– Author: Rav Jeremy Koolyk

“לא תקפו פאת ראשכם” (ויקרא יט:כז)

          In this pasuk, the Torah prohibits Jewish men from rounding the “corners” of their heads.  The Talmud[1] explains that the intention of this pasuk is to prohibit making a uniform hairline between one’s temple and the bare skin above one’s ear by removing the hair between these two points.  Rambam[2] writes that the clergymen of avoda zara used to shave their heads in this manner, and thus the Torah prohibited doing so in order to distance the Jewish people from avoda zara practices.  In this article, we will first explore to whom this negative commandment (lav) applies and then discuss both the local and global ramifications of our conclusions.

From the terminology of the pasuk, לא תקפו, our first instinct is that this commandment is directed toward the מקיף, the one who removes the פאות הראש, “corners of the head” (as opposed to the ניקף, the one whose פאות are removed), i.e., the barber.  Nonetheless, the Talmud (Makkot 20b) may indicate differently:

תני תנא קמיה דרב חסדא: אחד המקיף ואחד הניקף לוקה. אמר ליה: מאן דאכיל תמרי בארבילא לקי? דאמר לך: מני? רבי יהודה היא, דאמר: לאו שאין בו מעשה לוקין עליו. רבא אומר: במקיף לעצמו ודברי הכל. רב אשי אומר: במסייע ודברי הכל.

“A Tanna taught before Rav Chisda: Both the Makif (he who removes the hair) and the Nikaf (he whose hair is removed) receive lashes.  Said (Rav Chisda) to him: ‘Does one who eats dates from a sieve get lashed?  According to whom is your statement? Rabbi Yehuda, who says one receives lashes for violating a negative commandment that has no action.  Rava said: (The Tanna refers to a case in which) one removes his own hair, and his statement is agreed upon by everyone (even those who disagree with Rabbi Yehuda).  Rav Ashi said: (The Tanna refers to a case in which the Nikaf) is assisting (the Makif) and his statement is agreed upon by everyone (even those who disagree with Rabbi Yehuda).”

From the Talmud, it appears evident that the Nikaf also violates a lav since the Tanna states that there are instances in which the Nikaf receives lashes. Apparently, the Nikaf has somehow also violated the commandment of לא תקפו.  Rashi offers two explanations as to how the words לא תקפו can suggest that there is a negative commandment which devolves upon the Nikaf: 1. The term לא תקפו does not mean merely ‘do not round of the corners of’, but rather it also means ‘do not allow one to round the corners of (one’s own head),’ thus including the Nikaf. 2. Since the phrase לא תקפו is written in the plural, the implication is that it is addressed to two parties, the Makif and the Nikaf.  There is a general dispute between Rabbi Yehuda and Chachamim about the degree of activity on the part of the violator required in order to administer the punishment of lashes (malkot).  Rabbi Yehuda believes that even one who violates a negative commandment passively receives malkot, while the Chachamim hold that only one who actively violates a negative commandment receives malkot.  Despite the relative passivity of the Nikaf, he still receives malkot in violation of לא תקפו, in accordance with one of the three explanations of the Talmud: 1. One can be lashed for violating a commandment even if no action is taken (Rabbi Yehuda); 2. If one removes his own פאות, he has indeed taken an action and is therefore lashed twice even according to the Chachamim, once for violating the lav of Makif and once for violating the lav of Nikaf (Rava); 3. The Nikaf is assisting the Makif (by proffering the hair of his פאות to the Makif) and this constitutes an action such that he can be lashed even according to Chachamim (Rav Ashi).

