions came simultaneously, and therefore they both take effect. It is not true that the Sabbath prohibition doesn’t take effect. The Sabbath prohibition also takes effect, because both took effect at the exact same moment.

So several later authorities ask: what do we see from here? That before he grew the two hairs, the Sabbath prohibition and the prohibition of non-priestly service did not take effect on him, right? Meaning, a minor who commits a transgression — that’s not a transgression, that’s not a stumbling block. And that contradicts the passage about stumbling block and disgrace. In the passage about stumbling block and disgrace, we saw that even a minor’s transgression is a transgression. Right? No, say some later authorities — for example I brought the Helkat Yoav here, but several later authorities say the same thing — they say there is a difference between the prohibition of Sabbath and the prohibition of bestiality. Or non-priestly service and Sabbath, versus bestiality. Why? Because the prohibition of bestiality also exists among non-Jews. The prohibitions of non-priestly service and Sabbath exist only among Jews. So what? So some later authorities want to say: there is nothing forbidden to a Jew and permitted to a Noahide. Right, we saw that. There cannot be a situation where something is forbidden to a Noahide and permitted to a Jew. So what happens with prohibitions in which the descendants of Noah are obligated? הרי they are already obligated from age seven, right? From the age they understand. What happens if there is a seven-year-old Jewish minor? Is he also obligated in prohibitions that bind the descendants of Noah? Some later authorities say yes, because there cannot be something forbidden to a Noahide and permitted to a Jew. So it turns out that in prohibitions imposed on the descendants of Noah, a Jew becomes obligated from the moment he understands; he doesn’t need to reach two hairs or age thirteen. Because from the moment he understands he is obligated in them on the side of the Noahide within him. Right? Because every Jew, as we said, is first of all also a small Noahide, and only on top of that does he have another tier. So the specifically Jewish aspect of him enters the category of obligation only once he grows two hairs.

What? I didn’t understand.

[Speaker E] What exactly counts as understanding?

[Rabbi Michael Abraham] Doesn’t matter. We assess when he is considered to understand enough. The court determined that he understands enough. It doesn’t matter how you determine it, but there is such a determination. Fine? That’s how they determine from when a Noahide is obligated in commandments — from when we assess that he understands. Make the same assessment for a Jew. Fine? He says that because there is this logical rule that it cannot be that a Noahide is more strictly bound than a Jew, therefore all the commandments of the descendants of Noah bind the Jew already from the time he understands them, not from age thirteen or two hairs. And bestiality is such a commandment. Therefore, in Sanhedrin, when the Talmud says that even where an animal had relations with a minor, or was used by a minor — sorry — there too it counts as a transgression. Why? Because in prohibitions of that type even a minor is obligated.

Okay? But — by the way there is a difference between a minor girl and a minor boy. The girl is age three, but a minor girl who was used by an animal doesn’t need to understand anything; she is passive ground, as it were. She doesn’t perform the act of transgression. Okay, never mind, that’s just a side note. But for our purposes, this is basically what they are claiming. Because everything that obligates a non-Jew also obligates a Jew, right? Therefore in commandments that belong to the Noahide, clearly the Jew is obligated from the time he understands, not from two hairs. By contrast, forbidden relations and Sabbath are prohibitions that apply only to a Jew and not to a non-Jew. So from when is the Jew obligated in them? From when he grows two hairs or from age thirteen, right? But bestiality, which is a prohibition that also exists among the descendants of Noah, there he is obligated even earlier. That’s why the Talmud in Yevamot says that a minor is not subject to commandments or transgressions, whereas the Talmud in Sanhedrin says that he is — they are simply talking about different kinds of transgressions.

And the formalistic formulation is: there is nothing forbidden to a Noahide and permitted to a Jew. The more essential formulation basically says: the two-tier model. Meaning, this isn’t some formal technical business, as though the commandments of the descendants of Noah are simply legally imported into Jewish commandments. It’s more than that. The point is: whatever a Noahide is obligated in — why is he obligated in it? Because it is something reason inclines toward, as Maimonides says, right? Reason says so. And if reason says so, then obviously it obligates a Jew too. From when does it obligate him? From when he understands the reason. Because commandments grounded in reason do not obligate you from two hairs; they obligate you from the moment you understand the reason. Since what obligates you here is reason, not command. The command was said from age thirteen and up. But if something obligates because of reason and not because of command, then who is obligated in it? Whoever understands the reason. Therefore even a minor will be obligated in it. This is not a formalistic pilpul that the Jew is like a non-Jew and therefore whatever applies to the non-Jew… No. There is reasoning behind it; there is a logical explanation. As we say: why invoke a verse? Reason itself says it. Anything that is logical — about anything logical, as Derashot HaRan said, as Rav Nissim Gaon said — anything that depends on understanding of the heart, everyone is obligated in it, whether he was explicitly commanded or not; it really makes no difference.

[Speaker E] A Jew who already has two hairs but still doesn’t understand — is he obligated?

[Rabbi Michael Abraham] He will be obligated from the Jewish side within him, but as a non-Jew he would still be exempt because he doesn’t understand. Fine? Okay.

[Speaker E] But for us the interesting case is the opposite.

[Rabbi Michael Abraham] Meaning, are there commandments in which the non-Jew is obligated and the Jew exempt? No, there cannot be such commandments. So that means that if the commandments of the non-Jew begin at age seven, eight, nine, something like that, then among Jews too they will begin at seven, eight, nine. And that applies only to the commandments of the non-Jews. Why? Because we saw that the commandments of the non-Jews are commandments toward which reason inclines — commandments based on reasoning. Commandments based on reasoning obligate whom? Anyone who understands the reasoning. Non-Jew, Jew, minor, adult — it doesn’t matter. There are no formal rules here. Formal rules exist only in commandments based on command. Then I ask: to whom was the command said? To the Jew? To the non-Jew? To the adult? To the minor? You have to discuss to whom the command was directed. But commandments based on reason obligate everyone who understands the reason. It doesn’t matter whether he is a non-Jew or a Jew, a minor or an adult. So this isn’t just some formal issue. There is an explanation behind it, a logical explanation. “Why invoke a verse? Reason itself says it.” Everything that obligates through reason obviously obligates anyone who understands the reason. So here is an expression of this two-tier model: everything the non-Jew is obligated in belongs to the universal tier, to the rational things. And if they are rational things, then every person is obligated in them even if he was not formally commanded, because if it is logical and you understand it, then you are obligated in it. So on the second tier, the Jews who are on the second tier are obligated in it from the first tier in the matter — from reason. And that will obligate them even at age seven or eight. Clear? Because it is an obligation from the first tier, not from the second tier.

Fine, let’s stop here.

[Speaker H] So the first tier is what we call morality?

[Rabbi Michael Abraham] Right. Universal things — mainly morality.