Surf A Little Torah
Yeshivat Har Etzion

PARASHAT ACHAREI MOT-KEDOSHIM

By Rav David Silverberg

            The Torah admonishes towards the end of Parashat Kedoshim (20:25), "You shall differentiate between the pure animal and impure animal, and between the impure fowl and pure fowl…"  Rashi explains this "differentiation" as referring not to the distinction between the kosher and non-kosher species of animals and fowl, which is clear and evident, but rather to the more subtle difference between a properly slaughtered animal and an inadequately slaughtered animal.  For an animal's meat to be permissible for consumption, the majority of both its trachea and esophagus must be severed.  If either the trachea or esophagus is only 50% severed, then even if the other is completely severed, the animal is forbidden for consumption.  As Rashi comments, the difference between "half-severed" and "completely severed" can be but a hairsbreadth; the Torah therefore admonishes that we carefully make this distinction between the "pure" and the "impure," even if in physical terms they differ by a mere hairsbreadth.

            Rav Dov Weinberger, in his work Shemen Ha-tov, observes that this admonition, as understood by Rashi, is a fitting conclusion to the immediately preceding verses, which command Benei Yisrael to distance themselves from the mores and practices of the gentile nations: "And you shall not follow the statutes of the nations that I am banishing before you… I am the Lord your God, who has distinguished you from the nations" (20:23-24).  Traditional Judaism is frequently criticized for the importance it ascribes to details, the halakhic minutiae and technicalities that comprise our religious code.  As Rashi here notes, the difference between a "pure" and "impure" animal can, in certain situations, express itself in but a hairsbreadth.  This focus on particulars has drawn ridicule from many who have sought to challenge Torah observance and encourage Jews to abandon their faith or at least adjust it in accordance with the popular mores of the time.

            Appropriately, then, when the Torah admonishes Benei Yisrael to resist the pressures applied by "the statutes of the nations," it adds, "You shall differentiate between the pure animal and impure animal."  We must never undermine the importance of the technicalities of the Halakhic system, in favor of the broader conception of religious that is common among most other peoples.  In spite of the pressures that we often confront, we must steadfastly adhere to our complex and intricate codes of law, the sole basis for the distinctions we draw between that which is "pure" and that which is "impure," between the permissible and the forbidden, and between the acceptable and reprehensible.

******

            The Torah in Parashat Acharei-Mot introduces the prohibition against the worship of molekh, an idolatrous practice whereby children were passed through fire (see Melakhim II 23:10).  And in Parashat Kedoshim (20:2-5), we read that the punishment for molekh worship is stoning at the hands of the rabbinical court, and karet (eternal excision) at the hands of God.

            The Gemara in Masekhet Sanhedrin (64b) establishes the counterintuitive halakha that one who gives all his children to molekh is exempt from punishment; the death penalty applies only if one gave some – but not all – of his children to the molekh priests.  In a previous year we discussed possible reasons for this seemingly peculiar provision.  Here, we will discuss the more technical issue of how this exemption operates.  As Tosefot point out, a parent becomes liable to death once he gives one child over to molekh.  Seemingly, then, even if he ultimately performs this ritual upon all his children, he is already under the initial death penalty.  How, therefore, can this exemption ever apply?

            Tosefot answer that indeed, a parent who gives one of his several children to molekh is liable to execution even if he subsequently does the same to all his children.  The Gemara's exemption applies only in two situations: where one has an only child that he gives to molekh, or if the ritual is performed upon all of one's children simultaneously.  In both these cases, the death penalty never takes effect, and the individual is exempt from punishment because he has given all his children over to molekh.

            The Kesef Mishneh, however, adds another explanation (Hilkhot Avodat Kokhavim 6:4).  He contends that a person who gives one of his children to molekh is liable to execution but can be retroactively exempted from punishment if he later does the same to his remaining children before the court's sentence is carried out.

