Halakhah zu Bereschit 9:30

The procedure for washing hands in the morning is as follows: take the vessel in your right hand and then place it in your left hand, and then first pour on the right hand; and then take the vessel in your right hand and pour upon the left hand. This procedure is repeated three times.⁶Others say that you should follow this procedure a fourth time. It is preferable to wash your hands until the wrist. However, in extreme circumstances it is sufficient to wash them until the knuckles. You should also wash your face in deference to the Creator, as it is said: "For in the image of God He created Man."⁷Genesis 9:6. You should also rinse your mouth because of the spittle in it, for you must pronounce the great Name [of God] in holiness and purity. After this dry your hands and be careful to dry your face well.

And know indeed that what kind of person one is, is determined at the table, for there his qualities are revealed and made known. And thus our rabbis z”l said, “By three things a person is known: through his purse, through his cup, and through his anger.”³⁴B. Erubin 68b. The clever wordplay of be-kiso, be-koso, be-ka’aso of the saying is lost in the translation. For being drawn to wine and other pleasures – surely these are “the drippings of the honeycomb”³⁵Psalm 19:11, that is, the flowing “honey, the drippings of the honeycomb” than which the “fear of the Lord” and “judgments of the Lord” (19:10) “are sweeter.” – is one drawn to the drug of death, and by his grasping this path he will die an everlasting death. But whoever wants to live ought to keep far from this path; “he will eat and live forever.”³⁶Gen 3:22, an allusion to the immortality that would have come from eating from the Tree of Life. In other words, unlike the way Adam and Eve chose, there is another way one can and should eat to gain eternal life. And thus our rabbis z”l said in tractate Gittin of the Talmud, “A meal for your own enjoyment – pull your hand away from it,”³⁷B.Gittin 70a. and similarly said, “‘You shall be holy,’ that is, ‘you shall be abstemious (perushim),'”³⁸Sifra on Lev. 19:2. and “Make yourself holy through what is appropriate for you.”³⁹B. Yebamot 20a: “Make yourself holy through what is permitted to you.” And the author of Ecclesiastes said, “I said to myself, ‘Come, I will treat you to merriment. Taste mirth!’ That too, I found was futile.”⁴⁰Eccl. 2:1. And after that, he said, “I ventured to tempt [limshokh] my flesh with wine.”⁴¹Ibid. 2:3. Limshokh here is from the root of the same verb R. Bahya used above to refer to being drawn to wine, i.e., “being drawn [he-hamshekh] to wine and other pleasures…is one drawn [nemshakh] to the drug of death.” Thus, R. Bahya is using Eccl. 2:3 as a sort of prooftext for his point about wine. And in tractate Sanhedrin of the Talmud:⁴²B.Sanhedrin 70a. “Thirteen woes are said about wine, and they are specified in Parshat Noah. It is written, ‘Noah, the tiller of the soil, was the first to plant a vineyard,’⁴³Gen 9:20. which means from the moment he began to plant, he made his holiness profane. That is the point of the expression va-yahel – “he began”- which includes both the connotations of “beginning” (tehilah) and “profanation” (hillul). And because of wine, one third of the world was cursed.⁴⁴That is, the descendents of Ham were condemned to serve the descendents of his brothers Shem and Japhet, because when Noah, after drinking his wine, fell asleep in a drunken stupor, Ham “saw his nakedness.” Normally this is a Biblical euphemism for having sexual relations, hence the severity of the curse. The curse was actually directed at Ham’s son Canaan, most likely to justify morally the Israelites’ subsequent subjugation of the Canaanites and their land. However, the whole account is ambiguous and full of apparent non-sequiturs, prompting a quite a fruitful growth of midrashic attempts to explain the story. One unfortunate stream of interpretation, that Ham’s curse not only involved eternal servitude but also the blackening of his skin color, was later adopted in Christian and Muslim traditions, and used to justify the enslavement of Black Africans well into the 19th century – the so-called “Curse of Ham.” And they also taught in a midrash, “Don’t eye the wine, as it reddens…,”⁴⁵Prov. 23:31. that is, it yearns for blood.⁴⁶B. Sanhedrin 70a. And likewise Bathsheba warned King Solomon not to tempt his flesh with wine,⁴⁷B. Sanhedrin 70b.when she said to him, “Wine is not for kings, O Lemuel; not for kings to drink, nor any beer for princes.”⁴⁸Prov. 31:4. The midrash above identifies “Lemuel’s mother” (Prov. 31:1) with Bathsheba, the mother of King Solomon. And so he said, “I ventured to tempt my flesh with wine,”⁴⁹Eccl. 2:3. and “for who eats, and who feels the pleasures of the senses but me?”⁵⁰Ibid., 2:25. and then remarks after that, “That too is futile.”⁵¹Ibid., 2:26. For it is well known that someone in whose heart reverence for HaShem and fear of Him is strong, will reject and separate himself from the pleasures of the world, and will scorn them to the utmost, for he knows and is familiar with their consequences, while others who are lesser or worthless will fill their bellies with what delights them, and their vessels will return empty; they’re empty because they lack sense “They neither know nor understand; they walk about in darkness.”⁵²Ps. 82:5. About this, Solomon said, “When you sit down to dine with a ruler, consider well who is before you.”⁵³Prov. 23:1. He said, “If the wrath of the ruler rises up against you”⁵⁴Eccl. 10:4. and you go out to eat “the king’s food or the wine he drank”⁵⁵Dan. 1:8. in the house of the king who rules the land, understand well and look at those who were before you who chose this way- “what they saw in that matter and what had befallen them.”⁵⁶Esth. 9:26. Doesn’t the high status and greatness of most of them end up in humiliation and submission, “wholly swept away by terrors”?⁵⁷Ps. 73:19. Just what is written right afterwards in Proverbs, “Thrust a knife in your gullet!”⁵⁸Prov. 23:2.And our rabbis z”l said, “Do not yearn for the tables of kings, for your table is greater than their table, your crown greater than their crown.”⁵⁹M. Avot 6:5. Therefore, a person should not seek excessive gains and pursue them, for if he does, his days will be painful and he will never be satisfied, because there is no end to these gains, and whoever pursues things that have no end – is he not sick, blinded by his stupidity? For “every fool is embroiled.”⁶⁰Prov. 20:3. It goes without saying that he has no share in the Torah, because if he were rich and used to eating and drinking with silver dishes, he would be liable to think little of them and become unsatisfied until he had utensils of “turquoise, sapphire, and diamond,”⁶¹Ex 28:18. and as soon as he obtained one of them, he’d want two or three, and this would go on without out end. And therefore a person with good qualities must not in his heart crave for excessive gains, and should be satisfied with a little.

(2) And he [the speaker of lashon hara] also transgresses (Vayikra 19:18): "And you shall love your neighbor as yourself," whereby we have been commanded to be as solicitous for our friend's money as we are for our own, and to be solicitous of his honor, and to speak in his praise, as we are solicitous for our own honor. And if one speaks or receives lashon hara and rechiluth against his friend, though it be true, it is apparent that he does not love him at all — how much more so is he in violation of "as yourself!"
And the great proof of this [that he is in violation of "as yourself"] is as follows: Does not every man know his own shortcomings? — in spite of which he would not want his friend to know, under any circumstances, even one thousandth of them! And even if it happens that a few of his faults become known to his friend, who goes and speaks of them to others — how he stands and waits, wishing the L–rd to grant that they not accept his words and not believe him! And all so that he not be seen in their eyes as unworthy — even though he knows himself to be guilty of very many sins, far more than his friend has revealed. In spite of this, in the access of his self-love, everything is swept away. Thus, exactly in this way must one conduct himself vis-à-vis his friend according to the Torah, to be solicitous of his honor in every respect.
And not in vain did the Torah relate to us the episode of Noach, viz. (Bereshith 9:21-23): "And he drank from the wine and he was inebriated and he uncovered himself in the midst of his tent. And Cham the father of Canaan saw the nakedness of his father and he told his two brothers outside. And Shem and Yefeth took the garment and placed it on the shoulders of both and they covered the nakedness of their father, and their faces were [kept] turned backwards [when they drew near him to cover him], and the nakedness of their father they did not see." And the Torah also relates to us the blessing by which Noach blessed them (viz. Ibid 26-27) and which was ultimately realized — to reveal to us the greatness of this attribute, that one must cover up any unseemliness in his friend with all of his power, just as he would for himself!

