The Communal Mitzva of Mila

  • Rav Moshe Taragin

The gemara in Kiddushin (30a) delineates the various levels of the obligation of brit mila. The primary obligation devolves upon the father. If he fails to execute the mila, Beit Din must attend to the mila. The gemara derives this from a pasuk in Lekh Lekha, which commands, “Himol LAKHEM kol zakhar,” assigning public responsibility to attend to uncircumcised males.

 

When the Rambam describes the mitzva in Hilkhot Mila perek I, he assigns the “backup mitzva” to BEIT DIN, just as the gemara does. However, in his commentary to the mishna (Shabbat 19:6), the Rambam writes that if a father neglects to perform mila upon his son, “WHOEVER sees the boy and does not perform mila has violated the mitzva asei.” Apparently, the secondary mitzva does not apply to Beit Din as a socio-judicial body, but rather obligates EVERY INDIVIDUAL Jew. Logistically, Beit Din may MANAGE the mitzva and decide WHO executes the mila; in addition to their function in maintaining order, Beit Din also supervises and authorizes mila and in this way provides “quality control.” However, the mitzva applies to INDIVIDUALS, and not to Beit Din as a distinct social entity.

 

Interestingly, in the third perek of Hilkhot Mila, in describing the allocation of berakhot, the Rambam claims (in passing) that the father possesses a unique commandment, BEYOND THE RESPONSIBILITY OF EVERY JEW to circumcise any arel. This language seems more consistent with the definition emerging from the aforementioned commentary to the Mishna.  Additionally, the Rambam claims that those who possess the opportunity to perform mila upon an uncircumcised male and neglect to, have violated the mitzvat asei (as derived from the pasuk of "Himol lakhem kol zakhar"). If the MITZVA applied to Beit Din as a public body, it would be difficult to envision the violation of a mitzva if mila is not performed. An issur obtains to individuals, not to public entities. This re-enforces the position that the Rambam defined the mitzva as pertaining each individual Jew and not Beit Din per-se.

 

To summarize, two very different models emerge from the respective comments of the Rambam. His comments in the Mishna Torah indicate an obligation for Beit Din, while his comments to the Mishna indicate an obligation upon each individual, perhaps managed by Beit Din. The simple reading of the pasuk DOES suggest an obligation upon individuals, since the mitzva is derived from the term “himol lakhem” effectively asserting that YOU (in plural) should circumcise all males.

 

This question may impact several details surrounding the performance of this type of mila. For example, is there a hierarchy of WHO performs the mila? If the mitzva applies to every Jew, no hierarchy should exist. Indeed, when he formulates the “public” mitzva, the Rambam writes that WHOEVER “sees” the child must perform mila. However, if the mitzva is imposed upon Beit Din, it should be performed specifically by someone acting as their agent.

 

A related issue emerges as well – who should recite the berakha of "Le-hakhniso bi-vrito shel Avraham Avinu," the second berakha of mila, which is typically recited by the father? If the “public” performs the mila, who should recite the berakha? The Ra’avya (Shabbat 279) claims that the city leader or shaliach of Beit Din should recite the berakha. Presumably, he viewed the mitzva as that of the Beit Din. Technically, ANYONE can perform the actual mila, since the action will be viewed as being performed in the agency of Beit Din, but the berakha must be recited by a formal member or representative of Beit Din. (The Ra’avad, in his comments to the Rambam in Hilkhot Mila perek 3, insinuates this as well.) The Rambam cites a position (which he does not appear to accept) that ANYONE may recite the berakha, perhaps confirming that he views the mitzva as applicable to ANYONE and merely managed by Beit Din.

 

This analysis is partially dependent upon the nature of this berakha. If it conforms to the patterns of a birkhat ha-mitzva, the manner in which the berakha is designated is significant. Presumably, the one reciting the berakha should be the ADDRESS of the mitzva. If, however, the berakha is a birkhat ha-shevach, the manner in which the berakha is recited in the absence of the father is less indicative of the status of the one reciting it.

