Mishneh Torah, Circumcision 1

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Hook

On the surface, Brit Milah seems like a straightforward mitzvah. But as the Rambam lays it out, the obligation to circumcise is a deeply layered responsibility, shifting across individuals and institutions, with consequences that are both severe and strikingly specific. What's truly non-obvious is how the ultimate, spiritual punishment of karet falls solely on the uncircumcised individual, even as a cascade of others are commanded to perform the mitzvah for him, incurring lesser (though still significant) penalties if they fail. This reveals a profound tension between individual culpability and communal duty.

Context

Brit Milah, the covenant of circumcision, is one of the most foundational mitzvot in Judaism, tracing its origins back to Abraham in Genesis. For Rambam, in his monumental Mishneh Torah, Brit Milah isn't just a historical act but a living, binding halakha – a positive commandment (mitzvah asseih) with profound implications. While the command to Abraham (Genesis 17) establishes the covenant, the halakha for all generations is primarily derived from the command given to Moses in Leviticus 12:3. Rambam’s genius lies in his systematic codification, taking disparate Talmudic discussions and organizing them into a clear, hierarchical, and comprehensive legal framework. He doesn't just state the law; he meticulously details who is obligated, when, how, and the exceptions, often laying bare underlying principles that guide Jewish practice to this day. His approach here in Hilchot Milah is a prime example, showcasing the intricate dance between individual responsibility, communal obligation, and the ultimate sanctity of life.

Text Snapshot

Mishneh Torah, Circumcision 1 (https://www.sefaria.org/Mishneh_Torah%2C_Circumcision_1)

Circumcision is a positive mitzvah [whose lack of fulfillment] is punishable by karet, as [Genesis 17:14] states: "And an uncircumcised male who does not circumcise his foreskin - this soul will be cut off from his people."

A father is commanded to circumcise his son, and a master, his slaves. If the father or the master transgressed and did not circumcise them, he negated the fulfillment of a positive commandment. He is not, however, punished by karet, for karet is incurred only by the uncircumcised person himself.

The court is obligated to circumcise that son or slave at the proper time and should not leave an uncircumcised male among the Jewish people or their slaves.

If the matter does not become known to the court and they do not circumcise him, when [the child] reaches bar mitzvah, he is obligated to circumcise himself. With each and every day that passes after he has reached bar mitzvah, he negates a positive commandment. He is not, however, liable for karet until he dies uncircumcised, having intentionally [failed to perform the mitzvah].

Close Reading

Insight 1: Structure – The Cascading Obligation

One of the most striking aspects of Rambam's opening halakhot is the way he delineates the responsibility for Brit Milah. It’s not a single, static obligation but a dynamic, cascading chain.

The primary responsibility rests with the father: "A father is commanded to circumcise his son" (Hilchot Milah 1:1). This is derived from Abraham's act of circumcising Isaac (Genesis 21:4), as noted in footnote 6, which indicates the mitzvah is primarily the father's. The Minchat Chinuch (Mitzvah 2, footnote 6) even questions the extent of this responsibility: if the father fails to circumcise his son before bar mitzvah, is the father still obligated alongside the now-adult son? This question highlights the enduring nature of the father's role. Rambam’s position in Hilchot Berachot (Chapter 11, Halakha 11, footnote 6) suggests the mitzvah is indeed the father's, as the blessing recited is "to circumcise" (implying he is performing the mitzvah) rather than "concerning circumcision" (implying he's acting on behalf of another).

Next in line is the master for his slaves: "and a master, his slaves" (Hilchot Milah 1:1). Footnote 7 clarifies that this responsibility is "surely the master's," as it's a stage in the slave attaining eved K'na'ani status, obligating them in certain mitzvot. The text cites Genesis 17:27, where Abraham circumcised his servants, as a source (footnote 9). The Yad Eitan (on Hilchot Milah 1:1:1) questions why Rambam didn't count the circumcision of slaves as a separate mitzvah in his Sefer HaMitzvot. He suggests that even for Rabbi Akiva, who forbids maintaining uncircumcised slaves, it might not be a d'Oraita (Torah-level) mitzvah in itself, but d'Rabbanan (rabbinic), or not a distinct positive commandment in the 613. The Yad Eitan also explores whether a slave is obligated to circumcise his own son, concluding no, due to the principle that "a slave has no lineage," meaning the child does not bear the slave's lineage, thus absolving the slave of paternal mitzvot towards the child.

If both the father and master fail, the obligation falls upon the court: "The court is obligated to circumcise that son or slave at the proper time" (Hilchot Milah 1:3). This is derived from Genesis 17:10, "You must circumcise every male," which the Talmud in Kiddushin 29a interprets as a charge to the Jewish court (footnote 13). The court can even act "against [the father's] will" (Hilchot Milah 1:4), underscoring the communal imperative. Yitzchak Yeranen (on Hilchot Milah 1:1:3) notes why Rambam doesn't state that courts incur bitul mitzvat asseih (negating a positive commandment) if they fail: karet doesn't apply to a court, and it's hard to assign blame among many individuals.