(2) And he [the speaker of lashon hara] also transgresses (Vayikra 19:18): "And you shall love your neighbor as yourself," whereby we have been commanded to be as solicitous for our friend's money as we are for our own, and to be solicitous of his honor, and to speak in his praise, as we are solicitous for our own honor. And if one speaks or receives lashon hara and rechiluth against his friend, though it be true, it is apparent that he does not love him at all — how much more so is he in violation of "as yourself!"
And the great proof of this [that he is in violation of "as yourself"] is as follows: Does not every man know his own shortcomings? — in spite of which he would not want his friend to know, under any circumstances, even one thousandth of them! And even if it happens that a few of his faults become known to his friend, who goes and speaks of them to others — how he stands and waits, wishing the L–rd to grant that they not accept his words and not believe him! And all so that he not be seen in their eyes as unworthy — even though he knows himself to be guilty of very many sins, far more than his friend has revealed. In spite of this, in the access of his self-love, everything is swept away. Thus, exactly in this way must one conduct himself vis-à-vis his friend according to the Torah, to be solicitous of his honor in every respect.
And not in vain did the Torah relate to us the episode of Noach, viz. (Bereshith 9:21-23): "And he drank from the wine and he was inebriated and he uncovered himself in the midst of his tent. And Cham the father of Canaan saw the nakedness of his father and he told his two brothers outside. And Shem and Yefeth took the garment and placed it on the shoulders of both and they covered the nakedness of their father, and their faces were [kept] turned backwards [when they drew near him to cover him], and the nakedness of their father they did not see." And the Torah also relates to us the blessing by which Noach blessed them (viz. Ibid 26-27) and which was ultimately realized — to reveal to us the greatness of this attribute, that one must cover up any unseemliness in his friend with all of his power, just as he would for himself!

Rav Judah stated in the name of Rav, "Adam was not permitted meat for purposes of eating as it is written, 'for you shall it be for food and to all beasts of the earth' (Genesis 1:29), but not beasts of the earth for you. But when the sons of Noah came [He] permitted them [the beasts of the earth] as it is said, 'as the green grass have I given to you everything' (Genesis 9:3)."

These sources, however, serve only to demonstrate that animal-directed conduct which is compassionate in nature constitutes a "good deed" but do not serve to establish a system of normative duties or responsibilities. Particularly in light of the strong nomistic element present in Judaism, the absence of normative regulations might well be regarded as indicative of the absence of serious ethical concern for the welfare of members of the animal kingdom. But this is demonstrably not the case, for, in Jewish teaching, there is no dearth of nomoi designed to protect and promote animal welfare. The most obvious example of a regulation having such an effect, and one which is clearly biblical in origin, is contained in the verse "If thou seest the ass of him that hateth thee lying under its burden, thou shalt forebear to pass by him; thou shalt surely release it with him" (Exodus 23:5). The selfsame concern is manifest in the prohibition against muzzling an ox while it threshes in order that the animal be free to eat of the produce while working (Deuteronomy 25:4). Similarly, Scripture provides that both domestic animals and wild beasts must be permitted to share in produce of the land which grows without cultivation during the sabbatical year.⁴See Me’iri, Baba Meẓi‘a 33a, and Sefer ha-Ḥinnukh, no. 596. The purpose of other biblical laws pertaining to animals in less clear-cut. The prohibition against plowing with animals of different species, recorded in Deuteronomy 22:10, is understood by Sefer ha-Ḥinnukh, no. 550, as well as by Da‘at Zekenim mi-Ba’alei ha-Tosafot and Ba’al ha-Turim in their respective commentaries on Deuteronomy 22:10, as rooted in considerations of prevention of cruelty to animals, but is understood in an entirely different manner by Rambam, Guide of the Perplexed, Book III, chapter 49, as well as by Ramban in his commentary on Deuteronomy 22:10. However, Rambam, Guide, Book III, chapter 48, regards the prohibition against slaughtering an animal and its young on the same day, recorded in Leviticus 22:28, as a precautionary measure designed to prevent the slaughter of the offspring in the presence of its parent. The underlying concern is to spare the mother the anguish of seeing her young killed before her eyes “for in these cases animals feel very great pain, there being no difference regarding this pain between man and the other animals. For the love and the tenderness of a mother for her child is not consequent upon reason, but upon the activity of the imaginative faculty, which is found in most animals just as it is found in man.” Here, Rambam speaks of concern for the welfare of the animal rather than for the moral character of the human agent; see below, notes 14-15 and accompanying text. This interpretation is reflected in the comments of R. Baḥya ben Asher, Leviticus 22:28, and, in part, in Sefer ha-Ḥinnukh, no. 294. Sefer ha-Ḥinnukh regards the commandment prohibiting the slaughter of an animal and its young on the same day as designed both to spare the parent from anguish and as a conservation measure as well. See also Abarbanel’s Commentary on the Bible, ad locum. Rambam’s analysis of the rationale underlying this precept is rejected by Ramban in his Commentary on the Bible, Deuteronomy 22:6. According to Ramban, the concern is not to avoid pain to the animal but to purge man of callousness, cruelty and savagery.
Although the Gemara, Baba Meẓi‘a 32a, declares that assistance in unloading a burden from an animal is mandated by reason of ẓa’ar ba’alei ḥayyim but that the obligation to assist in loading the burden upon the animal is not independently mandated by reason of ẓa‘ar ba’alei ḥayyim, Ritva, cited by Shitah Mekubeẓet, Baba Meẓi‘a 31a, s.v. aval te’inah, asserts that the commandment requiring a person to render assistance to another who is engaged in loading an animal is predicated upon considerations of ẓa‘ar ba’alei ḥayyim. According to Ritva, a single person engaged in this task is likely to cause additional discomfort to the animal by applying the full force of his body weight whereas, when he is assisted by another, there is no need to apply similar pressure.
Sefer ha-Ḥinnukh, no. 186, is of the opinion that the prohibition against the slaughter of sanctified animals outside the Temple precincts is rooted in considerations of ẓa‘ar ba’alei ḥayyim. According to Sefer ha-Ḥinnukh, such slaughter is forbidden because no purpose is served thereby and hence constitutes ẓa‘ar ba’alei ḥayyim. See below, note 29.
Neither the prohibition against mating animals of different species, Leviticus 19:19, nor the prohibition against emasculation of animals, Leviticus 22:24, is understood by classical rabbinic scholars as rooted in considerations of animal welfare. For a discussion of animal welfare as a possible rationale associated with other commandments, see R. Joel Schwartz, Ve-Raḥamav al Kol Ma’asav (Jerusalem, 5744), pp. 11-16. Although the literal meaning of the biblical text may be somewhat obscure, talmudic exegesis understands Genesis 9:4 and Deuteronomy 12:23 as forbidding the eating of a limb severed from a living animal. Jewish law teaches that this prohibition, unlike most other commandments, is universally binding upon all peoples as one of the Seven Commandments of the Sons of Noah. Sabbath laws contained in both formulations of the Decalogue reflect a concern which goes beyond the mere elimination of pain and discomfort and serve to promote the welfare of animals in a positive manner by providing for their rest on the Sabbath day: "But the seventh day is a Sabbath unto the Lord thy God, on it thou shalt not do any manner of work … nor thine ox, nor thine ass, nor any of thy cattle …" (Deuteronomy 5:14). Even more explicit in expressing concern for the welfare of animals is the verse "… but on the seventh day thou shalt rest; that thine ox and thine ass may have rest" (Exodus 23:12).⁵The requirement that the parent bird be released before the young are taken and the concomitant prohibition against taking both the parent and the young, recorded in Deuteronomy 22:6-7, quite obviously have the effect of sparing the parent from anguish. The Mishnah, Berakhot 33b, however, does not view this desideratum, laudable as it may be, as the underlying purpose of the commandment. Cf., however, Rambam, Guide, Book III, chapter 48; Ramban, Commentary on the Bible, Deuteronomy 22:6; and Sefer ha-Ḥinnukh, no. 545.

