Parashat Yitro

A phrase that appears many a time in the Talmud and the posekim refers to the Theophany at Mount Sinai in this week's reading--mushba ve-omed me-Har Sinai, "standing sworn [to do the commandments] since Mount Sinai". This phrase expresses the idea that every Jew has been sworn to uphold the precepts and commandments from the moment the Torah was given. Just as a person who has sworn to do a certain thing is obliged to keep his oath, thus every Jew is sworn to uphold the commandments from the time we received the Torah.

This phrase occurs in the Talmud in Tractate Shevuot 25a:[1] "How so? Suppose a person swore to give to so-and-so, or swore not to give? Consider what might be given. If it was charity to the poor, then the person was already ‘sworn to do so since Mount Sinai', as it is said: ‘Give to him readily' (Deut. 15:10)." Thus we see that for our Sages the Theophany at Mount Sinai was an authoritative source binding on all generations, by virtue of which every Jew is obliged to observe the laws of the Torah, and this obligation is reinforced by oath.

Continuing along these lines, Maimonides says in his commentary on the Mishnah[2] that the Theophany at Mount Sinai is the sole source of authority binding us to observe the Torah and its commandments, and everything preceded that event is not binding. The patriarchs who circumcised their sons, for example, did not do so by virtue of being commanded by the Torah, which had not yet been given, rather they did so voluntarily. Even the seven commandments of the sons of Noah, which are binding on all peoples, originate from the Torah given by Moses, e.g., from Mount Sinai.[3]

Such a definition of the obligation to uphold the commandments has many halakhic implications. For example, since we are already foresworn, one cannot take any further oath regarding the commandments, neither to keep them nor to abrogate them. Let us look at a practical example: a young woman who had decided to return to religion "swore" that she would no longer desecrate the Sabbath. But when summer came and the days grew longer, it was hard for her to stand by her oath. So she came to me and asked me to release her of her oath in order that she could keep the Sabbath partially. I did not wish to release her of her "oath," yet on the other hand I could not reveal the truth to her: that her "oath" intrinsically had no validity for the reason given above, namely that we have all been sworn to keep the Sabbath since Mount Sinai, and therefore one who swears to keep the Sabbath essentially swears in vain because one cannot take an oath on an oath, or cancel an oath by an oath.

Let us reflect on the Talmudic concept itself: why is Mount Sinai binding on us today, thousands of years later? Where did we actually take such an oath to observe the commandments?

In all of the events at Mount Sinai there is not the slightest hint of such an oath (save for the third commandment, "You shall not swear falsely by the name of the Lord your G-d," which does not deal with swearing to observe the entire Torah). Moreover, even if we were to suppose that our ancestors who actually were at Mount Sinai were sworn to observe the Torah, how was this oath transferred from generation to generation? For oaths are not passed down by inheritance to one's children, nor are heirs obliged to keep the oaths of their fathers. What, then, obliges us today to observe the Torah and its commandments?

The answer becomes clear in the following responsum (teshuva) given by Rashi:[4]

You asked: what is the law regarding someone who has sworn not to uphold a public edict, and later it is decreed that he shall accept the edict; is the edict binding on him, considering that he took such an oath? The issue appears to me as follows: whoever takes an oath to violate public laws, swears in vain. Even if he is absolved of his oath, he deserves to be flogged. For taking such an oath is like diving into the deep and coming up with nothing [lit. a shard]; he is not excused from the public edict if it has been issued legally and with communal consensus, even if his oath was taken prior to the community's edicts. For he is as one who has sworn to abrogate the commandments and to abandon the laws of Israel; as it is written, "Incline your ear and listen to the words of the sages" (Prov. 22:17). Moreover, he causes the community to separate from him, so that an even harsher edict is passed against him.

Once a certain man sanctified a maiden to be his wife, then wanted to change his mind and took an extreme oath that even if the community were to pass edicts against him, he would not have her. The community passed edicts against him that he could not uphold, so he conceded and married her; for nothing can withstand the public will.

This responsum by Rashi has been cited by posekim throughout the generations[5] and has served as the basis for halakhic rulings concerning public law in Jewish communities throughout the world. For in this responsum Rashi ruled that one's duty to the community is commanded by the Torah and is therefore included in the category of what we stand "sworn to uphold since Mount Sinai". This principle is so strong that it can annul any oath a person might take with regard to a community rule, whether the community's regulation was made before the oath was sworn or afterwards.

