Halakha: A Weekly Shiur In Halakhic Topics
Yeshivat Har Etzion

Shiur #19: THE essence of the mitzva of mila

Based on a Shiur given by HaRav Aharon Lichtenstein

FUNDAMENTAL QUESTIONS

            In today's lecture, we shall deal with two fundamental questions regarding the mitzva of mila:

1)         Upon whom does the obligation fall? This question divides into two:

a)         Which population is bound by this mitzva (the Jewish people, descendants of Noach)?

b)         Within that population, who is obligated in the mitzva?

2)         What is the nature of the obligation: does a mitzva fall upon on each individual that he be circumcised, or is there an active obligation on particular parties to perform the act of circumcision (the father, the mother, or the court)?

The scope of the Mitzva

THE GENERAL PERSPECTIVE

            It is stated in Parashat Lekh Lekha that the mitzva of circumcision symbolizes the covenant between Avraham Avinu and his descendants, and God. Avraham is commanded to circumcise himself and all the male members of his family and household, but the scope of the obligation applying in future generations is less clear – "your seed after you in their generations."

            The Gemara in Sanhedrin (59b) assumes that Avraham Avinu had the status of a descendant of Noach,[1] and proposes several suggestions. The suggestion that is relevant for our purposes is that the mitzva of mila was intended to separate and distinguish between the seed of Avraham and the rest of the descendants of Noach. The Gemara states:

"You and your seed after you" – yes; others – no.

            The strongest argument in support of this claim is that a convert is not considered a Jew unless he has undergone circumcision, and therefore a prospective convert who has undergone ritual immersion, but has not been circumcised, is regarded as having done nothing, even after the fact. The Gemara explains that the assertion that the mitzva of mila was intended to distinguish between the seed of Avraham and the rest of the descendants of Noach must be restricted to the chosen seed of Avraham, which does not include Esav or Yishma'el. The question arises whether all of Avraham's seed was obligated in the mitzva of mila, but Yishma'el and Esav were excluded, or perhaps the obligation fell from the outset only upon Yitzchak and Ya'akov. The practical difference between these two understandings is whether the descendants of Ketura are obligated in circumcision, an issue which is the subject of a dispute between the Rishonim.

THE DESCENDANTS OF KETURA

            Rashi (ad loc., s.v. lerabot) adopted a restrictive approach, limiting the obligation to the six sons of Ketura, to the exclusion of their descendants:

To include the sons of Ketura, only those six but not their descendants. But Avraham was commanded regarding all those born to him.

            The Rambam (Hilkhot Melakhim 10:7) rules that Avraham and his descendants, to the exclusion of Esav and Yishma'el, are bound by the mitzva of mila. In the next halakha, he adds:

The Sages have said that the descendants of Ketura are obligated in circumcision.[2]

            It is, however, possible that the obligation falling upon the descendants of Ketura is different with respect to the act of mila or with respect to the nature of the obligation. We shall discuss this possibility below.

            Another issue that must be examined in the context of the general question is the circumcision of slaves that is mentioned in the command to Avraham (Bereishit 17:12), and even hinders eating of the korban pesach, as will be explained below. Here too it is not clear whether the obligation is identical to the obligation falling upon a Jew, or perhaps we are dealing with a weaker obligation.

The personal perspective

            The verses in Lekh Lekha mention two obligations:

1)         The obligation falling upon a person to circumcise himself: "And you shall circumcise the flesh of your foreskin" (Bereishit 17:11).

"And the uncircumcised man-child the flesh of whose foreskin is not circumcised, that soul shall be cut off from his people; he has broken My covenant" (v. 14).

2.         The obligation falling upon a person that he be circumcised:

"Every man-child among you shall be circumcised" (v. 10).

"And on the eighth day the flesh of his foreskin shall be circumcised" (Vayikra 12:3).

            Rashi in Parashat Lekh Lekha notes the difference between the two obligations. He explains that a person who has reached the age of mitzvot and has not circumcised himself is liable for karet,[3] but a father who does not circumcise his son when he is eight days old has merely violated a positive precept.

            Rashi implies that an obligation falls upon the father to circumcise his son, but this obligation does not parallel, regarding its level, the obligation falling upon a person to circumcise himself. The Baraita in Kiddushin (29a) records a list of mitzvot which fall upon the father vis-a-vis his son:

To circumcise him - from where do we derive this? As it is written: "And Avraham circumcised his son, Yitzchak" (Bereishit 21:4).