In point of fact, this talmudic dictum is simply a terse statement of the relevant law prior to the time of Noah but is silent with regard to any validating rationale. While the statement in question may well be compatible with a vegetarian ideal, it may quite readily be comprehended as reflecting entirely different considerations. Indeed, the classic biblical commentators found entirely different explanations for the change which occurred with regard to dietary regulations. Thus, for example, R. Jacob ben Asher, renowned as the author of the Tur Shulḥan Arukh, in his commentary on Genesis 1:29, explains that, prior to partaking of the fruit of the Tree of Knowledge, Adam lacked any desire for meat; only subsequent to eating of the forbidden fruit did man acquire a carnivorous nature. Hence the dispensation granted to Noah to eat the flesh of animals simply reflects man's transformed biological needs. R. Meir Leibush Malbim, in his commentary on Genesis 9:3, remarks that Adam was endowed with a "strong" constitution and that the produce available in the Garden of Eden was nutritionally optimal in nature. Under such circumstances, Adam's dietary needs could be satisfied without recourse to meat. Only as mankind degenerated physically as well as spiritually, became geographically dispersed and hence subject to the vagaries of climate, and as the quality of available produce became nutritionally inferior, did it become necessary for man, in his "weakened" state, to supplement his diet with animal products in order to assure the availability of the nutrients required for his biological needs.

In the early days of in vitro fertilization a position similar to that advanced by Rabbi Waldenberg was presented by R. Judah Gershuni in the Tishri 5739 issue of Or ha-Mizraḥ.⁸This article is reprinted in Rabbi Gershuni’s Kol Ẓofayikh (Jerusalem, 5740), pp. 361–367. Rabbi Gershuni's argument is based upon a statement of Divrei Malki'el, IV, no. 107. There is a significant disagreement among rabbinic authorities with regard to whether a paternal relationship may occur as a result of artificial insemination or whether such a relationship can arise only as the result of a sexual act.⁹The primary source affirming a paternal relationship is Hagahot Semak, cited by Mishneh le-Melekh, Hilkhot Ishut 15:4; Baḥ, Yoreh De‘ah 195; and Bet Shmu’el, Even ha-Ezer 1:10. A similar view is expressed by Ḥelkat Meḥokek, Even ha-Ezer 1:8; Teshuvot Tashbaẓ, III, no. 263; Turei Even, Ḥaggigah 15a; Bnei Ahuvah, Hilkhot Ishut 15; Arukh la-Ner, Yevamot 10a; Mishneh le-Melekh, Hilkhot Issurei Bi’ah 17:13; She’ilat Ya‘aveẓ, II, no. 97; Maharam Shik al Taryag Miẓvot, no. 1; Teshuvot Divrei Malkiel, II, no.107; R. Shlomoh Zalman Auerbach, No‘am, I (5717), 155; R. Israel Ze’ev Mintzberg , No‘am, I, 129; R. Joshua Baumol, Teshuvot Emek Halakhah, I, no. 68; R. Avigdor Nebenzahl, Sefer Assia, V, 92–93; and R. Ovadiah Yosef, quoted by Moshe Drori, Teḥumin, I (5740), 287, and Abraham S. Abraham, Nishmat Avraham, Even ha-Ezer 1:5, sec. 3. An opposing view is expressed by Taz, Even ha-Ezer 1:8; Birkei Yosef, Even ha-Ezer 1:14; R. Ovadiah Hedaya, No‘am, I, 130–137; R. Moshe Aryeh Leib Shapiro, No‘am, I, 138–142; and R. Ben Zion Uziel, Mishpetei Uzi’el, Even ha-Ezer, no. 19, reprinted in Piskei Uzi’el (Jerusalem, 5737), pp. 282–283. Teshuvot Ḥelkat Ya‘akov, I, no. 24, regards the issue as a matter of doubt. Divrei Malki'el expresses tentative support for the latter position but does so on the basis of the novel view that "once the semen has been emitted and has warmth only because of the ministration of the physician and his skill with the pipette or due to the heat of the bath" a baby born as a result of that process is not regarded as the son of the donor. Although Divrei Malki'el stands virtually alone in developing this argument¹⁰In his previously cited article in Be-Shevilei ha-Refu’ah, p. 30, R. Moshe Sternbuch presents an argument quite similar to that advanced by Divrei Malki’el in rejecting a paternal relationship between the donor of the semen and the child born of subsequent in vitro fertilization even when the zygote is implanted in the donor’s wife. Rabbi Sternbuch argues that “the act of conception takes place in the sterile petri dish itself which acts to commence conception, to unite both of them (i.e., the ovum and the sperm) as in the womb. This is not in the manner of conception since another power is combined therein, that is, the petri dish.”
The effect of denying paternal identity, asserts Rabbi Sternbuch, is to prohibit in vitro fertilization entirely. Rabbinic authorities who permit ejaculation of semen by the husband for purposes of artificial insemination sanction that procedure only because it leads to procreation. However, if in vitro fertilization does not result in a father-child relationship it does not serve to fulfill the commandment to “be fruitful and multiply” and hence ejaculation of semen for purposes of in vitro procedures is not permissible. See sources cited supra, note 8. With regard to artificial insemination, some authorities, including Arukh la-Ner, Yevamot 10a, and Maharam Shik al Taryag Miẓvot, no. 1, maintain that, although the child is considered the son of the donor, the donor does not fulfill the precept of procreation because no sexual act is involved. Rabbi Gershuni, although he too denies that artificial insemination results in a paternal-filial relationship, nevertheless regards the procedure as permissible for a married couple. Rabbi Gershuni argues that although artificial insemination does not serve to fulfill the commandment to “be fruitful and multiply,” nevertheless, since the procedure results in procreation of the human species, it serves to fulfill the prophetic mandate “He created [the universe] not to be a waste, He formed it to be populated” (Isaiah 45:18) and hence ejaculation of semen for that purpose is not for naught.
For a vaguely similar reason Rabbi Sternbuch, p. 29, opines that destruction of an embryo fertilized outside of a woman’s body is not prohibited. He states that “…. the prohibition against abortion is in the woman’s uterus, for the [embryo] has the potential to develop and become complete in her womb and it is destroyed. But here, outside the womb, an additional operation is required to implant [the embryo] in the woman’s uterus and without this it will … of its own not reach completion….” Rabbi Sternbuch cites no sources in support of that distinction. A similar view is advanced, without elaboration or citation of sources, by R. Chaim David Halevy, Assia, vol. XII, no. 3–4 (Kislev 5750). One source that might be cited in support of such a conclusion is Teshuvot Ḥakham Ẓevi, no. 93. Citing Sanhedrin 57b, Ḥakham Ẓevi rules that destruction of a golem does not constitute an act of homicide and is not prohibited because its gestation is not in the form of a “man within a man,” as evidenced by the fact that the Gemara, Sanhedrin 65b, reports that Rabbi Zeira commanded a person created by utilization of Sefer Yeẓirah to return to dust. That statement, however, cannot be taken as definitive since Ḥakham Ẓevi concludes that a golem lacks status as a Jew or as a human being for other purposes as well. See also R. Joseph Rosen, Teshuvot Ẓofnat Pa‘aneaḥ (Jerusalem, 5728), II, no. 7. Genesis 9:6 is cited by the Gemara and rendered “Whosoever sheds the blood of a man within a man his blood shall be shed” in establishing feticide as a capital transgression in the Noahide Code. Accordingly, there would be strong grounds to assume that a Noahide does not incur capital punishment for destruction of an embryo fertilized in vitro, but not for support of the position that a person born of in vitro fertilization may be destroyed with impunity or even for the position that there is no halakhic consideration forbidding a Jew to destroy a developing embryo outside the human body. Moreover, Ramban, cited by Ran, Yoma 82a, and Rosh, Yoma 8:13, maintains that Sabbath restrictions and the like are suspended for the purpose of preserving the life of a fetus. Those comments clearly reflect the view that there is an obligation to preserve fetal life. Thus, there are no obvious grounds for assuming that nascent human life may be destroyed with impunity simply because it is not sheltered in its natural habitat, i.e., its development takes place outside the mother’s womb. R. Samuel ha-Levi Woszner, Teshuvot Shevet ha-Levi, V, no. 47, expresses the opinion that Sabbath restrictions are not suspended for the preservation of a zygote that has as yet not been implanted in the gestational mother on the grounds that the vast majority of such zygotes are not viable but adds the cautionary note that the empirical situation, and hence the halakhic ruling, may change with advances in the development of reproductive knowledge and techniques. The clear implication of his position is that destruction of such nascent life cannot be countenanced. R. Mordecai Eliyahu, Teḥumin, XI (5750), states unequivocally that surplus ova may not be destroyed. For a further discussion of the propriety of destroying fertilized ova see this writer’s article, “Ethical Concerns in Artificial Procreation: A Jewish Perspective,” Publications de l’Academie du Royaume du Maroc, vol. X: Problèmes d’Éthique Engendrés par les Nouvelles Maîtrises de la Procréation Humaine (Agadir, 1986), pp. 143–145.
There are, however, strong reasons to assume that there is no prohibition against the destruction of a nonviable fetus, as is stated by Rabbi Sternbuch, loc. cit. See Abraham S. Abraham, Nishmat Avraham, Ḥoshen Mishpat 425:1, sec. 19, and R. Zalman Nechemiah Goldberg, Teḥumin, V, 250. Nevertheless, such a conclusion is contrary to the view expressed by R. Eleazar Fleckles, Teshuvah me-Ahavah, no. 53, with regard to a nonviable neonate. See also Teshuvot Radbaz, II, no. 695. and himself concludes that a child born of artificial insemination is indeed the child of the donor, Rabbi Gershuni observes that a fertilized zygote sustained in a petri dish by means of "artificial nutrition and blood serum" should not be regarded by Jewish law as the child of either parent. The earlier presented rebuttal of Rabbi Waldenberg's argument applies with equal force to that advanced by Rabbi Gershuni. Moreover, any cogency the argument may have with regard to establishment of a paternal relationship notwithstanding, if parturition, in and of itself, serves to establish a maternal relationship, the sources of antecedent nutrition of the fetus are totally irrelevant.

