Halakha: A Weekly Shiur In Halakhic Topics
Yeshivat Har Etzion

*********************************************************

This shiur is dedicated
in memory of Ephraim and Rachel Rosen z"l.

*********************************************************

Mazal tov to alumnus Rabbi Yehuda Seif and his wife Orit, upn the birth of twin boys.
May they be zocheh to raise them le-Torah, le-chuppa u-le-ma'asim tovim!!

Shiur #24: Mila on SHabbat

Based on a Shiur by HaRav Aharon Lichtenstein*

The Mishna in tractate Shabbat states:

All the requisites that belong to the act of circumcision are done on Shabbat. (Shabbat 128b)

            Later in the Mishna, this law is spelled out in greater detail:

All the requisites that belong to the act of circumcision are done on Shabbat. We circumcise (mohalin), uncover [the corona] (por'in), suck [the wound] (motzetzin), and place a bandage and cummin upon it. (Shabbat 133a)

            The Tosafot (ad loc., s.v. osin) note that the first mention is merely incidental, whereas the primary discussion takes place here in chapter 19. Logically, it might have been suggested that the two mishnayot are dealing with two different allowances to perform mila on Shabbat, though Tosafot's approach appears simpler.

            The allowance to circumcise on Shabbat is derived from the verses at the beginning of parashat Tazri'a:

If a woman have conceived seed, and born a man child: then she shall be unclean seven days; as in the days of her menstrual sickness shall she be unclean. And on the eighth day the flesh of his foreskin shall be circumcised. And she shall then continue in the blood of her purifying for thirty-three days: she shall touch no hallowed thing, nor come in to the sanctuary, until the days of her purifying are fulfilled. (Vayikra 12:2-4)

            That is to say, circumcision must be performed on the eighth day, even if that falls out on Shabbat. It should be noted that the Torah inserts the law of circumcision between the laws governing the woman's days of impure blood and the laws governing her days of pure blood. From here the Gemara learns and thus also has the Halakha been decided, that if the woman did not contract ritual impurity during childbirth (e.g., Ceasarian section), her newborn's circumcision does not set aside the laws of Shabbat.

            What is special about the eighth day?

            On the face of it, two possible explanations may be proposed:

1)         The obligation to circumcise starts on the eighth day, but that day is no different in nature than the days that follow.

2)         There is a special obligation to perform circumcision on the eighth day. The obligation of mila on the following days is not the same as the obligation of mila on the eighth day.

A PRACTICAL RAMIFICATION

            This question seems to stands at the heart of a number of talmudic passages that we will discuss below.

            First, the fact that circumcision performed at its proper time – the eighth day – sets aside Shabbat, while circumcision not performed at its proper time does not, teaches us about the special quality of the eighth day, which is different in nature from the days that follow.

            The Gemara in Yebamot 71a records a dispute regarding the law governing a newborn who was circumcised prior to the eighth day. Is it necessary to shed covenantal blood (hatafat dam berit) on the eighth day, or, in light of the fact that there is no longer a foreskin, perhaps there is no need to perform any type of circumcision?

The question regarding the nature of the eighth day may be connected to a tannaitic controversy regarding circumcision performed at night (Yebamot 71). As is well known, the mitzva of circumcision only applies during the day, but according to one opinion in the Gemara, circumcision that is not performed at the proper time may be performed at night as well. If we adopt this position, we must assume that there is a qualitative difference between fulfilling the mitzva on the eighth day and fulfilling it on some other occasion. While there are various laws that apply to the fulfillment of the mitzva on the eighth day, when the mila is not performed on the eighth day, these laws (e.g. the obligation to circumcise during the day) do not apply. According to the second view, that even circumcision that is not performed on the eighth day may not be performed at night, there is room to say that there is no essential reason to circumcise on the eighth day, other than the fact that this is the first day on which circumcision is possible. Thus, even when circumcision is not performed on the eighth day, the laws that apply to circumcision performed on the eighth day apply then as well.

It would seem that such an understanding is impossible in light of the fact that only mila performed at its proper time sets aside the prohibitions of Shabbat. It is, however, possible to argue that that since it would have been possible to perform the circumcision before Shabbat, but this did not happen, the circumcision no longer sets aside Shabbat. This would be in line with the rule that any action that could have been performed before Shabbat does not set aside Shabbat. The same should apply to mila performed not at its proper time – since it could have been performed before Shabbat, it does not set aside Shabbat. This understanding is a logical possibility, though it contains no small measure of novelty.