            Attention should be paid to the fact that the Gemara adduces a verse that describes Avraham's fulfillment of the mitzva, rather than a verse that commands the mitzva of circumcision. This is understandable, for, as was mentioned earlier, the biblical passage dealing with the command, namely, the verses in Parashat Lekh Lekha, makes no mention, even by way of allusion, to an obligation falling upon the father. It is also possible that the talmudic passage reflects a distinction between the obligation falling upon the father vis-a-vis his son and the obligation falling upon the master vis-a-vis his Cana'anite slave, as we shall see below.

            Later in the passage, the Gemara asserts that if the father failed to circumcise his son, the local court is obligated to circumcise him, and if the court also fails in its duty, the person must circumcise himself when he is able to do so. In general, a gradation of this sort (father – court – son) teaches us about a descending order of importance. This does not appear to be true in our case. Technically speaking, a person cannot circumcise himself when he is eight days old, but without a doubt, his personal obligation to circumcise himself is greater than the obligation falling upon his father.

            One point in the passage left unclear is the role of the court. Logically speaking, we can propose two main approaches, one of them dividing into two:

1)         The Rambam in his Sefer ha-Mitzvot (commandment 176) argues that the primary role of the court is to guide the community to a religious and moral life style.[4] This finds expression in the talmudic passages that discuss the court's authority to coerce a person to fulfill positive mitzvot (charity, sukka and the like). Over and beyond the technical fulfillment of mitzvot there is an additional level, namely, overseeing the realms of morals and modesty. It is possible that here as well we are dealing with an obligation of a similar nature. That is to say, one of the roles of the court is to make sure that the Jewish people is a nation of circumcised people, with no uncircumcised in their midst.

2)         It is possible that the court is bound by a specific obligation to fulfill the mitzva of circumcision. This approach has two variations:

a)         It may be argued that a scriptural decree teaches us about a specific obligation falling upon the court, similar to the obligation falling upon the father.[5]

b)         Alternatively, it may be argued that the specific obligation falls not upon the court, but upon society as a whole, and the court fulfills the obligation as society's agent.

THE MOTHER'S OBLIGATION REGARDING CIRCUMCISION

            Understanding the role of the court may help us understand a mother's obligation to circumcise her son. The Gemara (Kiddushin, ibid.) derives the mother's exemption from the verse: "'As God had commanded him' (Bereishit 21:4) – him, and not her." The Rishonim ask why is this derivation necessary; surely circumcision is a time bound positive commandment, for it may not be performed at night, and lekhatchila it should be performed on the eighth day! The Ritva answers that one might have thought that the mother is obligated "because she is no worse than the court."

            The Ritva's explanation is understandable according to the second explanation suggested above, namely that the court's role does not stem from its special standing as a court, but from its standing as the agent of all of Israel. For the purpose of circumcising a newborn, the mother can also be chosen as the agent of all of Israel. This was the Gemara's initial understanding. But what is the Gemara's conclusion? A number of possibilities may be suggested:

1)         The court's obligation regarding circumcision is an independent obligation, and the mother is not included in this obligation whatsoever.

2)         Indeed, the court acts as the agent of the entire community and is therefore obligated in circumcision, but this obligation is greater than the mother's obligation in the mitzva of circumcision.

In any case, the Gemara understands that the mother is excluded from the obligation of circumcision, and derives this from a scriptural decree, as we saw above.[6]

Ownership of an Arel that disqualifies a Korban Pesach

            One of the practical differences emerging from the previous discussion relates to the laws governing an uncircumcised person regarding the korban pesach. The Torah commands us as part of the mitzva of the korban pesach: "No uncircumcised person [arel] shall eat of it" (Shemot 12:48).

            The prohibition of an arel regarding the korban pesach exists on two levels:

1)         An uncircumcised person is disqualified from offering or eating of a korban pesach, similar to the disqualification of an arel in other realms, such as teruma.

2)         Uncircumcised sons or slaves disqualify their fathers or masters from offering a korban pesach.

