THOUGHTS ON THE PARASHAH
Rabbi Evan Hoffman – Congregation Anshe Sholom
Parshat Lech Lecha – פרשת לך לך
October 28, 2017 – ז מרחשון תשע”ח
This essay is sponsored by Sisterhood in honor of the births of Boaz Lev Manaster and Rebecca Hellen Leiderman; and by Eugeny Rubashevsky & Tatyana Tchaikovskaya in memory of Irving Rothman.
Refusing to Circumcise
Judaism imposes a set of obligations upon fathers concerning their sons. A father must circumcise his son, redeem him (a requirement pertaining only to the firstborn), teach him Torah, find him a wife, and teach him a trade. Some say that a father must even teach his son how to swim (Tosefta Kiddushin 1:11). The obligation to circumcise one’s eight-day-old son is first recorded in Genesis 17:12 as the sign of God’s covenant with Abraham. The commandment is re-issued in Leviticus 12:3, the Scriptural passage detailing the process of purification from childbirth impurity.
If a father fails to have his son circumcised — whether because of absentminded neglect or of willful refusal — the local rabbinic court assumes responsibility to have the child circumcised (Kiddushin 29a). If both the father and the communal authorities fail to circumcise the boy, upon reaching adulthood the young man is personally obligated to have himself circumcised. If the uncircumcised man refuses to submit to that surgical procedure, he incurs the severe penalty of karet, spiritual excision (Genesis 17:14).
The sages derived the idea of communal responsibility for the circumcision of the sons of recalcitrant fathers from the verse “Every male among you must be circumcised (17:10).” Torah Temimah noted that the text speaks of an absolute obligation irrespective of the father’s wishes. Since the infant cannot be expected to take independent action, perforce the intent of Scripture is to impose the responsibility on the entire congregation as represented by their religious authorities. Maimonides codified the rule as follows: “The court is positively commanded not to allow male Jews or male Canaanite slaves to remain uncircumcised (Hilkhot Milah 1:1).” But, he added the caveat that the court should not act too hastily in usurping the mitzvah before the father has shown his definite unwillingness personally to fulfill his parental obligation (1:2).
Why might a Jewish father refuse to have his son circumcised? One possibility is that the father has a hostile attitude toward Judaism and does not want raise his child in the family’s ancestral faith. By withholding from his son the bodily sign of the covenant, the renegade father leads the lad, from earliest childhood, on a fast path away from Judaism. Alternatively, in an era of anti-Semitic persecution or anti-Judaic legislation, having on one’s body an indelible mark of Jewishness can result in restricted social mobility or, much worse, can expose one’s self to physical harm or death (see Leviticus Rabbah 32:1). During the periods of persecution under Antiochus IV Epiphanes and Hadrian, some Jews underwent painful epispasm (foreskin restoration) to undo their visible mark of Jewishness (I Maccabees 1:16, Tosefta Shabbat 15:9). Some parents might refuse to enter their child into the brith-milah because they view the ritual not as a beautiful symbol of the Abrahamic covenant but as a barbaric, violent, and bloody act best relegated to the ancient past. Lastly, some people have moral qualms about forcing a child to undergo a medically unnecessary procedure. In their view, the human rights of the infant are violated when, for purely religious reasons and at too young an age to offer consent, he is cut.
Aware of the serious internal and external threats to the institution of brith-milah, the Aggadists frequently spoke of the utmost importance of circumcision (Mishnah Nedarim3:11). Rabbi Elazar ben Azariah cited the condemnatory verse “all these nations are uncircumcised (Jeremiah 9:25)” as proof of the repugnant nature of the foreskin. Rabbi Ishmael noted that the commandment of circumcision was sealed with thirteen Divine covenants. Rabbi Jose remarked how great is circumcision, since its performance on the eighth day overrides even Sabbath work restrictions. Rabbi Joshua ben Korchah noted that great is circumcision. for even Moses was not spared punishment when he slightly delayed the procedure for his son (see Exodus 4:24-25, the episode of the “bridegroom of blood”). Rabbi Nehemiah asserted that great is circumcision, as it overrides the ban on cutting away leprous skin. Rabbi Judah the Patriarch found evidence for the greatness of circumcision in that God did not call Abraham “complete” until after he had removed his foreskin. The Mishnah’s final claim is that the world would not have been created if not for the institution of brith-milah, citing the verse “As surely as I have established my covenant with day and night – the laws of heaven and earth (Jeremiah 33:25).”
