Mishneh Torah, Circumcision 1

Sugya Map

The Rambam's introductory chapter to Hilchot Milah lays the foundational principles of this seminal mitzvah, exploring its nature, scope, and practical applications.

• Issue: What is the fundamental nature of milah, who is obligated to perform it, and under what circumstances does its performance supersede other mitzvot or face delays? The chapter delineates the chiyuv (obligation) of the father, master, Beit Din, and the individual himself, alongside the unique rules for converts, slaves, and special birth circumstances.
• Nafka Mina(s):
  • Scope of Karet: Whether karet applies only to the uncircumcised individual or also to the father/master who failed to circumcise.
  • Ongoing Obligation: Does the father's chiyuv persist beyond the eighth day, or is it solely time-bound? This impacts the d'chiyat Shabbat (overriding Shabbat) principle.
  • Agency in Mitzvot: Can a father (or other obligated party) appoint an agent to perform milah, or is it a personal chiyuv that cannot be delegated? This spills into the broader discussion of "stealing a mitzvah."
  • Categorization of Slaves: Different classes of slaves (home-born, purchased, with or without immersion) have distinct milah timings, some overriding Shabbat, some not. This highlights the nuanced status of eved Kana'ani.
  • Medical Deferment: The specific conditions (jaundice, systemic illness, family history of death post-milah) that necessitate delaying milah, demonstrating the primacy of pikuach nefesh (saving a life).
  • Doubtful Cases: How to handle milah for children with ambiguous physiological states (androgynous, C-section, no foreskin) or uncertain birth times (beyn hashmashot), particularly regarding d'chiyat Shabbat.
• Primary Sources:
  • Torah: Bereishit 17:14 ("ערל זכר אשר לא ימול את בשר ערלתו ונכרתה הנפש ההיא מעמיה")¹Bereishit 17:14., Vayikra 12:3 ("וביום השמיני ימול בשר ערלתו")²Vayikra 12:3., Devarim 24:8 (prohibition against removing tzara'at signs).³Devarim 24:8.
  • Talmud: Kiddushin 29a (father's obligation, "אותו ולא אותה"), Shabbat 131a-137a (milah on Shabbat, safekim, medical deferrals), Yevamot 46b, 71b-72b (slave milah, arel, two foreskins), Pesachim 4a ("זריזים מקדימים למצוות"), Menachot 43b (King David and ongoing mitzvah of milah), Niddah 42b (time of birth).
  • Mishneh Torah: Hilchot Milah 1:1-22 (the text itself), Hilchot Teshuvah 8:1,5 (karet definition), Hilchot Berachot 11:11 (blessings for self vs. others), Hilchot Chovel U'Mazik 7:13-14 ("stealing a mitzvah"), Hilchot Shabbat 8:7-8 (prohibited labor on Shabbat), Hilchot Avodat Kochavim 10:6 (ger toshav), Hilchot Melachim 8:9, 9:1-2 (Noahide laws), Hilchot Shemitah V'Yovel 10:8 (yovel).

Text Snapshot

The Rambam opens Hilchot Milah with a potent declaration of its significance:

מצוה עשה היא מילה שחייבין עליה כרת, שנאמר: "וערל זכר אשר לא ימול את בשר ערלתו ונכרתה הנפש ההיא מעמיה".⁴Mishneh Torah, Circumcision 1:1.

• Dikduk/Leshon Nuance: The phrase "מצוה עשה היא מילה שחייבין עליה כרת" is striking. While karet is typically associated with negative commandments (lo ta'aseh), the Rambam explicitly states it for this positive mitzvah. The footnote clarifies that milah and Korban Pesach are unique in this regard. This emphasizes the gravity of the mitzvah and its fundamental role in the covenant with God. The Rambam attributes the karet directly to the mitzvah of milah as a positive command, not merely as a consequence of being arel. The verse "ונכרתה הנפש ההיא מעמיה" directly links the karet to the uncircumcised soul, not the one who failed to circumcise another. This distinction is crucial for later halachot.