Finally, if all else fails, the individual himself becomes obligated upon reaching bar mitzvah: "when [the child] reaches bar mitzvah, he is obligated to circumcise himself" (Hilchot Milah 1:5). This reflects the principle that once a person is an adult, they are personally responsible for fulfilling mitzvot. The Tzafnat Pa'neach (on Hilchot Milah 1:1:5, footnote 5) explains that milah has three aspects: removing the foreskin (a single deed), being circumcised, and not being uncircumcised. The latter two are ongoing qualities, meaning the mitzvah continues to be fulfilled passively even after the act, as exemplified by King David's reflection in the bathhouse (Menachot 43b). This ongoing nature of the mitzvah means the adult is in a state of bitul mitzvat asseih with each passing day he remains uncircumcised (Hilchot Milah 1:5, footnote 6).

This cascading structure highlights that Brit Milah is not just a personal mitzvah but a communal responsibility, ensuring that no Jewish male remains uncircumcised.

Insight 2: Key Term – Karet and Bitul Mitzvat Asseih

Rambam immediately sets a serious tone by declaring milah a positive mitzvah whose non-fulfillment is punishable by karet: "Circumcision is a positive mitzvah [whose lack of fulfillment] is punishable by karet" (Hilchot Milah 1:1). He grounds this in Genesis 17:14, "And an uncircumcised male who does not circumcise his foreskin - this soul will be cut off from his people."

Karet is not a simple earthly punishment. Footnote 3 clarifies its dual dimensions: "Premature death at the hand of God... and a severe spiritual punishment, the 'soul's being cut off,' and not being granted a share in the world to come." It's one of the most severe divine punishments in the Torah, uniquely applied to only a few positive commandments (circumcision and the Paschal sacrifice, as noted in footnote 2).

Crucially, Rambam distinguishes who incurs karet. While the uncircumcised person himself is liable for karet (Hilchot Milah 1:1), the father or master who fails to circumcise him "negated the fulfillment of a positive commandment," but "is not, however, punished by karet" (Hilchot Milah 1:2). This distinction is profound. The karet is tied to the state of being uncircumcised, a spiritual incompleteness, rather than solely the act of neglecting the mitzvah by another. The Kessef Mishneh (footnote 7) on Hilchot Milah 1:5 explains that an adult is not liable for karet until he dies uncircumcised, because "until he dies, it is not known whether he will perform the mitzvah or not." This emphasizes that karet is the ultimate, irrevocable spiritual severance for a persistent, intentional state of non-fulfillment.

The Ra'avad (footnote 7) objects to Rambam's view, asserting that karet is incurred daily for each day the adult intentionally remains uncircumcised, implying a more immediate, daily spiritual consequence. However, even the Ra'avad agrees that karet would be retroactively removed if the person eventually circumcised himself. This debate highlights the exact nature and timing of karet – is it a continuous liability for the state of arel (uncircumcised), or only finalized upon death? Rambam leans towards the latter, emphasizing the possibility of repentance and fulfillment until the very end.

The distinction between karet for the individual and bitul mitzvat asseih (negating a positive commandment) for those responsible for his milah (father, master, court) is a fundamental principle. It underscores that while others have a powerful obligation to ensure the mitzvah is done, the ultimate spiritual fate of the Brit rests with the individual who carries the covenant in his flesh. The Tzafnat Pa'neach (on Hilchot Milah 1:1:3) connects the state of arel to the Passover sacrifice, noting that an arel cannot partake in the Pesach offering (Exodus 12:48), and discusses whether karet for Pesach is due to being an arel or for specifically neglecting the Paschal offering. This further emphasizes milah's deep intertwining with core Jewish identity and practice.

Insight 3: Tension – The Imperative of B'zmano vs. Pikuach Nefesh

Rambam highlights a significant tension throughout these halakhot: the strong imperative to perform milah "at its appropriate time" (b'zmano) – on the eighth day – versus the absolute, overriding principle of pikuach nefesh (saving a life).

The ideal is clear: Milah b'zmano is so critical that it "supersedes [the prohibition against labor] on the Sabbath" (Hilchot Milah 1:9). This is a powerful statement, as most mitzvot do not override Shabbat. Footnote 3 on Hilchot Milah 1:9 explains that "On the eighth day, the child's foreskin will be circumcised" (Leviticus 12:3) is a Torah decree that applies regardless of the day it falls on. This principle also means that milah b'zmano supersedes the prohibition against removing tzara'at (Hilchot Milah 1:10), a general rule that a positive commandment can override a negative one (footnote 7 on Hilchot Milah 1:10).

