출애굽기 21:38의 Halakhah

As a rule, there is equality between the sexes. Men and women are all created in the divine image, and the uniqueness of the Jewish people inheres in Jewish women and men alike. The Torah was given to all Israel, men and women alike (see below, 7:1). The Sages derive from the verse “These are the laws that you must set before them” (Shemot 21:1) that “The Torah equated woman to man concerning all the laws in the Torah” (Kiddushin 35a).

And now I will begin mentioning each and every commandment, and I will explain their designation - as we set our goal at the beginning of our essay - for this is the intention of the book. Behold that I find it proper to add an addition to this intention: And that is that when I mention the commandment for which one receives a punishment - whether it be a positive or a negative commandment - I will mention its punishment. And I will say, "One who transgresses it will be liable for death, or excision, or a certain sacrifice, or lashes, or one of the death penalties of the court or payments." And you should know that that about which we do not mention any punishment: If it is a negative commandment, it is like that which they said, "It is like he is transgressing the commandment of the King," such that it is not for us to punish him. However with all positive commandments - whenever one is obligated to do one of them, we should give lashes to the one who refrains from doing it until he dies or does it. But if the time [for it] has passed, we refrain from this. Like, for instance, with one who transgressed and did not dwell in a sukkah - we do not give him lashes after Sukkot for his transgression. And know this. And also when I mention commandments for which women are not obligated - both positive and negative commandments - I will say this: "And women are not obligated in it." However it is well known that women do not judge, or testify, or bring sacrifices on their own or fight optional wars. So for all commandments that are contingent upon the court, or witnesses, or the Temple service or optional wars, I do not need to say, "And women are not obligated in this." For this [would be] extraneous speech and there is no need for it. Moreover, when I mention commandments that are only practiced in the Land of Israel or in the presence of the Temple - be they positive or negative commandments - I will say, "These are only obligated in the Land of Israel or in the presence of the Temple." However, it is also well known that all of the sacrifices are only done in the Temple and that the Temple service is only permitted in [its] courtyard; and likewise that capital punishments are only judged when the Temple is standing. And the language of the Mekhilta is, "From where [do we know] that we only sentence to death in the presence of the Temple? [Hence] we learn to say, 'from My altar you will take him to die' (Exodus 21:14) - behold, if you have the Temple you put him to death, if you don't have the Temple you do not put him to death." And there it also says, "From where do we know that the Sanhedrin needs to be close to the altar? As it is stated, 'from My altar.'" And it is also known that both prophecy and monarchy have departed from us until we refrain from our constant transgressions. And then He will atone for us and be merciful to us - as He set out - and bring them back, as it is stated (Joel 2:28), "And it will be after that, I will pour My spirit on all flesh, your sons and your daughters will prophesy." And regarding the return of the monarchy, He said, "On that day I will restore the fallen sukkah of David, and I will repair its breaches, etc., I will build it as in the days of old" (Amos 9:11). And it is well known that war and conquering of the cities cannot be without a king and without the counsel of the Great Sanhedrin and without a high priest, as it is stated (Numbers 27:21), "And he shall present himself in front of Elazar the Priest." And hence all of these are well-known to most people - all the positive or negative commandments that are contingent upon sacrifices, Temple rituals, capital punishments, the Sanhedrin, a prophet, a king or optional wars - so that I will not need to say about it, "This is only obligated in the presence of the Temple," since it is [already] clear, as we explained. But, with God's help, I will draw attention to that about which it is possible to have a doubt and about which some would err. And now I will begin the mentioning of each and every commandment of the Omnipresent.

The Torah (Shemot 21:1), in introducing monetary laws, commands, “And these are the laws that you shall present to them.” The Gemara (Gittin 88b) interprets “them” as referring to ordained dayanim (rabbinical judges), whereas one may not approach “non-Jews or unqualified Jews” to adjudicate a case against a fellow Jew. The Gemara adds that even if the non-Jewish courts judge according to Halachah, we nevertheless may not submit our internal disputes to them.¹This prohibition applies even if both Jewish litigants wish to adjudicate in civil court. Rav Uri Dasberg (Techumin 24:49-50) offers an interesting suggestion as to why the Halachah prohibits litigating in civil courts, even in cases where civil law and Halachah coincide. He argues that the role of a beit din is not merely to rule on the disputed monies, but also to offer moral criticism. Beit din might recommend that a litigant pay more than the strict law requires, as an act of decency. Moreover, beit din demands of the litigants that they conduct themselves in an ethical manner, above and beyond the strict letter of the law (see our previous chapter). By contrast, a civil court judge has no mandate to demand more than the letter of the law. Thus, a Jew who adjudicates in civil court, even if the court rules just as a beit din would have ruled, rejects the value system that we strive to integrate into our legal system. The Tashbetz (vol. IV, Tur Hashelishi 6) rules that this prohibition even precludes the use of non-Jewish judges who do not practice idolatry, such as Muslims.

Although the Gemara names two groups of unacceptable judges, non-Jews and uncertified Jews, in the same sentence, the Ramban (Shemot 21:1) notes a critical distinction between them (codified in Shulchan Aruch, Choshen Mishpat 26:1):

The obligation to render medical assistance flows from multiple scriptural sources and a person who renders such aid fulfills a number of diverse mizvot. Perhaps the most widely quoted source is the statement found in Baba Kamma 85a: " 'And he shall cause him to be thoroughly healed' (Exodus 21:20)—from here [it is derived] that the physician is granted permission to heal." Ramban, in his authoritative halakhic work, Torat ha-Adam, comments that the "permission" or "dispensation" of which the Gemara speaks in actuality constitutes a commandment or obligation ("Hai reshut, reshut de-mizvah hi"). Thus the medical practitioner is not merely permitted, but is required, to render aid.

Rav Gestetner points out that the Rambam (Hilchot Avodat Kochavim 12:11) and the Shulchan Aruch (Y.D. 180:1-4) do not limit the prohibition to permanent tattooing, thus implying that one violates the kitovet ka’aka prohibition even if the markings are not meant to last permanently, as the Nimukei Yosef believes. Moreover, Rav Gestetner suggests that when Rashi writes that kitovet ka’aka lasts “l’olam,” he does not mean “forever” literally. Elsewhere, (Shabbat 111b s.v. V’eilu Kesharim) Rashi uses this term in a context from which it is fairly obvious (in light of his comment on Shabbat 112a s.v. B’d’chumrata) that he means for a long period of time, not necessarily forever.²See the Mishnah Berurah’s introduction to O.C. 317, wherein he defines “l’olam,” in the context of tying a knot on Shabbat, as when one does not set a time to undo the knot and the knot is capable of lasting permanently.
Ariel Herzog notes that the Torah (Shemot 21:6) states that if a Jewish slave elects to stay with his master at the end of his six years of servitude, he remains in bondage “l’olam,” which the Gemara (Kiddushin 15a) interprets to mean until the yovel (the fiftieth year of the agricultural cycle). This is another instance in which the term “l’olam” does not mean literally forever. Indeed, the Ibn Ezra (Peirush Ha’aroch to Shemot 21:6) proves from elsewhere in Tanach that the term l’olam means for a lengthy time and not forever. Rav Gestetner rules that three years is considered “a long time,” and thus even semi-permanent cosmetic tattoos that last for three years are biblically prohibited even according to Rashi.

Rav Waldenberg (Teshuvot Tzitz Eliezer 14:60) focuses on whether this prohibition applies to a kohen who has killed a nochri. Halachah clearly forbids murdering a nochri, and, because of the chillul Hashem involved, regards it as a more severe crime than killing a Jew.³See Mechilta D’Rabi Yishmael, Mishpatim, Masechta D’nezikin, parashah 4, Ra’avan to Bava Kama 113a, Sefer Yerei’im (245), Meshech Chochmah (Shemot 21:14), and Rav Yehudah Amital’s letter that appears in Alon Shevut 100:55-61 for more information about this subject. Nonetheless, a major rule of Talmudic analysis is that the source of a Halachah shapes its character. Accordingly, the Prishah (O.C. 128:46, printed in the Machon Yerushalayim edition) rules that killing a nochri is not encompassed by this rule, since he understands the pasuk cited from Sefer Yeshayahu as referring only to kohanim who killed Jews.

But this was already missed by someone besides us to the point that he counted, "she does not go out like the release of slaves" (Exodus 21:7) - and he did not know that this was a negation and not a prohibition. And the explanation of this is as I will explain. And that is that since God already determined about someone who struck his [gentile] slave or maidservant - and at the time of the strike, caused him to lack one of his main limbs - that [the slave or maidservant] goes out to freedom, it would enter our minds that if the matter is like this with a gentile slave, all the more so would it be the case with a Jewish maidservant and that she would go out to freedom if she loses one of her main limbs. And He negates this conception from us, by His saying, "she does not go out like the release of slaves" - as if to say, there is no obligation for her to be sent out to freedom with the loss of her limbs. So this is the negation of a law about her, and not a prohibition. And the masters of the tradition also explained it like this: And they said in the Mekhilta (Mekhilta DeRabbi Shimon Bar Yochai 21:7), "'She does not go out like the release of slaves' - she does not go out with the main limbs in the way that [gentile] slaves go out." Behold that it is hence already clear to you that it is the negation of another law, which He is negating from her - not that He prohibited anything to us. And there is no difference between His saying, "she does not go out like the release of slaves," and His saying (Leviticus 13:36), "the priest does not examine the yellow hair, he is impure" - it is only a negation, not a prohibition. And that is that it is explaining to us that he does not require quarantine because of this indication (of impurity), and that there is no doubt about him - he is impure. And likewise is His saying (Leviticus 19:20), "they are not put to death, since she has not been freed," a negation and not a prohibition. For He is saying that they are not liable for the death penalty, since [her] freedom is not complete. And it would be inappropriate to explain this as if it were stated, "you shall not put them to death" - such that it would go from a matter of negation to a matter of prohibition. For His saying, "they are not put to death, since she has not been freed," is like His saying (Deuteronomy 22:26), "the girl has no sin worthy of death" - which negates the death penalty from her because of the rape. And likewise [here], He negated the liability of death from them because of [her] slavery - as if to say, they have no sin worthy of death. And likewise is His saying (Numbers 17:5), "and not be like Korach and like his congregation," a negation. And the Sages clarified that it is a negation: They explained its content and said (Midrash Tanchuma, Tzav 13:1) that He, may He be exalted, was telling us that anyone who argues about and challenges the priesthood will not have what happened to Korach and his congregation happen to him with regards to being swallowing up or burned; but rather his punishment will truly be like that which the Lord said through Moshe - meaning to say, tsaraat. For He, may He be elevated, had said to him (Exodus 4:6), "Put your hand into your bosom." And they brought a proof [for this] from what happened to King Uzziah of Judah (II Chronicles 26:19). And even though we find a different expression in the Gemara in Sanhedrin (Sanhedrin 110a) - and that is their saying, "Anyone who maintains an argument, transgresses a negative commandment, as it is stated, 'and not be like Korach and like his congregation" - this is by way of an asmakhta (homiletic support), and not that their intention in this is the simple meaning of the verse. However the prohibition about this is included in a different negative commandment, which I will explain in its place.

But there is nothing that will clarify the difference between a negation and a prohibition to you besides the content of the statement. Indeed it will surely not be clarified by the word, for the word for negation and prohibition are the same in Hebrew; and that is the word, lo. So one learned must understand the content of the statement. And then he will quickly grasp which negative statement is a negation and which negative statement is a prohibition, according to our preceding explanation. And [the Sages], peace be upon them, already alluded to this matter. And that is in that which we find disagreement about a certain negative statement, as to whether it is a negation or a prohibition. And that is His saying regarding a bird sin-offering (Leviticus 5:8), "pinching its head at the nape, and he does not sever it." For behold our tanna - and that is the tanna that speaks in the mishnah (Zevachim 6:4) - holds that this is a prohibition; and therefore said that if he separated it, it is disqualified. And according to this, this negative statement would have to be a negative commandment. That is that if he severed it, it is disqualified - as if he brought leaven or honey [on the altar]. But Rabbi Elazar (ben Shimon) holds that this negative statement is a negation and not a prohibition; and that His saying, "he does not sever it," is intending to say, one does not have to sever the head, but rather one can cut it in any way that it might be. And hence - according to his opinion - if one severed it, it is [still] fit. And accordingly, they said in the Gemara, Zevachim (Zevachim 65b), "Rabbi Elazar ben Shimon would say, 'I have heard that we sever the bird sin-offering.' [Then] what is [the meaning of], 'he does not sever it?' He does not have to sever it." And they asked about this and said, "But from this - concerning a pit, about which it is written (Exodus 21:33), "and he does not cover it," is it also the same?" And the answer was, "There, it is written (Exodus 21:34), 'The one responsible for the pit must make restitution' - it is implied that he needs to cover it." Behold it has been clarified that they took a proof as to whether it is a negation or a prohibition from the content of the statement. And from it, it has become clear that His saying, "he does not sever it," is a negative commandment - according to what is written in the mishnah. And it has [also] become clear that His saying with a bird burnt-offering (Leviticus 1:17), "And he shall tear it open by its wings, he does not sever it," is inappropriate to count as a negative commandment - as it is a negation. And according to everyone, if he severs it, it is [still] fit. For it is because He said with an animal fire-offering (Leviticus 1:12), "And you shall cut it up into sections," that it would enter your mind that a bird burnt-offering is also like this. So He said that you do not need to sever it, but just tear it. So if he severed it, it is [still] fit - as is explained in its place.

But there is nothing that will clarify the difference between a negation and a prohibition to you besides the content of the statement. Indeed it will surely not be clarified by the word, for the word for negation and prohibition are the same in Hebrew; and that is the word, lo. So one learned must understand the content of the statement. And then he will quickly grasp which negative statement is a negation and which negative statement is a prohibition, according to our preceding explanation. And [the Sages], peace be upon them, already alluded to this matter. And that is in that which we find disagreement about a certain negative statement, as to whether it is a negation or a prohibition. And that is His saying regarding a bird sin-offering (Leviticus 5:8), "pinching its head at the nape, and he does not sever it." For behold our tanna - and that is the tanna that speaks in the mishnah (Zevachim 6:4) - holds that this is a prohibition; and therefore said that if he separated it, it is disqualified. And according to this, this negative statement would have to be a negative commandment. That is that if he severed it, it is disqualified - as if he brought leaven or honey [on the altar]. But Rabbi Elazar (ben Shimon) holds that this negative statement is a negation and not a prohibition; and that His saying, "he does not sever it," is intending to say, one does not have to sever the head, but rather one can cut it in any way that it might be. And hence - according to his opinion - if one severed it, it is [still] fit. And accordingly, they said in the Gemara, Zevachim (Zevachim 65b), "Rabbi Elazar ben Shimon would say, 'I have heard that we sever the bird sin-offering.' [Then] what is [the meaning of], 'he does not sever it?' He does not have to sever it." And they asked about this and said, "But from this - concerning a pit, about which it is written (Exodus 21:33), "and he does not cover it," is it also the same?" And the answer was, "There, it is written (Exodus 21:34), 'The one responsible for the pit must make restitution' - it is implied that he needs to cover it." Behold it has been clarified that they took a proof as to whether it is a negation or a prohibition from the content of the statement. And from it, it has become clear that His saying, "he does not sever it," is a negative commandment - according to what is written in the mishnah. And it has [also] become clear that His saying with a bird burnt-offering (Leviticus 1:17), "And he shall tear it open by its wings, he does not sever it," is inappropriate to count as a negative commandment - as it is a negation. And according to everyone, if he severs it, it is [still] fit. For it is because He said with an animal fire-offering (Leviticus 1:12), "And you shall cut it up into sections," that it would enter your mind that a bird burnt-offering is also like this. So He said that you do not need to sever it, but just tear it. So if he severed it, it is [still] fit - as is explained in its place.