Obviously, there is no difference between mila performed at its proper time and mila performed not at its proper time regarding the act of circumcision. Any difference expresses itself only in the level of the obligation, as will be explained below.

Does mila permit Shabbat prohibitions or set them aside?

            The classic question raised in any discussion regarding two clashing halakhic factors, in which the one supercedes the other, is whether the superceding factor falls into the category of doche (setting aside the other factor) or into the category of matir (permits the other factor). The basic discussion of such a question is found in Yoma (6b) regarding a public offering that is brought in a state of ritual impurity. The Gemara discusses the question whether it is necessary to look for priests who are ritually pure to bring the public offering that is brought in a state of ritual impurity; or perhaps such impurity is issued a blanket allowance in the case of a public offering, and thus it can be brought even by priests who are ritually impure. The Gemara qualifies its words, explaining that it cannot be argued that the impurity is totally allowed, and that all agree that if there is a priest from the same bet av who is ritually pure, it is preferable that he bring the offering.[1] Regarding our question as well, we must examine whether mila sets aside Shabbat law or permits it.

            The Gemara in Shabbat 128b states: That one is allowed to do melakha on Shabbat in order to save a human life (piku'ach nefesh). However:

… to the extent that it is possible to make a change, we make a change.

This establishes that piku'ach nefesh only sets aside Shabbat.

THe difference between mila and Piku'ach Nefesh

            To our great surprise, a similar idea is not mentioned in the first Mishna that deals with laws of a woman who gives birth on Shabbat, incidentally to which the Mishna also mentions the laws governing mila on Shabbat. Thus, we find the law that if the scalpel had not been brought before Shabbat it may openly be brought on Shabbat, and it is stated in the novellae attributed to the Ran that there is no need for any type of change. Obviously, this applies only in the framework of the position of Rabbi Eliezer who maintains that even actions that are merely preparations for mila set aside Shabbat, and that it is permissible to chop down trees and make coals in order to prepare a scalpel for circumcision. The Ran in his novellae (ad loc.) explains the difference between piku'ach nefesh and circumcision, in that the Shabbat prohibitions are set aside by the obligation to save lives, whereas they are permitted with respect to the mitzva of mila.

            The Ran makes three assumptions, each of which requires examination:

1)         When a prohibition is permitted, it does not require any change, whereas when it is merely set aside – to the extent that is possible to make a change, we make a change.

2)         The obligation to save lives sets aside Shabbat.

3)         The mitzva of mila permits Shabbat prohibitions.

CHANGE - ONLY WHEN A PROHIBITION IS SET ASIDE

            As for the first assumption, it may be suggested that the Ran agrees with the expansive understanding of the Yoma passage, according to which there are certain actions that the Torah permits outright without requiring any "change." According to what he says, mila on Shabbat is not an exceptional occurrence that stems from a chance encounter between two different actions, but rather an encounter between two factors that from the outset were meant to be integrated.[2]

Saving Lives sets aside SHabbat

            As for the second assumption, there is a certain difficulty in the words of the Ran, for it would seem that the issue of saving lives should not depend on the question of "set aside" or permitted." This is because a situation can be defined as one of piku'ach nefesh only if there exists a danger to life that cannot be averted without violating some prohibition. Thus, if there is a way to save the life without desecrating Shabbat, the situation is not defined as one of piku'ach nefesh, and thus there is no room to discuss the issue of "set aside" or "permitted," which arises only in situations where there exists an irresolvable clash.

Mila permits the Shabbat Prohibitions

            The status of mila on Shabbat – whether it sets aside the Shabbat prohibitions or permits them – may depend on one of two factors:

1)         It may be connected to the way we understand how preparatory actions set aside the Shabbat. The Tosafot in Shabbat (131a, s.v. ve-shavin) state:

All mitzvot that are observed on Shabbat, their preparations set aside Shabbat.

            That is to say, if a mitzva is permitted on Shabbat, its preparation also sets aside Shabbat. This understanding assumes that the Shabbat prohibitions are permitted in the face of certain mitzvot, and that even preparatory actions set aside Shabbat.

            The Ran's view may depend upon how we understand why mila sets aside Shabbat law. The Gemara in Shabbat 132a states that all agree that mila itself sets aside Shabbat law. As for the source of this law, four opinions are recorded in the Gemara:

1)         A halakha given to Moshe at Sinai.

2)         The mitzva of circumcision is similar to that of Shabbat, in that with respect to each of them Scripture uses the terms "sign," "covenant" and "generations," and therefore mila sets aside Shabbat.

