Monday, January 19, 2009

milah -- is the mitzvah the act of cutting or the effect of being nimol?

The gemara (Avodah Zara 27) asks according to the opinion that women are excluded from the mitzvah of milah how is it that Tziporah performed a milah on her child en route back to Egypt? The gemara offers two answers: 1) she appointed a shliach to do the milah but did not do it herself; 2) she merely started the milah but Moshe finished it.

Anonymous in a comment elsewhere contrasts milah with shechita. Why is it that if a non-Jew begins the shechita process, even if a Jew finishes, the shechita is invalid (assuming yeshna l'shechita m'techila v'ad sof), but with respect to milah if a woman begins the process of milah it does not invalidate the mitzvah so long as finished properly by a man?

The Kli Chemdah (Shmos 2) raises this same question and answers with a pilpul based on the Rambam's view that all descendants of Keturah, Avraham's wife, are obligated in the mitzvah of milah as non-Jews. Tziporah was one of these descendents and therefore she was obligated to see that milah was done on her son -- the exclusion of women applies only to the obligation of milah that is incumbent upon the Jewish people. However, the Jewish people were given an added obligation of periya in addition to milah. This Tziporah could not fulfill and the job had to be completed by Moshe (this is a very rough summary of a complex series of l'shitasam arguments).

A more lomdish answer is that one can distinguish between the mitzvah of milah and the mitzvah of shechita. The mitzvah of shechita is defined by the act and process of cutting the animal's neck in a certain way, and therefore every step of that process must be done by someone who is obligated in the mitzvah. The mitzvah of milah, however, is not defined by the act of cutting of the orlah but rather is defined by the effect produced, the state of being nimol. So long as the completion of that effect involves someone obligated in the mitzvah there is no problem of other people taking part in the process along the way.

My son pointed out that one of his favorite achronim, R' Yosef Engel (in Shu"t Ben Poras Yosef), debates whether this point regarding milah is correct and suggests that it hinges on a dispute between the Rambam and Ra'avad. The Rambam (Hil Milah 1:2) writes that someone who has no milah is not obligated in the punishment of kareis until the moment of death when it is no longer possible to perform the mitzvah. The Ra'avad disagrees and says that every single moment the milah is delayed results in another chiyuv kareis. R' Yosef Engel suggests that the Ra'avad viewed the mitzvah of milah as being nimol, the effect of not having an orlah. Every moment that the person remains with an orlah is a violation of being in a state of not being nimol. The Rambam, however, viewed the mitzvah of milah as the process and act of cutting. Until the moment of death when that task can no longer be accomplished there is still the opportunity to avoid the penalty of kareis.

6 comments:

  1. Another way of explaining the machlokes is in terms of when the issur kareis kicks in. Rambam assumes that the violation of Kareis comes from being m'vatel the mitzvah whereas Ra'avad says that it comes from ignoring an opportunity to fulfill the mitzvah.

    This would be the more lomdushly-responsible way of explaining b/c it doesn't affect many other areas of milah as R' Engel's chakira does.

    For instance, according to R' Engel, Ra'avad should never have a problem with a shliach for milah b/c as long as you make sure the effect takes place, you are m'kayeim the mitzvah. (There would be no such thing as shlichus by milah.)

    ReplyDelete
  2. >>>whereas Ra'avad says that it comes from ignoring an opportunity to fulfill the mitzvah.

    R' Yosef Engel addresses this point and explains that ignoring an opportunity to do a ma'aseh is a chisaron in zerizus but is not not called being mevateil a chiyuv.

    While on the topic of shlichus, let me ask you this question (thinking of doing a post on it): the gemara solves the problem of Tziporah, a woman, doing milah, by saying that she appointed a shliach. One of the rules of shlichus is that you can't appoint a shliach to do something that you yourself are pasul to accomplish. If Tziporah was pasula for milah, shouldn't her minuy shlichus to do the same be invalid?

    ReplyDelete
  3. >>> ignoring an opportunity to do a ma'aseh is a chisaron in zerizus but is not not called being mevateil a chiyuv.

    I have no problem saying that as a klal, but maybe by milah the din is different.

    >>> If Tziporah was pasula for milah, shouldn't her minuy shlichus to do the same be invalid?

    Based on the lashon of the Gemara, it doesn't seem that it was done b'toras shlichus.

    ReplyDelete
  4. >>>Based on the lashon of the Gemara, it doesn't seem that it was done b'toras shlichus.

    That's how Rashi learns the sugya, no?

    >>>I have no problem saying that as a klal, but maybe by milah the din is different.

    Once you accept as a general rule that delay is not equal to bitul, why is milah different? I think you are better off in sevara by arguing that an intentional delay is bitul, despite R"Y Engel's protestations to the contrary.

    I should be fair and say that it sounds like the Chazon Ish learns the machlokes the way you do and not like the way I presented it(C.I. Even haEzer in the chiddushim on Kiddushin 29).

    ReplyDelete
  5. avakesh.com2:02 PM

    The Rogatchover is brought in R. Zevin's ishim vshittos as saying that there are three compnents in milah: Being nimol, not being an arel and the act of milah itself.

    ReplyDelete
  6. Saw that in the Mefa'aneyach Tzefunos as well - what do you want to do with that sevara?

    ReplyDelete