And after it has been explained that His saying, "Do not eat any of it raw or boiled" is [only] one commandment; and likewise all of the negative commandments that arise from the prohibition for the nazirite of all that comes out from the vine are one commandment, since they are all details, as is explained in the Gemara; and they likewise said that, "any leaven and any honey," is one commandment - we should also count, "No Ammonite or Moabite shall be admitted" (Deuteronomy 23:4), as one commandment. And likewise, His saying, "You shall not ill-treat any widow or orphan" (Exodus 22:21). And likewise, His saying, "You shall not subvert the rights of the stranger or the orphan" (Deuteronomy 24:17). And likewise, His saying, "he may not diminish her food, her clothing or her conjugal rights" (Exodus 21:10). Each of these negative commandments is one commandment. This means to say that each of these is exactly like, "Do not eat any of it raw or boiled in any way," and like, "for no leaven or honey may be turned into smoke as an offering." There is no difference between them. And likewise, His saying, "You shall not bring the fee of a prostitute or the sale revenue of a dog" (Deuteronomy 23:19), is one commandment. And likewise, His saying, "Drink no wine or other intoxicant, etc. And to differentiate [...] And to instruct" (Leviticus 9-11). That is to say, with one negative commandment did He prohibit [a priest] to enter the Sanctuary or to give instruction while drunk. And that is one of the divisions of the second type of general negative commandments. And the second division is [made up of cases with] words exactly like those of the previous division. However [in such cases], it is the traditionally received explanation that we give separate lashes for each and every one of those connected matters. And that is that when he does them all - even at one time - he is given lashes for each and every one as a distinct prohibition. Of this type is His saying, "You may not eat within your gates of the tithes of your new grain or your wine or your oil" (Deuteronomy 12:17). They said in Keritot (Keritot 4b), "[If one] ate the tithe of grain, wine, and oil (outside Jerusalem), he is liable [separately] for each and every one." And they raised a difficulty and said, "But is one given lashes for a general negative commandment?" And the answer was, "The verse is written superfluously. How is this? It is written, 'And you shall eat before the Lord your God, in the place where He shall choose to cause His name to dwell there, the tithe of your grain, etc.' (Deuteronomy 14:23); why did He need to come back and write, 'You may not eat within your gates?' And if you shall say that it is to [make it into a full-fledged] negative commandment - if so, let the verse say, 'You may not eat them within your gates.' Why did the verse need to go back and write all of them ('your new grain or your wine or your oil')? We hear from this, that it is to separate [it into three distinct commandments]." And there, after give and take, it is clarified that it was not necessary for Him to say, "and parched grain" (Leviticus 23:14), such that it was truly mentioned to separate - that one would be liable for parched grain on its own. And in the Talmud, they asked by way of rejection, "Maybe one is separately liable to receive lashes for parched grain" - for it is truly mentioned for this - "whereas for bread and fresh stalks, one is [only] liable for one [set of] lashes?" So they answered, "For what law did the Merciful One write, 'parched grain,' in between [the others]? To tell you that one who eats bread, parched grain and fresh stalks is liable for each and every one [individually]."

The Rambam (Hilchot Ishut 12:1-4) presents ten obligations Halachah demands from a husband, three of which are of biblical origin and seven of which are rabbinic enactments. The three Torah obligations are to provide food, clothes, and intimate relations for his wife (see Shemot 21:10 and Rashi ad. loc.). The seven rabbinic obligations are paying her ketubah money in case of death or divorce, paying her medical bills if she is sick, redeeming her if she is taken captive (a phenomenon not unheard of in the time of the Gemara and in certain countries even today), burying her if she dies, supporting her from his estate and allowing her to live in his house if he predeceases her,²She does not, though, inherit him. For ways of allowing a wife to inherit, see our later section about setting up halachically valid wills. supporting their daughters from his estate until they marry, and allowing the male children from their marriage to inherit her ketubah (ketubat banin dichrin). Halachah entitles a man to four items from his wife: her earnings (ma’aseih yadayim), whatever lost items she finds (metzi’ah), the income generated by the property that she brings into the marriage during her lifetime (nichsei melog), and the priority to inherit her if she predeceases him.

It may readily be inferred from this statement that destruction of the fetus is prohibited in situations not involving a threat to the life of the pregnant mother. Incorporation of the justificatory statement "for her life takes precedence over its life" within the text of the Mishnah indicates that in the absence of this consideration abortion is not sanctioned.³This inference is not formulated explicitly by the Tosafot cited but is mentioned in passing by R. Ya’ir Chaim Bachrach in his Teshuvot Ḥavot Ya’ir, (Frankfort a. M., 5459), no. 31. The omission of this inference is perhaps intentional on the part of Tosafot since such omission is consistent with a distinction drawn by Tosafot, Niddah, 44a, to the effect that an embryo which has “torn itself loose” from its normal uterine position before the death of the mother enjoys inheritance rights with respect to the mother’s property and passes on such rights to its heirs. This provision is based on the premise that the fetus’ death is deemed to occur after that of the mother. One might therefore argue that “tearing itself loose” marks the stage at which the fetus is sufficiently viable to be accorded human status. Since the Mishnah refers to a woman who is in “hard travail,” there is no evidence therefrom that an embryo in earlier stages of development, i.e., prior to having commenced the process of parturition, is accounted sufficiently human to render its destruction an offense.
Ḥavot Ya’ir endeavors to demonstrate that prenatal life is inviolate even at earlier stages of fetal development on the basis of the talmudic discussion concerning the execution of an expectant mother who has incurred the death penalty. The Mishnah (Erukhin 7a) rules that the execution must be deferred until after the child’s birth only if the convicted mother has already “sat on the birth stool,” which the Gemara defines as being synonymous with the fetus’ “tearing itself loose.” Prior to this, execution is not delayed in order to preserve the unborn child. With regard to this inference the Gemara queries, “Peshita! gufah he—Of course! It [the fetus] is an organic part of her [the mother’s] body.” Ḥavot Ya’ir reasons that since the Gemara adds the phrase gufah he in formulating its question, one must conclude that the reason that the child is consigned to the same fate as the mother is that it is an organic part of her body. The logical inference is that were this rationale to be lacking, it would be forbidden to cause the death of the unborn fetus. For a conflicting inference which ignores this point, see R. Joseph Trani, Teshuvot Maharit (Fürth, 5528), I, no. 99.
For further discussion of the nature of the prohibition against feticide, see the sources cited by R. Chaim Chizkeyahu Medini in his Sedei Ḥemed (New York, 5722), I, 175 ff, Kelalim, Ma‘arekhet ha-Alef, no. 52, and I, 304 f, Sheyurei ha-Pe’ah, Ma‘arekhet ha-Alef, no. 19. See also the sources cited by R. Shlomoh Abraham Rezechte, Bikkurei Shlomoh (Pietrokow, 5665), Yoreh De‘ah, Hashmatot, no. 9. Tosafot (Sanhedrin 59a; Hullin 33a) states explicitly that feticide, although entailing no statutory punishment, is nevertheless forbidden.⁴Despite these two unequivocal statements, the language employed by Tosafot, Niddah 44b, led R. Zevi Hirsch Chajes to note in a gloss, ad locum, that Tosafot in Niddah expresses a contradictory opinion. Writing much earlier both Ḥavot Ya’ir in the above cited responsum and R. Jacob Emden in a gloss (Niddah 44b) state without elaboration that Tosafot does not intend to express a permissive ruling but simply employs misleading phraseology. R. Jacob Emden adds in wonder, “Who is it that permits the killing of a fetus without reason?” See also the gloss of R. Shlomoh Eger ad locum. A close examination of the line of reasoning employed by Tosafot shows that the conclusion reached by Mahariḥ Ḥajes cannot be suported. Tosafot contends that the absence of statutory punishment with regard to the crime of feticide applies only to cases where the mother is alive at the time of destruction of the fetus; when, however, the mother’s death precedes that of the fetus, Tosafot advances a tentative assertion to the effect that the fetus is independently viable and hence the killing of the fetus in such instances carries the full penalty for murder. If this is not the case and “it is permitted to kill the fetus,” queries Tosafot, why is it then permissible to violate the Shabbat by carrying a knife through a public thoroughfare for the purpose of removing the fetus from the womb of its deceased mother? A literal reading indicates that, according to Tosafot, dispensation for the desecration of the Sabbath can be rightfully invoked only in order to preserve such lives which it is forbidden to destroy. For if the life in question may be destroyed deliberately, why then should the Sabbath be desecrated in order to save that which otherwise may be destroyed with impunity? Interpreted in this manner, there is no continuity whatsoever between this query and the previous assertion pertaining to the penalty for taking the life of an unborn child. Feticide might well not entail the punishment of homicide yet nevertheless constitute a moral offense, albeit an unpunishable one. Furthermore, Tosafot’s refutation of this assumption is unclear if understood in the context of Mahariẓ Ḥajes’ analysis. Tosafot negates the prior assumption by asserting that for the purpose of saving a life the Sabbath may be violated even if the life saved be that of one “whom it is permissible to kill.” As evidence for this conclusion Tosafot cites the rule with regard to a goses be-yedei adam (one who has suffered a mortal wound, humanly inflicted), for the prolongation of whose life the Sabbath may be violated although “one who murders him is not culpable.” According to Mahariẓ Ḥajes’ understanding of the earlier remarks of Tosafot, the latter statement provides no substantiating evidence whatsoever. The status of a murderer of a goses be-yedei adam is clear: The killing is forbidden but carries no statutory punishment. Since it is forbidden to take his life, there is no question regarding the permissibility (according to Tosafot, but cf. Teshuvot Shevut Ya‘akov, no. 13) of violating the Sabbath on his behalf; the absence of statutory punishment is deemed irrelevant. The issue in question, according to Mahariẓ Ḥajes, is solely that of the desecration of the Sabbath on behalf of a life (viz., that of a fetus) which might be destroyed with impunity. Tosafot endeavors to disprove the contention that it is somehow incongruous to sanction the desecration of the Sabbath in order to preserve that which there is not only no obligation to preserve but which may even be summarily destroyed. Indeed, the logic of this entailment is so strong that it is difficult to fathom its refutation. However, R. Shlomoh Drimer, Teshuvot Bet Shlomoh (Lemberg, 1891), Ḥoshen Mishpat, no. 120, adopt a contrary view, reasoning that despite the prohibition against feticide, and despite a positive injunction to preserve the embryo, the Sabbath may be violated on behalf of an unborn child by application of the principle “Better to violate one Sabbath in order to observe many Sabbaths.” If, on the other hand, we understand Tosafot’s position in Niddah to be identical with that espoused by Tosafot in Sanhedrin and Ḥullin, the line of reasoning is most clear. In support of the assertion that the destruction of a fetus which has been preceded by the death of the mother incurs the full penalty of murder, Tosafot endeavors to show that the desecration of the Sabbath is sanctioned only in order to save a life which it is not only forbidden to destroy but which, if unlawfully destroyed, is juridically punishable as a capital crime. This hypothesis is subsequently rejected by Tosafot with the argument that the killing of a goses be-yedei adam carries no such penalty, yet the Sabbath may be violated on his behalf. The conclusion, then, is that there is no evidence that the destruction of a fetus whose mother had preceded it in death carries a statutory punishment. That the taking of the life of a fetus is forbidden does not at all come into question according to this understanding of Tosafot.
According to any interpretation, the comparison by Tosafot of a fetus to a goses be-yedei adam defies comprehension. The absence of a statutory death penalty with regard to killing of a fetus is due to consideration of the embryo as not possessing independent animation in the degree requisite for consideration as a “life.” The killing of a goses is not punishable because in the majority of instances the goses would die in any event. The Sabbath may be violated on his behalf because consideration of circumstances surrounding the “majority” of cases are irrelevant when a human life is at stake. Halakhah prescribes such measures even when chances that these measures may be efficacious are dim. The life of a goses is intrinsically human and hence the Sabbath is violated on his behalf even though chances of recovery are remote; at the same time his murderer cannot be put to death due to lack of definite assurance that the victim was viable. This does not provide demonstrative evidence contradictory to the hypothesis that provision for the rescue of a fetus through violation of the Sabbath ipso facto establishes that it is therefore a human life whose destruction is punishable. Cf. R. Yechiel Ya‘akov Weinberg, Seridei Esh, (Jerusalem, 5726), III, 350, n. 7. The approach offered in the name of Rabbi Sternbuch does not appear to resolve this perplexity. Elsewhere we find that according to rabbinic exegesis (Mekhilta, Exod. 21:12; Sanhedrin 84a) the killing of an unborn child is not considered to be a capital crime—an implication derived from the verse "He that smiteth a man so that he dieth, shall surely be put to death" (Exod. 21:12). Tosafot, on the basis of the Mishnah, apparently reasons that although feticide does not occasion capital punishment, the fetus is nevertheless sufficiently human to render its destruction a moral offense.

Noteworthy is not only Maimonides' extension of this concept to cover medical matters but also his failure to allude at all to the verse "and he shall cause him to be thoroughly healed." It would appear that Maimonides is of the opinion that without the granting of specific permission one would not be permitted to tamper with physiological processes; obligations derived from Deuteronomy 22:2 would he limited to the prevention of accident or assault by man or beast. The dispensation to intervene in the natural order is derived from Exodus 21:20; but once such license is given, medical therapy is not simply elective but acquires the status of a positive obligation.³Cf. R. Baruch ha-Levi Epstein, Torah Temimah, Exod. 21:19 and Deut. 22:2. Cf., also, R. Abraham Danzig, Ḥokhmat Adam, 141:25. As indicated by Sanhedrin 73a, this obligation mandates not only the rendering of personal assistance, as is the case with regard to the restoration of lost property, but, by virtue of the negative commandment, "You shall not stand idly by the blood of your neighbor" (Lev. 19:16), the obligation is expanded to encompass expenditure of financial resources for the sake of preserving life of one's fellow man. This seems to have been the interpretation given to Maimonides' comments by R. Joseph Karo, who, in his code of Jewish law, combined both concepts in stating: "The Torah gave permission to the physician to heal; moreover, this is a religious precept and it is included in the category of saving life; and if the physician withholds his service it is considered as shedding blood."⁴Yoreh De‘ah 36:1. See R. Eliezer Waldenberg, Ramat Raḥel, no. 21, and idem, Ẓiẓ Eli‘ezer, X, no. 25, chap. 7.

Noteworthy is not only Maimonides' extension of this concept to cover medical matters but also his failure to allude at all to the verse "and he shall cause him to be thoroughly healed." It would appear that Maimonides is of the opinion that without the granting of specific permission one would not be permitted to tamper with physiological processes; obligations derived from Deuteronomy 22:2 would he limited to the prevention of accident or assault by man or beast. The dispensation to intervene in the natural order is derived from Exodus 21:20; but once such license is given, medical therapy is not simply elective but acquires the status of a positive obligation.³Cf. R. Baruch ha-Levi Epstein, Torah Temimah, Exod. 21:19 and Deut. 22:2. Cf., also, R. Abraham Danzig, Ḥokhmat Adam, 141:25. As indicated by Sanhedrin 73a, this obligation mandates not only the rendering of personal assistance, as is the case with regard to the restoration of lost property, but, by virtue of the negative commandment, "You shall not stand idly by the blood of your neighbor" (Lev. 19:16), the obligation is expanded to encompass expenditure of financial resources for the sake of preserving life of one's fellow man. This seems to have been the interpretation given to Maimonides' comments by R. Joseph Karo, who, in his code of Jewish law, combined both concepts in stating: "The Torah gave permission to the physician to heal; moreover, this is a religious precept and it is included in the category of saving life; and if the physician withholds his service it is considered as shedding blood."⁴Yoreh De‘ah 36:1. See R. Eliezer Waldenberg, Ramat Raḥel, no. 21, and idem, Ẓiẓ Eli‘ezer, X, no. 25, chap. 7.