An offense not entailing statutory punishment is certainly not an anomaly. Many such prohibitions are known to be biblical in nature. Others are recognized as having been promulgated by the Sages in order to create a "fence" around the Torah or in order formally to prohibit conduct which could not be countenanced on ethical grounds. Under which category is the prohibition against feticide to be subsumed? Is this offense biblical or rabbinic in nature? At least three diverse lines of reasoning have been employed in establishing the biblical nature of the offense. Rabbi Chaim Ozer Grodzinski demonstrates that the remarks of Tosafot, taken in context, clearly indicate a biblical proscription rather than a rabbinic edict.⁵Teshuvot Aḥi‘ezer (Wilno, 5699) III, 65, sec. 14. Although not adduced by Aḥi‘ezer, there is ample evidence that the principle “Is there anything which is forbidden to a Noachide yet permitted to a Jew?” establishes a biblical prohibition. Tosafot, Ḥullin 33a, states explicitly with regard to ḥaẓi shi‘ur (which is forbidden to Noachides) that the principle “Is there anything which is forbidden to a Noachide yet permitted to a Jew?” is consistent only with the opinion of R. Yochanan, who deems ḥaẓi shi‘ur to be biblically forbidden and in contradiction to the opinion of Resh Lakish, who deems ḥaẓi shi‘ur to be rabbinically proscribed. Cf. R. Samuel Engel, Teshuvot Maharash (Varnov, 5696), V, no. 89, and R. Isaac Schorr, Teshuvot Koaḥ Shor (Kolomea 5648), no. 20, page 33b; see also Sedei Ḥemed, I, 175. Feticide, as Tosafot notes, is expressly forbidden under the statutes of the Noachide Code. The Noachide prohibition is derived by R. Ishmael (Sanhedrin 57b) from the wording of Genesis 9:6. Rendering this verse as "Whoso sheddeth the blood of man, within man shall his blood be shed" rather than "Whoso sheddeth the blood of man, by man [i.e., through a human court] shall his blood be shed." R. Ishmael queries, "Who is a man within a man? … A fetus within the womb of the mother." Tosafot deduces that this practice is prohibited to Jews as well by virtue of the talmudic principle, "Is there anything which is forbidden to a Noachide yet permitted to a Jew?" Application of this principle clearly establishes a biblical prohibition.

(2) A number of medieval scholars, including R. Issac Abarbanel in his commentary on Genesis 9:3 and Isaiah 11:7, and R. Joseph Albo, Sefer ha-Ikkarim, Book III, chapter 15, regard vegetarianism as a moral ideal, not because of a concern for the welfare of animals, but because of the fact that the slaughter of animals might cause the individual who performs such acts to develop negative character traits, viz., meanness and cruelty. Their concern was with regard to possible untoward effect upon human character rather than with animal welfare.²See also R. Abraham I. Kook, Iggerot Re’iyah (Jerusalem, 5722), II, 230.

R. Meir Simchah of Dvinsk, in his biblical novellae, Meshekh Hokhmah, Exod. 35:2, offers an interesting scriptural foundation for this prohibition, demonstrating that, while not a penal crime, the killing of a fetus is punishable by "death at the hands of heaven." ⁶However, cf. R. Samuel Strashun, Mekorei ha-Rambam le-Rashash (Jerusalem, 1957), p. 45, who writes that although feticide is biblically forbidden “perhaps there is no punishment even ‘at the hands of heaven.’ ” He observes that Scripture invariably refers to capital punishment by employing the formula "mot yumat—he shall surely be put to death." The use of the single expression "yumat—he shall be put to death" as, for example, in Exodus 21:29, is understood in rabbinic exegesis as having reference to death at the hands of heaven. Thus, R. Meir Simchah argues, the verse "and he that smiteth a man shall be put to death—yumat" (Lev. 24:21) is not simply a reiteration of the penalty for homicide but refers to such destruction of life which is punishable only at the hands of heaven, i.e., the killing of a fetus. Reference to the fetus as "a man" poses no difficulty since the fetus is indeed described as "a man" in the above cited verse (Gen. 9:6) prescribing death for feticide under the Noachide Code.

(Nun) “We hold that a lion does not pounce upon two people. But [how is it that] we see that it [actually] pounces? [That only happens when they appear to the lion to be like beasts], as it is stated, ‘[But man does not abide in honor], he is like the beasts that perish’ (Ps. 49:13).”⁴⁹Shabbat 151b. And it appears to me that this is according to that which is written in the Zohar, Parashat:⁵⁰Zohar 1:13b.
The ninth commandment is to give to the poor, etc., as it is written (Gen 1:26), “Let Us make man in Our image, in Our likeness” – “Let Us make man,” a partnership that includes male and female (attributes); “in Our image,” wealthy, and from the side of the female, poor, etc. So must man below be rich and poor in one association, etc. It is a secret. As so do we see in the book of King Shlomo, that anyone who has pity on the poor with his heart’s desire never has his image transformed from being the image of man. And since the image of man is imprinted upon [such a man], he rules over every creature. This is what is written (Gen. 9:2), “The fear of you and the dread of you shall be upon all the beasts of the earth, etc.” From where do we [know this]? From Nevukhadnetsar – the whole time that he fed the poor, he was not punished, even though he dreamt that dream.⁵¹See Dan. 2. And when he became liable [for punishment], what is written? “The word was still in the mouth of the king, etc.” (Dan. 4:28). Immediately, his image changed, etc. [See there].
And this is [the understanding of] “a lion does not pounce upon two people” – its explanation is that if a man includes⁵²Kallul. Some editions have ballul (mixed) instead, but the two parallel passages in this paragraph read kallul in all editions, indicating that it should be so here as well. both male and female – poor and rich – together, [then] the face of man is in front of him and he will rule over every creature. But the questioner [in the Talmud] did not understand [this]. And for this reason, he asked, “But [how is it that] we see that it does pounce?” And it answers, “That is when he appears to it as a beast,” meaning that male and female are not included in him. [In that case], even a hundred of them are like a beast to them. But “two people” in one association (within one man) – in image and likeness – fulfills [the requirement for] “The fear of you, etc.” And this is the intention of the singer of the Psalms: “Man walks about only as an image; mere futility is his hustle and bustle, amassing and not knowing who will gather in” (Ps. 39:7). Its explanation is that if a man only walks about with the image; but the likeness – which is the side of the female, the destitute – is not included; then “mere futility is his hustle and bustle, amassing and not knowing who will gather in.” And [so] he has no permanence in him.