It must be stressed that only an explicit commandment from the Torah falls into the category of mushba ve-omed, meaning that we are bound by an oath from Sinai tko perform that commandment. Rashi's reasoning must therefore be as follows: separating oneself from the community is an explicit violation of the Torah, because the Torah adjured us to be part of the community and not to separate ourselves from it. In his responsum as quoted here, Rashi himself did not cite an explicit source from the Torah which prohibits breaking away from the community. But in another more extensively reasoned version of this responsum, as cited by the Mordechai,[6] Rashi did give a source for this from the Torah:

"Being sworn since Sinai to observe the Torah [the expression we are discussing] means that every Jew falls into the category of ‘cursed be he who will not uphold the terms of this Teaching' (Deut. 27:26). There is not a single commandment from the Torah that was not made binding upon them by 48 oaths.[7] Thus his first oath (e.g., at Sinai) preceded his (individual) oath; therefore he is to be flogged (for swearing in vain)." Mordechai reinforces Rashi by proof from Scriptures: "Let one not say, ‘I did not hear the ban (or oath) and did not include myself in it.' Learn from the case of Saul's son Jonathan, for Jonathan did not know his father had laid an oath [upon the troops not to eat before night fell and Saul took revenge on his enemies]. And Saul even wanted to kill Jonathan over the oath and ban of which Jonathan knew not." (See I Samuel, ch. 14)

Perhaps there is no explicit commandment in the verse, "Cursed be he who will not uphold the terms of this Teaching"(Deut. 27:26). It is not counted in the lists of commandments compiled by various rabbis, for it contains a curse, not a command. Deeper investigation of the meaning of this verse, however, reveals a principle that takes precedence over all the commandments and lies at their very foundation, namely: the notion of Jewish community.

Deut. 27:26 is the concluding verse of the passage concerning the covenant on Mount Gerizim and Mount Ebal. This covenantal rite is stressed in the Torah[8] as the principal mission the Israelites were to fulfill upon entering their land. According to the Sages it was the very first thing the Israelites were obliged to do in the land.[9] This rite renewed the covenant established at Sinai upon entry of the Israelites to their land, and therefore it is to be viewed as a continuation of the Theophany at Sinai. At Sinai the Israelites were bound to the commandments but were not held responsible one for another; only upon entering the land did the Torah make us mutually responsible for one another.[10] The conclusion of the ceremony on Mount Gerizim and Mount Ebal is founded on its commencement at Mount Sinai. Thus this verse summarizes the general responsibility taken by the Israelite people for each and every member of the nation. It begins with the notion of an Israelite public community founded at Sinai, and concludes with the mutual responsibility expressed on Mount Gerizim and Mount Ebal.

The verse concluding the covenantal pact in the land of Israel essentially seals a long process of forming an Israelite community based on the Torah, the beginning and principal part of the process being at Sinai and its conclusion, in the land of Israel. Therefore Rashi noted this verse as the authority binding us to perform the commandments by virtue of being part of the Jewish people. He also clarifies to us the communal aspect that underlies the pact at Sinai.

The Pentateuch refers to the day the Torah was given as the "day of the Assembly"[11] because that is where the Israelite community was formed. In other words, a society was created whose common denominator was the desire to establish together a way of life following the Torah and its commandments. Herein lies the uniqueness of the Jewish people, distinguishing them from all the other nations. Its common denominator is neither territory nor history, neither government nor language, although these are all components that are much needed for the physical existence and spiritual development of the Jewish people; but they are not its very essence, and its existence is not contingent on them (although note well that all these are part of the precepts of the Torah). There is but one thing that characterizes the essence of the Jewish people, and that is the Torah; as put by Saadiah Gaon in his famous statement: "Our nation is not nation except by virtue of its Teachings."[12]

Not only six hundred thousand people stood at the foot of Mount Sinai, but the generality of the Jewish people through all generations. For the concept of public community is not an induction comprised of a collection of elements, but a deduction, an abstraction that stands above all its elements. It is like an independent legal entity,[13] in which the individuals may change but the entity itself continues to exist forever:

... to enter into the covenant of the Lord your G-d, which the Lord your G-d is concluding with you this day, with its sanctions; to the end that He may establish you this day as His people and be your G-d, as He promised you and as He swore to your fathers, Abraham, Isaac, and Jacob. I make this covenant, with its sanctions, not with you alone, but both with those who are standing here with us this day before the Lord our G-d and with those who are not with us here this day.[14]

Thus whoever is born into the Jewish people automatically enters a well-defined societal setting and is an inseparable part of it, whether or not this is consciously acknowledged. Also a proselyte who joins the Jewish community must first of all express a desire to belong to the Jewish people, and as a result he or she also comes to be commited to the Torah and its commandments. One must be obligated by the mitzvot, and belonging to the generality of the Jewish community is what obligates us to keep the commandments. First Ruth said to Naomi, "Your people shall be my people," and only afterwards, "your G-d my G-d."[15]

The idea that we are obligated to perform the commandments because we are part of a faith community explains why one cannot swear to observe the commandments. If one swears to do or not do them, they are no longer divine precepts, but the voluntary will of a person to follow a certain way of life. With all due respect for such a person, he or she does not fall into the class of those who are commanded and therefore obey; and according to the tradition, one who is commanded and obeys (metzuve ve-oseh) is superior. The Holy One, blessed be He, did not "suspend the mountain over their heads" because coercion is preferable to free will, but because voluntary personal behavior is not Torah. The mitzvot are as their name implies – something we do because we are commanded and not simply because we so desire (although individual willingness does not detract from observance of the commandments. Quite the contrary, it is what motivates a person to uphold the commandments out of conscious recognition; but it is not the source of authority for the commandment).

Thus the concept of being bound by oath takes on new significance. It is not a personal oath sworn by each and every individual, rather a sort of public oath, binding on the entire Jewish community in all generations. Examples of such oaths can be found in Joshua (6:17) proscribing the city of Jericho, and Joshua (ch. 9) in the oath taken by the chieftains to the Gibeonites, in the battle at Gibeah (Judges 21:5), by Saul (I Sam. ch. 14), in Nehemiah (ch. 10), and in decisions of many posekim throughout the generations.[16] Whoever belongs to the generality of the Jewish people is bound by oath since the covenant at Mount Sinai to uphold the Torah, and this oath has such force that it overrides any other oath, since it is the legal basis for all oaths. The Torah's command, "He must carry out all that has crossed his lips" (Num. 30:3), is what binds a person to fulfill his oath, thus only a person who is bound to the Torah is obligated to uphold this precept of the Torah.

The main conclusion from our discussion, however, is that whoever is part of the Jewish people is obligated by the commandments, and rebelling against this obligation means separating oneself from the generality of the Jewish people. (Posekim in our generation have ruled that even those who do not observe all the commandments, as long as they see themselves as part of the Jewish people, are not, Heaven forbid, considered rebels against the Torah.)

Surely the establishment of such a unique nation and people was the intention behind the words with which the Torah begins the account of the covenant at Mount Sinai: "you shall be to Me a kingdom of priests and a holy nation" (Ex. 19:6).

[1] Also see Shevuot 22b.

[2] Hullin 7.

[3] Hilkhot Melakhim 8.10-11.

[4] Rashi responsa, 247.

[5] Responsa Re'em 57; Binyamin Ze'ev 33; Mayim Amukim 54; Darkhei Noam Hoshen Mishpat 38; Admat Kodesh I, Hoshen Mishpat 74 (from Bar Ilan University Responsa Project).

[6] Shevuot, beginning of ch. 2.

[7] Sotah 37b.

[8] Deut. 11:29, 27.

[9] Sotah 36a.

[10] Sotah 37b; Sanhedrin 43b; also cf. Tosafot, Sotah 34a, s.v. "odam."

[11] Deut. 9:10, 18:16.

[12] Emunot ve-Deot, end of sect. 3.

[13] See my book, Be-Ohalei Torah, Part I, p. 51.

[14] Deut. 29:11-14. On the close connection between the covenant on the plains of Moab and the rites on Mount Gerizim and Mount Ebal, cf. Sotah 37a-b.

[15] Ruth 1:16. Also cf. Akedat Yitzhak 99; Havat Binyamin by Rabbi S. Yisraeli, Part II, par. 67. Zekher Yitzhak par. 30.

[16] See Nahmanides on the Torah, end of Leviticus; the laws of herem at the end of Tractate Mo'ed Qatan; Responsa Re'em 57.