However, this supersession only applies to milah b'zmano. If the milah is "not [performed] at its appropriate time," it "does not supersede [the prohibition against labor] on the Sabbath or the festivals" (Hilchot Milah 1:9). This category includes many nuanced cases:

• A child born by Caesarian section (Hilchot Milah 1:7, 1:11), because the impurity laws associated with vaginal birth (which trigger the 8-day milah) do not apply (footnote 10 on Hilchot Milah 1:7).
• An androgynous child or one with two foreskins (Hilchot Milah 1:7, 1:11), due to uncertainty regarding the exact nature of their obligation (footnote 4 on Hilchot Milah 1:11).
• A child born beyn hash'mashot (twilight) on Friday (Hilchot Milah 1:12), as Shabbat cannot be superseded due to a doubtful situation.
• A child born without a foreskin, where only hatafat dam brit (extraction of a drop of blood) is performed (Hilchot Milah 1:7, 1:11), as the main act of cutting is absent.

These cases highlight that the power to supersede Shabbat is not inherent to milah as a concept, but specifically to milah b'zmano for a Jewish child born naturally.

The ultimate override, however, comes from pikuach nefesh. Rambam dedicates the final halakhot to this principle:

• "A sick person should not be circumcised until he regains his health" (Hilchot Milah 1:16). This applies universally, regardless of age or status, and requires a waiting period of "seven full days from the time he regains his health" (footnote 3 on Hilchot Milah 1:16).
• Specific conditions like jaundice (yellowish complexion) or an overly red complexion also warrant delay until the child's blood recovers and complexion returns to normal (Hilchot Milah 1:17). This is considered a "sickness, and great care must be taken regarding this matter."
• If a mother has lost two previous sons due to circumcision, her third son should be delayed until he is older and stronger (Hilchot Milah 1:18).
• The overarching rule: "We should not circumcise a child who is afflicted with any sickness at all, since the danger to life takes precedence over everything. Circumcision can be performed at a later date, while it is impossible to bring a single Jewish soul back to life" (Hilchot Milah 1:18).

This final statement is a definitive declaration that pikuach nefesh is paramount. The mitzvah of milah is delayed, not negated, when life is at risk. Footnote 13 on Hilchot Milah 1:13, citing Tosafot on Shabbat 135a, even mentions that in modern times, "it is no longer possible to determine exactly when a child was conceived," and "advances in medical technology have enabled the lives of many premature babies to be saved." Therefore, the ancient rules regarding 7th/8th month babies are no longer strictly applied, and pikuach nefesh dictates that efforts to save any premature baby's life, even on Shabbat, are paramount. This demonstrates the enduring relevance and flexibility of halakha when confronting life-threatening situations.

Two Angles

Angle 1: The Father's Ongoing Obligation

The question of whether a father's obligation to circumcise his son continues past the eighth day is a nuanced one. Rambam implies in our text that it does: "If the father or the master transgressed and did not circumcise them, he negated the fulfillment of a positive commandment" (Hilchot Milah 1:2). This phrasing, particularly the lack of a time limit, suggests the obligation remains until the mitzvah is performed.

The Nachal Eitan (on Hilchot Milah 1:1:1) strongly supports this view, stating that Rambam explicitly implies this, and cites Rashi (Shabbat 131b), Tosafot (Shabbat 131a), and Ranach (Responsum 39) who all agree that milah, if its time has passed, is "not nullified" and the mitzvah remains. Tosafot even say that "the same mitzvah that one is obligated on the eighth day, he performs on the ninth."

However, the Nachal Eitan notes that the Sefer Yad HaMelekh holds a contrasting opinion, arguing that the mitzvah of milah is imposed on the father only on the eighth day. The Yad HaMelekh attempts to prove this from an analogy: if the mitzvah continued, why would milah b'zmano (on the eighth day) override Shabbat? We could simply delay it until after Shabbat, just as the Omer offering (which also overrides Shabbat if it falls on Shabbat) could theoretically be cut before Shabbat if its validity wasn't strictly tied to the day itself (Menachot 72b).

The Nachal Eitan refutes this analogy with several arguments. First, the laws regarding kodshim (sacrifices) like the Omer are distinct; they are time-bound in a way that milah is not. Milah, even if performed later, is still considered the same mitzvah. Second, even if it could be performed later, the principle of "zrizin makdimin l'mitzvot" (the eager perform mitzvot early, Hilchot Milah 1:8, footnote 6) dictates performing it at the earliest possible time, which is the eighth day, even on Shabbat. Delaying a mitzvah when it can be done now, even if it means overriding a negative commandment, is generally not preferred, as the Rashba and Ramban are cited as saying (Nachal Eitan). Therefore, the mitzvah on the father persists, and the overriding of Shabbat on the eighth day is to fulfill it b'zmano in the most ideal manner, not because it must be done then or else it's lost.