האב מצווה למול את בנו, והאדון עבדיו. ואם עבר האב או האדון ולא מל אותן ביטל מצות עשה, ואינו חייב כרת שאין כרת אלא על הערל עצמו.⁵Mishneh Torah, Circumcision 1:2.

• Dikduk/Leshon Nuance: The Rambam's use of "מצווה למול" (is commanded to circumcise) for the father and master, followed by "ביטל מצות עשה" (negated a positive commandment) if they fail, precisely defines their liability. They negate a mitzvah but do not incur karet. This reflects the karet being tied to the state of being arel, not the act of failing to circumcise another. The passive "אינו חייב כרת" reinforces that the karet is not a direct punishment for the father/master's inaction.

Readings

The Father's Enduring Obligation: Nachal Eitan and the Yad HaMelekh

The Rambam states, "מצוה על האב למול את בנו"⁶Mishneh Torah, Circumcision 1:2.. The Nachal Eitan (on Hilchot Milah 1:2)⁷Nachal Eitan on Mishneh Torah, Circumcision 1:1:1. notes that the Rambam's stam (unqualified statement) implies that the father's obligation to circumcise his son continues even after the eighth day, should he have initially failed to perform the mitzvah on time. This is in contrast to some mitzvot whose time-bound nature means the obligation lapses if missed. The Nachal Eitan supports this interpretation by citing the Rambam himself in his Peirush haMishnah (Shabbat 19:5), Rashi (Shabbat 131b), and Tosafot (Shabbat 131a), all of whom indicate that milah, even if delayed, is not "lost" but can be performed later. The Ra'anach (Responsa 39) and Sefer HaMiknah (Kiddushin Perek 1) concur.

However, the Nachal Eitan highlights a contrasting view from the Yad HaMelekh, who argues that the father's obligation is only on the eighth day. The Yad HaMelekh's primary proof-text is a familiar kushya: If the obligation persists beyond the eighth day, why does milah b'zmanah (at its proper time, the eighth day) override Shabbat? If it can be performed later, why not simply delay it until after Shabbat, thus avoiding the desecration of Shabbat? This argument draws a parallel to the Omer offering, where the Gemara in Menachot 72a posits that if the Omer could be cut before Shabbat, its cutting would not override Shabbat.

The Nachal Eitan meticulously refutes the Yad HaMelekh's kushya with several layers of terutzim:

1. Distinction from Kedoshim: Citing the Sha'agat Aryeh (Responsum 52), the Nachal Eitan explains that the analogy to the Omer is flawed. The rule that mitzvot override Shabbat only if they cannot be performed before or after Shabbat (known as tzimtzum hazman) applies specifically to kedoshim (sacred offerings) which must be brought like the Tamid (daily offering) whose time is absolutely fixed. Milah, however, is not a korban and does not share this restrictive nature. Therefore, milah b'zmanah overrides Shabbat because performing it on the eighth day is the mitzvah l'chatchila (ideal fulfillment), even if it could be validly performed later b'dieved (post-facto). The priority is to fulfill the mitzvah in its optimal time.
2. Alternative Derivation for Omer: Even regarding the Omer, the Nachal Eitan notes that the tzimtzum hazman rule applies only if its d'chiyat Shabbat is derived from the verse "במועדו" (in its appointed time). However, if the d'chiyah is derived from "תקריב" (you shall offer), it does not necessitate the tzimtzum hazman restriction. The Rambam himself rules that the Omer overrides Shabbat, even though it could be cut before Shabbat, indicating that he does not hold by the tzimtzum hazman for all mitzvot.
3. Ramban's Principle of Zerizut: The Nachal Eitan further argues, based on the Rashba (Shabbat Perek 2) in the name of the Ramban, that even for a mitzvah she'ein zmanah kavua (a non-time-bound mitzvah), one should perform it immediately, even if it means overriding a lo ta'aseh (negative commandment), rather than delaying it to avoid the lo ta'aseh. Kal v'chomer (all the more so) for milah, which is time-bound for its optimal performance. The ability to perform it later does not diminish its strength to override Shabbat b'zmanah.
4. Tosafot Pesachim Distinction: The Nachal Eitan addresses Tosafot (Pesachim 69a) which states that haza'ah (sprinkling) of terumah does not override Shabbat (according to R' Eliezer) because terumah can be eaten after Shabbat. He explains that this is a specific case where the mitzvah is derived from Pesach, requiring a strict analogy, and eating terumah is considered a form of avodah (Temple service). Generally, a positive mitzvah overrides a negative even if it can be performed later without transgression.
5. Further Proofs for Ongoing Obligation: The Nachal Eitan returns to Sefer HaMiknah, which brings additional proofs for the father's ongoing obligation from the verse regarding Pesach ("המל לכם כל זכר") which applies even later, and from Tosafot (Kiddushin 29a) which states that milah is not a mitzvah aseh shehazman grama (a time-bound positive mitzvah that exempts women) precisely because its obligation does not cease after the eighth day.

