The Torah's sexual prohibitions: religious decrees or basic common sense?

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?

Is it possible that a single commandment concerning incest may in some instances—such as when it involves the potential abuse of a minor—represent an easily-understood mefursam prohibition to prevent a universally recognised evil, while in other instances—like that of the attached news story—represent the inexplicable word of God?

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.

Why does the Torah prohibit superstition?

The analysis of Judaism Reclaimed which relates to the parashah of Achrei-Mot focuses in part on its prohibition against “walking in the statutes” of the surrounding pagan nations. This commandment is understood by the sages to refer to “Darkei Emori” – superstitious practices of the Emorites which were commonly believed to influence natural phenomena and protect people from worldly dangers.

In the understanding of Rambam, all such superstitious practices are categorised alongside various forms of magic and necromancy as empty and foolish actions. He takes a strong stand against those who conclude, from a simple reading of the Torah that any of these darker arts as efficacious:

"Anyone who believes ... that these things are true ... but that the Torah has prohibited them is one of the fools and those lacking knowledge ... But those who possess wisdom ... know ... that all of these things that the Torah prohibits ... are emptiness and vanity that fools stray after, and all of the paths of truth have been corrupted because of them. Because of this the Torah states ..."Perfect shall you be with Hashem, your God”." (Hilchot Avoda Zara 11:6)

Many people with whom I have spoken, whose understanding of Judaism is strongly coloured by kabbalistic thinking, find Rambam’s position here difficult to fathom. From their perspective, God’s creation of the world included a powerful and dangerous ‘sitra achra’, the concept of a ‘dark side’ which is widespread in Kabbalistic texts. These forces of evil, which feed off sinful conduct, are understood to be responsible for evil in the world. Crucially for our topic, this dark side also allows for ‘darker arts’ which are believed to be able to manipulate and overcome natural forces with their powers of impurity.

According to this kabbalistic approach we can well understand why the Torah would want to prohibit any manipulation of or association with such forces of evil. But according to those such as Rambam who deny the existence of such a system of dark forces, how are we to understand the Torah's repeated warnings and severe penalties for those who partake in these darker arts?

Ibn Ezra, in his commentary on the Torah’s discussion of ov and yidoni magical practices, strongly rejects the suggestion that denying the efficacy of such practices makes their prohibition harder to understand:

“Those possessing empty brains assert that, were ovot and magical practices ineffective, the Torah would not have forbidden them. Yet I say the opposite is the case, for the Torah does not prohibit truth but falsehood, as is proven by [the prohibitions against] idolatry”.

Rambam, who places the halachot of sorcery and divination within Hilchot Avodah Zarah goes further, viewing them as an adjunct of idolatry, explaining that pagan priests would feign 'supernatural powers' in order to attract worshippers to their idolatrous cults.

An examination of Rambam's writings elsewhere suggests a further profound significance to these prohibitions. In Moreh Nevuchim (3:37) Rambam discusses the scope and functions of the Torah's prohibition against pursuing pagan superstitions, explaining it to include whatever is believed by the nations to be effective for supernatural rather than scientific reasons. This is reflected by a Talmudic teaching (Shabbat 67a) that "anything which is 'refuah' is not darkei Emori". Rambam explains this to mean that any cure which was understood — even erroneously — to be naturally effective, does not belong to the category of darker arts.

In Rambam’s understanding, since the laws of the natural world are a product of divine wisdom, they therefore represent an important means for acquiring awe, love and knowledge of God. With this in mind, Rambam's assertion that "these things [darker arts] corrupt all paths of truth" means that such trickery and fabrication corrupt humanity’s understanding of God's world, and lead it away from attaining knowledge of Him.

Any practice which can be demonstrated to be effective, however, is necessarily a reflection of God's wisdom in creating the world. If magical rites and superstitions were actually efficacious, the Torah would have had no cause to prohibit them. The problem with these imagined products of trickery lies primarily in the claim that they involve the use of powers which lie above God's natural laws, therefore wielding the ability to control and manipulate them. This creates an impression of the existence of additional and distinct supernatural powers — a dark side to be served and appeased — which makes sorcery and necromancy natural bedfellows of idolatry.

First posted on Facebook 10 April 2022, here.