            Many later writers questioned the halakhic viability of the Kesef Mishneh's approach, in light of the concept known as hatra'at safeik.  A fundamental principle in Halakha establishes that a violator is not eligible for any corporal punishment unless the witnesses to the violation warned him of the specific consequences of the given act.  Unless the witnesses informed him just before the violation of the particular punishment to which he would be liable, he cannot be punished.  Furthermore, the violator must have been informed prior to the act that the given violation would undoubtedly result in the given punishment.  If any factors necessary for punishment were still uncertain at the time when the act was committed, the witnesses' warning is deemed a hatra'at safeik, or "uncertain warning," and no punishment can be administered.  Since the violator did not know with certainty when he committed the act that he would thereby be eligible for punishment, the court is not empowered to administer punishment.

            At first glance, the Kesef Mishneh's theory renders every case of molekh worship a situation of hatra'at safeik.  When the parent commits the act of giving his child to molekh, the witnesses cannot definitively warn him that this act will yield a death sentence.  Since the subsequent giving of his remaining children to molekh will retroactively exempt the individual even from the initial violation, no definitive hatra'a is possible.  The question thus arises, according to the Kesef Mishneh, how can the court ever execute a parent for the crime of giving a child to molekh?

            Tomorrow we will iy"H explore possible answers to this question.

******

            Yesterday, we discussed the prohibition of molekh, an idolatrous practice whereby a parent brings his child to be passed through fire.  The Torah bans this practice in Parashat Acharei Mot (18:21), and in Parashat Kedoshim, we read that this violation is punishable by execution (20:2-5).  As we discussed yesterday, the Gemara (Sanhedrin 64b) establishes that a parent who submits all his children to this cult is, surprisingly enough, exempt from punishment.  According to the Kesef Mishneh, this means that after a parent gives one child over to molekh and is sentenced to execution, his sentence can be retroactively revoked if he then proceeds to give over the rest of his children.  (Tosefot, as we discussed, explain differently.)  We concluded yesterday's discussion by asking why this is not a case of hatra'at safeik.  Since a violator of this prohibition cannot be definitively warned before committing this crime that he will incur a death sentence as a result, any instance of molekh should constitute a hatra'at safeik, thus rendering execution practically impossible for this violation.  (See yesterday's discussion for further clarification.)

            The Minchat Chinukh (208) suggests an answer based on a discussion of Tosefot in Masekhet Makot (15b).  Tosefot ask how a nazir who drinks wine can ever be liable to punishment, as in this case, too, the witnesses' warning before the act of violation can never be definitive.  A nazir generally has the opportunity of she'eila – to have his acceptance of nezirut retroactively revoked, if a court can identify some mistaken premise upon which the nezirut was declared.  In many cases, then, a violation of the nazirite vow does not necessarily result in the nazir's punishment; he could, potentially, seek the annulment of his vow, such that his drinking of wine retroactively entailed no violation.  Hence, Tosefot ask, any warning of punishment prior to this act of violation will de facto be a hatra'at safeik – an uncertain warning.  How, then, can a nazir ever incur corporal punishment for violating the nazirite code?

            Tosefot explain that the witnesses' warning to a nazir does not constitute a hatra'at safeik because of the individual's chazaka, or default personal status, as a nazir.  Although in theory he can change his status through the procedure of she'eila, the halakhic notion of ha'amed gavra al chezkato allows us to presume the maintenance of personal status henceforth until we have specific reason to do otherwise.  Hence, when the witnesses warn the nazir that his drinking will render him liable to punishment, this warning is a valid hatra'at vadai, since liability is certain under the individual's current status as a nazir.

            The Minchat Chinukh applies a similar argument to explain why a violation of the molekh prohibition is not de facto an instance of hatra'at safeik.  Even after a parent gives a child to molekh, he is not halakhically presumed likely to repeat this offense; he retains the standard chazaka generally applied to all Jews presuming a basic standard of observance.  For halakhic purposes, then, we look upon this individual with the expectation that he will not give over any more children to molekh, and hence the witnesses' warning indeed constitutes a proper hatra'at vadai, rather than a hatra'at safeik.

            Tomorrow we will iy"H present another explanation offered in defense of the Kesef Mishneh's understanding of this halakha.