The Nachal Eitan also delves into why the Rambam does not explicitly state the exemption of women from milah, despite the Gemara (Kiddushin 29a) deriving it from "אותו ולא אותה" (him and not her). He considers a terutz from Tosafot (Kiddushin 29a) that if milah shelo b'zmanah could be done at night, it would not be mitzvah aseh shehazman grama, thus requiring a pasuk to exempt women. But if, as Rambam holds, milah shelo b'zmanah is only by day, then it is mitzvah aseh shehazman grama, and women are exempt by the general rule. However, Nachal Eitan refutes this, arguing that night might only interrupt the mitzvah, not make it time-bound. His preferred explanation is that the Rambam relies on his broader principle stated in Hilchot Avodah Zarah (12:3) that all time-bound positive mitzvot exempt women, except for Kiddush HaYom and a few others.

The Status of Slaves and the "Stealing Mitzvah" Debate: Sha'ar HaMelekh and Yitzchak Yeranen

The Rambam states that a master is obligated to circumcise his slaves, but is a slave obligated to circumcise his son? The Sha'ar HaMelekh (on Hilchot Milah 1:1)⁸Sha'ar HaMelekh on Mishneh Torah, Circumcision 1:1:1. affirms that a slave is patur (exempt) from this, deriving it from a gezeirah shavah "לה לה" (from her, to her) which equates a slave to a woman, and women are exempt from circumcising their sons. He acknowledges a difficulty from Tosafot (Bava Kama 88a), which implies this gezeirah shavah is only for stringencies on slaves, not leniencies. The Sha'ar HaMelekh brings Rabbi Shlomo Algazi's critique (Zahav Shibah, Chagiga 15a) of Tosafot. He then offers his own reconciliation, citing Beit Kehuna (Rabbi Meir Eisenstadt), which argues that this gezeirah shavah for slaves only applies to new obligations (to make them like women where they wouldn't otherwise be obligated). However, for obligations that are inherently for men (like testimony), slaves are considered men unless explicitly excluded. He further develops this, connecting to the Rambam's view in Hilchot Melachim (8:3) that the gezeirah shavah "לה לה" is only relevant for mitzvot aseh shehazman grama. If milah (especially shelo b'zmanah) is considered shelo hazman grama, then the exemption for women is a gezeirat hakasuv and doesn't apply to slaves through analogy.

The Rambam further notes that if the father or master fails to circumcise, the Beit Din is obligated to do so, even against the father's will.⁹Mishneh Torah, Circumulation 1:3. This leads to a discussion, particularly prominent in the Yitzchak Yeranen (on Hilchot Milah 1:1)¹⁰Yitzchak Yeranen on Mishneh Torah, Circumcision 1:1:1. and the Sha'ar HaMelekh, about "stealing a mitzvah." The Rosh rules that if someone circumcises a child when the father intended to, they are liable for ten gold pieces (a fine for "stealing" the mitzvah). The Yitzchak Yeranen questions this, asking why liability exists if the father heard the blessing and answered "Amen," thus fulfilling his part through the principle of "Gadol HaOneh Amen Yoter Min HaMevarech" (one who answers Amen is greater than one who blesses).