As for the second level, two factors may be responsible for disqualifying the father or master from offering the sacrifice:

1)         A person who is obligated to circumcise his son or slave is disqualified from bringing a korban pesach.

2)         A person under whose authority or in whose possession there is an uncircumcised son or slave is disqualified from offering a korban pesach.

The practical difference between these two factors relates to the obligation of a woman, on the assumption that the Gemara's conclusion is that she enjoys a sweeping exemption even from the general obligation of circumcision. If we say that the first factor is the dominant one, a woman can offer a korban pesach even if she has uncircumcised slaves in her possession, since she is not bound whatsoever by the mitzva. According to the second factor, a woman is disqualified from bringing a korban pesach by the very fact that she is in possession of uncircumcised slaves, even though the mitzva of circumcision does not fall upon her at all.

To summarize, as for the question who is bound by the obligation, we have seen that within the Jewish people, the obligation of circumcision falls first and foremost, and in full intensity, upon the person himself. Over and beyond this obligation, a duty falls upon the father by way of a positive precept, and so too a duty falls upon the court, in one of two variations – as representatives of society, or alternatively, as the body that is responsible for maintaining Jewish life.

THE NATURE OF THE OBLIGATION

            When we come to discuss the nature of the obligation, we must distinguish between two different components.

Mila and Peri'A

            We must define the act of circumcision, in its technical dimensions. The fundamental question regarding this issue relates to the relationship between the mila (cutting) and the peri'a (folding back the thin membrane that lies under the thick foreskin). The Gemara in Yebamot (71b), after having derived the obligation of peri'a, cites the words of Rabba bar Yitzchak:

Rabba bar Yitzchak said in the name of Rav: Uncovering the circumcision was not given to Avraham, our father. As it is stated: "At that time, the Lord said to Yehoshua, Make flint knives…." (Yehoshua 5:2)

Once the Torah was given and klal Yisrael became obligated in peri'a as well, usually the relationship between mila and peri'a may be understood in one of two ways:

1)         If a person did not perform peri'a, it is as though he did not perform mila, for the new obligation of peri'a expanded and redefined the concept of mila.

2)         Even if he did not perform peri'a, he has fulfilled the mitzva by Torah law, but he has not fulfilled the obligation of peri'a.

A possible practical difference between these two understandings relates to the obligation of the descendants of Ketura with respect to peri'a. If we say that the definition of the mitzva was expanded and redefined, it may be argued that even the descendants of Ketura should be obligated in peri'a. If, however, we are dealing with an addition to the obligation of mila, it is possible that this addition only obligates Jews, but not the descendants of Ketura, who are obligated in circumcision because of the scriptural decree of "he has broken My covenant."[7]

THe father and the Mohel

            Beyond the technical dimension, we must ask what is required of those who are obligated in circumcision. In this context, the primary question relates to the obligation of the father.

            The Gemara derives the father's obligation to circumcise his son from what is stated in Parashat Vayera:

"And Avraham circumcised his son, Yitzchak, when he was eight days old" (Bereishit 21:4).

            Does this mean that the father is obligated to circumcise his son with his person, that is, with his own two hands? This may be the implication of the verse, but by no means is this clear, and indeed the Rishonim disagree on the matter.[8] Three opinions are found among the Acharonim with respect to the father's obligation:

1)         The Darkhei Moshe (Yore De'a 243) states in the name of the Or Zaru'a that a person who himself is able to perform circumcision must do so.

2)         The Gemara in Chullin (91b) establishes that a person who snatches a mitzva from his fellow is obligated to compensate him with ten gold coins. The Shulchan Arukh (Choshen Mishpat 282) discusses the case of a person who snatched from a father the mitzva of circumcising his son. He rules that if the father had intended to perform the mila himself, the snatcher must pay him ten gold coins. But if the father had transferred the responsibility to another party, the snatcher is exempt from payment. The Shach (ad loc.) infers from this that there is a difference between the father's obligation to circumcise his son and the obligation of others to do the same. Two questions arise here that must be treated separately:

1)         By Torah law, is it the father, and only the father, who must circumcise his son? Obviously, if someone else performed the mila, the mila is still valid, but nevertheless the obligation falls upon the father for all purposes.

2)         It may alternatively be suggested that the father is under no obligation to perform the mila himself, but he has a special connection to the mitzva, and the right to determine who will perform it.[9]

3)         The Bet ha-Levi (ad loc.) suggests that the father must appoint the mohel as his agent. Many others have ruled in similar manner.

