[Avodah] theologically motivated?

[Micha Berger]

To me the question RJK raises starts one step before -- is
compartmentalizing Torah and constitution even appropriate?

Is the Nachide mitzvah of Dinim an obligation to implement a court system
that enforces other Noachde laws, or to create a system to prevent "ish
es rei'eihu chayim belo'o" (to borrow a quote from what may or may not
be an entirely different discussion).

If the latter, then it is our duty as citizens to foster the existing
system based on rights, and incorporating values from halakhah at their
expense may not be the right choice. IOW, I would agree with RJK.

But if the purpose of their courts is to prevent violations of the Sheva
Mitzvos, or includes that prevention as one of multiple purposes, we
have to weigh the battle vs the war -- we should be waging a battle about
teaching Design, but will we lose more in the long run?

(To me, abortion is an entirely different issue, as piquach nefesh to
Jewish mothers is involved. But y'all should know that by now.)

RMJB gives a lot to work with at
<https://www.jlaw.com/Articles/noach2.html#oblig-laws>. See the relevant
section below (with fn).

-micha



   Jewish Law - Commentary/Opinion
   The Obligation of Jews to Seek Observance of Noachide Laws by Gentiles:
   A Theoretical Review
   Rabbi Michael J. Broyde

    The Obligation of Jews to Seek Observance of Noachide[1] Laws by
                       Gentiles: A Theoretical Review

                      by Rabbi Michael J. Broyde[*]

   III. The Obligation of "Laws" or "Justice"[43]

   The final commandment in the Noachide code is dinim, commonly
   translated as "laws" or "justice". Two vastly different interpretations
   of this commandment are found among the early authorities. Maimonides
   rules that the obligations of dinim require only that the enumerated
   Noachide laws be enforced in practice. Maimonides states:

     How are [Noachides] obligated by dinim?. They must create courts and
     appoint judges in every provence to enforce these six commandments .
     . for this reason the inhabitants of Shechem [the city] were liable
     to be killed[44] since Shechem [the person] stole[45]
     [Dina], and the inhabitants saw and knew this and did
     nothing.[46]

   According to Maimonides it is logical to assume that other types of
   regulations that society might make are subsumed under the rubric of
   either "laws of the land" or "laws of the king." Their binding
   authority is quite different.[47]

   Nachmanides argues with this formulation and understands the
   obligations of dinim to be much broader. It encompasses not only the
   obligations of society to enforce rules, but it also obligates society
   to create general rules of law governing such cases as fraud,
   overcharging, repayment of debts and the like.[48] Within the
   opinion of Nachmanides there is a secondary dispute as to what
   substantive laws Noachides are supposed to adopt. Rama, writing in his
   responsa,[49] states that according to Nachmanides in those areas
   of dinim where Gentiles are supposed to create laws, they are obligated
   to incorporate Jewish law into Noachide law unless it is clear
   contextually that it is inappropriate. Most authorities reject this
   interpretation and accept either Maimonides ruling or that according to
   Nachmanides those rules created under the rubric of dinim need only be
   generally fair, and need not be identical to Jewish law.[50] This
   author cannot find even a single rishon who accepts the ruling of Rama,
   and one can find many who explicitly disagree.[51]
   The dispute concerning the nature of the commandment called dinim is
   extremely relevant to explaining the obligation of Jews to provide
   guidance and seek enforcement of the Noachide laws. It would appear to
   this author that Maimonides accepts that the biblical commandment of
   dinim (or some Noachide cognate of it) compels enforcement by all --
   Jews as well as Gentiles -- of these seven laws, perhaps because Jews
   too are bound by them.[52] Maimonides in his explanation of the
   laws of dinim does not appear to limit them to Noachides only. Indeed,
   writing much more recently, Rabbi Yoseph Engel,[53] Rabbi Meir
   Simcha MeDivinsk, Rabbi Yecheil Yakov Weinberg, Rabbi Shlomo Zalman
   Auerbach,[54] and Rabbi Moshe Feinstein[55] all seem to
   indicate that there is some residual jurisdictional impact upon Jews
   from their Noachide obligation. For example, Rabbi Meir Simcha recounts
   that if a Jewish child who is not yet bar or bat mitzva, and thus not
   an adult according to Jewish law, comprehends the nature of right and
   wrong,[56] he or she[57] is obligated according to torah law
   in the Noachide commandments, since according to Noachide law he is an
   adult.[58] In a similar vein, Rabbi Weinberg states that a
   marriage entered into between two Jews which is technically invalid
   according to Jewish law still creates a Noachide marriage between the
   couple.[59]
   The opposite claim could be made according to Nachmanides (as
   interpreted by those who disagree with Rama). Since the obligation to
   create dinim according to Nachmanides includes in it other obligations
   clearly not applicable to Jews (such as the creation of a general civil
   or secular law system governing all other than Jewish) it would appear
   that Nachmanides could not accept a Jewish obligation to participate in
   dinim.[60] That is not to say that Jews need not obey dinim or
   other aspects of the Noachide code according to Nachmanides. Indeed, it
   is clear that a number of authorities find some connection between the
   obligation of dinim and the halachic mandate of dina demalchuta dina,
   the obligation of Jews to obey the secular law.[61] If Noachides
   are obligated in the creation of general secular law and not only the
   enforcement of these six specified commandments, it would seem logical
   that Jews must too obey these dinim, at least in interactions with
   Noachides.[62] However, a crucial observation must be made. Merely
   because Jewish law rules that one is obligated to obey Noachide law
   does not mean that one is necessarily obligated to assist in its
   enforcement.[63] The two are not necessarily
   interrelated.[64]
   Indeed, as noted by Chazon Ish, Jewish law requires respect of the
   Noachide legal pronouncements even in a situation where the Noachide
   judges themselves do not fully observe Noachide law.[65] Chazon
   Ish was asked concerning the obligation to accept legal pronouncements
   from a Noachide court that does not generally observe (or enforce) all
   of the seven commandments, but "observes the law concerning sanctity of
   life and theft of property." Chazon Ish replies that if they are
   enforcing even a section of the Noachide laws properly, it is
   halachically necessary to respect those pronouncements.[66]
   However, respect does not necessarily mean that full participation is
   mandatory.
   In sum, there certainly is an obligation upon Noachides -- at the
   minimum -- to create a legal system designed to enforce Noachide law.
   Jews have an obligation to recognize and respect this system, even if
   it is incomplete in its observance of Noachide law. According to many,
   there would appear to be a residual impact of Noachide law in Jewish
   law.[67]
...