I mention this interpretation to counter the heretics who do not believe the words of our Rabbis that the Sabbath extends from dusk to dusk. The true interpretation is what the Rabbis recorded, namely, that the Sabbath was given at Marah.⁷ “Israel was instructed in ten laws at Marah. Seven of these were accepted by the descendents of Noah. Three additional laws were courts, Sabbath, and respect for parents” (Sanhedrin 56b). The incident at Marah (Exodus 15:22–26) took place before the appearance of the manna (ibid., chapter 16). Scripture mentions “tomorrow” and not “this night,” for Scripture usually speaks of what is common, namely, that people work during the day. The meaning of “holy Sabbath” is that they should rest, and that is what they did, “The nation rested on the seventh day” (ibid. 16:30). In Jeremiah it is written: “to sanctify the Sabbath day by not working on it” (17:24). Moses mentioned “tomorrow,” which is daytime, because he addressed what is common. Similarly, “Man goes out to his activity and to his work until evening” (Psalms 104:23). Likewise, “You should not eat meat that was torn in the field” (Exodus 22:30), although the same prohibition applies to what was torn in a house. Similarly, “an occurrence at night” (Deuteronomy 23:11);⁸ This does not exclude an occurrence of the day. “an ox or a donkey fell there” (Exodus 21:33);⁹ Ox or donkey are not exclusive. and many more in the Torah like these.

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.

Most interesting is the sharply contested view advanced by R. Elijah Mizrachi, in his commentary on Exodus 21:12, that in principle feticide and murder are indistinguishable. The biblical ban on murder extends equally to all human life, including, he claims, any fetal life which, unmolested, would develop into a viable human being. In theory, continues Mizrachi, feticide should be punishable by death since the majority of all fetuses will indeed develop into viable human beings.⁷Cf. below, n. 62. In practice it is technically impossible to impose the death penalty because punishment may be inflicted by the Bet Din only if the crime is preceded by a formal admonition. Since some fetuses will never develop fully, a definite admonition cannot be administered because it cannot be established with certainty that any particular fetus would develop in this manner. Noachides, on the other hand, require no such admonition. Therefore, since the major number of fetuses are viable, feticide is to be punished by death under the Noachide dispensation.

The words "Eleh ha-mishpatim asher tasim lifneihem" (Exodus 21:1) are immediately recognized as the opening sentence of the Torah reading of the Shabbat known as Parashat Mishpatim and identified in that manner because of the initial noun of the verse. The very division of the biblical text into weekly segments in which that verse introduces one such portion indicates that the verse in question serves as a preamble to the immediately following section. Accordingly, the verse is rendered in translation as "These are the statutes that you shall place before them." As an introduction to the verses that follow, the term "mishpatim" must connote the subject matter that ensues, i.e., it serves as a description of the salient provisions of biblical jurisprudence presented in the immediately following section. Accordingly, the word "mishpatim" is understood as meaning "laws" or "statutes." Moses is commanded by God to transmit a host of commandments pertaining to torts and bailments as well as to sundry other financial matters and is informed that what is about to be imparted to him is in the nature of mishpatim, i.e., rules necessary for the government of society.

More fundamental is the transgression involved in the very act of petitioning a civil court for redress. The standard translation of Exodus 21:1 is "And these are the ordinances (mishpatim) which you shall set before them," i.e., before the children of Israel. Rabbinic exegesis endows this passage with an entirely different meaning.

A number of objections to Havot Ya'ir's position are raised in later works. R. Meir Dan Plocki¹⁹Ḥemdat Yisra’el, pp. 175 f. expresses the view that with the promulgation of the Sinaitic covenant, Noachides were absolved from the obligation of procreation and also from the prohibition against wanton emission of semen.²⁰See above, n. 14. Granting this point, it follows that according to Havot Ya'ir's reasoning there would be no apparent grounds for denying Noachides the right to commit feticide. Such a conclusion would be contrary to the clear-cut recognition that destruction of a fetus continues to constitute a capital crime under the Noachide code. Havot Ya'ir further states that feticide cannot be punishable by "death at the hands of heaven." Such punishment, he avers, would be incompatible with the exaction of monetary compensation for loss of the fetus, as prescribed by Exodus 21:12, in light of the general rule that a single act cannot result in the infliction of both capital punishment and punitive financial compensation —a principle which R. Nechuniyah b. Hakanah (Ketubot 30a) extends not only to the forms of capital punishment imposed by the Bet Din but to "death at the hands of heaven" as well. Havot Ya'ir arrives at the conclusion that the ban against onanism is operative only with regard to the wasting of one's own seed, since such an act contravenes the obligation "be fruitful and multiply," but is inapplicable with regard to the destruction of fetal progeny other than of one's own parentage.

R. Chaim Sofer, Teshuvot Maḥaneh Hayyim, Yoreh De'ah, II, no. 60, explains that availing oneself of the ministrations of a physician is permitted only because of specific dispensation granted by the verse "and he shall cause him to be thoroughly healed" (Exodus 21:20). Permission to utilize medical remedies entails an obligation to use them in the preservation of life and the obligation to preserve life, in turn, serves to obviate strictures of religious law. However, the obligation arising out of that verse, asserts Maḥaneh Hayyim, is limited to use of natural remedies; no similar obligation exists with regard to the use of non-natural, occult or metaphysical powers in effecting a cure. Infractions of Jewish law are permitted for purposes of preserving life only because such measures are demanded by Halakhah. Accordingly, Maḥaneh Hayyim maintains that, according to Rambam, even segulot of demonstrated efficacy may not be used despite danger to life if such use involves an infraction of a halakhic prohibition.

If individuals fall from the status of free men and women and, forgetting their inherent nobility, are made into servants—“the ear that heard the words at Sinai, ‘the children of Israel are My servants’³²Lev. 25:55.—My servants, and not the servants of My servants”—and yet in spite of this he went and acquired a human master for himself³³Talmud Bavli, Kiddushin 22b. The Talmud here censures the Hebrew slave referred to in Exod. 21:6, who elects to remain a slave beyond the mandatory period. His choice shows that he has not internalized the innate freedom and dignity that attaches to being a servant of God, not of man. Rav Kook understands the return of each person to his ancestral land as the remedy for the indignity of selling oneself as a slave.—now his freedom and self-respect are returned to him. Holiness flows into our lives from the highest source, the place from which the nation’s soul suckles light and “freedom is proclaimed throughout the land to all its inhabitants.”³⁴Lev. 25:10. Inequality in landed property, which resulted from bodily and spiritual weakness and error, sapped his strength, until he was forced to sell his ancestral patrimony. Now, however, restitution comes, corresponding to the people’s status at the beginning of its journey. The original property returns to those who have suffered from the vicissitudes of life, distorting their sense of their true value: “In this Jubilee, everyone shall return to his original holdings.”³⁵Lev. 25:13.

4. R. Moses Feinstein, Iggerot Mosheh, Oraḥ Hayyim, III, no. 90, rules that use of intravenous feeding in order to avoid the need for breaking the fast is not only unnecessary but is "perhaps" forbidden as well. The obligation with regard to the treatment of illness derived from the biblical verse "and he shall surely heal" (Exodus 21:20), argues Iggerot Mosheh, requires use of medication only when designed to effect a cure, but not when designed for an extraneous purpose such as enabling a patient to fast. That argument appears, to this writer, to be a non sequitur. It is quite true that the verse "and he shall surely heal" does not mandate administration of medication other than for the purpose of effecting a cure. Yet it is entirely possible that the use of medicaments is independently mandated on other grounds when the alternative to their use involves a violation of biblical law. Use of medication under such circumstances would be mandated, not in order to enable the patient to fulfill the positive obligation of fasting, but on the principle that biblical prohibitions are not suspended for the purpose of saving a life when the endangered life can be saved in some other manner.¹⁴See also Iggerot Moshe, Oraḥ Ḥayyim, IV, no. 121. In that responsum Rabbi Feinstein asserts that “it stands to reason (mistaber)” that there is no obligation to ulitize medications having no therapeutic value solely in order to be able to fast.

Some background information is necessary in order to understand Rav Waldenberg’s concerns. The Gemara (Bava Kama 85a) infers from the obligation that the Torah (Shemot 21:1) imposes upon an injurer to pay his victim’s medical bills that “The Torah permits a physician to heal.” Absent such permission, explain Tosafot (Bava Kamma 85a s.v. Shenitnah), we would have thought that we are forbidden to heal because we “appear to be contradicting the King’s decree.” By authorizing medical attention, however, the Torah teaches that we are not contradicting Hashem’s will, because the King who issued the decree for the illness or injury also permitted physicians to heal.

There is indeed an even more fundamental difference between the respective ambits of these two prohibitions. As recorded by Shulḥan Arukh, Hoshen Mishpat 26:1, recourse to a non-Jewish court is prohibited even with the consent of both litigants.⁹For a discussion of variant conflicting sources see Eliav Shochetman, Teḥumin, XIII (5752-53), 346-349 and especially p. 347, note 43. However, if both parties agree, they are permitted to have their dispute heard by a tribunal composed of laymen.¹⁰This distinction between gentile courts and lay judges is explicitly formulated by Ramban in his commentary on the Bible, Exodus 21:1. For a discussion of the seemingly contradictory view of Ran, Sanhedrin 2b, see R. Judah Siegal, Ha-Torah ve-ha-Medinah, VII-VIII (5715-5717), p. 87 and the notes appended to that article by R. Saul Israeli, ibid., p. 80, note 7. The exclusion of laymen from the judiciary is not absolute; laymen are simply denied the power to compel appearance before them with the result that litigants who willingly submit to their authority commit no transgression. However, litigants do not have the right to accept the authority of a gentile court and, should they do so, they incur a serious transgression.

We also find written⁸³ Ibn Ezra now proceeds to show that for some matters the year begins with the month of Tishre. Here he seems to be countering the Karites, who did not accept the first of Tishre as Rosh haShana. The Karites argued that there is no Scriptural basis for the first of Tishre being anything other than a day when work is forbidden (Leviticus 23:23–25) and special sacrifices are offered (Numbers 29: 1–5). The Karites began the year for all religious matters with the first of Nisan. with regard to Tabernacles “at the turn of the year” (Exodus 34:22), and also “at the departure of the year” (ibid. 23:16). Now the same day when one year ends a new year begins. We also find that God instructed us in a law of Haqhel, when the entire Torah is read during the holiday of Tabernacles of a Sabbatical year (Deuteronomy 31:10–13). There it is written “in order that they may learn” (ibid. 31:12). It is not likely that this took place after half a year.⁸⁴ Thus, Haqhel certainly took place at the beginning of a Sabbatical year, indicating that a Sabbatical year began around the time of Tabernacles. Do not be perplexed by the word “At an end (miqqez) of seven years” (ibid. 31:10),⁸⁵ The verse concerning Haqhel reads: “At the end of seven years, in the time of the Sabbatical year, on the holiday of Tabernacles,” which seems to indicate that the celebration of Haqhel took place at the conclusion of the Sabbatical year and the beginning of the eighth year. for we similarly find “At an end (miqqez) of seven years you shall send forth, each man his brother” (Jeremiah 34:14).⁸⁶ We know that servants were set free after six years (Exodus 21:2). Thus “miqqez” must here refer to the beginning of the seventh year. Similarly for Haqhel, the word “miqqez” means “beginning” rather than “end.” For each thing has two edges, a front edge and a back edge. The Sabbatical year began with Tishre,⁸⁷ Here Ibn Ezra refutes the Karites who began the Sabbatical year with Nisan. (See Ibn Ezra’s commentary to Leviticus 25:20.) which is the seventh month, since then the half year of planting began. Thus it states regarding the Sabbatical year “do not plant” (Leviticus 25:4), and “You shall plant on the eighth year” (ibid. 25:22).

3. Rashi, in his commentary on Yoma 83a, adopts a position strikingly different from that of both Me'iri and Rambam. Rashi explains the position of the Sages forbidding feeding a portion of the dog's liver to the victim by stating, "Even though physicians are wont to use this therapy it is not a refu'ah gemurah to [warrant] permitting him [violation of the] prohibition regarding an unclean animal for that [purpose]." Rashi further explains that R. Mattia ben Heresh disagrees because he regards the remedy to be a refu'ah gemurah. Completely absent in Rashi's comments is any hint of a distinction between natural versus metaphysical remedies or of a distinction between a cogently understood remedy and one which is not comprehended by reason. Nor does Rashi assume that the Sages were convinced of the futility of the remedy. Instead, Rashi introduces the notion of known or demonstrated efficacy. It must be assumed that the term "refu'ah gemurah" is synonymous with the term "refu'ah bedukah" employed by latter-day scholars. As such, the term connotes a tried and tested remedy as opposed to an experimental remedy. If so, Rashi distinguishes between the "doubt" of an unknown remedy and other forms of doubt. Although halakhic prohibitions are ignored even in cases of doubtful danger and even if it is doubtful that a known remedy may help a particular patient, a therapy whose efficacy is untried and untested does not rise to the threshold level of "doubt."²⁴See Teshuvot ha-Radbaz le-Leshonot ha-Rambam, no. 153 (1,526). Put somewhat differently, the commandment "and he shall cause him to be thoroughly healed" (Exodus 21:20) imposes an obligation to utilize only what is known to possess therapeutic power, but not to engage in random activity or even to initiate research in the hope that a cure may be achieved.²⁵Cf. Mor u-Keẓi‘ah, Oraḥ Ḥayyim 328. In this discussion Mor u-Keẓi‘ah does not refer to the Mishnah in Yoma or refer to the suspension of halakhic restrictions for life-saving purposes. Mor u-Keẓi‘ah posits the category of refu’ah she-einah bedukah in delineating therapies a patient cannot be compelled to accept and regards virtually all cures for internal maladies “which even the physician does not know and recognize with clarity but rather by estimation only and which he attempts [to cure] by medicaments with regard to which he himself is in doubt” to be included in that category. Although he regards abjuration of such remedies to be commendable even on weekdays, Mor u-Keẓi‘ah apparently regards necessary violation of Shabbat restrictions and the like in conjunction with administration of such remedies to be permitted on behalf of a patient who relies upon the physician’s advice. Presumably, then, Mor u-Keẓi‘ah would accept either the analysis of Me’iri or of Rambam in explaining the controversy between Rambam and R. Mattia ben Ḥeresh. Since there is no obligation to avail oneself of such measures, their use in face of halakhic prohibitions is not permitted.²⁶See Teshuvot Kol Ben Levi, no. 2. If this analysis is correct, Rashi's interpretation of the controversy yields only limited license for setting aside halakhic restrictions in pursuit of a cure. According to Rashi, such prohibitions may be ignored only when therapeutic efficacy has actually been demonstrated in at least some cases.²⁷The attempt by R. Eliezer Waldenberg, Ẓiẓ Eli‘ezer, VIII, no. 15, chap. 8, sec. 2, to identify Rashi’s position with that of Rambam and to interpret Rashi as excluding only remedies in the nature of a segulah falls short of the mark and is contradicted by all the authorities cited in the text who require a refu’ah yedu‘ah. A similar attempt to identify Rashi’s position with that of Rambam was earlier undertaken by Teshuvot Shemesh Ẓedakah, no. 29. Shemesh Ẓedakah understands the term “yedu‘ah” as excluding segulot whose medicinal properties are not understood. At the other extreme, the interlocutor cited in Teshuvot Shemesh Ẓedakah, no. 29, endeavors to harmonize the views of Rambam and Rashi by arguing that both concede that therapeutic efficacy must be known with certainty and that Rambam’s comments merely indicate that the efficacy of a segulah can never be known with certainty.