THE PRACTICAL RAMIFICAITON - AGENCY

            Rabbi Yosef Dov Soloveitchik zt"l explained in the name of his grandfather, Rav Chayyim of Brisk, that if we say that the father is obligated to circumcise his son with his own two hands, then agency will not work.[10] Rav Chayyim's argument is based on the claim that this is agency in a mitzva that a person must perform with his body, and such agency is not effective. There are two possible reasons for this limitation on the laws of agency, that offered by the Tosafot Rid (Kiddushin 42b) and that offered by the Ketzot ha-Choshen (182):

1)         The Ketzot ha-Choshen offers a technical explanation: A person cannot don tefilin for another person, because the tefilin must be donned on the arm of the sender. According to the Ketzot, the limitation regarding a commandment that must be performed with one's body does not stem from a problem in the process of agency, but from the fact that the mitzva must be performed on the body of the sender himself.

2)         According to the Tosafot ha-Rid, agency involves a transfer of authority to perform a certain act from one person to another. The sender, however, cannot transfer the authority to fulfill a mitzva that must be performed with one's body, and so the agent does not acquire the authority to fulfill such a mitzva.[11]

R. Soloveitchik argues that there is a practical difference between these two explanations regarding the question of agency in the case of circumcision. If we adopt the position of the Tosafot Rid, then even in the case of mila the father should not be able to appoint an agent, because he cannot transfer authority regarding something that requires his body. In contrast, if we accept the view of the Ketzot, according to which the problem is that certain mitzvot require actions in a person's own body, this is not true in the case of circumcision, for it is performed on the son's foreskin, and so it should be possible to appoint an agent.

Summary:

In this lecture, we have dealt with the fundamental questions concerning the essence of the mitzva of circumcision. Regarding the scope of the mitzva: who is obligated in the mitzva – all the descendants of Avraham, or only the people of Israel. So too we dealt with the scope of the mitzva on the more individual level – who is obligated in circumcision, and what is the relationship between them: the father, the court, and the son himself. In this context, we discussed the question whether or not the mother is also obligated in the mitzva.

In the second half of the lecture, we dealt with the question of the nature of the mitzva, with respect to the relationship between the obligations of mila and peri'a, and also with respect to the obligation falling upon the father – must the mila be performed with the father's own two hands, or is it possible to appoint an agent for this purpose.

FOOTNOTES:

[1] The Ramban (end of Parashat Emor) brings two opinions on the matter. 

[2] In the continuation of that same halakha, the Rambam has a far-reaching novelty: Since the descendants of Ketura have become intermingled with the descendants of Yishma'el, the latter are also obligated in the mitzva of mila.

[3] We are dealing here with an unusual phenomenon, namely, liability for karet for the violation of a positive precept. Such liability is found in only one other case, the violation of the positive commandment of the korban pesach.

[4] The Ramban (ad loc.) raises an objection, arguing that the core obligation of the court is resolving social conflicts.

[5] HaRav Lichtenstein argued that this suggestion is difficult despite the scriptural decree, and so we will relate in our discussion below to the second possibility.

[6] It should be emphasized that the talmudic passage does not relate to the question whether a woman is fit to serve as a mohelet. See Avoda Zarai 27a, where the issue is discussed.

[7] See Sha'agat Arye, no. 48.

[8] Some maintain that no such obligation falls upon the father with respect to the descendants of Ketura. A similar question may be raised regarding slaves, regarding which there is an obligation of circumcision, derived from "he that is bought with your money" (Bereishit 15:13).

[9] The Shakh deals with this issue, and so too the Bet ha-Levi, no. 10.

[10] R. Soloveitchik emphasized that this does not obligate a father to perform the mila himself. On several occasions, he was very anxious when he saw fathers who were not professional mohalim circumcising their own sons.

[11] R. Soloveitchik raised an objection against this explanation from the law that "there is no agency for the commission of a sin." The Gemara derives this from a verse, but it would seem that according to our explanation, it is clear that a person cannot transfer to another person the authority to sin, so why is the verse necessary. R. Soloveitchik was forced to suggest that this indeed is a unique law.

(Translated by David Strauss)