These two derivations are not sharp and unequivocal, and in their framework there is room to say that Shabbat is set aside (rather than permitted) by the mitzva of mila. In the continuation of the talmudic passage, the Gemara brings two additional derivations from the plain sense of the scriptural text:

3)         "And on the eighth day the flesh of his foreskin shall be circumcised" – even on Shabbat.

4)         "The eighth day" – even on Shabbat.

The fact that the law is derived from an explicit verse supports the Ran's position that the mitzva of circumcision permits the Shabbat prohibitions.

The views of the Posekim

            In the previous shiur we saw that the Shulchan Arukh (Yore De'a 266:14) rules that care should be taken that two mohelim should not engage in a joint circumcision on Shabbat, so as not to multiply the violations of Shabbat law. Thus, the person who performs the mila itself should also perform the peri'a. The Rema (ad loc.) disagrees, arguing that since mila permits the Shabbat prohibitions, there is no need to be concerned about multiplying the violations of Shabbat law. He also adds the following explanation:

For mila sets aside Shabbat like the service in the Temple, where several priests would perform the service and desecrate Shabbat. Since Shabbat may be set aside, it is regarded like a weekday for all purposes. So too I found in Sefer ha-Teruma."

            In other words, the allowance to perform circumcision on Shabbat is similar to the allowance to perform the Temple service on that day. Just as there is no limit to the number of priests who may engage in the sacrificial service on Shabbat, so too there is no limit to the number of people who may involve themselves in a Shabbat circumcision.

            The Vilna Gaon (ad loc., no. 25) questions the Rema's position, arguing that whereas the Temple service is absolutely permitted on Shabbat (Yoma 46b), circumcision merely sets Shabbat aside. The Gra infers this from the fact that even piku'ach nefesh – saving lives – only sets aside the Shabbat prohibitions, but does not permit them. So too, circumcision, sets aside those prohibitions, but does not permit them. This follows, argues the Gra, from a careful reading of the Rambam at the beginning of the second chapter of Hilkhot Shabbat, where he writes:

Shabbat is set aside in the face of danger to life, like all mitzvot.

            R. Yosef Dov Soloveitchik, however, argued that this inference is not necessary. On the contrary, there is room to infer the very opposite from the continuation of that same halakha:

The rule is that Shabbat with respect to a dangerously ill person is like a weekday regarding all matters that he may need.

            The Rambam's wording seems to take us even further than "hutra" – permitted. "Hutra" means that a prohibition hovers in the air, but there is another factor that permits it. The Rambam's formulation suggests that there is no prohibition whatsoever, similar to labors involving okhel nefesh on Yom Tov – in accordance with those Rishonim who understand that activities involving okhel nefesh were never prohibited on Yom Tov, and so an allowance is not necessary to permit them.

            If this is the case with mila as well, this might be the foundation of the Rema's ruling. This would explain why he has no problem saying that mila is hutra/permitted on Shabbat, just as piku'ach nefesh is permitted. This understanding of the Rema fits in with what he says in a responsum (Responsa ha-Rema, no. 76), where he unequivocally states that piku'ach nefesh is permitted, and not only set aside on Shabbat. The Rema is well aware of the words of the Rambam cited by the Gra, but nevertheless he rules that piku'ach nefesh is permitted, and not only set aside on Shabbat.[3] The plain meaning of what the Rema says is that piku'ach nefesh falls into the classic category of "hutra," and thus there is no need to accept R. Soloveitchik's far-reaching understanding of the Rambam.

THE FACTOR UNDERLYING THE ALLOWANCE

            Whether we say that circumcision sets aside the prohibitions of Shabbat or we say that it permits them altogether, we must still clarify what precisely sets aside or permits those prohibitions. Here there are two main possibilities:

1)         The very act of mila sets aside Shabbat.

2)         The act of mila is not strong enough, but rather it is the ramifications and results of mila that aside Shabbat law.

THe results of mila

            Let us expand the discussion a little regarding the second possibility. There are certain acts (both prohibitions, as well as positive precepts) that exhaust themselves with the act itself, irrespective of the results. For example, the laws of murder. One may have argued that any action resulting in the death of a person is defined as murder. Obviously this is not the law, for liability for murder is not for the result, but for the act of murder, which must meet certain criteria (intention, and the like). Parallel to this, there are certain actions where the focus is precisely on the result, so that when the result is achieved, the action itself may be disregarded entirely. The question that must be clarified is into which of these two categories does the mitzva of mila fall.