 

Perhaps the nature of who is obligated affects the actual structure of the mitzva. The Rambam (Hilkhot Mila, both in perek 1 and perek 3) articulates the mitzva as follows: "Beit Din is obligated to disallow areilim (uncircumcised people) among our nation." It seems that the Rambam is describing a distinct mitzva, one that is not identical to the standard mitzva of mila that a father is commanded. Typically, mitzvot involve ACTS, and the standard mitzva of mila indeed consists of performing the act of cutting the foreskin. Beit Din, from the Rambam’s description it appears by contrast, is not commanded to perform an act per se, but rather to prevent areilut. The state of areilut is considered ma'us (unappealing) and has significant halakhic ramifications as well; it prevents eating the korban Pesach and teruma and bans entry into the Mikdash. Beit Din as a body charged with monitoring and preserving the integrity of Jewish society, may be charged with preventing areilut.

 

If this is indeed the structure of the Beit Din mitzva, it may change the application of their mitzva as well. For example, the Rambam includes an obligation to circumcise non-circumcised slaves as part of the Beit Din mitzva. The circumcision of slaves is certainly not part of a personal mitzva to circumcise a child or even to circumcise oneself. Evidently, the mitzva of Beit Din is not oriented toward the ACT of mila, but rather toward the prevention of societal areilut. Hence, they have the responsibility to circumcise both Jews as well as Jewish-held slaves.

 

If this is true, perhaps Beit Din's obligation would extend to the scenario of a cosmetically reversed circumcision. This situation – known in the gemara as "mashuch" – involves someone who literally "stretched" the foreskin to its original state, rendering himself an arel. Usually, one who has performed mila is under no halakhic obligation to repeat mila if he has reversed it through mashuch. Would Beit Din be obligated to attend to a "mashuch" and repeat the circumcision? Some (see the Tzafnat Pa'aneiach in his comments to the Rambam, Hilkhot Mila perek 1) claim that they would, as the mitzva is articulated as "preventing areilut" and not as performing circumcision. In fact, the verse that obligates Beit Din is written in a fashion that would support this unique definition of the mitzva; "Himol lakhem kol zakhar" implies a command to cause a state of mila, rather than to perform an act of mila.

 

Returning to the original query, if the mitzva is DEFINED differently (as preventing areilut and not as performing mila), it is likely that the mitzva applies to Beit Din and not to every Jew. If it were true the secondary mitzvaof mila is extended to every Jew, we would anticipate that it would be structured in the same fashion as the base mitzva. However, if the mitzva devolves upon Beit Din, it could logically be viewed as a different category of mitzva. Unlike the father, who is obligated to perform an ACT, Beit Din – in their role as judicial and religious supervisors of the community – must eliminate areilut.

 

Finally, this question as to whether it is Beit Din that is obligated or whether the obligation applies to EVERY Jew and is possibly managed by Beit Din may affect an interesting question. Is a MOTHER obligated to circumcise her son in her husband's absence? Presumably, she is exempt, because the mitzva of mila is defined as a zeman gerama from which women are excluded. Moreover, the Torah expresses the mitzva in male terminology – "ka'asher tziva OTO (him) Elokim" – leading the gemara to interpret, "Oto ve-lo ota," "He [the father] and not her [the mother]." Thus, there are two reasons to exempt a mother from performing mila upon her son.  

 

However, several Rishonim describe an "obligation" upon the mother. The Maharach Ohr Zarua (R. Chayim, the son of the Ohr Zarua siman 11) claims that the mother is obligated. His comments are based loosely upon a comment of Rashi in Yevamot (71b) that implies that if a mother has not circumcised her son, she cannot partake of a korban Pesach. This may indeed imply that she is obligated. Alternatively, one could argue that the mother is actually excluded from the PERSONAL obligation to administer mila to a child, but is obligated to perform the communal mitzva. Perhaps she possesses an obligation similar to that of others, or perhaps her obligation supersedes that of others because she has greater access to the child. Either way, she may be AT LEAST as obligated as others. This position was stated by the Sefer Ha-Makneh (by R. Pinchas Ha-Levi Horowitz, the Rebbe of the Chatam Sofer, 17th century), and it may explain the odd position of Rashi in Yevamot.

 

 

Presumably, the female application of the mitzva would be more logical if the mitzva applies to every Jew. If the mitzva were directed at Beit Din, it would be more difficult to apply this mitzva specifically to the mother.