******

            Today we will continue our discussion of the halakha mentioned in the Gemara (Sanhedrin 64b) absolving from punishment one who gives all his children to the idolatrous molekh cult, which involved passing children through fire.  We have been addressing the seemingly problematic approach to this halakha taken by the Kesef Mishneh, who wrote that after a parent gives one child to molekh and is sentenced to execution, his sentence can be retroactively annulled if he subsequently hands over all his children to the molekh cult.  Several Acharonim noted that according to the Kesef Mishneh, it would seem, no violator of this prohibition can ever be punished, since the warning administered by the witnesses before the crime is necessarily a hatra'at safeik.  (See our two previous discussions for further clarification.)

            Rav Tzvi Pesach Frank, in his glosses to the Minchat Chinukh, suggests an explanation based on a fundamental rule concerning the definition of hatra'at safeik established by Rav Yosef of Vilna, in his Porat Yosef glosses to Masekhet Ketubot (33a).  The Porat Yosef addresses a comment by the Gemara that if one mildly beats his fellow (chovel ba-chaveiro) and the damages incurred amount to less a peruta – the minimal amount warranting compensation payment – he is nevertheless flogged for violating the prohibition against injuring one's fellow.  The assailant is exempt from compensation payment because he caused damage equal to less than a peruta, but he has nevertheless violated the Biblical prohibition against causing bodily harm, and is therefore liable to corporal punishment.  If, however, the damages incurred amounted to or exceeded a peruta, in which case the culprit must pay compensation, he is not liable to corporal punishment.  The halakha known as ein adam lokeh u-meshalem dictates that whenever a person commits a sinful act for which he is liable to payment, he is absolved from flogging, even if under other circumstances the given violation warrants flogging at the hands of the court.

            The Porat Yosef raises the question of why, in a case where the incurred damages amounted to less than a peruta, we do not absolve the assailant from flogging on the grounds of hatra'at safeik.  After all, before the assailant deals the blow, nobody can assess the monetary value of the resultant damages with any degree of accuracy.  The possibility always exists that even a minor injury will be assessed by the court as equaling a peruta or more, in which case the culprit will be exempt from flogging.  The witnesses therefore cannot possibly forewarn the prospective assailant definitively that the act he seeks to perform will render him liable to flogging.  Seemingly, then, the Gemara's case, of an assailant who is flogged because the damages amounted to less than a peruta, appears to be a practical impossibility.

            To resolve this difficulty, the Porat Yosef suggests that so long as the aveira act will undoubtedly have been committed, the witnesses' forewarning is legally valid.  Halakha considers their warning a hatra'at safeik if they cannot be certain at the moment of warning that the given act will constitute an act of sin that normally renders liability.  But if the act will undoubtedly constitute a ma'aseh aveira (act of sin), then even if some technicality might present itself on account of which the violator will escape punishment, we do not classify the witnesses' warning as a hatra'at safeik.

            Rav Frank suggests applying the Porat Yosef's theory to the case of molekh, as well.  At the time a parent gives his child to the molekh priests, he undoubtedly commits a Torah violation punishable by execution.  That this punishment could potentially be averted should the parent proceed to give all his children to molekh is not sufficient to render the witnesses' warning a hatra'at safeik.  Thus, a violator of this prohibition is indeed liable to execution, and we do not consider this a case of hatra'at safeik.

******

            Over the last several days we have discussed a counterintuitive halakha concerning the prohibition of molekh, an idolatrous cult whereby a parent would pass his child through fire (Vayikra 18:21, 20:2-5).  (Different views exist among the Rishonim as to whether the child would die as a result of this worship.)  The Gemara (Sanhedrin 64a) surprisingly establishes that although one generally is liable to execution for transgressing this sin, a parent who gives all his children to molekh is exempt.

            The Semag (lavin 50) writes that he was once confronted by a heretic who challenged the rationale behind this halakha.  Why would the Torah deal more leniently with a sinner who committed this crime repeatedly, with all his children?  He replied, quite simply, that a parent who gives all his children to molekh does not earn the right to atonement made available by court execution.  The execution serves not only to punish the violator for his grave misdeed, but also to provide his soul the opportunity of expiation.  Certain violators, however, forfeit the right to expiation.  Hence, one who commits such a grievous sin of giving all his children to molekh loses access to this means of expiation, and he is therefore "absolved" from punishment.