The Yitzchak Yeranen resolves this by distinguishing between the blessing and the act of the mitzvah. The Rosh's fine is for stealing the mitzvah itself, which is a mitzvah b'yadayim (a physical act). Answering "Amen" might suffice for the blessing, but it doesn't compensate for the loss of the action for which the father was obligated. If the father consented to someone else performing the milah, then perhaps "Amen" would suffice. But if the mitzvah was stolen, the father is deprived of the actual performance. He refutes the Maharshal (Yam Shel Shlomo, Bava Kama Perek HaChovel) who suggested that "Amen" should always suffice, arguing that the Maharshal's reasoning might apply to mitzvot b'peh (verbal mitzvot) but not to mitzvot b'yadayim.

This debate has a crucial practical implication: Can a father (or anyone obligated in a mitzvah b'yadayim) appoint an agent to perform the mitzvah? The Sha'ar HaMelekh cites the Shach (Choshen Mishpat 382:4) who, based on this understanding of "stealing a mitzvah", argues that a father who knows how to circumcise cannot appoint an agent, as doing so would be a bitul mitzvah aseh (negating a positive commandment). The Sha'ar HaMelekh then brings counter-arguments from the Shulchan Chadash and K'reiti u'Pl'eiti, who assert that agency is permitted for milah, similar to Korbanot (where a kohen can appoint an agent) or Terumah. He suggests a nuance: performing the mitzvah through an agent out of laziness or disrespect might be forbidden, but doing so to honor another (e.g., a great talmid chacham) is permissible.

The Yitzchak Yeranen strongly sides against the Shach's conclusion, finding the parallel arguments (from Korbanot, Terumah, and Pidyon HaBen) compelling. He also brings a powerful proof from Bava Kama 91b regarding kisui hadam (covering blood after slaughter) where someone who cut down a tree or killed an animal for another (who was obligated to cover the blood/cut the tree) was exempt because the owner told him to do it, implying that agency is perfectly valid. He concludes that the Shach's view that one cannot appoint an agent if capable is incorrect, and that the owner of the mitzvah can delegate it, retaining the zechut (merit) while allowing another to perform the physical act.

The Master's Obligation and Karet: Yad Eitan and Yitzchak Yeranen

The Yad Eitan (on Hilchot Milah 1:1)¹¹Yad Eitan on Mishneh Torah, Circumcision 1:1:1. raises a fundamental question: Why does the Rambam, in his enumeration of mitzvot, not list the mitzvah for a master to circumcise his slaves as a separate positive commandment? He suggests that it is not considered an independent mitzvah in the same vein as the milah of a Jewish son. He supports this by referring to a dispute in Yevamot 46b between R' Yishmael and R' Akiva regarding the permissibility of maintaining uncircumcised slaves. Even R' Akiva, who forbids it, does not consider it a separate positive mitzvah from the 613; otherwise, R' Yishmael's opinion would imply a deficiency in the count of mitzvot. He adds that Tosafot (Sukkah 3a) and in the name of the Rivan, hold that even R' Akiva considers it only a mitzvah m'derabanan.

The Yad Eitan then addresses whether a slave is obligated to circumcise his son. While other commentaries might use the gezeirah shavah "לה לה" to exempt slaves (like women), the Yad Eitan offers a simpler solution: A slave, by Halacha, has no yichus (lineage) for his children. Consequently, he is not obligated in mitzvot that are inherently familial, such as a father's obligation to his son. Just as a slave is not obligated in kibud av for his father (because his son is not considered his from a lineage perspective), he is not obligated to circumcise his son. This is a powerful and concise chiddush.