Under Noachide law, as recorded by Rambam, Hilkhot Melakhim 9:14, the testimony of a single eyewitness is sufficient for conviction and execution of the death penalty. This provision of the Noachide Code is derived by the Gemara, Sanhedrin 57b, from the phraseology employed in Genesis 9:5 which establishes the culpability of Noachides for violations of the Seven Commandments. However, even before Noachide courts, just as in proceedings before Jewish courts, only uncontradicted testimony is acceptable as a basis for punishment, as is demonstrated by the nineteenth-century scholar R. Joseph Babad, Minḥat Hinnukh, no. 26.

A confession of guilt is not admissible as evidence before a Jewish court. Whether or not a confession is admissible and constitutes sufficient grounds for conviction in Noachide courts is a matter of considerable dispute. The thirteenth-century authority, R. Aaron ha-Levi of Barcelona, Sefer ha-Hinnukh, no. 26, rules that a confession of guilt is sufficient for conviction under Noachide law. There is, however, no reference whatsoever to acceptance of a confession of guilt by a Noachide court either in the Talmud or in Rambam's Mishneh Torah.⁶Cf., the interesting comments of R. Yechiel Ya‘akov Weinberg, Seridei Esh, II, no. 104, regarding the possible positions of Rambam and Radbaz. Rashi, in his commentary to II Samuel 1:16, explains that the Amalekite lad who reported that he had killed King Saul was summarily executed because he stood convicted "by his own mouth." Assuming that the term "ger" used in describing the Amalekite lad is, in this instance, to be translated as "stranger" rather than as "proselyte,"⁷See the commentaries of Ralbag and Malbim on II Samuel 1:16; see also Torah Temimah, Genesis 9:5. Cf., Rambam, Hilkhot Sanhedrin 18:6 who expressly refers to the lad as a proselyte. See also the interesting comments of R. Shimon Moshe Diskin, Mas’et ha-Melekh al ha-Rambam (Jerusalem, 5736), no. 273 and idem, Ohel Yehoshu‘a al ha-Torah (Jerusalem, 5738), p. 61, who suggests that the term ger denotes a ger toshav. Citing R. Yitzchak Ze’ev Soloveitchik, Ḥiddushei ha-Riz al ha-Rambam, p. 164, who maintains that a ger toshav who subsequently renounces his acceptance of the Seven Commandments reverts to his former status, Rabbi Diskin asserts that the Amalekite’s declaration that he had slain Saul constituted such a renunciation and hence he reverted to the status of an Amalekite and was put to death on that account. Rashi's comment is in agreement with the position of Sefer ha-Hinnukh. Torah Temimah, Genesis 9:5, finds a source for this position in the Palestinian Talmud, Kiddushin 1:1, but indicates that the meaning of the text is not entirely clear. In his opinion, it is this textual ambiguity which accounts for the conflicting views with regard to the acceptance of a confession by Noachide courts.

The most obvious exception is the slaughtering of animals for meat which is specifically permitted by Scripture to Noah and his progeny: "Every moving thing that liveth shall be food for you" (Genesis 9:3). Rambam, followed by Sefer ha-Hinnukh, regards this exception as circumscribed by the provisions surrounding the requirement for ritual slaughter in order to eliminate pain.¹⁷Indeed, sheḥitah is the most humane method of slaughter known to man. The procedure involves a transverse cut in the throat of the animal with an extremely sharp and smooth knife. Due to the sharpness of the knife and the paucity of sensory cutaneous nerve endings in the skin covering the throat, the incision itself causes no pain. The incision severs the carotid arteries as well as the jugular veins. The resultant massive loss of blood causes the animal to become unconscious in a matter of seconds. There is ample clinical evidence confirming the total absence of pain to the animal as a result of sheḥitah. This has long been recognized by scientists of international repute. In view of recurring misinformed attacks upon sheḥitah it is instructive to cite at length a portion of a detailed, clarificatory statement authored by Dr. Leonard Hill, Professor of Physiology, University of London, and Director of Applied Physiology, National Institute for Medical Research, which appeared in Lancet, CCV (1923), 1382 [reprinted in Solomon David Sassoon, A Critical Study of Electrical Stunning and The Jewish Method of Slaughter (Shechita) 3rd edition, (Letchworth, 1955), pp. 4-6]. Dr. Hill writes:
See also Leonard Hill, “The Jewish Method of Slaughter: A Rejoinder to the Dutchess of Hamilton,” The English Review, June 1923, pp. 604-607, reprinted in Sassoon, pp. 36-38. Further statements confirming the painless nature of sheḥitah by Lord Horder, F.A.C.P., and Sir C. P. Lovatt Eveans, Emeritus Professor of Physiology, London University, are included in Sassoon, pp. 38-39. See also Solomon David Sassoon, Supplement to the Booklet Entitled: A Critical Study of Electrical Stunning and The Jewish Method of Slaughter (Shechita) (Letchworth, 1956).
Both the absence of pain as a result of the incision and the almost instanteous loss of consciousness subsequent to sheḥitah are confirmed in a report prepared in 1963 by L. I. Nangeroni and P. D. Kennett of the Department of Physiology, New York State Veterinary College, Cornell University, Ithaca, New York, titled “An Electroencephalographic Study of the Effect of Shechita Slaughter on Cortical Function in Ruminants.” The primary significance of this study lies in the clinical investigation of changes in function which occur in the cerebral cortex following the act of sheḥitah. The investigators utilized an electroencephalograph in order to determine the precise moment at which the slaughtered animal ceases consciously to perceive pain and other environmental stimuli. Recordings were taken with sheep, calves and goats as subjects. It was determined that in the rams tested the time which elapsed subsequent to the making of the incision until the cerebral cortex lapsed into a state of complete unconsciousness ranged from 3.3 to 6.2 seconds. In calves it was found that consciousness appeared to be poor by the time that four seconds had elapsed after the cut and complete unconsciousness, in which condition the animal could not perceive stimuli of any kind, became manifest between 4.4 and 6.9 seconds after the cut. Of two goats tested, one became unconscious 5 seconds after slaughter; in the case of the second goat, the electroencephalogram was obscured and hence it was impossible to determine the exact time at which unconsciousness was reached.
Electroencephalographic evidence serves to determine the precise moment at which the animal becomes unconscious and conclusively establishes the time beyond which it is manifestly impossible for the animal to experience pain. In the animals examined this ranged between 3.3 and 6.9 seconds subsequent to slaughter. However, this does not mean that the animals experienced pain during the few seconds prior to becoming unconscious. Indeed, there is no way of interpreting an electroencephalogram to determine whether or not pain is actually being experienced by a conscious animal. The electroencephalogram can only serve to establish that the animal is, in fact, unconscious and hence no longer capable of experiencing pain. With regard to the possibility of pain in conjunction with the actual incision before the animal loses consciousness, the report, p. 17, states:
The absence of pain in association with a sharp incision is confirmed by a report of a bizarre incident recorded by H. Spörri, Schächten und Tierschutz (Report, University of Zurich, 1965), who describes the case of a man who cut his throat, including the trachea and esophagus but not the carotids. This person survived to report that the pain had not been severe.
These findings were confirmed by W. Schulze et al., Versuche zur Objektivierung von Schmerz und Bewusstsein bei der konventionellen (Bolzenschussbetäubung) sowie religionsgesetzlichen (Schächtschnitt) Schlachtung von Schaf und Kalb,” Deutsche Tierärztliche Wochenschrift, LXXXV, (February 5, 1978), 62-66. These researchers found it highly probable that in sheep a state of unconsciousness is reached within 4 to 6 seconds and in cattle within 10 seconds. A completely flat electroencephalogram was reached after no more than 13 seconds in sheep and after no more than 23 seconds in calves. During the few seconds in which consciousness might exist, a thermic pain stimulation caused no change in the EEG. The same authors conducted similar investigations upon animals subjected to electrical stunning and found that it took longer to reach a flat EEG and, moreover, that thermal pain stimulation as well as a subsequent incision produced a change in the EEG. Similar differences between sheḥitah and stunning were found by R. Gross, “Elektroencephalegraphische und elektrocardiographische Verlaufsuntersuchungen nach Bolzenschussbetäubung und nach Töten durch Entbluten in der Form des rituellen Schlachtens,” Thesis, University of Hannover, 1976.
See also I. M. Levinger, “Jewish Method of Slaughtering Animals for Food and its Influence on the Blood Supply to the Brain and on the Normal Functioning of the Nervous System,” Animal Regulation Studies, II (1979), 111—26, and the studies concerning physiological aspects of sheḥitah cited in the extensive bibliography appended to that article. According to Rambam, those provisions are designed to limit the pain insofar as possible. Thus in the Guide, Book III, chapter 26, Rambam states:

Terumat ha-Deshen, Pesakim u-Ketavim, no. 105, regards the permissibility of causing suffering to animals for the benefit of mankind to be inherent in the biblical dispensation granting man the right to use animals for his needs.⁴⁰This concept is echoed in Psalms 8:7-9 which says of man: “Thou hast made him to have dominion over the works of Thy hands; Thou hast put all things under his feet. Sheep and oxen, all of them, yea, and the beasts of the field. The fowl of the air, and the fish of the sea; whatsoever passeth through the paths of the seas.”
As evidenced by numerous biblical verses, it is clear that man is granted license to utilize animals as beasts of burden, for agricultural purposes, as a means of transportation and the like. Judaism also accepts the view that animals were created for the benefit of mankind. Thus, the Gemara, Berakhot 6b, reports: R. Eleazar said, “The Holy One, blessed be He, declared, ‘The whole world in its entirety was not created other than on behalf of this [human species].’ ” Even more explicit is the statement of R. Simeon ben Eleazar, Kiddushin 82b, declaring, “… they [animals] were not created other than to serve me.” This view is not contradicted by the position espoused by Rambam in a celebrated dispute with Sa‘adia Ga’on in which Rambam denies the homocentric nature of the universe. The Book of Beliefs and Opinions, Treatise IV, introduction, asserts that man is the intended and ultimate purpose of creation; Rambam, Guide, Book III, chapter 13, challenges this view, pointing out that the human species has no need for a great part of the cosmos. Rambam maintains that all parts of the world are equally intended by the divine will but acknowledges that certain beings were created for the service of others. Thus, in Rambam’s view, there is no contradiction in acknowledging that service to other species is the instrumental purpose of some creatures while yet affirming their own existence as the final cause of those creatures. R. Moses Sofer, Hagahot Hatam Sofer, Baba Mezi'a 32b,⁴¹See also Teshuvot Ḥatam Sofer, Ḥoshen Mishpat, no. 185, s.v. ma she-katavata me-Rabad; cf., however, Teshuvot Ḥatam Sofer, Yoreh De‘ah, no. 314 s.v. omnam; and Teshuvot Imrei Shefer, no. 34, sec. 2. cites the divine declaration to Adam and Eve, "… and have dominion over the fish of the sea, and over the fowl of the air, and over every living thing that creepeth upon the earth" (Genesis 1:28),⁴²Terumat ha-Deshen rules that, as a matter of law, it is permissible to cause pain to animals even for the esthetic pleasure of man, and, accordingly, permits clipping the ears and tail of a dog “in order to beautify it.” Cf., however, Sefer Ḥasidim (ed. Mekiẓei Nirdamim), no. 589, who forbids any attempt to effect a “change” in correcting a congenital anomaly in a limb or organ of an animal on grounds that such a procedure constitutes a violation of the prohibition against ẓa‘ar ba‘alei ḥayyim. In an even more general statement, Da‘at Kedoshim, Yoreh De‘ah 24:12, declares that acts which cause discomfort to animals are permissible in order to satisfy “any desire of man even if his desire in this regard is not in accordance with the weighing of need or benefit but only a desire without a proper reason.” The same authority permits such procedures even if there is only the mere possibility that the need or desire may be satisfied thereby. See also Da‘at Kedoshim, Yoreh De‘ah 23:28. A similar view is expressed by Ezer mi-Kodesh, Even ha-Ezer 5:14. Cf., however, below, note 67. as establishing man's absolute and unlimited mastery over the animal kingdom.⁴³Cf., however, Sefer Ḥasidim (ed. Reuben Margulies), no. 666, who applies Genesis 1:28 in a radically different manner. Sefer Ḥasidim remarks that Adam was forbidden to eat the flesh of animals but was granted dominion over them, whereas the sons of Noah were permitted to eat the flesh of animals but were not granted dominion over them. According to Sefer Ḥasidim, it is because the sons of Noah were not granted dominion over animals that the angel chastised Balaam in demanding, “Wherefore has thou smitten thine ass these three times?” (Numbers 22:32). As pointed out by R. Reuben Margulies in his commentary on Sefer Ḥasidim, Mekor Ḥesed 666:7, Sefer Ḥasidim obviously maintains that Noachides are forbidden to engage in acts involving ẓa‘ar ba‘alei ḥayyim. As indicated earlier, Rambam also cites Numbers 22:32 as the source of the prohibition against ẓa‘ar ba‘alei ḥayyim. Hence there is some reason to assume that Rambam also maintains that ẓa‘ar ba‘alei ḥayyim is prohibited to Noachides. Teshuvot Imrei Shefer, no. 34, sec. 2 and sec. 8, also suggests that Noachides may be bound by strictures concerning ẓa‘ar ba‘alei ḥayyim which, in his opinion, may be encompassed in the prohibition contained in the Noachide Code concerning the eating of a limb torn from a living animal. See, however, Pri Megadim, Oraḥ Ḥayyim, Mishbeẓot Zahav 467:2 and R. Shalom Mordecai Schwadron, Teshuvot Maharsham, II, no. 364, who apparently maintain that non-Jews are not bound by strictures concerning ẓa‘ar ba‘alei ḥayyim. See also Toldot Ya‘akov, Yoreh De‘ah, no. 33. R. Judah Leib Graubart, Havalim ba-Ne'imim, I, no. 43, sec. 3, advances an identical argument on the basis of Genesis 9:1-2: "And God blessed Noah and his sons…. And the fear of you and the dread of you shall be upon every beast of the earth, and upon every fowl of the air, and upon all wherewith the ground teemeth, and upon all the fishes of the sea: into your hand are they delivered."

However, this is the case only with regard to Jewish law as it applies to Jews. Judaism also posits a series of obligations binding upon non-Jews, viz., the "Seven Commandments of the Sons of Noah," sometimes known as the Noahide Code. Feticide is an even more serious offense in the Noahide Code than it is in Jewish law as applied to Jews. The prohibition against feticide as applied to non-Jews is derived from Genesis 9:6 which in talmudic exegesis is rendered as "He who sheds the life of a man within a man, his blood shall be shed." "Who is 'a man within a man?"' queries the Gemara, Sanhedrin 57b. The immediately ensuing response, "This is a fetus within its mother's innards," serves to establish, not only that feticide is forbidden to non-Jews, but that it constitutes a capital crime in the Noahide Code.

Noachides are specifically enjoined from destroying fetal life upon penalty of death (Sanhedrin 57b) on the basis of Genesis 9:6. This prohibition is recorded by Maimonides in his Mishneh Torah, Hilkhot Melakhim 9:4. Consequently, any aid extended to a gentile in the performance of an abortion is a violation of the precept "Thou shalt not place a stumbling block before the blind" (Lev. 19:14). This prohibition is clearly enunciated with regard to abortion of a fetus by R. Joseph Trani (Teshuvot Maharit, I, no. 97) and confirmed by his pupil, Rabbi Chaim Benevisti (Sheyarei Kenesset ha-Gedolah, Tur, Hoshen Mishpat, 425, no. 6). Maharit, however, notes that the Gemara (Avodah Zarah 6b) states that aid rendered to one transgressing a commandment is proscribed only if the sinner could not otherwise have fulfilled his desire. It is, for example, forbidden to bring a cup of wine to a Nazarite who is on the opposite side of the river and could not otherwise reach the wine; but if both the wine and the Nazarite are on the same side of the river and the Nazarite is capable of reaching the wine without assistance, any help extended does not fall under this prohibition. Such an act, while biblically permitted, is banned by rabbinic edict legislating against "aiding transgressors." Maharit denies the applicability of the edict to aid rendered non-Jewish transgressors. Accordingly, Maharit rules that assistance in the performance of an abortion under these circumstances is forbidden only if no other physician is available; if others are available it is to be considered analagous to the case of both the Nazarite and the wine standing "on the same side of the river." There are nevertheless many authorities who agree that the rabbinic prohibition against "aiding transgressors" which applies even when both are "on the same side of the river" extends to aiding Noachide transgressors as well.⁹⁰Cf. Sedei Ḥemed, II, 298. Furthermore, the author of Mishneh le-Melekh (Hilkhot Malveh ve-Loveh 4:2) argues that the availability and readiness of another individual to transport the wine over the river does not relieve the one who actually does so from culpability. The prohibition is deemed inoperative only if the transgression could be committed without "the placing of a stumbling block" by anyone else; when the transgression requires aid, the one who renders it is liable, according to this view, no matter how many others would have been willing to render similar aid.⁹¹Cf. Sedei Ḥemed, II, 303–304.