            The Maharsha (in Masekhet Sanhedrin) extends this theory of the Semag to explain the famous Talmudic principle of ein oneshin min ha-din.  This rule establishes that a court cannot administer corporal punishment for the violation of a law derived through the deductive process of a kal va-chomer (a fortiori argument).  The notion of kal va-chomer, which is included among the thirteen fundamental exegetical tools by which the Rabbis extracted halakhot from the Torah, means that if a certain stringency applies to a generally lenient area, then it can be logically extended to a more stringent area.  However, ein oneshin ha-din qualifies this rule by limiting it to the deduction of halakha, but not to the area of oneshin – court-administered punishment.  Although a halakha extracted through the process of kal va-chomer process is certainly binding, the court cannot administer punishment for a violation of such a law.

            The Maharsha explained this halakha based on the concept mentioned by the Semag.  When the Rabbis extend a prohibition to a given area by force of a kal va-chomer, it is quite possible that the prohibition will assume a higher degree of gravity in that area than in the initial area from where it was derived.  Hence, the violator does not necessarily earn the right to expiation through punishment in the second area, and the fact that in the first instance he does is insufficient to extend the punishment to the second case.  Therefore, even when a prohibition is extended from one area to another through the process of kal va-chomer, the Rabbis are not licensed to apply the punishment for that violation to the second case.

******

            Parashat Kedoshim features the famous Biblical imperative, "Ve-ahavta le-rei'akha kamokha" – "Love your fellow as yourself" (19:18).  Torat Kohanim cites Rabbi Akiva's celebrated remark concerning this verse, "This is the great principle in the Torah."  Rabbi Akiva's comment is followed by Ben Azai's response, claiming that there is even a "greater principle," namely, the verse in Parashat Bereishit (5:1), "This is the book of the lineage of man…"

            In explaining this debate, the Malbim claims that Rabbi Akiva and Ben Azai are searching for the verse that forms the very basis of all Jewish ethics, the fundamental theory from which all interpersonal laws in the Torah stem.  Rabbi Akiva champions the verse "Love your fellow as yourself," which the Malbim explains on the basis of Hillel's famous response to the prospective convert (Shabbat 31a), "That which you despise, do not do unto others."  The dictum "Love your fellow as yourself" means – according to the Malbim – not that one must love others as much as he loves himself, but rather that he must treat others in the same manner as he would want them to treat him.  (This also appears to have been the Rambam's understanding of this mitzva; see Hilkhot Dei'ot 6:3.)  By championing this verse as "the great principle of the Torah," the Malbim explains, Rabbi Akiva expresses his view that the Torah's ethical philosophy is that any action or mode of conduct is to be assessed by determining whether or not one would like all people to act in this way.  Certainly, nobody would want unprovoked hostility to become the universal norm in interpersonal relations.  The basic code of ethics, according to Rabbi Akiva, is that one should act personally in a manner which he perceives as the desired universal mode of conduct.  A person acts unethically if he acts in a way which he would never want to become the universal norm.

            Ben Azai, however, disagrees with Rabbi Akiva, because the ethical standard established by Rabbi Akiva is a self-serving one.  If ethical conduct is based solely upon one's wishes for a universal standard, then ultimately, his concept of ethics is dictated by his own interests.  The ideal, according to Ben Azai, is that one care for the needs and well-being of others for their own sake, not out of concern for one's own long-term interests.  Therefore, Ben Azai points to the verse "This is the book of the lineage of man" as representing the essential basis of Jewish ethics.  This verse underscores the notion that all mankind originate from the same source, and are therefore all part of a single entity.  This perspective, the Malbim explains, yields a considerably higher ethical standard, whereby a person cares for the well-being of other people to the exact same extent as he cares for his own well-being.  The Malbim invokes in this context the famous analogy to the different organs of the body, which obviously have interest in the stability and proper functioning of one another.  According to Ben Azai, the fundamental tenet of Jewish ethics is this perspective, which sees all mankind bound together into a single entity.