Angle 2: "Stealing a Mitzvah"

A fascinating halakhic concept arises in the context of milah: the notion of "stealing a mitzvah." Rambam alludes to this when he states, "We may not circumcise a person's son without his knowledge," citing Hilchot Chovel UMazik 7:13-14 (footnote 1 on Hilchot Milah 1:4) which describes a fine of "ten gold pieces" for "stealing" the performance of a mitzvah from a colleague.

The Yitzchak Yeranen (on Hilchot Milah 1:1:1) delves into a debate among the Rishonim regarding this. The Rosh rules that if a father intended to circumcise his son, and another person preempts him and performs the milah, that person is liable for the ten gold pieces. This is because the mitzvah belonged to the father.

However, a potential challenge arises from the Talmudic principle that "greater is the one who answers Amen than the one who blesses." If the father hears the blessing recited by the mohel who "stole" the mitzvah and answers Amen, has he not fulfilled a greater act, thereby mitigating the "theft"? The Maharshal (cited by Yitzchak Yeranen) suggests this might indeed be the case, implying that if the father heard the blessing and responded Amen, the mohel might be exempt. The Shach (Choshen Mishpat 382:4, also cited by Yitzchak Yeranen) questions the Maharshal's premise, arguing that Amen applies to blessings and prayers, but milah is a physical mitzvah that the father was obligated to perform with his own hands (or through an agent).

The Yitzchak Yeranen offers a reconciliation: the principle of "greater is the one who answers Amen" applies to the blessing itself. The father might gain reward for the Amen, but it does not compensate for the loss of the mitzvah act that was his obligation. Therefore, if someone "steals" the actual performance of the mitzvah from the father who desired to do it, the father is deprived of the mitzvah's performance, and the "thief" is liable for the ten gold pieces. This applies when the mitzvah is inherently tied to a specific individual (like a father circumcising his son). If the father appointed someone as his agent, and another agent preempted, then the "Amen" might be more relevant. But when the father himself is the primary subject of the obligation and wishes to perform it, "stealing" the mitzvah denies him that unique fulfillment. This nuanced discussion highlights the value placed not just on the outcome (the child being circumcised) but on the act of performing the mitzvah by the obligated party.

Practice Implication

The principles laid out in Halakhot 16-18, particularly the overriding concern for pikuach nefesh, profoundly shape contemporary brit milah practice. Rambam states unequivocally: "A sick person should not be circumcised until he regains his health... Seven full days should be counted from the time he regains his health until he is circumcised" (Hilchot Milah 1:16). He specifies conditions like "high fever" or "similar illness" (Hilchot Milah 1:16), as well as "very yellowish" (jaundice) or "overly red" complexions (Hilchot Milah 1:17). The ultimate directive is clear: "We should not circumcise a child who is afflicted with any sickness at all, since the danger to life takes precedence over everything" (Hilchot Milah 1:18).

In modern practice, this means that medical assessment is absolutely paramount before a brit milah. Any sign of illness, even seemingly minor ones, necessitates a delay. This includes, but is not limited to, jaundice (which is common in newborns), fever, respiratory issues, or any other condition that could compromise the baby's health during or after the procedure. The Shulchan Aruch (Yoreh De'ah 262:2) codifies these Rambam's rulings, and modern poskim (halakhic authorities) universally rely on contemporary medical expertise to determine a child's fitness for milah.

For parents, this translates into consulting with their pediatrician well in advance of the eighth day. For mohalim, it means a strict adherence to medical clearance and a willingness to postpone the brit if there's any doubt about the baby's health. The "seven full days" rule (Hilchot Milah 1:16) often means that if a brit is delayed due to illness, it will typically occur on the first available day after a full week of recovery, even if that means it falls on a Tuesday, Wednesday, or any other day of the week, and certainly not on Shabbat or Yom Tov. This demonstrates how halakha prioritizes human life above even one of its most central and time-sensitive mitzvot, establishing a framework for responsible and compassionate religious observance.

Chevruta Mini

1. Rambam clearly distinguishes between the karet punishment for the uncircumcised individual and the bitul mitzvat asseih for the father, master, or court who failed to circumcise him. What does this distinction imply about the nature of personal responsibility versus communal responsibility in Jewish law, especially concerning mitzvot that are foundational to identity?
2. The text presents a tension between the ideal of milah b'zmano (on the eighth day, even superseding Shabbat) and the absolute priority of pikuach nefesh (saving a life). How does this tension shape our understanding of zeal (zrizin makdimin l'mitzvot) in Jewish practice, and what are the tradeoffs involved when a mitzvah must be delayed for health reasons?

Takeaway

Brit Milah is a profound, cascading obligation, where the spiritual consequence of karet for the uncircumcised individual underscores the covenant's ultimate personal significance, yet the absolute priority of pikuach nefesh always allows for its delay.