The Yitzchak Yeranen (on Hilchot Milah 1:3)¹²Yitzchak Yeranen on Mishneh Torah, Circumcision 1:1:3. addresses the Rambam's statement that if the father or master fails to circumcise, they negate a positive mitzvah, but are not liable for karet (as karet applies only to the uncircumcised person himself). He notes that the Rambam does not state that if the Beit Din fails to circumcise, they negate a positive mitzvah. He offers two terutzim:

1. The Rambam's primary aim in this Halacha is to clarify the scope of karet. Since Beit Din members, as a collective, would not be liable for karet (as responsibility is diffused, and no individual is the arel), there's no need to explicitly state their non-liability for karet.
2. More profoundly, citing Maran (presumably the Beit Yosef or Shulchan Aruch), the Rambam uses the term "עבר" (transgressed) for the father/master, but for the Beit Din, he would imply "נתעלם" (overlooked) or "שגגו" (erred). It is inappropriate to say that the Beit Din, as "עיני העדה" (the eyes of the community), "transgressed" in the same manner as an individual. This highlights a subtle distinction in culpability and intention.

Friction

The Enduring Obligation vs. Shabbat Override: A Central Paradox

The most potent kushya arising from the Rambam's Halachot on milah is encapsulated in the Yad HaMelekh's challenge to the notion of a father's enduring obligation to circumcise his son beyond the eighth day. The Rambam implicitly holds that the father's chiyuv persists (as extensively detailed by Nachal Eitan), yet he also states unequivocally that milah b'zmanah (on the eighth day) overrides Shabbat.¹³Mishneh Torah, Circumcision 1:13.

The Kushya (Yad HaMelekh): If the mitzvah can be fulfilled just as validly on the ninth day (or any subsequent day), why should it override Shabbat on the eighth? The fundamental principle of d'chiyat Shabbat (overriding Shabbat) for mitzvot is often understood to apply only when the mitzvah cannot be performed at any other time. If it could be performed later, one should simply wait to avoid desecrating Shabbat. This is exemplified by the Omer offering (Menachot 72a), where the Gemara questions why the Omer cutting overrides Shabbat if it could have been cut before Shabbat. The Yad HaMelekh applies this logic directly to milah.

The Terutzim (Nachal Eitan): The Nachal Eitan provides a multi-faceted response, dissecting the Yad HaMelekh's premise:

1. Nature of Tzimtzum HaZman: The Nachal Eitan, citing the Sha'agat Aryeh (Responsum 52), argues that the rule of tzimtzum hazman (that a mitzvah must be impossible to perform before or after its designated time to override Shabbat) is specific to kedoshim (sacred offerings), particularly those likened to the Tamid (daily offering), which has an absolute, unchangeable time. Milah, while having an optimal "eighth day," is not a korban and does not fall under this strict category. The d'chiyah of Shabbat for milah on the eighth day is not because it's impossible to perform later, but because the Torah decreed its performance on the eighth day, making that the l'chatchila (ideal) time. The very decree of "ביום השמיני ימול" implies that this day's mitzvah is primary and overrides Shabbat.
2. Ramban's Principle of Zerizut: Even beyond the specific category of kedoshim, the Nachal Eitan invokes the Ramban's teaching (brought in Rashba, Shabbat Perek 2) that zerizim makdimim l'mitzvot (the diligent perform mitzvot early). This principle dictates that when a mitzvah can be performed, one should do so immediately, rather than delay. The Ramban goes further, stating that one should perform the mitzvah immediately even if it means overriding a lo ta'aseh (negative commandment), provided the lo ta'aseh is not karet or mitah b'yedei Shamayim. If this applies to non-time-bound mitzvot, kal v'chomer for milah on its appointed day. The fact that the mitzvah can be performed later b'dieved does not diminish the chiyuv to perform it l'chatchila at its optimal time, even at the cost of d'chiyat Shabbat. The mitzvah on the eighth day is a distinct obligation that carries the weight to override Shabbat, irrespective of later possibilities.
3. The Specificity of the Passuk: The Torah's explicit command "וביום השמיני ימול" is interpreted as a unique decree for milah. Unlike other mitzvot, where the timing might be flexible, the eighth day for milah is a chok (a divine statute) that overrides Shabbat. The Gemara in Shabbat 132a derives this specifically from the juxtaposition of "וביום השמיני" with milah, implying a unique halacha for this mitzvah.

