Much of yesterday’s Torah reading focused on forbidden sexual acts—the majority of them incestuous—which are related in great detail in both Acharei-Mot and Kedoshim. While from a religious perspective the existence of such prohibitions may seem expected and unspectacular, prohibitions against incest in the secular world represent something of an anomaly. An apparently victimless crime when performed by two consenting adults.
The attached news story telling of an attempt by an American parent-and-child couple to file for permission to marry set my mind racing. How exactly does Judaism categorise these prohibitions?
In the sixth chapter of Shemoneh Perakim, Rambam cites a surprising aggadic teaching:
"One should not say that he does not wish for meat with milk, clothes made from sha'atnez or immoral acts; rather he should say “I would like to partake of it but my Father in heaven has forbidden it to me””
This teaching, explains Rambam, refers specifically to chukkim—the sorts of commandments which are unique to the Torah and the reasons for which are not easily understood. These laws are not inherently evil but rather are followed out of obedience to the Divine word. Rambam contrasts chukkim with commandments that he labels “mefursamot” (widespread), rules that are universally recognised and legislated in all decent human societies. Concerning such ‘’mefursamot’’ laws Rambam cites the aggadic teaching “even had they not been commanded we could say they ought to have been commanded”.
The inclusion of immorality among the inexplicable ‘’chukkim’’ comes as something of a surprise for several reasons:
1) The prohibition against incest is historically one of the most widespread laws that societies have legislated. Wikipedia describes incest as “one of the most widespread of all cultural taboos…” which is almost universally forbidden between parents/children and siblings.2) Incest is included within the Noahide Laws, which are often understood to represent basic moral and natural laws.3) As, R' Gil Student pointed out in his post yesterday, the Torah considers these prohibitions severe breaches of national holiness, warning that they can cause the nation to be ''vomited out of the land''.4) Rambam writes strongly against sexual excesses and immorality in pretty much ALL of his major works (see more here). In particular, he explains that the Torah’s powerful prohibitions against incest are necessary to prevent vulnerable female family members from being subject to abuse from male relatives.
So where does this leave us? Are the Torah’s sexual prohibitions such as those against incest to be regarded as inexplicable decrees which we observe out of obedience to God’s word or are they to be reviled alongside universally recognised evils such as murder and theft?
In a lengthy analysis of Rabbinic approaches to various mitzvot, Judaism Reclaimed demonstrates how such categorisation can be crucial because Tannaic and Talmudic sages were relatively more likely to legislate loopholes and exceptions for inexplicable chukkim. Mefursamot, by contrast, attracted Rabbinic legislation to prevent apparent loopholes from being exploited [see further here].
Judaism Reclaimed also notes that incest is not the only sexual prohibition to defy simple categorisation. For many centuries the prohibition associated with homosexuality was widely considered to be mefursam—a fathomable and widely accepted – prohibition in Western countries. Recent years though have seen a shift in public opinion, which has led it to be considered more in the category of chukkim than mefursamot. But can the spirit and categorisation of a commandment be subject to change?
How are we to be guided in such a case? Do we attempt to measure by public opinion at the time of the giving of the Torah? Do we follow the mefursam status for the majority of human history or in order to be categorised as mefursam does a commandment need to have been consistently and universally applied? To what extent (if any) can the Torah’s terminology of ‘’to’eiva’’ (abomination) influence the categorisation of the mitzvah?
One fascinating possibility is advanced by Rabbi Chaim Rapoport in his highly recommended book Homosexuality: An Authentic Orthodox View: that the same prohibited act might be considered mefursam for a heterosexual person but an inexplicable chok for a homosexual.
This post, like the associated chapter of Judaism Reclaimed, leaves its readers with questions to ponder rather than easy answers.
First posted on Facebook 25 April 2021, here.
