Class Notes - Class #8

We will continue our reading of the mitzvah/essays on the aseres hadibros. 

 

Mitzvot # 31 and 32 concern Shabbat. 

            Mitzvah # 31 is grounded in the verse “Remember the day of Shabbat to keep it holy.”  The rabbis interpret this as a mitzvah requiring one to recognize the opening and closing of Shabbat with words.  That helps emphasize for us the special nature of the day.  Not only is the day exalted, but it is another reminder of God as creator of the universe, a theme which we have seen before. We reinforce the content of our words by reciting them over wine, something that always seems special.  Hence, we get Kiddush on Friday night and havdalah at the end of Shabbat.  Our author does not mention Kiddush on Shabbat morning in this essay. 

            Our author provides quite a few details of how this mitzvah works.  Some of those details are in question form, so we have reminders of the things one needs to be aware of when making Kiddush or havdalah.  He does not give the text of either Kiddush or havdalah, since they would already be familiar.  Many of the details concern wine.

            The author mentions diluted wine, and says that the wine needed for this mitzvah can be either full strength, “hai,” or diluted.  One may dilute the wine by adding as much as three parts of water to one part wine.

            We also have another shiur introduced here.  The minimum amount of wine that needs to be in the Kiddush cup is a quarter of a “log.”  The Encyclopedia Judaica says a log is about 0.3 liters, or about 5 oz.; the translator also cites a substantially smaller opinion, about 3 oz.  That is to say, we need enough wine to enhance the recitation and make it seem special, so we need an amount that seems significant. The author does not say how much of that wine one needs to drink.

            Since the point of reciting Kiddush and havdalah over wine is to help make the statements stirring and important, the rabbis consider what happens if someone isn’t particularly fond of wine.  The answer is different for Kiddush than for havdalah.  As for Kiddush, someone who prefers bread to wine should make Kiddush over the bread rather than over the wine.  The standard is subjective; whichever moves that particular person more is what that person should do.  But for havdalah, the rabbis require wine, even for someone who prefers bread.  The standard is objective; here, we do what most people would prefer, not what the individual would prefer.  Most people would prefer wine to bread at the end of Shabbat because they had a big lunch and are still full.

            Our author mentions that this mitzvah applies to both men and women, even though it is a positive mitzvah that is time limited.  That is a roundabout way of mentioning the principle that women are exempt from “mitzvot asseh shehazman grama,” positive time-bound mitzvot.  (Do not take that principle too far; more mitzvot are exceptions to that rule than are governed by it.)  He does not say why this is an exception.  In general, however, where positive mitzvot and negative mitzvot are intimately bound up together, women are required to fulfill both the positive and negative mitzvot.  As to Shabbat, where the prohibitions we will see in the next mitzvah/essay are intimately bound up with this positive mitzvah of Kiddush and havdalah, the entire package applies to women as well as men.

 

Mitzvah #32 prohibits “melachah,” work, on Shabbat.  The shoresh hamitzvah relates Shabbat to the system of axioms of Jewish thought that our author has been developing in his discussion of Passover and the earlier mitzvot in the aseres hadibros.  Shabbat commemorates the conclusion of God’s creation process.  When we observe Shabbat, we affirm our belief in God as the creator, a belief that is a necessary axiom to the rest of Jewish thought.

            The source verse for this mitzvah says, “You shall not do any work: you, your son, your daughter, your manservant, your maidservant, your domestic animals….”  Our author deals with two important questions raised by that verse:  1.  What is melachah, work.  2.  Exactly how does this mitzvah apply to all the characters in the verse’s list.

            The discussion of the definition of melachah appears in the dinei hamitzvah section of the essay.  There are three levels of prohibition: 

            There are 39 categories of melachot, called “avot melachah.”  Our author does not explain what they are.  They are listed in the Mishnah.  The 39 categories are derived from an analysis of what labors needed to be done in order to build the mishkan, the portable Temple the Jews built while wandering in the desert.  For example, reaping is an av melachah, because they needed to grow and harvest plant materials to make dyes. 