In essence, the terutzim emphasize that while the mitzvah of milah can be performed later, the mitzvah of milah b'zmanah (on the eighth day) is a distinct and paramount chiyuv that stands independently and inherently overrides Shabbat. The possibility of later fulfillment does not diminish the unique obligation and privilege of performing it b'zmanah.

Agency and the "Stealing Mitzvah" Conundrum

A secondary but equally profound friction emerges from the Rambam's statement that the father is "מצווה למול את בנו"¹⁴Mishneh Torah, Circumcision 1:2., leading to the debate about whether this obligation is personal or can be delegated. This is amplified by the concept of "stealing a mitzvah."

The Kushya (Yitzchak Yeranen, building on Rosh): The Rosh rules that if one circumcises a child against the father's will (when the father intended to do it himself or have someone else do it), the circumciser is liable for ten gold pieces for "stealing the mitzvah." The Yitzchak Yeranen asks: Given the principle of "Gadol HaOneh Amen Yoter Min HaMevarech" (one who answers Amen is greater than one who blesses), why should the circumciser be liable? The father, by hearing the blessing and answering Amen, has, in a sense, participated in the mitzvah and derived spiritual benefit. If the benefit is equal or greater, what has been "stolen"? This leads to the broader question: Does the father have an exclusive right to perform the mitzvah himself, or can he appoint an agent?

The Terutzim (Yitzchak Yeranen & Sha'ar HaMelekh):

1. Mitzvah B'Yadayim vs. Mitzvah B'Peh: The Yitzchak Yeranen explains that the Rosh's ruling pertains to the act of the mitzvah itself, which is a mitzvah b'yadayim (a physical act), not merely the blessing. While answering Amen is spiritually significant for blessings (mitzvot b'peh), it does not compensate for the loss of the physical performance of the mitzvah for which the father was primarily obligated. The ten gold pieces are a fine for depriving the father of this personal chiyuv to perform the physical mitzvah, akin to other damages for negating a mitzvah (as derived from Bava Kama 91a). If the father had consented to delegation, the case would be different, but when it is "stolen," the father has lost the mitzvah itself.
2. The Shach's Stringency and its Refutation: The Shach (Choshen Mishpat 382:4), relying on this understanding, argues that a father who is capable of performing the milah himself cannot appoint an agent, as doing so would constitute bitul mitzvah aseh (negating a positive commandment). This is a highly stringent view.
   • Counter-arguments (Sha'ar HaMelekh, Yitzchak Yeranen, Shulchan Chadash, K'reiti u'Pl'eiti): These authorities strongly disagree with the Shach. They bring numerous parallels from other mitzvot where agency is universally accepted:
     • Korbanot: A kohen can appoint an agent to offer sacrifices.¹⁵Yad Eliyahu 51, citing the general practice of Korbanot.
     • Terumah: The owner of a field is obligated to separate terumah, but can appoint an agent.¹⁶Shulchan Chadash 55b.
     • Pidyon HaBen: The father is obligated to redeem his firstborn son, yet can appoint an agent.¹⁷Shach, Yoreh De'ah 305:11 (cited by Yad Eliyahu 51), though Yad Eliyahu uses it to show Shach's inconsistency.
     • Kisui Hadam: The Yitzchak Yeranen presents a compelling proof from Bava Kama 91b, where in a discussion about kisui hadam (covering blood after slaughter), it is implied that an owner can instruct another to perform the mitzvah for him without violating any prohibition. The Gemara's phrasing suggests that agency for such a mitzvah b'yadayim is perfectly valid.
   • Sha'ar HaMelekh's Nuance: The Sha'ar HaMelekh suggests a middle ground: delegating the mitzvah out of laziness or disregard might be problematic, but doing so to honor another (e.g., a mohel who is a great talmid chacham) is permissible. He cites Yoma 39a regarding measuring aparsamon (balsam), where one invites another to partake in the mitzvah. This implies that the primary chiyuv remains with the individual, but the actual performance can be shared or delegated out of honor, without negating the mitzvah.