It clearly emerges from Rashi’s explanation of this passage that our initial assumption, that the lav of לא תקפו applies only to the Makif is incorrect.  Rather, לא תקפו applies both to the Makif and the Nikaf such that even the passive Nikaf has violated the commandment.  Whether or not the Nikaf is lashed is dependent upon the dispute between Rabbi Yehuda and Chachamim.  According to Rabbi Yehuda, the Nikaf is always lashed; according to Chachamim, the Nikaf is only lashed when his violation is accompanied by an action, such as removing his own hair (Rava) or assisting the Makif by proffering his hair (Rav Ashi).  This position is also reflected in Tosafot.[3]

A rigorous analysis of the opinion of the Rambam, however, reveals an entirely different understanding of this Talmudic passage.  The Rambam (Hilchot Avoda Zara 12:1) codifies the Talmud as follows:

לפיכך המגלח שני צדעיו אפילו בבת אחת והתראה אחת לוקה שתים, אחד המגלח הפאות בלבד ומניח שיער כל הראש ואחד המגלח כל הראש כאחד לוקה הואיל וגילח הפאות, במה דברים אמורים באיש המגלח אבל איש המתגלח אינו לוקה אלא אם כן סייע למגלח.

“Therefore one who shaves off the two sides of his head, even if done simultaneously with but one warning, receives two sets of lashes, regardless of whether one removed just the corners of the head and left the rest of the hair intact or shaved the entire head.  This applies to the one who shaved the hair, but the one whose hair is shaved does not receive lashes unless he assisted the one who shaved.”

A cursory reading of this Rambam does not reveal anything anomalous about his position; he seems merely to be codifying the opinion of Rav Ashi that the Nikaf receives lashes only when he assists the Makif.  The Raavad’s objection, though, implies otherwise:

אף על פי שאינו לוקה כיון שמדעתו עשה עובר בלאו

“Even though (the Nikaf) does not receive lashes, since he was aware of (the Makif’s) action, he violates a lav.”

The Raavad emphasizes that the Nikaf violates a lav even when he takes no action, implying that he understood that the Rambam would not agree to this principle.  Indeed, the same conclusion can be reached from examining the Rambam’s abridged Sefer Hamitzvot.  There he defines the 43rd positive commandment as follows:

שלא להקיף פאת ראש ככומרי ע”ז שנ’ לא תקיפו פאת ראשכם

“Not to round the corners of the head like clergymen of avoda zara, as it says, ‘Do not round the corners of your heads.”

Here, again, the Raavad takes exception:

לאו למקיף ולאו לניקף

“There is a lav for both the Makif and the Nikaf.

From both comments of the Raavad, it appears that the Raavad understood that according to the opinion of the Rambam there exists no lav for the Nikaf to have his פאות removed, thus prompting the Raavad to write his own dissenting view.  Three questions immediately arise.  First, how can we reconcile this understanding of the Rambam with Rambam’s ruling that the Nikaf receives malkot when he assists the Makif – if there is no lav for the Nikaf, how can he receive malkot?  Second, how did the Rambam understand the Talmud?  Last, where in the words of the Rambam did the Raavad see this understanding?

It would appear that the Raavad understood that the Rambam holds that when the Nikaf assists the Makif in the haircutting process, he receives lashes not because he has violated the lav of the Nikaf (for indeed no such lav exists according to the Rambam), but rather because he has violated the lav of the Makif.  The act of assisting the Makif effectively turns the Nikaf into a Makif with all of the accompanying ramifications (i.e., violation of a lav punishable by malkot).  According to the Rambam, if the Nikaf remains completely passive, he has violated nothing; if he assists the Makif, then he, too, is considered a Makif and is thus sentenced to lashes.

The Acharonim[4] point out that this understanding is not just the Raavad’s interpretation of the Rambam, but is in fact self-evident from the Rambam.  The reader will recall that the Talmud offered three options to explain the Tanna’s ruling that the Nikaf receives lashes: the Tanna follows the opinion of Rabbi Yehuda that one can receive lashes for violating a lav even in the absence of an action, the Tanna refers to a case in which one removed his own hair (Rava), or the Tanna refers to a case in which the Nikaf assisted the Makif.  Since the Halacha (Rambam, Hilchot Sanhedrin 18:2) does not follow the opinion of Rabbi Yehuda but rather insists on an action as a prerequisite to the punishment of lashes, we would not expect the Rambam to codify the first explanation of the Talmud.  Why, though, does the Rambam only codify the third explanation (Rav Ashi)?  Why does the Rambam rule against the second explanation (Rava)?  As mentioned above, Rambam[5] rules that one who removes both of his own פאות receives two sets of lashes, one for each פאה, implying that if he removes only one of his פאות, he receives one set of lashes, not two sets as Rava ruled.  This begs the conclusion that the Rambam felt that the dispute between Rav Ashi and Rava was not merely a technical one about to which case the Tanna was referring.  Rather, there is a fundamental argument between them: According to Rava, there exists a lav for both the Makif and the Nikaf, such that if one removes his own hair he receives two sets of lashes as he has violated two negative commandments.  Rav Ashi fundamentally disagrees: there is no lav for the Nikaf; only the Makif is prohibited by the Torah and thus the Nikaf can only get lashes if he, too, becomes a Makif by assisting the Nikaf.  The Rambam ruled in favor of Rav Ashi and thus, ipso facto, rejected Rava.