            Some of those melachot have derivative prohibitions called “tolados.”  They are prohibited d’oraisa, as are the 39 melachot.        The tolados are similar to the avot melachah, but were not things that needed to be done to build the mishkan.  For example, a toladah of reaping is a prohibition to pick fruit.  The act of picking the fruit is reaping, but there was no need to pick fruit to make the dyes needed for the mishkan.

            Then there are actions prohibited d’rabanan as a protection, lest people come to do the actions prohibited d’oraisa.  When it comes to Shabbat, these prohibitions are called “shvusim.”

            The author does not give details of any of these. This illustrates one of the drawbacks of the organizational structure our author is using: it does not work well where one mitzvah covers a large, complex area of halachah.

He does, however, explain that all of those prohibitions are set aside if someone’s life is in danger.  According to our author, a person’s life is in danger if the person has a fever, or if the person feels that Shabbat needs to be violated because of his or her illness.  (Those many not be the only cases, but they are the ones the author mentions.)  We err on the side of protecting life, and one should be eager to take care of the needs of someone whose life is in danger on Shabbat. Here, our author is echoing the gemara’s instruction that, when teaching about Shabbat restrictions, one should mention the overriding need to protect human life early and often.

 

            Our author’s discussion of the list of people mentioned in the source verse is long and complex.  Let’s take them one at a time:

“You” means an adult Jew, male or female.  Any adult Jew is prohibited from doing melachah on Shabbat.  If the violation was b’mazid, with witnesses and warning, the punishment is “skilah,” death by stoning.  If the violation was b’shogeg, the punishment is a korban hattas. 

“Your son, your daughter” must mean children.  If the son or daughter were an adult, he or she would be included in the “you” earlier in the verse.  Our author does not clarify the exact scope of this prohibition.  Must we prevent children from doing melachah?  Or may we only refrain from asking them to do melachah?  Does the age of the child matter?  The author does not say. If one fails to do so, and does ask a child to do melachah, one is not punishable because one is never punishable for the acts of others and, here, the melachah was actually done by the child.

There are two possible interpretations of the phrase “your manservant and your maidservant.” The phrase might refer to an “eved ivri,” a Hebrew slave, or an “eved c’na’ani,” a non-Jewish slave. (We will get more details of how both of these institutions work later in our study.)  An eved ivri is an indentured servant, a Jew who, for whatever reason, sells his labor in advance for a pre-determined amount of money.  Although his time and labor are previously committed, he is still an adult Jew, so he would be covered by the “you” at the top of the verse’s list.  (We will see the limited institution of a “shifchah,” a female Jewish slave, within the next few classes.)  Therefore, our source verse must be referring to an eved c’na’ani, a non-Jewish slave.  Thus, the Jewish owner is prohibited from requiring an eved c’na’ani from doing melachah on Shabbat.  The author does not say at this point whether the owner must prevent the eved c’na’ani from doing melachah on Shabbat if the eved chooses to do so.

That leaves the final element in the list, the prohibition on melachah of domestic animals.  Here, our author has an extended discussion, but that discussion is not entirely clear. His discussion is based on the Gemara Shabbat 153b-154a.  There, the Gemara discusses the case of someone who drives his animal on Shabbat.  The Gemara does not define what the animal is doing or what the person driving it is doing.  To complicate things even further, the same Gemara passage considers the potential punishment for this action.  It considers punishments ranging from capital punishment to no punishment at all, and does not reach a conclusion.  It’s easy to see there might be disagreement about what this prohibition is.  Our author makes an attempt to explain how both Rambam and Ramban understand things, but, unfortunately, our author isn’t all that clear either.

First, consider plowing.  If, on Shabbat, a person takes a plow and pulls it through the ground in order to make furrows, the person has done the melachah of plowing and is guilty of a potentially capital crime.

Let us say that a person hitches his plow to an animal, so the animal pulls the plow and the person holds and guides the plow.  According to Ramban, this is just another way of doing the melachah of plowing.  According to Rambam, however, this is the prohibition of “bhemtecha,” “your animal.”