Rashi, in his commentary on Exodus 21:1, offers a somewhat different rationale:

(Tav) ‘I have strolled in my heart to understand that which is written in Sifrei Devarim 144, “[‘You shall place officers and magistrates in all of your gates, etc.’ –] the appointment of proper judges is worthwhile to give life to Israel and to settle them on their land.” See there. And the language, “The appointment of proper judges is worthwhile to give life, etc.,” is not understood. As it is certainly worthwhile for far more [than only this], since we have found that the Torah itself was only given to Israel on condition that they would execute the laws. [That is] as it is [found] in the Midrash (Shemot Rabbah 31:1), “‘And these are the laws’ (Exod. 21:1) – and this is [the meaning of] that which is written (Ps. 99:4), ‘Mighty King who loves law,’ etc.” And it appears to me that [this can be understood] according to that which is written in Akeidat Yitschak, Parashat Vayera, and these are his words:
And I also wonder, is there favoritism in the matter – in what way were the people of Giveah (from the tribe of Binyamin)⁶⁶See Jud. 19. different than the people of Sodom, etc.? And behold, Ramban,⁶⁷Ramban on Genesis 19:8. may his memory be blessed, defended them, etc. However the simple text equates them completely.
See there, as he wrote at length. But he concludes:
If a city is ‘surrounded by the walls’ of good laws and ordinances and proper precepts – even if ‘foxes’ will sometimes breach the fences and break the laws – such a city is close to healing and repair. As ‘one from a city and two from a family’ will rise up to reprove the people [of the city, such that] their hearts will be aroused and they will go back to the [earlier strength]. However if it has no fence – not from ordinances and not from proper customs – even if it has a tall wall of ‘snakes and scorpions,’ ‘thorns and thistles’; their laws are not good and their ‘judgements are not’ to live by, etc. And behold that, in truth, this was the sin of Sodom, etc. – to the point where they established bad and disgusting things to be [as if] good laws. And they [even] enforced them [strictly] with penalties, that they should not transgress them, etc. But in Giveah, they had good laws; however, they sometimes transgressed them, etc. This is possible to fix. [See there.]
And it is possible that this is the intention of the Sifrei – “the appointment of judges is worthwhile,” meaning the appointment itself. [As] even if they do not listen to the voice of the instructors, they are close to being saved by the rebuke of the elders – as is written in Akeidat Yitschak about the people of Giveah. And were not the ones setting up the laws of the judges those who settled first in the country of a ‘boundless inheritance’ – ‘no eye has seen [them], O God, but You’?

The Gemara, Bava Kamma 85a, declares "'… and he shall cause him to be thoroughly healed' (Exodus 21:19.)—From here [it is derived] that the physician has been given authority to heal." In Jewish law, as in all coherent legal systems, all activities are permissible unless they are expressly prohibited or contraindicated on the basis of some legal or moral consideration. If so, in the absence of any countervailing consideration, why should a physician require explicit permission to practice the healing arts? Absent the scriptural dispensation provided by this verse, why should a physician shrink from using his skills in order to cure a patient? In their respective commentaries on this talmudic passage, Rashi, Tosafot and Rashba explain that the constraint is theological in nature. To paraphrase Rashi's formulation: "If God afflicts, how dare man attempt to cure?" Or, as expressed by Tosafot, in curing the patient, the medical practitioner "appears to thwart the divine decree." Such would be the physician's concern in the absence of specific dispensation; once permission is given, practice of the healing arts becomes intrinsic to God's providential guardianship of man and hence medical ministration is not only permissible or even commendable but is mandatory.²⁴See this writer’s “The Obligation to Heal in the Judaic Tradition,” Jewish Bioethics, ed. Fred Rosner and J. David Bleich, 2nd edition (New York, 2000), pp. 22-30.

Surprisingly, there is one source which appears to rule that destruction of the fetus by Noachides, at least under some circumstances, does not constitute a moral offense. Maharit³⁶Teshuvot Maharit, I, no. 99. writes: "I remember having seen in a responsum of the Rashba that he bears witness that Ramban rendered medical aid to a gentile woman in return for compensation in order that she might conceive and aided her in aborting the fruit of her womb."³⁷The authenticity of this quotation is highly questionable. R. Unterman (p. 8) notes that he searched Teshuvot ha-Rashba in an unsuccessful attempt to locate this responsum. It seems probable that Maharit’s quotation is culled from responsum no. 120 of vol. I in the published text (B’nei Brak, 5718). This responsum deals with the permissibility of rendering medical assistance to Noachide women so that they may be enabled to conceive. In language similar to that quoted by Maharit, mention is made of Ramban’s actually having done so in return for financial compensation. However, no mention whatsoever is made of Ramban’s having assisted in medical abortion. Maharit apparently had a variant textual version. Cf., also, R. Samuel Hubner, Ha-Darom, Tishri 5729, p. 33, who attempts to resolve the issue by suggesting an alternate punctuation of this quotation. It is of course inconceivable that an individual of Nachmanides' piety and erudition would have violated the injunction "Thou shalt not place a stumbling block before a blind person" (Lev. 19:4) or that he would have actively assisted transgressors. Applying the line of reasoning adduced above, Rabbi Unterman draws the conclusion that there is a fundamental distinction between Jewish law and Noachide law with regard to the assessment of potential life. According to many authorities, Noachides are under no obligation to preserve the lives of their fellows, to "be fruitful and multiply" or to refrain from wasting the male seed.³⁸See above, n. 14. They are forbidden to commit homicide and to take the life of "a man within a man" but bear no responsibility for the safeguarding and preservation of seminal life. It would appear, then; that Halakhah holds them accountable only for actual, in contradistinction to potential, life.³⁹R. Unterman fails, however, to note the comments of R. Jacob Zevi Jalish in his Melo ha-Ro‘im, Sanhedrin 57b, who expresses a contrary view. Examination of the phraseology of Ḥemdat Yisra’el, Part I, p. 108, indicates that R. Plocki also had such a distinction in mind. In cases of danger to the mother he permits abortion of embryos of less than forty days without further qualification and adds that there are grounds for permitting abortion at subsequent stages of development provided this procedure is performed by a Jewish physician. Accordingly, there is no objection to Noachides aborting, or to a Jew giving advice and rendering indirect assistance to Noachides in aborting, a fetus within the first forty days of gestation. Since Halakhah considers that during this initial period the embryo has not as yet developed distinctly recognizable organs or an independent circulatory system it cannot be considered "a man within a man" and hence its destruction does not constitute murder under the Noachide dispensation. Nachmanides, Rabbi Unterman avers, sanctioned the performance of abortions by Noachides only within this forty-day period.⁴⁰The absence, in the Noachide Code, of a ban on feticide during the first forty days of gestation would, in the opinion of this writer, provide insight into what is otherwise considered an erroneous translation by the Septuagint of Exodus 21:22–23: “And if two men strive together and hurt a woman with a child so that her children depart and yet no harm (ason) follow, he shall surely be fined. … But if any harm follows, then thou shalt give life for life.” Rabbinic exegesis regards the term “harm” as having reference to the death of the mother. Compensation is payable to the husband for the loss of his offspring only if the mother survives. Should the mother die as a result of this assault, the attacker is absolved from the payment of this fine. From these provisions the Gemara derives the principle that the commission of a capital crime, even if unintentional and hence not leading to the invocation of the statutory penalty, absolves the offender from the payment of any other compensation. The Septuagint, however, renders these verses as follows:
This reading understands the death penalty to which reference is made as being incurred for the killing of the fetus in cases where the fetus is formed, i.e., has already reached the fortieth day of gestation. It is clearly on the basis of this passage in the Septuagint that such a distinction is drawn by Philo (De Spec. Legibus, III, 108–10) and it was this reading of the Septuagint which influenced the attitude of the Church. Cf. Jakobovits, op. cit., pp. 174, 179, 328, n. 43, and 333, n. 152. Samuel Poznanski, “Jakob ben Ephraim ein Antikaraischer Polemiker des X Jahrhunderts,” Gedenkbuch zur Erinnerung an David Kaufmann, ed. M. Brann and F. Rosenthal (Breslau, 1900), p. 186, suggests that the mistranslation is based on reading ẓurah for ason. On the basis of R. Unterman’s thesis, the entire matter is quite readily resolved, particularly in light of the rabbinic tradition which states that modifications were intentionally introduced by the Jewish translators (see Megillah 9a). Addressed to gentiles, the translation may have been intended to incorporate ramifications of Noachide law. Since a Noachide incurs capital punishment for the destruction of a fetus, provided it is formed, he would be absolved from further punishment even in cases where the mother survives. An exhaustive interpretation of ason, then, signifies death of the mother if the attacker is a Jew, and either death of the mother or of a formed fetus if the attacker is a Noachide. The word ason as applied to a Noachide thus includes the death of a formed fetus and is rendered accordingly by the Septuagint. This interpretation is, of course, founded on the premise that the principle of absolution from the lesser of two simultaneously incurred punishments extends to Noachide law as well —a matter which bears further investigation. R. Joseph Babad is of the opinion that the principle “kim leh be-de-rabbah mineh” (imposition of the greater of two punishments to the exclusion of the lesser) does not apply to Noachides. See Minḥat Ḥinukh, no. 34. However, there is basis for assuming that the question is the subject of controversy between Rashi and Tosafot, Eruvin 62a. Cf. Encyclopedia Talmudit (Tel Aviv, 5711), III, 354.

The laws of the commandment - for example, that which they said (Mishneh Torah, Laws of Theft 9:6) [that] there is no difference between an adult and a child or between a man and a woman, as "a soul" implies all cases; the law of a father who steals his son or a master who steals his student; and the rest of its details - are [all] elucidated in Chapter Eleven of Sanhedrin. And its prohibition is practiced in every place and at all times. And one who transgresses it and steals a soul is liable for strangulation, and that is if he has already sold that soul. As so came the explanation (Sanhedrin 85b) that the liability does not rest upon him until he sells; since another verse reveals this, as it is written (Exodus 21:16), "And he steals a man and sells him [...], he will surely be killed."

Accordingly, if two parties, regardless of where they may be domiciled or where the contract is executed, enter into a contract and stipulate that any dispute with regard to fulfillment of the terms of the contract is to be resolved by a rabbinic court in accordance with, for example, the laws of the State of Delaware, the stipulation is void by virtue of being inconsistent with biblical law (matneh al mah she-katuv ba-Torah).¹⁹Cf., Teshuvot Rivash, no. 52 and Tashbaẓ, I, no. 61, who reject Rivash’s conclusion. See also Ramban, Commentary on the Torah, Exodus 21:1; Teshuvot ha-Rashba, cited by Bet Yosef, Ḥoshen Mishpat 26; Rema, Ḥoshen Mishpat 248:1 and 369:8; Sema, Ḥoshen Mishpat 369:20; Taz, Ḥoshen Mishpat 248:1; Teshuvot Maharit, II, Ḥoshen Mishpat, no. 6; Teshuvot Ḥatam Sofer, Ḥoshen Mishpat, no. 142; and Teshuvot Ba’i Ḥayyei, Ḥoshen Mishpat, no. 158. Cf. also, Sema, Ḥoshen Mishpat 26:10; Taz, Ḥoshen Mishpat 26:3; and Birkei Yosef, Ḥoshen Mishpat 26:3 as well as R. Judah Siegal, Ha-Torah ve-ha-Medinah, pp. 84-91. The parties are, of course, bound to appear before the Bet Din, but the Bet Din must adjudicate the dispute in accordance with the provisions of Hoshen Mishpat.

Returning to our central problem, many authorities take a different view with regard to embryotomy in cases where pregnancy endangers the life of the mother by complicating an already present medical condition. Rabbi Weinberg (No'am IX, 204; Seridei Esh, III, 343 f.) offers a radically different approach to the resolution of the complex difficulties surrounding the previously cited statements of Maimonides, Hilkhot Rozeaḥ 1:9, in light of the latter's remarks in Hilkhot Hoveil u-Mazik 8:4. Maimonides rules that although property belonging to others may be appropriated in order to preserve one's own life, compensation must nevertheless subsequently be paid to the lawful owner. Rabbi Weinberg notes that the provision is modified in the event that the property itself is the source of danger (Nizkei Mamon 8:15). The paradigm case is that of the threat to the lives of the passengers sailing on an overly laden ship which is in danger of sinking. One who lightens the load by throwing cargo overboard is absolved from payment of property damages since the cargo itself is deemed to be "a pursuer." Rabbi Weinberg opines that Maimonides invokes this provision in his exposition of the law surrounding danger arising from pregnancy. Maimonides does not resort to the law of pursuit, argues Rabbi Weinberg, in order to justify sacrifice of the life of the fetus; this is warranted on the basis of Rashi's explanation that it is not fully "a human life." Rather, continues Rabbi Weinberg, Maimonides invokes the pursuer argument in order to provide a basis for exemption from satisfaction of the husband's claim for monetary damages normally incurred as a result of destruction of a fetus as provided by Exodus 21:22.

The commandment of the law of a Hebrew slave: To adjudicate the law of a Hebrew slave according to what is written in the section, as it is stated (Exodus 21:2), "When you acquire a Hebrew slave, etc." [This] means to say that we do the things to him that we are commanded about: For example, to send him away in the seventh year (Kiddushin 14b), or within the six years if the Jubilee occurs [before the end of his term], or by subtracting [with] money, or with the death of a master who did not leave a male child. And [we] also [do] for the "pierced one," according to the laws that are written about him. Everything is like our Rabbis, may their memory be blessed, taught us form the verse, as it is explained in the first chapter of Kiddushin 14b.

The commandment of designation of a Hebrew bondwoman: To designate a Hebrew bondwoman, meaning to say that the Israelite that acquired a Hebrew bondwoman marry her as a wife or give her to his son as a wife, as it is stated (Exodus 21:8), "If she is bad in the eyes of her master, who designated her for himself, he must let her be redeemed." And they, may their memory be blessed, said (Rashi on Exodus 21:8) that here is a hint for you that there is a commandment of designation. And they, may their memory be blessed, explicitly said (Bekhorot 19a) that the commandment of designation is before the commandment of redemption.

And [it] is only practiced at the time that the Jubilee is practiced (Gittin 65a). And one who transgresses it and does not designate her - not for him, and not for his son - and does not help with her redemption, has not performed this commandment. However it appears that we do not coerce him about the fulfillment of this commandment; as behold, it is written there explicitly (Exodus 21:11), "And if he does not do these three to her." [From here,] it is implied that the Torah left the thing up to his will. But if he married her as a wife or married her to his son, as we have written, he has done what his fitting. And a blessing will come upon him and good and proper children are fitting to come from their union.

The commandment of redemption of a Hebrew bondwoman: To redeem a Hebrew bondwoman, as it is stated (Exodus 21:8), "he must let her be redeemed." And that is a positive commandment, meaning to say that the master that acquired her, help her in her redemption and give her room to go back to the house of her father. [It is] like they, may their memory be blessed, said (Kiddushin 14b), "He reduces the price and she leaves." [This] means to say that if he took her for [the price of] sixty dinars over six years and she worked three years and gathered thirty dinars, that he should take them and send her away. And he should not claim about her that she must finish the years of her bondage regardless, or say, "My money was sitting idly with you; if you want to leave, add the profit to me [that the money should have produced while it was idle]" - as this is only evil-heartedness. And for the Children of Israel who are the children of kings, merciful ones [who are] the children of merciful ones, it is fitting to do kindness with the creatures, even those who serve them, and even [if it is] for one day.

That the one who acquires the Hebrew bondwoman from the father not sell her: That anyone who acquires a Hebrew bondwoman not sell her to another man ever, as it is stated (Exodus 21:8), "he shall not have the right to sell her to a foreign people, etc." And the explanation [of the phrase] is like [Onkelos' Aramaic] translation, "to another man." And it was stated with this wording to distance this thing - meaning to say that if he sells her to a second man, it is for this poor little one similar to if he sold her to a foreign people.