   43. For an excellent review of the Noachide commandment of dinim, see
       Rakover, supra note * (both articles).

   44. See Genesis Chapter 34.

   45. As to why Maimonides uses the word "stole" see Sanhedren 55a and
       Chatam Sofer YD 19.

   46. Malachim 10:14.

   47. See generally Teshuvot Chachmai Provance 48 which clearly
       distinguishes between regulations based on the Noachide laws and
       regulations based on the law of the land or the law of the king.
       For more on this distinction, see Arnold Enker, "Aspects of
       Interaction Between the Torah Law, the King's Law, and the Noahide
       Law in Jewish Criminal Law", Cardozo L. Rev. 12:1137-xxxx (1991).

   48. Commentary of Nachmanides, Geneses 34:14.

   49. Responsa of Rama 10. His ruling is also accepted by Chatam Sofer CM
       91 and R. Yakov Linderbaum (melisa), Responsa Nachalat Yakov 2:3.

   50. See Rabbi Y. Elchanan Spector, Nachal Yitzchak CM 91; R. Abraham
       Issaih Karelitz, Chazon Eish on Hilchot Malachim 10:10 and Bava
       Kama 10:3; R. Isser Zalman Meltzar, Even HaAzel, Chovel Umazek 8:5;
       R. Yecheil Michael Epstein, Aruch HaShulchan He'Atid, Law of Kings
       79:15; R. Naphtali Tzvi Yehuda Berlin, Haamek Shealah 2:3; R.
       Abraham Kook, Etz Hadar 38, 184; R. Tzvi Pesach Frank, Har Tzvi, OC
       II, Kuntres Mili de Berachot 2:1; R. Ovadia Yosef, Yechaveh Daat
       4:65; R. Yitzchak Yakov Weiss, Minchat Yitzchak 4:52:3. For a more
       complete analysis of this issue see N. Rakover, Jewish Law ...,
       supra note * at 1098-1118, and App. I & II.

   51. Most authorities do not accept Nachmanides' opinion; see e.g.
       Maimonides, Hilchot Malachim 10:10; R. Yom Tov Ashvealli (Ritva),
       Responsa 14 (quoted in Beit Yosef CM 66:18); Tosafot, Eruvin 62a
       ("Ben Noach"). The comments of Albo are also worth citing:

     One finds although torah law and Noachide law differ in the details,
     the principles used are the same, since they derive from the same
     source. Moreover, the two systems exist concurrently: while Jews
     have torah law, the other peoples abide by the Noachide code.
       Sefer Haikarim 1:25.

   52. Maimonides asserts in his commentary on the Mishnah (Chulin 7:6)
       that the reason why these seven commandments are obligatory is
       because God commanded these seven laws as part of the divine
       revelation at Sinai. Based on this, the Bal HaTurim notes that 620
       commandments were revealed at Sinai which he remarks is hinted at
       by the 620 letters in the Ten Commandments. Interestingly, Machzor
       Vitri notes that only 606 commandments were given to the Jews at
       Sinai, since the Jews were already commanded in the Noachide laws
       prior to that; this is also noted by Gra as derived from the word
       "Ruth", whose value is 606, which Gra asserts is the additional
       commandments she became obligated in. See also Maimonides's Sefer
       Hamitzvot Aseh 176-177. For a general discussion of the Noachide
       laws and the counting of commandments, see Noami Cohen, "Taryag and
       the Noahide Commandments", Journal of Jewish Studies, 43:46-57
       (Spring 1992).