Now consider a case where an animal is loaded up with the owner’s stuff and the owner is walking beside the animal.  Thus the animal is carrying the owner’s stuff.  According to Ramban, this is the prime case of “bhemtecha.”  The animal is doing the work; the owner is simply allowing the animal to do it.  Rambam, in the Mishneh Torah, describes a case where the person loads stuff up on his or her animal on Shabbat and then motivates the animal to carry the stuff where the owner wants it to be taken.  That case is not a violation of this mitzvah, “bhemtecha,” because the owner has not actually done any melachah himself, but the owner does violate the positive mitzvah to rest on Shabbat which appears later in Exodus and which also mentions one’s animals resting.  There is no punishment, though, because the only violation here is a violation of a positive commandment.  Distinguish that case from a case where the animal was loaded up prior to Shabbat and the owner motivates the animal to carry the stuff on Shabbat.  According to Rambam, this is outside the scope of both mitzvot.

 

            Whatever the scope of the prohibitions on melachah by children and non-Jewish slaves, our author explains that there is no punishment for violating those prohibitions because one is never punished for the acts of others, only for our own acts.  There is a second reason why violating these two prohibitions is not punishable.  They are part of the same mitzvah as the direct prohibition on doing melachah, and that prohibition is potentially a capital offense.  As our author explains, when a verse serves as a prohibition of some behavior that could be subject to capital punishment, but the violation at hand will not actually lead to capital punishment, there is no punishment of malkos either.

 

Mitzvah #33 is a positive mitzvah of “kavod,” honor, for one’s parents.  We will eventually see a parallel mitzvah of “yirah,” respect/awe for one’s parents, so this mitzvah does not cover the entire topic of one’s obligations to one’s parents.  This mitzvah of kavod involved an obligation of personal care: providing food, clothing, shelter and transportation when the parent needs or wants that.

            In the dinei hamitzvah section, the author lists questions that suggest that the obligations of this mitzvah have some limits.  The child need not pay for the needed items if the parent can afford to pay for them; the mitzvah is to help get the things the parent needs.  If neither parent nor child can afford to pay, the child is required to beg on the parent’s behalf.  Our author does not say what happens if the parent has no money but the child does, or if the parent has money but want the child to provide anyway.  What takes precedence if providing for one’s father’s needs conflict with providing for one’s mother’s needs?  What happens if the parent is willing to do without the help?  (Please, no jokes that end, “Don’t change the light bulb, I’ll sit here in the dark.”)  What happens if the parent’s behavior is so outside the norm of the appropriate that the child is under more emotional pressure that the child can handle?  There is nothing obsolete about the set of concerns involved here.  Folks caring for aging parents face these issues all the time.

            The shorshei hamitzvah section takes what strikes me as a surprising turn. First, our author notes the debt of gratitude we all owe our parents.  Just as they extended themselves to care for us as children, we should extend ourselves to care for them when they need help.  Anything else would be intolerable ingratitude.  This gratitude, which we can all understand in terms of parents and children, can be a model for the gratitude we all owe to God, who provides a world that supplies all of our material needs, who gives us understanding and intelligence.  Thus, we use the easier model of our gratitude to our parents to illuminate the harder job of appreciating the gratitude we owe to God.

            The author continues this theme in the concluding section.  This is a positive mitzvah, so there is no punishment for breaking it, but, our author says, failing to show gratitude to parents is an insult to God as well.

            This is a positive mitzvah, so it applies to men as well as women.  For a married child, this mitzvah can create conflicting obligations.  Our author says that a wife only fulfills this obligation with her husband’s approval.  This formulation probably assumes a patrilocal society where a wife typically lives in the community of her husband’s family.  Under those circumstances it is very hard to the wife to return to her parents to provide personal care without severe disruption to her marriage family. The case of a husband’s helping his parents being a problem for his wife is less likely, as the husband’s parents are, presumably, close by. Of course, where everyone agrees about what ought to be done, there is no problem. We will get more information about the marriage relationship as we go along; it will be easier to think about the implication for more modern times once we have more information.