The consensus of these Acharonim is that while the mitzvah is indeed incumbent upon the father, he retains the right to delegate its performance through an agent. The fine for "stealing a mitzvah" applies when the agent acts against the will of the primary obligee, thereby depriving him of the opportunity to perform the mitzvah or delegate it as he chooses. It is not an indictment against agency itself.

Intertext

Karet and the Unique Status of Milah and Pesach

The Rambam begins by stating that milah is a positive mitzvah punishable by karet¹⁸Mishneh Torah, Circumcision 1:1.. This is highly unusual, as karet is almost exclusively prescribed for negative commandments (lo ta'aseh) whose transgression involves a severe spiritual defilement (e.g., eating cheilev or dam, engaging in forbidden relations). The two notable exceptions are milah and Korban Pesach (Pesachim 69a), both of which are positive mitzvot for which failure to perform, if intentional, results in karet.

This intertextual link highlights the profound covenantal nature of these two mitzvot. Both milah (Bereishit 17) and Pesach (Shemot 12) are foundational covenants that define the Jewish people's relationship with God. Milah is the physical sign of the covenant between God and Abraham, while Pesach commemorates the birth of the nation and its liberation from slavery, marking the initiation of the covenant at Sinai. The severity of karet underscores that failing to uphold these mitzvot is not merely the neglect of a command but a fundamental breach of the covenant itself, akin to severing one's connection to the Jewish collective and its divine destiny. The Rambam himself defines karet as premature death at God's hand and a spiritual cutting off from the World to Come (Hilchot Teshuvah 8:1,5). The Tzafnat Pa'neach (on Hilchot Milah 1:1) explores the nafka mina of whether one who failed to circumcise his children (and thus potentially renders them arelim) is liable for karet if he cannot partake in Pesach due to having arel children. He concludes that the karet for Pesach applies only to one who is arel b'atzmo (uncircumcised himself), not merely one who failed to circumcise others. This distinction reinforces the unique, personal spiritual consequence of karet tied to one's own physical state of covenantal adherence.

Ger Toshav and the Seven Noahide Laws

The Rambam discusses the rules for a slave purchased from gentiles who refuses circumcision: after twelve months, he must be sold to gentiles. However, if he stipulated at the outset that he would not be circumcised, he may be maintained if he accepts the seven Noahide laws and becomes a ger toshav (resident alien)¹⁹Mishneh Torah, Circumcision 1:8.. If he refuses the Noahide laws, he should be killed immediately.²⁰Mishneh Torah, Circumcision 1:9.

This section interweaves the laws of milah with the broader category of non-Jews dwelling in Eretz Yisrael. The seven Noahide laws (prohibitions against idol worship, cursing God, murder, theft, adultery, eating flesh taken from a living animal, and the obligation to establish a court system) are universal moral laws incumbent upon all humanity. A ger toshav is a non-Jew who accepts these laws and is permitted to dwell among Jews in Eretz Yisrael. The Rambam (Hilchot Avodat Kochavim 10:6) states that it is forbidden to allow gentiles who do not accept these seven laws to dwell in Eretz Yisrael.