   53. See Rabbi Yosef Engel, Beit Otzar Marechet 1-1: '7, 9. "The seven
       Noachide commandments are still obligatory to Jews, and their
       authority derives from their pre-Sinai obligation. The Torah . . .
       merely added to Noachide laws . . ."

   54. Rabbi Pinhas Hayyim Sheinman "Teshuva be-inyan yeladimn mefagrim
       legabe hinukh u-mitsvot" Moria 11:(9-10) pp 51-65 (1982). (This
       article contains an appendix written by Rabbi Shlomo Zalman
       Auerbach).

   55. Iggrot Moshe YD 1:6. Rabbi Feinstein there discusses whether one
       who is legally excused from observance of commandments generally
       because of blindness (according to one opinion) is nonetheless
       obligated in the Noachide laws.

   56. Is a bar deah (understands right and wrong).

   57. Although this goes almost without saying, there is no general
       difference in level of obligation in Noachide law between men and
       women; see Encyclopedia Talmudit, supra note *, at page 348.

   58. Or Samach, Issurai Beah 3:2. This presupposes the correctness of
       the Minchat Chinuch famous assertion (Minchat Chinuch 190; also
       found in Chatam Sofer YD 317) that Noachides become adults -- and
       thus obligated in obedience of the law -- not when they reach any
       particular age, but then they reach intellectual maturity. It is
       likely that the correctness of this assertion is itself in dispute
       between Rosh and Rashi; compare Teshuvot HaRosh 16:1 and Rashi
       commenting on Perkai Avot 5:21. See also Yabia Omer YD 2:17.
       See also Sefer Hamikaneh 1:8(5) which states "for violations of the
       seven commandments Jews certainly are to be punished . . ." Perhaps
       similar sentiments are expressed by Rav Kook when he states "in our
       time, when Torah is not upheld . . . still it seems that the
       principles of fairness applied by force of torah law of dinim to
       Noachides applies, since we are no worse than they" Etz Hadar page
       42.

   59. Seredai Eish 3:22; Rabbi Menashe Klein, Mishnah Halachot 9:278 also
       agrees with this.

   60. This author has found no authority who explicitly notes this in the
       name of Nachmanides. However, it would appear logical to this
       author that there is no obligation to participate in the creation
       of a legal system that is not binding on one who creates it. Other
       factors, such as lifnei ever or its analogs, would be in place
       according to Nachmanides to prevent Jews from enticing Noachides to
       violate; indeed, even dina demalchulta might be such rule.

   61. See Rashi, Gitten 9b and Rabbi Bleich, Jewish Law and the State's .
       . . , supra note *, at 856.

   62. See for example, Rashi commenting Gitten 9b. Rabbi Issar Zalman
       Meltzar Even HaAzel, Nizkai Mamon 8:5 freely mixes as near synonyms
       the terms dina demalchuta, din melech, benai noach metzuve al
       hadinim in a discussion about why a Jew must return property lost
       by another when such is required by secular law and not halacha.
       See also Rabbi Meir Dan Polachi, Chemdat Yisrael, Ner Mitzvah 72
       Mitzvah 288. See also the discussion in section IV:3 of the
       position of Rabbi Menachem Mendel Schneerson on this issue.

   63. This article does not address one very significant issue -- the
       scope of a Gentile's obligation (both as an individual and as a
       society) to enforce Noachide law. As is clear from Maimonides'
       formulation (cited in text accompanying note 46), Gentiles are
       obligated not only in formulating a legal system, but also in
       actually enforcing it; after all the inhabitant od Shechem were
       punished because they declined to enforce the law. On the other
       hand, as noted by many authorities (see sources cited in notes 90
       and 158 and more generally the sources cited in notes 90 to 99) it
       is clear that Noachides need not punish all violations with death.
       Indeed, a claim can be made that a Noachide system of law fulfills
       it's mandate as a system of justice (dinim) even if it were to
       occasionally decline to criminally punish a clear violation of
       Noachide law (such as theft of a nickel). So too, it is reasonable
       to suppose that Maimonides's formulation of the difference between
       the obligations of an individual to enforce law and the obligation
       of society to enforce law (see Rotzeach 1:5) has some place in the
       Noachide system also. This is even more so apparent according to
       the approach of Nachmanides that incorporates vast amounts of
       general law into Noachide law. Clearly not every violation of this
       general law requires death or even criminal punishment. On the
       other hand, it is reasonable to assert that the Noachide obligation
       is not fulfill merely by legislative action without any enforcement
       activity. What is missing from this discussion is the halachic
       parameters of the discretion, and that task shall be left to
       another time.