 

Mitzvah #34 is a requirement not to murder.  This is a capital crime.  In the dinei hamitzvah, the author says this prohibition applies to killing healthy people, ill people, even someone on his deathbed.  He also alerts us that there needs to be a trial before punishment can be inflicted, and that we will learn how that works later.

            The shoresh hamitzvah returns to a theme we saw in the very first mitzvah:  that God wants the world to be settled with people who will build and develop God’s world.  Thus, God prohibits our killing those very people who will carry forth God’s aim.  It’s a very practical approach, focusing on carrying out God’s ultimate plan for humandkind.

            In that context, the author notes that there are people who are “thoroughly wicked,” who do not contribute to the appropriate settlement of the world.  These include “malshinim” and “minim.”  The author does not define either one, but Rambam does.  In Mishneh Torah, Hilchot T’shuvah 3:6, he defines minim, heretics, as someone who: believes one of five things:

  1. Believes that there is no god ruling existence.
  2. Believes that two or more powers rule existence.
  3. Believes that the ruler of existence has a body or form.
  4. Denies that God is the first cause of the existence.
  5. Worships a mediator between people and God.

“Malshinim” is a bit more difficult.  It may be that our author means “mosrim,” informers, since there are circumstances when killing mosrim would be permitted.   Rambam lists two categories in Hilchot T’shuvah 3:12:

  1. One who delivers another Jew to the hands of a non-Jew who will assault or murder the Jew.
  2. One who delivers the property of a Jew to a non-Jew or despot.

            Note carefully that our author identifies these people as not contributing to the development of God’s world, as “weeds in the vineyard,” but he does not actually say that we are permitted to kill these people.

            This is a capital crime, punishable with death by decapitation, assuming witnesses and warning.  If the murder was done b’shogeg, though, an entirely different rubric applies, which we will cover much later in our study.  Again we see our author thinking of his work as a whole, enticing us to stay with the project.

            This mitzvah is incumbent on all people, not just Jews, but our author does not mention that.

 

Mitzvah #35 prohibits adultery, which is defined as a married woman voluntarily having sex with a man other than her husband. 

            The author catalogs a long list of bad consequences from such behavior.  God wanted an orderly world, and this behavior distorts the order.  Each child should be able to know exactly his or her identity.  (Remember that someone always knows who a child’s mother is, but sometimes no one knows who a child’s father is.)  People are not able to keep the mitzvot that depend on knowing who your relatives are, for example the prohibitions against incest.  Adultery is akin to theft of the husband’s right to his wife.  It spawns jealousy that can lead to violence or even murder.

            This mitzvah is incumbent on all people, not just Jews.  There is a difference, though, between Jews and non-Jews as to what constitutes marriage.  For Jews, there are various ceremonies that mark the moment of marriage.  For non-Jews, the marker of a marriage is the couple engaging in sex with the intent to have a marriage. 

            This mitzvah applies to both men and women, that is, both the married woman and the man she has sex with who is not her husband are punishable.  This is a capital offense.  But the exact form of capital punishment depends on the status of the woman.

            There are four forms of capital punishment, “arba’ah misos beis din.” 1. Stoning, “skilah.”  2. Burning, “sreifah.” 3. Decapitation, “hereg.” 4. Strangulation, “henek.”  (We will get more detail shortly, perhaps more detail than we want.)  In order to understand which penalty applies in which case, we also need to know a little more about the marriage ceremony.  There are two parts to the marriage ceremony.  First comes “airusin,” also called “kidushin.”  This consists of the first two blessings we are familiar with, and then the groom giving the bride an item of value.  At that point, the bride and groom married and are subject to all the restrictions of marriage. But they have none of the advantages, that is to say, they are not permitted to have sexual relations.  Second comes “nisuin,” which completes the process.  It consists of the seven blessings at the end of the ceremony we are familiar with, and the opportunity for the bride and groom to be alone together for a significant period of time, which is called “yichud.”  In times past, these two parts of the ceremony would occur about a year apart.  Now, we do both together, and set them apart by reading the ketubah between these two ceremonies.  The “betrothed girl” the translator mentions is a woman who has participated in airusin but has not yet participated in nisuin; she may not have sex with men other than her husband because of the airusin, and she may not have sex with her husband because the nisuin has not yet taken place.