Minḥat Hinnukh cogently argues that the commandments expressed in Leviticus 19:16 and Deuteronomy 22:27 are incumbent only upon Jews and hence cannot establish obligations upon non-Jews who are bound only by the provisions of the Noachide Code. Minḥat Hinnukh does, however, adduce another source which serves as a basis for derivation of the "law of the pursuer" and which is applicable to Noachides as well. The Gemara, Sanhedrin 72b, cites the verse "Whosoever sheddeth the blood of man, by man shall his blood be shed" (Genesis 9:6) as granting dispensation to preserve the intended victim by eliminating the pursuer. The phrase "by man" is understood as calling for the shedding of blood "by any man," i.e., by persons witnessing the act, rather than as a reference to punitive measures to be undertaken subsequent to the act. Thus the Gemara understands the verse as referring, not to an act of homicide which has already been committed, but to the prevention of a would-be homicide. The verse, which was addressed to Noah, establishes a law not only for Jews, but for Noachides as well. The general principle is that any commandment given prior to Sinai is binding upon Noachides even subsequent to the Sinaitic revelation provided it has been reiterated at Sinai. The law of the pursuer is indeed repeated in Exodus 22:1. In the course of the same discussion, the Gemara, Sanhedrin 72b, states that the statute formulated in this passage, which provides that a thief who breaks into a dwelling during the night may be smitten without penalty, is based upon the assumption that the thief is intent not only upon larceny but will commit homicide as well if he meets resistance. Hence the thief is in effect a pursuer and may be put to death if necessary by virtue of the "law of the pursuit." Tosafot, Sanhedrin 72a, commenting on the redundancy of the multiple scriptural sources for the "law of pursuit" states that Exodus 22:1 serves only to establish a license for execution of the pursuer but does not make such a course of action obligatory. The obligation, according to Tosafot, is expressed solely in Deuteronomy 22:27. Minḥat Hinnukh assumes that Tosafot intends this comment to apply as well to the interpretation of Genesis 9:6, which presents the same difficulty. The phrase ba-adam damo yishafekh, according to Minḥat Hinnukh's understanding should thus be translated "by man may his blood be shed" and serves to grant permission to put the aggressor to death when necessary to preserve the life of the victim, but does not mandate such action.¹³R. Shlomoh Zevin, Le-Or ha-Halakhah, p. 17, argues against Minḥat Ḥin nukh’s position and maintains that Noachides are not merely permitted, but are obligated, to execute the pursuer in order to preserve the pursued. He argues that this is evident from the phrase “domo yishafekh” which he maintains must be translated “by man shall his blood be spilled.” It would, however, appear that the question raised by Tosafot, Sanhedrin 73a, s.v. af, with regard to the earlier cited verse which speaks of the ba ba-maḥteret applies with equal validity to this verse. It would appear that Tosafot’s statement that the verse establishes permission rather than obligation applies to the subsequently cited verse “ba-adam damo yishafekh” as well. Accordingly, concludes Minḥat Hinnukh, Noachides are justified not only in acting in self-defense but may eliminate a threat to the lives of others as well, even though, in contradistinction to Jews who are bound by Sinaitic revelation, they are under no obligation to do so.

In order properly to understand the consideration underlying the requirement of the urim ve-tumim as a necessary condition of halakhically sanctioned warfare, a somewhat extraneous matter which is nevertheless germane to this topic must be examined. The categories of milḥemet mizvah and milḥemet reshut pertain only to wars fought by Jews. Other than in the context of war, self-defense or execution of transgressors convicted of capital offenses, the taking of human life is forbidden to both Jew and gentile alike. Since, insofar as non-Jews are concerned, there are no biblically sanctioned modes of war analogous to war for the conquest of the land of Canaan or the war against Amalek, it might well be presumed that non-Jews may not legitimately engage in warfare other than for the strictly limited purpose of self-defense. Indeed, a number of eminent authorities, including R. Moses Sofer, Teshuvot Hatam Sofer, Yoreh De'ah, no. 19, R. Abraham Dov Kahana-Shapiro, Dvar Avraham, I, no. 11, and R. Menachem Ziemba, Zera Avraham, no. 24, adduce explicit talmudic authority in ruling that non-Jews are prohibited from engaging in war.⁵³See Contemporary Halakhic Problems, II, 165. Nevertheless, an opposing view is found in the writings of one noted authority.⁵⁴A similar view, albeit not based on the same line of reasoning, is espoused by Maharal of Prague in his supercommentary on Rashi, Gur Aryeh, Parshat Va-Yishlah, s.v. she-ha-umot. In explaining the action taken by the sons of Jacob against the inhabitants of Shechem, Maharal states that the family of Jacob constituted a sovereign people and were permitted to do battle against another nation since war is not forbidden under the Noachide Code. R. Naphtali Zevi Yehudah Berlin, in his commentary on the Bible, Ha'amek Davar, Genesis 9:5, finds justification for the view that the taking of human life in the course of war does not constitute culpable homicide.⁵⁵This view is also expressed in Ha’amek Davar, Deuteronomy 20:8. See also Amud ha-Yemini, no. 16, chap. 5, secs. 8-24. The verse "But your blood of your lives will I require; from the hand of every beast will I require it; and from the hand of man, from the hand of a person's brother, will I require the life of man" (Genesis 9:5) contains one phrase that is an apparent redundancy. The phrase, "from the hand of man … will I require the life of man" pronounces man culpable for the murder of his fellow. To what point, then, is it necessary for Scripture to reiterate "from the hand of a person's brother will I require the life of man?" Fratricide is certainly no less heinous a crime than ordinary homicide. Ha'amek Davar understands this phrase as placing a limitation upon the nature of culpable homicide. The taking of human life constitutes homicide only when the relationship between the parties is analogous to that which exists between a man and his brother, i.e., during periods in which harmony and brotherly love may be anticipated to reign between them. War, however, is the antithesis of brotherhood. Under such conditions, maintains Ha'amek Davar, there is no punishment for taking human life. Since this verse occurs in the context of the prohibition against homicide as it pertains to Noachides, Ha'amek Davar concludes that gentiles are not culpable for the taking of human life within the context of warfare.

As noted earlier, Ha'amek Davar's position vis-a-vis the legitimacy of war on the part of non-Jews is contradicted by numerous authorities. Nevertheless, the verse cited by Ha'amek Davar might well be interpreted in a similar manner even by those authorities who maintain that non-Jews have no dispensation to engage in wars of aggression under any circumstances. According to those authorities, the biblical categories of war are limited to Jews exclusively. However, it is not illogical to interpret Genesis 9:5 as excluding from the halakhic prohibition against homicide the shedding of blood within the context of warfare provided that the war itself is legitimately undertaken, i.e., in situations in which the bonds of brotherhood have been severed in a manner sanctioned by Halakhah. In theory, such exclusion is all-inclusive in nature and pertains to any legitimate military activity, whether undertaken by Jew or by gentile. In practice, according to these authorities, the exclusion is applicable solely to Jews since it is established on other grounds that non-Jews may not legitimately engage in any war of aggression. The taking of any life when incidental to biblically sanctioned warfare does not constitute homicide because at such times the relationship between the parties is not analogous to the relationship between man and his brother. It is, however, logical to assume that military action leading to civilian casualties may be regarded as legitimate on this basis only when the loss of civilian life is incidental to military purposes, but not when wantonly undertaken as an end in itself.⁵⁶See Amud ha-Yemini, no. 16, chap. 5, sec. 32.