Not to reduce her flesh, covering and time period: That anyone who acquires a Hebrew bondwoman and designates her may not reduce her flesh, her covering and her time period. And the explanation (Ketuvot 47b) of "flesh" is food, of "covering" is like its simple understanding and of "time period" is the way of the world (conjugal rights). And included in this negative commandment are all daughters of Israel (as well), not to reduce from them any thing from these [categories]. [This inclusion] is a fortiori (kal ve'chomer): If he does not reduce for [bondwomen], all the more so for free [women]. And [about] that which it is written (Exodus 21:9), "like the statute of the daughters he shall do for her" - they said in the Mekhilta d'Rabbi Yishmael 21:9:2 that it came to learn [from the others], but it ends up to teach, as the [law of the other] daughters are learned form her.

This determination leads Rabbi Uziel to the discussion of an interesting question. A pregnant woman is forbidden to contract a levirate marriage since her deceased husband will no longer remain childless if the pregnancy culminates in the birth of a viable infant. If, however, the widow entered into the marriage with her brother-in-law and later discovered that at the time of consummation she was already bearing the child of her previous husband, the marriage is annulled and a sin-offering brought in expiation of this inadvertent transgression. Why, R. Uziel was asked, is she not advised simply to abort the fetus thereby eradicating her transgression ab initio? Obviation of sin certainly constitutes a "grave need" and fulfills the criterion established by R. Jacob Emden. Rabbi Uziel answers that since the husband enjoys rights of proprietorship with regard to the fetus and is indeed entitled to monetary compensation for its loss (Exod. 21:22), the woman has no right to destroy her dead husband's property in order to absolve herself retroactively from the prohibition against cohabitation with a brother-in-law.

The commandment on the court (beit din) to kill with strangulation one who is liable: That we have been commanded to kill the transgressors of some of the commandments of the Torah with strangulation, as it is stated (Exodus 21:12), "He who strikes a man and [that man] dies shall surely be put to death." And this one of "One who strikes a man" is one of the ones whose death penalty is with strangulation. Since it is written about it, "[he] shall surely die" - and in the explanation, they, may their memory be blessed, said (Sanhedrin 52b), "Any death penalty stated in the Torah undifferentiated is only strangulation." We have learned that those that are liable for the death penalty do not have repayment, as it is stated (Exodus 21:11-12), "there is no money. He who strikes a man and [that man] dies, etc." - Mekhilta.

Not to strike father and mother: That a child should not strike the father and the mother, even if they strike him [very much], so long as their souls do not bring them to kill him, as it is stated (Exodus 21:15), "He who strikes his father or his mother shall surely be put to death." And even though the verse does not explicitly warn him about this, that it say to him, "Do not strike the fathers," but rather it only wrote the punishment of the one who strikes them - and it is the way of the Gemara to always ask about a matter like this and to say, "We have heard the punishment, from where is the warning" - here too, we have a warning: as behold, we are warned (Makkot 9a) for every person, not to strike him. As it is written about one who is liable for lashes (Deuteronomy 25:3), "Forty shall he strike him, he shall not add." And it is a fortiori (kal ve'chomer) about someone who is not liable [for lashes] - and the father is included in Israel. And [so] the warning [for the commandment] is from here. And [this must be the case] even though this negative commandment of "he shall not add," is considered a separate negative commandment on its own. Since we have a rule in our hands that anything that has for it excision or a death penalty must also have a negative commandment - except for the Pesach offering and circumcision - and behold with the striking of father and mother, [we know] that there is excision without witnesses and the death penalty with witnesses! And therefore, we have to say that we nonetheless learn the warning for it from the Scripture of "he shall not add," as we did not find it in [any] other place. And the main idea of the warning will be [about] all of Israel; but [also] included in it, we learn about the one who strikes mother and father. And they, may their memory be blessed, said (Sanhedrin 85b) that the case of this liability for death of the one that strikes is specifically when he brings out blood from them. [But it is] not the same with any other person - as even if he extracts blood from them, he is [only] liable for money.

The commandment of the laws of penalties: That we were commanded about the law of one who injures his fellow to penalize that person, as it is written in the Torah in the section of "And if men fight" (Exodus 21:18). And this is called the laws of penalties. And in another verse, it includes all of the laws of penalties, and it is the verse, "as he did, so shall it be done to him" (Leviticus 24:19) – it means to say that what he pained [his fellow] should be taken away from his money, in accordance with that which he injured his fellow, as the tradition comes about it (Bava Kamma 83b). And even if he did not hit him, but only embarrassed him, the court must cause him pain through his money, that he should pay the one embarrassed, according to this amount. And these laws that are called the laws of penalties – for example, the laws of a man [who hurt another] man; an ox, an ox; an animal, a man; a man, an animal – must be judged in a court that has been ordained in the Land of Israel (Bava Kamma 84a).

The commandment on the court to kill with the sword one who is liable: That we have been commanded to kill the transgressors of some of the commandments of the Torah with the sword. And this law is called killing by our Rabbis. And it is a [relatively] light death penalty, but strangulation is nonetheless lighter than it (Sanhedrin 49b). And one of the ones killed by this death penalty is the one who strikes his slave - even a Canaanite [one] - if he dies from his hand, as it is stated (Exodus 21:20), "he shall surely be avenged." And the explanation comes [to tell us] that his striker should be killed by the sword. I have already written above (Sefer HaChinukh 47) that Ramban, may his memory be blessed, does not count the four death penalties of the court as four [distinct] commandments, as does Rambam, may his memory be blessed.

The commandment on the court to judge the damages of an animal: To judge in the case of a damaging ox - whether it [injures] a person, as it is written in the section of (Exodus 21:28), "If it gores," or whether it damages [assets], as it is written in the section of (Exodus 21:35), "If it hurts (yigof)." And the main understanding of hurting [here] is to push (Rashi on Exodus 21:35). However, whether it damages with its body or its feet, or it bites with its teeth, or even if it damages with its horns, it is all implied by the expression of hurting. But goring only implies with the horn (Bava Kamma 2b). [Still,] the [other] injuries of a man by an ox have already been included; as it is written in the section of "If it gores," "and it kills" (Exodus 21:26) - since it implies killing in any case, whether it is with goring or whether it is with other things (Mekhilta d'Rabbi Yishmael 21:28:2). And it is not specifically an ox, but rather we are even obligated for any domesticated animal or wild animal or bird that has damaged. [However], it is only that the verse stated [that] which was common. And we have already said that all of the commandments that come about the matter of justice have one root to them and it is a rational thing. And [so] I do not have to review it with each and every one.

The commandment on the court to judge the damages of an animal: To judge in the case of a damaging ox - whether it [injures] a person, as it is written in the section of (Exodus 21:28), "If it gores," or whether it damages [assets], as it is written in the section of (Exodus 21:35), "If it hurts (yigof)." And the main understanding of hurting [here] is to push (Rashi on Exodus 21:35). However, whether it damages with its body or its feet, or it bites with its teeth, or even if it damages with its horns, it is all implied by the expression of hurting. But goring only implies with the horn (Bava Kamma 2b). [Still,] the [other] injuries of a man by an ox have already been included; as it is written in the section of "If it gores," "and it kills" (Exodus 21:26) - since it implies killing in any case, whether it is with goring or whether it is with other things (Mekhilta d'Rabbi Yishmael 21:28:2). And it is not specifically an ox, but rather we are even obligated for any domesticated animal or wild animal or bird that has damaged. [However], it is only that the verse stated [that] which was common. And we have already said that all of the commandments that come about the matter of justice have one root to them and it is a rational thing. And [so] I do not have to review it with each and every one.

The commandment on the court to judge the damages of an animal: To judge in the case of a damaging ox - whether it [injures] a person, as it is written in the section of (Exodus 21:28), "If it gores," or whether it damages [assets], as it is written in the section of (Exodus 21:35), "If it hurts (yigof)." And the main understanding of hurting [here] is to push (Rashi on Exodus 21:35). However, whether it damages with its body or its feet, or it bites with its teeth, or even if it damages with its horns, it is all implied by the expression of hurting. But goring only implies with the horn (Bava Kamma 2b). [Still,] the [other] injuries of a man by an ox have already been included; as it is written in the section of "If it gores," "and it kills" (Exodus 21:26) - since it implies killing in any case, whether it is with goring or whether it is with other things (Mekhilta d'Rabbi Yishmael 21:28:2). And it is not specifically an ox, but rather we are even obligated for any domesticated animal or wild animal or bird that has damaged. [However], it is only that the verse stated [that] which was common. And we have already said that all of the commandments that come about the matter of justice have one root to them and it is a rational thing. And [so] I do not have to review it with each and every one.

Not to eat from the meat of a ox that was stoned: Not to eat the meat of an ox that was stoned, even if it was properly slaughtered - once its case is finished, its meat is prohibited. So is it explained in the Mekhilta d'Rabbi Yishmael 21:28:2, as it is stated (Exodus 21:28), "and its meat shall not be eaten." And it is not specifically an ox, but rather any domesticated animal, wild animal or bird, however the Torah stated that which is common.

Not to eat from the meat of a ox that was stoned: Not to eat the meat of an ox that was stoned, even if it was properly slaughtered - once its case is finished, its meat is prohibited. So is it explained in the Mekhilta d'Rabbi Yishmael 21:28:2, as it is stated (Exodus 21:28), "and its meat shall not be eaten." And it is not specifically an ox, but rather any domesticated animal, wild animal or bird, however the Torah stated that which is common.

The commandment on the court to judge the damages of a pit: To judge about the laws of one who opens a pit in a place where it is an obstacle for people, as it is stated (Exodus 21:33), "If a man opens a pit" - as it is explained in the section. And it is not specifically a pit, but rather even a ditch or a cave (Bava Kamma 50b), but it only stated, "pit" to teach that there needs to be enough [depth] to it to kill - which is twenty fingerbreadths.

The commandment on the court to judge a thief with repayment or the death penalty: To judge the laws of a thief, as it is written in the section of "If a man steals, etc." (Exodus 21:37). And the matter of theft is one who takes a thing of [from the] money of his fellow, from his house or from his pocket at a time when the owner is not looking and does not know; and so [too] all that is similar to this (see Tur, Choshen Mishpat 348).

Perhaps of even greater significance is the fact that war almost inevitably results in civilian casualties as well as the loss of combatants. The taking of innocent lives certainly cannot be justified on the basis of the law of pursuit. The life of the pursuer is forfeit in order that the life of the intended victim be preserved. However, should it be impossible to eliminate the pursuer other than by also causing the death of an innocent bystander, the law of pursuit could not be invoked even by the intended victim, much less so by a third party who is himself not personally endangered. Since the law of pursuit is designed to preserve the life of the innocent victim, it is only logical that it is forbidden to cause the death of a bystander in the process since to do so would only entail the loss of another innocent life. In such situations the talmudic principle "How do you know that your blood is sweeter than the blood of your fellow?" (Sanhedrin 74a) is fully applicable.³⁷Amud ha-Yemini, no. 16, chap. 4, discusses the applicability of this principle to the question of the sacrifice of gentile lives for the preservation of Jewish lives. Notwithstanding terminology employed by Rashi, Sanhedrin 74a, s.v. mai ḥazit, Rabbi Israeli rules that it is forbidden to take the life of a non-Jew in order to save the life of a Jew. Cf., Tiferet Yisra’el, Bo’az, Oholot 7:10; Noda bi-Yehuda, Mahadura Tinyana, Ḥoshen Mishpat, no. 59; Perashat Derakhim, Derush 17; Minḥat Ḥinnukh, no. 296; and R. Eliezer Waldenberg, Ẓiẓ Eli’ezer, X, no. 25, chap. 5, sec. 4. Cf., however, Palestinian Talmud, Shabbat 14:4, and R. Mordecai Halperin, Assia, vol. X, no. 4, (Tammuz, 5725), pp. 22-23. For an analysis of the problem posed by the Palestinian Talmud see this writer’s discussion in Or Ha-Mizraḥ, (Nisan-Tammuz 5748), pp. 293-295.
See Ra’avan, Baba Kamma 111b, and Kesef Mishneh, Hilkhot Roẓeaḥ 2:11, who declare that taking the life of a non-Jew is encompassed in the prohibition against homicide; see also Mekhilta, Mishpatim 4:58. The line of reasoning employed by Ḥakham ẓevi, no. 26, and Ḥut ha-Meshulash, no. 17, with regard to theft of property belonging to a non-Jew would appear to apply, mutatis mutandis, to homicide as well. Meshekh Ḥokhmah, Parshat Mishpatim, s.v. ve-yitakhen, avers that the slaying of a non-Jew is a more severe transgression than taking the life of a Jew and that it is precisely for that reason that “punishment is reserved to Heaven.” See also Ibn Ezra, Commentary on the Bible, Exodus 21:21. Cf. R. Simchah Shustal, Koveẓ Nehora’i, I (5740), pp. 86-91.

Presenting a second argument which would render this practice permissible, R. Israel Lipschutz reasons that Halakhah suspects that each newly born child may be premature and possibly incapable of survival and provides that the child's status remain in doubt until it demonstrates viability through survival for a minimum period of thirty days.⁶⁴A similar reservation concerning the status of an unborn child was voiced by R. Isaiah Pik (as evidenced by the responsum addressed to him by R. Yechezkel Landau, Noda bi-Yehudah, II, Ḥoshen Mishpat, no. 59), who apparently was of the opinion that the general ruling that all infants are considered to be viable does not apply to embryos, since the generalization is based upon observation that such is the case in the preponderant number of instances. The establishment of such a “majority” is especially limited to experience associated with born children. No such observation is permissible with regard to unborn children. Hence this principle, argues R. Pik, must be limited and considered as encompassing only born infants, i.e., stating only that the majority of fully delivered infants are viable. Cf. also the previously cited commentary of R. Elijah Mizrachi on Exodus 21:12. Therefore, argues R. Lipschutz, since there is an objective criterion for granting priority to the life of the mother, the usual principle "on what account is his blood sweeter than yours" does not apply and hence the child may be sacrificed in order to spare the life of the mother.⁶⁵An identical distinction is made by R. Isaiah Pik in a communication addressed to R. Landau and quoted by the latter in his Noda bi-Yehudah, II, Ḥoshen Mishpat, no. 59, and by R. Judah Rosanes, Parashat Derakhim, Derush 17. A similar distinction with regard to tereifah is made by Minḥat Ḥinukh, no. 296. See also Ẓiẓ Eli‘ezer, X, no. 25, chap. 5, sec. 4.
The view expressed by R. Lipschutz concerning the inapplicability of this principle is somewhat problematic in light of Kesef Mishneh’s analysis of Yesodei ha-Torah 5:5. The Gemara, Pesaḥim 25b, states that the principle “Be killed but do not transgress” as applied to an act of homicide is an a priori principle based upon reason alone. If so, questions Kesef Mishneh, what is the basis for the extension of the ruling “Be killed but do not transgress” to a situation in which the victim is singled out and the entire group warned that, if the specified individual is not delivered, all will perish. In such cases the dictates of reason would indicate that it is preferable by far to sacrifice a single life rather than to suffer the loss of the entire group. Kesef Mishneh concludes that the Sages possessed a tradition extending this principle even to cases in which the a priori reason advanced does not apply. See also Aḥi‘ezer, II, no. 16, sec. 5. The distinction both with regard to fetal life and tereifah as drawn by the above cited authorities is rejected by Nodai bi-Yehudah, loc. cit.

To not oppress the convert with words: That we have been prevented from oppressing converts, even [only] with words - and that is one from the [other] nations who converted and entered our religion - such that is forbidden for [one] to disgrace him even with words, as it is stated (Exodus 22:20), "and you shall not oppress a convert." And even though we are warned about this with [Jews] and since this one entered our religion, behold is like [any other Jew], Scripture added a warning to us and also redoubled the prohibition for him, as it is written (Leviticus 19:33), "do not oppress" another time; because the issue of oppression is more relevant to a convert than it is to [another Jew], as [another Jew] has redeemers who will redress his insult. And there is another reason, [and that is] because there is a concern that [the convert] might return to his deviance out of anger over the disgraces. And they said in the Sifra (Sifra, Kedoshim, Chapter 8:2) that one shouldn't say, "Yesterday you were an idolater and now you entered under the wings of the Divine Presence."