The Mishna in Shabbat 133b deals with the "shreds [of skin] that are not indispensable for mila." The Mishna teaches that as long as a mohel is engaged in the circumcision, he goes back both for the shreds of skin which are indispensable for the circumcision and for those which are not indispensable for the circumcision. Once he has withdrawn, however, he returns on account of the shreds which are indispensable for the circumcision, but not for the shreds which are not indispensable for the circumcision, the removal of which is regarded as merely an embellished fulfillment of the mitzva (hiddur mitzva). The law of "returning" for shreds is not at all clear. We find two main explanations in the words of the Rishonim:

1)         Rashi understands that we are dealing here with Shabbat, and therefore it is forbidden to return on account of shreds that are not indispensable for mila, for one may not desecrate Shabbat merely for the embellished fulfillment of a mitzva.

2)         The Ittur assumes as self-evident that each and every cut constitutes a separate prohibited act. Thus, we cannot say that the Mishna is dealing with circumcision on Shabbat, for in that case even if the mohel is still engaged in circumcision, he should not be permitted to increase the number of prohibited acts and return for shreds that are not indispensable for mila. Therefore, argues the Ittur, the Mishna is dealing with permission, rather than obligation. That is to say, during the week, if the mohel has already withdrawn, he is not obligated to return for shreds that are not indispensable for mila, but if he is still engaged in the circumcision, he is obligated to complete the task.[4]

R. Velvel Soloveitchik (in the name of his father, R. Chayyim) proves from the words of Rashi that an embellished mitzva is qualitatively different that an unembellished mitzva. This is the reason that Rashi permits the desecration of Shabbat (if the mohel has not withdrawn) for the purpose of hiddur mitzva. It stands to reason that the Ittur does not accept the position of R. Chayyim because he understands that hiddur mitzva is an external factor, which does not permit the desecration of Shabbat.[5]

It may be possible to propose another explanation of the Ittur's position, based on a distinction that may be suggested between two different ramifications of the act of circumcision:

1)         The newborn is no longer an arel – uncircumcised.

2)         The newborn has entered into the covenant of Avraham Avinu.

Now, we must clarify what is the factor that sets aside Shabbat law. If we say that what sets aside Shabbat law is the need to remove the newborn from the category of arel, then we understand the Ittur's position that one may not return for shreds that are not indispensable for mila, even if he has not yet withdrawn, for the newborn has already left the category of arel, and hiddur mitzva does not set aside Shabbat law. But if we understand that what sets aside Shabbat law is the positive mitzva of bringing the newborn into the covenant of the Avraham Avinu, then certainly there is room to accept the position of Rashi, that even shreds that are not indispensable for mila set aside the Shabbat laws. In other words, we may be dealing with a situation in which the newborn is no longer in the category of arel, but he has not yet entered into the covenant, and Rashi and the Ittur disagree whether or not the Shabbat prohibitions may be set aside to achieve this result.

FOOTNOTES:

* This lecture was summarized by Udi Schwartz and was not reviewed by HaRav Lichtenstein.

[1] The question whether Shabbat law is permitted or set aside for the daily tamid offering is also dealt with in that same Gemara (Yoma 46b), in light of the discussion in 6b.

[2] R. Asher Weiss, shelita, argues that the fact that statistically speaking one in seven circumcisions should fall out on Shabbat is what turns mila into an event that constitutes part of the landscape of the mitzva of Shabbat.

[3] R. Re'em ha-Kohen, shelita, argues that this is implied by the plain sense of the Gemara in Shabbat 128b where the Gemara states that a woman is permitted to bring oil to another woman in a situation that borders on piku'ach nefesh, but that she must do it with a change (shinnui). R. Re'em explains that the change is necessary because bringing oil to a woman in labor is not actually piku'ach nefesh, but only makhshir piku'ach nefesh. According to him, actual piku'ach nefesh requires no such change. Logically speaking, R. Re'em's position is possible, but it assumes a far-reaching novelty that is not mentioned by the Posekim.

[4] The Rambam in Hilkhot Mila adopts the positions of both Rashi and the Ittur. In 5:4 he rules that on a weekday a mohel is not obligated to return for shreds that are not indispensable for mila. Two halakhot later he explains that on Shabbat he goes back for shreds that are not indispensable only before withdrawal, but not after withdrawal. See also the previous lecture on "The Process of Circumcision."

[5] We have dealt with the issue at greater length in the lecture mentioned in the previous note.

(Translated by David Strauss)