The Rambam's ruling here underscores the Jewish legal system's approach to integrating non-Jews within its societal framework. It establishes a minimum moral standard for non-Jewish residents. The severity of the punishment for refusing the Noahide laws (death) reflects the fundamental importance of these ethical principles for societal order and divine command. The Kessef Mishneh (on Hilchot Milah 1:9) explains that the Rambam's decision to kill depends on his statement in Hilchot Melachim 8:9 that we must do everything to influence gentiles to observe these laws. The Ra'avad objects to this, stating that this severity is not applicable in the present era, suggesting it applies only in Messianic times or when yovel is observed. The restriction that a ger toshav can only be accepted in the era when yovel laws are in effect²¹Mishneh Torah, Circumcision 1:9. (i.e., when all of Israel dwells in Eretz Yisrael and the tribes are in their ancestral lands), further contextualizes this framework as part of an ideal, fully established Jewish commonwealth. This demonstrates how a specific law of milah for slaves serves as a gateway to broader principles of Jewish governance and interaction with non-Jewish populations.

Psak/Practice

The Rambam's Halachot on milah are foundational for halachic practice, particularly regarding medical considerations and the role of the Beit Din.

1. Medical Deferment (Pikuach Nefesh): The principle that pikuach nefesh (saving a life) takes precedence over all mitzvot is vividly demonstrated in Hilchot Milah 1:20-22. The Rambam's explicit instructions to delay milah for a sick child until they recover, adding a seven-day waiting period for systemic illness²²Mishneh Torah, Circumcision 1:20., or to delay for conditions like severe jaundice (yellowish or overly red complexion)²³Mishneh Torah, Circumcision 1:21., or if previous children died due to milah²⁴Mishneh Torah, Circumcision 1:22., are universally accepted. In contemporary practice, this means a mohel or rav will always consult a pediatrician regarding a baby's health status, especially for jaundice, fever, or any other medical concern. The Bayit Chadash and Binyan Shlomo (on Hilchot Milah 1:21) interpret the Rambam's language for jaundice as not requiring the full seven-day wait, which is the common practice today: milah is performed as soon as the child's complexion normalizes. This meta-psak heuristic prioritizes life above all else, even a mitzvah as central as milah.

2. Doubtful Cases and Hatafat Dam Brit: For a child born without a foreskin (nilad mahul) or a circumcised convert, the Rambam requires hatafat dam brit (extraction of a drop of covenantal blood)²⁵Mishneh Torah, Circumcision 1:10.. This is either out of doubt that a thin membrane was missed (Shabbat 135a, Shulchan Aruch, Yoreh De'ah 263:4) or as an independent symbolic act of covenantal blood (Rashi, Shabbat 134a). This practice is maintained today. Similarly, for ambiguous situations like a child born via Caesarean section, an androgynous, or a child with two foreskins, the milah is performed on the eighth day but does not override Shabbat²⁶Mishneh Torah, Circumcision 1:11.. This reflects a meta-psak heuristic that d'chiyat Shabbat (overriding Shabbat) is reserved for milah that is definitively required b'zmanah (on its proper time) and without safek (doubt). When there is a doubt in the chiyuv itself, the Rabbinic prohibitions of Shabbat are not superseded.

3. Agency (Shlichut) in Milah: While the Shach (Choshen Mishpat 382:4) held that a father capable of milah should not appoint an agent, the prevailing halachic consensus (as argued by Sha'ar HaMelekh, Yitzchak Yeranen, Shulchan Chadash, K'reiti u'Pl'eiti) is that agency is permitted. The Shulchan Aruch itself does not reflect the Shach's stringency in this matter. Thus, a father is not obligated to perform the milah himself if he knows how, and may appoint a mohel. The emphasis is on the diligent performance of the mitzvah, whether by oneself or by a qualified agent. The "stealing a mitzvah" concept is reserved for a situation where the act is usurped against the will of the one obligated, not for a consensual delegation.

Takeaway

The Rambam's Hilchot Milah reveal milah as a unique, non-delegable covenantal obligation on the uncircumcised, with a profound, yet flexible, chiyuv for the father, always prioritizing pikuach nefesh above its timely performance. This chapter profoundly shapes the halachic approach to medical ethics and the nuanced application of d'chiyat Shabbat in Jewish law.