The right to claim compensation for damages resulting from a battery is quite distinct from the prohibition regarding "wounding." The prohibition against wounding is derived from Deuteronomy 25:3 and is in the nature of a "criminal" offense; liability for damages is derived from Exodus 21:19–25 and is in the nature of a civil remedy. Therapeutic wounding is excluded only from the prohibition recorded in Deuteronomy 25:3. Thus, therapeutic wounding may be entirely permissible and yet result in tort liability. Tosafot, Baba Kamma 60b, and Rosh, Baba Kamma 6:12 and Sanhedrin 8:12, rule that the victim whose life has been saved must compensate the rescuer for expenses incurred in the rescue. It should logically follow that the rescuer is also entitled to compensation for injuries to his person sustained in the rescue endeavor. The selfsame principle should logically apply to intentional "wounding" for the purpose of saving the life of another. Indeed, Hagahot Mordekhai, Sanhedrin, sec. 718, declares that a person may cut off the limb of another in order to save his own life "but must pay him the value of his hand." As has been shown earlier, Hagahot Mordekhai's ruling regarding committing an act of mayhem in order to preserve one's own life is decidedly a minority opinion but, if that position is indeed accepted, his ruling regarding tort liability appears to be unexceptional. A fortiori, in situations in which the person wounded is under no obligation to render assistance, he should be entitled to damages for any wound sustained, including compensation for pain and suffering. A minor is certainly not bound by any biblical commandment. Hence, even in circumstances in which a minor's bone marrow may be removed for purposes of transplantation, the minor would be fully entitled to receive compensation for tort damages to the extent that damages for battery are actionable in our era.¹⁰⁴See Shulḥan Arukh, Ḥoshen Mishpat 1:2 and 1:8.

It is forbidden for a man to withhold conjugal duties from his wife. If he did so with the intent of causing her pain he has transgressed the prohibition of "Do not reduce her conjugal obligation" (Ex. 21:10) . If he is ill or weakened and he is unable to have intercourse, he waits six months until he becomes healthy, for this is longest period of conjugal duties. After that period he must either get her permission or divorce her and pay the Ketubah.

A man who rebels against his wife and says, "I will feed and support her, but will not have sexual relations with her because I hate her," we add the value of 36 barleycorns of silver to her ketuba (marriage contract) each week, and he remains without relations as long as she is willing to wait. Even though her ketuba amount continues to grow, he is still transgressing a negative commandment, as it says, "...he shall not withhold" (Exodus 21:10). If she so desires, court can force him to divorce her immediately and to give her the ketuba money. Note: Some authorities say that if he wants to divorce her immediately and give her ketuba, we do not add on to the ketuba (so it appears in Rambam Hilchot Ishut chapter 14). It seems to me that in such a case he also does not transgress the negative commandment of "...he shall not withhold" (Exodus 21:10).

Judaism recognizes divine proprietorship over all objects of creation, including the human body. Judaism expressly teaches that the individual has no proprietary rights with regard to his own body, and hence is forbidden to mutilate or wound his own body (see Rambam, Hilkhot Hovel u-Mazik 5:1).^16aCf. R. Joseph Babad, Minḥat Ḥinukh, no. 48; and R. Chaim Chizkeyahu Medini, Sedei Ḥemed, I, Ma‘arekhet ha-Alef, Pe’at ha-Sadeh, no. 40. A person's body is committed to him for safekeeping, and hence self-mutilation or any form of assault upon the body is viewed as a breach of this stewardship. Dispensation for intervention in physiological processes for therapeutic purposes is granted in the biblical directive, "and he shall cause him to be thoroughly healed" (Exod. 21:19). Thus, a surgical operation to correct a deformed or malfunctioning organ is specifically excluded from the prohibition against "wounding."

[The days] from Rosh Chodesh Elul until after Yom Kippur, are days of Divine favor [and acceptance.] Even though throughout the entire year the Holy One, blessed is He, accepts the repentance of those who return to Him wholeheartedly, nevertheless, these days are unexcelled and most suitable for repentance, because they are days of mercy and favor. On Rosh Chodesh Elul, Moshe went up Mount Sinai to receive the Second Tablets; he remained there for forty days, and came down on the tenth day of Tishrei when the atonement was completed. From then on these days have been designated as days of Divine favor [and acceptance,] and the tenth day of Tishrei as Yom Kippur [Day of Atonement]. In most communities it is the custom to fast on the day before Rosh Chodesh Elul and to recite the prayers of Yom Kippur Katan [minor Yom Kippur], in order to be spiritually prepared for repentance. If Rosh Chodesh occurs on Shabbos, Yom Kippur Katan is held on the preceding Thursday. The Ari (Rabbi Yitzchak Luria), of blessed memory, wrote, "If he did not lie in ambush but Hashem made it happen, then I will provide …" (Exodus 21:13) The initials of the words [ina le'yado vesamti lecha] form the acronym Elul, to indicate that this month is a favorable time for repentance to be accepted for the sins committed during the entire year. It also alludes to the fact that sins done inadvertently also require repentance¹The Scriptural verse referred to in the text deals with a homicide that was commited accidentally or inadvertently. during this month. The interpreters of allusions also commented: It is written (Deuteronomy 30:6) "And Hashem your God will circumcise your heart and the heart of your children;" the initials of the words [es levavecho ve'es levav] form the acronym Elul. Also, the initials of Ani ledodi vedodi li, ["I am my Beloved's and my Beloved is mine,"]²During these forty days, since repentance is more readily accepted, our repentance brings our hearts closer to our Beloved One and thus He, (our Beloved) is closer to us by accepting our repentance. (Mishnah Berurah preface to Chapter 581) [Song of Songs 6:3] form the acronym Elul. Also, the initials of Ish lerei'eihu umatanos la'evyonim ["One to another and gifts to the poor"] (Esther 9:22) form the acronym Elul. These acronyms are an allusion to three things: Repentance, Prayer and Charity which must be practiced zealously during this month. "Hashem will circumcise etc." alludes to repentance, "I am my Beloved's etc." alludes to prayer, for prayer is the song of love. "One to another and gifts to the poor," alludes to charity.

That is that He commanded us to marry with kiddushin: To give something into the hand of the woman; through a contract; or through sexual intercourse. And that is the commandment of kiddushin. And the hint to this is, "When a man takes a wife, and marries (which can also mean, has intercourse with) her etc." (Deuteronomy 24:1) - indicating that he effectuates [the marriage] with intercourse; and His saying, "And she leaves [...] and becomes" (Deuteronomy 24:2) - since just like the leaving (divorce) is with a contract, so too is the becoming (marriage) with a contract. And likewise have we learned that [it is effectuated] with money, from His saying about a Hebrew maid-servant, "there is no money" (Exodus 21:11) - to this master, there is no money, but there is money to another master. And who is that? The father [of a bride]. But kiddushin from the Torah is nevertheless explained to be with intercourse, as is explained in [various] places in Ketubot, Kiddushin and Niddah. And the regulations of this commandment have already been completely explained in Tractate Kiddushin. But women are not obligated in this commandment. And in the explanation, they said (Kiddushin 9b), "Kiddushin with intercourse, which is from the Torah." (See Parashat Ki Tetzei; Mishneh Torah, Marriage.)

And this prohibition is practiced in every place and at all times by males and females. And one who transgresses this negative commandment is obligated to pay, as is explicit in Scripture (Exodus 21:37, 22:3). If he stole a gold coin or clothing or a donkey or a camel, he pays twice their value, and it comes out that he loses that which he sought to remove from his fellow. And payments of double are practiced for everything except for an ox and a sheep, as there are situations in which he pays four and five for them - such as if he slaughtered or sold [them], as appears clearly in Scripture. And when he pays double - or four or five for an ox and a sheep - it is specifically when witnesses testified about him, and he paid according to their [testimony] in a court. But one who admits on his own (Bava Kamma 75a) is exempted with the payment of the principal alone, as it is stated (Exodus 22:8), "the one that the powers deem guilty shall pay two" - and they, may their memory be blessed, expounded (Bava Kamma 64b), "To exclude one who deems himself guilty." And this is the law for all penalties, that one who admits [his guilt] is exempt. And I have already written above (Sefer HaChinukh 49) that we only judge cases of penalties in the Land.

That is that He commanded us to strangle those that transgress certain commandments. And that is His, may He be blessed, saying, "he shall surely be put to death" (Exodus 21:16). And behold, in the negative commandments, we shall [indicate] those which require strangulation. And the regulations of this commandment have already been explained in Tractate Sanhedrin. (See Parashat Kedoshim; Mishneh Torah, The Sanhedrin and the Penalties within their Jurisdiction 14, 15.)

That is that He commanded us that the master who acquired a Hebrew (Jewish) maidservant marry her - [he] or his son. And that is the commandment of designation [that] has precedence over the commandment of redemption, by His saying, "who designated her for himself, he must let her be redeemed" (Exodus 21:8). But you should know that the law of a Hebrew slave and a Hebrew maidservant are only practiced at the time that the Jubilee is practiced. And the regulations of this commandment have already been explained in Chapter 4 of Tractate Kiddushin.

That is that He commanded us to redeem the Hebrew maidservant. And that is His, may He be blessed, saying, "he must let her be redeemed" (Exodus 21:8). This redemption has many details and conditions and there are many regulations for it - and they have been explained in Tractate Kiddushin. And the law of the Hebrew maidservant is completely explained there. And in the Mekhilta (Mekhilta d'Rabbi Yishmael 21:11:1) they said in explanation of, "And if these three he does not do to her" (Exodus 21:11), "Designate (marry) [her] yourself, to your son, or redeem her." (See Parashat Mishpatim; Mishneh Torah, Slaves 4.)

That is that He commanded us about the law of the Canaanite (gentile) slave. And that is that we enslave him forever, and that he only [attain] freedom through [the master's destruction of his] tooth or eye - and the law is the same for other limbs that do not regenerate, as appears in the received explanation. And that is His saying, "you shall enslave them forever" (Leviticus 25:46); and it is written "When a man strikes, etc." (Exodus 21:26). And the language of the Gemara, Gittin (Gittin 38a), is, "Anyone who liberates his slave transgresses a positive commandment, as it is written, 'you shall enslave them forever.'" But it comes in the Torah that he is freed with a tooth and an eye. And the regulations of this commandment have already been completely explained in Kiddushin and Gittin. (See Parashat Behar; Mishneh Torah, Slaves 5.)

That is that He commanded us about the law of one who injures his fellow. And that is His, may He be exalted, saying, "And when men quarrel" (Exodus 21:26); and this is called, fines. And a verse already came that includes all of the laws of fines - and that is His, may He be exalted, saying, "as he has done, so shall it be done to him" (Leviticus 24:19): That [which is] taken away from him is in exchange for that which he hurt him, according to the measure of the hurt - as it appears in the tradition. And even if it was only that he embarrassed him; behold he is fined this measure of his money. And you should know that all of these laws of fines that are laws between one person and another - and likewise, when an animal damages a person or a person damages an animal - are indeed only judged and fined by a court of those who have been ordained in the Land of Israel. And the details of the law of this commandment have already been explained in Chapter 1 of Bava Kamma. (See Parashat Mishpatim; Mishneh Torah, One Who Injures a Person or Property 1.)

That is that He commanded us to administer the laws of the ox [that causes damage]. And that is His, may He be exalted, saying, "And when an ox gores" (Exodus 21:28); and "And when an ox injures" (Exodus 21:35). And this law has already been explained in the first six chapters of [Bava] Kamma. (See Parashat Mishpatim; Mishneh Torah, Damages to Property 1.)

That is that He commanded us to administer the laws of the pit [that causes damage]. And that is His, may He be blessed, saying, "And when a man opens a pit" (Exodus 21:33). And the analyses of the law of this commandment have already been explained in the third and fifth [chapters] of [Bava] Kamma. (See Parashat Mishpatim; Mishneh Torah, Damages to Property 12.)

He prohibited - to not steal (kidnap) an Israelite person. And that is His saying in the Ten Commandments, "you shall not steal" (Exodus 20:13). And the language of the Mekhilta (Mekhilta d'Rabbi Yishmael 20:13:3) is, "'You shall not steal,' is the prohibition against stealing a soul." And in the Gemara, Sanhedrin (Sanhedrin 86a) they said, "From where [do we know] the prohibition against stealing souls? Rabbi Yoshiya says, 'From, "you shall not steal."' Rabbi Yochanan says, 'From, "They shall not be sold as slaves" (Leviticus 25:42).' And they do not disagree. One enumerates the prohibition against selling, etc." As they do not execute the punishment upon him until he steals (kidnaps) and sells. But once he transgressed these two negative commandments, he is liable for strangulation - as He, may He be exalted, said, "And one who steals a soul and sells him, etc." (Exodus 21:16). And the regulations of this commandment have already been explained in [Chapter] 1 of Sanhedrin. (See Parashat Yitro; Mishneh Torah, Theft 9.)

That He prohibited us - that we not sell a Hebrew (Jewish) slave exactly in the way that the Canaanite (gentile) slaves are sold. And that is that they would stand them up in a place where they would sell slaves, proclaim them and have buyers bid for them. One may not do this under any circumstances. Rather [one should sell them] privately and in a pleasant way. And the language of the Sifra (Sifra, Behar, Section 6:1) is, "'They shall not be sold as slaves are sold' - that they not be stood up in public and sold on the auction block." And this prohibition, without a doubt, includes a prohibition for one who steals (kidnaps) a Jewish soul - that he would sell him. For he would sell him by force, as he would do with a Canaanite slave; so he would transgress His, may He be blessed, saying, "they shall not be sold as slaves are sold" (Leviticus 25:42). And this was already mentioned earlier (Sefer HaMitzvot, Negative Commandments 243); and Scripture (Exodus 21:16) already explained that he be killed. And the regulations of this commandment, along with the one before it, have already been explained in the Gemara, Kiddushin, Chapter 1. (See Parashat Behar; Mishneh Torah, Slaves 1.)

To not curse father and mother: To not curse father and mother, as it is stated (Leviticus 20:9), "Any man that curses his father and his mother, etc." And the truth is that the main warning of cursing father and mother is not from Scripture, since here it only mentions the punishment of the one that curses; and so [too,] that which is written in the Order of Mishpatim (Exodus 21:17), "And he who curses his father and his mother shall surely be killed" - there too, it only spoke about the punishment. And that is what they said in Mekhilta d'Rabbi Yishmael 21:17:3, "'And he who curses his father and his mother, etc.' - we have heard the punishment, but from where is the warning? [Hence] we learn to say (Exodus 22:27) 'Lords you shall not curse[, etc.]' If his father is a chieftain (nassi), behold he is included in 'and a chieftain in your people you shall not malign.' If he is a boor, behold he is included in 'You shall not curse the deaf.' Hence it is to be derived by a constructive paradigm (binyan av) through the three of them, etc." until, "Their common denominator is that they are 'in your people,' and you are exhorted against cursing them. Your father, too, is 'in your people,' and you are exhorted against cursing him." And so did they say in Sifra, Kedoshim, Chapter 10:7, "'And he who curses his father and his mother - we have heard the punishment, etc." exactly like the language of the Mekhilta. And since there is no specific [textual] negative commandment to this warning - but rather it is comes out from the principle [understand by an analysis] of three negative commandments - I have written it on this verse that is speaking about the punishment [for it]. And likewise, Rambam, may his memory be blessed, wrote about "he who curses his father and his mother shall surely be killed," that it is speaking about the punishment (Sefer Ha Mitzot LaRambam, Mitzvot Lo Taase 318).