We have thus seen a fundamental dispute between the Rishonim with regard to the prohibition of לא תקפו.  According to most Rishonim (Rashi, Tosafot, Raavad), this prohibition creates a lav for both the Makif and the Nikaf, while according to the Rambam the prohibition implies a lav only for the Makif (though, as we have seen, the Nikaf can also sometimes violate the lav of Makif).  We have also seen two practical differences between these approaches.  First, if the Nikaf remains completely passive, according to the Rambam he has violated nothing, whereas according to the other Rishonim he has violated a biblical prohibition.  Thus, theoretically, it would be permissible according to the Rambam for a gentile to remove the פאות of a Jew, provided that the Jew remains passive,[6] while the other Rishonim would unequivocally forbid such a situation.  Second, the Rishonim would dispute the punishment of one who removed his own פאות.  According to most Rishonim, he would receive two sets of lashes, one for violating the lav of Makif and one for violating the lav of Nikaf.  According to the Rambam, however, there is only one lav to violate, that of the Makif, and he can therefore receive only one set of lashes.

Our exploration of the dispute between the Rishonim has thus far been contained to the laws of פאות הראש.  As we turn to examine two aspects of the laws of Shabbat, we will soon realize that the ramifications of this dispute are broader than we originally imagined.

Mikveh Preparations on Shabbat

Before immersing oneself in a Mikveh, a person must take care to remove anything that creates a chatzitzah, a physical barrier, between one’s body and the Mikveh water.  The Rama[7] writes that since the practice has developed for women to cut their nails before immersing in the Mikveh, if one immerses without cutting her nails, the nails are considered a chatzitzah and she must immerse again after cutting her nails.  This ruling gives rise to the following dilemma: What should be done if a woman needs to immerse on Friday night but has forgotten to cut her nails before the commencement of Shabbat?  On the one hand, she is required to cut her nails so that her immersion is considered kosher, but on the other hand, cutting nails constitutes Chilul Shabbat (desecration of Shabbat).  While there are many factors beyond the purview of our discussion that relate to the decision in this scenario, we will focus on the one relevant to our analysis.  The Taz[8] rules that the woman may not ask a gentile to cut her nails because although the gentile will be doing the cutting action, the Jewish woman will inevitably assist the gentile by positioning her hand in a convenient manner.  This assistance, claims the Taz, is akin to the assistance which the Nikaf provides the Makif.  Since we know that it is prohibited for a Nikaf to assist a Makif to cut his פאות, it is similarly prohibited for the woman to assist the gentile to cut her nails on Shabbat.  The Shach[9] rejects the opinion of the Taz: In general, claims the Shach, mere assistance is inconsequential and does not make one liable for the prohibited action; the Nikaf receives lashes when he assists the Makif only because there is a separate lav pertaining to the Nikaf.  Since there is no lav which pertains to the object of Chilul Shabbat, but rather only to the subject who performs the Chilul Shabbat, this case cannot be compared to that of the assisting Nikaf.