            In concluding his discussion, the Malbim suggests applying this debate to yet another famous debate involving Rabbi Akiva, namely, the case of two desert travelers dying of thirst.  As recorded in Torat Kohanim (to Vayikra 25:35) and Bava Metzia (62a), Rabbi Akiva maintains that if one traveler has just enough water to sustain himself, and no more, he should drink the water and allow his companion to perish, since "your life takes precedence over your friend's life."  Ben Petura, by contrast, held that one must share his water with his fellow, even though this will result in the death of both travelers.  The Malbim speculates that Rabbi Akiva here perhaps follows his own understanding, that the Torah's ethics mean treating others in a manner that one would want to become the universal standard.  And it stands to reason that in this extreme case of the desert travelers, keeping one's water for himself represents an acceptable general standard.  Ben Azai, however, feels that one must treat others precisely as he treat himself, since all people are, indeed, part of the composite whole of mankind.  Quite possibly, then, Ben Azai would subscribe to Ben Petura's ruling, that the traveler that has water may not drink without sharing his supply with his fellow.

            It should be noted that the Malbim himself draws this connection between the two debates only "al derekh ha-hash'ara," as speculation, and not definitively.

******

            Parashat Kedoshim begins with the famous exhortation, Kedoshim tiheyu – "You shall be holy."  Rashi explains this command as a reference to the particular prohibition of arayot, sexual offenses, upon which the Torah elaborated in the immediately preceding section, towards the end of Parashat Acharei Mot.  The word kadosh, Rashi comments, means "separated," and thus the Torah here admonishes that we separate ourselves from those whom the Torah renders forbidden to us.

The Ramban, however, in what is likely the most famous passage in his Torah commentary, understands this verse as a far more general admonition to limit one's physical indulgence.  The Torah's code of law, when approached strictly from the perspective of its halakhic details, allows considerable room for overindulgence.  It is possible for a person to indulge in food, drink, levity and marital relations within the guidelines established by Halakha.  Kedoshim tiheyu demands that we exercise a degree of restraint and self-denial even within the halakhic framework.  A Jew must not only avoid transgressing the Torah's particular prohibitions, but also live a life of "holiness" by limiting his involvement in physical delights, at least to some degree.

            Exegetically, the Ramban's interpretation appears to better accommodate the verse's concluding clause: "for I, the Lord your God, am holy."  Meaning, we are bidden to be "holy" because the Almighty is "holy."  If, as Rashi claims, this warning refers specifically to the observance of the Torah's laws governing sexual relations, it seems difficult to understand in what way God is likewise "holy."  According to the Ramban's approach, however, the meaning of the verse is clear.  God is "holy" in the sense that He is entirely non-physical; we are bidden to resemble Him to some extent by limiting our indulgence in physical activities.

            Etymologically, the Ramban's understanding of Kedoshim tiheyu perhaps accounts for a second usage of the word kadosh, which, besides its denotation of "separation," also means "consecration."  Something that has been consecrated for use in the Temple is described with the term hekdesh.  The kohanim are often described with the term kadosh, as well, because they are designated for the service of God in the Temple, and therefore do not engage in other professional activities.  While it is clear from the Ramban's comments to this verse that he accepts the translation of "kedoshim" as "perushim" – "separated" – his understanding of this admonition well accommodates also the second denotation of this word – "consecrated," or set aside for a particular task.  Every Jew is designated for the role of avodat Hashem; his primary responsibility each day of his life is the faithful service of his Creator.  For this reason, the Torah bids us to limit our involvement in the physical delights of the world.  The Torah does not look askance at these pursuits per se; as opposed to other faiths, Judaism does not look upon physical pleasure with disgust.  However, just as an article that has been consecrated for use in the Temple must not be used for mundane purposes, so is every Jew obliged to live his life in a state of "consecration."  One's primary focus and ambition must be directed towards his religious responsibilities, and not to the pursuit of pleasure and enjoyment.

            Of course, as Rav Mayer Twersky eloquently discusses (http://torahweb.org/torah/2003/parsha/rtwe_kedoshim.html), the two meanings of kadosh are very closely related.  Consecration entails separation; if one is singularly devoted to a certain mission, he must "separate" himself from activities that conflict with the successful execution of that mission.  In the case of the Ramban's understanding of Kedoshim tiheyu, our lifelong obligation as avdei Hashem requires that we devote ourselves as much as possible to the service of God, which necessitates that we live with a degree of "separation" from physical delights.