Maimonides (Hilkhot Milah 3:8-9) and Tur (Yoreh Deah 260) adduced a plethora of homiletic proofs for the importance of circumcision, not something they typically did for other mitzvoth in their respective legal codes. Maimonides cited the dictum of Rabbi Elazar Ha-Moda’i that he who annuls the covenant of Abraham, even if he has the merit of Torah study and good deeds, will have no portion in the World to Come (Avot 3:11). Tur cited a Aggadic claim that Abraham waits at the gates of hell and does not let a circumcised person descend into the netherworld (Eruvin 19a). In the authoritative Code of Jewish Law, Shulchan Arukh, Rabbi Joseph Karo stated that circumcision is the greatest of all performative commandments (Yoreh Deah 260:1). A technical argument in favor of assigning circumcision a high rank on the scale of religious practices is that it is one of only two performative commandments – the other being the Paschal sacrifice – for the non-observance of which Scripture imposes karet as a punishment. Another argument is that while ritual items, such as tefillin, are put on and taken off (and on Shabbat and holidays are not worn at all), brith-milah is a permanent, ever-present indicium of Jewishness, unrelated to the religious calendar or the time of day or night.
In antiquity, the theocratic Jewish state could force a father to circumcise his son. In the pre-modern Jewish communities of Europe, the rabbis held juridical and police powers. They could coerce public religious observance by means of corporal punishment, fines, and social ostracism. In the late 18th and early 19th centuries, Western and Central European states stripped the Kehillah and the rabbis of the ability to coerce religious observance. Jews who no longer wanted to maintain fealty to halakhah were free openly to behave as they pleased.
The one area of religious observance in which Jewish communal coercion was still a fact of life in 1840s Central Europe was circumcision. Unlike in the United States, where the separation of church and state allows a dissenter to remain religiously unaffiliated, in most 19th century European states all citizens were required to affiliate with an officially recognized religious denomination. (It was believed that religion, generally, was necessary for maintaining the moral virtue of the citizenry, and that it was in the interests of the state to prevent the emergence of an unchurched class.) In this context, brith-milah was no longer just a sign of the Abrahamic covenant; it was an initiation rite, and bureaucratically the functional equivalent of baptism. If Jewish parents wanted the Kehillah to register their newborn son as a Jew, the child had to be circumcised irrespective of the parents’ private attitude toward that ritual.
Some early 19th century German Jewish parents were ambivalent about the religious destiny of their offspring. Though they were not eager to baptize their children, the social and economic benefits of doing so were enticing. Unrelenting communal pressure to circumcise their sons was, in some instances, the decisive factor in favor of baptism.
In 1843 a new phenomenon developed. Some parents refused to circumcise their sons, but nonetheless were adamant that their children be formally recognized as Jews. A ruling by the Frankfurt public health official implied that this was now legally possible. Only a few months earlier in Frankfurt the radical Society for the Friends of Reform had been established. Its platform included unambiguous opposition to circumcision. Frankfurt Chief Rabbi Solomon Trier feared for the future of brith-milah and appealed to the Frankfurt Senate for a clarification and the imposition of the old coercive regime. He also turned to his rabbinic colleagues in Central Europe for support in the struggle to preserve tradition. Trier’s halakhic ruling read: “The obligation to circumcise falls not only upon the father, but also upon the Jewish court, and each and every person in Israel. The father who persists in his sin and contemptuously, with evil intent and renunciation of the Torah, does not allow his son to be circumcised is a heretic, has left the Jewish people, and is disqualified from giving testimony or taking an oath.”