He prohibited - not to curse father and mother. Indeed, the language of the Torah is clear about its punishment, when He says, "And if one curses his father or his mother, he shall surely die" (Exodus 21:17); and he is among those that are stoned. And even if he [only] cursed one of them with [God's] name after [the parent's] death, he is stoned. However the prohibition is not explicit in Scripture. For it does not say, "You shall not curse your father." But it already preceded that a prohibition came about cursing every Israelite; and that includes a father and anyone besides him. And in the Mekhilta (Mekhilta d'Rabbi Yishmael 21:17:3), they said, "'And if one curses his father or his mother, he shall surely die' - we have heard the punishment; from where [do we know] the prohibition? [Hence] we learn to say, 'You shall not curse the powers' (Exodus 22:27). If your father is a judge, behold he is included in the powers. And if he is a nassi, behold he is included in, 'and do not maledict a nassi among your people.' And if he is a boor, behold he is included in, 'You shall not curse a deaf person' (Leviticus 19:14). [If he is not a judge, not a nassi and not a deaf person,] behold, you can argue by induction (binyan av) from the three of them, according to the common element among them: That they are, 'among your people,' and you are prohibited [from] cursing them." And it is written in the Sifra (Sifra Kedoshim, Chapter 10:7), "'If any man curses his father or his mother, he shall surely die' (Leviticus 20:9) - we have heard the punishment; from where [do we know] the prohibition? [Hence] we learn to say, 'You shall not curse the powers'" - exactly like the language of the Mekhilta. And the regulations of this commandment have already been explained in the seventh [chapter] of Sanhedrin. (See Parashat Mishpatim; Mishneh Torah, Rebels 5.)

The commandment of work with a Canaanite slave forever: That we have a Canaanite slave work forever, meaning that we should never manumit him; and he should only go free for [suffering the loss of] a tooth or limb, as it appears in Scripture (Exodus 21:26-27) - or from the main limbs that are similar to them, meaning limbs that do not grow back, as the accepted traditional explanation comes about this (Kiddushin 24a) - as it is stated (Leviticus 25:46) "you shall work them forever." And they, may their memory be blessed, said (Gittin 38a), "Rav Yehudah said, 'Anyone who manumits his slave is in violation of a positive commandment, as it says, "you shall work them forever."'" And [any] one from all of the [other] nations who was acquired by a Jew as a slave is called a Canaanite slave. But all slaves are attached with the name, Canaan, because Canaan was cursed to be a slave - he and his progeny - forever. And even though this section in which we were commanded to subjugate them is speaking about Canaanites - as it is written (Leviticus 25:44), "from the peoples that surround you may you purchase a slave or maid-servant," and it is written earlier (Leviticus 25:38), "to give to you the Land of Canaan" - it was known to the Sages, may their memory be blessed, that it was not only Canaan and those in their land that were called Canaanite slaves. As the law is the same for all the rest of the nations - that they have the status of a Canaanite slave in every matter.

To marry a woman with a marriage contract and betrothal: That we were commanded to acquire a woman in one of three ways before the marriage. And the sages elucidated these ways (Kiddushin 2a) - that they are money (monetary value), a contract and sexual relations with her. And about this is it stated (Deuteronomy 22:13), "If a man takes a woman and has sexual relations with her," which is to say [that] if a man wants to take (marry) a woman for himself, he should acquire her first with sexual relations. And about that which the verse stated (Deuteronomy 24:2), "And she shall go out [...] and she shall be," the traditional understanding came [to explain] that [just] like the departure (divorce) of a woman is with a contract - as we will write in this Order (Sefer HaChinukh 579), with the help of God - so too is [her] being with him; meaning to say, the acquisition of a woman is with a contract. And they, may their memory be blessed, also learned (Kiddushin 4b) that she is acquired with monetary value, since it is written about an Israelite maidservant (Exodus 21:11), "and she shall go out, there is no silver (monetary value)" - and the understanding about it came [to explain] (Kiddushin 3b), "'There is no monetary value' for this master, but there is monetary value (when she goes) from another master. And who is he? Her father."