One latter-day authority does find grounds upon which to rule that non-Jews who engage in war are not guilty of murder. R. Naphtali Zevi Yehudah Berlin, in his commentary on the Pentateuch, Ha'amek Davar, Genesis 9:5, finds dispensation for warfare in the very verse which prohibits homicide to the Sons of Noah: "And surely your blood of your lives will I require … and at the hand of man, at the hand of every man's brother, will I require the life of man." The phrase "at the hand of every man's brother" appears to be entirely redundant since it adds nothing to the preceding phrase "at the hand of man." Ha'amek Davar understands this phrase as a limiting clause: "When is man punished? [If he commits homicide] when it is proper to behave in a brotherly manner." However, in time of war when animosity reigns among nations the taking of life in the course of military activity is not punishable. Again, in Ha'amek Davar, Deuteronomy 20:8, this authority states that "even" a Jewish monarch may engage in battle, thereby implying that gentiles are certainly not prohibited from doing so. Earlier, Maharal of Prague, in his commentary on the Bible, Gur Aryeh, Parshat Va-Yishlaḥ, speaking of the action taken by the sons of Jacob against the inhabitants of Shechem, states that the family of Jacob constituted, in effect, a sovereign people and were permitted to do battle against another nation since war is not forbidden under the Noachide Code. This position is, however, contradicted by a number of other authorities. R. Moses Sofer, Teshuvot Hatam Sofer, Yoreh De'ah, no. 19, declares wars of aggression to be forbidden to Noachides under all circumstances. In support of his position, Hatam Sofer cites the discussion found in Sanhedrin 59a. The Gemara declares that non-Jews do not enjoy legal prerogatives of conquest (lav benei kibush ninahu). Hatam Sofer demonstrates that the Gemara, Gittin 38a, does indeed affirm that non-Jews may acquire title to lands captured in wars by virtue of conquest. The phrase "lav benei kibush" must then be understood, argues Hatam Sofer, as meaning that non-Jews have no right to engage in war for purposes of conquest even though post factum they may acquire title in this manner. The identical argument is advanced by R. Abraham Dov Ber Kahane, Dvar Avraham, I, no. 11 and by R. Menachem Ziemba, Zera Avraham, no. 24. These authorities are in agreement with Hatam Sofer's view that non-Jews may not engage in a war of aggression under any circumstances.

[The laws of] Shabbos are suspended¹דְחוּיָה = suspended. More literally the word דְחוּיָה means “pushed aside,” as opposed to הוּתְּרָה —“made permissible.” There is great controversy among the poskim as to the attitude we take in permitting the transgression of Shabbos to save a life, whether it is דְחוּיָה or הוּתְּרָה. Shulchan Aruch Harav 328: 13 and this author maintain that it is דְחוּיָה and, therefore, if a method can possibly be found to minimize the transgression, such as doing the melachah with a שִׁינוּי, i.e. in an unusual manner, then that is preferable (see Sho’el U’maishiv 41, 42). Tzemach Tzedek (o.c. 38), Tashbatz (III: 37), Magein Avraham (328: 17) etc. hold הוּתְּרָה and there is no need to seek ways of minimizing the transgression. Chelkas Yoav (o.c. 14) writes that where a definite danger exists it is הוּתְּרָה, but where there is doubt as to whether the situation is life-threatening, it is דְחוּיָה. [See also Kovetz Shiurim, Kesubos paragraph 13; Biur Halacha 278: 1] where there is a life-threatening situation, as are all mitzvos in the Torah. Therefore, one who is dangerously ill and he is an observant person, though he occasionally transgresses a law because of temptation,²Either due to lack of self-control or to inconveniences. This is as opposed to one who transgresses spitefully, who, having done so twice, may not be saved if desecrating the Shabbos is necessary. and even for a day-old child,³Desecrating the Shabbos is permitted to save an unborn fetus. [Ritva, Maseches Niddah 44; B’hag; Tur 617; see also Rosh, Maseches Yoma 8: 13; Peri Megadim 328: 1; Biur Halacha 330] it is a mitzvah to violate the Shabbos to save him. [Even] if the patient refuses, we force him to accept help. It is a grave sin to carry piety to the point of idiocy, and refuse treatment because it would violate a law. About such a person is it said:⁴Genesis 9: 5. "Only of the blood of your lives will I demand an account." One who is quick to desecrate the Shabbos for the sake of a critically ill person, deserves praise. Even if a non-Jew is present, [every] effort should be made that a Jew do [what is necessary].⁵This is a matter of controversy among the poskim. Rosh, Shulchan Aruch (328: 12), Taz (ibid.) and Mishnah Berurah rule that a Jew is preferable. Rema and Shulchan Aruch Harav prefer that it be done by a non-Jew if one is available. The author agrees with the former. Any person that desecrates Shabbos for the sake of a critically ill person, even if it was found later to be unnecessary, will be rewarded. For example, if the doctor said: "This patient requires one dried fig [for cure]" and ten people ran and plucked one fig each and brought it, they all will be well rewarded by Hashem, blessed be His Name, even if the patient was cured [as a result of] the first [fig]. Similarly, in any life-threatening situation, even when the threat to life is uncertain,⁶V. paragraph 3. it is a mitzvah to desecrate Shabbos for him, and to do any and all d'oraisa prohibitions for him, because there is not a thing that stands in the way of a life-threatening situation. The Torah was given only for the purpose of [bringing] life, as it is said: "That man shall do them and live through them," and [the Sages] inferred: "Live through them but not to die on account of them." This holds true except for the laws concerning idolatry, illicit sexual relations and murder, where one must die rather than transgress.⁷V. Yoreh Dei’ah 157.

He prohibited us from eating a limb from a living animal. And that is that one cuts a limb from it while it is alive and eats a kazayit of that limb in its natural (complete) form, even if there was only the smallest amount of meat to it. And one who eats it is lashed. And the prohibition about it is His saying, "and you must not eat the life with the meat" (Deuteronomy 12:23). And the language of the Sifrei (Sifrei Devarim 76:5) is, "'The life with the meat' - that is a limb from a living animal." And likewise is it explained in the Gemara, Chullin (Chullin 102b). And there it is said, "[If] one ate a limb from a living animal and meat from a living animal, he is liable twice." And the explanation of this is that they are two [different] prohibitions. One prohibition is "you must not eat the life," - which is the prohibition of the limb; and the second prohibition is "and you must not eat meat that was torn in the field," which is also the prohibition of meat from a living animal, as we explained (in the previous commandment). And the prohibition about this content was already repeated with different language when He said to Noah about a limb from a living animal, "Yet flesh with its lifeblood, you shall not eat" (Genesis 9:4). (See Parashat Re'eh; Mishneh Torah, Forbidden Foods 5.)

That is that He commanded us to be fruitful and multiply, with the intention of preserving the species. And that is the commandment of piryah verivyah. And that is His, may He be exalted, saying, "And you, be fruitful and multiply" (Genesis 9:7). And they have already explained (Berakhot 16a) that a groom is exempt from the recitation of Shema on account of being busy with [this] commandment. And the laws of this commandment have already been explained in Chapter 7 of Yevamot. But women are not obligated in this commandment. And in the explanation, they said (Yevamot 65b), "A man is commanded to be fruitful and multiply, but not a woman." (See Parashat Bereishit; Mishneh Torah, Marriage 15.)

To not eat a limb from the living: That we were prevented that we not eat a limb from the living - meaning to say, a limb that we cut from an animal when it is still alive. And about this is it stated (Deuteronomy 12:23), "and you shall not eat the soul with the meat." And so they did they say, "'And you shall not eat the soul with the meat' - that is a limb from the living." And we say in Tractate Chullin 102b, "One who ate a limb from the living and meat from the living is lashed twice" - since there are two negative commandments about it: the one which we mentioned; and the second [is] "and flesh torn in the field shall you not eat" (Exodus 22:30), which is a negative commandment about the one that eats meat from the living, as I have written in the commandment not to eat a 'torn' animal (Sefer HaChinukh 73). And the warning for the limb from the living was repeated in another place in Parshat Noach, as it is stated (Genesis 9:4), "But meat with the soul, its blood, you shall not eat."