The responses to Rabbi Trier’s missive show a wide range of rabbinic opinion on the subject of religious coercion. The greatest German halakhist of his generation, Rabbi Seligman Ber Bamburger, the renowned Wurtzburger Rav, favored an appeal to secular authorities to impose religious discipline on obstinate parents, even by means of physical force. Others rabbis did not expect direct government help to be forthcoming, but assumed that the government would not prevent the Kehillah from taking harsh internal measures against recalcitrant parents. An example of such a measure is that, upon his death, the father would not be buried in the Jewish cemetery and his family should not mourn him. Nathan Marcus Adler opposed any recourse to secular authorities, but opined that the obstinate father not be counted in a minyan, not be called to the Torah, and not be allowed to take an oath on a Torah scroll. The moderate reformer Isaac Noah Mannheimer opposed petitioning for governmental intervention, but also insisted that no uncircumcised boy ever be registered by the Kehillah as a Jew. He insisted that it be up to the government to decide, on its own and without Jewish lobbying, how to recognize the status of “an unnatural, hybrid creature” who is neither a Christian nor a member of the Jewish religion. Interestingly, Zechariah Frankel, the founder of Positive-Historical Judaism and a member of the critical school, took an extremely demanding position. He favored government intervention and coercive tactics to overcome parental refusal. In contrast, Rabbi Samson Raphael Hirsch, the founder of Neo-Orthodoxy, opposed such measures, preferring instead for the Kehillah to bid good riddance to the heretics who left tradition of their own free will.
The rabbis who took hard-line positions against a father who refuses to circumcise his son justified their opinions primarily with historical, philosophical, and meta-halakhic arguments. They did so in part because purely halakhic arguments no longer interested the rapidly assimilating German Jewish laity, but also because the halakhic argument was weak. Only the man who himself remains uncircumcised in adulthood is subject to karet. The father who refuses to circumcise his son has merely neglected to perform a positive obligation, and is not subject to that punishment.
The Talmud notes that the Biblical punishment of 40 lashes, malkut, applies only to the violation of prohibitive commandments. Regarding a person who refused to perform positive commandments (like sukkah, lulav, or tzitzit), the rabbinic court is bidden to smack him until either he complies or physically expires (Ketuboth 86a, Hullin 132b). Rashi explains that since those mitzvoth do not entail tremendous expense, the refuser has no valid excuse for not ritually falling into line. On the assumption that brith-milah was not inordinately expensive, the same logic could justify brutally coercive methods. The problem is that none of the major halakhic works codifies this rule, and it was hardly ever cited by post-Talmudic authorities to explain the actual conduct of communal affairs. Moreover, as noted by radical reformer Samuel Holdheim, to apply the rule to circumcision but not, for example, to the positive commandments regarding daily donning of tzitzit and tefillin would be grotesquely inconsistent.
The best textual argument in favor of severe punishment for the obstinate father is a literal translation of Genesis 17:14, “that person shall be cut off from his kin.” Conventional rabbinic understanding of karet is that the offender either suffers an untimely death or loses his portion in the hereafter. Either way, the punishment is imposed by God, the Author or Denier of life. However, the plain meaning of karet is that an offender has so egregiously violated communal norms that, by dint of his own actions, he has removed himself from the congregation. The 12th century commentator Joseph Bekhor Shor understood Genesis 17:14 in this fashion. All God’s servants are circumcised; the outlier who refuses to do so has by his own decision taken himself outside the category of God’s servants.
Any appeal to the secular state’s police powers for the purpose of preserving Jewish religious practice risked setting a dangerous precedent; that same government could later interfere in the internal religious affairs of the community in a manner contrary to the interests of tradition. The rabbis understood the risk, but believed that maintaining universal Jewish observance of brith-milah was worth it.
Ultimately, the survival of circumcision as a defining Jewish practice was not the result of state intervention, but rather was due to what Jacob Katz called an inexplicable “ritual instinct.” For many Jews, the ritual instinct of their parents to place on them, in infancy, the sign of the Abrahamic covenant afforded them their sole connection to the Judaic heritage. There is, then, always the hope that such a person will contemplate his bodily sign of Jewishness and seek to reconnect with his religious heritage.