“The custom of “kapprot¹⁸Kapparot, כפרות, which is plural for Kapparah, meaning expiation. This is a custom where the sins of a person are symbolically transferred to a fowl. This practice is mostly done on the day before Yom Kippur and in some congregations it is also performed on the day before Rosh HaShanah or on Hoshana Rabba. During the ceremony Psalms 107;10,14,17-21 and Job 33:23-24 are recited. Following this a cock is taken for a male and a hen for a female, the fowl is swung around one’s head three times while the person says: “This is my substitute, my vicarious offering, my atonement; this cock (or hen) shall meet death, but I shall find a long and pleasent life of peace”. It is thought by some (erroneously) that the fowl assumes the punishment for sins that the person would normally receive. Often the fowl is donated to the poor minus the intestines which are given to the birds. Some people substitute the monetary value of the fowl and donate that to the poor.
The custom is not a talmudic one. It first appears in the writings of the geonim (see footnote 19) in the ninth century. The connection between a man and a cock is that both can be referred to as a gever, so a gever (man) can transfer his sins on to another gever (cock). Another reason for the use of a cock or a hen was due to the fact that after the destruction of the Temple, no animal used in the sacrificial rite could be used for a similar purpose outside the Temple. The cock and the hen had no Temple cultic connection. Caro, along with R. Solomon b. Abraham Adret and Naḥmanides opposed this custom but Isserles included it because of its practice in the Ashkenazi community where it had taken on mystic interpretations from the Kabbalists.
Editorial Staff, E. J., v. 10, pp. 756-57.
The basic Hebrew sources and comments on Kapparot are the following:
Tur, טור, (see footnote 23) 605 - There are places where it is customary to slaughter a rooster as atonement (for Kapparah). And thus it is (related) in geonic (see footnote 19) responsa: “You asked; we customarily slaughter a rooster on the Eve of Yom Kippur, and we do not know the reason for this custom. If it is an “exchange” (substitute) for a sacrifice (if it symbolizes a sacrifice), then what is the difference between a rooster and cattle or a beast, but certainly there is a problem. However, there are two reasons: (1) a rooster is found more commonly in a household than any cattle, beast, or fowl; (2) There are places of wealthy people who substitute rams; and the main horned animal (for the Yom Kippur ceremony) is analogous to the ram of our father Isaac (which was substituted for him (Isaac) as a sacrifice), therefore the matter (of using a rooster) is not established (determined).”
In addition we have heard from the early scholars that even though the price of a cattle is higher than that of a rooster, nevertheless a rooster is chosen because its designation is gever (man, rooster) as is said in (Yoma 20a): What is the meaning of Kara Gavra, R. Sila says the meaning is that the rooster crows and since its designation is gever and the exchange is of one gever (rooster) for another gever (man), therefore it (using a rooster) is effective and superior (to any other animal). And this is the custom here, the congregational reader holds the rooster and lays his hand on its head (in the manner in which a sacrifice was performed in the Temple) and then he takes it (the rooster) and lays it upon the head of the one seeking atonement and says (the verses in the Prayer Book used in this service (Oẓar ha-Tefillot, volume 2, pp. 1090-91)). “This (gever, rooster) for this (gever, man), this substitutes this, this is in exchange for this,” and he (the reader) returns it upon him once (swings it around his (the one seeking atonement’s) head one time) and says (psalms 107:10,14,17,19-21) “Such as sit in darkness and in the shadow of death, being bound in affliction and iron…He brought them out of darkness and and the shadow of death, and brake their bands in sunder…Fools because of their transgression, and because of their iniquities are afflicted… Then they cry unto the Lord in their trouble and He saves them out of their distress. He sent his word, and healed them, and delivered them from their destructions. Oh, that men would praise the Lord for His goodness, and for His wonderful works to the children of men.” “Thou shalt give life for life”, (Exodus 21:23). And he (the reader) does this according to this order three times, and after this he lays his hand on the head of the rooster in the way of the Semikhah, putting the hands on it (the animal’s head before slaughtering) and slaughter it immediately after the Semikhah, and they customarily give it (the slaughtered rooster) to the poor so there would be atonement for his own soul (for the one who gives it).
That it was customary to throw the insides of it (the rooster) on the roof in order to give them to the birds, there is some proof (indication, justification) for this from the Talmud tractate Ḥulin (95a) 110a: “Rami b. Tamri… once happened to be in Sura on the Eve of Yom Kippur. When the townspeople took all the udders (Tur: Liver and Kidneys) (of the animals) and threw them away, he immediately went and collected them and ate them”.
In the Prayer Book Oẓar ha-Tefillot, אוצר התפילות Published by Sefer, New York, 1946, page 1089, there is an extensive, detailed note with Rashi’s (description of) the custom of the Kapparot ceremony on the Eve of Yom Kippur. Rashi already described this custom meaning it was a common practice during his time.
The Kapparot ceremony is not mentioned in the Talmud, only in Rashi. It is mentioned in Maḥzor Vitry by R. Shimḥa bar Samuel, a disciple of Rashi who quotes the ceremony from the Pesikta, פסקתא, but our text of the Pesikta does not have it. The first mention of the Kapparot ceremony is by the geonic Sheshna in Sha’are Teshuvot, Responsum 299, and by Natronai Gaon in Bet Nekhot ha-Halakhot 50a. paragraphs 15 and 16.” (atonement ceremony) on the Eve of Yom Kippur” - Containing one paragraph.
The custom regarding the “kapparah” (atonement ceremony) on the Eve of Yom Kippur by slaughtering a rooster for each male and to say biblical verses over it should be stopped.
Hagah: There are some geonim¹⁹Geonim, (singular gaon) is the formal title for the heads of the academies in Sura and Pumbedita in Babylonia from around the end of the sixth century until the middle of the eleventh century. The geonim were the highest Jewish authorities. In the tenth and eleventh centuries heads of academies in Ereẓ Israel were also called geonim. The geonic period proper ended in 1040. The heads of the academies in Baghdad, Damascus, and Egypt were also called geonim and later it became a term applied as an honor to any rabbi who had great toraitic knowledge.
It cannot exactly be determined when the term gaon came into use. Prior to its use generally the term rosh yeshivah shel golah, the head of the academy of the Diaspora, was used. The heads of these academies were appointed by the exilarchs, the political leaders of the Jewish people in exile. People rose to the office of gaon often through an hierarchy of offices, thus not always did the most learned reach the position. Often the office was used for political purposes by the exilarch. An assistant to the gaon was referred to as the av bet din. The position of gaon usually fell upon an elderly man who could only serve for a rather short period of time, and therefore did not always make a great impression.
Babylonia was the center of world Jewry and the Jews looked to the geonim as a source of instruction for Jews and also as the deciders of Jewish law. The geonim formed many new halakhic decisions which evolved in the Diaspora. They formulated takkanot or ordinances which altered Jewish law according to the new situations. The geonim and their academies were supported by taxes levied against the people for this purpose.
The halakhic decision of a gaon generally had the effect of law and it was binding. Due to the new situation which the Diaspora provided many halakhic decisions of the geonim were based on minhagim, or customs, that took on the force of a law (the principle under which Isserles operated). Their responsa to halakhic questions were followed as law. The goal of the gaon in the Diaspora was mainly to interpret the Babylonian Talmud for the Babylonian Jews and to lessen their emotional attachment to Ereẓ Israel. This created much political animosity between the Jews of Babylonia and those left in Ereẓ Israel. Since the major scholars of the time where exiled to Babylonia, the center of Jewish leadership was in the hands of the gaon for a long period of time, more than four centuries.
The goanate, though, did lose its power even though some of the greatest geonim were among the later ones. From the late ninth century onward, most of the geonim did not live in the cities of the academies, Sura and Pumbedita, they lived in Baghdad along with the exilarch. Competition between the two academies and political disagreements over the appointment of geonim lessened their effectiveness as did the rise of new academies and their leaders. Scholars stopped sending them halakhic questions preferring their own ability to arrive at a decision. Jewish communities outside of Babylonia began taking on independence from the original center of the Diaspora. As the caliphate in Baghdad weakened, financial support from other Jewish communities ceased for the Babylonian academies. The gaonate ended as an institution around 1040.
The religious leaders of Baghdad and later Ereẓ Israel took on the title of gaon after the fall of the gaonate in Babylonia. The position of the gaon in Ereẓ Israel was one passed on by heredity. The geonim in Ereẓ Israel had to manage all Jewish affairs in addition to heading the academy. They ordained rabbis, appointed judges, and managed the economic affairs of the Jews. The title of gaon finally spread to Damascus and Egypt where it eventually died out in the twelfth and thirteenth centuries.
Simha Assaf and Editorial Staff, E. J., v. 7, pp. 315-24. who listed this custom (as a proper custom) and likewise many of the aḥronim listed it thusly. And likewise it is the custom in all these lands,^19aThe following is a comment to the Shulḥan Arukh, Oraḥ Ḥayyim, found in the Turei Zahav Magen David, or for short the Taz by David ben Samuel ha-Levi who lived from 1586 until 1667. David ben Samuel was born in the Ukraine. He married the daughter of Joel Sirkes, the author of Bayit Ḥadash (see footnote 20b.) in whose yeshivah he studied. The commentary Turei Zahav is found to all four parts of the Shulḥan Arukh. It is not a running commentary, but includes discussions of various points found in the Tur of Jacob Asher (see footnote 23) and in the Talmud and its commentators. The Turei Zahav is found in the inside margin of the Oraḥ Ḥayyim section of the Shulḥan Arukh opposite the commentary of Abraham Abel Gumbiner called Magen Avraham (see footnote 33), which is a running commentary but which has a closer relationship to the material found in the Tur than it does to the Shulḥan Arukh;
Shmuel Ashkenazi, E. J., v. 5, pp. 1354-55.
605:1 - “And so is the custom in all these lands”: In the Tur, טור, (see footnote 23 and the translation to this section of the Tur found in footnote 18) are written the verses that are recited and the following verse is mentioned there (in addition to the verses found in Psalms 107:10,14,17,-21), “Thou shalt give life for life” (Exodus 21:23).. and it is not to be changed because it is a custom of the pious. It is customary to take a rooster for each male, and for each female (to) take a hen, (בית יוסף בשם תשב״ץ).²⁰Beit Yosef, in the name of Tashbaẓ, בית יוסף בשם תשב״ץ.
The Beit Yosef, בית יוסף, the companion work written by Joseph Caro (1488-1575) to the Shulḥan Arukh. Caro began writing the Beit Yosef in 1522 and completed it in 1542 in Safed. It was first published in 1555. The Beit Yosef followed the format of the four Turim established by Jacob b. Asher in his book by that title. Caro included in the Beit Yosef all the halakhic material in use during his time which included the talmudic sources and also the post-talmudic scholars which he used to reach an halakhic decision. Caro linked himself to the Turim and did not repeat halakhic material already cited in the Turim. Caro employed the method of determining halakhah by following the majority decision of his “three pillars of halakhic decisions”, Alfasi, Maimonides, and Asher b. Jehiel. If there was no majority decision by these three he consulted and decided according to the majority of another five scholars, Naḥmanides, Solomon b. Abraham Adret, Nissim Gerondi, Mordecai b. Hillel, and Moses b. Jacob of Coucy. If none of these men dealt with a particular law he decided according to the opinions of the majority of “famous” scholars. Caro consulted thirty-two works in his research. In this extensive work Caro created a book of Jewish law. He wanted to create then a companion book that would truly be a code. Therefore he wrote the Shulḥan Arukh which basically listed only the decisions that Caro reached in the Beit Yosef and not all the arguments and sources. The Shulḥan Arukh merely stated what the halakhah was and how it was practiced. (For a more extensive explanation of the Beit Yosef and how it fits into the broad scope of code literature, see the introduction to this work.)
Tashbaẓ, תשב״ץ, is an abbreviation for Teshuvot Shimon ben Ẓemaḥ, which is a collection of responsa in three parts by Simeon ben Ẓemaḥ Duran who was also known as the “Rashbaẓ”, an acronym for Rabbi Shimon ben Ẓemaḥ, who lived from 1361 until 1444. The Rashbaẓ was born in Spain and later moved to North Africa and settled in Algiers where he became a dayyan, a rabbinic judge and the Chief Rabbi of Algiers in 1408. The Rashbaẓ was against formulating strict decisions, ḥumrot, which did not have talmudical basis. He argued that one could be stringent with oneself but had to be lenient with others.
In his decisions he would exhaust all existing sources and discuss all opinions. His decisions became the authoritative laws of North African Jewry. His takkanot, his changes in the law, were followed for many centuries. He was often quoted by later halakhic scholars and was well respected. His writings were extensive and they included philosophical and liturgical works as well as halakhic literature.
Hirsch Jacob Zimmels, E. J., v. 6, pp. 302-06. For a pregnant woman to take two roosters^20aThe following is a comment found in the commentary to the Shulḥan Arukh, Oraḥ Ḥayyim Magen Avraham by Abraham Abele Gumbiner (see footnote 33): 605:2 - “Two roosters”: That is to say a rooster and a hen. Even if the embryo is female, one hen is enough for a mother and for her daughter, because two persons (of the same sex) are allowed to take one Kapparah (see footnote 18), (Levush, לבוש; which is a code whose entire name is Levush Malkhut, The work presents the laws found in the Beit Yosef of Joseph Caro (see footnote 20) in an abbreviated form. The Shulḥan Arukh appeared which was basically a digest of the larger Beit Yosef, but the Levush was completed so as to include the laws observed by the Ashkenazi Jews of Behemia. Mordecai ben Abraham Jaffe (1535-1612) wrote the Levush. He was born in Prague and studied under Solomon Luria and Moses Isserles. While he was writing the Levush he learned that Isserles was attempting the same goal he was to include the Ashkenazi laws in the Shulḥan Arukh so he put aside his work. When Jaffe received the glosses of his teacher Isserles he thought it was too brief and therefore he set about completing his Levush. There are ten levushim in all, five are devoted to the Beit Yosef and the other five to other works; Ephraim Kupfer, E. J., v. 9, pp. 1263-64). And this is the custom even with two persons, and this is the implied meaning at the end of chapter 12 in (the Talmud Tractate) Menaḥot. And Ashkenazi R. Isaac (who was called Adoneinu R. Yitzḥak by the Ḥasidim, referring to Isaac Luria the Kabbalist) prescribed that she take three (chickens), (Shenei Luḥot ha-Berit, של״ה, “Two Tablets of the Covenant”; which is an extensive halakhic work including homily and Kabbalah giving directions as to how to live an ethical life. The vast work contains two parts, the Derekh Ḥayyim contains laws according to the order of the festivals in the calendar, and the Luḥot ha-Berit summarizes the 613 commandments in the order in which they appear in the Bible. The work was written by Isaiah ben Abraham ha-Levi Horowitz who lived from around 1565 until 1630. He was born in Prague but lived and studied mostly in Poland. He later moved to Ereẓ Israel and lead the Ashkenazi community in Jerusalem. He was greatly influenced by Kabbalistic works and philosophy which is evident in his writings; Haim Hillel Ben-Sasson E. J., v. 8, 990-994). for the possibility she might give birth to a male (infant). The (custom is to) chose white roosters^20bA commentary by Magen Avraham (see footnote 33): 605:3 - “White roosters”: Anyhow, one should not try to get only white (chickens), which is similar to the practice of the Amorites (meaning, idol worshippers). If there happens to be a white one available he should buy it, (Bayit Hadash, בית חדש; which is a critical and comprehensive commentary on the Arba’ah Turim of Jacob b. Asher (see footnote 23), where each law is traced to its talmudic source, and the development of the law through successive generations of interpretation is followed. The work was prompted by the over-reliance on codes, especially the Shulḥan Arukh for halakhic decisions, without using the basic sources. The work was written by Joel Sirkes who lived from 1561 until 1640. He was born in Lublin but came to be the head of the bet din, the rabbinical court, in Cracow where he also headed a yeshivah in 1619. He was an adherent of Kabbalah but he rejected kabbalistic practices when they were contrary to the halakhah; Max Jonah Routtenberg, E. J., v. 14, pp. 1619-20.). And if there is no chicken, he should buy another kind of animal, and there are those who say even fish (can be used), (Levush, לבוש, see footnote 20a.). It seems to me that one should not take a thing (an animal that was used) for the sacrificial cult like doves so that it should not appear that one sacrifices holy animals outside the Temple, see in the Tur, טור, (see footnote 23), and we find it in Shabbat 81b, in the Rashi, that it was a custom to take a pot with seeds and to swing it around one’s head on the Eve of Yom Kippur, and one says the words: “This is the exchange for me, the substitute for me, the atonement for me”, which is an abbreviation meaning, חת״ך, which is the name of an angel, (Darkei Moshe, ד״מ, see footnote 6, and Hagahot Minhagim, הגמ״נ, which are commentary notes on the Minhagim, see footnote 13).
The following is a comment found in the Turei Zahav, (see footnote 19a.): 605:2 - “And the (custom is to) chose white ones”; My father-in-law (meaning the Bayit Ḥadash, Joel Sirkes, see above), may his memory be blessed, wrote that this is a bit like the way of the Amorites (idol worshippers), even though this is (found in) the Maharil, מהרי״ל, (see footnote 8), it is possible that one should not ask for it intentionally, rather if (the white chicken) just happens to him thus (if he can buy a white one) he choses it, but to ask for a white chicken and to pay a higher price, this is the way of the Amerites (idol worshippers), and this (tradition) I received from my father (Samuel ha-Levi), may his memory be blessed.
I found written that one should say, “This is your exchange, your substitution, and your atonement” which is an abbreviation for חת״ך, which means God will cut (חתך) (or determine) life for every living thing. (Notice the difference between this comment and the one translated above by Magen Avraham on the same subject.)
The following is a comment by the Wilna Gaon, which supplies the sources for references made in the Shulḥan Arukh. It is found under the text of the Shulḥan Arukh under the title Beure ha-Gra, ביארי הגר״א: 605:1 - “That which they customarily do…”: Because of the way of the Amorites (idol worshippers); see in the Rashba, רשב״א, (Solomon ben Abraham Adret, see footnote 90), chapter 395. since it says “though your sins be as scarlet they shall be as white as snow,” (Isaiah 1:18). It was customary to give the atonement chickens to the poor or to redeem them^20cThe following is a comment by Magen Avraham, (see footnote 33): 605:4 - “Or to redeem (replace) them (the chickens) (with charity money…”: This is better so as not to embarrass the poor (Shenai Luḥot ha-Berit, של״ה, see footnote 20a., and Maharil, מהרי״ל, see footnote 8), (with the money they can buy their own food which is less embarrassing than accepting a chicken). (replace them) with charity money which is given to the poor (for sustenance), (מהרי״ל).²¹Maharil, מהרי״ל, Jacob ben Moses Moellin; see footnote 8. There are places where it is customary to visit the graves and to increase (the giving of) charity which is all a beautiful custom. It is necessary to slaughter the atonement chickens immediately after completing the ceremony and laying one’s hands^21aThe following is a comment by Turei Zahav, (see footnote 19a.): 605:3 - “And one lays his hands (on it, the chicken)…”: Even though this thing (this practice) appears in the Tur, טור, (see the translation of this section in footnote 18 and see footnote 23) in the name of the geonim (see footnote 19), it is very perplexing in my eyes since this appears as sacrificing animals and slaughtering them outside of the Temple. And even though the rooster is not proper as a sacrifice, since we found that it is a forbidden practice in chapter 469 (of the Shulḥan Arukh, Oraḥ Ḥayyim) concerning the matter of such meat for the Passover for which the Maharil, מהרי״ל, (see footnote 8) forbid even a rooster, and how much the more so here, where one does it explicitly as a sacrificial matter, that this fear is present (this consideration that it might be prohibited is present). This being so it is better to prevent this matter, (following the dictum to sit and not do it is better. (This expression, ושב ואל תעשה, is found in Erubim 100a: if by performing a mitzvah you might transgress a law, you should not do it. In a case of doubt do not do such a thing.) And so it seems to me in my humble opinion. on it like (it was done with) the Sacrifice²²The “laying of the hands” of the priest onto the animal that was sacrificed was part of the rite which transformed the animal from a mere profane animal into a holy sacrifice to God. Sacrifice from the biblical through the temple Period in Jerusalem was the way in which man communicated with God. Extensive rituals and practices developed around the sacrifice which was performed by the special priestly class, the cohanim. The main thrust behind a sacrifice was the fact that man was surrendering to God a living thing of some value to man. This brought out vividly the fact that all things man has on earth are given by God and ultimately God has complete control over man and all He has given to man. Special concern was placed on the blood of an animal sacrifice for dam, דם, blood, was the symbol of life. “For the life of the flesh is in the blood; and I have given it for your souls; for it is the blood that makes atonement, by reason of the life (that is in it)”, (Leviticus 17:11). The people were therefore forbidden to eat the blood of an animal since it belonged to God. The offering to God of a sacrifice had to be an animal which was owned by the person offering it and the animal had to be domesticated and proper for food. In other words, it had to have some worth. Work animals were excluded from this. An animal had to be at least eight days old and totally without blemishes, (Leviticus 22:17-25).
A very large portion of the Bible, especially the Pentateuch, is concerned with the extensive ritual, ceremony, and material that went into a sacrifice. Also different types of sacrifices were outlined for different purposes. The following are separate types of sacrifices present in the Bible: Propitiatory, both Sin and Guilt Offerings, Dedicatory, Burnt, Meal, Libation, Fellowship, Peace and Thanksgiving, Wave, Votive, Freewill, and Ordination Offerings.
During the period of the First and Second Temple, elaborate sacrificial services took place twice daily, Shaḥrit, Morning and Minḥah, Afternoon, along with special sacrifices for Sabbaths, festivals, and special circumstances.
Yom Kippur, being the holiest day of the year had associated with it a special and unique sacrificial atonement ritual. The Avodah, עבודה, which means literally “service” was the name applied to the ritual, during the Temple period, which was the central part of the Musaf, מוסף, additional, sacrifice on the Day of Atonement. With the Avodah, which is a poetical recounting of the Temple ritual, became the central part of the Musaf liturgy (see footnote 166) for the Day of Atonement. The ritual itself was based on the sixteenth chapter of Leviticus where the special sacrifical ritual for atonement is described. After the detailing of the ritual is completed, the Bible established that the tenth day of the seventh month (the tenth of Tishrei which today is considered the first month) would be set aside as a special Sabbath for the purpose of atonement, (Leviticus 16:29-31). The extensive details associated with the sacrifice on the Day of Atonement are described in the Talmud in tractate Yoma.
It was on Yom Kippur, and only on Yom Kippur, that the high priest would enter the very center of the Temple, the Holy of Holies. He had to make special preparations for this ritual. One week prior to the Day of Atonement, the high priest would begin living in a special apartment in the Temple court where he studied with the scholarly elders all the special laws of Yom Kippur. Another priest would also stand-by and study in case something happened to the high priest. The day prior to Yom Kippur the high priest would enter the Temple and perform all the minute details involved in a sacrifice along with the other priests who were used to sacrificing. The high priest rarely performed the regular daily sacrifices, he only functioned on special occasions. On the Day of Atonement, the high priest himself would perform all the sacred and sacrificial duties.
After proper cleansing for the Musaf, or Avodah Service the high priest would first sacrifice a bull as his own personal sin offering after which he would confess and purify the sins of his own family, those of the priests (the tribe of Aaron), and finally those of the whole congregation of Israel, (Leviticus 16:6). The high priest, in the Holy of Holies, would carefully sprinkle and dispose of the animal’s blood as was prescribed. It was at this time, and only at this time, that he would utter the holy name of God, the Tetragrammaton, יהוה, and when he uttered this the people outside would prostrate themselves and respond, “Blessed be His Name whose glorious kingdom is forever ever and ever.” This was repeated ten times according to the Babylonian Talmud, (Yoma 2:2) and thirteen times according to the Jerusalem Talmud (Yoma 3:7).
The high priest then drew lots, one marked for “Azazel” and the other marked as a “sin offering for the Lord”. Depending upon the drawing of the lots, two he-goats had different parts to play in the remaining ritual. The goat marked “for Azazel” would be lead out of the Temple into the wilderness called Azazel. This he-goat symbolically carried the sins of Israel away and was lost over a cliff in the wilderness along with Israel’s sins. A red ribbon which had been tied to the goat was brought back to the people to display to them that the goat had been lost in Azazel. The he-goat marked as a “sin offering for the Lord” was offered as such. This was followed by a special incense-offering and a prayer for good weather, prosperity, and the sovereignty of Judah, whereupon the high priest would come out from the Holy of Holies marking the end to the Avodah ritual.
The Avodah liturgy expanded in its development from simply a description of the Temple service and the reading of Mishna Yoma, chapters 1-7 to an elaborate service rich with special liturgical poems, piyyutim (see footnote 149), most of them acrostics, their beginning word following the alphabet. Different Jewish communities developed separate rites. Most rites contain a brief synopsis of the history of Israel and the purity of its early generations culminating in a description of the Temple ritual on the Day of Atonement and the Holy of Holies. Some communities and rites even still call for a prostration on the floor of the synagogue during the Avodah Service as was done at the Temple upon the prononciation of the Tetragrammaton.
Piyyutim also close the Avodah Service expressing the misfortune of Israel who, because of her sins, is deprived of the Temple and its sacrificial cult and must suffer persecution and exile. The piyyutim call for the reestablishment of the Temple, which is followed by the seliḥot (see footnote 14) prayers (penitential prayers of forgiveness) of the Musaf Service.
Anson Rainey, E. J., v. 14, pp. 599-602; Hanoch Avenary, E. J., v. 3, pp. 976-80.; and they (it is customary) throw their intestines on the roofs or in a courtyard, a place from where fowls are able to take (the intestines of the slaughtered chickens), (טור).²³Tur, טור, is the singular for the word Turim or the Arba’ah Turim, the four columns, the major halakhic work of Jacob ben Asher who lived from around 1270 until 1340. He was the son of a famous halakhic authority, Asher b. Jehiel, known as the “Rosh”. Jacob ben Asher studied under his father and moved with him from Germany to Toledo in 1303. His work on the Turim was the result of the fact that in his time there was no one halakhic work free from controversy. Different opinions were present and there were no clear and authoritative halakhic decisions. Jacob ben Asher wanted to compose a work which would include all the laws and customs which applied in his day. He divided his work into four sections or turim, “rows”. Part one was called Oraḥ Ḥayyim. It contains 697 chapters on the laws of blessings, prayers, Sabbaths, festivals, and fasts. The second part was called Yoreh De’ah. It contains 403 chapters on the laws of ritual, Issur ve-Hetter (that which was forbidden and that which was permitted), and laws of mourning, idolatry, and usury. Part three, Even ha-Ezer, has 178 chapters on the laws affecting women; marriage, divorce, wedding contracts (Ketubbah), and childless widowhood (ḥaliẓah). The fourth part, Ḥoshen Mishpat, contains 427 chapters on civil law and personal relations.
Jacob ben Asher used the Talmud and its commentaries as well as the opinions of other authorities before him. He usually decided according to the opinion of Maimonides and his father, Asher b. Jehiel. He did though differ with Maimonides on questions of faith and belief.
The Turim was first published in 1475 and it became a widely accepted halakhic code. Joseph Caro used it and its organization as the basis for the Beit Yosef and the Shulḥan Arukh. (For a treatment of the Arba’ah Turim in relation to other code literature, see the introduction to this thesis.)
Ephraim Kupfer, E. J., v. 9, pp. 1214-16.