            Now we can sort out the various levels of capital punishment for adultery:

            A daughter of a cohen has participated in airusin but not nisuin.  Someone other than the groom has sex with her.  She is punished by sreifah, burning; he is executed by strangulation, henek.

            A daughter of a Jew who is not a cohen has participated in airusin but not nisuin.  Someone other than the groom has sex with her.  Both are executed by skilah, stoning.

            A fully married woman has sex with a man who is not her husband.  Both are executed by henek, strangulation.

 

Mitzvah #36 prohibits kidnapping a Jew.  It covers kidnapping any Jew, adult or child.  It is only punishable if the perpetrator kidnaps someone and sells that person into slavery.  The author implies that the kidnapping itself is prohibited but not punishable, but he does not say that explicitly. The punishment is henek, strangulation.

            Most of us think of this prohibition in the aseres hadibros as prohibiting stealing other people’s property.  Indeed, it is forbidden to steal other people’s property, but the rabbis understand this mitzvah as referring to stealing people.  The aseres hadibros represent a higher form of revelation, since they were revealed at Sinai, a process that involved the entire Jewish people.  They are no more or less binding than other mitzvot, but they do seem somewhat more central.  Perhaps the rabbis wanted to interpret the aseres hadibros to include crimes against people rather than against property.  Perhaps the rabbis wanted to interpret this negative mitzvot as something subject to the death penalty, which does not apply to stealing material things. Note, though, that violating mitzvah #38 is not subject to capital punishment, either.

 

Mitzvah #37 prohibits false testimony in court.  Our author gives two reasons.  First, falsehood is vile.  Second, disputes need to be settled fairly for society to be stable and false testimony in court perverts the process of justice.

            We have not yet had a chance to understand the Jewish court system, although we will get more information as we go along.  Testimony works differently in the Jewish judicial system than in our American secular courts.  Here are a few of the differences:  The witness was questioned by the court as a preliminary matter to find out whether the witness was qualified and what the witness would testify to.  In general, it was the responsibility of the witness to approach the court if the witness had testimony to give about a crime that had been committed.  Certain potential witnesses were exempt from this requirement.  Once the case had started, the court could summon additional witnesses who had not volunteered.

            Our author explains that this mitzvah applies to men but not to women, because women are not qualified to be formal witnesses.  He explains that this is because testimony requires “focus and great presence of mind.”   It is not clear if he means to say that no woman is capable of that kind of concentration or that many women are not capable of that kind of concentration.  Nor does he say if that is because women are incapable of that kind of concentration, or whether, because of social conditions in earlier times, women were generally not comfortable in such formal circumstances.  We will have to continue reading to try to get a better sense of it.

            Note the punishment here: witnesses who testify falsely are punished with whatever punishment would have been inflicted on the defendant had the false testimony of the witnesses been believed.  Where that is not possible, the punishment is malkos.

 

Mitzvah #38 prohibits planning and acting on a scheme to take what belongs to someone else by force when the owner does not want to part with the object.  This applies even if the violator ultimately pays for the object. The crucial point here is to hatch a scheme and take something from someone else by force; the mitzvah is still violated even if the item is ultimately paid for.

            Note a new rule in the punishment section here.  If one takes something by force, one has violated this mitzvah, but one is not punishable because it is possible to rectify the harm by paying for the item or returning it.  If it is possible to rectify the harm done, then the violation is not punishable.

            The shoresh of this mitzvah warns us against letting ends justify means.  Once someone decides that he craves someone else’s object, and gets that idea firmly in his mind, he is liable to stop at nothing to obtain what he wants.  Thus, if the owner does not want to sell the desired item, the person who wants it may not just put the whole issue out of his mind.  He may find ways to pursue the item, up to and including deadly force.  That is what makes coveting so dangerous.

           

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