It is clear that the dispute between the Taz and the Shach has its roots in the dispute between the Rishonim regarding a Nikaf.  The Taz, like the Rambam, understands that there is no lav that applies specifically to the Nikaf, but the Nikaf can violate the lav of Makif via his assistance.  According to the Rambam and Taz, this logic is not specific to the laws of פאות הראש; it applies equally to other areas of Halacha.  The Talmud (Makkot 20b) has demonstrated in the context of the laws of פאות הראש a general principle that when one assists someone violating a commandment with one’s body, one is considered halachically to have violated that commandment.  Thus, if the woman assists the gentile in cutting her nails, it will be considered halachically as if she is cutting her own nails and she is therefore in violation of desecrating Shabbat.[10]  Conversely, the Shach, like the other Rishonim, understands that there is a separate lav for the Nikaf.  When the Nikaf assists the Makif, his assistance is only a relevant factor in deciding whether he receives the punishment of lashes (which can only be administered if an action takes place), but either way the Nikaf will violate a Biblical prohibition.  However, it cannot be concluded, according to these Rishonim, that any time one physically assists someone violating a prohibition, one is considered to have violated the prohibition oneself.  Only after a prohibition is pre-established does the degree of assistance become important in determining whether to administer lashes, but if there is no prohibition in the first place, mere assistance is not grounds for prohibition.  Thus, it is improper to use the case of the Nikaf as a precedent to prohibit the woman from having her nails cut by a gentile, since the two cases are fundamentally incomparable.


Dental Work on Shabbat

While it is generally rabinically prohibited for a Jew to ask a gentile to desecrate Shabbat on his behalf (amirah lenochri), in cases of illness or incapacitating pain, this prohibition is waived and one can ask a gentile to violate Shabbat.[11] Based on this principle, the Rema[12] rules that one suffering from a severe toothache may ask a gentile to remove his tooth on Shabbat, despite the fact that removing teeth falls under the prohibited category of Melechet Gozez, shearing.  Here, too, the Taz[13] argues.  Although there may be grounds to waive the rabbinic prohibition of Amirah Lenochri, since having one’s tooth pulled out will inevitably involve opening one’s mouth and positioning it in a way that provides access for the gentile, the Jew himself will be in violation of Melechet Gozez.  By now, the logic of the Taz is familiar: Just as the Nikaf’s assistance turns him into the one violating לא תקפו, so, too, the Jew’s assistance turns him into the one pulling the tooth.  The Rema, it would seem, sides with the other Rishonim.  Since the Nikaf is only culpable because there is a separate lav that applies to him as the object of the הקפה (cutting process), we cannot extrapolate that assistance is forbidden in other areas of halacha where no such comparable lav exists for the object of the prohibition.  Thus, it is permitted for the Jew to assist the gentile in extracting his tooth.

We have seen that the existence of a lav of Nikaf is the subject of disagreement both between the Rishonim and the Achronim.  This issue is pivotal both with regard to the laws of פאות הראש and other areas of halacha, such as the laws of Shabbat.  Regarding פאות הראש, we have seen that the law of one who removes his own פאות and the law of one who passively allows a gentile to remove his פאות depend on this point.  In terms of other areas of Halacha, the critical issue of whether one who physically assists someone to violate a prohibition has also violated that prohibition has also been shown to revolve around this argument.

[1] Makkot 20b

[2] Sefer Hamitzvot, Lo Taaseh 43; Hilchot Avoda Zara 12:1

[3] Bava Metzia 10b, s.v. Akfi

[4] See, for example, Malbim to Vayikra 19:27.

[5] Hilchot Avoda Zara 12:1

[6] The Rambam may forbid maintaining such a hairstyle for other reasons.  See Rambam, Hilchot Avoda Zara 11:1.

[7] Y.D. 198:20

[8] Y.D. 198:21

[9] Nekudot Hakesef 198:20

[10] A difficulty which faces the Taz is that the Talmud (Shabbat 93a, Beitzah 22a) rules “mesayeya ein bo mamash,” “mere assistance is inconsequential.”  The Taz is thus forced to distinguish between different types of assistance.  See Taz (O.C. 328:1) for the distinction. See also Ritva (Makkot 20b s.v. bemesayeya) and Aruch LeNer (Makkot 20b s.v. begemara) for variations on the distinction of the Taz, and Chiddushei Chatam Sofer (Shabbat 93a s.v. mesayeya) for a nuance in the opinion of the Taz.

[11] Shabbat 129a; Beitzah 22a

[12] O.C. 328:3

[13] O.C. 328:1

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